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• UNITED STATES OF AMERICA ~ongrcssional1Rc(ord

d PROCEEDINGS AND DEBATES OF THE 92 CONGRESS FIRST SESSION

VOLUME 117-PART 9

APRIL 20, 1971, TO APRIL 27, 1971 (PAGES 10871 TO 12302)

UNITED STATES GOVERNMENT PRINTING OFFICE, WASHINGTON, 1971 ',11338 CONGRESSIONAL RECORD-... SENAT¥ in an international effort tobuUd pros­ and secondary Education Act of 1965. ~only .. ;va].1executive session, the Presiding to recover these fees for noncompliance unless he is able to force the dispute to Officer (Mr. TAFT) laid before the Sen­ with this bill, title 1 of the Elementary final court disposition so that he will be ate a message from the President of the and Secondary Education Act, or viola- entitled to recover attorneys' fees. United States submitting sundry nomi­ tions of title VI of the Civil Rights Act of On the other side of the coin, Mr. Pres­ nations which were referred to the ap­ 1964, and the 14th amendment, insofar as ident, a poor school district threatened propriate committees. they apply to elementary and secondary by a parent might well comply with de­ (For nominations reeeived today, see education. mands regardless of their merit rather the end of Senate proceedings,) 1\11'. President, section 11 contains no than contest them and risk the incurring language to control the kinds of suits of heavy attorneys' expenses. brought by private attorneys but rather Seetion 11 also tends to put the entire EMERGENCY SCHOOL AID AND it leaves the whole question of resource burden of school desegregation litigation QUALITY INTEGRATED EDUCA­ allocation to the whim. of priVate liti- on the already overburdened Federal TION ACT OF 1971 gants. To qualify' for "reasonable attor- courts. The Senate continued with the con­ neys' fees" suits.need net establish a Many suits for enforcementoUhe 14th sideration of the bill (S. 1557) to provide new principle of laW', need not clarify a amendment with respect to the operation fmancial assistance to local educational previously neglected al'ea, need. net be of public schools are now litigated in agencies in order to establish equal edu­ a part of a coordinated approach,or State courts, particUlarly in the North cational opportunities for all children, even avoid duplication, Reeent legisla- and West where some States have stricter and for other purposes. tion, such as title II-public accommo- nondiscrimination laws than the Federal AMENDMENT NO. 43 datians-and title VII-equal employ- statutes. But since attorney fees are to mcnt~of the Civil Rights Act of 1964, bemade available only in Federal courts, Mr. DOMINICK. Mr. President, I call and title VIII~fair housing-of the ,Potential litigants would have enor­ 'up my Amen@1ent No. 43 and ask that im it be,stated. ',' Civil Righw Act of 1968, alloW's the court .mo.us incentive. to sue there under section "in its discretion" to asse::;s the U.S. Gov- 11 .. The PRESIDING OFFICER (Mr. ernment reasonable attorneys' fees "the ' One cannot' assume that the above­ TAFT) . The amendment will be stated. same as a ,priva.te person,~' This language discussed abuses can be avoided or their The assistant legislative clerk read as is sUbstantially. different from the sec- effect nullified by treating attorneys' fees follows; . , On 'page 3, Hne '21, strike out Hnes 21 tion'11 langUl:lge whioh allows reimburse- as a matter of seeondary lluportance to through line 24. mcnt if the c;OUl't finds that "the pro- be .largely ignored. Out of Illlpropor­ On page 32, llne 8, strike out throughl1ne ceedings were necessary to bring about tion to its importance, seetion 11 i ls given 7, on page 33. compliance." Section.!1 preempts such paramount fundingpriOlities which treat Redesignate the succeeding. sections and discretionary <;ogrt iiuthQrity and as- it asa single most important section in all references thereto accordingly. sumes that legal fees should be assessed, the bill. In very explicit language which Mr. PELL. Mr. President, will the Sen­ that the litigant'fi cause was meritori- was mysteriously lacking when the scope ator from Colorado yield? ous, and that the plaintiff .is not finan- of the section was being defillE!d, the re~ Mr. DOMINICK. I yield. cially able or shoJ,lld not be financially serve fund for attorneys' fees is to receive responsible for attorneys' fees. Also it $5 million through fiscal year 1972 and Mr. PELL. Mr. President, in view of must be noted that the attorneys' .fees $10 million more through fiscal year 1973. the fact that I supported the amendment authorized underthe 1964 and 1968 Civil The bill contains the above language of the Senator from Colorado iIi' the Rights Acts were for suits norma]ly rather than the somewhat misleading committee and intend to vote for it on brought against private persons and not majority rcport:figure of. 1 percent of floor of the Senate, I believe that it for, suits against tax-silpported school the funds authorized under the act. Five would not be proper for me to assign the districts, States~ and Federal ,agencies. million dollars and $10 million repre- time on the pending amendment and, Additionally, Mr. President; seCtion 11 sent ,1 percent of the total authorization for that reason, I would ask the distin­ language provides that the United States levels for,11s<;al year1972 and.fisCal year gUished Senator from Minnesota (Mr. must be joined as a party. to all section .1973, lJutthe attQrney fee reseive fund is MONDHE)-who is most interested in 11 actions for the PUl;PQSe of. detei:mln- to receive the spe<;tfied anlOunt regardless this amendment-if he would assign the ~chool time. ing the appropriateness of the attor- of .whether complyini districts re­ ney's fee assess~d.. ,,"., .... ceive a cent. AlI.otller provisions of the Mr. MONDAtE. I wouldlle giitdto do thrt . . This is the language that was 'added bill are funded on a percentage basis con­ in "the committee b;y the distinguishedtingCIlt upon .• appropriations.. Addition­ The PRESIDING OFFICER. Without Senator from ,New York (Mr. JAVITS) . allY', all seetion'n' funds are 'to remain objection, the'time will beassigried by This language should be made discre- available until e~pended whel:eas most the Senator from Minnesota. ' ~i~!?:~ry rip tile J1~rt of tl1.P Urii~ed Sfates other provislon.s iIi the bill are funded Mr. DOMINICK. Mr. President, I yIeld Jqlnmg asA party. OtherWise, it would only through the succeeding fiscal year myself 10 minutes. . cause' an 'unjustified ovel'burdenilig.of for which they are appropriate\i. It put The PRESIDING OFFI.CER. The Sen­ the alrea\ly busy Justice Department with the pgure of $15 million in proper per­ ator. from Colorado Js reCognized for 10 many inconseql.wntia1 section 11 suits., spective, one must realize that the annual minutes. '. '. . To eon1PquI1 d. further the problems of bUdget for t.he education!ll' ~ection ofthe ~iIr. DOMINICK. Mr. President"my unccntrolled attorney fee. reimbui:se~'" CiviloRig:hts' Divil)i.on, p.~partmellt of Jus­ amendment to strike section 11 is not men,ts,- section. 11 .extends., ~coverage to tice, is af>I>ro."irriatelY $1 •milllon-one- complicated, nr,metbele.ss· ithgs',some elementary anil,seconqary education,dis- ,fift~enth ofWhitt is in the bilL. . ' substance to it which I think is extremely crimination,suits IJrou,~ht lIDdertitleVI . Mr.presiden~, perhaps some of the imp:Jrtant~ .' '. '. ' ."', '"' , of the 1964 Civil Rights Actor tile 14th above abuses cotild ,be endured' if there Under thepresent larigl..l.age oflhebm p,mendment a)1dti:1 title loft.he Elemen. were some compelling reason forsection there. is aset-asideof$15m111ion,for tary and Seco:hd9.rY 'E.ducatiQIiAet of 11, b1,ltJhere is nokJ;>otentia1 seaion 11 attomeys who bring successful suits not IS65.InclusiQn 'of"title 'I"WOuld 'expand plaintiffs' have, access ,to' more legal as­ only under this bill, but also. on most the coverfl~e:of~ectiqn.l1,.to .alli5t4QO sistan.ce than ·~ostprivatelit{~ants.Sec­ other bHIs dealing .with schilOI' integra~ school ?istricts l;e'ce~v}n€( ~it1e I aid,.~.~ tioh 407(a)of the ~iVu Rights Act of tion, as well as title I of the Elementary DespIte the good mtentlOn of encour- 1964 provides that the Attorney General Avril 21,1971 CONG~SSIONAL'RECORD-SENATE 11339 is authorized, to institute a civil action day's Supreme Court decision apply the Mr. President, I ask unanimous con­ againskthe sclwolboard on behalf of a same 'law to every community in the sent that the text of those fee provisions complaining pti.rent if the school board country: ' be printed in the RECORD. is depriving the parent's child of the '!'he reason for the confusion, in my There being no objection, the material equal protection'of the laws and if the opihion, is that the standard policy of the was ordered to be printed in the RECORD, complaintfs meritorious~ the complain­ Deparj;ments of Justice and Health, Edu­ as follows: ahts areunab~e'to initiate and"maintam cation, and \Velfare has been to concen­ TEXT OF' ATTORNEYS' FEES PROVISIONS proce~dings appropriate legal: for re­ trate their activities primarily, if not ex­ CIVIL RIGHTS ACT OF 1964 lief, and the institution of the action will clusively, on the traditional dual school ~.ducation , Title II (Public Accommodations), Sec­ m!J,terially further public de­ systems as they were found in the South. tion 204 (bF- segregation. Since passage of the 1964 In fact, .in my opinion and in the opinion "In any action commenced pursuant to Civil Rights Act; the Department of Jus"; of many others, much of the so-called de thIs subchapter, the court, in Its dIscretIon, tice has' filed more than 111 school de­ ..facto Ilcgregation found iIl the North and may allow the prevaillng party, other than scgregadon'suits under' title IV of the west," upon, close examination would the United States, a reasonable attorney's p,ct; Additi0Ilaliy, theDepartmentofJus­ prove to have as its base some form or fee as part of the c:>sts, and the UnIted States tice has intervened, as a party plaintiff shall be lIable for costs the same as a prIvate forms of official discrimination, which person." pursuant to ,title IX, ill, 47 additional wouId make it subject to the same 14th Title VII (Equal Employment), Bec,tlon schOOl desegregation suits:;' amendment remedies and the same law 706(k)- Mr. President, section 215 of the Eco­ which is being used to eliminate the tra­ "In any actIon or proceedIng under thIs nomic Opportunity Amendments of 1966 ditional dual school systems of the South. SUbchapter the court, In its dIscretion, may provides' "legal'adviee and legal 'tepre"; HoweVer, we have no such vigorous en­ allow the prevalllng party; other than the sentatlanto,' persons ,when they' are un­ forcementpollcyeither in the South or CommIssIon or the UnIted States, a reason­ able, to afford, the services of Ii private eL<,ev, here, nor do \;;e have such a pol­ able attorney's fees as part of the costs, and attorneY'~through'the,OEO legal serv­ the Commlslsol1 and the UnIted States shall icy 'which includes discrimination be liable for costs the same as a private per­ ices program, 4lso, potential complain,.. against all minorities, not just black, son." ants can institute termination proceed­ but also Sp::mish speaking, Oriental, CIVIL RIGHTS ACT OF 1968 ings through C'administrativechannels American Indian, Portuguese and TItie VIII (FaIr HousIng) , Section 821 (e) ­ provided' for'by title· VI of' the' Civil others.' ' , "The court may ..• award ... court costs Rights Act of 1964,agaiIlst'federally'as'J The truth of it is thr.t there is a ma­ and reasonable attorneys fees In the care of a sisted schools which'practice discrimina':: jar; enormOus gaping Jaw enforcement prevalling plaIntiff: PrOVided, that the saId tion.',In addition; Parents of. children crisfs in' tli¢fie:d of civil right". plaIntiff In the opinIon of the court is not di~criIl1inlltedj;-agai.nstr have,!~Gcess to . 1:~1is 'cFlsis is found in the South as able to assume saId attorneys' fees." many special private funds. such· as well as ,the North and West. We have Mr. MOl'."DALE. Mr. pi:esident, section the NAACP LegalDefense FJ.md and the hatl widespread reports of wholesale fir­ 11 tries to deal nationa!ly with the law­ Lawyers Consti'tutiq.n,a( Defense ,Com- ing- nnd demotion of black teachers. We enforcen1lmt crisis to which I made refer­ mittee.c: " " have: had reports of th(>. transfer of pub­ ence, by bringing to bear a priV&te law­ In summary;'Mr. President, section'11 lic school property to segregation acad­ enforcement remedy in light of the shOuld be deletetiln its entirety to avoid erilies. We have had. reports of segrega~ apparent futility of prevailing upon the subsidizing private lawyers. Sect~oa 11 tion orschoolchildrel1 by race in. school­ Department of Justice and the Depart­ fails to control or delineate the scope of roomS; and many other evidences of dis­ ment'of Health, Education, and Welfare coverage,:d1' ,the resource priorities for c'riminatory practices which, in my opin­ to do their jobs. Time and time again I rein'lbursement; it discriminates in favor, ion, ciearly violate the proscription of urged them to pursue a n3tional enforce­ of the complainant to the detriment of the Hth amendment. ment policy, but up to this point it has the defendant: it contains disproportion­ III the. South, North, and West, the been in vain. ate priorities and funding levels; and it law is not beiliff enforced. I was appalled We have precedent. Under the Equal is unnecessary as adequate remedies are to find that the, Department of Justice Employment Act, dealing with fair em­ available under present laws. spends $1 millicn, a. year on the enforce­ ployment, an aggrieved party can bring The PRESI[)ING OFFICER. The Chair ment of school desegregation laws in this an action; and, if successful, recover rea­ inquires whether the Senator fl'omColo­ country. sonable attorneys' fees from the defend­ rado wishes to have. his amendment con­ Mr. President, I ask unanimous con­ ant. sidered en·bloe. sent to have printed, at this point in the Under the Public Accommodations Act, Mr~ DOMINICK. I do. RECORD a tabulation showing that pres­ an aggrievedparty can bring an action 'The PRESIDING OFFICER. The ently only 31 I)epa::rtment of Justice at­ against a discriminating owner of a pub­ arilendmentwillc be considered en bloc. torneys .de,vote their attention to the lic accommodation and, if successful, :Mr'.nOMINIC~: Mr. President, I re­ subject, ,with ,respect to the entire Na- collect reasonable attorneys' fees and serve the remainder of my time. ' tion., ' costs from the defendant. . The PRESII>ING OFFICER. The Sen" There ' being~ no objection,' the tabu­ The PRESIDING OFFICER. The time ator from Minnesota is recogniZed. lation was ordered to be printed in the of the Senator has expired. ,Mr., MONDALE. MrJ;.President; the RECORD, as follows: Mr. MOND~".LE. :Mr. President, I yield Elen~teh~just acted on the amendment JusticebepClTtmcnt ,Education Section, myself 3 additional minutes. of the Senator from Connecticut; whicn. Civil Rights Division . ThePRESIDING OFFICER. The Sen­ Present personnel: sought to deal with segregation of school­ Attorneys _c______31 ator is recognized for 3 additional Ghildren throughout, the land with a mL'lutes. broad metropolitap approach. Cleri~l ll.nd others "______23 Mr. MONDALE. Mr. President, what is ..One of the arguments underlining the Totll.l _:,.,._, -'______54 needed in light of this compelling and ne~d for that measure was the undoubted unarguable evidence of law violations, of fact that segregation of minority group Fiscal ~'ear 1972:' the f!:.ilure to enforce the lav; on a na­ children North, East, 'and West is grow­ Additlonal attorneys c _ 5 tional basis in the South, North, East, ingand that-it is,probably now greater AddItional clerIcaL _ 2 and West, is the application of this type than that existing inthe South. ' ofremedy. Total, addItional staff _ In no sense can it be said that in any 7 We have broad Hnd wide support be­ f~iion Of the country)s there a satisfac­ Totalrequest ,61 hind t!1is measure. wh;,eh was adopted by tory: response to, the Supreme Court de.. a strong majority cf the C,)mmittee on cision of 17 years ago requiring the elimi-; Mr. MOND.ALE. Under title II-public Labor gnd Publi~ Welfare, The vote was nation of official discrln1inationm' thiS accommodations-and title VII-equal ~O to 5, 'with b;p'lrtis:m support. cotintnr. One of the key points ofconfu­ employment-as well as under the Fair , :Mr. President, the American Federa­ sIon; if)' my 'opinion, is' the" feeliIlg that' Housing' Act of 1968, a plaintiff may tion of Teachers strongly endorsed this thete is one law 'for the South and an­ similarly'recover the cost of attorneys' proposal.and argued that section 11 must other law for the rest of thec6Qntry. In fees in cases involving violations of those be adopted. Mrs. Helen Bain, president of J laws. ' the National EducationAssbciatiQn, sim- fact, th(Fl4tn amendment and:yester':" , , C'; t~'_:T·9:f~-:;'f} ;.:~ If -~r._,;·-· I "l~'· 5';' 11340 CONGRESSIONAL RECORD-SENATE Uarly testified in strong terms for the vate, and private lawyers w1I1 be needed. Sec­ This is a vital prov1sion and"onewWch adoption of section 1l. tion 11 will thus give parents and children of Common Cause strongly urges the Subcom­ minority races a new and effective means Of mittee to retain in any bllI it reports. In­ Mr. Clarence Mitchell, director of the challenging instances of racial dlscr1mlnation deed, a similar provision in elfect after pas­ NAACP, testified: which have gone unattended too long. sage of the 1964 Civil Rights Act would have We support payment of lawyers fees as I therefore strongly support section 11 of alleviated, at a much earller date, many of provided in the Mondale blll.... In terms S.683. the problems stlII necessarily confronted by of time, it can cost enormous SUIIlti of money Sincerely yours. the proposed legislatIon." The American Clv­ to exhaust the process of going all the way JOHN W. DOUGLAS, 11 Liberties Union stated: from the U.S. district courts up to the Su­ President, National Legal Aid and De­ Experience under the pUbIlc accommoda­ preme Court. The cost could run into the fender Association. tion and employment discrimination sections thousands of dollars, all of which, of course, of the CivlI Rights Act of 1964 (Title II and has to be paid for by private people. Mr. MONDALE. Mr. President. two VII), which contain simllar reimbursement additional letters of support from law Finally, Mrs. Marian Edeleman, Mrs. provisions, indicate that the pollcies of those school deans are printed also in the acts have been significantly furthered by Ruby Martin, and Mr. Richard Warden, hearings at pages 715 and 716. I ask providing private attorneys willing to Iltigate three individuals who were largely re­ unanimous consent that the letters be to enforce the acts on behalf of poor people sponsible for the nonprofit organizations printed in the RECORD. the economic basis for doing so. Moreover, evaluation report on the expenditure of There being no objection, the letters the Justice Department is not able to pollce emergency school assistance program every school district in the South. The his­ were ordered to be printed in the RECORD, tory of school desegregation Iltigation is, for funds, stated with respect to section 11 as follows: . authorizing funds for reimbursement of the most part. one of parallel efforts of gov­ UNIVERSITY OF CALIFORNIA, BERKELEY, ernment and private lawyers. Unquestitm­ attorneys' fees in successful lawsuits: SCHOOL OF LAw (BOALT HALL), ably, were the government alone carrying We enthusiastically endorse this provision Berkeley, Calif., March 15, 1971. the burden of school desegregation Iltigation, without reservation. Re attorneys' fees in desegregation and re­ for less progress would have been made In Mr. President, the National Legal Aid lated suits--sectlon 11 of S. 3883. this area. In order to insure the maximum DEAR SENATOR MONDALE: I have recently elfective enforcement of the Act, and the and Defender Association supported this learned of your continuing interest in the continued involvement of private attorneys provision. I ask unanimous consent that reimbursement of attorneys' fees and costs in this area, they must be provided the the letter appearing on page 713 of the in successful Iltigatlon under Title I of the wherewithall to litigate on behalf of those hearing record be. printed in the RECORD. Elementary and secondary Education A{lt of persons who are unable to hire attorneys to There being no objection, the letter 1965 and Title VI of the CivlI Rights Act of enforce their public rights. was ordered to be pi'inted in the RECORD, 1964. and of your plan to reintroduce a provision on that SUbject in the current ses­ The League of ·Women Voters of the as follows: sion of Congress. United States also filed a statement. The NATIONAL LEGAL AID AND I am writing to express my support for League stated: DEFENDER ASSOCIATION, such a measure and hopefUlly to encourage The League also favors the 3 % funds set Ohicago, Ill., March 1, 1971. you to go forward with this proposal. Pri­ aside for the reimbursement' of attorneys' Senator WALTER F. MONDALE, vate enforcement of Individual rights and fees reSUlting from lawsuits to protect the U.s. Senate, legislative pollcy is vitally important in this rights of citizens under this program and Washington, D.O. area, and the recovery of attorneys' fees under Title VI of the Civil Rights Act, the DEAR SENATOR MoNDALE: I am writing this represents a reasonable and valld means of 14th Amendment and Title I of ESEA. Our letter in response to your request for an ex­ combating a serious deterrent to the bringing support for this provision derives from our pression of views on Section 11 of Senate Blll of an already uninviting form of litigation. firm support of the right of the poor for S.683. I respectfully urge you to reintroduce this equal access to the legal system and from our School desegregation suits are always com­ provision and hope that you wlll be success­ conviction that orderly integration and qual­ plex, time-consuming and expensIve, but ful. ity education will be elfected faster if 'the lawyers who represent minority cUents are al­ Sincerely, poor and aided in theIr access to the legal most never paid for their work either by their EDWARD C. HALBACH, Jr., Dean. system. clients or by court order-even when they win. This means, as a practical matter. that STANFORD SCHOOL OF LAw. Finally, the National Council of Jewish the vast majority of lawyers who have been Stanford, Calij., March 12, 1971. Women also supported the attorneys' able to take on such suits have been support­ Han. WALTER F. MONDALE, fees provision. Their statement is con- ed by foundations such as the NAACP Legal U.S. Senate, tained at page 738 of the hearings. . Defense Fund. Those lawyers work princIpal­ Washington, D.O. Mr. President, that is the record ly in the South and they are overextended. DEAR SENATOR MONDALE: I have recently of hearings on the bill.. But I.would They cannot handle all the cases of discrimi­ become aware of the provision for the pay- nation In educational faclllties. ment of plaintiffs' attorneys' fees oontained like to quote from the testimony Section 11 of S. 683 (the. "QuaUty Inte­ in the Emergency School Assistance Act of of six school superintendents from Cali­ grated Education Act of 1971") would help to 1970 as reported out last December by the fornia ;in a hearing held by the Select rectify this situation and to fill a gap in ex­ Education Subcommittee to the Senate Com- Committee on Equal Educational Qppor­ isting legal services. That Section would re­ mittee on Labor and PubIlc Welfare (Sec- tUnity in·San Francisco on March '6. I quire courts to award attorneys' fees for suc­ tions 3 (b) (1) (C) and 11 Of S. 3883). asked the school superintendents wheth- cessful Utigation pertaining to elementary Obviously greater efforts are needed·to er they would or would not agree that it and secondary education under Title I of the find ways to protect the rights of chlldren woul.d be helpful, if there were Ii. provi-. Elementary and Secondary Education Act of and .teachers to freedom from racial dis­ 1965, Title VI of the Civil Rights Act of 1964, crimination in the pubIlo schools. Private sian in this bill setting aside; Federal or the Fourteenth Amendment to the Con­ lltigation by those injured by breach of legal funds to pay attorneys' fees arid costs stitution. requirements is one of the most efficient. upon the conclusion of suCcessful law...; The fee provision will not make the bring­ decentraIlzed and economical methods for suits asserting constitutional rights·in ing of school discrimination cases particular­ protecting thOse rights. But such Iltigation school systems. Let me quote from the ly attractive from a financial viewpoint-it often Is lengthy and therefore expensive. testimony of Dr. J. Russell Kent,.super­ will only make it possible for more private The Senate SUbcommittee's provision would . t d t f S M t . C . t· Clif at.torneys to work on them. The legislation provide an elfective and practical way of en- In en en a an a eo. oun Y'. a.: prOVides only for "reasonable" fees. which Is couraging private action in reinforcement of I think the Legal Aid Society in our comity virtually the same language appearing in the pubIlc interest. Private litigation can- has been a very constructive influence ... I both Title II (pulJUc accommodations) and not of course serve as a substitute for en- think the lssues they have brought up have Title VII (employment discrimination) of for~ement eff~rts by pUblic agencies. But .. led to a better definition, .abetter aware­ the Civil Rights Act of 1964. In cases arising private Iltigation can effectively and respon- ness on the part of the problems ;we~ace. under those titles, courts have had no dlffi­ slbly supplement those elforts. and I think this has been a constructive culty in determining appropriate fees after I hope that you will reintroduce the at- influence. Sure, I have three lawsuits pend­ examining pertinent materials. torneys' fees provision in the present session ing (against our school system). right. now, The present Administration has deter­ and urge you to do so. but. I a.m glad that we have them. mined. that school desegregation issues Sincerely. Mr. Presid~nt, the cost of these pri- should be decided In federal courts, and not BAYLESS I\fANNING, Dean. vate lawsuits are very great. It is\to be through administrative action under Title VI of the CiVil Rights Act of 1964. This means Mr. MQNDALE. Mr. President, we have observed that practically all the moneys that more lawyers wlll be needed to under­ also received support from "Common being sp~AHtoday by school districts to take the major lltlgation which must ensue. Cause," with respect to the attorneys' resist the reach of tile Constitution are Obviously. most of the litigation wl1l be pri- fees provision. Common Cause stated: public funds. Section 11 is designed to April 21, 1971 CONGRESSIONAL RECORD - SENATE 11341 equalize,- tq some extent, the disparity The provision under consideration would poorly drawn sections to expend $15 mil­ of resources between private persons and certainly help to insure the enforcement of lion of taxpayer money, regardless of public agencies. The typical costs of law­ the constitutional rights 01 minorities and who the judgment is against. The Federal would give such claimants financial standing Government would pay the attorney's suits are set forth.with regard to a law­ in terms 01 ab1l1ty to pay for competent suit in Denver, Colo. cov.nsel which would put the claimants on fees and cost. Mr. President, I ask unanimous con­ more of a par With the SChool District or Obviously school superintendents sent to have printed in the RECORD a let­ other governmental agencies. It is unrealistic would like to have that proviso because ter riom the firm of,Holland & Hart set­ to expect that such private entities as the they do not want their school boards ting for~h some qf those details. Legal Defense Fund.and local private con­ to have to pay these fees. The precedent . There being no objection, the letter tributions can continue to fund these cases, of the Senator from Minnesota with re­ was ordered to be printed in the RECORD, particularly should the pace of litigation spect to fair employment and the legis­ in the north accelerate. lation we' considered last year on guar­ as follows: . We of course are strongly in favor of sen­ HOLLAND & HART, ator Mondale's am~ndment, and would be antee warrantees, all of these authorize ATTORNEYS AT LAW, .. happy to assist you, the payment of attorney's fees by the Denver. Colo., December 4. 1970. Very truly yours, losing party. Mr. BERTRAM W. CARP, GORDON G. GREINER. . Now, this provision does not authorize Select Committee 01 Equal Educational Op­ the payment of attorneY'S fees by the portunity. O!d Senate Office Building. Washington. D.C, .' • . Total time losing party. As a matter of fact, it would Total charge per encourage school districts throughout DEAR MR. CARP: Ai> We discUssed on the hours month telephone earHer today, I have enclosed a Year and month the United states to violate some sec­ restime by month of the hours and cor­ tions of title I, if they wanted to, be­ responding' time charges Incurred with re­ 1969: June .. _" _. 224.5 $7,573.20 cause they could sit back and the super­ spect to the efforts of attorneys In this firm July._ ....._.. " _ _. __ 546.3 19,377.40 intendent could say to his board, "Do in the case.. of Keyes, et al. vs. School Dis­ AugusL_ .. _._. . _ . 250.0 8,635.20 not worry about it. If we lose. the Fed­ trict No.1. Denver. Colorado. et al. You will SeptembeL.. _._ ,.__ ._ .._. 146.8 5,624.00 note that the time to date totals 2909.2 hours, October._ _ _ .. _ 131. 4 5,146.60 eral Government will pick up the tab and NovembeL __ 148.4 5,896.00 pay the plaintiff and the costs." valued at, our normaL rates at $109,498.20. DecembeL _ _ _._._. 149.6 5.883.00 In addition, my co-counsel Craig Barnes re­ 1970: The point I make is if you want to celved'some $20,000 In partial payment for January. .. " _.. __ ._...... 222.4 8,879.80 write this properly let us say the defend­ his services In the case and has probably February_. __ . '" ..".._.._.. _.. _ 278.0 10,882.20 ant will pay the cost and the fees; or March .._. __ ._ .. _•... __ . __ 63.7 2.507.00 In excess of between $20,000 to $40,000 in ApriL _. 96.4 3.797.80 let us say the responsibility of the local unbllled time at this juncture. He is out May..._._._. _._._. ... 143.9 5,670.00 school board is to pay; but why the Fed­ of the cl~y and I was unable to reach him June . _._._., .. ." __ . .. 56.7 2,238.40 .to confirm these figures. Mr. Barnes .was July_. __ •..-.-.-- -.-..--.-- 153.2 5.699.40 eral Government? In many instances it AogusL .. _ _...... 202.7 7.840.60 will not be a party. The only reason it paid from funds,'raised lOcally thtough September..'. __ : _.. _. __ .__ 50.4 2,014.80 donations. In. addition, from time to time OctobeL._._ .. _ _ _._. 44.8 1,842.80 will be in Federal court is because sec­ from five to ,ten lawyers in other firms in tion 11 requires it to be in court for the the 'city volunteered their time to assist us Total_. .. _ .. . _.. 2,909.2 109,498.20 attorney to collect his fees and the court In the case. We have no idea of the tOtal to get its costs. time spent by these volunteers, but I would There is another thing in here that is estimate that It represents another $15,000 Mr. DOMINICK. Mr. President, I yield to $25,000. myself 2 minutes and then I shall yield very amazing. It must be brought to a The chronology of the case was as fOllOWS: to the Senator from Kentucky. jUdgment. 1. June 19, 1969-Complaint filed. - The PRESIDING OFFICER. The Sen­ In other words, there could be no ef­ 2. July 16 through July 22, 1969~hearing ator from Colorado is recognized for 2 fort, after a lawyer has put in 6 months, on Preliminary Injunction, minutes. 1 year, 2 years, 5 years, if the board 3. July 23, 1969~ral Findings of Fact and Mr. DOMINICK. Mr. President, I was says, "Let us sit down and solve the ConclU&1ons of Law. . problem. I think we can solve it within 4. July 31, .1969-Memorandum Opinion happy to hear the Senator from Min­ and Order and Preliminary Injunction. nesota refer to my former law firm of the framework of the law." The attorney 5. August' 14, 196~upplemental Find- Holland and Hart. One of my former looks at the board and says, "It is not a ings. . partners was the successful plaintiff's solvable case." Why would he say. "It is 6. SUbsequent to the supplemental find­ lawyer in the case referred to. I am sure not a solvable case"? Because the only Ings the defendants moved in the Court of they are happy to have money set aside way he can receive his pay and the only Appeals fora stay of the preliminary In­ to have their fees paid. I do not think way the courts can be paid is through junction. This stay was ultimately granted that is sufficient reason for the taxpay­ one simple prccedure-he must bring it by the Court of Appeals for the 10th Circuit to a final judgment. on August 27, 1969, and an appeal to the Su­ ers to foot the bill for $15 million in con­ preme Court to vacate the stay was Immedi­ nection with desegregation suits around This cannot conceivably make sense. ately prosecuted, and on August 29, 1969, Mr. the COWltry. It cannot make sense that we say to the Justice Brennan, Acting Circuit Justice, va­ I do not think there is cause to say Federal Government, "Somebody else cated the stay. The schools subsequently that because the Department of Justice violates the law, somebody else is guilty opened on September 2, with the preliminary has been complying with the law, which of a violation, somebody else brings mit Injunction In force. provides remedies only for violations within the Federal court system. A judg­ 7. The trial. on the merits commenced in February, 1970, taking 14 trial days. where there is a State supported dual ment is rendered against him. Yet you, 8. On March 21, 1970, the trial court is­ school system, that they are concentrat­ the Federal Government, did not violate sued Its Memorandum Opinion and Order. ing on the South. They have also filed the law. but you shall pay the attorney's SUbsequently a separate hearing on relief suits in other areas of the country. In fees and you shall pay the costs." taking 4 days in May was held, resulting one instance they tried to intervene in a That is a brand new one. With all the In the court's decision on remedy dated May Denver SUit, and also suits in Detroit and new precedents that the Senator from 21, 1970. Indiana. So they are not concentrating Minnesota has talked about whereby 9. Subsequently the defendants moved in their efforts'exclusively in the South. fees can be levied against a losing party, the trial court and Court of Appeals for a But I was happy to have the Senator they have not said that the Federal Gov­ stay, the motions being denied in each In­ stance. bring this up and I am happy to be able ernment is the losing party. It is the 10. Thereafter the Court of Appeals set to say I have a great deal of affection for party that lost the decision. We find here up an expedited briefing schedule and briefs myoId firm. They are a good group of that we are penalizing Federal taxpayers on appeal.and cross-appeal were led In Au­ people and they are good lav.-yers. I am to the tune of $15 million under section gust. and the Court of Apepals for the 10th happy they won but I do not want the 11 Wlder the circumstances of a violation CircUit heard oral argument on the case on general taxpayers to pay their fees. by someone other than the Federal Gov­ August 18. I yield to the Senator from Kentucky. ernment, and yet it must bear the burden. 11. The case as of this wrlUng has been But we say to the people in the other fUlly submitted and pending before the 10th Mr. COOK. Mr. President, I listened Circuit since August 18. We assume that the "'ith a great deal of interest to the state­ 49 States, "You have to pay a lav.-yer's court Is awaiting the decision 01 the Supreme ments of the Senator from Minnesota, fee when a school district in Minnesota Court on the cases argued early in October. What bothers me is that probably sec­ violates the law under title I." Why not !>ut have no Information ~ confirm this. tionll would constitute one of the most the school district in Minnesota? Why coNGRESSIONAL RECORD -." SENATE bear~ the'bur~ VISIT TO'TIlE SENATE BY DISTIN­ should the other 49 states ~.'.' n,ts~ tl.. v.'t S\lC...•rp,~ 'c.·.Rf;,}.'.*..l\h!.ElEl.,, ~,m.•.• ,,:..,.n,!l.\.n.',' GillSHED MEMBERS INTHE DELE...; GrQup iOj'til~ ~~rparllRJI1en~,p~Qn. ", den? If a school district in my state He is married,','Without ,cliA¥e,~.;c. GATION .OF ,< THE ROMANIAN " loses, why not allow it to pay those costs? He speaks French,' English•. 'Russian. .. . '. It ought to. GROUP OF THE.lNTERPARLIA': (NOTE.-.Above Information receiv.ed from Perhaps if that section were changed MENTARY UNION the Grand National'Assembly.Uems ~ln to provide that the school board or the Mr. SPARKMAN. Mr. President,' we parentheses received subsequently 'by .tele­ superintendent or the individual should are honored today by a visit from citi­ phone.) bear thosecosts and pay the attorney's zens of a friendly nation. a.delegation The PRESIDING OFFICER. On behalf fees we would not have so many viola­ representing the Parliament of Roma'; of the.Senate, the. Chair is pleased. to tion~; but in this way there is no en­ nia. These gentlemen have been to Vene­ greet. our distingUished .. visitors, in the couragement to a local district to c~re zuela, attending the Interparliamentary Chamber. (Applause, senators rISing,) the violations, because he merely SIts Union meeting, and have stopped here back and says, "If I lose, the Federal for a brief visit on their way back home. Government is going to pick up the I may say that our delegation lliSt year EMERGENCY SClIOOL AID AND tab." There is nothing in here 'that says visited their country and we were en­ QUALITY INTEGRATED EDUCA­ the Federal Government can recoup its tertained royally. This delegation is TION ACT OF 1971 fUnds paid to a local district from the headed by Prof. Mihail Levente. I ask The Senate continued with the con­ amount of money that is going to be paid unanimous consent that a brief bio­ sideration of the bill (S. 1557) to provide to the school board. It pays the entire graphical sketch of the members of the ftriancial assistance to local educational amount and then picks up the attorney's delegation be placed in the RECORD at agencies in order to establish equal edu­ fee if the school district is found guilty this point, and I will ask our distin­ cational opportunities for all children, of a violation. guished visitors to stand. and for other purposes. So I can only say this is establishing There being no objection, the bio­ Mr. MONDALE. Mr. President,I yield a precedent. Frankly, I do not know graphical sketch was ordered to be myself5 minutes. which staff member wrote that section or printed in the RECORD, as follows: . The SeIlator from Kentucky expresses which staff member with what knowledge MEMBERS IN THE DELEGATION OF THE ROMA­ dismay that we woUld' oeaudacious of the law wrote section 11 to the ex­ NIAN GROUP OF THE INTERPARLIAMENTARY enough to propose that the FederalGov­ tent that there would be no effort, to UNION To VISIT THE U.S.A. emment ought to be concerned about the compromise-- ' 1. PROFESSOR DR. MIHAIL LEVENTE capacity of people in this country to as­ The PRESIDING OFFICER. The time Born June 20, 1915, university professor, sert their legal rights.. of the Senator.has expired. degree in economics, former minister of in­ We have had the same trouble trying Mr. DOMINICK: I yield 2 minutes to ternal trade, (presently) director of the In­ t6persuade the Republican. Party that the Senator from Kentucky. , stitute of Economic Research of the Academy the Federal 'Governmentshould be in.. Mr. COOK. That there would be no ef­ of the SociJllist Republic of Romania, secre­ terested in health, should be interested fort to .bring about a conclusion .to the tary of the Front of Socialist Unity of in hunger, should be interested inhous­ suit n1'ior to the judgment, because there Romania, member in the Foreign Polley ing, should be interestedinthe environ­ would be no payment to the attorney un­ Commission of the Grand National Assem­ bly, president of the Roniimian Group of the ment. I am not surprised at all that when til he concluded the matter and got a cer­ Interparliamentary Union, member in the another new idea pointing to another tified judgment against the defendant. I Interparliamentary Council. great need is brought to the consIdera­ do not know who it would be that would He was elected a deputy in the Grand Na­ tion of the flenate, once again we hear write a section that would say the Fed­ tional Assembly In 1961. cries of anguish and dismay. Section 11 eral Government is going to be, responsi­ He was a member in Romania's delegation seeks to meet a real human need With ble for the costs and the attorney's fees to the U.N. (1969). reasonable and necessai'yFederal leg­ for a violation that it has been sum­ He Is married and has 2 children. islation and support. marily concluded by the court has been He speaks French. Nothing was clearer, nothing was more imposed on an individual or a school sys­ 2. PROFESSOR TUDOR DRAGANU compelling, nothing was mOre effectively tem. by the very system itself, or the su­ Born December 2, 1912, degree in law, uni­ and more clearly described'by the wit­ perintendent. This is a matter which is versity professor (at Ciuj, where he is Dean nesses before the Committee on ,Labor unimaginable in my mind. I cannot un­ of the Law Faculty). Eiected deputy In the andPublic Welfare tharitheJaw en­ derstand it. Grand National Assembly in 1965. He'ls the chairman of the credentials commission and forcement crisis that faces the country I am sure the associatiens whose member of the juridical commission of the in school desegregation cases in the names have been put in theREcORD as Grand National Assembly, Vice-chairman of North as well as the South. The evidence supporting the fact that funds should be the Romanian Group of the Interparllamen­ was overwhelming of violations of court set aside have no idea th~t this section tary Union, chairman of the Parliament and orders, violations of constitutional rights, provides that a judgment must be se­ Juridical Commission of the Interparliamen­ violations ofs~ho611aws,violations of cured, that a compromise cannot be ar­ tary Union, member in the Interparliamen­ fundam,e~tal principles of;Justice., rived at, that a settlement cannot be tary Council. He has served on a number of Thousands of teachers have lost their made. I am sure they had no idea that occasions as head of the delegation of the Romanian Group to the sessions of the In­ jobsor have been demoted.·Nothing hap­ that charge would not be imposed ona terparliamentary Union. pens. So we come along with a billthat school system, but would be imposed on He is married, without children. says, "Let us try to do something about the Federal Government, who is not the He speaks French, English, German. that crisis." We have tried to get the violator at all. I can only say that the five 3. MIRCEA ANGELESCU Justice Department tonlove. We have or Bix school superintendents who said Bom June 18, 1938, civil engineer. Elected triedto getthepepartmentof HEw:t6 they would love to have those funds did deputy in the Grand National Assembly in move.'t'hey have not. Sowe have said. not know of any school superintendent 1969. He Is a member in the Foreign Polley "Let us try. as we have done in .other who was violating title I who should ex­ Commission and the Commission for Educa­ areas, to provide to private individuals a pect the Fecteral Government to 'pay tion, sCience and Culture of the Grand Na­ remedy for'injustice" with imblic money those attorney fees and costs if he lest tional Assembly; member in the executive to pay ultimately the costsofenforclng the suit. committee of the Romanian Group of the obedience to the Constitution and tha Interp8.I'liamentary Union. (PreSently works laws ofthe United States."";· In the International section of the Romanian ORDER OF BUSINESS Communist Party (RCP) central COmmit­ A To tMtWe are.toldr., 'i,¥Y, it ISW1hl:!­ tee, Which deals with RCP.relatlons with lievable '··unbelievable th.llt the Federal Mr. DOMINICK. Mr. President, with foreign commul}lst, and,other parties outside Govemment .\vouldconcern it¥lf,with the Senator's permission,I ask unani­ the socialist system. From 1965 uI),til 1968, he the legal rights of all people."WhaJisthe mous consent that we may yield briefiy in was president of the ROn1lmlail .Students difference ~tween.the need .of a person order that the seriator' from "Alaba.ma Association.) who does.nothaveenough.to eat,where (Mr. SPARKMAN) ma,yin'troduce the dis~ He is marrled,wlthout chiidren: we do recognize aresponsibility;tM need tinguished visitors in this Chamber. He speaks English. of people who do not have decent hous~ The PRESIDING OFFICER. Is' there 4. ION STOICHICI ing, a right that was recogri!zed pyc'the objection? Without objection, it is so Born June 22, 1931, law degree, counsefor father of the present Presiding Officer ordered. . on the Grand National Ass€rnbly staff and (Mr. TAFT) years and ~ears ago, and the April 21, 1971 CONGR"ESSIONAL RECORD - SENATE 11343 need for legal services? That is precisely APPOINTMENTS BY THE VICE Mr. President, I can only say that on what the OEQ legal /iervices program is PRESIDENT this matter I may be speaking as the all about-Federal funds to provide fees The PRESIDING OFFICER (Mr. junior Senator from Kentucky. and I for attorneys to lJrotect the rights of TAFT). The Chair, on behalf of the Vice may be speaking from the Republican the poor. Pr~sident, pursuant to Public Law 86- side of the Senate, but I am also speak­ And the Senator from Kentucky says, 420 appoints the following Senators to ing. I hope. as a member of the bar, as This is going to encourage school districts attend the 11th Mexico-United States a person who has a tremendous amount not to settl~. because the Federal Govern- Interparliamentary Conference, Mexico, of respect for the law and what the law ment. will pay the fees of the plaintiff. May 27 to June I, 1971:, Senators MIKE intends, and I see a situation whereby That is peculiar. Who pays the fees of MANSFIELD, ROBERT C. BYRD, HENRY M. we could solve the problem by merely the plaintiff now? The answer is nobody. JACKSON, HARRY F. BYRD, JR., JOSEPH M. inserting the language that the costs and Section 11 would give the aggrieved party MONTOYA LLOYD M. BENTSEN, LAWTON attorneys' fees will be charged again3t an opportunity to bring a lawsuit; which CHILES, a~d GEORGE D. AIKEN. the losing litigant, and we will reaeh the I suspect a school district would not want ., same result. We can even charge that in the present situation. by providing for school district those funds-- payment of fees. EMERGENCY SCHOOL AID AND The PRESIDING OFFICER The time In the present situation the plaintiff's QUALITY INTEGRATED EDUCA­ of the Senator has expired. attorneY does not' get funds ftom the TION ACT OF 1971 Mr. COOK. One more minute. We can even charge those expenses and make Federal Government or anyone else. The Senate continued with the con­ Under this bill, he would receive reason­ them a debit against the title I funds, so sideration of the bill .(S. 1557) to pro­ that in fact we would be accomplishing able attorneys' fees if a successful judg;;. vide financial assistance to local educa­ ment is reached.' -. the same thing, but we are penalizing tional agencies in order to establish equal the person who violates the law; we are Why do we place that burden on the educational opportunities for all chi!"­ Federal Government, rather than the penalizing the person who decides the dren. and for other purposes. 14th amendment is for someone else and defendant? The reason is.' that· many Mr. COOK. Mr. President, I merely school districts'are, very}><>or, and these not for him. We are then imposing the wish to say that I hope that the' first cost on that individual who saw fit to lawsWts, are very expenSive; We thought words of the Senator from Minnesota. that' rather than being vindictive to­ commit an act that the court conclUded which castigated the entire Republican was in violation of the law, or in violation waids>a particular school, district. it Party because of my remarks, were not would' be fairer,in the caseo! such a of the proper utilization of title I funds. demagogic enough to indicate that the and that, as an indirect result thereof, judg'ment,for the FederalGoverI1ment to Senator from Minnesota has now joined pay' thecost of re.asonabieattorney·sfe:s, that pe,rson shall suffer, but we are not the ranKs of many other Members of saying. "Regardless of what you do or as' it does fot' mdigent defendants m this body who may be running for higher criminallawsuits. . , ' how you do it. the Federal Government pUblic office than the U.S. Senate. will pay your expenses." ", The PRESIDING OFFICER. The Sen­ Mr. MONDALE. Mr. President, will the The PRESIDING OFFICER. The time atot's tfuie 'fsexpfred.·· ' Senator yield? Will the Senator agree of the Senator has expired. M£M:ONDALE.I yiel!i myse1f3 more that it will take his party 8 or 10 minute1l.. Mr. COOK. That is my only point. I'i .•.. . ' . . . ' years. at least, to catch up with the The PRESIDING OFFICER. Who We tnfu~.in.addition to'that, that t~e backlog in the demand for housing, for yields time? . pa~'l11ent requirement,thll.t' of fees and 'example? .Mr, MONDALE. Mr. President, I yield costs he made only after a final order has Mr. COOK. It may take a little while myseIt' 2 Ininutes< been issued-which could be issued,.,by to catch up with the Senator from Min­ the way, on agreement.of the parties if a nesota, but then I doubt that the tax­ The reason that the committee acted case is resolyed' by agreement-makes payers of thiscountry would be as deep­ as it did, to provide Federal payment of sense, in order todiscourage champertous lyin debt as they are today. reasonable fees rather than payment by lawsuits. We do not want attorneys bring­ Mr, MONDALE. Will the Senator yield the losing school district, is that this ing lawsuits just tocollect attorneys' fees. further? money would come out of the education We only want lawsuits brought in mean­ Mr. COOK. Mr. President, I wish to budget for the education of the school ingful' fundamental cases of. violaton. complete my statement without further children. And that in a real sense, when We d~'not want an attorney to be given interruption. a school district is found guilty of vio­ fees unless the court and the parties The PRESIDING OFFICER: The lating constitutional antidiscrimination have detenninedthatthe suit was well Senatormay proceed. provisions. The plaintiff's fee, in our opinion, could far better go toward the founded, or unless the parties have Mr. President. the Senator from Min­ agreed to an order, whereupon the court education of the schoolchildren in that nesota has said that this should be done district. would' have jurisdiction to distribute on a basis that they would not expect to funds. have any suits brought unless they were Many of these districts are very poor. _. We have to look upon this matter in meaningful or purposeful. It does not They are on thin budgets. Many of them thelight of the crisis in the area of school say that in section 11. He says this should are governed, not by venal people, but desegtegatione.nfotcemen~ today. I do be done because there are some poorer by people who have learned their atti­ not' think that· 1 percent of the cases school districts in the United States, and tudes and mores in the long tradition of which shoUld be brought. are being they should not be penalized< These poor­ the dual school system. It seems inap­ brought. Hundreds of black teachers who er school districts should not be penal­ propriate, at least at this time, to visit have been fired are walking the streets, ized because they fired a Negro teacher the cost of that upon the children of the with no'one to help them, no one to and have him walking on the street, or school district. bring lawsuits on their behalf. School because they have done something to I think there may be cases where the property is being United States Code. all States. For the purposes of this subsec­ (B) the relative need of the local educa­ paOHIBITIONSAND LIMITATIONS tion the term "state" does not Include tional agencies within the State for ,assist­ ance under this Act. SEC. 10. (a) NothlIig contained in this Act Pue;to Rico, Guam, American Samoa, the shall be construed to authorize any depart­ Virgin Islands, and the Trust Territory of (c) Amendments of applications shall, ex­ cept as the Commissioner may otherwise ment, agency,. ,officer, or employee of the the Pacific Islands. United States to exercise any .direction, (b) The portion of any State's allotment provide, be sUbject to approval in the sarn.e manner as the original applications. supervision, or control over the curriculum, under subsection (a) for a fiscal year which program of instruction, administration, or the Commls&oner determines will not be PAYMENTS personnel of any educational institution or required, for the period such aIlotment is SEC. 7. (a) Payments under this Act shall school ·system. avallable, for carrying out the purposes of be made from a State's allotment to any (b) Nothing contained in this Act shall this Act shall be available for reallotment State or local educational agency which has be construed to authorize the making of any from time to time, on such dates during such an application approved under section .6. payment under ,this Act for the construc­ periOd as the Commissioner may fix, to other Payments under this Act With respeot to the tion offac1Uties as a place of worship or States in proportion to the original allot­ costs of carrying·out an application of a State religious instruction. ments to such States under subsection (a) or local educational agency shall not exceed ADMINISTRATION for such year, but with such proportionate 90 per centum of such costs for any fiscal amount for any of such other States being year In dete1mlnlng the costs of carrying out SEC. 11. (a) The Commissioner may dele­ reduoed to the extent it exceeds. the sum an application of a State or local educational gate allY of his functions under this Act, which the Commissioner estimates wlll be agency and shall exclude any cOsts with re­ except the making of regulations, to any of­ needed in such State and will be used for spect to which payments were received under ficer or employee of the ·Office of Education. such·perlod for carrying out applications any other Federal program. (b) In administerIng the·provisions of this approved under this Act, and the tota,l of (b) Payments to a State under this Act Act, the Commissioner Is authorized to utilize such reductions shall be similarly reallotted may be made in installments, in advance, or the· serVices and facilities of any agency of among .the States whose proportionate by way of reimbursement, with necessary ad­ the Federal Government and of any other amounts are not so reduced. Any amount justments on account of underpayment or pubUc agency or institution in accordance reaIlotted to a State under this subsection overpayment, and may be made directly to with appropriate agreements, and topay for during a year shall be deemed part of its a State or to one or more public agencies such services either in advance or by way of allotment under subsection (a) for such year. designated for this purpose by the State, or to reimbursement as may be agreed )Ipon. USES OF FUNDS both. DEFINITIONS SEC. 5. Grants made under this Act may WITHHOLDING SEC. 12. As used in this Act, the term­ be used in accordance with applications ap­ SEC. 8. Whenever the Commissioner, after (1) "Commissioner" means the Commis­ proved under section 6 for educationalpro­ giving reasonable notice and opportunity for sioner of Education; grams and activities conducted by public hearing to a grant recipient under this ,Act, (2) "elementary school" means a day or elementary and secondary schools of local finds- residential school which provides free publlc educational agencies and of State education­ (1) that the program or activity for which elementary educatlon",lls determined under al agencies. such grant was made has been so changed State law; APPLICATIONS that It no longer complies with the prOVi­ (3) "local educational'a:gencY"means II. SEC. 6. A grant under this Act may be sions of this Act; or pubUc board of education or other public made to any State or .. Iocal educational (2) that in the operatJon of the 'program authority legally constituted within a State agency upon application to the Commis­ or activity there Is faUure to comply substali­ for either administrative control or direction sioner at such time, in such manner, and tially with any such provision; of, or to perform a service function for, pub­ containing and accompanied by such infor­ the Commissioner shalI notify such recipient lic elementary or secondary schools in a city, mation as the Commissioner deems neces­ of his findings and no further payments may county, tOWJlShip, school district, or other sary. Each such application shall- be made t<> such recipient by the Commis­ political subdiVision ofa. State, or such com­ (1) prOVide that the programs and activ­ sioner untU he is satisfied that suchno.na bination ,of school.districts or counties as are ities for which assistance under this Act is compliance has been, oJ: wUI .promptly be, recognized in· a State.as. an administrative sought w1l1 be administered by or under corrected. The Commissioner may authorize agency for its pUblic elementary or second­ the supervision of the applicant; the continuance of payments with resp~ct ary schools, and such term also includes any (2) describe with partiCUlarity the pro­ to any programs or activities pursuant to this other pubUc institution or agency haVing ad­ grams and activities for Which such assist­ Act which are being carried out by such mlllistrative control.and direc.t.ion of a pUb­ ance Is sought; recipient and which are not involved in the Uc elementary or secondary school; (3) In the case of a State educational noncompliance. (4) ':fre~ p\1bUC equcatioI)."IIleans educa­ agency, provides assurance that no more tion which Is provided at pUbl1cexpense, un­ than 50 per centum of the funds for which JUDICIAL REVIEW der public supervision and direction, and the application is made by such agency will SEC. 9. (a) If any State or local eduootion Without tuition charge, and which is pro­ be expended for purposes other than pro­ agency Is dissatisfied with the Commission­ Vided as elementary Of secondary school edu­ grams and activities conducted by the pUb- er's final action with respect to the approval cation in the appUcable State; April 21, 1971 CONGRESSIONAL RECORD - SENATE 11347 (5) "secondary~ school" means a day or directly to all local school districts and eloquently suggested, by tomorrow, would residential school which provides free public the States on the basis of their propor­ We be in session on Friday? I assume if seeondll.l"Y. education, as determined under State law, except 111 does not include any tion of the Nation's schoel-age popula- we do not finish the bill by tomorrow we education beyond grade 12; ti'tn. Other than the requirement that will be in session on Friday. ,(6) "State·, Iricludes in addition t<> the the money be spent for general educa­ I would like the comments of the dis­ sever~l State's of the United States, the Dis~ tional purposes by the States and school tingUished majority leader as to that trict of Columbia. the Commonwealth of districts, then; would be no Federal re­ question, as" to whether he agrees with PUerto. Rico; 'Gllam.•American samoa, the strictions on the funds. what I have indicated, and then, further, Virgin Islands, and the Trust Territory of the The National School Board Associa- what legislative busiIiess may we expect Pacific Islands; and (7) "State educational agency" means the tion has strongly endorsed amendment thereafter? State board of educationor. otheragency or No. 44 rather th~:t.n.S. 1557, as it i~ w~it­ Mr. l\'lANSFIELD. Ivlr. President, may olficer primarily responsible for'the State su- ten. The assoclatlon membershIp Ill­ I say, in responSe to the question raised pervlslon of,g;tate elementaty, alid secondary ~ eludes 85,000 school board members by the distinguished minority leader, he education ()r if. there is no such officer 01' which represent 90 percent of the Na­ is in fact the eternal optimist. If we could agency, an' 'officer or agency designated by tion's school boards. These boards serve finL'3h this bill tomorrow, we would not the Governor or State law. 98 percent of our Nation's schoolchil- be in session Friday; but it is my under­ dren, Because of the strong. backing of standing that the distiIlguished Senator this broadly based group, a vote for from North Carolina has more than one UNA1'I~mu.S-CONSE:~T AGREE­ amendment No. 44 would be truly a uni­ amendment and that the distinguished 'MENTS-l?ROGJitAM , fying act for 'a nation divided by the Senator from Mississippi has one amend­ Mr. 1\lANSFiELb:'Mr: President, I school desegregation issue. ment. There may be others. have discussed .the possibility of a time Amendment No. 44 is basically a gen­ The joint leadership would be pre­ limitation, with the distinguished Sena­ eral revenue sharing measure, and I hope pared to stay in session late tomorrow tor from North carolina. He is most rea­ yoU: will agree with me that it is a much to complete its business, but it appears to more constructive way to aid education me it is not quite possible, and I would sonable; but he would prefer to discuss it say as of now that the Senate will be in tomorrow rather. than this evening. than S. 1557 as presently written. May I inquire {)f the Chair how much Passage of amendment No. 44 would session on Friday. time has been aI1ocate-d tor Senators to do away with this business of trying to I would like at this time, with the con­ divide the country into two' parts. It sent of the distinguished Senator from speak after the: Senate convenes at 10 North Carolina, to make a request. o,'clock tomorrow morning? would also do away with the necessity of having to vote on the parochial school Mr. STENNIS. Mr. President, will the The PRESIDING OFFICER. A. total Senator yield before he makes that re­ of 30 minutes~ i ~, aid question. I hope the Senate will adopt Mr. BYRD of West' Virginia. Mr. amendment No. 44 so we can bring this quest? President, will the Senator yield? bill to an end and get out of here this Mr. MANSFIELD. I yield. Mr. MANSFIELD. I yield. week. ': Mr. STENNIS. I appreciate the Sena­ Mr. BYRD'oC West Virginia. Mr. The PRESIDING OFFICER. Is there tor's yielding. President, I askUIianimous consent that objection to the unanimous-consent re­ In connection with the amendment the immediately following the remarks by quest? Without objection, the request is Senator mentioned, the amendment by the able Stnator. from Iowa (Mr. agreed to. my colleague and I that I have in mind HUGHES) tomorrow, for which the order , Mr. MANSFIELD. Mr. President, it is is the same amendment that was intro­ has already been entered, the following my understanding that ~he Senate has duced to the education bill last year and Senators each be allocated, not to ex­ already agreed to a 30-minute period to­ that was debated and was passed by the ceed 15 minutes,in the order stated: Mr. morrow for the transaction of routine Senate. I would propose to offer that SAXBE, Mr. TAFT, Mr. HANSEN, MI'. BUCK­ morning business. amendment now and would cooperate to LEY, and Mr. BYRD of Virginia; , The PRESIDING OFFICER. That is such degree as I could to agreeing to Mr. ALLEN. Mr. President~reserving correct. ' some time tomorrow, but not very late. the right to obje<;t, do. these time alloCa­ Mr. MANSFIELD. Mr. President, I ask I just wanted the Senator to hear that tions come before the Period set aside for unanimous consent that that period be statement. the transaction of routme mornmg busi- extended to 1 hour for the transaction Mr. MANSFIELD. Mr. President, that ness? ' •. of routine morning business. is encouraging news. That may change The PRESIDING OFFICER. That is The PRESIDING OFFICER. Is there the picture. the understanding of the Chair; objection? ' If I may have the attention of the Mr. ALLEN. How much time would Mr. AL;LEN. Mr. President, reserving distinguished Senator from North Caro­ then be allocated for it? " the right'to object, as the junior Sena­ lina, I ask unanimous consent that on The PRESIDING OFFICER. The total tor from Alabama understands, we have the pending amendment there be a time allocation of time would be- an hour and a half set aside for specif­ limitation of 2 hours, the time to be Mi. BYRD of-West Virginia. Mr. Presi­ ically allocated time periods for Sena­ equally divided between the sponsor of dent, under the order previously entered, tors.Then we have 30 minutes aIlocated, the amendment and the manager of the there would be not to exceed 30 minutes. with a 3-minute limitation, which would bill or whomever he may designate. Mr. ALLEN~ How much time.is being give 10 Senators an opportunity to speak Mr. JAVITS. Mr. President, will the added now? '.' for 3 minutes. We have as the pending Senator yield? Mr. BYRD of. West Virginia. The total business, which would be laid before the Mr. MANSFIELD. I yield. consumed ,in'the six speeches woUld be Senate at that time, 12 o'clock, Senate Mr. JAVITS. That is fine, except I an hour anq,a half, and the 30 minutes 1557, the Emergency School Act. This act hope the Senator will protect us on woUld .carry. us past the hour, of 12 should be given emergency treatment. amendments to the amendment and wiIl o'clock, which would be the close of the It seems to the junior Senator from Ala­ not foreclose, though I do not intend to morning hour. bama that 2 houfs is long enough to set make one, a motion to table, because I , Mr. ALLEN., I have no, objection. I aside for speeches prior to getting on gather the unanimous-consent request withdraw my objection. with this emergency school legislation. must contemplate both possibilities. The, PRESIDING OFFICER. The ob­ So the junior Senator from. Alabama Mr. MANSFIELD. It would. jection is withdrawn. respectfully and apologetically interposes Mr. President, I ask unanimous con­ Mr. ERVIN., Mr. President, "'ill the an 0l>jection to the request of the dis­ sent. that there be 10 minutes, equally Senator yield? tinguished majority.1eader. divided, on all amendments to the Mr. MANS,:FIELD. I yield. . ~r.,MANSFIELD. Not at all, because amendment. Mr. ERVIN.Mr President, I want to theSenator is perfectly within his rights. Mr. JAVITS. And that a motion to inform the Members of the Senate who Mr. SCOTT. Mr. President, would the table may be made? a~ presep.tat thiS time that my amend­ distinguished majority, leader now ad­ Mr. MANSFIELD. Oh, ;yes. That is al­ ment' Nli'44:Whlch is prtnted in thiS vise',ti$.'as,t6 the ,schedule? Fo!" example, ways in order. RECORD earIler'is a sUbStrtutebill, for if we can. fini$. consideration of this The' PRESIDING OFFICER. Is there S. 1557, and it would disperse $1.5 billion bill, as' the Senator from Alabama has objection to the unanimous-consent re-