CONSTITUTIONAL AMENDMENT RESERVING STATE

CONTROL OVER PUBLIC SCHOOLS

TUESDAY, MAY 12, 1959

U.S. SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL AMENDMENTS
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to call, at 10:15 a.m., in room 457, Senate Office Building, Hon. Estes Kefauver (chairman of the subcommittee) presiding.

Present: Senators Kefauver and Dodd.

Also present: Senator John Stennis; Bernard Fensterwald, Jr., subcommittee counsel; and Kathryn Coulter, subcommittee clerk. Senator KEFAUVER. The committee will come to order.

This morning the Subcommittee on Constitutional Amendments of the Committee on the Judiciary begins hearings on Senate Joint Resolution 32, a resolution introduced by Senator Talmadge and eight other Senators, to wit: Mr. Byrd and Mr. Robertson of Virginia; Mr. Johnston of South Carolina; Mr. Hill and Mr. Sparkman of Alabama; Mr. Eastland and Mr. Stennis of Mississippi; and Mr. Long of Louisiana.

On April 10, 1959, I placed in the Congressional Record a formal announcement of these public hearings on Senate Joint Resolution 32. I think it would be appropriate to have the insert from the Congressional Record printed at this point in the record. (Congressional Record, pp. 5016–5017.)

NOTICE OF HEARING AMENDMENT TO CONSTITUTION CONCERNING PUBLIC SCHOOL

ADMINISTRATION

Mr. KEFAUVER. Mr. President, I wish to announce that the Subcommittee on Constitutional Amendments, of which I have the honor to be chairman, will begin hearings on Senate Joint Resolution 32 at 10 a.m. on May 12. This resolution, which was introduced by the junior Senator from Georgia [Mr. Talmadge], for himself and eight other Senators, proposes an amendment to the Constitution with respect to public school administration. As the text of the proposed amendment is short, I ask unanimous consent that its text be printed at this point in my remarks.

There being no objection, the joint resolution was ordered to be printed in the Record, as follows:

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as a part of the Constitution when ratified by the legislatures of three-fourths of the several States:

"'ARTICLE ·

""Administrative control of any public school, public educational institution, or public educational system operated by any State or by any political or other subdivision thereof, shall be vested exclusively in such State and subdivision and nothing contained in this Constitution shall be construed to deny to the residents thereof the right to determine for themselves the manner in which any such school, institution, or system is administered by such State and subdivision.'"

Mr. KEFAUVER. Mr. President, the hearings will be held in room 457, Old Senate Office Building. Persons who wish to give public testimony should inform the subcommittee's counsel, Mr. Bernard Fensterwald, Jr., whose address is U.S. Senate Post Office, U.S. Senate, Washington 25, D.C.

Senator KEFAUVER. The other members of this subcommittee are: Senator Dodd of Connecticut, who is with us this morning, Senator Hennings of Missouri, Senator Eastland of Mississippi, Senator Langer of North Dakota and Senator Dirksen of Illinois.

Unfortunately, the other members of the subcommittee are either at the White House or in other important committee meetings where they are presiding and are not here at the present time, but we hope during the course of the hearings that they will be here as much of the time as possible.

I am sure our witnesses will understand the fact that all Senators are on several committees or subcommittees, which makes it difficult for all Senators to be present at any one meeting.

This proposed amendment deals with a most important problem about which there is considerable confusion. I think that good discussion by intelligent persons is always helpful in clarifying any problem.

This amendment is, in fact, an amendment to the 14th amendment, and I think that the 14th amendment should be placed in the record at this point.

(The 14th amendment is as follows:)

SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

SEC. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being 21 years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens 21 years of age in such State.

SEC. 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a Member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. SEC. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions, and bounties for services in

suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss of emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

SEC. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Senator KEFAUVER. Undoubtedly in the discussion we will have considerable to say about certain Supreme Court decisions, particularly Plessy v. Ferguson, 163 U.S. 537, which was decided in 1896, the opinion being written by Justice Brown with a dissent by Mr. Justice Harlan. Justice Brewer did not participate in the decision. The opinion in this case, together with the dissent, will be printed in full in appendix A to this record.

The decision of the Supreme Court in Brown v. Board of Educa tion, 347 U.S. 483, decided in May 1954, will be printed in full, the opinion in that case being by Mr. Chief Justice Warren. (See app. B.)

The second decision in the case of Brown v. Board of Education, May 31, 1954, reported in 349 U.S. at 294, will also be printed in the appendix of the record. (See app. B.)

Our very able counsel for the subcommittee is Mr. Bernard Fensterwald, Jr.

These hearings will be thorough and fair, and they shall be conducted in a constructive and dignified manner. It is my earnest desire that the witnesses will shed much light on this proposed amendment.

I trust that no witness will attempt to use this subcommittee as a platform to stir up tensions and hatred. Also, I hope that all witnesses favoring this proposal will avoid any statement or language which might invite legislative proposals of a retaliatory nature. I know that Senator Talmadge, the chief sponsor of this amendment, shares my hope.

At the outset, I wish to thank Senator Talmadge for his fine cooperation toward this end, and I now call upon him to be our first witness and to explain his proposed amendment.

STATEMENT OF HON. HERMAN TALMADGE, A U.S. SENATOR FROM THE STATE OF GEORGIA

Senator TALMADGE. Thank you, Mr. Chairman, and members of the Subcommittee on Constitutional Amendments of the Judiciary Committee.

First, I wish to express my deep gratitude to this subcommittee for its decision to hold comprehensive hearings on the proposed constitutional amendment which eight of my colleagues and I are sponsoring to restore State and local control over public education.

The language of S.J. Res. 32 speaks for itself in declaring clearly and unequivocally its purpose. It proposes to add to the Constitution of the United States a new article to read as follows:

Administrative control of any public school, public educational institution, or any public educational system operated by any State or by any political or other subdivision thereof, shall be vested exclusively in such State and subdivision and nothing contained in this Constitution shall be construed to deny to the residents thereof the right to determine for themselves the manner in which any such school, institution, or system is administered by such State and subdivision.

The issue with which this proposed amendment seeks to deal affirmatively is without a doubt the most momentous and far reaching of our time. It affects the lives of all Americans of all ages and the manner in which it is resolved will have an incalculable impact upon the future of our Nation and its people.

It is true that the question is one which more immediately concerns the people of the South, but I submit to this subcommittee that its ramifications are national rather than regional in scope. That is true because if the people of the South can be denied control over their public schools today, the people of the North, East, and West can likewise be denied control over their public schools on the same grounds or other grounds tomorrow.

It will be argued, of course, that the States and their citizens already have exclusive control over the public educational institutionsan argument which undoubtedly will be news to the parents and school boards of Little Rock, Ark., and Front Royal, Va.

Historically and legally that argument should be true. And, if the Constitution of the United States were properly interpreted and applied with respect to education, it would be true.

The Constitution by both content and intent makes it clear beyond any doubt that one Štate cannot enjoy a right or exercise a power

denied to another.

Paragraph 1, section 2, article IV provides that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States" and the 10th amendment of the Bill of Rights reserves to the States and the people all "powers not delegated to the United States by the Constitution nor prohibited by it to the States."

If those two passages mean word-for-word what they say-and I know of no other way by which any instrument of law can be interpreted either intelligently or fairly-all of the States of the United States of America were vested with absolute control over all matters relating to education.

There can be no other conclusion in view of the fact that control of education is one of those powers which the Constitution neither delegated to the Federal Government nor prohibited to the States.

There was no other interpretation until the Supreme Court on May 17, 1954, usurped the amendatory authority of Congress and the States and sought to change the explicit and unqualified language of the Constitution by an unconstitutional edict which amounted, in effect, to a judicial constitutional amendment.

As a result we have the ludicrous situation of two branches of the National Government competing with each other in seeking alternately to grant and to deny the already unequivocally reserved authority of the States over their public schools. It is a situation which was emphasized anew by the recent vote of Congress to admit Hawaii to statehood.

Section 5(f) of the Hawaii Act specified that that State's schools "shall forever remain under the exclusive control of said State," a provision which brings to an even dozen the number of States to which Congress has made legislative grants of sole educational jurisdiction

since 1889.

The Supreme Court, on the other hand, through its decision of May 17, 1954, and subseqent implementation decrees, has denied the 17 so

called Southern States the right to administer their public schools as they see fit.

All of which has divided the constitutionally equal States of the Union into three unequal classes.

There are 12 States which have been granted exclusive control over their public schools by Congress.

There are 17 States which have been denied exclusive control over their public schools by the Supreme Court.

And there are 21 States in the middle which do not know where they stand.

The resulting confusion and instability have created an unfavorable climate for education in this country which Congress must act soon to correct if confidence in public education is not to be destroyed.

It is the purpose of the amendment which my colleagues and I have offered to remedy this situation through the simple course of writing into the Constitution an explicit guarantee of the right of the States to perpetual and exclusive control over their public school systems. In that way the authority for State and local control of education would become both the express and the implied supreme law of the land.

Such an amendment would do no more than bestow upon all 50 States the authority to manage their own school affairs which Congress by statute already has conferred upon 12 of them.

The fact that Congress has so acted came as a great suprise to many Americans including the President of the United States.

During the course of my speech before the Senate on January 27, when I proposed the constitutional amendment now under consideration, I referred to the fact that Congress, in voting last year to admit Alaska as the 49th State, gave that State exclusive and perpetual control over its public schools and colleges.

The New York Times of Thursday, January 29, in printing a transcript of the Chief Executive's news conference of the preceding day, quoted Mr. Eisenhower as stating that such was, to use his words, "a matter that I have not even heard about."

The Times transcript added this further comment from the President:

I didn't know that there was any difference in the responsibility and authority of the new State of Alaska as compared to other States **

A subsequent check of the admission acts of all other States made at my request by the Legislative Reference Service of the Library of Congress disclosed that 10 other States likewise were granted "exclusive control" over their educational institutions upon the granting of statehood to them.

Such grants of authority were made to the States of North Dakota, South Dakota, Montana, and Washington in 1889; to the States of Idaho and Wyoming in 1890; to the State of Utah in 1894; to the State of Oklahoma in 1906; and to the States of New Mexico and Arizona in 1912.

In each case, Mr. Chairman, the term "exclusive control" was used and, with the one exception of Oklahoma, each such delegation of power was made "forever." In the case of Oklahoma, the further proviso was written into the law assuring that the act would "not be construed to prevent the establishment and maintenance of separate schools for white and colored children.”