EMERGENCY SCHOOL AID ACT OF 1970

TUESDAY, JUNE 30, 1970

U.S. SENATE,

SUBCOMMITTEE ON EDUCATION

OF THE COMMITTEE ON LABOR AND PUBLIC WELFARE,

Washington, D.C. The subcommittee met at 10:05 a.m., pursuant to call, in room 4232, New Senate Office Building, Senator Claiborne Pell (chairman of the subcommittee) presiding.

Present: Senators Pell (presiding), Randolph, Mondale, Javits, and Dominick.

Staff members present: Stephen J. Wexler, counsel; Richard D. Smith, assistant counsel; Roy H. Millenson, minority professional staff member; and William C. Smith, staff director and Leonard P. Strickman, minority professional staff member, the Senate Select Committee on Equal Employment Opportunities.

Senator PELL. The Subcommittee on Education will come to order. We are continuing our hearing on S. 3883, the Emergency School Aid Act of 1970. The witnesses this morning are Mrs. Marian Wright Edelman of the Washington Research Project Action Council and Miss Frances Sussna, director of the Multi-Culture Institute in San Francisco, Calif.

We will hear first from Mrs. Edelman.

STATEMENT OF MARIAN WRIGHT EDELMAN, WASHINGTON RESEARCH PROJECT ACTION COUNCIL

Senator PELL. I notice you have quite a long statement here. You might care to put it in the record and summarize.

Mrs. EDELMAN. Fine, because it is much too long to read, I think. I will just try to go through in chronological order and pick out the main points that I would like to make this morning.

I am Marian Edelman and I am director of the Washington Research Project which is a group primarily of lawyers engaged in administrative negotiations and research on administrative agency programs and in litigation in order to try to enforce the rights of the poor and minority groups and to insure that Federal programs work on their behalf as they are supposed to. Before that I was with the NAACP legal defense fund in Jackson, Miss., where the main part of our office burden was school desegregation suits.

The issue this morning is Senate 3883, the Emergency School Aid Act of 1970, as it relates to the problems incident to desegregation and racial isolation. I strongly support now, and always have, Federal aid

to education, and I strongly support Federal financial aid to quality integrated education. To the extent that this bill stands for these principles, I support it; however, in its present form I oppose it.

This is based primarily on our experience with title I and with what I see as a lack of a defined goal in this drafted legislation, a lack of a well-developed mechanism for review of project applications and dispersal of money, the lack of an established monitoring system with tough sanctions, and the lack of an operational system of evaluation. Unless these things are cleared up with appropriate safeguards written in the bill, I would continue to oppose it.

I think the first point I would like to make is that I don't think any amount of money that this Congress appropriates is a substitute for strong Federal enforcement policies in the school desegregation area. The absence of a strong stance both in word and in deed by this administration in favor of school desegregation, particularly in the South, which follows the mandates of the Supreme Court in title VI of the Civil Rights Act cannot be rectified by money. This Congress can put in $50 billion and it is not going to make any difference in the amount or the quality of integration that can be achieved.

We simply have to have a stronger enforcement policy at the Federal level which means using title VI fund cutoffs to insure the school districts are brought into line. It means the cessation of sympathizing with the recalcitrant districts, it means tolerating no more delays, it means not coming up with any new rules which are going to result in a situation similar to the Charlotte-Mecklenburg rule.

Senator DOMINICK. I don't mean to be difficult. I previously supported amendments to various civil rights acts which had the effect of cutting off all funds if they were being administered improperly. I woke up one night at about 1 o'clock in the morning with the sudden thought, What are we accomplishing? How are we aiding education for the kids by cutting off the money by which their education is supplied?

Can you give me a little insight on your feeling on this?

Mrs. EDELMAN. Yes; I think there are short-term and long-term goals. Those districts which are most recalcitrant are usually the very districts that have not taken advantage of all the Federal programs such as Federal school lunch, title I, and other programs designed to help the poor and minorities. On the other hand, we put a premium on desegregated education. Some vehicle must be established to insure that the students in those districts get the advantage of a desegregated education, and the most effective tool to do this is title VI cutoffs.

While I do not favor cutting off just for the sake of cutting off, 1 believe in the short-term sanction here which will hopefully be followed if we have the kind of policies that I advocate by losses by the Department of Justice to bring these districts into compliance. One of the things I recommend very strongly is apportioning this money in this bill and that it be set aside for

Senator DOMINICK. That is all very good in theory but we are dealing with kids who are trying to get an education. Now if you cut off the money, how are you helping the kids?

Mrs. EDELMAN. In the short term you are not but on the whole, Senator, my point is the districts.

Senator DOMINICK. I am worried about the kids.

Mrs. EDELMAN. I am worried about the kids, too, taking full advantage of Federal programs across the board. The only way through our experience we have shown that you can bring those districts into compliance and make those districts willing to do more for kids is to use Federal sanctions. For every district that decided to stay out of compliance with title VI many more districts were brought into compliance which has provided greater help for those children.

What I am saying is in order to make sure those children don't suffer very long when the administrative process results in title VI cutoffs, if the Justice Department were to go in promptly as they have authority to go in under the Civil Rights Act of 1964, then it would accomplish both goals. I think what we have to do is not only put just a premium on keeping money going regardless of how it is being used because those districts are the ones that use the money least well for the children we are concerned about, but to make sure that those kids get the advantage of programs through a desegregated education which can come through on the use of administrative process and through use of the Justice Department powers. I think we should have them both.

Unfortunately, what has resulted is that in many instances there are approximately 200 districts in various States that have remained out of compliance for a number of years. One of my recommendations in this act is we should not let them continue not to comply because they are hurting children, and that we should through this money provide for some new system, court appointed counsel or counsel fees, so these people in these noncomplying districts can get the advantage of a desegregated education under the law. That is one of the things I would like to discuss in some detail later.

We are asking these children to suffer a little bit in order to get a greater benefit later. On the whole the districts that are getting these cutoffs are the very ones that have been doing the least for the children anyway. I think we have to use a nasty thing in order to achieve a greater good later on.

The other kinds of things I would like to see this administration doing which it is not doing is for goodness sakes not coming up with any new rules that are going to result in any new delays such as the rule of reasonableness which is the case in Charlotte-Mecklenburg. The administrative standard being applied under title VI is being affected by this decision. I question strongly whether anything is reasonable after 16 years which may result in the denial or delay of constitutional rights to black schoolchildren.

I am happy to see that the Federal Government has now come down against tax exemption for children who attend private schools in various States. I hope that position will continue.

I hope the Justice Department will act more vigorously in seeking more appropriations to bring more suits against those districts that Senator Dominick is concerned with and I am concerned with and which have been out of compliance for years. In many districts there are thousands and thousands of children not getting the benefit of desegregated education and the other Federal programs that were intended for them.

As for the bill itself, there are a lot of us who are extremely skeptical about the bill as it is written and we have very real questions of whether it is going to achieve the kinds of ends that we think it ought to achieve. One of the big problems is we don't see how it is specifically related to achieving desegregation as opposed to being more of a general Federal and to education program.

Now going to the specifics of the bill I turn to page 4 and discuss the problems with the allotments among States. One of the problems I raise is whether or not the Congress wants to set out an allotment which discriminates against those districts who may have taken voluntary actions to desegregate and reward those districts that have been the longest in desegregating. Under the double counting allotment formula here, this is precisely the kind of result you will achieve.

The second basis for that allotment stems from those districts which have been under Federal court order or title 6 proceedings which again will serve to exclude those districts who did not have to be dragged into court, did not have to go through the administrative proceedings, and to punish those districts who have gone about desegregation on their own and who have need for Federal desegregation money. Also as I read the bill as it is currently written, State court order will not be eligible so that a number of large northern urban districts will be punished by not being able to be double counted under this legislation. I think that the Congress should rethink whether this is the kind of priority it wants to draw in determining how money will be spent and whether or not the priority ought to be given to southern school districts that have been waiting and dragging their feet until 1968, 1969, and 1970 and make them the ones who are going to be eligible for the most money under this bill.

My bigger problem is the one of eligibility for financial assistance. Just mentioning first a very small problem, I see that they have a cutoff here in the act of 10,000 minority children as one of the criteria for districts which will be eligible. I question this figure and I tend to believe personally that districts with only 10,000 minority children can integrate without very much difficulty and it is those districts with much larger black populations that are going to need the most help in reorganizing.

Now determining which districts are eligible for aid is the most important area in making this act truly effective. Given the degree of widespread discrimination which we have witnessed in supposedly integrated schools and desegregating school districts, the vagueness and glaring omissions of section 5 lead me to conclude that this act may well be a political sop, for southern school districts especially, to spend freely however they desire.

I would like to pose a question. Are districts eligible to buy portable classrooms to put on white campuses when structurally sound and often newer black schools are available for use, or to institute sophisticated tracking systems based on biased standardized tests which will result in segregated classrooms, or to plant grass, pour concrete for sidewalks and playgrounds, install fluorescent lighting, and put down linoleum floors in formerly black schools now that white students will be attending them, or to hire new teachers after dismissing and demoting black teachers?

It can be said that such discriminatory acts violate title VI of the Civil Rights Act of 1964, and therefore, are automatically conditions rendering districts engaging in them ineligible for any Federal funds. However, this is not really clear in the current legislation or under any guidelines that we have seen in the process of being written.

The Department of HEW has never initiated fund termination. proceedings against any school districts for closing usable black schools or for firing black teachers, and the Department of Justice has intervened and reopened few, if any, court cases where districts are segregating students within individual schools. Elimination of these types of degrading and discriminatory actions-more so than fancy, undefined, new services-is the key to real, successful desegregation.

In order to make sure that funds are not directed into these types of situations, minimal criteria should be drafted which would spell out which districts would be eligible for funds and which not, to insure that priority will be given to those districts who will use it best based on a record of decent effort toward desegregation and to discourage recalcitrant districts from submitting applications. It would be most desirable if some of these criteria were drafted right into the legislation, but at a minimum, detailed guidelines should be developed. These guidelines should exclude from funding:

1. Those school districts still operating under freedom of choice plans;

2. Those school districts with unupdated court order plans or districts with final court orders still subject to appeals by plaintiffs. The final court orders can mean anything, and I would exclude those districts which have not been brought up to full compliance.

MINIMAL CRITERIA

Senator DOMINICK. Mrs. Edelman, may I interrupt again?
Mrs. EDELMAN. Yes, sir.

Senator DOMINICK. On page 7 of your statement you say:

Minimal criteria should be drafted which would spell out which districts would be eligible for funds and which not, to insure that priority will be given to those districts who will use it best based on a record of decent effort toward desegregation and to discourage recalcitrant districts from submitting applications. Once again I must ask, are we really getting at the problem with this approach? Are we helping the children? Where are these districts located?

Mrs. EDELMAN. There are many, many districts primarily, the ones I am talking about.

Senator DOMINICK. Whereabouts, in the North?

Mrs. EDELMAN. In the South. If you want it, Senator, I can provide for the committee those districts which I think are guilty of the practices I would render ineligible.

Senator DOMINICK. I was thinking of the converts. Which are the districts which will use the funds to the best advantage?

Mrs. EDELMAN. I think we could find that out by simply looking at HEW records which I hope they are good enough to show us where the districts are committing the practices which I say should not be tolerated here.

Senator DOMINICK. Which districts would you assume those to be?