C. Creation of the Cabinet Committee on Opportunity for the Spanish-Speaking

Beginning in late 1968 Mr. Ximenes spent a great deal of time attempting to convince the President and his staff of the need to put the Inter-Agency Committee on a permanent basis,100 to improve its funding arrangement, to add more Cabinet members to it, and to provide it with a full-time chairman.101 A bill incorporating these suggestions was introduced in Congress and was passed on December 30, 1969.102 The principal provisions of the law are: (1) change of the name from "Inter-Agency Committee on Mexican American Affairs" to "Cabinet Committee on Opportunity for the Spanish-Speaking," 103 thus clearly giving the committee responsibility for dealing with Puerto Ricans, Cubans, and other Latin Americans; (2) legislative authorization for the committee, with provision for appropriations through the ordinary budget process; (3) the addition of Federal agencies to the committee; the Secretary of the Treasury, the Attorney General, the Administrator of the Small Business Administration, and the Chairman of the Civil Service Commission; 104 (4) a prohibition against the chairman of the committee concurrently holding any other office or position of employment with the United States, and a requirement that he serve in a full-time capacity as the chief officer of the committee; 105 (5) the creation of an advisory council on Spanishspeaking Americans, to be composed of nine members appointed by the President from among individuals who are representative of the Mexican American, Puerto Rican, Cuban American, and other elements of the Spanishspeaking community in the United States; 106

and (6) expiration of the committee in December 1974.107

D. Activities of the Cabinet Committee

Martin Castillo, who had been Chairman of the Inter-Agency Committee from May 28, 1969, until it was abolished by the statute creating the Cabinet Committee,108 is the present Chairman of the Committee. He has a staff of 27 and a budget for fiscal year 1970 of $510,000.109 Since Mr. Castillo became chairman, the activities of the committee have continued along the same lines as those undertaken by his predecessor. Its main efforts have been to act as a lobbyist within the Federal Government; to improve the Federal allocation of funds to the Mexican American community; to increase the number of Mexican Americans employed within the Federal Government; and to seek to resolve individual complaints.110

More specifically, among the actions taken by the committee are: meetings with the Chairman of the Civil Service Commission and representatives of the Departments of HUD, HEW, Transportation, Treasury, and OEO, to discuss recruitment and placement of Spanish-speaking personnel throughout the Federal Government; 111 meeting with SBA regarding minority entrepreneurship; 112 cooperation with the Department of Labor in creating manpower training programs for Spanish-speaking people and

109

Quevedo interview, supra note 106. One member of the staff is Puerto Rican and another is Cuban.

110 Interview with Martin Castillo, Chairman, Cabinet Committee on Opportunity for the Spanish Speaking (CCOSS) and Henry Quevedo, Executive Director, CCOSS, Nov. 5., 1969.

"Letter from Henry Quevedo, Executive Director, CCOSS, to Martin Sloane, Assistant Staff Director, U.S. Commission on Civil Rights, Mar. 18, 1970. The Committee has created a placement referral system complete with a depository of Federal employment applications filed by Spanish-speaking citizens.

112 Id. The Committee is compiling a list of Spanishspeaking contractors who are interested in working on Federal contracts. Cabinet Committee on Opportunity for the Spanish-Speaking, newsletter, vol. II, No. 3, Mar. 1970, at 2.

assistance in accelerating OEO grants to barrios; 113 meetings with HEW officials, which led to the issuance of an HEW policy defining the requirements that school districts provide equal educational opportunity to national origin minority group children who are deficient in English language skills.114

In addition, the Cabinet Committee persuaded the Census Bureau to prepare a pamphlet entitled "We, the Mexican Americans," to stimulate interest among the Spanish-speaking people of the need and importance of being counted in the census.115 One final example of the type of work done by the Cabinet Committee, is that Mr. Castillo assigned several staff technicians to consult with five organizations in Washington, D.C., which are primarily interested in meeting the heretofore neglected problems of the more than 75,000 Spanish-speaking people in the Nation's Capital.116

The Cabinet Committee on Opportunity for the Spanish-Speaking and its predecessor, the Inter-Agency Comittee on Mexican American Affairs, have engaged in a significant number of worthwhile projects which might never have been undertaken but for their efforts. After decades of neglect, activities in the interests of Spanish surnamed Americans are needed and must be expanded. Yet there are several limits on the capacity of a body such as the Cabinet Committee, whose work is essentially that of a broker and lobbyist on behalf of Spanishspeaking people, to bring about immediate and dramatic results when so much of its work depends upon the sufferance of other Federal agencies. In any event, while Congress, as a

113 Id.

114

Quevedo interview, supra note 106. See memorandum from J. Stanley Pottinger, Director, Office for Civil Rights, HEW, to School Districts With More than 5 Percent National Origin-Minority Group Children, Re: Identification of Discrimination and Denial of Services on the Basis of National Origin, May 25, 1970.

115 Inter-Agency Committee on Mexican American Affairs, newsletter vol. II, No. 1, Jan. 1970, at 2. The committee distributed the pamplets to its entire mailing list and to all Spanish-speaking organizations and individuals who requested it. The pamphlet, however, should have been named "We, the Spanish-Speaking Americans". In this same regard, the committee sought the assistance of broadcasters with Spanish-speaking abilities to publicize the importance of the census through radio and TV spots. Id.

116 Id., at 3.

matter of statutory authorization, has expanded the committee's responsibilities to include all Spanish-speaking groups, it is up to the committee, itself, to develop its activities in such a way as to assure that the rights of all are, in fact, protected.

V. THE DEPARTMENT OF JUSTICE

A. Introduction

The Department of Justice and the Attorney General hold a central position in the formulation of domestic policy and in determining how it will be carried out. As the Government's lawyer, the Department represents most agencies of the executive branch in court and is key to determining the Government's litigation policy and practice. Further, the legal opinions provided by the Attorney General are relied upon as ultimate legal authority by the agencies and often have served to set the limits of agency authority. In addition, of great practical importance is the fact that recent Attorneys General have been men with considerable personal influence with the President and their views have had an important bearing on decisions and issues of great national importance.117

In the area of civil rights, the role of the Department of Justice is even more significant than it is in other areas of domestic policy concern. Here, the Department controls what, thus far, has been the most effective civil rights sanction-law suits; it is the initiator of civil rights legislation; it coordinates Title VI enforcement activity; it is the final arbiter on questions concerning the scope of authority under various civil rights laws; and it is the traditional pace setter for the entire Federal civil rights effort. Yet in the years following passage of the Civil Rights Act of 1964, during which the Department has assumed a central role of civil rights leadership for the entire executive branch, it has been unable to generate effective Government-wide civil rights compliance and enforcement.

11 This could be said of Herbert Brownell and William P. Rogers in the Eisenhower Administration; Robert Kennedy in the Kennedy Administration; Ramsey Clark in the Johnson Administration; and John N. Mitchell in the Nixon Administration.

B. The Department of Justice and
Civil Rights

1. THE CIVIL RIGHTS DIVISION

The Department of Justice has maintained a unit dealing with civil rights matters since 1939 when a civil rights unit was established in the Criminal Division.118 The Civil Rights Act of 1957 created a separate Civil Rights Division within the Department, and provided it with limited jurisdiction to bring lawsuits in matters involving voting discrimination.119 Since that time, the Division, by virtue of the civil rights legislation enacted in 1964, 1965, and 1968, has received authority to file suit in a variety of areas, including discrimination in public accomodations, 120 public facilities,121 schools,122 employment, 123 and housing.124 It also has received expanded litigative and administrative powers to cope with voting discrimination 125 and additional authority to act against those who interfere with the civil rights of others.126 Finally, the Division is empowered to enforce the 13th, 14th, and 15th amendments to the Constitution.127

Weaknesses in the Civil Rights Division, the principal civil rights arm of the Justice Depart

120

121

Civil Rights Act of 1964, Title II. Civil Rights Act of 1964, Title III. 122 Civil Rights Act of 1964, Title IV. 123 Civil Rights Act of 1964, Title VII. 124 Civil Rights Act of 1968, Title VIII.

125 Voting Rights Act of 1965.

136 Civil Rights Act of 1968, Title I.

127 The Department may well also have the power to initiate action under the so-called "general civil rights laws" of 1866. 42 U.S.C. sec. 1981 et. seq. See memorandum from Louis F. Claiborne, Assistant to the Solicitor General, to the Attorney General, "On The Implications of Jones v. Mayer Co.," June 24, 1969. Jones v. Mayer Co. was a case brought by a private party to enforce his right to purchase property pursuant to 42 U.S.C. sec. 1981.

ment, go to the heart of the Department's failure to exercise more effective executive leadership in this vital area. Although it has expanded consistently, the size of the Division has always been much too small in relation to the scope of its responsibilities. In 1953, the civil rights unit had eight attorneys; 128 in 1958, it had 14 attorneys; 129 in 1961, it had 32; 130 in 1965, it had 72; 131 and in 1969, the number of authorized attorneys was 114,132 out of a total of 274 authorized positions in the Division.133 The growth of the Division has not kept pace with the vast new responsibilities assigned to it in the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Civil Rights Act of 1968. The Division is less than half the size of the Antitrust Division, less than two-thirds the size of the Tax Division and is considerably smaller than either the Criminal and Civil Divisions.134 Futhermore, the Division has not

133

Hearings on the Departments of State, Justice, and Commerce Appropriations for 1970 before a Subcommittee of the House Committee on Appropriations, 91st Cong., 1st sess., pt. 1, at 223-224.

In 1958, the Division's budget was $185,000; Justice, supra note 126, at 272; in 1965, it was $2,034,000. Law Enforcement, supra note 128, at 113. By fiscal 1969, this had increased to $3,265,000, subcommittee, supra note 133. The budget request for fiscal 1970 is $4,400,000 and the fiscal 1971 budget contemplates a total of $5,398,000 with 340 total positions including 159 attorneys.

14 The following breakdown indicates the relative size of the various divisions, in terms of appropriations for fiscal 1969 (adapted from hearings), supra, note 133, 221-22, 223-24:

been fully staffed in recent years.135 Former Attorney General Clark recently described the severe limits on Division activities caused by staff shortage: "Until 1968 there was not enough manpower in the Civil Rights Division to enforce all the civil rights laws in any one State or any one civil rights law in all the States." 136 The size of the Division has a direct effect on the number of lawsuits in which it can participate. For example, the Chief of the Employment Section of the Division indicated in November 1969, that, in the coming year, his unit could file 20 to 25 new cases. 138 Inadequate as this number is in light of the magnitude of the problem of employment discrimination, it is unlikely that the Division will file even that many suits. As of mid-June 1970, it had filed only four new cases.

Another weakness relates to the system of priorities that governs the Division's activities and its failure to turn its attention to problems before they reach crisis proportions. The Division's efforts prior to 1968 were concentrated almost exclusively on the South. It was not until the riots in the North persisted and gained in intensity that the Division reorganized and devoted substantial staff resources to dealing with the severe problems of racial discrimination in that part of the country. To a large extent, however, the Division's heavy concentration on the South was a reflection of its desire to devote its limited staff resources to areas where civil rights problems were per

135 Interview with David L. Norman, Deputy Assistant Attorney General, Civil Rights Division, Feb. 11, 1970. 130 Interview with Ramsey Clark, former Attorney General, Mar. 30, 1970. One Bureau of the Budget official noted that when asked why he did not ask for a doubling of his staff instead of requesting a small increase, Assistant Attorney General John Doar indicated that he could not effectively handle such a large staff. Interview with James V. DeLong, senior staff member, Office of Program Evaluation, Bureau of the Budget, Apr. 23, 1970. This appears to be in line with a criticism of the Division made by former Attorney General Clark, who stated that the Division, for most of its existence, was run like a small private law firm and not a Federal law enforcement office. Clark interview, supra note 136.

17 Interview with Frank E. Schwelb, Chief, Housing Section, and John M. Rosenberg, Chief, Criminal Section, Civil Rights Division, Nov. 13, 1969 and Nov. 7, 1969, respectively.

13 Interview with David L. Rose, Chief, Employment Section, Civil Rights Division, Nov. 12, 1969.

ceived as being most severe. The Division also has failed to devote sufficient resources to combat discrimination against Mexican Americans, Puerto Ricans, and American Indians.139 The staff of the Division has indicated an awareness of the need to devote more attention to the problems of these groups and attempts are being made to develop more cases on their behalf.140

According to former Attorney General Clark, until mid-1967, the Division not only did not maintain a system of priorities but it lacked even a sense of a need for priorities.141 This undoubtedly accounted in large part for its failure to foresee some major problem areas within its jurisdiction and act to remove the causes of injustice. To some extent, the Division's failure to develop systematic priorities can be accounted for by the need to respond to the many crises of the mid-1960's. In any event, it was not until 1968 that the Division established written priorities pursuant to a departmentwide requirement. Its program memorandum for fiscal year 1969 142 proposed that the resources of the Division be allocated among its sections in the following manner: Employment, 27 percent; education, 17 percent; criminal, 17 percent; housing, 17 percent; voting

139 Clark interview, supra note 136.

140 For example, Division supervisors met with representatives of the Mexican-American Legal Defense Fund in March 1970 to discuss discrimination against Mexican Americans and what the Division should do in this area. The Division has also opened an office in Houston, Tex., with a Mexican American attorney in charge. On May 26, 1970, the Division intervened in a suit against the Sonora, Tex. School District, which alleged discrimination against Mexican American students. In addition, the Division is a party in suits against five school districts in Texas alleging discrimination against Mexican American students.

Clark interview, supra note 136. The Division did have informal priorities. Prior to the Voting Rights Act of 1965, the Division's announced priority was voting. The reason given for the establishment of this priority was that other rights would naturally flow to Negroes if they were able to exercise the franchise and thus participate in the political process. B. Marshall, Federalism and Civil Rights (1964). Mr. Marshall was a former Assistant Attorney General of the Civil Rights Division. After the Voting Rights Act, the Division turned its attention to school desegregation matters and by 1968, most Division resources were focused on problems of employment discrimination.

142 At the time this report was written, the fiscal year 1970 program memorandum was not available.

and public accomodations, 14 percent; and coordination, special appeals, and Title VI, 8 percent. Although the memorandum discussed in detail the priorities within each subject matter category, little consideration was given to the overall rationale underlying the structure of the Division's program.

The Civil Rights Division still does not appear to order its priorities within the context of the national need for improved civil rights enforcement. Despite its central role in the Federal civil rights enforcement effort, the Division's goals are limited to those within the confines of its statutory mandate and bear little relation to the development of national and civil rights goals in this area. Periodic Division reviews of the total civil rights picture (which would include learning about the activities of private groups and other Federal agencies, noting the areas of progress, and assessing the major problem areas) would enable it to program its activities to complement and further existing private and Government efforts.

The priorities of the Division also remain almost exclusively confined to the narrow focus on law enforcement through litigation. The Division has virtually ignored use of its nonlitigative powers. 143 The Department has the capacity to serve as a catalyst to stimulate increased efforts by other Federal departments and agencies. In addition, acting through the Division or through U.S. attorneys, it may also generate action by State and local agencies, private organizations, and private individuals. For example, the Criminal Division has stimulated a massive advertising campaign to prevent auto theft and narcotics addiction. In these efforts the Criminal Division has enlisted the support

143 The Justice Department has indicated that the Civil Rights Division has expended substantial energies trying to solve problems by informal means. For example: there is the joint undertaking of the Department of Justice, HEW, the Cabinet Committee, the White House staff, and the State Advisory Councils, toward the solving of school desegregation problems. "From the President on down, no effort so dramatically illustrates our nonlitigative and cooperative approach to this especially sensitive civil rights area. This approach which stresses reasonableness, cooperation, and firmness, might well be applied to other areas as well." (Italic added.) Letter from Jerris Leonard, Assistant Attorney General, Civil Rights Division to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, Appendix, Aug. 25, 1970.

of numerous agencies, both Federal and private, and private businesses and persons. The Civil Rights Division, however, has tended to concentrate on its traditional litigative activity and, for the most part, has not sougnt to enlist the aid of others in its effort to assure equal rights.144

In addition, the Division's priorities have been established without benefit of any systematic effort to identify and rank outstanding civil rights problems. Little assistance was sought or provided by the staffs of other agencies or nongovernmental experts. Attempts have not been made to evaluate, quantitatively or qualitatively, the effects of its past litigation nor the probable results of its present litigation program.

A further problem has been the Division's overly cautious approach in carrying out its civil rights responsibilities. 145 It also has been contended that cases often require much less proof than that the Division believes it must submit.146 On occasion, the Division also has

144

"In the period immediately prior to the effective date of the Public Accommodations Law, Civil Rights Division officials met with numerous business and community leaders in order to insure the orderly implementation of the statute. In addition, in 1965, Division personnel gave a large number of speeches to business groups interpreting the provisions of Title VII, the fair employment section, of the Civil Rights Act of 1964. Another example of the Civil Rights Division acting in concert with private parties is the liaison it maintains with the NAACP Legal Defense Fund, the Lawyer's Committee for Civil Rights Under Law, the Lawyer's Constitutional Defense Committee of the American Civil Liberties Union, and other private legal groups.

145 Interview with Roger W. Wilkins, former Director, Community Relations Service, Department of Justice, Jan. 3, 1970. The Department of Justice has indicated that:

"It is Division policy and practice to conserve litigation energy whenever possible. A thorough study of the cases in which the Division has been involved over the past 18 months would demonstrate this point. That study would also demonstrate that the Division has encouraged, not opposed, 'Departmental participation in litigation involving important principles of civil rights law.'" Letter from Jerris Leonard, supra note 139a.

140 Wilkins interview, supra note 145. The reason given by the Division for providing voluminous evidence in support of its arguments in court suits is that civil rights cases are so important that it cannot afford to lose any of them, thereby establishing "bad law" which may be cited by other courts in future cases.