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SUPPLEMENTARY STATEMENT ON EDUCATION

By Vice Chairman Storey and Commissioners Battle and Carlton

The portion of the report dealing with public education contains much interesting and valuable factual material. However, the text preceding the Findings and Recommendations is based largely on the experience of large cities and communities in "border” states which have, to a greater or lesser degree, integrated their schools. Limited consideration has been given to the various conditions of population and life in large areas of the country where the problem is most acute.

Further study and investigation should be made of areas where school integration efforts run counter to long-established customs and traditions that formerly had legal sanction.

This tremendously serious and complex problem will not be solved by hasty action but must have the most careful and sympathetic consideration, with due regard for the way of life of large numbers of loyal Americans.

PROPOSAL TO REQUIRE EQUAL OPPORTUNITY AS A CONDITION OF

FEDERAL GRANTS TO HIGHER EDUCATION

By Chairman Hannah and Commissioners Hesburgh and Johnson

More than $2 billion a year of Federal funds go for educational purposes and to educational institutions. The principal recipients of these funds are the nation's colleges, universities, and other institutions of higher education. Whether tax supported or privately financed, they receive Federal grants and loans both for their general support and capital improvements, as well as for research projects, special programs, and institutes.

Discriminatory admission policies and other practices are known to exist in a number of such institutions. None of the Federal agencies administering these educational assistance programs require proof or an attestation of nondiscrimination by the institutions as a condition for the receipt of Federal funds.

With its duty to "appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution,” the Commission was compelled to ask whether it is consistent for the Federal Government to aid and support educational programs and activities in institutions of higher education which are not open to all citizens on an equal and nondiscriminatory basis.

While Congress has not required such conditions for these grants, the operations of the Federal Government are subject to the constitutional principle of equal protection or equal treatment.

The Supreme Court has held racial discrimination in public education to be a denial of equal protection. In regard to public

institutions of higher education the courts have required the immediate admission of qualified students without discrimination. The reasons for the gradual elimination of racial discrimination in elementary and secondary schools do not obtain in the field of higher education. There, immediate equality of opportunity for qualified students of all races is possible and necessary.

Although the equal protection clause of the Fourteenth Amendment applies only to State action, "it would be unthinkable,” the Supreme Court has held, "that the same Constitution would impose a lesser duty on the Federal Government."

We believe that it is inconsistent with the Constitution and public policy of the United States for the Federal Government to grant financial assistance to institutions of higher education that practice racial discrimination.

We recommend that Federal agencies act in accordance with the fundamental constitutional principle of equal protection and equal treatment, and that these agencies be authorized and directed to withhold funds in any form to institutions of higher learning, both publicly supported and privately supported, which refuse, on racial grounds, to admit students otherwise qualified for admission.

ADDITIONAL PROPOSAL BY COMMISSIONER JOHNSON

While joining in the above proposal, I recommend that the policy set forth apply to all educational institutions that receive Federal funds, including public elementary and secondary schools. My reasons are set forth in my closing statement at the end of this report.

SEPARATE STATEMENT ON CONDITIONAL FEDERAL GRANTS FOR

HIGHER EDUCATION

By Vice Chairman Storey and Commissioners Battle and Carlton

We oppose the recommendation that Federal agencies be authorized to withhold all public funds from institutions of higher learning (public and private) which refuse, on racial grounds, to admit students otherwise qualified for admission for the following reasons:

1. The Commission has agreed that the preservation and improvement of education is a matter of great national interest and is a fundamental principle within which the problems of equal protection must be evaluated. Therefore, we cannot conscientiously endorse a program which might well undermine that principle.

2. Present problems of equal protection pertaining to education fall within the sweep of the Fourteenth Amendment, an area long since preempted by the courts. We cannot endorse a program of economic coercion as either a substitute for or a supplement to the direct enforcement of the law through the orderly processes of justice as administered by the courts.

3. Such a proposal by this Commission—as a branch of the Federal Government-would drastically affect the administration of privately owned institutions of higher education. Such action goes beyond the scope of the Commission's duties.

4. Our staff studies were directed toward understanding and evaluation of equal protection problems in public and secondary schools, not private schools upon any level, and not institutions of higher education, whether public or private.

PART FOUR. HOUSING

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Early in its deliberations the Commission decided that the question of discrimination in housing by reason of color, race, religion or national origin, and the role played therein by the Federal Government under the various Federal housing laws, should constitute one of its three main fields of inquiry. It undertook this inquiry pursuant to its duties under Section 104(a) (2) and (3) of the Civil Rights Act, namely, its duty to "study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution” and its duty to "appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution."

The legal criteria for the Commission's inquiry in the field of housing were necessarily found in court decisions interpreting the Constitutional promise of equal protection of the laws. In the field of housing the Supreme Court has ruled that any racial discrimination by public authorities in the form of racial zoning laws, or in the form of judicial enforcement of private restrictive racial covenants, is unconstitutional as a denial of the equal protection of the laws. 1

The Court has also held that this rule of non-discrimination is the public policy of the United States and is applicable to the action and policies of the Federal Government. Through its various housing programs—assistance for slum clearance and urban renewal, public housing, and mortgage insurance—the Federal Government plays a major role in housing.

In addition, many State and local governments have undertaken housing programs, and adopted laws and policies ranging from farreaching laws against discrimination to laws or policies requiring segregation. The majority, however, have no laws, policies or programs expressly dealing with the problem of discrimination in housing.

The questions before the Commission, therefore, were: (1) whether the housing laws and policies of Federal, State and local governments are operating to deny the equal protection of the laws to any Americans, and (2) whether the Commission, in appraising Federal laws and policies, should recommend any changes in order to fulfill the promise of equal protection of the laws to all Americans.

1 Buchanan v. Warley, 245 U.S. 60 (1917); Shelley v. Kraemer, 834 U.S. 1 (1948). ? Hurd v. Hodge, 334 U.S. 24 (1948).

What is at issue is not the imposition of any residential pattern of racial integration. Rather, it is the right of every American to equal opportunity for decent housing. There may be many Americans who prefer to live in neighborhoods with people of their own race, color, religion, or national origin. The right of voluntary association is also important. But if some Americans, because of their color, race, religion, or national origin have no choice but to grow up and live in conditions of squalor and in rigidly confined areas, then all of America suffers. If through the action of city, State, or Federal governments some Americans are denied freedom of choice and equality of opportunity in housing, the constitutional rule of equal protection and equal justice under law is being violated.

Or the question may be stated more positively. Is the Federal Government doing all that it can and should to promote freedom of choice and equality of opportunity in housing for all Americans ?

Opportunities and freedom of choice in housing could be increased in several ways, all of which came within the scope of the Commission's study: the promotion of new housing developments for minority groups both in or adjacent to the present areas of minority-group concentration and in outlying areas; the promotion of new openoccupancy housing projects available to both members of minority groups and others who choose to live there; and the promotion of policies of equality of treatment in the housing market generally, so that builders and property owners may rent or sell and lending institutions make loans on equal terms to all in search of housing.*

Before the Commission could properly appraise Federal housing laws and policies it had to understand the problem with whieh these laws and policies were designed to cope. Therefore, the first aim of the Commission's housing study was to get a complete and accurate picture of the problem as it affects minority groups throughout the country. This problem, in turn, had to be seen in the light of the housing needs of the nation at large.

The first source of essential statistical information for this study was the United States Census of 1950 and the National Housing Inventory of 1956. The Bureau of the Census was most helpful in providing special housing statistics from their unpublished tabula

*COMMISSIONER JOHNSON:

I believe that equal opportunity to housing and freedom of choice in housing can be promoted in many ways, but I do not believe that this goal can be attained through so-called minority housing. Such housing merely makes available to Negroes better housing in new or existing ghettos and does not give them the full range of choice enjoyed by most other American citizens. In no real sense can this be called equality of opportunity or freedom of choice.

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