the individual is God given and must not be violated-teachings which are shared, of course, by all our great religions.

It is not our purpose in this brief statement to go into any detailed analysis of the provisions of the three major civil rights proposals before this subcommittee. We intend principally to stress the importance of action by Congress to help bring about an orderly compliance with the law of the land, to ease the necessary transition to desegregated public schools, and to preserve the public school system.

We believe that the House of Representatives reflected the will and interests of the American people when it passed the bill, which later became the Civil Rights Act of 1957, by a better than 2-to-1 majority, in the form recommended by the administration. The Senate, however, deleted part III of the bill, which would have given to the Attorney General the same civil and equitable powers for enforcing general civil rights which other parts of the bill gave him with respect to voting rights.

It is now clear that much of the trouble in Little Rock stemmed from local miscalculation regarding the interest, responsibility, and determination of the Federal Government to enforce the law laid down by its courts. Striking part III contributed to this unfortunate miscalculation. It is important, therefore. for Congress to show its determination that constitutional rights should not be vitiated by mob violence or official nullification.

Some students of the Little Rock episode insist that sending Federal troops to Little Rock, however necessary that step was at the moment of decision, was unfortunate in that it polarized and solidified attitudes on two sides of a no man's land. They view this as a case of "too late and too much."

Whether this view is correct or not, it is obvious that it would be helpful were the Federal Government to make it crystal clear before trouble develops that it cannot countenance defiance of the law. The Government's concern is not to coerce into a uniform mold, not to ignore local differences; it is simply to prevent a flouting of the law of the land, and to give aid and counsel to the forces seeking a wise and practical accommodation to that law.

The most comprehensive and affirmative of the proposals before you is S. 810, introduced by Senator Douglas and 16 other Senators, including your chairman. It aims in a constructive way to make available the resources of the Federal Government to communities seeking to comply with the law and needing such assistance. The bill also recognizes that continued, organized defiance of the law can only produce constitutional and social chaos; and therefore it gives to the Federal Government the power to take steps on its own, where necessary, to secure obedience to the mandates of the Constitution. These steps include technical, educational, and financial aid in substantial measure. Only where these aids are declined-and only after negotiation with local authorities fail to secure protection of constitutional rights-is it expected that the Federal Government will take injunctive action to enforce those rights. Also, where a school board has voluntarily instituted a program of desegregation, the Attorney General is given the power to defend it from mob violence and interference.

The administration's program is contained in a number of bills (S. 955 to S. 960) introduced by 11 Republican Senators headed by Senator Dirksen. Like the Douglas bill, the administration package would provide congressional support for the Supreme Court's 1954 decision as "the supreme law of the land" (S. 958). The scope and extent of the program of financial and technical assistance provided under the administration program, however, is much more limited than in the Douglas bill, and no provision is made for Justice Department enforcement powers where school boards persist in flouting the decisions of the Supreme Court.

One of the bills, S. 955, however, does make it a crime for anyone to use force or threats to interfere with the "exercise of rights" or the "performance of duties" prescribed by a Federal court order in school desegregation cases. This provision, it seems to us, should be broadened to cover force or threats designed to interfere with efforts on the part of local officials who move voluntarily to comply with the Supreme Court's decision.

There appears to be no sound reason, either in law or public policy, why a school board which proceeds voluntarily in good faith to discharge its constitutional duty as declared by the Supreme Court should receive less protection against lawless elements than one which refuses to carry out it constitutional duty until a specific court order threatens it with contempt of court. If such Federal protection is to be extended only where there is a specific court decree,

State and local officials will be encouraged to wait for the protective cloak of a court order before complying with the Court's decision. Plainly, considerations of good government and wise policy dictate that Congress should not place a premium on delay and litigation in putting into force constitutional rights. Moreover, Congress has an obligation to protect State officials, and they in turn have a corresponding right to be free from interference in the discharge of their duties imposed by the Federal Constitution. This is a basic Federal right inherent in the Constitution; its enforcement goes to the very existence of the Federal system itself.

That right was expressly recognized in Brewer v. Hoxie School District, 238 F (2d) 91 (1956) where the issue was squarely presented whether a Federal court had the power to enjoin interference by private individuals with a plan of desegregation voluntarily instituted by a school board. The Eighth Circuit Court's answer was unanimously in the affirmative:

"The plaintiffs (school board members) being bound by constitutionally imposed duty and their oaths of office to support the 14th amendment and to accord equal protection of the laws to all persons in their operation of the Hoxie schools must be deemed to have a right, which is a Federal right, to be free from direct interference in the performance of that duty."

The need for such Federal protection was eloquently emphasized last month at the Nashville conference of the Civil Rights Commission which brought together educators from a score of border State communities which have successfully desegregated their school systems. At this conference, the chairman of the Clinton, Tenn., school board declared that he had been unsuccessful, for the most part, in obtaining Federal assistance in enforcing the school desegregation order against lawless elements, although he had tried many time. "We don't ask for a reward for obeying the law," he said, "but if any Federal agency forces us into such an intolerable situation, then we think we have a right to obtain help from the Federal Government."

The third major civil rights bill before this committee, S. 499, introduced by Senator Johnson advances a new idea in this difficult area. It would create a Federal Community Relations Service, which would offer its services in civil rights disputes including disputes over public school desegregation which may threaten peaceful community relations.

It has been a cause for gratification in many liberal quarters that the majority leader, himself a southerner, took the unprecedented step of sponsoring a civil rights bill. We agree with the premise of the bill that the voluntary approach should be used wherever possible to promote compliance with the law. The Douglas and administration bills in the first instance stress local cooperation, conciliation, and voluntary compliance. However, community peace, desirable as it is, cannot be achieved at the expense of a continuing deprivation of constitutional rights. There are those who say the bill purports to do just this.

Senator Johnson, however, has given assurance that the conciliators under the bill must work in conformity with the Court's decision, and we are satisfied that this has been his aim. Any reasonable doubts arising from the language of the bill can and should be removed, however, by spelling out in the bill some guideposts which would make it crystal clear that the purposes to be served by the conciliators are not merely the prevention of strife but the promotion of respect for constitutional rights and preservation of the public school system.

All three bills wisely avoid any suggestion of naked force or Federal fiat. They recognize that in the difficult and delicate field of regulating human relations, the utmost voluntary local concurrence and acquiescence is devoutly to be sought. And, indeed, all of us can be proud of the orderly manner in which school desegregation was accomplished (once the final orders were entered) in Arlington, Norfolk, and Alexandria, Va. What happened in Virginia was a repetition of what already had taken place in other communities around the country and will be repeated in the future in other areas.

While a strong and determined community leadership can accomplish desegregation in an orderly manner, it is essential that the Fed

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eral Government be given the kind of standby authority provided in S. 810 so that it can act wisely and effectively where constitutional rights are being denied and private resources are not adequate to enforce them. S. 810 would not require the Attorney General mechanically to institute a plethora of lawsuits to enforce school desegregation, but would merely arm him with authority to enforce constitutional rights in an appropriate case where all efforts at voluntary compliance have failed. Giving the Federal Government this standy power will make clear the interest and determination of the Federal Government in seeing that the law is enforced and that disorder will not be tolerated. It will deter would-be troublemakers and create an atmosphere in which adjustment to the supreme law of the land. can be achieved calmly and smoothly and without leaving deep-seated scars of bitterness and hostility.

Before concluding, we should like to say a word about the bills to curb the unlawful dynamiting of schools, places of worship, homes, and community centers. These bills, in our view, are not civil rights bills, but law and order bills which enjoy widespread support among Members on both sides of the aisle, as well as on both sides of the Mason-Dixon line.

Two different legislative approaches have been suggested in an effort to cope with the unlawful hate dynamitings; the one embodied in S. 956 (Dirksen) makes it a Federal crime for a person to flee across State lines to avoid arrest or prosecution for a bombing; the other contained in S. 73 (Keating-Javits), S. 188 (Kennedy-Ervin), and S. 499 (Johnson) makes it a crime to ship explosives in interstate commerce for the purpose of bombing a building. Both types of bills have the same objective-that of preserving primary State and local law enforcement responsibility for the investigation of unlawful hate dynamitings and at the same time providing for FBI investigation when such dynamitings do occur. S. 73 and 188 would, however, insure immediate FBI investigation in the event of a dynamiting by creating a rebuttal presumption that if a dynamiting occurs, the explosives were shipped in interstate commerce. In order to obviate any constitutional question, the bills wisely provide that no person may be convicted under the bill unless there is independent evidence to establish that the dynamite was in fact shipped in interstate

commerce.

What Congress does this year will perhaps be decisive in determining whether there will be a new series of September disorders in American public schools, or whether American citizens will take the peaceful, orderly path blazed by Washington and Louisville, by San Antonio and Norfolk, and by scores of other southern communities around the country. For the sake of our national honor and world reputation, for the strength of our public schools and the welfare of our children, Congress must help find a peaceful solution for next September and the Septembers following.

Senator HENNINGS. The next witness is Mr. Irving Ferman, who is the director of the Washington Office of the American Civil Liberties Union.

We are glad to have you here with us this morning, Mr. Ferman. As I suggested to the other witnesses, you may proceed in any manner of your own choosing, reading from a prepared text or sup

plementing your text by comments. You may submit the text for the record; you may make a statement impromptu; as you please.

Before you proceed, I want to note that these hearings were scheduled as morning hearings. It is now afternoon and I have to be on the floor of the Senate very soon. I will have to ask to be excused for a while, at least, in order to go over to act on pending Senate business.

I would appreciate it very much if the Senator, my good friend from North Carolina, Senator Ervin, would preside in my absence. (At this point, Senator Hennings left the hearing room.)

STATEMENT OF IRVING FERMAN, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. FERMAN. In accordance with the previously stated wish of the chairman and at the risk of not being comprehensive, I shall be brief in my remarks and try my best to be responsive to some of the questions raised of the previous witness.

I think the question that we face today is simply what legal controls can we can hope to legislate which would effectively guarantee equality under the law. And I take it the principle of equality under the law is one of those fixed principles which has been alluded to in the previous remarks.

I think that in trying to insure that equality under the law is maintained in our free society we are dealing with an area of human conduct difficult to control in terms of criminal law. To implement the 14th and 15th amendments we have had the experience with the criminal laws adopted after the Civil War making it a Federal crime for State officials to deprive citizens of their constitutional rights. Such criminal laws because of the attitude of the local communities have been exceedingly difficult to enforce.

We have found since the Civil War that in trying to impose a recognizable Federal jurisdiction to assure equality under the law, the criminal process does not work. And I think we, as lawyers and as Americans, dedicated to the proposition that all people should be assured of equal status under the law, regardless of race, color, or creed, have a duty

Senator ERVIN. If I may interrupt, your present argument is based upon the supposition that white people in the South if selected to serve on juries in civil rights cases would not be true to their oath and try the cases according to the evidence, is it not?

Mr. FERMAN. I do not sustain that point of view. I don't think my remarks suggest that point of view.

Senator ERVIN. You stated that the criminal law could not be enforced, if I understood you right.

Mr. FERMAN. I was not confining it, sir, to the experience involving our inability to impose the criminal process.

Senator ERVIN. But that was the argument that was made on the Senate floor in 1957.

Mr. FERMAN. It was never made by me.

Senator ERVIN. All right.

Mr. FERMAN. One of the reasons that I feel

Senator ERVIN. If I may say so, I am glad you do not entertain that opinion.

Mr. FERMAN. I do not think, Senator, it reflects my feeling regarding the adequacy of the criminal process.

I might say one of the reasons that I do not feel as a lawyer, that the criminal process does work is because of its insensitivity to the inextricable social factors involved in this area of human conduct. It is not sensitive to the dilemma of the State officials trying to insure all peoples equal status under the law. And I think we who say that the criminal process has not worked have an obligation to propose new legal techniques which are more sensitive to the problems of the South. I am opposed to those who argue against imposing any new legal controls, and who thereby believe in maintaining on the books a criminal process which I think is offensive to the South.

And, in short, I feel that the deleted title III in the Civil Rights Act of 1957, Senator Ervin, and the counterpart of title III in Senator Douglas' bill, S. 810, which provides the Federal Government with the power to seek preventive relief is more sensitive to the problem of the South, is more moderate than what exists on the books today. And I daresay that it is perhaps one of the most moderate, one of the most sensitive proposals of all suggested to deal with the problem of insuring equality under the law.

I say this with the experience of having lived in the South, and as a member of the bar of a Southern State.

And I think that if the meaning of the injunctive and equitable process were understood, were carefully debated, and the issues were clearly defined, it would receive the support of the American people. I say this because I believe they are sensitive, moderate, and responsive to the web of social factors which make it difficult to impose Federal jurisdiction to insure equal status under the law.

Senator ERVIN. I think the fundamental objection to part VI in the Douglas bill and to the corresponding provision of the bill by Senator Javits, is the fact that an official is deprived of a right retained for other people, the right of trial by jury. The right is preserved for those who commit murders on Federal reservations, for those who peddle narcotics, for those who conspire to overthrow the Government of the United States by force and violence, and for those who violate other Federal criminal laws. But equity procedure is to be perverted to a new field by these bills, so local officers can be deprived of the safeguard inherent in the right of trial by jury.

Mr. FERMAN. I would like to answer your question in this way. First, I beg your pardon in making personal remarks. I have dedicated my whole professional career to civil liberties and freedom. And I have lived my professional life with a commitment to seeing to it that all enjoy the personal guarantees of our Constitution. And I have supported the rights of many people with whom I disagree most violently.

I also have fought for the rights of the jury trial.

In behalf of my organization, I was one of those who resisted the efforts on the part of social scientists to bug jury rooms in order to preserve the sanctity of the right to a jury trial.

I think that the injunctive result that we seek again (a) is responsive to the problem of the State officials; (b) it does not reflect a prejudice toward any particular group in the South.

I would like to answer your question concerning a jury trial in the criminal contempt proceedings following a State official's refusal to