opposed Department participation in litigation involving important principles of civil rights law. For example, the Division opposed Justice Department participation in the landmark case of Jones v. Mayer and Co.,147 at the trail court, court of appeals, and Supreme Court levels. The Department ultimately did file an amicus curiae brief and presented oral argument at the Supreme Court level, but only because Division attorneys were overruled by the Attorney General at the request of the Solicitor General's office.148 Even after the Supreme Court decision, the Division has not utilized the Jones decision in subsequent litigation.149 In addition, the recent positions taken by the Division on school desegregation have been unreasonably restrictive, 150

2. THE ATTORNEY GENERAL AS LEADER OF THE FEDERAL CIVIL RIGHTS EFFORT

Despite these significant problems-lack of sufficient civil rights staff, inadequate priorities, narrow view of its civil rights role, and overly cautious approach to carrying out its litigation function-the Department of Justice consistently has been the Government's civil rights focal point and the Attorney General consistently has been the single most important figure in the Government's civil rights program during the decade of the 1960's. There are several reasons

147 392 U.S. 409 (1968). In that case, a provision of the Civil Rights Act of 1866, which grants to Negro citizens the same rights as white citizens to rent or purchase property, was construed by the Supreme Court to prohibit racial discrimination in the sale or leasing of all housing, private as well as public.

148 Clark interview, supra note 136.

149 Interview with Louis Claiborne, Deputy Solictor General, Jan. 15, 1970.

150

'See, U.S. Commission on Civil Rights, Federal Enforcement of School Desegregation Sept. 11, 1969. Statement of U.S. Commission on Civil Rights concerning the "Statement By the President on Elementary and Secondary School Desegregation", Apr. 12, 1970.

For other criticisms of the Justice Department, see for example, Justice, supra note 126; Law Enforcement, supra note 128; U.S. Commission on Civil Rights, Political Participation (1968); U.S. Commission on Civil Rights, Law Enforcement: A Report on Equal Protection in the South (1965); U.S. Commission on Civil Rights, Mexican Americans and the Administration of Justice in the Southwest (1970); U.S. Commission on Civil Rights, The Voting Rights Act: The First Months (1965); R. Harris, Justice: The Crisis of Law, Order and Freedom in America (1970).

why the Justice Department has assumed this key role. First, Presidents have sought to reduce the number of individuals with whom they must confer to obtain information and advice. According to Joseph A. Califano, Jr., former Special Assistant to President Johnson, it was decided, that overall civil rights responsibility should be vested in a single agency head and that, since the Department of Justice possessed the most civil rights "clout", the Attorney General should have responsibility for coordinating the entire Government effort to protect the rights of minority citizens.151 Second, the President wished to insulate himself from the criticism that was bound to come either from the conservative or from the liberal spokesmen, depending on the aggressiveness of the enforcement effort undertaken. Therefore, it was deemed desirable to place the civil rights coordinating responsibility in the Department of Justice a logical agency somewhat removed from the President or his Executive Office.152 An additional factor was that the Department of Justice traditionally takes the lead in drafting the President's legislative proposals in the civil rights field and in working with Congress to enact them.153

Despite these justifications, the plain fact is that the Attorney General has not been able to coordinate Federal civil rights activity successfully even in the one area-Title VI-where he has been assigned specific responsibility by Executive order. 154 Former Attorney General Clark has expressed the opinion that the Attor

151 Interview with Joseph A. Califano, Jr., Special Assistant to President Johnson, Mar. 24, 1970; see also, interview with Charles L. Schultze, former Director, Bureau of the Budget, Apr. 11, 1970; Clark interview, supra note 136.

152 Califano and Schultze interviews, supra note 151. For example, these were the reasons given for transferring the responsibility for coordinating Title VI activities from the President's Council on Equal Opportunity to the Justice Department. See p. 334, infra. 153 Interview with Stephen J. Pollak, former Assistant Attorney General, Civil Rights Division, Nov. 8, 1969. Legislative proposals are cleared with the Deputy Attorney General after the Assistant Attorney General and his staff draft them. The Assistant Attorney General solicits suggestions for new legislation from all departments and agencies and, on occasions, has formed task forces of agency personnel to review problem areas and draft legislative proposals. Id.

15 See ch. 4 supra for discussion of the activities of the Department of Justice as a coordinator of Title VI.

ney General should not be the President's top adviser on civil rights. The powers of the Department of Justice, he said, are too limited and the perspective of Attorneys General is too narrow.155 Indeed, there is considerable factual basis for the former Attorney General's conclusion. The Attorney General, while an important Cabinet member, is only one of 12 such Cabinet members. While he can advise his Cabinet colleagues on civil rights, he cannot order them to follow his advice on specific civil rights actions. In some instances, the result has been that his advice is ignored. For example, despite repeated discussions with the Secretary of Agriculture concerning discrimination in his Department and specific suggestions for remedial steps, little action was taken by that Department to rectify the situation.156 In such a case, where a Cabinet member chooses not to abide by the civil rights advice of the Attorney General, the Attorney General's only recourse is to appeal to the President-a course of action which, as a practical matter, can be taken only on matters of the first importance.

Further, the civil rights perspective of the Civil Rights Division, the unit traditionally looked to by the Attorney General for advice on civil rights matters, in fact has been a narrow one. The Division has tended to view problems strictly in terms of litigable legal issues.157

In addition, as the law firm for the executive

155 Clark interview, supra note 136. Mr. Clark stated that Attorneys General are generally lawyers who have practiced law in the private sector and have no experience in the civil rights field. He added that in a position as demanding as that of the Attorney General, on the job training is impossible.

15 Id. See pp. 34-35 infra, for a further reference to this situation. Mr. Clark indicated that in a large agency there is great difficulty in even getting the cooperation of bureaus within the agency. For example, the FBI promised him that it would have 100 black special agents on board by early 1968. As of August 1970, it only had 47. Similar difficulty existed in trying to get the Bureau of Prisons to increase the number of black correctional employees at its institutions. The FBI has indicated that it:

"... is not aware of any request on the part of Mr. Clark that this Bureau have 100 Negro Special Agents on its rolls by early 1968 and accordingly, never made any promise to that effect. In fact, the FBI never has had a special set quota concerning Negro Special Agents." Letter from Jerris Leonard, supra note 143.

157 See ch. 4, supra for a discussion of this point.

branch, the Justice Department necessarily has become involved in a number of cases in which allegations have been made that Federal agencies have participated in the discriminatory operation of federally assisted programs.158

The Department, recognizing the awkwardness of its position, has for the most part attempted to argue these cases on procedural grounds, rather than defend them on their substantive merits. It has not, however, systematically undertaken to determine if the allegations made in civil rights law suits against Federal agencies are justified and, where indicated, required the agency involved to take prompt remedial action.159 This approach undoubtedly undermines the Department's position as leader of the Federal civil rights effort.

The Justice Department, despite its past inadequate performances, remains a logical place in which to vest civil rights leadership responsi

158 For a thorough treatment of this significant problem, see memorandum from Morton H. Sklar, attorney, Office of Coordination and Special Appeals, Civil Rights Division, to J. Harold Flannery, Chief, Office of Coordination and Special Appeals, Dec. 3, 1969. The memorandum, in establishing the extent of the problem, sets forth a sampling of the cases brought against the Federal Government:

"In the housing area, the city of Bogalusa, La., and the Department of Housing and Urban Development have been sued to enjoin the further allocation of Federal funds to support the construction of low-rent public housing units according to a site selection pattern that is alleged to encourage and perpetuate racial discrimination. Hicks v. Weaver, E. D. La., No. 68-986. An injunction has also been sought against HUD for unlawfully approving the Model Cities Plan submitted by the city of Chicago, despite the fact that it allegedly did not provide for adequate participation by low income residents in the planning and carrying out of projects as required by the Model Cities statute. Coalition for United Community Action v. Romney, N.D. Ill., No. —, Aug. 6, 1969.

"A wide variety of suits have been brought against Federal agencies in the field of employment. Cases have been filed against the Secretary of the Treasury to enjoin disbursement of Federal funds to Federal contractors on the ground of their discriminatory employment policies (see, e.g., Noble v. Kennedy, W.D.N.Y., No. 1969-324); the Department of Labor, for failure to enforce nondiscrimination requirements applicable to the employment referral practices of the Ohio Employment Service (Jamar v. Ohio Bureau of Employment Security, -); and the Civil Service Commission, for failure to enforce equal employment (Hobson v. Hampton, et al., D.C., No. 2603–69)." Id., at 2, 3.

150 Id., at 5, 6.

bility. It must take a more active role and develop a broader perspective if it expects other agencies to cease treating civil rights as a minor responsibility to be carried out passively and reluctantly. In short, the Attorney General not only must offer clear, continuous, and visible guidance to the agencies, but must make his Department an example of imaginative and aggressive enforcement of laws prohibiting discrimination against citizens because of their race, color, national origin, or sex.

VI. THE BUREAU OF THE BUDGET

A. Introduction

One leading expert on the Presidency has written, "[T]he Bureau of the Budget serves the President as an 'administrative general staff'. . . . Without it the President could not begin to do his job as Chief Executive." 160 The Bureau is an extension of the Presidency and its function is essentially to provide him with staff service to promote the effective and economical administration of the Federal Government.161

As the President's task of managing the executive branch has become more complex, the responsibilities and the power of the Bureau have grown commensurately. One of the functions which has expanded significantly is that of overseeing executive management. This role includes making studies and offering proposals for the reorganization of executive departments and agencies; coordinating Government programs and policies; keeping the President informed of the performance of executive departments and agencies and seeing that they are responsive to Presidential priorities and policies.

These duties, plus its fiscal, legislative, and statistical functions, make the Bureau of the Budget one of the most powerful institutions in the Federal bureaucracy, and one which can have vital impact on the governmental effort to protect the rights of the Nation's minorities.162 Through its central role in the budget submis

160 C. Rossiter, The American Presidency 98, 99 (1956). 161 P. Brundage, The Bureau of the Budget (1970). 162 The following discussion is of the Bureau of the Budget as it operated until its reorganization on July 1, 1970. The reorganization and its potential effect on civil rights will be treated at the end of this section.

sion process, the Bureau has a direct voice in determining the amount of staff and other resources that will be made available for civil rights compliance and enforcement activities. Through its authority to review and clear all legislative proposals, the Bureau can play a significant role in assuring adequate legislative consideration of the civil rights implications of various bills concerned with social and economic welfare as well as promoting more effective civil rights legislation. And through its responsibility for approving agency proposals for data collection, the Bureau can be the key to the institution of Government-wide systems of racial and ethic data collection to determine the extent of minority participation in Federal programs and to help measure progress under civil rights laws. Thus far, however, the Bureau has not geared its functions specifically to civil rights goals, nor has it even fully recognized the important civil rights functions it can perform.

B. Background and Responsibilities

Until 1921, executive agencies submitted their individual budget requests directly to Congress. In that year, however, Congress decided that a single executive budget to be submitted by the President was desirable and passed the Budget and Accounting Act of 1921,163 placing responsibility for coordinating the budget submission process in a new agency, the Bureau of the Budget. At first, the Bureau was placed in the Treasury Department, although directly responsible to the President. In 1939, the Executive Office of the President was created and the Bureau of the Budget was shifted to the Executive Office. 164 The activities

6331 U.S.C. 1, as amended. Section 209 of the act provided the Bureau with the basic charge for its management responsibilities. It indicates that, upon the request of the President, the Bureau shall conduct studies into the organization, methods of operation, and appropriations of the various agencies.

164 Plan 1 of the Reorganization Act of 1939 (Public Law 79-19). The shift had been advocated by the Brownlow Committee (President's Committee on Administrative Management) and submitted to Congress in 1937 but not favorably acted upon until April 1939. Two of the five major recommendations of the Committee dealt with the President's office. They were: (1) That the White House staff be expanded so as to keep the President in closer touch with the affairs of his administration and provide him with faster access to the

of the Bureau were defined in Executive Order 8248, which was issued immediately after the Bureau moved into the Executive Office.165 The Bureau's duties fall under five broad headings: (1) Preparation and execution of the Budget; (2) improvement of Government organization and management; (3) improvement of accounting and other phases of fiscal management; (4) legislative analysis and review; and (5) coordination and improvement of Federal statistical policies.166

The Bureau is responsible solely to the President and its effectiveness is dependent on his support. Its staff size, although it increased from 40 in 1939 to more than 500 in 1969, is still considered grossly inadequate by knowledgeable observers.167 Despite its small size, the Bureau of the Budget has tremendous influence with Government agencies. This can be attributed to its relationship to the President, its control over purse strings, and the fact that it, alone among Federal agencies, is concerned with the full spectrum of Federal activities.

The Bureau staff at present is divided into six Divisions and five Offices. The six Divisions 168 are the normal channels through which

information necessary for executive decisions; and (2) strengthen the managerial arms of Government, especially those dealing with budget and planning. 145 Executive Order 8248, sec. II. 2 (1939).

106 Id. The order lists eight duties of the Bureau, the last of which reads:

"To keep the President informed of the progress of activities by agencies of the Government with respect to work proposed, work actually initiated, and work completed, together with the relative timing of work between the several agencies of the Government; all to the end that the work programs of the several agencies of the executive branch of the Government may be coordinated and that the money appropriated by the Congress may be expanded in the most economical manner possible with the least possible overlapping and duplication of effort." Id., at (h).

17 P. Brundage, supra note 161, at 56; interview with Andrew M. Rouse, Deputy Executive Director, President's Advisory Council on Executive Organization, Apr. 9, 1970. Mr. Brundage was Director of the Bureau of the Budget from April 1956 to March 1968: Mr. Rouse was formerly Director, Resources Planning Staff, Bureau of the Budget. The budget for the Bureau was $8,813,000 in fiscal year 1967; $9,500,000, in fiscal year 1968; $10,050,000 in fiscal year 1969; and estimated at $12,141,000 in fiscal year 1970. Budget of the United States, fiscal year 1971, 53.

168

(1) The Economics, Science, and Technology Programs Division relates to such agencies as the Depart

the Bureau maintains its working relationship with the Federal agencies. Among the duties of the Divisions are the review of agency programs and budget requests; the development of recommendations on the budget; the analysis of proposed legislation and Executive orders; the stimulation of improved agency management and organization; and work on special projects involving long-range budgetary and organizational improvements in the coordination of agency programs.

The five Offices deal with Government-wide problems of a specialized character and provide guidance to the Divisions.169 For example, the Office of Legislative Reference coordinates the Bureau review of agency proposals for legislation and agency views on pending legislation. The Office of Program Evaluation appraises Federal programs, prepares Government-wide program overviews which show costs and benefits of programs and characteristics of beneficiaries, and leads in the formulation of major program issues that must be analyzed for the budget.

C. The Bureau and Civil Rights

There are a large number of problems which face the Bureau of the Budget in its efforts to develop a rational budget, reduce duplication, and maintain a uniform Government legislative program. The number and complexity of Federal programs have manifoldly increased over

ment of Commerce, the Security and Exchange Commission, the Department of Transportation, the National Science Foundation and the Civil Aeronautics Board; (2) the Human Resources Program Division relates to the programs of agencies such as HEW, OEO, HUD, and Department of Labor; (3) the General Government Management Division deals with agencies like the Department of Justice, the Civil Service Commission, the Post Office Department, the General Services Administration; (4) the Natural Resources Programs Division works with such agencies as the Department of the Interior, TVA, Army Corps of Engineers, and the Department of Agriculture; (5) the International Programs Division is concerned with such agencies as the Department of State, AID, Peace Corps, and USIA; (6) the National Security Programs Division relates to the programs of the Department of Defense. Bureau of the Budget Director, April 1969. See Brundage, supra note 161.

169 The Offices are the Office of Budget Review, Office of Executive Management, Office of Legislative Reference, Office of Program Evaluation, and the Office of Statistical Standards.

the last 30 years and new issues have demanded and obtained national action. In most cases, the Bureau has been able to adapt to each of these new demands. One of the latest areas demanding Bureau attention has been the Federal civil rights effort, which has, over the last decade, presented all of the problems involved in other Federal programs. Here, however, the Bureau has not yet adapted itself to the need. According to former Bureau Director Charles L. Schultze, Bureau of the Budget involvement in the civil rights field has so far been limited to its participation in the legislative process.170

In each of its major roles, the Bureau of the Budget has the opportunity and responsibility for exerting leadership over agency civil rights programs. Yet, basic steps to enable the Bureau to fill that civil rights leadership role have not been taken. There is no locus of responsibility for civil rights matters in the Bureau, nor has it acknowledged any formal civil rights coordinating role. 171 No instructions have ever been issued to Bureau personnel indicating the type of program that agencies should develop to carry out their civil rights responsibilities. BOB staff has received no civil rights training, nor has the Bureau issued any memoranda or other documents explaining what its civil rights role should be.172

170 Interview with Charles L. Schultze (June 1965Jan. 1968), Apr. 7, 1970; see also interview with Carl H. Swartz, Jr., Director, Arthur Kaller, Assistant Director, Luman N. Rensch and Eugene B. Tryck, Budget Examiners, General Government Management Division, June 8, 1970.

Mr. Schultze indicated that the Bureau of the Budget Idid not have the expertise to take a leadership role in civil rights, and that he believed that it was the responsibility of the Justice Department. Another reason may be that as a staff arm of the President, the Bureau reflects the priorities which exist or are perceived to exist at the White House. Id.

171 Id. For example, no memoranda have been sent to budget examiners indicating that they should make an effort to be aware of civil rights problems when they conduct field program studies.

172 Id. The BOB manual for budget examiners is silent on civil rights matters. When asked if he thought that the Budget Bureau should become more involved in Title VI enforcement, the Special Assistant to the Attorney General indicated ambivalent feelings. He felt they could be of great hypothetical assistance because of the important voice budget examiners have in the operation of an agency. However, he added that examiners had shown no inclination for involvement in civil rights work and that the Bureau's reviews of

In the budget review process, carried on by the budget examiners of the various Divisions, civil rights concerns are included only to the extent that an individual examiner happens to have an interest or concern in the problem. For example, one Bureau examiner, because of his personal concern for a more effective contract compliance program, made repeated and ultimately successful efforts to stimulate OFCC to conduct its compliance activities on the basis of industrial priorities. 173 No systematic review is made of agency civil rights programs to determine if there is sufficient funding to meet the mandates of particular civil rights requirements, such as, Title VI of the Civil Rights Act of 1964, Executive Order 11246, Title VIII of the Civil Rights Act of 1968, or to determine if the funds allocated for civil rights purposes are being efficiently utilized.174

The Bureau is in charge of Federal statistical data policies and typically encourages Federal agencies to collect a wide variety of data for the purpose of determining how effectively programs are working. Yet it has not required agencies to collect racial or ethic data.175 Nor has the Bureau even established Governmentwide guidelines concerning the collection of such data although it is clearly essential in view of the confusion which exists as to whether the Government can collect racial and ethnic data, and if so, in what form it should be collected.176

This has permitted inconsistent approaches within the Government and has made it impossible for the Bureau and others to determine agency operations was not of sufficient depth to get to the root problems. Interview with David Rose, Special Assistant to the Attorney General for Title VI, Mar. 5, 1969. One of the possible reasons for this apparent insensitivity to civil rights concerns is the Bureau's own employment patterns. There are no minority group budget examiners, and of the more than 300 professional positions in the Bureau only eight above the GS-12 level are filled by minorities; six Negroes and two Orientals. Interview with George F. Mills, Manpower Statistics Division, U.S. Civil Service Commission, June 23, 1970.

17 Interview with David Kleinberg, Examiner, Human Resources Program Division, June 22, 1970.

174 Swartz interview, supra note 170; interview with Ralph R. Mueller, Assistant Director, Human Resources Program Division, June 6, 1970.

175 Id.

176 Interview with Carol B. Kummerfeld, former staff member, Office of Statistical Standards, June 22, 1970.