Administrative Implementation of Civil Rights 9780292766518

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Administrative Implementation of

CIVIL RIGHTS

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Administrative Implementation of

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JOSEPH PARKER WITHERSPOON

m UNIVERSITY OF TEXAS PRESS AUSTIN

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Library of Congress Catalog Card No. 66-15708 Copyright © 1968 Joseph P. Witherspoon All rights reserved

Type set by G&S Typesetters, Austin ISBN 978-0-292-76651-8 (library e-book) ISBN 978-0-292-76652-5 (individual e-book)

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To My Wife and Sons

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CONTENTS Part I 1. The Challenge of Federal Civil-Rights Policy to Our Federal System 2. The Civil-Rights Problem from the Legislator's Point of View 3. The Emergence of Modern Civil-Rights Legislation 4. Commission Experience in Processing Complaints of Discrimination 5. The Need for Effective Law and Law Enforcement 6. Dealing Effectively with Intergroup Relations at the Local Level 7. Allocation of Optimum Roles for Implementation of Civil Rights in Our Federal System

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Part II 8. The Alpha Model State Civil-Rights Act, with Comments . The Act Comments 9. The Alpha Model State Act on Local Human-Relations Commissions, with Comments The Act Comments 10. The Alpha Model Federal Civil-Rights Act, with Comments The Act Comments 11. The Alpha Model Local Civil-Rights Ordinance, with Comments The Act Comments Appendices A. State Human-Relations Commissions or Agencies Operating under Statutes Giving Them Authority to Enforce CivilRights Law

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State Human-Relations Commissions or Similar Agencies Operating under Statutes or Executive Orders without Authority to Enforce Civil-Rights Law through Issuance of Orders Enforceable in the Courts C. A Selected List of Local Human-Relations Commissions Operating under Ordinances or Laws Giving Them Authority to Enforce Prohibitions against Discrimination, as Well as Other Authority D. A Selected List of Local Human-Relations Agencies Which Have Principally Operated without Enforcement Authority E. A Timetable of Passage of Civil-Rights Laws Enforced by Human-Relations Commissions or Divisions of Agencies . F. States with Civil-Rights Laws Enforced Only by the Courts Index

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CHAPTER

The Challenge of Federal Civil-Rights Policy to Our Federal System T H E CIVIL-RIGHTS REVOLUTION

As an economic and social crisis of unprecedented proportions continued to engulf their ethnic group of approximately twenty million persons, Negroes initiated in 1963 a series of widespread nonviolent actions to protest their unbearable situation. One of their principal leaders, Reverend Martin Luther Kong, based his espousal of this type of protest action upon his "great hope" that the Negro masses to whom he appealed would continue to utilize that method rather than violence. 1 He believed that this method would be efficacious in moving the white majority group to moderate the discrimination and other harmful action directed against Negroes that constituted the principal cause of the economic and social crisis affecting them. But James Foreman, as executive secretary of the Student Nonviolent Coordinating Committee which was spearheading the civil-rights struggle in the rural Deep South, in 1963 warned that a large percentage of Negroes did not favor the nonviolent approach because they did not believe that it would work. 2 The riots by Negroes in major cities across the country during the summers between 1964 and 1966—especially in New York and Philadelphia in 1964, Los Angeles in 1965, and Cleveland in 1966 —seemed to confirm his judgment. After the summer of 1967 there could be no doubt that Foreman had been more accurate in his assessment of the Negro viewpoint. The riots in Newark, Detroit, Minneapolis, and numerous other major cities demonstrated that the techniques

1 Martin Luther King, Jr., "The Case against Tokenism," The New York Times Magazine (August 5, 1962), pp. 49, 52-53. 2 Claude Sitton, "Not Token Freedom, Full Freedom," The New York Times Magazine (June 9, 1963), p. 80.

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of a brutal and bitter violence have been added to the nonviolent techniques of the Civil-Rights Revolution. Negroes are not the only ethnic group sorely afflicted by unprecedented economic and social crisis. In some respects the nation's six million Latin Americans, principally drawn from Mexican and Puerto Rican stock, may be even more grievously affected.3 Their plight, moreover, results from the same kinds of actions by the majority group that have been directed against the Negroes. Long accustomed to accept what seemed to be an ineradicable part of their existence, Latin Americans have been deeply impressed by the nonviolent and violent protest actions of Negroes. The California grape strike of 1965 and the Texas melon-pickers strike of 1966 represented the Latin Americans' entry into the Civil-Rights Revolution. The violent overtones of recent disturbances in Latin American ghettos in Chicago and New York simply demonstrate that forces similar to those operating in the Negro ghettos cannot be contained. There are, moreover, Latin American leaders who suggest that techniques of violence may become necessary for attaining the justice so long denied their people. There are other disoriented groups in our nation's cities besides their Negroes and Latin Americans. Both in urban and rural areas there are many more millions of non-Latin white persons who are mired in a poverty or near-poverty status than there are Negroes and Latin Americans. 4 The participation of white persons alongside Negroes in the Detroit riots has a significance that should not be overlooked. It seems fair to say that close to fifty million persons in this country—Negro, Latin American, and other white persons having a very low income status—suffer in the same economic and social crisis caused by substantially the same kinds of actions on the part of a white majority group which tightly controls access to all goods, services, and fields of endeavor. This nation consists of people of many different races, colors, religions, ancestries, and national origins. Indeed, many have boasted that 3

See Chapter 2, below. Poverty in the Affluent Society, edited by Hannah H. Missner (New York: Harper and Row, 1966), pp. 43-67; Herman P. Miller, "The Dimensions of Poverty," and S. M. Miller and Martin Rein, "The War on Poverty: Perspectives and Prospects," in Poverty as a Public Issue, edited by Ben B. Seligman (New York: The Free Press, 1965), pp. 20-51; Dwight MacDonald, "Our Invisible Poor," and Oscar Ornati, "Poverty in America," in Poverty in America, edited by Louis A. Ferman, Joyce L. Kornbluh, and Alan Haber (Ann Arbor: The University of Michigan Press, 1965), pp. 8-10, 25-39. 4

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the strength of this nation is traceable to this diversity. It is essential to the public welfare, peace, and continued progress that this diversity serve to strengthen individual and collective efforts to achieve man's enduring goals and that it not be used to weaken these efforts. This latter result occurs when members of one group through discrimination and similar practices prevent members of another group from obtaining access to the important opportunities and goods of community life merely on account of their race, color, religion, ancestry, national origin, sex, age, economic status, or other normal group characteristic. Pursued ruthlessly and relentlessly enough against enough people, these harmful practices by the group in power can destroy the integrity of our free society and the acceptance of its authority by the people harmed. These practices can also destroy the nation's capacity to provide leadership in the free world and among the uncommitted underdeveloped nations. The riots of the summers between 1964 and 1967 demonstrate that substantial numbers of the nation's fifty million Negroes, Latin Americans, and other whites of very low income have lost hope in the face of their long unrelieved and increasingly desperate situation as human beings.5 Substantial numbers of these groups have concluded that the techniques of reasoned argument, nonviolent direct actions of protest, and prayer cannot produce the change toward more just treatment which they have so long been promised and for which they have waited and worked. This loss of hope by so many of its people—in the context of the crowded society in which we live today—presents the United States with the most serious problem it has confronted since its birth. This nation has long since been known as the most lawless society in the world with its continually growing network of organized crime syndicates and rackets.6 One shudders to think of the opportunities for organized crime as our society comes apart at the seams in our cities and our national and local governments fumble in employing temporary expedients to deal with the crisis. No thoughtful person or institution should fail to assess the degree of the discontent entertained by members of the Negro and Latin American communities concerning discrimination against them in all its 5 Cf., The New York Times (July 16, 1967) sec. 4, p. 12; (July 30, 1967), sec. 4, p. 8; America (July 29, 1967), p. 105. 6 Max Lerner, America as a Civilization (New York: Simon and Schuster, 1957), p. 661; Gus Tyler, Organized Crime in America (Ann Arbor: The University of Michigan Press, 1962).

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forms, and especially in its economic aspects. They desire to be admitted now into the whole of community life, its dialogue, and its processes of decision. They desire to have their problems frankly faced by all leaders in the business, political, educational, and other aspects of community life. They want to participate as equal members in proposing and disposing. As a result of better educational opportunities in both the North and the South, they have come to understand the meaning of the American credo, the differences between its promises and its realization for themselves, and they seek to have it given substantial meaning for themselves through their participation in the whole of community processes. Both groups now conceive of discrimination in all its forms as an intolerable social cancer that they must seek vigorously to eliminate through all forms of social, economic, and political self-help. They see our nation as a house divided against itself and they believe not only in their personal right to have that division eliminated but in their duty, as Americans, to seek its elimination before it destroys the remaining integrity of the nation. It is inevitable that these groups will concentrate upon and be successful in participating more effectively in the electoral and political processes at all levels. It is inevitable that they utilize the various group processes of speech, publication, boycott, picketing, and other forms of economic and social persuasion to obtain what others have obtained before them by the same means. It is also inevitable that when these processes of persuasion prove inefficacious in changing the attitudes and actions of the majority group, they resort to techniques of violence. The Civil-Rights Revolution—particularly with the advent of the urban riots such as those of 1967—presents the nation with the immediate necessity for truly understanding the civil-rights problem of its minority groups and its poor and for taking effective remedial action to resolve it on a permanent basis. Many different approaches looking to a solution of the civil-rights problem are needed. In this book we will focus upon but one of these, the use of law to regulate or to promote human relations in such a way that the conflicts and tensions between different social groups will be ameliorated, their causes removed, and positive action taken to relieve unjust conditions and to eliminate unjust actions affecting members of one or more groups. W e have had considerable experience with this form of law during the past twenty years. It is essential that we examine this experience with a view to evaluating it and to determining

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how it can be made more effective than it presently is in contributing to the solution of the nation's civil-rights problem. T H E NATURE OF T H E CHALLENGE

The federal civil-rights policy established between 1957 and 1968, despite its many remedial imperfections and substantive inadequacies, constitutes one of the great monuments of American social legislation. The principal piece of this policy is the Civil Rights Act of 1964.7 Like the Interstate Commerce Act of 1887 and each major component of the massive economic and social legislation enacted since that date, this statute established an important permanent policy for the entire nation. It proscribed several forms of the discrimination that today prevent numerous minority groups and other disadvantaged persons from participating on equal terms with other persons in vital areas of our public life. It reached discrimination practiced by private persons and institutions as well as by public officials. The Civil Rights Act of 1957, 8 as amended by the Civil Rights Act of I960, 9 had applied only to deprivations of the right to vote, suffered primarily by Negroes in the Deep South, and, in actual practice, caused by public officials. The 1964 act also authorized federal officials to utilize many forms of government action to promote in an affirmative way the elimination of the discrimination prohibited by the act. This included the use of a government suit for injunctive relief against discriminatory practices (a technique which had been utilized in the 1957 act), as well as several types of administrative process. The statute thus assured that modern governmental processes and techniques would now be used to protect the vital interests of members of minority and disadvantaged groups as equal participants in our democratic society, just as these processes had long since been used to protect the interests of consumers, competitors, workers, shippers, investors, passengers, depositors, and many other interest groups in the nation. Its healing principles are broadly stated, following the classic mode of our major federal statutes. Its provisions consequently provide considerable latitude for agencies and courts to apply them wisely and justly to the endless variety of situations that will occur. More important, the statute provides 7 42 U.S.C. §§1971, 1975a-1975d, 2000a-2000h (1964), as amended (Supp. II, 1965-1966). 8 42 U.S.C. §§ 1971(a)-(d), (g) (1964), as amended (Supp. II, 1965-1966). 9 42 U.S.C. §§ 1971(c), (e) (1964), as amended (Supp. II, 1965-1966).

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a firm nucleus around which future legislation can be constructed for strengthening or extending its operation. The proposed Civil Rights Act of 1966, which was eventually defeated in the Senate, and its counterpart of 1967, are examples of such construction. 10 The 1966 proposed act would have amended Titles III and VI of the 1964 act so as to strengthen the administration of prohibitions of discrimination in public education and other public facilities and in programs receiving federal financial assistance. It would also have added new provisions prohibiting discrimination in housing and in the financing of housing. Another proposed act, H.R. 10065, that also was passed by the House of Representatives, would have greatly extended the scope and strengthened the administration of Title VII of the 1964 act relating to discrimination in employment. 11 The Age Discrimination in Employment Act of 1967 and the historic Civil Rights Act of 1968, creating among other things a fair housing policy, are further examples of the Congress building around the nucleus of the concepts embodied in the Civil Rights Act of 1964. 12 The Civil Rights Act of 1957 had been the first major step in the direction of establishing a federal civil-rights policy. It authorized the Attorney General to institute a suit for injunctive relief against any action or practice depriving any person of his right to vote as defined 10 T h e proposed 1966 act was introduced by identical bills in the House of Representatives and the Senate: H.R. 14765 and S. 3296 [Hearings on S. 3296, etc. before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 89th Cong., 2nd Sess. (Washington, D.C.: U.S. Government Printing Office, 1966), pt. 1, p. 10]. A contemporary bill, S. 2923, which would have expanded the coverage of Title V I I of the 1964 act relative to employment discrimination, redefined the term "employer" to include a state or a political subdivision of a state [Id., p. 3 5 ] . H.R. 14765 passed the House of Representatives on August 9, 1966, by a vote of 259 to 157 [Congressional Record, Vol .112 (Washington, D.C.: U.S. Government Printing Offices, daily ed., August 9, 1966), p. 17916]. The proposed 1966 act was definitively defeated in the Senate by the failure of two-thirds of its members to support a motion for cloture on September 14 and again on September 19, 1966. T h e vote on the latter date was 52 to 41 [Congressional Record, Vol. 112 (daily ed., September 19, 1966), p. 22114]. 11 H.R. 10065, which is set out in 62 Labor Relations Report No. 1 (Special Supp., M a y 2, 1966), was almost identical with the provisions of H.R. 8998 introduced in the first session of the 89th Congress [Hearings on H.R. 8998 and H.R. 8999 before the General Subcommittee on Labor of the House Committee on Education and Labor, 89th Cong., 1st Sess. (Washington, D.C.: U.S. Government Printing Office, 1965), p. 1 ] . For an analysis of the late 1967 status of similar proposed legislation see Congressional Quarterly Weekly Report, Vol. XXV, No. 41 (October 13, 1967), pp. 2065-2067. 12 P . L . 90-202 (Dec. 15, 1967), and P.L. 90-284 (April 11, 1968), respectively.

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in two provisions. 13 One of these was the right to vote at any election, without distinction of race, color, or previous condition of servitude. The other was the right to vote in any election for federal office.14 Prior to this time the only remedies provided by statute for deprivation of the right to vote were a suit by the person injured 15 or a criminal action by the government. 16 Moreover, these remedies were available only against action affecting the right to vote that was "under the color of law" (i.e.9 action primarily by public officials). These remedies possessed only limited effectiveness in providing protection for the civil right in question. The great advance made by the Civil Rights Act of 1957 was that it authorized civil actions by the government, actions that could, presumably, encompass continuing, broad-scale judicial control of discriminatory conduct by state and local government that adversely affected the exercise of the right of Negroes to vote. This device had been used with great effectiveness by the federal government previously, for example, in implementing federal antitrust policy protecting the principle of competition in the market place. The device, however, proved relatively ineffective in protecting the right to vote despite efforts of Congress to strengthen it in the Civil Rights Acts of 1960 and 1964. This ineffectiveness was due, in large part, to the fact that individual lawsuits, without the aid of other enforcement techniques, are not an adequate way of dealing with the widespread violations of law existing in the civil-rights field.17 Congress finally recognized its error in expecting this device alone to protect the right to vote, and enacted the Voting Rights Act of 1965. 18 This act established certain criteria for designating states in which the registration of voters for all elections is to be done by federal examiners. 19 Upon their designation by the Attorney General, the Civil Service Commission appoints examiners who then prepare a list of qualified voters for the state in which they are authorized to operate. State authorities, when they receive this list, must place the names of the listed voters in the official voting records. 20 13 42 U.S.C. § 1971 (c) (1964), as amended (Supp. II, 1965-1966). uid., §1971 (a) (l),and (b). ^Id., §1983. i« 18 U.S.C. § 242 (1964). 17 See the statement by officials of the U.S. Commission on Civil Rights supporting this proposition. [Hearings on S. 3296, p. 364]. i»42 U.S.C. §§ 1963-1974 (Supp. II, 1965-1966). ™Id., § 1973(b) (Supp. II, 1965-1966). »/