developing a plan for the collection of racial and ethnic data; evaluating new school desegregation in guidelines; drafting coordination plans under Title VI of the Civil Rights Act of 1964 for agencies with the same recipients; and working with local communities to accelerate the flow of poverty funds.210 Although the Vice President maintained an active interest in the affairs of the Council, its ties to the President's staff were not close, and conflicts soon arose.2 The official reason for the abolishment of the Council was that it was no longer necessarythat the remaining problems in civil rights enforcement could best be handled by the Justice Department and the program agencies.212 The sudden demise of the Council left those agencies and agency personnel that had come to look to it

211

210 Id. There were, however, only four meetings of the Council and its Executive Director, though indicating that agency reaction to Council guidance was good, stated that the Council "never got off and running.” Branton interview, supra note 209.

211 For example, the Council's Executive Director was in Los Angeles at the time of the Watts riot, and was asked by the Vice President to conduct an investigation of the causes of the riot and report to the Council. The report was prepared, but the President canceled the Council meeting and sent his own investigating team to Los Angeles. Other problems of coordination between the Council and the White House related to school desegregation guidelines and jurisdiction for the pending civil rights conference "To Secure These Rights". Branton interview, supra note 209.

212 Memorandum for the President From the Vice President on Recommended Reassignment of Civil Rights Functions, Sept. 24, 1965. The memorandum read in part:

"In short, I believe the time has now come when operating functions can and should be performed by departments and agencies with clearly defined responsibility for the basic program, and that interagency committees and other interagency arrangements would now only diffuse responsibility."

It has been contended that the Vice President never saw the memorandum until the morning it was released. Branton interview, supra note 209; A. Phillip Randolph Institute, The Reluctant Guardians: A Survey of the Enforcement of Federal Civil Rights Laws (prepared for the Office of Economic Opportunity) 2-10, 11 (1969). From this and like experiences, knowledgeable observers have concluded that a Vice President can never successfully operate a civil rights coordinating function. Branton interview, supra note 205; interview with Charles Schultze, former Director, Bureau of the Budget, Apr. 9, 1970; interview with Joseph A. Califano, Jr., former Special Assistant to President Johnson, Mar. 24, 1970.

for leadership and support without any White House-level office to relate to on civil rights matters or from whom to receive guidance on a regular basis.

3. COORDINATION ON AN AD HOC

BASIS

a. 1965-1968

The Executive order abolishing the President's Council transferred to the Department of Justice the responsibility for coordinating the enforcement efforts of the 22 agencies with Title VI programs.218 According to former Attorney General Ramsey Clark, the Department lacked the stature, inclination, and manpower to fulfill this mandate adequately.214 Other vital areas of civil rights concern which had been within the Council's jurisdiction, such as discrimination in the private employment sector, were no longer subject to any specific coordination or policy direction.

During the last 3 years of President Johnson's administration, White House staff was not systematically involved in the Federal civil rights program. It became involved only when an important problem arose, when a major new policy was to be enunciated, or when action was desired on a particular matter.215 In cases where the White House staff intervened in civil rights matters involving particular departments, department heads (either because they did not agree with the position of the White House staff or because they felt that the proposed course of action was not politically feasible) sometimes would disregard the requests for

"Executive Order 11247 (1965). Top advisers to President Johnson have indicated that one of the reasons civil rights duties were focused in the Department of Justice was the President's respect for Attorney Generals Katzenbach and Clark. Califano and Schultze interviews, supra note 212.

214 Interview with Ramsey Clark, Mar. 30, 1970. For a discussion of how the Department of Justice is fulfilling its responsibilities under the Executive order, see ch. 4, supra.

215 Clark and Califano interviews, supra notes 214 and 212. White House staff members who dealt with civil rights questions were Joseph A. Califano, Jr., Special Assistant to the President, and Harry C. McPherson, Jr., Special Counsel to the President. During their tenure on the White House staff, Lee C. White, Special Counsel to the President and Clifford L. Alexander, Jr., Deputy Special Counsel to the President, also worked on civil rights questions.

action.216 No regular meetings were held between White House staff and Government civil rights officials, and no reporting system was developed to provide the President and his staff with information on the state of the Federal civil rights enforcement effort.217 Decisions were made on the basis of ad hoc advice from the Attorney General, Presidential assistants, and private individuals outside the Government family, with little provision for followup.218

Thus no mechanism was developed to replace the President's Council on Equal Opportunity. The vacuum created by the demise of the Council was not adequately filled either by the White House staff, the Bureau of the Budget, or the Justice Department. Agency civil rights staffs were left largely to fend for themselves in the effort to assure that civil rights received priority attention.219

b. 1969-June 1970

Although the assignment of White House personnel to deal with civil rights matters currently is more structured 220 than it previous

216 Califano interview, supra note 212. For example, the White House staff raised questions with Cabinet Secretaries about rampant discrimination in the Department of Agriculture's Federal Extension Service and the building trade unions which are closely tied to the Department of Labor. Yet no significant action was taken by Secretary Freeman to enforce Title VI with regard to the Extension Service and the action taken by Secretary Wirtz to break the discriminatory patterns of the building trade unions was highly inadequate to cope with the pervasiveness of the problem. Id. 217 Id.

218 White interview, supra note 205.

219 As a result of the conflict in agency priorities, which the injection of civil rights issues often causes (e.g., the job of a contracting officer has traditionally been to obtain goods at the cheapest price with the fastest delivery date and not to ensure that the low bidder employs a fair percentage of minority group individuals; a grant program administrator generally has been concerned only with getting his assistance out to the public, not requiring that everyone, regardless of race or ethnic background, receive an equitable share of the assistance) most of the Federal civil rights programs atrophied. There is some reason to doubt, however, that the President or his top staff were aware of this fact.

220 The top staff member with civil rights responsibilities is Leonard Garment, Special Consultant on Civil Rights, Voluntary Action, and the Arts, who ordinarily reports to John D. Ehrlichman, Assistant to the President for Domestic Affairs. Mr. Garment has an executive assistant, Bradley H. Patterson, Jr. Robert J. Brown, a Negro, is Special Assistant to the President

ly was, some of the deficiencies of the past still exist. Five White House staff members spend all or most of their time dealing with issues and programs relating to minority group citizens.221 Two of them are utilized almost exclusively in promoting the Administration's minority entrepreneurship and equal opportunity in Federal employment programs, working on special projects and handling correspondence.222 The chief civil rights official on the White House staff, Leonard Garment, and his assistant, however, have a number of duties in addition to civil rights, and are assigned to special projects and committees which require significant amounts of their time.223 Although these various other

and reports to both Mr. Ehrlichman and Mr. Garment. His assistant, Thaddeus V. Ware, a Negro, is a Staff Assistant to the President. The last person assigned to civil rights matters is Bruce Rabb, also a Staff Assistant to the President. Mr. Rabb is formally on the staff of Mr. Ehrlichman, but works closely with Mr. Brown and Mr. Garment.

221 Messrs. Brown, Ware, and Rabb all spend full-time on minority group affairs. Interview with Robert J. Brown, Special Assistant to the President, Mar. 17, 1970. Interview with Bruce Rabb, Staff Assistant to the President, Mar. 4, 1970. Both Mr. Garment and Mr. Patterson spend the overwhelming percentage of their time on civil rights matters. Interview with Bradley H. Patterson, Jr., executive assistant to Leonard Garment, Apr. 22, 1970.

222 Interview with Robert J. Brown, Special Assistant to the President, Apr. 9, 1970. Mr. Brown indicated this was also true of Mr. Ware and himself. Examples of the types of special assignments Mr. Brown is assigned to is work that he performed in the summer of 1969 evaluating the various types of day care centers that the Government could fund and the work he performed with Federal agencies to develop or restructure assistance programs to make them more relevant to the needs of predominantly black colleges.

223 A recent newspaper story concerning Mr. Garment set forth his duties in the following manner:

"His assignments quickly multiplied, soon justifying his description of himself as the administration's "odds and ends" man. As special consultant, he is the President's liaison officer for cultural affairs in the State Department, Indian affairs in the Interior Department, minority business enterprise in the Commerce Department, civil rights (all departments); he is director of the National Goals Research Staff and is White House agent with the Civil Rights Commission, the Equal Employment Opportunity Commission, the President's Committee on Equal Opportunity in Housing, the President's Council on Youth Opportunity, the Indian Claims Commission, the National Foundation on the Arts and the Humanities, the Commission on Fine Arts, the Smithsonian Institution, the Joseph H. Hirschhorn

demands on the time of White House civil rights staff are, for the most part, related to minority group affairs, they are not related to compliance or enforcement of civil rights laws and policies.

Two types of information systems are used by White House aides. The first is a formal one: the filing by the agencies of monthly reports concerning significant civil rights activities and the holding of periodic meetings with agency officials.224 The second information system is informal, consisting of following events reported in the press, reading reports issued by the Commission on Civil Rights or private civil rights groups, and speaking with minority group leaders and Government officials.225

The monthly reports requested are narrative and the agency determines what to include and what not to include. This system makes it almost impossible to evaluate agency performance on an accurate and objective basis or to determine what an agency should be doing that it is not doing. In any event, no evaluation of the reports is made.226 The basic purpose of the periodic meetings is to disseminate information. No attempt is made to use the meetings for policymaking purposes, or for making critical appraisals of agency efforts. 227 Rather, the

Museum and Sculpture Garden, the National Council on Indian Opportunity and the Bicentennial Commission. In addition, he is responsible for administration programs on voluntary action, voting rights, problems of the aging and women's rights and responsibilities.

"Garment spent nearly all his time for 2 months this spring assembling a lawyers's brief for the President on the whole question of school desegregation. After the statement was completed, the President put him on a special commission on school desegregation headed by the Vice President."

The Washington Post, Potomac Magazine, June 7, 1970, at 17, 29, 30. Brown interview, supra note 222. 224 Brown interview, supra note 222.

225 Patterson interview, supra note 221.

226 Interview with Thaddeus V. Ware, Staff Assistant to the President, Mar. 17, 1970. A representative number of the reports were reviewed by Commission staff and found to vary significantly from agency to agency, with material in almost all cases being quite superficial.

"Brown interview, supra note 221. There are 28 agencies which are invited to send representatives to the meetings. The U.S. Commission on Civil Rights has not been asked to participate in them. However, another White House source has indicated:

"Reports that are made at the meetings are made not only to inform the other members of the particular subject matter being discussed, but also to provide an

agenda for the meetings usually consists of a discussion by a Presidential aide or agency representative either explaining a new policy or an action taken in furtherance of a program considered of national importance, e.g., the minority enterprise program or the Philadelphia Plan.

A number of efforts in the area of civil rights have been undertaken by White House staff on an ad hoc basis. A sample of these efforts includes: accompanying Department of Defense civil rights officials on visits to certain military installations; 228 working with various agencies, especially the Office of Emergency Preparedness, to develop mechanisms to assure that Federal disaster relief is provided on a nondiscriminatory basis; 229 meeting with Federal Executive Boards to describe the Administration's minority entrepreneurship program; 230 visiting various parts of the country to talk with minority group leaders and other local

opportunity for criticisms and recommendations by the other people present. In addition, the meetings also include a period for discussing issues not included in the agenda which those present think should be raised. "Opportunities to appraise agency efforts, moreover, are not limited to the agency officials who attend the meetings on a regular basis. At the Mar. 5, 1970, meeting, for example, the assistant director of the National Urban League was invited at his request to discuss ways in which the Federal agencies could help achieve a more accurate count of minorities in the 1970 census. Memorandum from Bruce Rabb to Leonard Garment, 2, Aug. 24, 1970, appended to a letter from Leonard Garment to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, Aug. 25, 1970.” 'Rabb interview, supra note 221. According to a White House official, the visits were one aspect of an effort on the part of White House staff to determine the causes of rising racial tension in the Armed Forces and to develop means for eliminating the causes. Memorandum from Bruce Rabb, supra note 227, at 3.

228

minority group citizens; and working on HEW's school desegregation guidelines.231

Despite this increased activity by White House staff, there still is no systematic effort to insure that the enforcement efforts of the Federal Government agencies are evaluated, or that their civil rights activities and policies are coordinated.232 This, coupled with the failure of the Bureau of the Budget, the other principal staff arm of the President, to evaluate agency civil rights activities, has an adverse effect on the amount and accuracy of information

231 Brown and Patterson interviews, supra note 221. In the area of school desegregation:

"... [m]onths of White House senior staff time ... was given over to researching, drafting, defending, and explaining the President's whole series of statements and actions concerning school desegregation...."

Specifically, the staff worked on:

"[T]wo brief and one very long policy statements, the creation and staffing of a special Cabinet Committee, the appointment of seven biracial State Advisory Councils, a personal Presidential meeting with each, an additional Presidential meeting with the seven chairmen and co-chairmen, a special Presidential trip and news briefing to New Orleans . . . Memorandum from Bradley H. Patterson, Jr. to Leonard Garment, 2, Aug. 25, 1970 which is appended to a letter from Leonard Garment to Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights, Aug. 25, 1970." "Indeed, White House staff members have indicated that they believe that this is not the proper function of the White House staff:

“. . . regular, systemwide program review is simply not the role of personal White House Staff under any presidency; it indeed is the role of the Executive Office of the President and as I understand it will be one of the major roles of the Office of Management and Budget.

"Personal White House executive assistants are always ad hoc, always delving into specific issues, one by one, as these issues face the President. They may prod the President, inform the President, help the President, amplify the President's decisions but their quintessential usefulness is in their intimacy with the President and their flexibility to his needs. They know where in Government to go to get information, know how to use the organized, systematic staffs of the Government's departments and agencies and parts of the Executive Office-but they themselves are neither departments nor the continuing Executive Office . . . . A staff of personal White Housing assistants organized on any other principle, especially attempting systematic, structured monitoring of agency operations, always gets into trouble. . . ."

Memorandum from Bradley H. Patterson, Jr., supra note 231.

which is provided to the President. Furthermore, no goals or priorities have been set by the White House for the agencies. These continuing weaknesses result, in part, from the inadequate number of White House staff devoted to civil rights and the failure to develop a structure or system to deal with civil rights problems of national import, which cut across the jurisdiction of the Federal agencies.

C. White House Reorganization

As indicated earlier, on March 12, 1970, the President announced a reorganization plan establishing an entirely new entity, the Council on Domestic Affairs, to coordinate policy formulation in the domestic area.233 The mandate of the Council is purposefully general; it is designated to perform such functions as are assigned to it by the President.234 Its members include the President, Vice President, and the heads of all Cabinet Departments, except the Departments of State, Defense, and Post Office.235 The plan also provides for the appointment by the President of an Executive Director of the Council, who directs its staff.28 236

The Council is intended to serve as a coordinator of Executive policy. Its concern will be with what the Federal Government should do. It will be the duty of the Office of Management and Budget (formerly the Bureau of the Budget) to determine how policies should be carried out.237 Creation of the Council has the

233 Reorganization Plan No. 2 of 1970 (Mar. 12, 1970). The Plan went into effect on July 1, 1970. For a discussion of the impact of the plan on the Bureau of the Budget, see pp. 330-31 supra.

234

235

Id., at sec. 202.

" Id., at sec. 201(b). The Cabinet heads who are members of the Council are: the Attorney General, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Health, Education, and Welfare, the Secretary of Housing and Urban Development, the Secretary of the Interior, the Secretary of Labor, the Secretary of Transportation, and the Secretary of the Treasury. The President indicated his intention to add to the Council the Postmaster General and the Director of the Office of Economic Opportunity. Statement by the President to the Congress of the United States Accompany Reorganization Plan No. 2 of 1970, 2 Mar. 12, 1970.

effect of structuring and institutionalizing many important functions that previously were performed by the President's personal staff. It is anticipated that the Council will proceed to define national needs, goals, and priorities; develop alternative methods of achieving the goals; provide the President with prompt advice on important domestic issues; and review, from a policy standpoint, the conduct of ongoing programs. Most of the Council's work will be accomplished by a series of temporary committees which will be staffed by agency personnel supplemented by staff of the Council as well as that of the Office of Management and Budget.238 The staff of the Council is expected to consist of approximately 50 professionals, although it may run as high as 70.239

The Domestic Council will advise the President on total domestic policy and will be a vital link between the agencies and the President, disseminating the President's policies to the agencies and communicating agency positions to the President. The Council will bring together, under one roof, many of the resources necessary for conducting research on long-range goals, developing an integrated domestic policy and designing specific new programs. The Council, itself, is not intended to meet often, but its committees will meet as often as necessary to fulfill the assignments given to them.240

The creation of an institutionalized structure in the Executive Office of the President presents great potential for increased White House involvement in the Federal civil rights effort. An adequately staffed Subcommittee of the Council, dealing solely with civil rights policies and enforcement, would be a first step toward providing the type of overall coordination that is so necessary. Working closely with the evaluative arm of the President, the Office of Management

and Budget, and the various governmental units charged with specific coordinative functions, the Subcommittee of the Council could provide the President with the quantity and quality of information that he must have to make the decisions and take the actions that are essential to fulfilling his executive responsibility.

VIII. SUMMARY

In several of the specific subject areas covered by civil rights laws, provision has been made for mechanisms to coordinate the activities of agencies that have compliance and enforcement responsibility. In housing, HUD is charged with this responsibility by statute. Coordination of Title VI activities is the responsibility of the Department of Justice, pursuant to Presidential Executive order. In Federal employment, the Civil Service Commission has this responsibility, also by virtue of Presidental Executive order. And in private employment, a loose-knit arrangement among OFCC, EEOC, and the Department of Justice serves this function.

Mechanisms that cut across subject area lines also have been established to coordinate agency civil rights and related activities. Some of these mechanisms, such as the Federal Executive Boards, are limited in function to disseminating information concerning Federal programs on the local level and assuring that they are carried out in a coordinated manner. Others, such as the Community Relations Service and the Cabinet Committee on Opportunity for the SpanishSpeaking, also serve as advocates for minorities in general or for particular minority groups, and seek to make the Federal Government more responsive to the needs of the minority community. These agencies and mechanisms play little role in determining overall civil rights policy and they have no authority to make binding decisions on how departments and agencies carry out particular civil rights and related laws.

There are agencies and mechanisms, however, that play important roles, at the highest level of Government, in determining across-theboard civil rights programs and policies, and whose functions involve decisions that can directly influence the compliance and enforcement activities of departments and agencies having various civil rights responsibilities. The Depart