I grant that it is for a different purpose.

Senator PELL. In your view, would it be better to stick to title I? Mr. LUMLEY. This would be my feeling, yes. I think if the school districts were given the additional money to do this job, and every district were required to comply with the Civil Rights Act, we would accomplish the same thing, and accomplish it more efficiently.

MONDALE AMENDMENTS

Senator PELL. Do you have any more views with regard to the Mondale-Javits amendments that may be attached to the pending appropriations bill?

Mr. LUMLEY. We are for them. We are in agreement with them.

OTHER ETHNIC MINORITIES

There is another problem we have not talked about. We have been talking principally black and white. There is another minority problem.

I am bringing this up because it emphasizes in my mind the need for additional money in title I and title III ESEA and title IV of the Civil Rights Act. The problems of the Spanish Americans, Mexican Americans, Puerto Ricans should be recognized and educational programs provided for them.

Of course, as I mentioned before, this kind of segregation is not the court order problem, but is rather an urban problem. It may produce some blowups if we don't have the money to meet these needs.

Senator PELL. I would add here that in my part of the country it is not only Spanish-speaking but Portuguese-speaking.

Mr. LUMLEY. That is right. I shouldn't forget to mention the Indians, too.

INCLUSION OF PROFITMAKING ORGANIZATIONS-PERFORMANCE CONTRACTS

Senator PELL. In your testimony you say you see no possible reason why any corporation or person should profit financially from a program aimed at alleviating injustice.

In this connection, what is your view with regard to performance contracts, where profitmaking, private firms take on jobs, find they can do them in a competitive way, and have tests at the end of the period of time to see whether they have delivered or not, and if they have not delivered they are not paid?

Mr. LUMLEY. This would take a long discussion but I will make it as brief as I can state philosophically we are opposed to performance contracts with private industry.

We believe a performance contract to increase the reading rate of children is measurable on a scale when you teach for this particular scale, but we are not sure that this is the educational process that you want to measure.

We believe that if there is a performance contract as such, or an evaluation, the school district should be the contracting agent.

One of the things we have talked about before this committee and other committees and your committee did include it last year-is evaluation of what is being done in the schools.

There is more involved than rote learning. The performance contract in reading can be measured on what? On the increase in vocabulary? Or in mathematics, by computations?

But has this increased the thinking power of the boy or girl, the social conscience of the boy or girl?

We are opposed to this movement for performance contracts as it is presently being conducted.

Again, I guess we have to add to that the performance contract done by the Office of Education working with school districts does not always involve the whole educational community.

The application of evaluation is sound, but the evaluation should be an integral part of the school program. Let us make the schools produce. Let us do this and I think we will have a better situation and a better school system.

Part of this, let me say to you, sir, is personal opinion. I am not too sure I could say this is a National Education Association policy as such. Generally, I think they would agree.

Senator PELL. I would think they probably would. I don't think I agree with you, but I do think you speak for the NEA viewpoint. As you know, for some years I have been interested in this idea of general education tests, somewhat like the New York Board of Regents exam, to bring all the schools up to a certain floor and do it on a voluntary basis. To this concept the NEA is opposed.

I think these outside contracts and tests, not as a general rule but as an occasional spur, are probably pretty healthy things.

I wouldn't want to delude you that I don't think they have merit. I realize the justification for what you are saying, that a performance contract will test, maybe, vocabulary, but will not test many other learning factors.

But if a performance contract is written in such a way that it would include a wider objective, one that might achieve the desired result, or if it is simply a question of trying to increase the vocabulary on a special basis, then it would be justified.

I question the automatic objection to the idea of outside tests, the belief that there is something wrong with a profitmaking body doing it, is a most instinctive reaction.

Mr. LUMLEY. I think my objection to profitmaking corporations doing this is that people seem perfectly willing to pay $900,000 to a coropration to do something that the school district can do and would be perfectly willing to do for half that price.

But as has been brought out before in many of the committees of this Congress, we pay high prices. The Job Corps spends $2,000 per pupil to do something because they say the schools fail.

Well, the schools don't have $2,000 per pupil to do it.

Let me say this, Senator: When we come to the evaluation of what is being done, you have to depend on the test. If I have a performance contract and let me say it would be a fine business to get into-and I can make up the curriculum of what I am going to do and then evaluate what I have done, I can't lose.

Let me say this, too: We have the experience in New York State of the regents' examinations. One of the greatest problems that they had in New York State after the establishment of the regents' examinations was to keep the teachers from teaching for the test. They kept

the test from year to year and taught for those tests. This is one way to achieve high scores.

There is a certain level of pupils who will learn whether it is under a performance contract, whether they are taught by a teacher, or whether they learn themselves. But you have another group of pupils who have to be taught and taught in small groups.

So here someone takes a performance contract and works with a very selective group. They are paid a high price to do this. Then someone says, "These people are achieving something the schools can't do." The schools can do this.

I am trying to say that the schools should have the money to do this, should be evaluated, and should be kept to this same kind of a level. I think they can.

Senator PELL. I think that both approaches should be used. I would like to get away from this automatic rejection of the idea that a profitmaking group should not be allowed to participate.

I speak here, I guess, as a bleeding-heart or knee-jerk liberal in normal terms. But I do think the objection can be too far and too extreme in this regard.

Mr. LUMLEY. I guess I can agree with you, sir, that the competition of this would be fair if it were done on the basis of a controlled pilot project, and if at the end of that time an evaluation were submitted to you showing that in Texarkana they taught reading to 1,600 or 6,000, whatever it is, pupils, and they were able to achieve a certain level of reading growth within that year's period at a cost of so much per pupil. This information should be spelled out, but it should not indicate that a particular company was able to do this and the teachers weren't able to do it. This is the part that I am objecting to.

If there is a fair comparison to what is being done, and there is an evaluation of that, then I can withdraw my objection. I am not here to say that there shouldn't be profitmaking organizations in this world.

I am simply saying that generally there is no reason to get a profitmaking organization into this when you have nonprofit operations and you have school systems, you have all these agencies, universities, colleges, to do all of this experimentation.

Senator PELL. This problem will probably increase as time goes on. As a general rule, in-house testing and in-house measurement usually needs a little checking from out-of-house measurements.

I know in any operation in which I have been, I have felt a little selfsatisfied after a period of time that I am doing it the right way, and yet I am sure that somebody can come into my office and show me mistakes that I am making.

Mr. LUMLEY. Furthermore, you don't find any opposition from the National Education Association to the college boards. These are tests that are given to high school graduates for entrance into college. My point is we are not opposed to evaluation.

Senator PELL. It seems to me you have been opposing my bill for a voluntary national merit test or examination for about 8 years.

Mr. LUMLEY. I think we suggested modification, didn't we? I don't think we were outright opposed to it. Didn't we propose some modifications.

Senator PELL. You supported the advisory council, which is the dogood side of it, something akin to motherhood and apple pie, but you didn't approve the guts of it, which was to do exactly what you said you were for 2 minutes ago-testing.

Mr. LUMLEY. If we had done that, certainly we would be inconsistent. I would be very happy to reevaluate that, Senator, and come back to

you.

Senator PELL. There is nothing wrong with being inconsistent. We are inconsistent all the time. I am for import quotas on textiles and I want them eliminated on oil. Many of us are inconsistent, but let us admit our inconsistency.

Mr. LUMLEY. There are times that I can be inconsistent, but in this particular instance I didn't realize we had taken a stand in opposition to your bill.

I thought we had a modification. I didn't think we were in opposition to the guts.

Let me reevaluate and come back to you on that.

Senator PELL. What we have done now is passed the motherhood and apple pie portion, but we still haven't accepted the concept of voluntary tests that high school students can take when they ask to, with the idea being to bring pressure on school committees to raise the curriculum offered.

Mr. LUMLEY. I would be happy to reevaluate it, Senator. As you know, we have supported the national assessment.

Senator PELL. For several years I have been hearing about the national assessment. We are just waiting for that result to come in and then, as I am told, you can form a view on my bill.

Mr. LUMLEY. The first report from the national assessment is to be made on the 8th of July. After that you can have an answer.

Senator PELL. Then we will introduce this bill again, and we hope that maybe we can get it through.

Mr. LUMLEY. All right, sir.

Senator PELL. I thank you very much for your kindness in being here, very much indeed, and your courage in having an opinion on this bill and expressing it, which nobody else has done.

I do have one other question which has been submitted on behalf of the minority, it is a very valid question.

UTILIZATION OF EXISTING STATUTORY AUTHORITY

They point out that since titles I and III ESEA are required to be distributed by formula anyway, wouldn't this factor present a difficulty when it came to providing a special instrument to help in the desegregation problem?

In other words, I and III are all inclusive and do not cover these problems in the areas that are seeking to desegregate.

Mr. LUMLEY. That is a good question. I would assume there would have to be some amendment to the formula for this purpose. Actually the thing I am saying here is that the formula proposed in this bill does just the opposite of the formula in title I and title III.

Where titles I and III give money on the basis of disadvantaged, money is going into the large urban centers where there are de facto problems.

Here we are talking about a formula that is putting the larger percentage of money in the districts where there are court order or HEW order for desegregation.

It seems to me that what this bill says, really, is that if you fought segregation and you fought it hard enough, then the Government is going to give you money now to do what you should have done 15

years ago.

This is what we think is basically wrong and why we feel that the people who have been responsible, who have been short-changing these children, should be punished for what they have been doing to boys and girls. The Government should not come along and say, "Now you have fought it long enough. You are pretty good fellows, so we will give you double the money for you to do something."

You are more optimistic than I am by saying that you think this bill would be fully funded. It still does not give the de facto people, the urban people, the money that they need. Those are the people who are willing to do something if they only had the money to do it. Senator PELL. If they meet some of the trigger mechanisms, the de facto people do not require court orders.

I agree with you about this initial finding, that it will not go into the de facto areas.

Mr. LUMLEY. Yes.

Senator PELL. Thank you very much, indeed, for your willingness to testify and have an opinion.

Mr. LUMLEY. Thank you, sir, and we will get the material to you that you wanted.

Senator PELL. Good.

The next witness is Howard A. Glickstein, Staff Director, U.S. Commission on Civil Rights.

STATEMENT OF HOWARD A. GLICKSTEIN, STAFF DIRECTOR, U.S. COMMISSION ON CIVIL RIGHTS, ACCOMPANIED BY JONATHAN FLEMING

Mr. GLICKSTEIN. Mr. Chairman, my name is Howard A. Glickstein. I am Staff Director of the U.S. Commission on Civil Rights. I am accompanied by Jonathan Fleming, my assistant.

I appreciate this opportunity to testify before the Subcommittee on Education on S. 3883, the Emergency School Aid Act of 1970.

I was interested in your remarks awhile ago, that this was a controversial bill, and you were having trouble getting people to testify on it, that it required some courage to appear and testify.

But I think the Commission on Civil Rights has never shied away from anything controversial, and I hope, as exemplified by our Chairman, we have shown courage in the things we have done.

The Emergency School Aid Act is the first legislation sponsored by any administration with the specific purpose of providing financial assistance to local school districts for the purpose of eliminating racial isolation, whatever the cause.

As such, the Commission on Civil Rights believes that the Emergency School Aid Act of 1970 deserves the constructive support of all persons who believe that this Nation's future rests on a racially and ethnically integrated society.