spite limitations in coverage of other equal employment opportunity provisions, any individual who believes he has been discriminated against in employment because of his race may bring Federal suit for relief under the Civil Rights Act of 1866. (3) The National Labor Relations Act (NLRA) and related laws regulate the conduct of employers and unions. Although not specifically designed to provide relief for employment discrimination, the NLRA has a significant impact on the Federal effort to end such discrimination. The act creates an obligation on the part of all unions representing employees under the act to do so fairly, impartially, and without discrimination. A union failing to comply with this obligation would be in violation of its duty of fair representation. In addition, a union's discriminatory membership policy constitutes an unfair labor practice under the act.10 With respect to employers, a recent U.S. Court of Appeals opinion indicated that discrimination by an employer in his employment practices can constitute an unfair labor practice.11 Persons who have been subjected to discrimination covered by the act may file a complaint with the National Labor Relations Board. The Board is empowered, after a finding of discrimination, to issue a cease and desist order against an employer or union, to revoke or deny certification or exclusive representation status of a union, or to refuse to require an employer to bargain with an offending union. B. Housing Like employment, equal opportunity in housing is a broadly protected Federal right. Almost all housing, federally assisted or not, must be made available without discrimination. 1. FEDERALLY ASSISTED HOUSING (a) Executive Order 11063, issued in NovCCH Employment Practices Rep. (61 CCH Lab. Cas.) par. 9346. 'See Vaca v. Sipes, 386 U.S. 171 (1967); Syres v. Oil Workers, Local 23, 350 U.S. 892 (1955). See also Steele v. Louisville & N.R.R., 323 U.S. 192 (1944). ember 1962, constituted the first significant Federal requirement on nondiscrimination in housing. Discrimination is prohibited in the sale or leasing of all federally assisted housing provided after the order's issuance, including housing owned by the Government, housing purchased in whole or in part with Government loans (such as low-rent public housing), housing provided through loans insured or guaranteed by the Government (such as Federal Housing Administration (FHA) and Veterans Administration (VA) housing), and housing provided through slum clearance or urban renewal programs. The prohibition also extends to lending practices insofar as those practices relate to loans insured or guaranteed by the Federal Government. Finally, the order directs all executive departments and agencies with functions relating to housing to "take all action necessary and appropriate to prevent discrimination because of race, color, creed, or national origin . . . .” 12 The order provides for the following remedies to be applied in cases where discrimination is found and conciliation and persuasion fail to bring about compliance: cancellation or termination of agreements or contracts with offenders; refusal to extend further aid under any program to offenders; refusal to approve a lending institution as a beneficiary under any program which is affected by the order; and revocation of such approval if previously granted. (b) Title VI of the Civil Rights Act of 1964 covers all federally assisted housing except those instances in which the assistance provided is solely in the form of contracts of insurance or guaranty. (Although this exclusion exempts FHA home mortgage insurance and VA home loan guaranty programs, they are covered by Executive Order 11063.) Title VI does apply to such varied housing programs as urban renewal, housing rehabilitation, relocation grants, low-rent public housing, and code enforcement programs. Remedies under Title VI include suspension or termination of Federal financial assistance, or refusal to grant or to continue such assistance. In addition, the Department of Housing and Urban Development may refer noncompliance matters to the Department of Justice for litigation. 12 Executive Order 11063, sec. 101 (1962). 2. PRIVATE, NONFEDERALLY ASSISTED HOUSING a. Title VIII of the Civil Rights Act of 1968 The Federal fair housing law covers not only federally assisted housing, but most private housing as well. The only significant exceptions from coverage are rental housing with fewer than five units, one of which is owner-occupied, and single family houses owned by a private individual and sold without the use of a real estate broker. It is estimated that 80 percent of all housing is covered by Title VIII. In addition to prohibiting discrimination in the sale or rental of housing, Title VIII requires all Federal departments and agencies with functions relating to housing to administer their programs and activities affirmatively to further the purposes of fair housing. Although the coverage of Title VIII is much broader than that of the Executive order or Title VI, the remedies are not nearly so strong. Compliance with Title VIII can be brought about through administrative conciliation by HUD, through action by a State or local enforcement agency, through private litigation, or, in the case of patterns or practices of discrimination, through lawsuits brought by the Attorney General. Administrative enforcement is not available under Title VIII. A provision of the Civil Rights Act of 1866,13 which grants to Negro citizens the same rights as white citizens to rent or purchase property, was construed by the Supreme Court in 1968 in Jones v. Mayer and Co.14 to prohibit racial discrimination in all housing, private as well as public. The means of enforcement, however, appears to be limited to privately instituted litigation. In addition to HUD, there are a number of other Federal departments and agencies with direct responsibility to insure that minority group citizens are not deprived of their right to equal housing opportunity. These include: the Department of Justice, which has authority under Title VIII to institute lawsuits to eliminate patterns or practices of discrimination; agencies which supervise mortgage lending institutions; the General Services Admin istration (GSA), the Federal Government's real estate agent which is responsible for insuring that housing problems of low-income and minority group employees are taken into consideration when sites for Federal installations are selected; the Department of Defense, which has the obligation of insuring that its minority group servicemen are able to secure adequate, non-segregated off-base housing; and the Veterans Administration, which administers a major program of housing loans and guarantees. C. Federally Assisted Programs Of all of the provisions of civil rights law, Title VI of the Civil Rights Act of 1964 is the one with the broadest coverage. It is designed to insure equal treatment not merely in federally assisted housing and employment but in all loan and grant programs administered by the Federal Government. As a result, nondiscrimination requirements apply to public schools, hospitals and other health facilities, highway construction, and public parks. All told more than 400 programs administered by 23 Federal departments and agencies are covered by this title. When a violation is uncovered, agencies must try to obtain compliance by voluntary means. If this fails, administrative proceedings may be initiated to terminate grants or to refuse to grant or continue assistance. In addition, agencies may utilize any means authorized by law, such as requesting the Department of Justice to file suit to compel compliance with Title VI. In addition to the 23 departments and agencies involved in enforcing Title VI, the Department of Justice and HEW are assigned roles of special importance. Under Executive Order 11247 (1965) Justice is responsible for coordinating enforcement efforts of all Federal agencies administering programs covered by the title. HEW, under a series of coordination plans, has been delegated authority for securing compliance from recipients of assistance under higher education, elementary and secondary schools, and medical facilities programs even though other agencies may provide assistance to the same recipients.15 15 The legal requirement of nondiscrimination by Federal recipients in their distribution of Federal assistance antedated the passage of the Civil Rights Act of 1964. Supreme Court and lower court decisions had D. Direct Federal Assistance The programs covered by Title VI are those in which there is an intermediary between the Federal Government and the ultimate beneficiary of its assistance programs. It is through these intermediaries, called recipients, that the Federal aid flows. Title VI is concerned with assuring against discrimination by the intermediaries in the distribution of program benefits. In many Federal programs and activities, however, the relationship between the Federal Government and the ultimate beneficiary is a direct one. Programs such as those concerned with retirement and disability payments, hospital and supplemental medical insurance payments, veterans insurance and benefit payments, and unemployment benefit payments, are among those involving such a direct relationship. In addition, the Federal Government operates a number of direct loan programs, providing business and housing loans, which also go directly to beneficiaries. More than 100 programs of direct Federal assistance involving annual expenditures of more than $75 billion are in existence.16 Many of these programs are outside the scope of Title VI. To the extent that discrimination is practiced in direct assistance programs, however, it is the Federal Government itself indicated much earlier that this was both a Federal and local responsibility. In Hurd v. Hodge, 334 U.S. 24 (1948), and Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court held that the Federal Government could not itself discriminate and in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), it was held that where Government and private parties act together in a unified fashion or where governmental involvement in private discrimination is substantial, the private party also is constitutionally barred from discriminating. The U.S. Court of Appeals for the Fourth Circuit in Simkins v. Moses H. Cone Memorial Hospital, 323 F. 2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964), stated the test of constitutionality: "[I]n our view the initial question is *** whether the state or the federal government, or both, have become so involved in the conduct of these otherwise private bodies that their activities are also the activities of these governments and perform under their aegis without the private body necessarily becoming either their instrumentality or their agent in a strict sense (at 966)." 16 See Office of Economic Opportunity, Catalog of Federal Domestic Assistance (1970) and The Budget of the United States Government, 1971: Special Analyses (1970). that is discriminating. Such discrimination clearly is in violation of the fifth amendment of the Constitution."7 The right of nondiscriminatory access to direct assistance programs is enforceable through the sanction of disciplinary action against Federal employees guilty of discrimination, pursuant to administrative procedures or regulation, 18 and through litigation by aggrieved beneficiaries. 19 E. Programs of Insurance and Guaranty Some Federal aid programs do not involve financial assistance in the form of loans or grants, either through intermediaries or directly to beneficiaries. Rather, they rely on Government insurance and guarantees to include private lenders to provide funds for specific purposes. In these programs the Federal Government's role is that of underwriter, while the funds are made available through ordinary private credit channels. FHA and VA housing programs, for example, use the vehicles of insurance and guaranty to stimulate private credit for housing. The Small Business Administration (SBA) acts similarly to encourage the availability of private credit to help small businessmen. Such insurance and guaranty programs are specifically exempt from coverage under Title VI.20 The substantial governmental involvement in these programs, however, undoubtedly would prohibit discrimination under the due process clause of the fifth amendment.21 Moreover, insurance and guaranty programs in the housing area also are covered by Executive Order 11063, and insurance programs for business loans are covered by nondiscrimination requirements of the Small Business Administration. The only remedy for discrimination under these programs is private litigation, except in the housing and business loan area where administrative sanctions to assure against dis crimination are provided pursuant to Executive Order 11063 and SBA regulations. F. Other Federal Protections 1. PUBLIC ACCOMMODATIONS AND PUBLIC FACILITIES The Civil Rights Act of 1964, in addition to creating the statutory rights of equal employment opportunity and equal access to the benefits of federally assisted programs, also prohibited discriminatory practices in other vital areas of American life. Among these were discrimination in places of public accommodations, such as hotels, restaurants, and theaters, 22 and in public facilities such as publicly owned or sponsored parks, beaches, swimming pools, golf courses, and bowling alleys.23 Principal responsibility for enforcement of the public accommodations and public facilities provisions rests with the Department of Justice.24 2. EDUCATION Another was discrimination and segregation in education which was approached in two ways: the first was through the leverage of Federal financial assistance, since under Title VI schools and colleges could not receive such assistance unless they ended discriminatory practices; the second was through litigation by the Department of Justice. Under Title IV of the act, the Attorney General is authorized to bring lawsuits to eliminate unconstitutional discrimination by public schools and colleges. Thus, even if schools are willing to forego Federal financial assistance as the price of continuing discriminatory practices, they face the prospect of litigation by the Department of Justice to require an end to discrimination. 3. VOTING The Voting Rights Act of 1965 assured the right to vote by suspending literacy tests and other discriminatory qualifications for voting in six States and 40 counties in another State.25 " Title II, Civil Rights Act of 1964. "Title III, Civil Rights Act of 1964. Discrimination or segregation in public education is covered by Title VI of the act. "Under Title II, Attorney General may initiate an action on his own, but under Title III, the Attorney General may institute litigation only on the basis of a written signed complaint. 25 42 U.S.C. 1973 (1965). Under the Voting Rights Act, the Attorney General has authority to appoint voting examiners to register individuals in cases where it does not appear that local officials are willing to do so. The Attorney General also has the duty to review and approve proposed changes in voting qualifications or procedures of any State or subdivision covered by the act. 4. REGULATED INDUSTRIES Under the Constitution and specific statutory authority granted by Congress to a number of Federal agencies to license and regulate particular industries, the practices of a large number of business corporations are subject to nondiscrimination requirements. For example, railroads and bus companies are licensed and regulated by the Interstate Commerce Commission (ICC); radio and television stations are licensed and regulated by the Federal Communications Commission (FCC); hydroelectric plants and many natural gas companies are licensed by the Federal Power Commission (FPC), as are many electrical power companies; and airlines are regulated by the Civil Aeronautics Board (CAB). The involvement of the regulatory agencies in the activities of these industries is pervasive and their control over industry practices is plenary. They have constitutional responsibility to assure that the companies they regulate do not practice racial or ethnic discrimination in employment nor in the provision of services or facilities.26 III. MECHANISMS FOR COORDINATING CIVIL RIGHTS ENFORCEMENT 27 The ultimate responsibility for assuring that the various civil rights laws and executive orders are carried out with maximum effectiveness rests with the President in whom the 26 See Legal Appendix. 27 The U.S. Commission on Civil Rights has statutory responsibility for appraising Federal civil rights laws and policies, and reporting its findings and recommendations to the President and the Congress. The Commission has no authority for enforcing civil rights laws or requiring changes in agency civil rights policies or practices. In carrying out its appraisal function, the Commission, in addition to reporting publicly on its findings and recommendations, works informally with departments and agencies that have civil rights responsibilities and with those who provide staff assistance to the President. An evaluation of the Commission's role is outside the scope of this study. Constitution places the Government's Executive power. A number of agencies and mechanisms have been used or are capable of being used to assist the President in coordinating, evaluating, and directing the civil rights efforts of Federal departments and agencies. A. White House Staff The President is aided most closely in carrying out civil rights responsibilities by his own staff of White House assistants. Their chief function is to provide him, on an informal basis, with information necessary to make civil rights policy decisions and to determine the most appropriate courses of action to meet existing problems. Although White House staff members have no formal authority to require changes in policies or practices of Federal departments and agencies, the influence they enjoy through their close working relationship with the President frequently affords them unusual persuasive leverage to bring about such changes. B. Bureau of the Budget 28 The Bureau of the Budget is part of the Executive Office of the President and, like the White House staff, provides direct staff assistance to the President. The Bureau assists the President in five specific areas: (a) formulation of the annual budget; (b) analyses of proposed legislation and Executive orders; (c) improvement of Federal management and organization; (d) coordination and improvement of Federal statistical programs; and (e) planning and evaluation of Federal substantive programs. Civil rights is an integral part of each of these five areas. The Bureau's two most important civil rights related functions have consisted of its role in reviewing agency budgetary submissions for civil rights activities and its role in planning and evaluating Federal programs. A principal purpose of program evaluation is to determine whether the intended beneficiaries of Federal assistance are actually deriving the benefits, and, if not, whether racial or ethnic discrimination or other such factors are the cause. C. Department of Justice The Department of Justice, as the Government's chief litigator, plays a central role in the Federal Government's civil rights effort. It is, in effect, the agency of last resort where noncompliance is found and sanctions either are unavailable to the Federal agencies (as in the case with EEOC under Title VII of the Civil Rights Act of 1964) or the sanctions available (such as the withholding of Federal welfare payments from an entire State) are deemed less appropriate than the bringing of a lawsuit. Further, the Department of Justice passes on the legality of significant new civil rights policies proposed by all other Federal departments and agencies. For example, the "Philadelphia Plan" which sets minority employment goals for Government contractors, and the school desegregation guidelines issued by HEW, were reviewed and approved by the Department of Justice before they were issued. In addition to its litigative and other legal responsibilities, the Department, through its Community Relations Service (CRS), also serves as an information and conciliation bridge between the minority community and the Federal establishment. The principal purpose of this is to promote peaceful race relations. In carrying out its functions, CRS obtains information about Federal programs that can be of assistance to minority group members and transmits to Federal officials information on the needs and desires of the minority community. CRS also works with local groups in an effort to bring about institutional changes in well-defined areas, such as police-community relations, education, and minority economic independence. D. Specific Coordination The civil rights concerns of the White House, the Bureau of the Budget, and the Department of Justice extend to all civil rights laws and policies. In some areas, however, Federal agencies have coordination responsibilities for specific subjects. For example, under Title VIII of the Civil Rights Act of 1968, the Department of Housing and Urban Development has responsibility for coordinating the activities of all other Federal |