Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 1 of 27 May 14, 1974 COl GRESSIONAL RECORD - SENATE 14579 "(A) other school officials, including Mr. McCLELLAN. Give us 5 or 10 min- ords, files, and data directly related to their children, including all material that Is in- teachers within the educational institution utes on the- corporated into each student's cumulative or local educational agency who have legiti- Mr. ROBERT C. BYRD. Mr. President, record folder, and intended for school use or mate educational interests; if we are not careful, we are going to to be available to parties outside the school "(B) to officials of other schools or school get in one h-e-c-k of a fix tomorrow on or school system, and specifically including, systems in which the student intends to en- the Gurney amendment. The Senator but not necessarily limited to, identifying roll, upon condition that the student's par- the transfer, receive a was here when we entered into this data, academic work completed, level of ents be notified of achievement (grades, standardized achieve- copy of the record if desired, and have aa agreement. I hope we will not abuse that ment test scores), attendance data, scores on opportunity for a hearing to challenge th. agreement- standardized intelligence, aptitude, and psy- content of the record. Mr. JAVITS. If the Senator needs a chological tests, interest inventory results, "(2) No funds shall be made available un- few minutes to consider it, I would ask health data, family background information, der any applicable program to any State cr unanimous consent that I may yield for teacher or counselor ratings and observa- local educational agency, any institution oC 10 minutes to the junior Senator from tions, and verified reports of serious or recur- higher education, any community college, New York (Mr. BUCKLEY) to discuss rent behavior patterns. Where such records any school, preschool, or any other educa- whatever amendments he brings up, with or data include information on more than tional institution which has a policy or prac- one student, the parents of any student shall tice of furnishing, in any form, any informa- leave to present this amendment and be entitled to receive, or be informed of, that tion contained in personal school records, to then to return to the amendment which part of such record or data as pertains to any persons other than those listed in sub- I have pending. their child. Each recipient shall establish section (c) (1) unless- The PRESIDING OFFICER. Is the appropriate procedures for the granting of a "(A) there is written consent from the Senator for yielding time from the bill? request by parents for access to their child's student's parents specifying records to be Mr. JAVITS. I cannot yield time. He school records within a reasonable period of released, the reasons for such release, and than forty-five has got to do it on his own time. I ask time, but in no ease more to whom, and with a copy of the records days after the request has been made. to the student's parents and unanimous consent, Mr. President, that to be released "(2) Parents shall have an opportunity for the student if desired by the parents, or I may lay aside the amendment which a hearing to challenge the content of their "(B) such information is furnished in I have pending for 10 minutes and then child's school records, to insure that the rec- compliance with judicial order, or pursuant return to it. ords are not inaccurate, misleading, or other- to any lawfully issued subpena, upon condi- The PRESIDING OFFICER. Is there wise in violation of the privacy or other tion that parents and the students are noti- objection to the request of the Senator rights of students, and to provide an oppor- fied of all such orders or subpenas In advance of any from New York (Mr. JAVITS) ? The Chair tunity for the correction or deletion of the compliance therewith by the education misleading, or otherwise in- hears none, and it is so ordered. such inaccurate, institution or agency. appropriate data contained therein. "(3) In any case in which the Secretary Mr. GRIFFIN. Mr. President, reserv- "(b) PARENTAL CONSENT.-(l) No student or an administrative head of an education ing the right to object, I did not under- shall, as a part of an applicable program, be agency is authorized under any applicable stand that the Senator from New York required to undergo medical, psychological, program to request or require any State or had an amendment pending. or psychiatric examination, testing, or treat- local educational agency, any institution of Mr. JAVITS. I do. ment, or immunization (except to the ex- higher education, any community college, Mr. GRIFFIN. Is there a time limita- tent necessary to protect the public from any school, preschool, or any other educa- epidemics of contagious diseases), or to re- tion on it? tional institution to submit to a third party veal information about his or her personal (or to the Secretary or an administrative Mr. JAVITS. Yes; there is a time limit or family life without the prior, informed, head of an education agency, as defined in on it of 30 minutes. My time has expired written consent of the student's parents. section 409 of this Act) any data from per- but Senator MCCLELLAN'S time has not. "(2) No student shall, as a part of any ap- sonal statistics or records of students, such I could get time from the bill, of course. plicable program, be required, without the data shall not include the names of students Mr. McCLELLAN. I have only 2 more prior, informed, written consent of the stu- or their parents (in code or otherwise) with- any project minutes remaining because I yielded my dent's parents, to participate in out the written consent of the student's program, or course, the primary purpose or parents, except- time trying to get the unanimous-con- principal effect of which is to affect or alter sent agreement. "(A) in connection with a student's appli- the personal behavior or personal values of a cation for financial aid; Mr. PELL. Mr. President, I am de- student, or to explore and develop teaching "(B) in compliance with any court order, lighted to yield 10 minutes if it will help techniques or courses primarily intended to or pursuant to any lawfully issued subpena, us move along on the pending bill. affect such behavior and values. if the parents and students are notified of "(3) Parents shall be informed, reason- Is there any such order in advance of the compliance The PRESIDING OFFICER. ably in advance and in writing, of the in- objection to the request of the Senator therewith by the State or local educational tended participation of their child in any of higher education, from New York? The Chair hears none, agency, the institution research or experimentation project which is the community college, the school, preschool, and it is so ordered. a part of an applicable program. No child or other educational institution. The junior Senator from New York shall participate in such a project if the "(4) (A) With respect to subsections (c) (Mr. BUCKLEY) is now recognized. parents of such child object to such partici- (1) and (c) (2) and (c)(3), all persons, pation. AMENDMENT NO. 1289 agencies, or organizations desiring access to "(4) As used in this subsection the term the records of a student shall be required project' means Mr. BUCKLEY. Mr. President, I call 'research or experimentation to sign a written form which shall be kept is a part of up my amendment No. 1289 and ask that any project or program which permanently with the file of the student, it be stated. an applicable program, and which is author- but only for inspection by the parents or by an administrative officer of an edu- The PRESIDING OFFICER. The ized student, indicating specifically the legiti- cation agency, a State or local education amendment will be stated. mate educational or other interest that each agency, or any education institution, in- person, agency, or organization has in seek- The legislative clerk read as follows: of cluding preschools, for the purpose ing this information. Such form shall be On page 330, between lines 17 and 18, in- except that re- research or experimentation, parents and to the school offi- new section: available to sert the following search or experimentation projects shall not cial responsible for record maintenance as "PROTECTION OF THE RIGHTS AND PRIVACY OF include projects in the field of reading or a means of auditing the operation of tho PARENTS AND STUDENTS bilingual education, as determined by the system. "SEC. 437. (a) RIoHT OF ACCESS AND OF A Commissioner. "(4) (B) With respect to this subsection, HEARING.-(l) No funds shall be made avail- "(C) CONDITIONS FOR THE RELEASE OF PER- personal information shall only be trans- able under any applicable program to any SONAL DATA.-(1) No funds shall be made ferred to a third party on the condition that State or local educational agency, any insti- available under any applicable program to such party will not permit any other party tution of higher education, any community any State or local education agency, any in- to have access to such information without college, any school, preschool, or any other stitution of higher education, any commu- the written consent of the parents of the educational institution which has a policy nity college, any school, preschool, or any student. of denying, or which effectively prevents the other educational institution which has a "(d) PROTECTION OF PERSONAL DATA.-The parents of students under eighteen years of policy of permitting the release of records or Secretary shall adopt appropriate regula- age attending any school of such agency, or files (or personal information contained tions to protect the rights of privacy of stu- attending such institution of higher educa- therein) of students without the written con- dents and their families in connection with tion, community college, school, preschool, sent of their parents to any individual, any surveys or data-gathering activities or other educational institution, the right to agency, or organization, other than the fol- conducted, assisted, or authorized by the inspect and review any and all official rec- lowing- Secretary or an administrative head of ait

HeinOnline -- 120 Cong. Rec. 14579 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 2 of 27 14580 CONGRESSIONAL RECORD - SENATE May 14, 1974 education agency (as defined in section 409 stories come out in the media about the the tests, which are required in other of this Act). Regulations established under abuses of personal data by schools and this subsection shall include provisions con- school districts around the Nation, are trolling the use, dissemination, and pro- Government agencies, the public and a violation of privacy and could cause tection of such data. No survey or data- Congress have become increasingly psychological damage to students. gathering activities shall be conducted by aware of the problems such abuses pose. The New York City School Board re- the Secretary, or an administrative head of In addition, the revelations coming out fused to comply with a similar demand. an education agency have responsibilities of Watergate investigations have under- Dr. Seymour Lachman, president of the under an applicable program unless such scored the dangers of Government data school board, said that the original activities are authorized de- by the Act estab- gathering and the abuse of personal mand "violated the confidentiality of lishing such a program. files, and have generated "(e) For the purposes of this section, increased pub- student records" and that, lacking whenever a student has attained eighteen lic demand for the control and elimina- proper safeguards, the data might be years of age, the permission or consent re- tion of such activities and abuses. It is misused or abused. He added that: quired of and the rights accorded to the appropriate, therefore, that we take this These kinds could have been categorized, parents of the student shall thereafter only opportunity to protect the rights of stu- codified, and stereo-typed for life on the basis be required of and accorded to the student. dents and their parents and to prevent of information put on the tape while they "(f) No funds shall be made available un- the abuse of personal files and data in were in school. der any applicable program unless the re- the area of federally assisted educational cipient of such funds informs the parents of In addition to being denied access to students, or the students, if they are eighteen activities. their children's school records, parents years of age or older, of the rights accorded Many absurd and sometimes tragic are often unable to readily review the them by this section. examples of similar abuses exist. Let me instructional materials in various courses "(g) The Secretary, or an administrative recount one of the cases described in the in which their children are enrolled. And head of an education agency, shall take ap- recent article, "How Secret School Rec- often they are not asked to give their propriate actions to enforce provisions of this ords Can Hurt Your Child," in Parade section and to deal with violations of this consent before their child is given very magazine: personal or psychological tests, or par- section, according to the provisions of this The parents of a junior high student are ticipate in experimental Act. told their daughter won't be able to attend programs or at- "(h) The Secretary shall establish or des- graduation ceremonies because she's a "bad titude-affecting courses. ignate an office and review board within the citizen." What has she done that's bad, The secrecy and the denial of parental Department of Health, Education, and Wel- the parents ask? Well, the principal says, the rights that seem to be a frequent feature fare the purpose of investigating, processing, school had a whole file on her "poor citizen- of American education is disturbing. reviewing, and adjudicating violations of the ship," but the parents can't know what's in provisions of this section and complaints Some school administrators and educa- that file. In this Catch-22 case, one of the tors seem to have forgotten that parents which may be filed concerning alleged viola- few to get a legal hearing, the New York tions of this section, according to the proce- have the primary legal and moral re- dures contained in subsections State Commissioner of Education, Ewald B. sponsibility for the upbringing of their (c) and (d) Nyquist, stated flatly that the school's argu- of section 421 of this Act. ment that it was children and only entrust them to the "(i) With respect to any funds obligated acting in the best interest of the student in refusing to reveal the in- schools for basic educatiohal purposes. prior to the effective date of this section to formation to the parents-had no merit. The Some educators seem to feel that they any State or local educational agency, any in- know much more about the welfare and stitution of higher education, any commu- commissioner concluded: "It is readily ap- nity college, any school, preschool, or any parent that no one had a greater right to best interests of the child than do the other educational institution, continued fur- such information than the parents." parents, and therefore, once a child nishing of such funds shall cease January 1, When parents and students are not comes under their sway, they think they 1975, if the recipient has failed to meet the allowed to inspect school records and have the right to do what they them- conditions for funding established by this selves think is best for the child, with- section. make corrections, numerous erroneous and harmful material can creep into the out regard for values and beliefs of the "(j) The provisions of this section shall be- parents. come effective ninety days after the date of records. Such inaccm'ate materials can enactment of this Act. have devastatingly negative effects on The world-famous child psychiatrist, "(k) This section may be cited as the 'Fam- the academic future and job prospects John Bowlby, noted in an interview con- ily Educational Rights and Privacy Act of of an innocent, unaware student. cerning the care of young children last 1974'." Many examples of abuses can be found year, that: On page 122, in the table of contents, after in recent letters to the National Com- The criticizing of parents and taking the the item "SEc. 512" insert the following: children out of the home and putting mittee for Citizens in Education them "SEc. 513. Protection which into the schools as is being commonly sug- of the rights and pri- has for a long time vacy of parents and students.". carried on the fight gested these days actually undermines the for the right of parents to have access parental confidence in the parents' own role, Mr. BUCKLEY. Mr. President, I send to their children's records by alerting and in their potential role. There is entirely to the desk two perfecting amendments. and assisting parents across the Nation. too much criticism. The educators are guilty Through some oversight the Printing I would like to take this opportunity to of undermining the home rather than build- Office failed to include two provisions commend that committee for its dedi- ing it up. in the amendment. cated efforts, and to mention that the There has been an increasing chorus The PRESIDING OFFICER. Does the NCCE will very shortly publish a major of complaints from parents in the last Senator from New York ask unanimous study entitled "Children, Parents and few years about just such attitudes and consent that his amendment be so modi- School Records." It is must reading for actions on the part of some educators. fied? anyone who is concerned with the issue The sense of a loss of control over one's Mr. BUCKLEY. Mr. President, yes, I of privacy and the schools. life and destiny, which many social com- so request. Violations of the privacy of students mentators say is growing amongst our The PRESIDING OFFICER. Without and their parents occur daily in schools citizens, seems to be increasingly felt by objection, it is so ordered, and the across the Nation, through courses re- parents with respect to the upbringing of amendment is so modified. quiring the student to reveal personal their own children. The text of the perfecting amend- data and feelings, and by means of de- Such elitist and paternalistic attitudes ments is as follows: mands by the Federal Government for reflect the widening efforts of some, both On page 1, between lines 2 and 3, insert personal information on students and in and out of Government, to diminish the following: parents. The recent refusal of the Dis- the rights and responsibilities of par- PROTECTION OF THE RIGHTS AND PRI- trict of Columbia School Board to re- ents for the upbringing of their children, VACY OF PARENTS AND STUDENTS fuse to administer a battery of tests, de- and to transfer such rights and func- SEC. 513. Part C of the General Education spite a threat by the Federal Office of tions to the State-to separate, figura- Provisions Act is amended by adding at the Education to cut off nearly $6 million in tively, and in some cases, literally, the end thereof the following new section: Federal funds to the city's public school child from his parents, and to turn him On page 4, line 23, after the word "other" system, is a good case in point. The over to the care of the State, as repre- insert the word "local". superintendent of the schools, Barbara sented by schools and other arms of its Mr. BUCKLEY. Mr. President, as more Sizemore, charged that many items in administration.

HeinOnline -- 120 Cong. Rec. 14580 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 3 of 27 May 14, 1974 CONGRESSIONAL RECORD - SENATE 14581 My amendment seeks to restore pa- the school superintendent was informed or course, the primary purpose or prin- rental rights and- to protect privacy. It of the potential drug abusers, who were ciple of which is to affect or alter the will: then required to undergo attempted psy- personal behavior or personal values of First, help insure that parents have chological remediation by ill-trained a student. Mr. President, I would like to the right of access to their children's faculty members. But, said the Judge: point out the implication of the NEA's school records; The ultimate use of this information, al- position. It is their position that as be- Second, help prevent the abuse and im- though possibly gained with a great deal of tween the parent and the school official, proper disclosure of such records and scientific success, is the most serious prob- the latter has the more fundamental personal data on students and their par- lem that faces the Court. How many children right to determine whether the child would be labeled as potential drug abusers ents; should be subject to programs of be- who in actuality are not, and would be sub- havior alteration and value modification. Third, require parental consent before jected to the problem of group therapy ses- such records are disclosed to most third sions conducted by inexperienced individ- Beneath such a position is a very seri- parties; uals? ous threat to the traditional notion long Fourth, require parental consent or Strict confidentiality is not maintained respected by this Nation that it is the notification before their children are after evaluation and there are many op- parents who are ultimately responsible made to undergo certain forms of testing portunities for a child to suffer insurmount- for the welfare of their children. It bor- or partake in certain experimental or at- able harm from a labeling when the cruelty ders on shocking that one of the national an extreme. The titude-affecting programs or activities; of other children Is at organizations representing educators seriousness of this problem is illustrated by would move to have the Senate oppose a and the fact that if one child is so harmed and Fifth, make instructional materials would be temporarily or permanently dam- reaffirmation of this important and real used in the classroom available for re- aged by the label of "drug abuser," is this parental right. Further, the attempt to view by parents upon request. Program worth the effort to identify other characterize the amendment as one In addition, my amendment requires actual "drug abusers." which intends to curtail freedom of ex- the Secretary of HEW to adopt appro- When a program talks about labeling pression between child and teacher is in- priate safeguards to protect the rights someone as a particular type and such a credible. It is more accurate to conclude label could remain with him for the re- and privacy of students and their fam- that it is the NEA's position that the mainder of his life, the margin of error must teacher should come between parents and ilies in regard to Government authorized be almost nil. surveys and other data gathering activ- child on such important matters as ities. The court found that the potential for school programs, the primary purpose of My amendment broadens the protec- harm of this program outweighed any which is behavior modification and tion of civil rights to include the civil good that might accrue, and concluded values alteration. rights of parents and students vis-a-vis as a matter of law that the CPI program I would respectfully suggest, Mr. Presi- the schools. As a matter of fact, a re- violated the right of each student and his dent, that the burden to secure consent cent Federal court decision has made the parents to privacy inherent in the pen- of the parent is not too great. Surely, civil rights aspect of privacy and paren- umbra of the Bill of Rights of the U.S. most conscientious teachers would have tal consent more explicit. Constitution. no problem gaining the consent of a par- The case was Merriken against Cress- This case is a microcosm of the prob- ent providing the teacher has demon- man, heard in the U.S. District Court of lems addressed by my amendment-the strated the worth of his proposal. To sug- Eastern Pennsylvania last fall. Let me violation of privacy by personal question- gest otherwise is to insult the parent and quote from the summary of the case in naires, violation of confidentiality and underestimate the resources of America's "The United States Law Week" of Oc- abuse of personal data-with its harm educators. tober 16, 1973: to the individual-and the dangers of ill- Some may argue that my amendment A school district proposed to use a program trained persons trying to remediate the will create too much additional work and entitled Critical Period of Intervention alleged personal behavior or values of redtape for schools and the educational (CPI) for the purpose of Identifying poten- students. It describes the potential harm bureaucracy. To that argument I must tial drug abusers among its eighth-grade that can result from poorly regulated reply that I am not so much concerned students. Additionally, the program would testing, inadequate provisions for the about the workload or convenience of the "prepare the necessary Interventions, Iden- educational bureaucracy but, rather, tify resources to train and aid the district safeguarding of personal information, personnel to remediate the problems and, and ill-devised or administered behavior with the personal rights of America's finally, to evaluate the results." Parental modification programs. children and their parents. I believe that consent is a prerequisite to a student's par- In fact, it shows that even the require- their rights should properly take such ticipation in the program. Such consent is ment of parental consent can be an In- priority in whatever educational legisla- solicited by a letter which is admittedly a tion the Senate, in its wisdom, shall "selling device" and "an attempt to convince adequate safeguard in the face of the slick and deceptive selling techniques of enact. the parent to allow the child to participate." It has been argued that portions of my some educators. Yet, at least the re- Two child psychiatrists testified without amendment would throttle innovation contradiction * * quirement of parental consent informs as to several * dangerous and virtually close down title III and aspects of the CPI Program, none of which the parents, to some extent, about what is other innovative educational efforts are mentioned * * * in any of the materials being done with and to their children in sponsored by the Federal Government. to be made available to parents. These dan- schools, and it offers the best available gers include the risk that the CPI Program This is surely not the intent of my protection against educational abuses will operate as a self-fulfilling prophecy in amendment, nor would it be the effect. which a child labeled as a potential drug that I can think of. Additionally, it will My amendment simply gives individual abuser will by virtue of a label decide to be encourage schools to improve these types parents the right to be informed about that which people already think he or she of programs and to eliminate the poten- out-of-the-ordinary federally funded Is anyway * * * Another danger mentioned tial for abuses beforehand, thereby tend- Is that of scapegoating in which a child programs In which their child might par- might be marked out by his peers for un- ing to reduce the future occurrences of ticipate, and assures the parents the pleasant treatment either because of refusal irate parents going to court because of right not to have their particular child to take the CPI test or because of the result shoddy and harmful programs in the participate if they find such a program of the test." Additionally, there is a "severe schools. objectionable. Granted that there will loyalty conflict that might result by asking If anyone doubts the seriousness of the be some inconveniences and logistical children the types of personal questions problem, I direct their attention to a problems involved in this. But what suf- about their relationship with parents and siblings which are included in the CPI ques- recent communication from the Nation- ficient reason is there for anyone to tionnaire." Finally the qualifications of the al Education Association (NEA) in which stand up and say that parents must be school district personnel who will admin- that organization announced its opposi- denied these rights? What do the schools ister the interventions once potential drug tion to my amendment which would re- and the Federal agencies have to hide? abusers have been identified are woefully quire school officials to obtain prior, writ- As a matter of fact, my amendment Inadequate. ten, informed consent whenever the need not create undue problems. For The court found that the confidenti- school officials would have those parents' example, the Russell Sage Foundation ality of the program broke down when children subjected to a project, program published a very thoughtful study in 1969

HeinOnline -- 120 Cong. Rec. 14581 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 4 of 27 1-4582 CONGRESSIONAL RECORD - SENATE May 14, 19 74 entitled, "Guidelines for the Collection, Mr. JAVITS. Under those circum- sense all education has an effect on atti- Maintenance, and Dissemination of stances, Mr. President, I withdraw the tudes, and so forth. I.believe there is a Pupil Records," which included samples amendment. tacit rule of commonsense that applies of simple forms that could be mailed to The PRESIDING OFFICER. The to the interpretation and application of parents to obtain their permission for amendment is withdrawn. all legislation and I speak of courses, the certain activities with regard to their Mr. MATHIAS. Mr. President, will the primary purpose of which is to modify children. I would also further note that Senator yield? behavior. many schools and a number of States al- Mr. PELL. Mr. President, we are on the The PRESIDING OFFICER. The time ready routinely require the prior consent Buckley amendment, with how much of the Senator from Maryland has of parents on a number of matters, in- time on each side? expired. cluding both special testing and some The PRESIDING OFFICER. The Mc- Mr. MATHIAS. Will the Senator yield special programs or projects, such as Clellan amendment is before the Senate to me for 3 additional minutes? drug programs or sex education. at the moment. A unanimous-consent re- Mr. PELL. I yield. Permit me to add, also, that many ele- quest would be in order to proceed to the Mr. BUCKLEY. So clearly the exam- ments of my amendment follow the rec- Buckley amendment. ple of the Senator from Maryland would ommendations of the report of the Sec- Mr. ROBERT C. BYRD. Mr. President, not be covered. retary's Advisory Committee on Auto- I ask unanimous consent that the Sen- Mr. MATHIAS. Of course, my concern mated Personal Data Systems at HEW, ate now proceed to the consideration of is that the language of the amendment entitled "Records, Computers, and the the Buckley amendment, No. 1289. might cover it. That is what gives me Rights of Citizens." The PRESIDING OFFICER. Without some uncertainty. Equally important as the other ef- objection, it is so ordered. Let us pass to section 437(c) (1). Let fects of my amendment is the likelihood Who yields time? us assume the unhappy possibility that that the obligation to inform parents Mr. MATHIAS. Mr. President, will the a student is suspected of having bombed will begin to close the gap of hostility Senator from New York yield me 3 the chemistry laboratory and the FE I or that too often exists between parents minutes? another law enforcement agency comes and teachers, each distrusting the other. Mr. JAVITS. Yes, in opposition. into the school, let us say, without a ju- The increased openness and communica- Mr. MATHIAS. I have some questions dicial order. Would they be unable to ex- tion with parents on the part of the I would like to ask the distinguished amine the records or files of the student schools which would follow from my junior Senator from New York, because I without the "prior, informed, written amendment would enhance parental in- salute the thrust and the purpose which consent" of the student's parents? terest and involvement in their children's I think he seeks to accomplish by this Mr. BUCKLEY. I believe they should education, and in the long run could amendment. get a court subpena to have access to lead to improved education and more But I do want to be perfectly certain the records. harmonious school-community relations. that I understand the practical effect of Mr. MATHIAS. The amendment does Mr. President, it is time for the U.S. it. Turning to section 437(b) (1), page not even provide for access with a sub- Senate to take a stand in favor of, and 3, I am wondering what effect this pro- pena without parental consent. to act to protect the rights and privacy vision would have in the case of a stu- Mr. BUCKLEY. I refer to page 6, where of parents and students where the Fed- dent who was the victim of an accident it is stated: eral Government and Federal funds are in the school, or the victim of an acci- In compliance with any court order, or involved. Therefore, I urge the Senate dent on a playground. Would it prevent pursuant to any lawfully Issued subpena, if to give favorable consideration to my the parents and students are notified of any the school from arranging to have him such order In advance of the compliance amendment. immediately examined and medical therewith . . . I reserve the remainder of my time. treatment given to him? Mr. MATHIAS. Mr. President, will the Mr. BUCKLEY. No, of course not. Nor- Mr. MATHIAS. The Senator is correct Senator yield? mal medical advice and hospital pro- but also it would require the warrant or The PRESIDING OFFICER. Under cedures usually require parental consent, the written consent, evefi in the case I the unanimous-consent request, the and in those situations where the parents suggested. Senate must return to consideration of could not be contacted the treatment Now, I wish to ask the Senator this the Javits amendment. would be available. question. Does the provision allow the Mr. JAVITS. I yield myself 2 minutes Mr. MATHIAS. Would it not be neces- use of any identification device other on the bill. sary then, to have an exception because than the names of students or the names After discussion with Senator PELL, I there is an exception in the general im- of parents? wish to state the following facts: One, munization, and I think the case of emer- Mr. BUCKLEY. No, it does not. Puerto Rico is treated as a State in the gency treatment would have to be made Mr. MATHIAS. So that would be the House, so the amendment will be in con- in an excepted case or else the school only possible identification, there could ference. Two, we should figure out ex- would be under some jeopardy here. be no other identification of any sort? actly what the relationship would be of Mr. BUCKLEY. I would be glad to ask Mr. BUCKLEY. No. the poor children who would be covered unanimous consent to amend my amend- Mr. MATHIAS. And the Senator feels in Puerto Rico, whicli we will do, com- ment by inserting on line 11, page 3, fol- that that is a useful provision. pared to the other States, and see, there- lowing the word "immunization" the Finally, there are certain programs in fore, whether my estimate of something words "or emergency medical treat- which there is some testing, specifically, a little more than 2 percent, but not sub- ment." ,HEW through the National Institute of stantially over that, is justifiable. I want The PRESIDING OFFICER. Is there Education has made a grant to test and to check that out. Three, I now ask the objection to the Senator from New York experiment with an educational voucher Chair to make a ruling on this: Notwith- modifying his amendment to that ef- program. I am sure the Senator is fa- standing the fact that a substantive ques- fect? The Chair hears no objection, and miliar that such programs are now un- tion may be affected, an amendment may it is so ordered. derway in California and Vermont. occur at a later part of the bill, notwith- Mr. MATHIAS. If there were a course Under this provision if the parents of standing the adoption, if it should be being given which is clearly a course a child object to the child's participation, adopted, of the McClellan amendment, which is causing the student to alter his then that child would not be able to which may make a substantive change, behavior for the good, let us say in the take part. Is that correct? provided it does not cover the same lan- matter of grooming, as the result of a Mr. BUCKLEY. That is correct. guage which is contained in the McClel- course in civics, where he has become Mr. MATHIAS. What will happen to a lan amendment-whether another more interested in the system, and we program of that sort? amendment, under the rules of the Sen- have a course which is a positive influ- The PRESIDING OFFICER. The time ate, would lie at the end of the bill. ence on the student's life, would the Sen- of the Senator from Maryland has The PRESIDING OFFICER. So long ator's amendment require the parents' expired. as the amendment is redrafted, so long "prior, informed, written consent" for Mr. MATHIAS. Mr. President, will the as it does not affect the text of the that type course? Senator yield to me for I additional amendment, it would be in order. Mr. BUCKLEY. Quite obviously In one minute?

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Mr. PELL. I yield 1 additional minute third persons, or the records sought may be 5. Subsection (c) requires parental con- to the Senator from Maryland. stored in a central school district file or at sent for the release of personal data, except Mr. MATHIAS. What will happen to the state level. Accordingly, while adminis- in certain instances, including the "order of that child if the entire school is involved? trative footdragging can not be condoned, administrative agencies having the power of compliance in many Instances will not be subpoena." It would appear that a federal What happens to that child when the possible unless the time limit is extended to agency, which is so empowered, can by-pass whole school is involved, as in the case of 45 days-and preferably 60 days. the amendment merely by issuing a gen-'ral California and Vermont? Does the child 3. Subsection (b) of the amendment pro- order applicable to all students who, for ex- have to be withdrawn from that school vides that no student "participating in an ap- ample, attend a particular school, are in- and some alternative education provided? plicable program" shall be required to under- volved in particular activities, etc. While in- Mr. BUCKLEY. That child would ob- go medical, psychological, et cetera, exam- vestigations by federal officials may be nec- viously be handled in the school as if he inations without parental consent. This essary in certain circumstances, if the scope were not-in other words, his State di- means that if a state or local agency is of the above exception is as broad as we sug- rectly would pay for that tuition. operating an examination program of that gest, then the basic purpose of the amend- federal aid, consent ment is defeated. Mr. MATHIAS. Then, the Senator's kind and is not receiving is not required. But if the education agency 6. Subsection (c) (4) of the amendment re- concept is that under this provision- is receiving ESEA II library funds, for quires that a list of all persons or agencies Mr. BUCKLEY. It would not abort the example, then consent is required. The basis desiring access to a student's records shall experiment. for this distinction is difficult to understand. be maintained in that student's file. Al- Mr. MATHIAS. But the child would Since the examination in question would be though parents, students, and certain school have to have some other education pro- pursuant solely to a state program author- officials should have access to that list, oth- vided in some other location or in ized and perhaps mandated by state law, er persons or agencies should not-lest the some student be characterized by the innuendo of other manner. federal legislation would be Inappropriate in However, previous searchers of his files. Mr. BUCKLEY. If a parent did not either case as a matter of policy. a different situation may arise when the It should be mentioned that the finan- want to accept the voucher the child education agency includes such an examina- cial costs of producing records, implementing would continue to be educated in the tion as part of one of Its federal programs. parental consent procedures for Innovation school he attended. If the latter situation is a proper area for and divulgence of Information, and main- Mr. MATHIAS. But if the whole sys- federal involvement, then the overbreadth taining information requests lists are sub- tem were committed to the program, of subsection (b) (1) can be corrected if, after ordinate to the primary objective sought by there would be no other school for him the words "no student" the words "partici- the amendment-but should be taken into to attend. That seems to be the nub of pating in" are deleted and the words ", as account nevertheless. Unfortunately, we do a part of," are substituted in lieu thereof. not have ample time to develop cost figures. the problem. In summation, we urge that you withhold Mr. BUCKLEY. I disagree. I do not 4. Subsection (b) of the amendment also prohibits the participation of any student in support for the amendment, unless the above believe it would be interpreted in that an applicable program which involves any described problems are resolved. way. research or experimental project without the Sincerely, The PRESIDING OFFICER. Who consent of the student's parent. Research AUGUST W. STEINHILBER, yields time? and experimental project is then defined as Assistant Executive Director, Office of Mr. PELL. Mr. President, the junior "includes but is not limited to, any program Federal Relations. Senator from New York and I have previ- or project designed to explore or develop Mr. PELL. Mr. President, I am not en- ously discussed this amendment. I ask new or unproven teaching methods or tech- thusiastic about the amendment, but it unanimous consent that a letter from the niques, or to explore or develop teaching techniques or courses affecting the social de- does have some merit. Section (b) con- National School Boards Association be velopment, personal behavior, or values of cerns me. inserted in the RECORD. the student." Given the broad brush of the The amendment disturbs me in that it There being no objection, the letter above definition, quite conceivably almost states that: was ordered to be printed in the RECORD. any classroom effort would be subject to No student shall be required to under- as follows: challenge on the grounds of "new" pedagogi- go ... testing without prior written consent NATIONAL SCHOOL BOARDS ASSOCIATION, cal style or personal impact upon particular of the student's parents in any project. Evanston, Ill., May 2, 1974. students. But even at some point short of Hon. CLAIBORNE PELL, a literal application, the above definition will The thought I have Is that if the Sen- U.S. Senate, Old Senate Office Building, grind public education into a stultifying ator would withdraw that section (b), Washington, D.C. routine rather than the creative experience we could decide the fate of his amend- for children. And, to DEAR SENATOR PELL: Pursuant to his "dear which it should present ment by voice vote, and my voice would colleague" letter dated the extent any innovation is challenged there April 26, 1974, Sena- be saying "aye" or if he insists on leav- tor Buckley set forth proposed amendments is some question whether the Department to S. 1539 relating to "Protection of the of Health, Education and Welfare will make ing it in, which from my side of the aisle Rights and Privacy of Parents and Students" nationally or communty based judgments as I do not recommend, I would have to ask (Sec. 513). In general, the National School to new techniques or definitions of student for a rollcall vote. Boards Association believes that the intent values. In either case It Is also questionable Mr. JAVITS. Mr. President, will the of the amendment is meritorious, but that whether the federal government can or ought Senator yield? operationally its accomplishment will gen- to be involved In deciding questions relating erate unacceptable confusion because of the to "social development, personal behavior, or Mr. PELL. I yield. complicated legislative language and local values of the student." The requirement of Mr. JAVITS. Under these circum- administrative conditions associated with individual parental consent to all programs stances the amendment could be taken the approach taken In the amendment. We raises other questions of federal policy. We to conference, but the administration have been in contact with the Senator and now have federally mandatqd state advisory has grave problems with other parts of committees, local advisory committees, and he has some of our specific concerns under it. Having reviewed the administration's advisement. Those concerns are outlined even in some programs, school by school wishes, I below: parental committees. That amendment adds believe they would be suscep- 1. The amendment requires that parents yet another layer to the existing stream of tible to handling it in conference. How- have the right of access to their child's administrative costs and formalities asso- ever, I do not want my colleague to feel school files and that their consent be ob- ciated with school board policy Implemen- we have written letters of love that we tained prior to release of such files to third tation. One might begin to ponder the role are going to preserve all of it. I think the parties (with certain exceptions). However, of the taxpayer voter in our education sys- administration's suggestions do not if the rights of students are distinguishable tem after one more review Is added on top change its fundamental thrust, but from the rights of parents, and if the asser- of the governmental structure which he takes certain precautions. I hope in con- tion of those rights should not be solely de- elects to represent him. Although this re- pendent upon parental willingness, the striction only applies to federal programs ference we can work It out that way. amendment should give students an inde- (which in itself is perplexing, inasmuch that Mr. STEVENS. Mr. President, will the pendent right of access to, and consent with if restrictions on experimentation is the ob- Senator yield? respect to the divulgence of, their files. ject sought, the source of funds should At be Mr. PELL. I yield. the same time, it may be advisable to impose irrelevant), that too is overboard. If such a a minimal age, such as 15 years, at which restriction Is really advisable, it should only Mr. STEVENS. Mr. President, I have the child's independent rights would attach. be applied to ESEA Title III programs, which serious questions about subsection (c) 2. The amendment requires that school are designed for experimental purposes, and which I think runs contrary to a great authorities provide parents with student files not to programs such as ESEA Title I or many Federal policies and the best in- within thirty days after the request is made. NDEA III, which are not intended to ex- terests of the student. I intend to offer In many instances, records may have to be pose the child to Innovative techniques on an amendment screened in order to delete references to to either delete that sec- other than a random or incidental basis. tion or to modify it substantially in sev- CXX--919-Part 11

HeinOnline -- 120 Cong. Rec. 14583 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 6 of 27 14584 CONGRESSIONAL RECORD- SENATE May 14, 1974 eral ways. I just want to let my friend that information, or if they want to talk Mr. ERVIN. This would prevent schools from Rhode Island realize that. I hope to teachers, they are not going to get it. from making guinea pigs out of children to have a chance to have an exchange I do not see the necessity for subsection and delving into their personal attitudes with the Senator from New York con- (c). What is the necessity for it? and their attitudes toward their families, cerning that. Mr. BUCKLEY. I described it in my as has been done in many schools As I understand subsection (c), it statement. The fact that this informa- throughout the United States. Is that would prevent a high school from giving tion gets leaked out all over the place is correct? to a bank that wants to send out infor- injurious to the child. It haunts chil- Mr. BUCKLEY. Yes. mation about its loan program to stu- dren in their later lives. I think we ought Mr. ERVIN. It is designed to prevent dents, the names and addresses of stu- to put a stop to it. disclosure, except to those who are au- dents without consent of the students' Mr. President, how much time do I thorized to receive them, of personal data parents. I cannot understand this over- have remaining? about these children. Is that correct? protectionism to the point that it could The PRESIDING OFFICER. The Sen- Mr. BUCKLEY. The Senator is cor- not offer to those students information ator has 18 minutes remaining. rect. about Federal loan funds. One could not Mr. BIDEN. Mr. President, will the Mr. ERVIN. I am personally in favor get the names and addresses of students Senator yield me some time to ask the of the proposal. in one's State to get them the informa- Senator from New York some questions? Mr. President, I am pleased to co- tion of the opportunities available under Mr. BUCKLEY. Mr. President, I yield sponsor the amendment concerning the Federal student loan program. 5 minutes to the Senator from Dela- right to privacy and school records pro- Under subsection (c), if I were a pro- ware. posed by Senator BUCKLEY to S. 1539, bation officer, I could not sit down and Mr. BIDEN. The Senator from New the Elementary and Secondary Educa- talk with the teacher to get personal in- York, I think, should be complimented tion Amendments of 1974. The issue of formation from the teacher about the on this amendment. I think it is long rights to privacy of public school pu- student who was subject to a criminal overdue. I do not share the concerns of pils and their parents is one which has process. I do not know whether the Sen- the Senator from Alaska. Having been a recently become highly publicized in ator realizes how many cases go through public defender, I do not think a proba- many different circles, but it is a prob- the juvenile courts these days, but it is a tion officer should be able to sit down and lem that has long been with us. The time fantastic number. talk with teachers about these matters. has come to do something about it. So I hope the Senator does not think They think they are psychologists and This amendment would accomplish this is going to breeze through without psychiatrists, and they do more harm to several worthy objectives. It would give any debate. the child than they help him. But my parents of public schoolchildren the Mr. BUCKLEY. Mr. President- objection relates to subsection (b). right of access to their minor children's Mr. PELL. Mr. President, I yield to the I am an early cosponsor of this amend- chool records. Importantly, parents Senator from New York, on his time. ment, but I think subsection (b) should would be able to challenge any part of Mr. BUCKLEY. Mr. President, I be- be clarified so we understand what It the contents of the records for their au- lieve that argument is a paper tiger. We would do. In that section it says: thenticity. The only persons having ac- are talking about invasion of personal, No student shall, as a part of any applica- cess to those records in addition to the private data. My amendment does not ble program, be required, without the prior, parents would be school officials, the affect matters of public record, which informed, written consent of the student's board of education, and officials at a may be names and addresses of people parents, to participate in any project, pro- school to which the pupil might be who happen to be students in a school. gram, or course, the primary purpose or prin- transferring. In order for any other cipal effect of which is to affect or alter the Mr. STEVENS. Let me read from sub- personal behavior or personal values of a stu- person to have access to the records, section (c) : dent, or to explore and develop teaching tech- the parents must give their written per- Permitting the release of records or files niques or courses primarily intended to af- mission and the permission form would (or personal information contained therein) fect such behavior and values. then become a part of the student's of students without the written consent of permanent record. In addition, no stu- their parents to any individual, agency, or If that were to be misread, it could be a dent could participate in any medical organization ... very, very restrictive section. or psychological testing program with- I would like, for the record, to ask a out the prior, informed, and written con- Does the Senator interpret that to few questions. mean a bank could not say, "Give me the sent of his parents. Parents of the pu- Specifically, in a school for the deaf, pils would be able to review any and all names and addresses of your graduating will a project designed to test the effec- seniors?" Does the Senator interpret instructional materials that are used by tiveness of a new audiology machine be their child's teacher. that to mean a probation officer could termed "research and experimentation" not get information from teachers or the One of the primary aspects of this new under this amendment? legislation is the provision stating that files that would help a juvenile accused Mr. BUCKLEY. Certainly not. This is of a crime? the schools, through the board of educa- directed toward developing new, experi- tion, the principal, or the teacher, would As prosecuting attorney, I can tell the mental educational techniques. Certain- Senator that probation officers need such bear the burden for informing the par- ly, new devices for helping-it is really a ents and students of their rights and for information to help the students. I think medical device-the deaf to hear, or new this is a shotgun approach. I applaud the keeping them fully posted at all times of research involving such things as "new anything that would come within the Senator's desire to protect students, but math," traditional courses-would not be we are overprotecting in this way with scope of this legislation. The penalties affected at all by this amendment. for noncompliance with this act would regard to many activities in a school. I Mr. BIDEN. Would diagnostic tests be a loss of the Federal funds that had do not want to hurt any student, but we given to students at the beginning of a been made available to the school. are not going to be able to help him with course in order to gage the strengths this amendment. That is the trouble with Much of the controversy concerning and weaknesses of students in various these school records centers around the it. academic disciplines be considered "re- use of classroom questionnaires that are Mr. BUCKLEY. I believe the parents search"? have as much interest in protecting their Mr. BUCKLEY. No; this is normal re- financed by governmental grants, often Department of Health, Education, child as does the Senator from Alaska, search; it is not experimental. It is not the but the Senator is reading into the research into new research activities. and Welfare or a similar agency at the amendment the inclusion of the simple Mr. BIDEN. So it is not intended to state or local levels of government. These in a stu- listing of names and addresses really alter the traditional academic dis- questionnaires are thinly disguised as dent's records and files. "research projects," although In actual- Mr. STEVENS. I am happy to know ciplines? The Senator is not going after that? ity they often amount to highly objec- that, but how does a probation officer tionable invasions of the psychological go about getting that information? I saw Mr. BUCKLEY. That is correct. Mr. ERVIN. Mr. President, will the privacy of schoolchildren. Oftentimes, a lot of probation officers as district at- the students are told that the responses torney. If they were to have to go to Senator yield? busy juvenile court judges and subpena Mr. BUCKLEY. I yield. they give are classified and will not be

HeinOnline -- 120 Cong. Rec. 14584 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 7 of 27 May 14, 1974 COTNGRESSIONAL RECORD - SENATE 14585 8. Does your teacher help you with your than to Is it easy for you to make friends? used for any other purpose Do other children get you into trouble at work when you need help? gather and analyze statistical data on school? 9. Do you like doing arithmetic problems the educational situation In the public Would you rather play with friends who at school? schools. However, it has been too often are younger than you or older than you? 10. Do you wish you were in a different demonstrated that these data stand class that was not in LEM? strong possibilities of being incorporated I certainly believe that this is most 11. Do you like to learn about science? important legislation and that the Con- 12. Does the LEM have too many rules? into computerized data banks or in other 13. Do you always have to do what the ways being disseminated to persons not gress should act wisely and in a forth- right manner to recognize the rights to other children want to do? connected with the educational process. 14. Do you like the other children in the privacy of public schoolchildren and The questionnaires usually cover many LEM? im- aspects of the student's personal life and their parents. I am particularly 15. Do your teachers like some children personality. The categories cover the pressed by the strong bipartisan support better than others? 'tudent's attitudes toward his home and that this amendment has received from 16. Do other people at school really care family, his school and teachers, his feel- members of Congress and from many about you? and his feelings about public and private sectors of our society. 17. Are you proud to be in the LEM? ings about himself, often get a chance to make his peers and classmates. It is my belief I urge the Senate to adopt this Buckley 18. Do you amendment to the Elementary and Sec- decisions with others in your group? that no governmental agency has any 19. Do you tell people that you like the ondary Education Act of 1974. business conducting such inquiries unless LEM? my mind school officials should not the parents of the children are made In SELF maintain any records out- fully aware of the subject matter of the be allowed to (Yes or No Answers) side of the reach of parents, much less inquiry and subsequently give their full 1. Do you often get sick at school? such a personal nature as consent. The situation now is that chil- records of 2. Can you give a good talk in front of A parent has dren are rarely given a free and unprej- those that we have seen. people? udiced choice of answering or not an- every right to know exactly what infor- 3. Do you wish you were younger? swering the questionnaires. In addition, mation is being collected concerning his 4. Do you wish you were older? parents would be able to request to re- children, and the provisions of this 5. Do you often feel happy in school? view their children's school records and amendment constitute what I feel are 6. Are you a good reader? minimum considerations in the protec- 7. Do you wish you were a different child? would have the right to challenge any 8. Can you wait your turn easily? tion of that right. While the measures adverse content. 9. Are you good in your schoolwork? Mr. President, I intend to ask soon provided for are strong, I feel the seri- 10. Are you a good child? for unanimous consent that some of these ousness of the issue well justifies the 11. Are you one of the last to be chosen questionnaires and summaries of ques- approach. The parent must have ulti- for games? tionnaires be reprinted in the RECORD. mate responsibility for the well being of 12..Do you feel lonely very often? However, I do wish to read, for purposes his children. This amendment recognizes 13. If you have something to say, do you of emphasis, some of the more offensive that responsibility. usually say it? Mr. President, I ask unanimous con- 14. Do you like the teacher to ask you ques- questions although they are all certainly tions in front of the other children? in that category. The examples that I use sent that the questionnaire from the 15. Do the other children in the class think are from public schools in the States of Hackensack Public Schools of Hacken- you're a good worker? Maryland and New Jersey, although sack, New Jersey, be submitted for re- 16. Do you find it hard to talk to your there exists strong evidence that these production in the RECORD. In addition, group? unfortunate practices know no geo- I ask unanimous consent that the tran- 17. Are most children able to finish their all of script of a press conference held on schoolwork more quickly than you? graphical boundaries. Practically silly Just so people the questions can be answered with a April 19, 1974, by an organization known 18. Do you often act Care, based in Wheaton, will pay attention to you? yes or no or multiple choice answer. as Parents Who 19. Do you like most of the people you There is no room for explaining an Md., which recounts this problem in know? answer: greater detail also be printed in the 20. Can you be depended on? HOME AND FAMILY SITUATION RECORD. 21. Do you like being Just what you are? Are you an important person to your There being no objection, the material PEERS family? was ordered to be printed in the RECORD, (Yes or No Answers) Would you like to run away from home? as follows: 1. Do other children get you into trouble at Are your parents strict or lenient? HACKENSACK PUBLIC SCHOOLS, school? Do you often argue with your parents? Hackensack, N.J. 2. Do you have to do what the other chil- What types of appliances, books, furnish- LEARNING EXPERIENCE MODULE-FANNY MEYER dren want to do? ings, and leisure facilities do you have in HILLERs SCHOOL 3. Do you like the other children in the your home? STUDENT ATTITUDE INVENTORY LEM? SELF-EVALUATION 4. Do other children in the LEM like you? Do you admire students who are bright? Name ------5. Do you always let other children have Girl - LEM ---- Grade ------Can you give a good talk In front of people? Boy - their way? Date...... Do you wish you were a different child? Do you have many friends? Listen carefully to each ques- 6. Do you feel lonely very often? Directions: other children often mean to you? and feel. If 7. Are Are you one of the last to be chosen for tion and decide how you think 8. Do your friends usually do as you say? games? you don't understand a question, ask about 9. Does being with other children bother a circle Do you like being Just what you are? it. Answer each question by drawing you? around either "yes" or "no". SCHOOLS AND TEACHERS 10. Is it easy for you to make friends? Responses Are some students favored over others by ii. Would you rather play with friends who your teachers? Attitude Toward Home and Family: yes, 5; are younger than you? to go to no, 3. HOME AND FAMILY Do most other students want Attitude Toward Peers: yes, 5; no, 6. school? (Yes or no answers) Attitude Toward Self: yes, 12; no, 9. three best friends (complete Who are your Attitude Toward School and Teachers: 1. Are you an important person to your ? names) yes, 13; no, 6. family? For what reasons have you been scolded in 2. Do you have certain responsibilities at SCHOOL AND TEACHERS class? hor ? How do you rate your teachers to other (Yes or No Answers) 3. Do you tell your family when you are teachers at your grade level? 1. Are your teachers interested in things mad at them? Do you ever miss school or a class simply you do at home? 4. Would you like to run away from home? 2. Do your teachers give you work that is because you do not wish to go? it pleasant to stay at home on days too hard? 5. Is school mean that there is no school? Does a diploma from your 3. Is the LEM a happy place for you to be? when you behaved yourself or that you really 4. Do you like to read at school? 6. Do you get upset easily at home? learned something? 5. When you don't understand something, 7. Do brothers and sisters prevent you from PEERS AND CLASSMATES are you afraid to ask your teacher? being happy? Do you have many friends? 6. Do you like to paint pictures at school? 8. Do your parents think school is impor- Does being with other children bother you? 7. Do you like to write stories at school? tant?

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STATEMENT BY A COALITION OF CONCERNED from the National Institute of Education of Hairstyle; PARENTS FROM EIGWT MARYLAND COUNTIES the Department of Health, Education and Church attendance; REPRESENTING FIVE CITIZENS ORGANIZATIONS Welfare (Contract No. NE-C-00-3-0114). Household chores; ON INVASION OF PRIVACY BY MARYLAND PUB- Last year 7,200 students in grades 4, 5, 6, 8, Returning home from school; LIC SCHOOLS and 11 were surveyed. This year, between Smoking; Good Morning: My name is Malcolm Law- February 1 and March 15, the same students Age for starting to date; rence. I am Director of Public Relations for were given a follow-up survey. For each Going steady; and Parents Who Care, a Montgomery County class tested, a team of trained administrators Frequency of dating. citizens group founded in October 1971. In from Johns Hopkins University marched in; The student is asked to answer YES or NO addition to the Parents Who Care group, I the teacher was asked to leave the class; and as to whether the following items are in his speak today on behalf of Individuals from the students were handed a 17-page ques- home: seven other counties in Maryland represent- tionnaire and told, "This is not a test. There Telephone; ing four other citizens organizations. are no right or wrong answers. Your answers Two telephones; I should like to introduce the other mem- will not be given to your teachers or anyone Vacuum cleaner; lers of the group. who knows you." Stereo hi-fi hecord player; Mrs. Jean Carter, from Howard County, According to a December 1973 report of Air conditioner; representing Citizens Advocating Responsi- the Center for Social Organization of Schools, Electric dishwasher; ble Education (CARE). the Johns Hopkins study is designed to "in- Your own family washing machine; Mrs. Pat Dunlap, from Prince Georges vestigate the effects of open environment Your own family clothes dryer; County, representing Citizens for Commu- schools on student reactions to school life, Dictionary; nity Schools (CCS). student self-reliance, student ability to make Encyclopedia; Mrs. Margaret Kuhn, from Prince Georges realistic judgments, and student achieve- Daily newspaper; County, representing Guardians for Tradi- ment on standard tests of academic per- Three or more magazine subscriptions; tional Education. formance." A January 14, 1974 memorandum Black and white TV; The remaining individuals represent the from the Howard County Superintendent of Color TV; Maryland Committee for Public Disclosure Schools to Directors, Supervisors, and Prin- Car; in Education; they are: cipals reported that three evaluating teams Second car; Mr. James E. English, from Allegany will operate in Howard County schools this Two bathrooms; County. year: the fifth year of a program being con- Tape recorder; Mrs. Gloria Donohue, from Anne Arundel ducted by the University of Maryland, the Home movie projector; County. project of Johns Hopkins University, and a Home slide projector; Mrs. Betty Fahey, from North Baltimore study of the entire school system to be un- Typewriter; City. dertaken by the Institute of Field Studies of Piano; and Mrs. Isabel Fox, from West Baltimore City. Columbia University. The Columbia study Skis or golf clubs. Mrs. Rita Ann Ayd, from Baltimore County. was described as a survey of data produced The organizations represented here today Mrs. Jo Ann Spriggs, from Carroll County. by the Maryland and Hopkins surveys, with consider these questions on the family sit- Mrs. Barbara M. Morris, from Howard the purpose of synthesizing these and other uation to be clear invasions of privacy of the County. findings to come up with "recommendations student and of the home by the school sys- I have a statement to make, following for future development of the school system." tem. Whatever the purpose of the Johns Hop- which we shall be happy to entertain ques- Three weeks ago, representatives from our kins University questionnaire, we strongly tions. groups called on the National Institute of protest against this type of probing into the The United States Constitution guarantees Education to obtain more information on personal affairs of the student and his fam- to the American citizen a number of funda- the scope of these projects and to learn ily life. mental rights that can not be infringed by where else these programs were either being Let us turn next to the category of self- the federal or state governments without undertaken or envisaged. The spokesman for evaluation in the Johns Hopkins question- compelling justification. These rights in- the NIE did not shed any further light on naire: clude the right to marry, the right to bear the Johns Hopkins survey and refused to Here, the student is asked whether he pre- respond children and to maintain a family, the right to the question as to whether NIE tends to be busy in class when he is really to control one's own body, and the right to was also financing the University of Mary- just wasting time. direct the upbringing of one's children. land and Columbia University projects. Whether being popular with other people I should like at The essence of these rights is that they this point to give the sub- his age is more important than anything are so basic to personal liberty that they stance of a number of questions from the else to him. merit a high level of protection from inva- Johns Hopkins University survey. We have If someone often has to tell him what to divided the questions into three sions by the state. The rights we have cited general do. categories: 1) are sometimes described as "fundamental" Family Situation, 2) Self- If he admires students who are very bright. Evaluation, and 3) Feelings or "natural" rights inherent in American and Attitudes When he doesn't know the answer, if he tradition or Western values; sometimes they toward the School and Teachers. will try to fake It rather than say he doesn't are based upon the 14th Amendment's guar- First, Family Situation: know. The antee of liberty or the 9th Amendment's res- student is asked how most decisions Whether he will usually give in because he about him are made ervation of rights to the people; in other in the family. doesn't want to upset his friends. How much a part he plays in the cases such rights are based on common law decisions. If he is known as a person who will dare How far in school his father went. principles. Whatever the basis, it is clear to be different. How far in school his mother went. that parents, as part of their right to raise If he knew the teacher was not going to Whether his parents are strict or lenient. a family, retain basic decision-making au- collect his homework, whether he would no If his parents want him to follow their di- thority and responsibility concerning their his best. rections even if he disagrees with their children's education that cannot be abridged he gets blamed for things that reasons. Whether by the states whether by direct exclusion of are not really his fault. Whether his parents often the parents or by indirect exclusion through worry that he The student is asked If the best way to is up to something they won't like. the withholding of crucial information about get ahead in life is to be nice to all people. Whether his parents disapprove when their children. he he likes to be by himself because disagrees with them in the presence of Whether We have called this press conference today their lot of things he likes to do alone. friends. he has a to express publicly our strong objections to uncomfortable if he dis- The student is asked whether Whether he feels materials and practices in the public schools he knows why he is supposed to do what his parents agrees with what his friends think. of the State of Maryland which we feel con- If the student sometimes feels angry when stitute invasions of privacy of both students tell him to do. Whether he has a lot of loud arguments he doesn't get his way. and parents. It is our view that many teach- for him to face the with his If it would be hard ers are similarly in opposition to these ma- parents about their rules and de- cisions regarding his activities. "cold, cruel world." terials and practices, but are unwilling to If he can say "No" when his friends call openly denounce them for fear of reprisal or And whether his parents treat him more like a little kid than an adult. him to do something with them. dismissal from the public school system. We put off leav- The student is asked if his parents have He is asked whether he will are urging the Governor of Maryland to take ing his home and friends for as long as Immediate steps to safeguard the rights of definite rules relating to the following activities: possible. students, the parents, and the teachers. like the way things were going The time to be in at night on weekends; If he didn't Our leading candidate for removal from in a group, whether he would hesitate to tell The time to Maryland public schools is an extensive ques- be in on school nights; the leader. tionnaire which has just been given to more Time spent watching television; Whether he really cares if some people than 7,000 students in Howard County. The Going around with certain boys; don't want to be friends with him. questionnaire was given as part of a research Going around with certain girls; Whether he tries to get out of doing work project administered by the Center for the Eating dinner with the family; and hopes no one will find out. Social Organization of Schools at Johns Hop- Using the telephone; If he prefers to let other people In a group kins University, funded by a $200,000 grant Clothing; make the decisions.

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It is our view that this line of self-evalua- neither seen nor heard? A good many of the in the State of Maryland have found a veri- tion, self-analysis, self-criticism, and con- queries are negative in tone; in our judgment table gold mine in grants, contracts, and fession is pure and simple an invasion of they foment inner frustrations in the stu- techniques that are turning public school psychological privacy of the child. Students dents and create student animosity toward children into a collection of guinea pigs of all ages are asked to direct their thoughts the teachers and the particular school at- who are constantly being battered with ques- to introspection and unwittingly lay bare tended. As I have indicated, the regular class- tionnaires, personality tests and a variety of their inner-most feelings to the data collec- room teacher is not involved in this test and other inquisitions which are clearly invasions tor for whatever purpose he may wish to is therefore unable to respond or even know of privacy of both the student and the home. make use of them. about the criticisms by the students. But To cite one widespread example, the Mary- Our third and final category of the Johns the most damaging questions in this cate- land State Board of Education By-laws call Hopkins test deals with feelings and atti- gory are those which extract self-incrimina- for a compulsory treatment of subject mat- tudes toward the school and teachers: ting information from the students them- ter known as Interpersonal Relationships. No The student is asked if he feels lost in selves on truancy, insolence, and other im- child in public schools in the State of Mary- school. proper activities in school. Self-confessions land may be excused from these discussions If he feels the tension build up in him by students on such things as fighting in and classroom activities, which are inter- when he is in school. class and telling off the teacher provide an spersed throughout the curriculum from If he often does not know what he is sup- evaluation team with data to be entered into kindergarten through the 12th grade. Under posed to do. a permanent personality record classifying this program, children must be subjected to Whether most of his teachers want him students as maladaptive, aggressive, anti- all types of probes into their psyches and to do things their way and not his own way. social, emotionally disturbed, and predelin- family situations. Here in Montgomery Coun- Whether his teachers tolerate a lot of ques- quent. ty, for example, elementary school children tions during a lesson. The Johns Hopkins test may have run its are forced to participate in the following ma- If certain students in his classes are fa- course for this year with the students, but terial and questions: vored by the teachers more than the rest. the survey continues for teachers and par- Discuss family size, pointing out advan- If the teachers in his school often act as ents. We are asking that this project be tages of both large and small families. if they are always right and he is wrong. withdrawn forthwith and prevented from Role play the family at dinner. Whether he is considered weird when he spreading to other counties in the State of Role play an increase in conflicts with par- gets involved and excited in his classwork. Maryland. ents. If he daydreams a lot in class. Our second candidate for removal from Role play other meaningful family situa- Whether he wants to go to school. Maryland public schools is a questionnaire tions. Whether he ever does anything exciting in currently being administered to 50 classes Have children keep records of their activi- class. in 26 elementary schools in Montgomery ties; note those children who seem to be If he counts the minutes until the class County. This survey, which is being financed overburdened with responsibilities. ends. by the Spencer Foundation, is designed to Have children write paragraph about being Whether he sits on the floor in many of his gain insight into students' motives and afraid; encourage them to verbalize their classes. goals and likes and dislikes. In addition, fears due to dark places, being hurt, dreams Whether most other students want to go assessment of the children's educational or nightmares, personal loss, experience with to school. growth, with both standard academic death, punishment, and the unknown. If a diploma from his school means more measures and some non-academic measures, Have children observe their family for a that you behaved yourself than that you will be made toward the end of the school week; have them jot down notes on the really learned something. year. According to an explanatory letter way love was shown. He is asked if he and his teachers are: (1) to parents by a psychologist with the Psy- Have children write examples of times on the same wave length, (2) on the same chological Services Department of the Mont- when they felt angry, afraid, shy. planet, (3) somewhere in the same solar sys- gomery County Public Schools system, "char- Have role playing situations based on these tem, or .(4) in two different worlds. acteristics of the classroom environment experiences. If his classwork is: (1) great stuff, (2) will be assessed by observers in a series of Here are some sample questions: good stuff, (3) OK, or (4) dull stuff. several visits during the year." The What kind of things make you angry? How he would rate the ability of most of information gained by this project will be What do you like to do when you are alone? his teachers compared to teachers in other sent out of State and fed into computer Should you expect to be paid for chores schools at his grade level: (1) far above data banks for use in diagnosing and pre- done at home? average, (2) above average, (3) average, (4) scribing the handling of students. Whom does your family entertain at your below average, or (5) far below average. Some sample questions from the Spencer house? If he and the school are: (1) good friends, Foundation survey are: How do you cooperate with your family? (2) friends, (3) distant relatives, (4) If your parents tell you you're acting silly What happens when and if you refuse to strangers, or (5) enemies. and not thinking clearly, it is more likely cooperate? The student is asked to provide the full to be: (a) because of something you did or Do you think you are being treated fairly? names of his three best friends. (b) because they happen to be feeling Do you think you would like to live and And also the full names of students in cranky? work alone? the following categories: Suppose your parents say you aren't doing What do you expect of your father and Very popular with other students; mother? Independent; well in your school work. Is this likely to happen to you: Under what circumstances have you felt Hard to fool; and (a) because your work isn't very unloved, unwanted, lonely, shy, or fearful? Fools around in class instead of working. good or (b) because they are feeling cranky? As these examples from the K-through-6 The student is queried as to whether he curriculum demonstrate, the Interpersonal If your parents tell you that you was ever scolded in class for: are bright Relationships approach emphasizes negative and clever, Is it more likely: Fooling around; (a) because they attitudes; it dwells on fears, death, sorrows, are feeling good Not paying attention; or (b) because of something anxieties, and other personal feelings and the Fighting in class you did? inter-relationship of these factors with par- Talking back to teachers The students are asked to answer a num- ents and the home situation. The student- Not handing in enough work; ber of "I think I am" questions, circling the particularly the younger child-has a weak Telling off a teacher; and appropriate degree to which they are: defense against such techniques and can Shouting or laughing out loud. Able to get along with other kids; easily be induced to yield to classroom pres- If he ever stayed away from school just Not able to figure things out in school; sure or forced to work his imagination over- because he didn't want to go: (1) never, Scared to take chances; time for the sake of satisfying the teacher's (2) 1 or 2 days, (3) 3 to 5 days, or (4) more A good worker in school; demands. than 5 days. Happy with myself; Such prying by the schools into the home Whether he has ever cut classes just be- Not as smart as other kids in school; and into parental authority can be a most cause he didn't want to go to them: Trying my best in school; dangerous business. In Montgomery County, (1) never, (2) 1 or 2 classes, (3) 3 to 5 Not the way I would like to be; the School Board recently (August 27, 1973) classes, or (4) more than 5 classes. Sure of myself; approved an expanded definition of child A lot of the questions in the Johns Hopkins Doing poorly in school; and abuse, under which teachers are asked to survey relating to student feelings and atti- Angry with myself. make official reports to the police and the tudes toward school and teachers are simply The complaints and concerns of the orga- social services authorities on children who absurd and a sheer waste of time and re- nizations represented here today are by no have been "denied normal experiences that sources. Perhaps the most ridiculous ques- means limited to specific surveys, such as produce feelings of being loved, wanted, and tion is the one asking students to rate those financed by the National Institute of secure." These are labelled as children who teachers in other schools at the same grade Education and the Spencer Foundation. We have been subjected to so-called level. Leaving aside the ability of a young "emotional are opposed to all abuses by the schools of neglect." Moreover, teachers are required to student to evaluate his teachers, how could the right to privacy, the right to be left is he be expected to compare them with submit a report on any child who "over- alone. It so happens that the school adminis- worked" by his parents or exposed to "con- teachers in other schools whom he has trative personnel and the social researchers tinuous friction in the home." Whatever the

HeinOnline -- 120 Cong. Rec. 14587 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 10 of 27 14588 CONGRESSIONAL RECORD - SENATE May 14, 1974 charge, the school system policy stipulates "if objection? Without objection, the disciplines or perhaps new textbooks or there Is any doubt or question in reporting amendment is so modified. new apparatus, or anything else along such cases, it should be resolved in favor of Mr. BIDEN. I have no further ques- that line. We are talking about new de- the child." tions of the Senator. He has indicated to partures from teaching methodology. be appreciated by It can, of course, readily me, in private and in the colloquy, that Mr. MATHIAS. Mr. President, if the one and all that the questions in the com- Senator would yield me a minute to pur- pulsory Interpersonal Relationships curricu- this is intended to go only to those pro- lum as well as a good many of the questions grams which would be considered experi- sue that line of inquiry, as much as I In the Johns Hopkins survey could provide mental. I think the single most burning want to share that concept, I share with data which may well be diagnosed incorrectly issue before the country is the invasion the Senator from Michigan some lack of or misinterpreted by the social scientists as of privacy at all levels. School records comprehension as to whether it will do child abuse or child neglect cases. Moreover, are private. No one should have access to this. The Senator from Michigan raises a many children could be labelled as what the them unless it is with the consent of the question about new math or any other to call "disadvantaged social engineers like parents. method of teaching a new subject. What children." We parents are most disturbed as to over this kind of role being assumed by the I am glad to be a cosponsor of the about the question I asked earlier public schools. The schools were established amendment. whether this amendment would prevent in the United States to provide a service to Mr. HART. Mr. President, would the any idenification symbol? If students the parents and taxpayers. The schools, Senator yield for 1 minute? cannot be identified in a statistical sense, therefore, work for us; not the other way The PRESIDING OFFICER. Who how can we make any kind of longitudi- around. The teachers, who in our view are yields time to the Senator from Michi- nal studies as to whether a new teaching thrust into and trapped in the middle of program on any subject is successful? have an equally valid and gan? the situation, Mr. PELL. I yield 1 minute. Which side How do we evaluate programs? How do justifiable complaint. the iso- Whatever the stated goal of the educa- is he on? we make any judgments beyond tors and the social planners, the whole ques- Mr. HART. I guess my honest answer lated case of one student at a time? tion of labelling children and predicting is that I do not know which side I am Mr. BUCKLEY. Mr. President, schools their behavior on the basis of questionnaires on. I wish we had had a study or report are quite capable of evaluating the ex- and classroom confessions is being chal- on it. To say that the programs for re- perience with students which they have lenged by parents and legal authorities search and experimentation are to be in their own classes. I see no difficulty at States. An impor- throughout the United prevented unless the parents say OK is all. Again, I think the Senator is em- tant question is: Who has access to the data? phasizing that the amendment is not de- Another, how will the data be used? AD even something unique and not really in the more important question might be: What nature and order of the evolving educa- stroying the ability of programs or re- are the values and attitudes of the evalua- tional techniques, when, on page 4 it is search to go forward in the case of ex- tors? The Congress of the United States is stated: perimental programs. very much concerned with all of these ques- As used in this subsection, the term "re- All the amendment requires is no iden- tions. And we here today, who speak for search or experimentation project" means tification, and then the parent has the five citizens orgnaizations with representa- any project or program which is a part of an right to withdraw the child. He does not feel that tion from eight Maryland counties, applicable program and which is authorized to consent in advance. In general, the Maryland State public officials should need by an administrative officer of an education the premise is that parents are generally be similarly concerned. agency, a State or local education agency, or Therefore, by letter of April 19, 1974, we any education institution, including pre- responsible adults, having prime respon- are strongly urging the Governor of Mary- schools, except that research or experimen- sibility for their children. I have no doubt land to take steps to remove the Johns tation projects shall not Include projects in that they would act responsibly. Hopkins University survey, the Spencer the field of reading ... The PRESIDING OFFICER. Who Foundation survey, and all similar tests and yields time? I do activities from the public schools of Mary- Maybe that is visual education. Mr. PELL. Mr. President, I yield my- land and to charge the Maryland State Board not know. reviewing all self 5 minutes. of Education with the task of It seems to me that the definitions from New curriculum and practices in the classrooms I think the junior Senator excludes experimentation on anything York knows of the regard and high re- for the purpose of removing those parts speech and language. However, and except spect I hold for him. As much as I would which violate the rights of the students is but one example of the difficulty the parents as guaranteed by the Constitu- this like to see the Senator succeed in his tion of the United States of America. We I have and that other Senators have in proposal as he explains it, we are con- are saying to the Governor "Enough is considering and understanding the cerned here not with what the Sen- enough." We are asking him to remove the reach of the bill without hearings. Of ator from New York intends the lan- inquisitions of the master social planners course, everyone is for protecting pri- guage he proposes to accomplish. It is from our public schols and to ensure us vacy; that is great. However, what do that our educators will concentrate, instead, what the language would do. we do with experimentation? This is what bureaucrats in future on the basic concepts of education which Mr. BUCKLEY. Mr. President, I should our tax dollars were intended to finance, years will rely on, what the language in and education that will assist and prepare like to address myself to the remarks the bill is. made. First of all, the amendment our children to face a mature, real world. just They will not look up the debate on the explicitly excludes reading and bilingual passage of the bill. Mr. BIDEN. Mr. President, is the par- education. However, some parents might floor at the time of the language of the bill reads liamentary situation such that I still choose to have their child take those However, specifically: have a few minutes of the time yielded to subjects. They do not destroy the edu- should be informed in advance and me by the Senator from New York? cational apparatus of this program. They Parents The PRESIDING OFFlCER. The Sen- in writing of the participation of their child do not destroy the ability to develop a any research program which is part of a One and a in * ator was yielded 5 minutes. program with cooperative parents. If a school program * * parents of such child half minutes of that time still remain. program is so alarming to the average objects to participation. Mr. BUCKLEY. Mr. President, I yield parent that no parent will cooperate, believe that this language says that 21/2 minutes to the Senator. the program to I then we should examine If there is to be a new experimental pro- Mr. BIDEN. I have one question. In see whether that program should be in gram of learning new math, or a psy- subsection (b) (2), does the Senator have effect. I do not believe that the remarks chological program, or sonething of that any objection to removing the words "or such affairs would be dealing with parent must be informed principal effect" on line 19, page 3, where justified. sort, every in writing. We should consider the post- it reads "the primary purpose or prin- Mr. HART. Mr. President, what about age and redtape involved. It would cipal effect of which 0 0 ,? the new math, which I still do not under- kill most new programs. Mr. BUCKLEY. No, I do not. I think stand, but to which my children have that would be very helpful. I thank the been exposed? Could I say "no" if we I hope the Senator from New York Senator from Delaware for suggesting it. were to adopt this amendment? might be willing to withdraw at least Mr. BUCKLEY. That is not at all the subsection (b). I wonder what the wishes Mr. President, I ask unanimous con- of the Senator might be in that regard. sent that the three words at the end of situation. A normal person would agree to Mr. BUCKLEY. Mr. President, a par- line 19 on page 3 be eliminated. experimentation with new math. inquiry. The PRESIDING OFFICER. Is there We are not talking about educational liamentary

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May 14, 1974 CONGRESSIONAL RECORD - SENATE 14589 The PRESIDING OFFICER. The Sen- hesitate if he were going to be bring- Mr. President, I suggest the absence of ator will state it. ing the financial help back home, but I a quorum. Mr. BUCKLEY. Mr. President, is it not know a great number of people who do The PRESIDING OFFICER. On possible to have a division ordered so not give a whoop whether their children whose time? that we could vote on section (b) alone? go to college, graduate school, or any- Mr. PELL. To be equally divided. The PRESIDING OFFICER. If it is thing else; in fact, they would prefer The PRESIDING OFFICER. Without in the pending provision, the answer is they did not, and if he is trying to get objection, it is so ordered. The clerk will yes. a loan all of a sudden which they may call the roll. Mr. BUCKLEY. Mr. President, I sug- ultimately be called on to repay, they The assistant legislative clerk pro- gest the absence of a quorum. may say no. ceeded to call the roll. The PRESIDING OFFICER. On whose Mr. BUCKLEY. I point out to the Sen- Mr. PELL. Mr. President, I ask unani- time? ator from Colorado that on page 6, line mous consent that the order for the quo- Mr. DOMINICK. Mr. President, will 12, we make an exception for financial rum call be rescinded. the Senator withhold that request for aid. The PRESIDING OFFICER. Without just a moment? Mr. DOMINICK. That is true. I had objection, it is so ordered. Mr. BUCKLEY. Mr. President, I with- not seen that. Does that apply to all of Mr. PELL. This procedure would be hold my suggestion of the absence of a subsection (c) ? acceptable, and I am perfectly willing quorum. Mr. BUCKLEY. Yes, it does. to have either a voice or a division vote Mr. DOMINICK. Mr. President, I want Mr. DOMINICK. That helps materi- or. sections (a), (c), and (d). to ask the Senator, not about section (b), ally. I will go back to the drawing board. Mr. BUCKLEY. Mr. President, before because I must say that I share my com- Mr. BUCKLEY. I thank the Senator. asking for a division, I ask unanimous patriot's concern over that. But on sec- Mr. President, in an attempt to make consent to have printed in the RECORD tion (c) I have been very active since this amendment as acceptable as possi- a statement prepared by the Senator I became a member of the Education ble, I would make at this time, in response from Arizona (Mr. GOLDWATER) in sup- Subcommittee in trying to make the to some of the concerns expressed by the port of this amendment. program available for children who are Senator from Maryland and the Senator The PRESIDING OFFICER. Without going from high school to college or from Michigan, the following modifica- objection, it is so ordered. graduate school. tion: On page 4, line 13, to add in, as an STATEMENT BY SENATOR GOLDWATER It looks to me as though what we exception in the definition of experi- PARENTAL AND STUDENT RIGHTS have done under subsection (c) is to mental programs, after the words "bi- Mr. President, it gives me great pleasure to prevent whatever institution might be lingual education", the words "or for the join with my good friend from New York, seeking the records of a youngster con- development of new techniques for the Senator Buckley, and others of my colleagues, cerning his personality to determine teaching of traditional disciplines". I in sponsoring an amendment to protect the whether he is eligible (a) either for a ask unanimous consent that I may so right of privacy of school children and their loan, or (b) for a work-study program, modify my amendment. parents. I have a particular interest in the amendment or (c) for a well deserved and perhaps The PRESIDING OFFICER. Without because it would legislate in the not fully qualified education field certain, basic safeguards for minority student, as objection, the amendment will be so the right of personal to his ability privacy which I have to get this background modified. been trying to get enacted for over a decade. without the consent of the child's par- Mr. PELL. Mr. President, reserving the Subsection (a) of our amendment would ents. He may be trying to get away right to object, I could not hear. What provide statutory confirmation of the right of from the parents, who may be lushes, was the modification? parents to see the contents of their own and he may be trained to get away from Mr. BUCKLEY. On page 4, line 13, children's school records. Parents would also them. after the word "education," I insert the be guaranteed a right to challenge informa- Mr. BUCKLEY. I would point out that tion in their child's school records and to words "or for the development of new correct any inaccurate the amendment states that- techniques or misleading data. for the teaching of tradi- This is identical to the safeguards standards Whenever a student has attained eighteen tional disciplines." which are included in S. 2810, a bill which I years of age, the permission or consent re- The PRESIDING OFFICER. Without have Introduced regarding quired of and the rights accorded the privacy and to the objection, the amendment is accuracy of personal data systems of all types. parents of the student shall thereafter so modified. only Mr. PELL. Mr. President, I will not Subsection (b) of our amendment would be required of and accorded to the student. object to the modification, but this will create a system of parental consent which Mr. DOMINICK. would give parents a right of control over Mr. President, I un- be the fourth modification made on the "personality" tests given derstand that. However, to their children in I would pre- floor. I really think this matter should the public sume that the schools. This provision is identical Senator from New York be considered in the committee. I shall to legislation which or any I first introduced thir- Senator, as well as the Senator be compelled to vote against it, but I do teen years ago, in 1961. In the early '60's, I from Colorado, went to college when he not object to the modification. was concerned that the new Federal author- was 17. A great number of children go Mr. BUCKLEY. May I now ask the ities for direct funding of educational pro- to college when they are 17. Presiding Officer whether the Parlia- grams, which were just getting underway, All I can say is that I think this is mentarian has made a determination as would allow Federal monies to be spent for testing just a roadblock. It is something which to whether section (b) would stand on programs in which school children I do not think could be used as involuntary "guinea pigs" the Senator from New its own? in experimental York wants to do, in which programs unrelated to the we are try- The PRESIDING OFFICER. (Mr. true purposes of education. ing to promote this subject and are not TUNNEY). Section (b) is written in such Needless to say, Mr. President, I was trying to restrict it. a way that it is independent and is di- shocked to learn of the existence of surveys I think that what the Senator is driv- visible. being conducted in our public schools which ing at in section (c) is the relief of a Mr. BUCKLEY. Under those circum- probed the most intimate personal aspects of group of people who are trying to make stances, Mr'. President, and on condi- the lives of school children and their rela- tionships with some kind of psychiatric research pro- tion that the sponsor will accept the their parents and families. I gram, totally devoid of the educational was especially surprised to discover one sur- balance of the sections-Mr. President, vey, financed with Federal process in order funds, which con- to get their master's if I may have the attention of the dis- sisted of some two hundred questions being thesis or write something for the Brook- tinguished manager of the bill-I am asked of Junior High School students rang- ings Institutiorl, or something of that willing to ask for a division, so that we ing in age from 11 to 14 years. kind. may vote separately on section (b), pro- These quetsions inquired of the student: I am afraid that the language goes vided the manager will accept the re- "Is your father fairer about punishment much further than that kind of restric- mainder of the amendment. than your mother? tion. Mr. PELL. I would ask Did you "steal more than $2 from your for a rollcall parents?" Mr. BUCKLEY. I find it implausible vote on subsection (b), and as far as Did you "fight physically and bodily with that parents would not cooperate in section (c) goes, I would ask my col- helping an adult relative?" a child qualify for financial help. league from Alaska whether he has any Mr. DOMINICK. Well, they would not The student was also asked to reveal to the objection. school whether he or she had "gone further

HeinOnline -- 120 Cong. Rec. 14589 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 12 of 27 14590 CONGRESSIONAL RECORD -SENATE May 14, 1974 than petting with a person of the opposite JUNIOR HIGH SCHOOL SURVEY SUPPORTED BY 20. Steal more than $2 (money) from your sex." GRANTS FROM THE U.S. PUBLIC HEALTH parents: (2) - Yes. In addition, the student was asked to rate SERVICE AND THE UNIVERSITY OF KANSAS family. The student was re- (1961) (1) -No. his or her own 21. Puncture or cut automobile tires, bike quired to give a yes or no answer, for ex- FACTS ABOUT YOURSELF ample, to these questions: Please answer all questions completely. tires: only one (1) -No. "I wish my family had nearly as much 5. How old are you? (Check (2) - Yes. money as the families of many of my class- answer.) 22. Steal materials or equipment from (1)-11 mates." years or younger. buildings that are being constructed: "Are the children in your family punished (2)-12 years old. (2) - Yes. (3)-13 more severely than in other families?" years old. (1) - No. (4)-14 years old. wish my father and mother were better 23. Kicked, scratched or bit an adult rela- "I (5)-15 years old. the parents of many of my tive (mother, father, guardian, or uncle, for educated, like (6)-16 years old or older. classmates." example) : 6. Sex: (0) - Never. Mr. President, these questions were just a (1)-Boy. few of the two hundred questions that were (1) - Once. (2)-Girl. (2) - Twice. actually being asked of American school chil- 7. What grade in school are you now in? dren in a questionnaire financed in part by (3) - Three or more times. (7)-Seventh grade. 24. Damage or destroy toys or games that Federal funds granted by the Department (8) -Eighth grade. of HEW. belonged to persons your own age: (9)-Ninth grade. (1) -No. Yet, I was told it wasn't done. I was told answer) - 8. Are you (check only one (2) -Yes. It couldn't be done. On the one hand, I was (1)--An only child? 25. Steal from buildings that are being informed that such questions were not per- child in your family? (2)-The youngest torn down: mitted under the administrative interpreta- (3)-The oldest child in your family? (1)-No. tions of the Department. On the other, I was (4)-Neither the youngest nor the oldest advised that leading "experts" believed that (2) -Yes. child? 26. Tied a person up with rope, string, or my amendment "would greatly inhibit brothers and sisters do 9. How many living wire to a tree or similar object and then left much-needed educational research .. " you have? them that way: So there you have it, Mr. President. The (0) -None. (0) -Never. agency told me that my amendment was not (1) -One. (1) -Alone. needed because it would duplicate their own (2) -Two. (2) -With one or more others. policy interpretations; but that if it was put (3) -Three. (3)--Both alone and with others. into law, it would impair research that the (4) -Four. 27. Steal things from your parents that to go on. I never bureaucrats wanted to allow 15)--Five or more. worth more than $2: could make sense out of this, but the De- was the highest grade your were 10. What (2) -Yes. view prevailed and the Senate partment's father finished in school? (1)-No. rejected my amendment. - Eighth grade or less. (1) 28. Teased severely, hurt or killed a cat or - Some high school. Mr. President, perhaps the climate of this (2) dog: high school. country has caught up with the wishes of (3) - Finished (1) -Alone. ordinary parents and ordinary school chil- PART I. RULES WE ALL BREAK (2) -With one or more others. dren. Perhaps the concept of the personal The questions in part I are about more (0)-Never. freedom of the average citizen and his family personal things concerning you and your (3) -Both alone and with others. has grown to the point where Congress is friends. Do you put your name or address 29. Scratch the paint on someone's car on of his privacy willing to be the guardian on this questionnaire. We want to assure of the purpose: against prying and inquisitive minions you that your answers will be kept com- (1)-No. bureaucracy. pletely secret and confidential. No one will (2) -Yes. Mr. President, our public schools have no ever know how you answered any of the 30. Steal more than $2 (money) from your compelling need for psychological and per- following questions. We encourage you to brothers or sisters: sonality tests which pry into the private be completely honest with your answers. (2) -Yes. lives of a captive audience of school chil- For the purpose of this study, we are (1) -No. dren. Even if the child is not specifically told interested in the things you have done dur- 31. Skip school with one or more friends that he is required to answer these tests, it ing the last 2 years only. or classmates: would be a rare and unusual child who would 11. Damage or disfigure furniture in (2) -Yes. dare to defy the authority of a school by schools, such as chairs, tables, and desks: (1)-No. refusing on his or her own initiative. (1) - No. 32. Steal articles of clothing worth more Questions of this kind are an Intolerable (2) - Yes. than $5 from clothing or department stores: invasion of the right of privacy. They ex- 12. Steal goods from warehouses or storage- (1)-No. emplify the ever-watchful eye of "Big houses: (2) -Yes. Brother" spying into the most personal (1) -No. 33. Become so mad or angry that you thoughts and habits of American families, (2) - Yes. threw things at or hit a teacher or princi- and doing it, by abusing the trust of inno- 13. Damage cemetery property: pal or other school official: cent school children. (2) - Yes. (3) -Both alone and with others. (1) -No. Moreover, Mr. President, these types of (0) -Never. 14. Damage or destroy public signs or road (1) questions are calculated to raise doubts, -Alone. markers: (2) -With one or more others. suspicions, and hostility in the minds of (1)-No. a bicycle from anyplace other and 34. Steal our children toward their own parents (2) - Yes. than a place that sells bicycles (like from princi- a skepticism about the basic moral 15. Steal automobile parts such as hub- neighborhoods, school grounds, or public ples of our society. In this sense, these tests caps, mirrors, ornaments, etc. places where bikes may be parked): could be used by governmental planners for (1) - No. (2) -Yes. purposes of influencing or conditioning the (2) - Yes. (1) -No. of social and political thinking of our youth, 16. Kicked, bit or scratched a student 35. Remove spark plugs or wires from cars: and through them, American society. about your own age: (1) -No. (3) - Three or more times. (2)-Yes. Mr. President, the time to preserve what (2) -Twice. is left of our personal privacy is now. Suf- 36. Steal a car for joyride without the (1) - Once. owner's knowledge or permission: ficient thought and action must be given to (0) -Never. is still some meas- (2) -Yes. the problem while there 17. Get out of going to school by writing (1)-No, liberty left to cherish. It is ure of personal a fake excuse for yourself: 37. Break or crack windows in automobiles: for us today to determine just how much (2) - Yes. (1)-No. freedom shall remain for the individual in (1) - No. (2) -Yes. the future. I implore my colleagues to vote 18. Steal or siphon gasoline from cars, 38. Skip school with three or more friends for the Parental and Student Rights Amend- trucks, or other kinds of vehicle equipment: or classmates: ment. (2) - Yes. (2) -Yes. Mr. President, I include the junior high (1) - No. (1)-No. school student survey which was conducted 19. Damage or destroy mailboxes: 39. Steal articles of clothing worth less in the early 1960's, in part with Federal (1) -No. than $5 from clothing store or department grants: (2) - Yes. store:

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(1)-No. family, but arranged matters so that some- (2) -Yes. one else got the blame: Only Both alone 40. Damage fiowerbeds or gardens on pur- (1) - Alone. Only when and with pose: when with other other (2) - With one or more others. alone persons persons (2)-Yes. (3) - Both alone and with others. (1)-No. (0) - Never. (1) (2) (3) 41. Steal gasoline from gas stations, farms, 60. Steal more than $2 from school: or other private places: (2) - Yes. (1) -No. (1) - No. 11. Steal hubcaps, mirrors, etc. from cars ------(2)-Yes. 61. Leave school early without permission: 12. Puncture or cut tires, 42. Taken part In fights where knives or (2) - Yes. coavertible tops, switchblades were used: (1) - No. scratch the paint on 62. Try to "get by" without paying the cars ...... (1)-No. 13. Tie aperson up with rope (2) -Ye. bill in restaurants, cafes, soda fountains: or string and left them 43. Steal a bicycle from a store that sells (1) - No. that way ...... or repairs bikes: (2) - Yes. 14.Tease, hurt, kill harmless 63. Skip school by yourself without good animals ...... (2) - Yes. 15. Steal clothing worth less (1) - No. excuse from parents: than $5 ------44. Skip out of certain class periods, but (2) - Yes. 16.Steala carnrejoyride...... not the whole day, without permission (like (1) - No. 17.Beat up a person much 64. Taken part in a gang fight against an- olderthan you ------gym class or student assemblies) 18.Damoge or breakcoin (2) - Yes. other gang or against one or two other per- machines ...... (1) - No. sons: 19. "Get by" without paying 45. Fought physically and bodily with an (1) - Once. the bill in cafes, soda (2) - Twice. shops, movies, other adult relative such as mother, father, or events ...... aunt (that is, fought in anger or fear, not in (3) - Three or more times. 20.Damage school property sheer fun) : (0) - Never. onpuTpse ...... (0) - Never. 65. Steal things from inside of parked cars: 21.Steal things in order to (1) - Alone. (1) - No. sell them ...... (2) - Yes. 22.Damage or destroy road (3) - Both alone and with others. markers, signs, mail- (2) - With one or more others. 66. Break windows on purpose in vacant boxes, street lights ------...... 46. Steal things (not money) from your homes, garages, or other buildings: 23.Steal anything worth (1) - No. more than$5 butless brothers or sisters that were worth more than$50 ...... than $2: (2) - Yes. 24.Beat up an adult for his (2) - Yes. 67. Damage or destroy anything because money ...... (1) - No. someone "dared" you to do it: 25.Steal anything worth $50 (1) - No. or more ...... 47. Get out of school early by pretending 26.Break into and enter a to your teacher that you were sick or not (2) - Yes. locked store, gassta- feeling well: 68. Steal things worth more than $2 from tion, or other buildings- ...... - (2) - Yes. foodstores: (1) - No. (2) -Yes. 48. Steal anything because an adult asked (1) -No. PART 311. YOUR SOCIAL ACTIVITIES you to steal it: 69. Damage school property other than Instructions.-In this section are state- (1) -No. chairs, tables, and desks: ments about what some boys and girls do (2) - Yes. (1)-No. most of the time in their time after school 49. Beat up a person much older than your- (2) -Yes. and on weekends. Read each statement and self in a fight: 70. Curse or use obscene language in speak- decide whether it fits you or does not lit you (0) - Never. ing to a teacher or other school official: as you are right now or during this year. If (2) - With one or more others. (2) -Yes. the statement is true of you, that is, if you (1) -Alone. (1)-No. would say "Yes" to the statement, put a (3) - Both alone and with others. 71. Steal anything and then sell it to an No. 1 next to it.If the statement is not true 50. Steal more than $2 (money) from your older teenager or adult: of you, that is, if you would say "No" to the friends or classmates: (1)-No. statement, put a No.2 next to it. (2) - Yes. (2) -Yes. Be sure to read and to answer each state- (1) - No. 72. Damage or destroy anything that be- ment with a 1 or a 2. If it fits you fairly well 51. Damage parking meters on purpose longed to another person, in order to "get but not exactly, put a 1. (break glass, jam slot): even" with that person: Answers-Put 1 for a "Yes." Put 2 for (1) - No. (1) -No. a "'No!' (2) - Yes. (2)-Yes. 27. I spend a lot -of time with one special 52 Steal jewelry worth more than $2 from 73. Steal money from public telephones or friend who isnot a member of my family.- jewelry, department, dime or drug stores: parking meters: 28. I stick pretty much to myself.- (2) - Yes. (1)-No. 29. I never disobey my parents.- (1) - No. (2) -Yes. 30. I spend a lot of time with one friend 53. Skipped school or stayed out of school 74. Hit or strike a teacher, coach, or other at a time, although I have several close without a genuine excuse for more than 1 school official: friends.- (2) day: -Yes. 31. I spend a lot of time with two or three (1) - No. (1)-No. friends. The group of us play together.- 75. Take part in (2) - Yes. fights where BB guns, air- 32. I do some talking about or listening to pellet guns, or slingshots were 54. Damage or break coin machines of any used: talk about sexual matters when I am with kind on purpose: (1)-No. my friends.- (1) -No. (2) -Yes. 33. I play with a large group of four or 76. Tease or embarrass someone by strip- more children in or near my home neighbor- (2) - Yes. ping or taking his or her clothes off? 55. Damage or ruin personal clothing of hood.- (2) -Yes. 34. I mostly play alone or with my broth- classmates or other schoolchildren: (1) -No. (1) - No. ers or sisters.- 77. Damage or destroy anything "just for 35. I belong to a group that isoften chased (2) - Yes. the heck of it": after by some adults such as storekeepers, 56. Get out of going to school by pretend- (1)-No. police, or homeowners.- ing to your parents that you were sick: (2) -Yes. 36. I never catch cold in the winter or (2) - Yes. 78. Steal less than $2 (money) from candy, spring.- (1) - No. coke, or cigarette machines: 37. I play with friends my parents do not 57. Steal more than $2 (money) from (2)-Yes. like.- candy, coke, or cigarette machines: (1)-No. 38. 1 never tell lies. (2) - Yes. PART II. ALONE OR WITH OTHERS 39. I often share secrets and ideas or hopes (1) - No. Instructions.-We are interested in how with my friends.- 58. Leave home with intention of going to certain rules are broken. Some people break 40. I have taken part in kissing and neck- rules only when they are with others, some ing while on a date or while alone with a school, but just never making it to school person of the opposite sex.- (without a good reason): break rules only when they are alone, and other persons. For each item, check the box 41. Most of my friends are my own age or (1) - No. that applies to you. If it does not apply to between 11 and 14.- (2) - Yes. to you, leave that Item blank. 42. I have never spent a night in a deten- 59. Injured or hurt someone not in your In the last 2 years, did you: tion home or jail.-

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43. Most of my friends are 2 or 3 years older 77. Below is a line that stands for your but no one at school or at home understood than I am.- grades or marks in school this year, thinking this and helped him.- 44. I have petted with a person of the op- of them lumped together. Make only one 19. Other children at school had been posite sex while on dates or when we were check (V) where you best fit. selfish and unkind in the past and had kept alone.- "A" or best possible, 100. Walter from building any friendships. His 45. Most other boys and girls like me. "B" or high, 90. loneliness led him to steal.- 46. I try to get other boys and girls to like "C" or average, 80. 20. Older boys in a gang really broke the in.- "D" or below average, 70. coin machines and did the stealing, but they 47. I have gone further than petting with "F" or failing, 60. left Walter, who thought they were his police car and a person of the opposite sex.- PART V. GUESSING CAUSES friends, when they heard the dumped the coins into his pocket.- 48. I care a great deal about what other Instructions.-Reprinted below is a news boys (or girls) think of me.- 21. Walter's parents had never taken him story that appeared not long ago in the from to Sunday School, where he could have 49. I want to be different somehow Kansas City Star. After you read the story others in my own age group. learned what is right and wrong.- carefully, pretend that you are talking the 22. Walter wanted to find a way to get 50. I have answered ads in comic books or story over with some school friends. None pictures, decent clothes and money for an allowance. other magazines which advertised knew the boy in the story directly stories about sexual mat- of you His parents could not give him these things, photographs, or or indirectly, but you are all guessing about ters.- but he needed them to try to make friends why he did what the police claim he did. 51. I like most of all to spend my free time at school.- Then the questions that follow the story, in- PART VI. WISHES alone.- dicating what your guesses would probably do not like the way 52. Some of my friends be. (Names and places in the story have been Below are listed some wishes that have I act.- added or changed.) been expressed by boys and girls in other junior high schools. Read each wish care- PART IV. LEISURE ACTIVITY AND FAMILY LIFE The story sec- fully. Then check the wish with an X if you Instructions.-The statements in this The Kansas City Police last night arrested tion are like those in the section you just feel it is a wish that you have made or Walter Stevens, age 13, who was caught by any time during this year. If completed. But these have to do with how thought about Police Sergeant Daniels. Daniels charged the the wish does not fit you, leave it blank. you spend your spare time and how you are coin ma- boy with stealing coins from the Check (X) here treated by your parents. and washing machines in the Whirl- to you chine Read each statement. If it applies away Laundromat. The policeman said he 23. I wish I could buy my lunch In the as you are right now or have been during saw Stevens pry open the coin slots on the cafeteria more often.- this year, mark the statement with a 1 for a machines and remove quarters and dimes. He 24. I wish I could afford to go to the mark it "Yes." If it does not apply to you, had $15 in coins in his pocket when arrested. movies as often as many of the others in my with a 2 for a "No." The boy's mother, Mrs. William Stevens, school.- and 2 The statements.-Write 1 for a Yes, said she thought her 'son was at work at his 25. I wish my family could take me on for a No. part-time job in the nearby Roll Em Bowl- vacation trips like those that many of the 53. Do you spend more of your free time ing Alley. He had worked there 2 nights a persons in my school have enjoyed.- with your friends than with your family?- week for 2 months, she said, and had been 26. I wish I were able to dress as well as once a in my school.- 54. Do you go to dances more than earning about 60 cents an hour. The boy's most or many of the persons month?- father, William Stevens, 48, is a clerk in the 27. Many of the students in my class will or 55. Do you go out with your mother central post office. He works the night shift get to go to college some day, but I probably a month? (Movies, get the chance.- father more than once and was away at the time of the arrest. won't dining, social events, etc.) - Walter Stevens Is a seventh grade student 28. I wish I were physically better built or punish- more attractive.- 56. Is your father fairer about at Witmore Junior High School. The Wilt- to the oppo- ment than your mother?- more principal, Mr. John Savage, reported 29. I wish I were as attractive study schoolwork at home less as many of my schoolmates.- 57. Do you that young Stevens had been doing very site sex the Boy or Girl than five times a week?- poorly in school for several months, and 30. I wish I could join punish- Scouts like many of my classmates.- 58. Is your mother fairer about been expelled once for said that he had 31. I wish my parents were more under- ment than your father?- breaking school property and had often you work at a part-time job once like the mothers and fathers of 59. Do skipped school. standing, a week?- many of my classmates.- or more When interviewed, young Stevens told this 60. When you do something extra, do your 32. I wish my family had nearly as much reporter that his father had to work such you with praise or special money as the families of many of my class- parents reward he was very seldom home money?- long hours that mates.- privileges or with was often ill and had to help around the house doing and that his mother 33. I might like to be an engineer or a 61. Do you remain in bed. He claimed, "Nobody at almost every day?- scientist when I grow up, but I probably chores school understands me or tries to help me." 62. When you have done something wrong will not get the chance.- Instructions.-Now check the statements or "bad" do your parents try to reason with 34. I won't have as good opportunities below that you think provide the best pos- when I grow up as many of my classmates.- you?- sible explanations for why Walter Stevens 63. Do you usually attend at least one 35. I wish my parents were not so strict did what he did. Remember that these are movie a week?- with me, and more like the parents of many guesses and that all of them may be true 64. Are some children in your family pun- of my classmates in this way.- or all may be false. ished more severely than others?- 36. I wish my parents were a little more 65. Do you spend time after supper at a Put a 1 if you agree, and a 2 if you dis- strict with me, like the parents of many of local hangout (drugstore, soda shop, bowl- agree. my classmates.- ing alley, etc.) at least two times a month?- 11. Walter wanted to get more money 37. I wish my father and mother were bet- 66. Do your parents get all the facts before than he could earn at his job in order to help ter educated, like the parents of many of they punish you?- his poor parents.- my classmates.- 67. Do you usually have one or two dates 12. Walter was lonely and unhappy at 38. I wish my father had as good a job as a month or more?- school, where no one understood him. many of my classmate's fathers.- in your family pun- 68. Are the children 13. Walter was raised by bad standards ished more severely than in other families?- 39. I wish I could go on dates the way and had not been taught properly what was do.- 69. Do you think that your friends have many of my classmates right and wrong. better ideas than your parents do about Now write down one wish that you have what a young person should do in his spare 14. Walter had everything against him. felt strongly about this past year. time?- He was bound to get into trouble when ----...... -..------70. Do you usually spend three or more everything at school and at home went ------..------evenings a week away from home?- wrong. 15. Walter was fired from his job at the 71. Are the children in your family ever PART VII. SOCIAL VALUES AND FEELINGS punished when they do not need it?- bowling alley but didn't want to worry his 72. Does your father punish you when your mother, who needed the money he had been Please answer each question by making a check in the space next to agree or disagree. mother does not think you should be pun- giving her.- There are no right or wrong answers. Just ished?- 16. A gang of young boys managed by a report your opinion. 73. Would you like to spend more of your professional thief had organized stealing 40. Watching television programs such as free time with your friends than your parents from laundromats and other service stores, "Sugarfoot" and the "Donna Reed Show" and now allow?- and Walter had fallen in with this gang 74. Does your mother punish you when "Dobie Gillis" is boring or dull and a waste through his acquaintances at the bowling of time: your father does not think you should be alley.- punished?- (0) -Agree. 17. Walter liked to steal and had probably (1)-Disagree. 75. Do you feel your mother punishes you for sev- 41. Having a coke in a drugstore with other fairly?- been stealing one thing and another eral years before he was caught.- boys and girls after school or on a week end 76. Do you feel your father punishes you is dull and a waste of time: fairly?- 18. Walter was sick, mentally or physically,

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(0) -Agree. PART VIII. WAYS OF DISCIPLINING YOUNG PEOPLE (0)-Never. (1) -Disagree. Below are various ways by which many (1) -Very seldom. 42. Watching school athletic contests is parents discipline children and young peo- Do your parents say they don't love you or boring and a waste of time: ple. Please answer each question by checking warn you that they will stop loving you? (0) -Agree. the choice which best tells how your parents 75. Father: (1) -Disagree. have disciplined you during the last 2 years. (3)-Frequently. 43. Watching school basketball or football Answer each question for your mother and (2) -Sometimes. games is fun: your father separately. (0)-Never. (1) -Agree. Do your parents take away your allowance? (1) -Very seldom. (0) -Disagree. 61. Father: 76. Mother: 44. Television programs such as "Cheyenne" (0)-Never. (2)-Sometimes. and "National Velvet" and "Lassie" are fun (1) -Very seldom. (3) -Frequently. to watch: (2) -Sometimes. (1) -Very seldom. (1) -Agree. (3) -Frequently. (0)-Never. (2) -Disagree. 62. Mother: Have your parents beat you up (using their 45. The people who get the best jobs when (0) -Never. fists, etc.) ? they grow up are usually the people who have (1) -Very seldom. 77. Father: friends who do favors for them, rather than (2) -Sometimes. (2)-Sometimes. the people who are best trained or educated: (3) -Frequently. (0)-Never. (0) -Agree. Do your parents refuse to speak to you? (3) -Frequently. (1) -Disagree. 63. Mother: (1) -Very seldom. 46. Teachers give their praise and recogni- (1) -Very seldom. 78. Mother: tion to the students who find a way to be- (2) -Sometimes. (3)-Frequently. come their special favorites, whether these (3) -Frequently. (2) -Sometimes. students are good workers in school or not: (0) -Never. (1) -Very seldom. (0) -Agree. 64. Father: (0)-Never. (1) -Disagree. (2) -Sometimes. Mr. PELL. Mr. President, I ask for the 47. Most teachers do not really like to help (0)-Never. students: (3)-Frequently. yeas and nays on section (b). (0)-Agree. (1) -Very seldom. The yeas and nays were ordered. (1) -Disagree. Have your parents slapped you or The PRESIDING OFFICER. Do Sena- 48. Teachers given give their praise and recogni- you spankings? tors yield back their time? tion to the students who work the hardest 65. Mother: Mr. STEVENS. Mr. President, a par- and learn the most: (3) -Frequently. liamentary inquiry. (1)-Agree. (2) -Sometimes. (0) -Disagree. The PRESIDING OFFICER. The Sen- (0)-Never. ator will state it. 49. The popular children in any school are (1) -Very seldom. the ones who have earned the respect and 66. Father- Mr. STEVENS. Is this amendment still admiration of other students: (2) -- Sometimes. open to amendment? (1)-Agree. (3) -Frequently. The PRESIDING OFFICER. Is the (0) -Disagree. (1) -Very seldom. 50. Teachers have amendment open to amendment? such different Ideas (0) -Never. about what you are supposed Mr. STEVENS. Yes. to learn in Do your parents forbid you to do some- school that it is impossible to get a clear The PRESIDING OFFICER. The Sen- idea of what is best: thing that you were especially planning on ator from New York has requested the (0)-Agree. doing? division of his amendment, and section (1)-Disagree. 67. Father: (b) will be voted on separately. All the 51. People have such different ideas about (3)-Frequently. rest will be voted (2) -Sometimes. on by voice vote first. what is right and wrong that you can't ever Mr. STEVENS. Is it in order to submit get clear ideas on this question: (0) -Never. (0) -Agree. (1) -Very seldom. an amendment to delete subsection (c) (1) -Disagree. 68. Mother: at this time. 52. Once some teachers decide that a cer- (3) -Frequently. The PRESIDING OFFICER. That tain boy or girl is "bad" or a "troublemaker," (2) -Sometimes. would be in order now. there is nothing you can do to change their (0) -Never. (1) -Very seldom. Mr. STEVENS. I send such an amend- minds: ment to the desk. (0) -Agree. Do your parents tell you to leave home, (1) -Disagree. or to find a new home if you can't be better? The PRESIDING OFFICER. Have the 53. Teachers can usually tell quite well who 69. Mother: Senator from New York and the Senator is learning a lesson and who is not: (1) -Very seldom. from Rhode Island yielded back their (1)-Agree. (2) -Sometimes. time? (0) -Never. (0) -Disagree. Mr. PELL. My recollection is not acute 54. Most parents have very clear ideas (3) -Frequently. about how their children should act on dates 70. Father: on that. What does the RECORD show? and about matters like kissing: (2) -Sometimes. The PRESIDING OFFICER. Does the (1)-Agree. (0) -Never. Senator yield back his time? (3) -Frequently. (0)-Disagree. Mr. PELL. I yield it back. 55. People in any town have a lot to say ( 1)-Very seldom. about how their town government is run: Do your parents spank you with a stick, Mr. BUCKLEY. I yield back the re- (1)-Agree. belt, hairbrush, or things other than their mainder of my time. (0)-Disagree. hands? The PRESIDING OFFICER. The clerk 56. The children and adults in any town 71. Mother: will state the amendment of the Senator can help the police do a good job of en- (1)-Very seldom. from Alaska. forcing the law: (0)-Never. (1)--Agree. (3) -Frequently. The assistant legislative clerk read as (0) -Disagree. (2) -Sometimes. follows: 57. Students in junior high schools never 72. Father: On page 4, line 14, delete subsection (c). have any say or influence in what they are (0) -Never. taught in their classes. (3)-Frequently. Mr. STEVENS. Mr. President, I again (0) -Agree. (2) -Sometimes. applaud what the Senator from New (1)-Disagree. (1)-Very seldom. York is trying to do, but I think any Do your parents 58. So many other people voted in the na- take away some special proposal that has to have so many tional election last privileges? fall that it didn't matter amendments on the floor to try to per- to me whether my parents voted or not. 73. Mother: (0) -Agree. (2)-Sometimes. fect the original intent is a measure that (1)-Disagree. (3)-Frequently. should not be passed. 59. If a group of children decide they do (0)-Never. Subsection (a) is a good subsection. not like you, there is nothing much you can (1) -Very seldom. Subsection (d), as I read it, on protection do to change their minds: 74. Father: of personal data, gives the Secretary and (0) -Agree. (2) -Sometimes. (1)-Disagree. the schools the right to protect personal (3) -Frequently. data under any regulations that are nec-

HeinOnline -- 120 Cong. Rec. 14593 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 16 of 27 14594 CONGRESSIONAL RECORD - SENATE May 14, 1974 essary to control the use, dissemination, objection to the unanimous-consent re- [No. 194 Leg.] or protection of such data. quest of the Senator from Alaska? The YEAS-35 Subsection (c) is not necessary, and Chair hears none, and it is so ordered. Aiken Haskell Nunn what is more, again I point out that it Mr. BUCKLEY. Mr. President, if the Bayh Hathaway Packwood Bible Huddleston Pell would harm the students. It would pre- distinguished Senator from North Caro- Byrd, Robert C. Jackson Proxmire vent those with legitimate interests from lina (Mr. ERVIN) wants to address him- Cannon Kennedy Ribicoff going to a school and getting the in- self to that point, I yield to him to do so. Clark Magnuson Stennis Cotton McGee Stevens formation that is necessary. It would pre- Mr. President, I would merely say that Dominick McGovern Stevenson vent the Senator from New York from the area addressed by the Senator from Eagleton McIntyre Taft deciding to recommend a student for Alaska (Mr. STEVENS) is but one area. Griffin Metcalf Talmadge Probation reports have also been leaked Hart Metzenbaum Williams some national award without going and Hartke Nelson telling him, if he was over 18. One would to the FBI, and other files as well. This have to have his consent to get any In- Is an area of extreme sensitivity. I do not NAYS-49 believe that, absent appropriate court Abourezk Dole McClure formation from his record. Allen Domenici Mondale It would prevent a probation officer- orders, this information should be made Baker Eastland Montoya notwithstanding the argument of my available. Bartlett Ervin Muskie Beall Fannin Pastore good friend from Delaware, I still have Mr. ERVIN. Mr. President, section (d), Bellmon Fong Pearson faith in the probation system, and I as I understand it, provides that- Biden Hansen Roth think the probation officer ought to be The Secretary shall adopt appropriate reg- Brock Hatfield Schweiker able to go in and get the information ulations to protect the rights of privacy of Brooke Helms Scott, Hugh Buckley Hruska Scott, necessary not only when a student is sub- students and their families in connection Burdick Hughes William L. ject to a juvenile proceeding, but in with any surveys or data-gathering activities Byrd, Humphrey Stafford order to continue the work that he has to conducted, assisted, or authorized by the Harry F., Jr. Johnston Thurmond Secretary ... Case Long Tower do during the period before a juvenile is Chiles Mansfield Tunney sentenced. Many times they have to keep I do not see any objection to protect- Church Mathias Welcker up with what they are doing. It is a pro- ing the privacy of children. I do not see Cranston McClellan Young bation officer's duty to find out what he that they should be made guinea pigs by NOT VOTING-16 is doing in school, or whether he is at- social scientists. That is why I support Bennett Gravel Percy tending school. This would even prevent the bill. Bentsen Gurney Randolph Cook Hollings Sparkman a probation officer from getting attend- Mr. STEVENS. Mr. President, with all Curtis Inouye Symington ance data. I cannot understand us put- due respect to the 4jstinguished Senator Fulbright Javits ting such a cloak of secrecy around a stu- from North Carolina, my amendment is Goldwater Moss dent. to delete section (c), not (d). So Mr. STEVENS' amendment was On the other hand, subsection (c), as Mr. BUCKLEY. Mr. President, I yield rejected. I understand it, gives the school author- back the remainder of my time. Mr. CRANSTON. Mr. President, the ities complete authority to adopt appro- The PRESIDIflG OFFICER. All time Senator from New York (Mr. BUCKLEY) priate regulations. That would be subject on this amendment has now been yielded has proposed an amendment regarding to the Administrative Procedures Act. back. the confidentiality of student records and Everyone concerned would be involved in The question is on agreeing to the requiring parental consent for certain a hearing. amendment of the Senator from Alaska school activities that causes me some This has not been the subject of hear- (Mr. STEVENS) to strike section (c). concern. ings by committee, and I do not think it On this question the yeas and nays The first portion of the amendment is the kind of thing that ought to be have been ordered, and the clerk will call seeks to guarantee the right of access passed on the floor of the Senate without the roll. and review of a students school records, further consideration. Therefore, to save The assistant legislative clerk called by parents and by students-if 18 years time, I ask the deletion of that section. the roll. of age or over-and prevent the disclo- I yield back the remainder of my time. Mr. ROBERT C. BYRD. I announce sure of such records to most third parties Mr. PELL. Mr. President, I think there that the Senator from Arkansas (Mr. without parental or student consent. is merit in what the Senator from Alaska FULBRIGHT), the Senator from Alaska I would wholeheartedly support this says, and I would vote the same way. I (Mr. GRAVEL), the Senator from South portion of the Senator's amendment. It yield back the remainder of my time. Carolina (Mr. HOLLINGS), the Senator seems to me that it seeks to preserve a Mr. BUCKLEY. Mr. President, I ask from Hawaii (Mr. INOUYE), the Senator right to confidentiality of records of stu- for the yeas and nays. from Utah (Mr. Moss), the Senator from dent academic and personal performance The yeas and nays were ordered. West Virginia (Mr. RANDOLPH), the Sen- that should be guaranteed. I would point The PRESIDING OFFICER. Does the ator from Alabama (Mr. SPARKMAN), the out, however, that in my State of Cali- Senator from Rhode Island yield back his Senator from Texas (Mr. BENTSEN), and fornia, this right of access and review time? the Senator from Missouri (Mr. SYMIN- is presently guaranteed under the Cali- Mr. PELL. Mr. President, I yield back TON) are necessarily absent. fornia Public Records Act. the remainder of my time. I further announce that, if present and The section of the amendment that The PRESIDING OFFICER (Mr. voting, the Senator from West Virginia deals with "parental consent," however, NUNN). All time has now been yielded (Mr. RANDOLPH) would vote "yea." causes me serious concern. back- Mr. GRIFFIN. I announce that the First, I question the advisability of the Mr. ERVIN. Mr. President, a parlia- Senator from Utah (Mr. BENNETT), the mentary inquiry. What are we voting on? Congress enacting legislation that, in Senator from Kentucky (Mr. COOK), the The PRESIDING OFFICER. On the effect, would thwart a State's compulsory Senator from Florida (Mr. GURNEY), the attendance laws. Under this amend- amendment of the Senator from Alaska Senator from New York (Mr. JAVITS), ment, a parent may refuse to have his (Mr. STEVENS) to strike section (c). and the Senator from Illinois (Mr. child attend a class if, after notification, Mr. BUCKLEY. Mr. President, I do not PERCY) are necessarily absent. the parent finds the content of the course believe I yielded back my time yet. or activity to be objectionable. While I do The PRESIDING OFFICER. On the I also announce that the Senator from not object to "parental consent," I do Stevens amendment, the Senator from Nebraska (Mr. CUaRTIS), and the Senator New York does not have any time. from Arizona (Mr. GOLDWATER) are ab- question Federal interference in what I Mr. STEVENS. Mr. President, I ask sent on official business. believe to be a question that should be unanimous consent that the Senator I further announce that, if present and decided by locally elected school officials, from New York (Mr. BUCKLEY) may have voting, the Senator from Nebraska (Mr, rather than the Federal Government. 5 minutes to respond. I think that is only CURTIS) would vote "nay." Second, subsection (b) (2) of the fair. The result was announced-yeas 35, amendment would require parental con- The PRESIDING OFFICER. Is there nays 49, as follows: sent for students-and I quote:

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To participate In any project, program, The PRESIDING OFFICER. The ques- NAYS-43 or course, the primary purpose or principal tion now occurs on all of the amendment Abourezk Hart Metzenbaum effect of which is to affect or alter the per- except section (b). Aiken Hartke Mondale sonal behavior or personal values of a stu- Allen Haskell Muskie The amendment was agreed to. Bayh Hatfield Nunn dent, or to explore and develop teaching Pell techniques or courses primarily intended The PRESIDING OFFICER. The ques- Bible Hathaway (b) of the Biden Hughes Ribieoff to affect such behavior and values. tion now occurs on section Brooke Humphrey Schweiker amendment. On this question, the yeas Burdick Jackson Stafford Mr. President, this language is breath- and nays have been ordered, and the Cannon Kennedy Stevens taking in its sweeping generalities. How clerk will call the roll. Case Long Stevenson do you determine in advance, Clark Magnuson Talmadge and pro- Mr. MANSFIELD. Mr. President, what Tunney vide notification Cotton Mathias to the parent, of class- are we voting on? Cranston McGee Williams room activities that might bear on the The PRESIDING OFFICER. On sec- Dominick McGovern values of a student? Eagleton McIntyre A course in Amer- tion (b) of the Buckley amendment. ican history, for example, that discusses The second assistant legislative clerk NOT VOTING- -17 contemporary American ethics in the Bennett Gravel Packwood proceeded to call the roll. Percy light of Watergate could be construed as Mr. ERVIN. Mr. President, precisely Bentsen Gurney tending to "affect the personal values" Cook Hollings Randolph what is this? Curtis Inouye Sparkman of a student. Or, how do you go about The PRESIDING OFFICER. The roll- Fulbright Javits Symington discouraging violent or overly aggressive Goldwater Moss call is now in progress. behavior without tending to "alter the Mr. HUMPHREY. Mr. President, a So section (b) of Mr. BUCKLEY'S personal behavior" of a student? parliamentary inquiry. amendment (No. 1289) was rejected. These are serious questions, Mr. Pres- The ques- Mr. PELL. Mr. President, I move to ident, that we cannot take lightly. Be- The PRESIDING OFFICER. tion is on the adoption of section (b) of reconsider the vote by which the amend- cause the penalty for even accidental transgression of these Federal directives the Buckley amendment. ment was rejected. Mr. EAGLETON. I move to lay that is the total loss of Federal funding to Mr. HUMPHREY. Up and down on table. any educational institution-public or section (b) ? motion on the The motion to lay on the table was private, preschool through postsecond- The PRESIDING OFFICER. That is to. ary-that is found "out of compliance. correct. agreed Finally, Mr. President, the amendment The question is on the adoption of Several Senators addressed the Chair. directs the Secretary of Health, Educa- section (b) of the Buckley amendment. The PRESIDING OFFICER. The Sen- tion, and Welfare with the responsibility The clerk will call the roll. at Dr from Colorado is recognized. for-and again, I quote: The second assistant legislative clerk Mr. DOMINICK. I yield to the Sena- resumed and concluded the call of the Investigating, processing, reviewing, and tor from California. adjudicating violations of the provisions of roll. The PRESIDING OFFICER. The Sen- this section and complaints. Mr. ROBERT C. BYRD. I announce ator from California is recognized. that the Senator from Texas (Mr. BENT- Mr. DOMINICK. Mr. President, I Frankly, I question the wisdom of SEN), the Senator from Arkansas (Mr. yield to the Senator from Missouri. charging a Federal agency with the pow- FULBRIGHT), the Senator from Alaska Mr. EAGLETON. Mr. President, I ask er to probe the questions that would (Mr. GRAVEL), the Senator from South unanimous consent that James Murphy have to be probed in order to investigate Carolina (Mr. HOLLINGS), the Senator and Marsha McCord be accorded the complaints of alleged violations of the from Hawaii (Mr. INOUYE), the Senator privileges of the floor during considera- act. Such questions could include: from Utah (Mr. Moss), the Senator tion of the education bill. Was the purpose of the course to affect from West Virginia (Mr. RANDOLPH), the The PRESIDING OFFICER. Without the values of the child, or were they af- Senator from Alabama (Mr. SPARKMAN), objection, it is so ordered. fected accidentally, or at all? and the Senator from Missouri (Mr. Even if the purpose of the course was SYMINGTON) are necessarily absent. THE 200TH ANNIVERSARY OF THE not to alter the values of the child, did I further announce that, if present it have the effect or altering the values and voting, the Senator from West Vir- FIRST CONTINENTAL CONGRESS of the child? ginia (Mr. RANDOLPH) would vote "nay." Mr. HUGH SCOTT. Mr. President, I What were the values of the child be- Mr. GRIFFIN. I announce that the ask unanimous consent that action on fore they were "altered"? Senator from Utah (Mr. BENNETT), the Senate Concurrent Resolution 85 taken Mr. President, I believe my point is Senator from Kentucky (Mr. COOK), the this morning be reconsidered, and that obvious: This section of the Senator's Senator from Florida (Mr. GURNEY), the it be amended in three respects. amendment brings the Federal Govern- Senator from New York (Mr. JAVITS), I send the amendments to the desk and ment and its agencies dangerously close the Senator from Oregon (Mr. PACK- ask the clerk to read the concurrent to deciding issues of academic and per- WOOD), and the Senator from Illinois resolution as it would be so modified. sonal freedom that should be in the (Mr. PERCY) are necessarily absent. The PRESIDING OFFICER. Is there hands of local and State school officials, I also announce that the Senator from objection? Without objection, it is so and the people who elected them, not the Nebraska (Mr. CURTIS) and the Senator ordered. Federal Government. from Arizona (Mr. GOLDWATER) are ab- The clerk will read the concurrent I do not believe the Senate of the sent on official business. resolution, as modified. United States should take any action I further announce that, if present The assistant legislative clerk read the that could be legitimately construed as and voting, the Senator from Nebraska concurrent resolution, as modified, to- having the primary effect of circumvent- (Mr. CURTIS) would vote "yea." gether with its preamble, as follows: ing local control of curriculum and The result was announced-yeas 40, S. CoN. RES. 85 school practices, discouraging innova- nays 43, as follows: Whereas the meeting at Carpenters' Hall in tion, or stifling educational reform. [No. 195 Leg.] the City of Philadelphia in the Colony of For these reasons, and because I sup- Pennsylvania from September 5 to October 26, port the major premise of the Senator's YEAS-40 1774, which has become known as the First amendment, I would hope he would con- Baker Ervin Nelson Continental Congress, will have observed dur- Bartlett Fannin Pastore ing 1974 its two hundredth anniversary; and sider deleting the section of the amend- Beall Fong Pearson ment to which I have referred. Bellmon Griffin Whereas the actions of that Congress in Proxmire uniting, for the first time, the thirteen dis- The PRESIDING OFFICER. The ques- Brock Hansen Roth Buckley Helms Scott, Hugh parate American Colonies to seek redress of tion now occurs on the first part of the Byrd, Hruska Scott, their many grievances against the Parliament amendment of the Senator from New Harry F., Jr. Huddleston William L. and King of England, set in motion a series York. Byrd, Robert C. Johnston Stennis of events leading to the meeting of the Sec- Chiles Mansfield Taft ond Continental Congress Mr. PELL. The vote is now on section Church McClellan Thurmond which produced (b), is it not? What is the parliamentary Dole McClure Tower the Declaration of Independence and guided Domenici Metcalf Weicker the new Nation through the American War situation? Eastland Montoya Young for Independence; and

HeinOnline -- 120 Cong. Rec. 14595 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 18 of 27 14596 CONGRESSIONAL RECORD - SENATE May 14, 1974 Whereas the precedents set by the meeting The assistant legislative clerk pro- Mr. ERVIN. Mr. President, a point of of the first Congress in 1774 form the foun- ceeded to read the amendments. order. The Senate had a vote on the dation upon which rests the principles and Amendments No. 1306 are as follows: motion of the Senator from Alaska to practices of the existing Congress of the United States of America; and On page 330, between lines 17 and 18, in- delete section (c). Then we had a sepa- Whereas October 14, 1774, was the date on sert the following new section: rate vote on section (b), did we not? which the delegates to the first Congress "LIMITATION ON WITHHOLDING Or FEDERAL The PRESIDING OFFICER. By voice adopted the Declaration and Resolves, ex- FUNDS vote, the Senate agreed to all parts of pressing to the King of England their rights "SEc. 513. Part C of the General Education the amendment with the exception of as Englishmen and their determination to Provisions Act is amended by adding at the section (b). achieve those rights, and is therefore, in end thereof the following new section: Mr. ERVIN. I beg the Chair's pardon. itself, an historic date; and "'LIMITATION ON WITHHOLDING OF FEDERAL I never heard it. Whereas on October 14, 1974, special cere- FUNDS monies, sponsored by the City of Philadel- The PRESIDING OFFICER. The voice phia, the National Park Service of the De- "'Szc. 437. The refusal of a State or local vote was taken on all parts of the amend- partment of the Interior and the American education agency and institution of higher ment with the exception of section (b), Revolution Bicentennial Administration, will education, community college, a school, pre- which was a rollcall vote. The voice vote school, or any other educational institution, be held at Carpenters' Hall in Philadelphia, to administer a test or project or to provide was on all other parts. Pennsylvania, to properly and appropriately Mr. BROCK. Mr. President, a parlia- observe for the Nation the two hundredth personally identifiable data on students or their families, as a part of an applicable pro- mentary inquiry. anniversary of the First Continental Con- gress; and gram, to any Federal office, agency, depart- The PRESIDING OFFICER. The Sen- Whereas the two hundredth anniversary of ment, or other third party, on the grounds ator will state it. the First Continental Congress marks one of that it constitutes a violation of the right Mr. BROCK. Was not the voice vote the first historic commemorative events of to privacy and confidentiality of students, taken prior to the vote on the amend- the American Revolution Bicentennial cele- their parents, or is an unacceptable research or experimentation project, or is for the ment of the Senator from Alaska on sec- bration: Now, therefore, be it tion (c)? Resolved by the Senate (the House of Rep- purpose of altering the personal behavior or values of a student, or is potentially psycho- The PRESIDING OFFICER. The Sen- resentatives concurring), That it is the strike was sense of Congress that October 14, 1974, logically or otherwise harmful to students or ator from Alaska's motion to be proclaimed a Day of National Obser- their families, shall not constitute sufficient first of all voted on, and then there was vance for the 200th Anniversary of the First grounds for the suspension or termination of a voice vote, and then there was a vote Continental Congress and calls upon the Federal assistance. Further, such a refusal on section (b). people of our Nation to fittingly observe and shall not constitute sufficient grounds for a Mr. BUCKLEY. Mr. President, I was honor this important date in our country's denial of, a refusal to consider, or a delay in the consideration of funding in succeed- reading from an article in the New York history. Times in which the following was stated: SEC. 2. That the President pro tempore of ing fiscal years for such a recipient.' " The (New York) city's Board of Education the Senate and the Speaker of the House be On page 122, in the Table of Contents after authorized to select, upon the recommenda- item "See. 512." insert the following: accused the United States Department of tion of the respective majority and minority "See. 513. Limitation on withholding of Fed- Health, Education and Welfare yesterday of directing a number of schools here to ad- leaders, four Members of each House to rep- eral funds.". minister pupil questionnaires that the board resent the Congress of the United States of America at ceremonies in Carpenters' Hall, Mr. BUCKLEY. Mr. President, for the said were "racist," "highly inflammatory," Philadelphia, on October 14, 1974, and to benefit of Senators present, I under- and "polarizing." Dr. Seymour P. Lachman, the president of present at said ceremonies to a representa- stand the managers of the bill will ac- the board, said the Federal department had tive of the City of Philadelphia a copy of cept the amendment. "once more shown its callous insensitivity this resolution. I think I can best illustrate its pur- to the needs of children and good intergroup SEC. 3. That the Expenses of the Members pose by quoting one article that appeared relation." are authorized to be paid from the contin- in the New York Times on November 21, A statement by Dr. Lachman noted that gency funds of the Senate and House of 1973, relating to a questionnaire that the preface to the 23-item Federal ques- Representatives as approved, respectively, by tionnaire said: "To the student: These ques- the Committee on Rules and Administration HEW was demanding the New York City tions are to find out how you feel about and the Committee on House Administration. Board of Education circulate among its students: students who are different from you. If you The Senate proceeded to consider the are Black, we want to know how you feel concurrent resolution. The "New York" city's Board of Educa- about students who are not Black. If you The PRESIDING OFFICER. Without tion accused the United States Department are White, we want to know how you feel objection, the three amendments are of Health, Education and Welfare yester- about students who are not White. If you day of directing a number of schools here to are Brown, we want to know how you feel agreed to. administer pupil questionnaires. Without objection, the resolution as about students who are not Brown. What- ever you are, we want to know how you feel amended is agreed to. Mr. President, has the other amend- ment been voted on? about students who are different from you." Without objection, the preamble is Dr. Lachman said that the form then agreed to. The PRESIDING OFFICER. The asked such questions as the following: amendment was in two parts, and has "How do you think your parents feel about been disposed of. Black and White (or Brown and White or EDUCATION AMENDMENTS OF 1974 Mr. BUCKLEY. I thank the Chair. Black and Brown) students going to the Mr. CRANSTON. Mr. President, I want same school together. The Senate continued with the con- "Do you think that Black (or White or sideration of the bill (S.1539) to amend to state my firm support for the amend- ment offered by the distinguished Sena- Brown) students in this school cause more trouble than other kinds of students?" "How and extend certain acts, relating to ele- tor from New York (Mr. BUCKLEY) which mentary and secondary education pro- do you think your principle feels about all would protect schools from the loss of different kinds of students going to the same grams, and for other purposes. Federal funds if they choose not to ad- Mr. DOMINICK. Mr. President, I had school together?" minister tests prescribed by the Federal Dr. Lachman said that it was inconceiv- an amendment to the McClellan amend- Government. able to him how such a questionnaire "could ment earlier today to part'(b), which I Sadly, we seem to live in an age of be administered in good faith to fourth- and added, and which was adopted, and I ask sophisticated snoops, both electronic and fifth-grade students." unanimous consent that the Secretary human. It seems to me that Senator may make a technical correction in it I would now like to quote two brief BUCKLEY'S amendment protects the right in which will extend it for as long as the paragraphs of an article that appeared bill presently extends, instead of cutting of schools to reject testing instruments the Washington Post on May 7 of this it off shorter. that these local officials find to be objec- year. The headline was "Schools Balking The PRESIDING OFFICER. Is there tionable. at Pupil Quiz": objection? Without objection, it is so Mr. ERVIN. Mr. President, a point of District of Columbia school officials an- nounced yesterday they will risk cancella- ordered. order. tion of $3.4 million in federal funds for edu- Mr. BUCKLEY. Mr. President, I call The PRESIDING OFFICER. Does the cationally disadvantaged children rather up my amendments No. 1306. Senator from New York yield for a pre- than ask students and teachers 24 questions The PRESIDING OFFICER. The clerk liminary inquiry? they consider "sociologically or psychologi- will read the amendments. Mr. BUCKLEY. I yield. cally damaging."

HeinOnline -- 120 Cong. Rec. 14596 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 19 of 27 May 14, 1974 CONGRESSIONAL RECORD - SENATE 14597 The questions, part of a battery of tests The PRESIDING OFFICER. The Maryland ------0 one-and-a-half inch thick to be adminis- clerk will call the roll. Massachusetts ------2 tered to 720 students and teachers, con- The second assistant legislative clerk Michigan ------2 cern the students' home lives and expecta- Minnesota ------10 tions in school. proceeded to call the role. Mississippi ------27 Mr. PELL. Mr. President, I ask unan- Missouri ------27 My amendment simply limits the imous consent that the order for the Montana ------5 ability of HEW to withhold funds from quorum call be rescinded. Nebraska ------18 school districts that refuse to circulate The PRESIDING OFFICER. Without Nevada ------1 questionnaires of this kind or which be- objection, it is so ordered. New Hampshire ------0 lieve them to be harmful or potentially Mr. PELL. Mr. President, what is the New Jersey ------10 pose psychological harm to their stu- New Mexico ------1 pending question? New York dents. ------19 The PRESIDING OFFICER. The North Carolina ------54 I understand the managers of the bill question is on agreeing to the amend- North Dakota ------15 are willing to accept the amendment. ment of the Senator from New York. All Ohio ------3 Mr. PELL. Mr. President, the Senator time has been yielded back. Oklahoma ------14 is correct. We look favorably at this The amendment was agreed to. Oregon ------1 amendment, especially on the majority Mr. McCLURE. Mr. President, I move Pennsylvania ------1 side. There seems to be no great objection that the Senate reconsider the vote by Rhode Island ------0 South Carolina ------19 to it. I would recommend to my col- which the amendment was agreed to. leagues that we adopt it. South Dakota ------27 Mr. BUCKLEY. I move to lay that Tennessee ------35 Mr. DOMINICK. Mr. President, if the motion on the table. Texas ------32 Senator will yield, I agree. It is a good The motion to lay on the table was Utah ------7 amendment, except it should have been agreed to. Vermont ------0 done a long time ago. Mr. HATHAWAY. Mr. President, there Virginia ------20 Mr. HART. Mr. President, will the Sen- is one point with regard to the McClellan Washington ------0 ator yield? amendment which should be made about West Virginia ------24 Wisconsin ------2 Mr. PELL. I am glad to yield. the overall effect of the McClellan Mr. HART. I, of course, do not wish Wyoming ------1 amendment. That is the substantial shifts District of Columbia ------1 to ask for a rollcall. I rise to express con- in title I funds which will take place cern again that the Senate, at 20 min- within States, even States which gain, Total ------600 utes to 7 tonight, is adopting language under the amendment. For example, al- at least some of which is unclear to any- though the State of Virginia would gain BUSING TO DESEGREGATE body, particularly to reserve to a school overall, the city of Richmond would lose, board the right to continue to receive SCHOOLS: THE PERSPECTIVE along with 20 Virginia counties. Omaha FROM CONGRESS Federal money even though it rejects a is another major example. In all, more project if the project is for the purpose than 600 counties nationwide will lose- Mr. PEARSON. Mr. President, in view of altering the personal behavior or val- and many of these counties are in States of the legislation pending before the ues of a student. which show an overall gain under the Senate, and in view of the ongoing de- Again, I suggest that that really is the McClellan amendment. bate on the issue of busing, I am in- meat and potatoes of education, and I These are not speculative losses. These serting a timely article written by our just continue to think we would have are actual dollar losses which will affect distinguished minority leader, the Sena- been much better off if the committee these school districts this fall. I hope that tor from Pennsylvania. Entitled "Busing had been able to evaluate exactly what Senators from those States which appear To Desegregate Schools: The Perspec- would happen under this. I am sure that to gain under this amendment will con- tive From Congress." This University of concern will be voiced with respect to it. sider the problems they are still going to Richmond Law Review article offers a Mr. BUCKLEY. Mr. President, a par- have when the county-level effect of the calm perspective in the face of growing liamentary inquiry. amendment manifests itself in their controversy on busing. I ask unanimous The PRESIDING OFFICER. The Sen- States. consent that this article be printed at ator will state it. Mr. President. I ask unanimous con- this point in the RECORD. Mr. BUCKLEY. Mr. President, has all sent that a table showing the number There being no objection, the article is time been yielded back? of counties which will lose under this ordered to be printed in the RECORD, as The PRESIDING OFFICER. Has all amendment-broken down by States-be follows: time been yielded back? printed at this point in the RECORD. BUSING To DESEGREGATE SCHOOLS: THE Mr. ROBERT I C. BYRD. Mr. President, would also call the attention of Sena- PERSPECTIVE FROMz CONGRESS I suggest the absence of a quorum. tors to Senator PELL'S information con- (By HUGH SCOTT)* The PRESIDING OFFICER. The clerk tained in the May 13 RECOaD at pages In the end, I expect that the courts will will call the roll. 14334-37. solve the problem-not Congress.' The second assistant legislative clerk There being no objection, the table This controversy over transporting pupils proceeded to call the roll. was ordered to be printed in the RECORD, as to desegregate schools or "busing" as the Mr. MUSKIE. Mr. President, I ask issue popularly is known, is the narrowest follows: unanimous consent that the order for the and perhaps most limited aspect of school Number quorum call be rescinded. of counties per State receiving a desegregation. Yet, it threatens to undo decreased allocation under the McClellan school desegregation completely unless the The PRESIDING OFFICER. Without amendment objection, it is so ordered. issue is resolved in a way which will permit Alabama ------17 continued Mr. MUSKIE. Mr. President, desegregation of schools accom- I ask Alaska ------7 panied by the understanding and support of unanimous consent that Rick Bayard Arizona ------0 the majority of people of all races. and Reid Feldman be granted the privi- Arkansas ------12 A year ago it seemed virtually assured that lege of the floor during the debate on the California ------2 Congress would pass a major anti-busing education bill. Colorado ------5 law. That event was averted in the Senate The PRESIDING OFFICER. Without Connecticut ------0 when the anti-busing forces were unable to objection, it is so ordered. Delaware ------0 force cloture of the debate on the "Equal Florida ------1 Educational Opportunities Act of 1972" 2 and CHANGE OF VOTE ON VOTE NO. 194 Georgia ------48 failed to defeat a subsequent3 motion to pro- Mr. HUMPHREY. Mr. President, I ask Hawaii ------0 ceed to other business. unanimous consent that on the Stevens Idaho ------A 6 This turn of events resulted from several amendment, on which I voted "yea," I be Illinois ------12 factors. First, Congress earlier in the year had recorded as voting "nay.,, Indiana ------4 enacted important guidelines on the use of Iowa ------41 pupil transportation as a means The PRESIDING OFFICER. Without 4 of school de- Kansas ------21 segregation. Second, many members of Con- objection, it is so ordered. Kentucky ------42 gress had confidence in the discretion of the Mr. MUSKIE. Mr. President, I suggest Louisiana ------2 the absence of a quorum. Maine ------2 Footnotes at end of article.

HeinOnline -- 120 Cong. Rec. 14597 1974 Case 1:12-cv-00327-ABJ Document 18-2 Filed 11/30/12 Page 20 of 27 14598 CONGRESSIONAL RECORD - SENATE May 14, 1974 Supreme Court to limit excessive busing on most part are desegregated. A distinguished achievement of the Act. Title IV authorized a case by case basis, while at the same time Virginian, Lewis F. Powell, Jr., is an Asso- the Attorney General to go into court to en- formulating well-reasoned and appropriate ciate Justice of the Supreme Court, and has force the right of all citizens to vote under guidelines for the lower courts to follow in contributed valuable insights and great in- the fifteenth amendment. This brought the asserting decrees. Third, the legislative pro- tellect to solving the problems of desegre- federal government into court on the side of posals to limit busing went far beyond what gation since his recent appointment to the civil rights plaintiffs. No longer would the was reasonable or necessary. Instead, the pro- Court. government be a powerless or neutral ob- posed "Equal Educational Opportunity Act," The progress of the past twenty years has server on the sidelines. It now was actively as passed by the House of Representatives, not been easy. Prior to Brown, racial segre- committed to securing the civil rights of all virtually repealed substantial portions of the gation under law was the accepted way of citizens. Civil Rights Acts and guaranteed that de- life in the southern states. All schools and Obviously, this development did not go segregation would never occur in some public facilities were segregated by race. unchallenged by those states and localities metropolitan areas. The bill actually made Public transportation was segregated, and which felt threatened by the use of federal possible re-segregation in those cities and the law required the private businessman power to protect and secure the rights of towns found to have racially segregated to operate segregated places of accommoda- citizens under the fourteenth and fifteenth neighborhoods. Fourth, many of the mem- tion. The masses of black citizens were denied amendments. "Massive resistance" in Vir- bers of Congress were convinced that anti- the right to vote. Where the law did not re- ginia and elsewhere was the most organized busing legislation was not only unwise but quire segregation, racial discrimination and challenge to federal authority. Violence and unconstitutional as well. custom imposed an equal effect. Discrimina- confrontation, often incited by demagoguery, In this article it is suggested that we now tion against blacks in employment and hous- occurred throughout the south while the have established principles, through legis- ing was the rule everywhere. north looked on, all too complacently, from lation by Congress and decisions of the The legacy and effect of de jure segrega- the sidelines. During this period a growing courts, within which we can resolve the com- tion spilled over into the north where racial awareness, sharpened by the reports of the plexities of limiting pupil transportation in discrimination was practiced openly and United States Commission on Civil Rights, a fair and practical manner without resegre- often in definance of state laws prohibiting developed that desegregation of schools was gating schools. discriminatory practices. In the year 1954, the only one part of a struggle for equal oppor- The greatest single reason for the impasse black man, ninety years after Emancipation, tunity which was taking place on several between opposing groups in the debate over was confronted with social policies that were fronts simultaneously. The first report of the school desegregation has been the adamant in many respects as degrading as involuntary Civil Rights Commission in 1959 dealt with and mutual refusal of both sides to recog- servitude. Brown v. Board of Education over- voting, education and housing. The report nize and respect what has been accomplished ruled this epitaph. Since that decision, this made it clear that progress in each area was in school desegregation and the nature of the nation has been headed steadily on a course dependent upon progress being made in the problems yet unresolved. Those who oppose toward full equality of opportunity for every other areas as well. To attempt to find a pupil transportation to desegregate schools citizen and toward the elimination of the priority target was to search for the begin- often give the impression that they have con- vestiges of segregation from every aspect of ning of a circle. It was against such a back- veniently forgotten the recent history of our lives. I doubt if there are many today ground that Congress moved to consider the schemes to evade Constitutional mandates. who would vote to overturn Brown and re- major civil rights acts of the 1960's. Overall, the Civil Rights Act of 1960 1 was On the other hand, the proponents of bus- turn to a "separate but equal" society. 2 ing often appear blind to the fact that de- Ten years after Brown little progress had a disappointment. The strong recommen- the Civil Rights Commission, segregation is accepted today by an over- been made to desegregate schools except in dations of whelming majority of people, including many the which had provided the impetus for the 9 border states and the District of Colum- who once vehemently opposed it.0 bia. The spectacle of United States Army legislation, were systematically weakened The point has been reached where the is- troops surrounding Central High School In and replaced until few of substance re- mained. The Act was generally viewed as a sue of good faith should no longer be a Little Rock, Arkansas forced this country to major element of any debate about a rem- realize that desegregation on a case by case failure. increased national focus on the edy. Congress, the courts and the executive basis would be a long term and tumultuous Despite have demonstrated repeatedly that they find proposition. It was clear that unless volun- civil rights movement, the first two years of another era of segregation constitutionally tary compliance with the letter and spirit of the Kennedy Administration passed without unacceptable. Happily, there are indications Brown was forthcoming, and that did not any civil rights action by Congress. Litigation that the country may be able to reason its appear to be likely, little was going to hap- became the chosen weapon of the Adminis- way through some of the knotty and com- pen until Congress acted. tration for achieving civil rights. Since the plex problems of desegregation without be- Effective congressional action did not come only source of effective civil authority pos- coming embroiled in accusations of bad easy. From Reconstruction until 1957 no gen- sessed by the Attorney General was in the faith and the accompanying recriminations. eral action had been taken by the Congress field of voting, the belief was that school de- In devising remedies which will be fair to require implementation of the fourteenth segregation and other gains would come and which will be supported by the majority amendment. The first steps by Congress to- about through an expansion of the political of people, it must be kept in mind that we ward enacting guarantees of full and equal process resulting from greater enfranchise- are no longer dealing with modest rural citizenship were taken during the Eisen- ment of Negroes. school districts, but with major school sys- hower-Nixon Administration In 1956 and Despite heroic and dedicated efforts by tems such as those in the metropolitan 1957. The initial actions taken by Congress outstanding lawyers in the Civil Rights Di- areas of Richmond, Atlanta, Denver 7 and De- seemed timid to critics, but in reality they vision, the Department of Justice was not troit. National policy must continue to be were precedent-shattering moves which successful in vindicating civil rights for committed to integration, but the imple- cleared away several time-encrusted proce- Negro citizens through the judicial process. At mentation of that policy must be fair and dural obstacles to the passage of civil rights the end of 1962, the additional number of flexible and must have the broad based sup- legislation. The first procedural move was black citizens who could vote as a result of port of 3 the people. The potential for devis- the decision by Senate Majority Leader Lyn- cases brought by the Department was small. ing a fair and flexible means of implement- don B. Johnson Equally small was the amount of school de- ing desegregation is available, to use a relatively weak civil but building rights segregation achieved through private litiga- understanding bill as the vehicle for breaking the 14 and support among people traditional southern filibuster against civil tion. generally appears to be the greatest chal- rights legislation. At that time, many did At the start of the 88th Congress, the lenge. This can be accomplished, however, not realize the true proportions Kennedy Administration had virtually no if, as a first step, confrontations are avoided, of this proce- dural victory, but without it, the great civil civil rights legislative program. The Admin- and reasoned debate is employed in order to istration's civil rights bill in early 1963 con- achieve the national goal of a desegregated rights acts of the 1960's would have been virtually sisted of a modest proposal to extend the life society. impossible to enact. The 1957 Civil Rights Act,h modest in of the Commission on Civil Rights and to Twenty years ago this May 17 the Su- expand the Commission's jurisdiction to pro- preme Court announced its historic decision dimensions and ambitions, has proven to be 5 8 vide clearinghouse services. Liberal Republi- in Brown v. Board of Education. It is a the base on which a large part of the fed- eral civil rights effort has been founded. The cans in the House and the Senate joined with mark of the passage of time that only one Democrats in seizing the initiative with Justice who was a member of that Court, Act created the United States Commission on Civil Rights to study civil rights problems strong civil rights proposals pointing the way Justice William 0. Douglas, is still a mem- for major civil rights enactments. Elsewhere ber of the Supreme Court; it is a mark of and to report to the nation, the Congress and the President. The Commission is still in the nation the civil rights movement in- what we have accomplished that the man creased in momentum. who argued the cause of the black plaintiffs serving the nation and will continue to so serve through its current extension until Events in Birmingham, Alabama in April, in Brown sits today as the first black justice 1963 suddenly ignited the conscience of 1978. the of the Court. That Justice is Justice Thur- nation. Police Commissioner Eugene "Bull" Title II of the Act of 1957 also created the good Marshall, who was appointed by a Connor, his dogs and fire hoses, and the Southern President. Civil Rights Division of the Department of bombings, riotings and rage of the inner city Shortly after the decision in Brown, the Justice. This is perhaps the most substantial shocked the people of America. On June 12, Commonwealth of Virginia vowed "massive 1963 Medgar Evers was ambushed and killed resistance." Today, Virginia's schools for the Footnotes at end of article. in front of his home In Jackson, Mississippi.

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On June 19, the Kennedy Administration resulting from factors other than state or other than freedom of choice plans and simi- finally sent a major new civil rights bill to local laws? lar token efforts.w It is my view that these decisions were necessary in order to uphold Congress. During, a summer-long considera- What if school segregation results from ad- tion of the bill, the great march on Wash- ministrative decisions of school officials such the constitutionality of the racial balance language of Title IV. Had the language of ington took place. There, Dr. Martin Luther as the location of school attendance lines, Title IV been applied as Congressman Cramer King intoned his greatest speech, "I Have a selection sites for new schools and the size had hoped it would, the Civil Rights Act of Dream," but Congress did not act. of particular schools, made with the pur- pose and effect of maintaining racial separa- 1964 would have been rendered a nullity as In the autumn of 1963, the President was tion, but in the absence of any law requir- far as school desegregation is concerned. assassinated in Dallas. The death of Presi- ing it? Such a decision would have been a complete dent Kennedy may not have been responsible results not from misreading of the hope and intent of Con- for the Civil Rights Act of 1964, but it did What if school segregation administrative decisions of school officials, gress that the schools of the land be de- cause many people to realize that the time but from residential segregation for which segregated through the Act. the ideal of social justice a for making other state or local governmental bodies, For a number of years, efforts were made reality was long overdue. Against a somber, such as local public housing authorities, ur- in Congress to restate the limitations con- responsible background, Congress duly more ban renewal agencies, zoning boards and city tained in Title IV in a way that would stop and enacted that monumental considered councils are responsible? desegregation.= The legal effect of these charter of civil rights, the Civil Rights Act And what of school segregation that re- efforts, and to a large extent their practical of 1964."G results, had little or no impact on school forward the concept of sults from fortuitous factors, such as popu- The Act carried lation shifts and other changes, in which desegregation, other than to encourage the making basic gains in equal opportunity north to continue to do nothing about segre- fronts, notably in government officials have played no part? simultaneously on several caused by state action in employ- Does this form of de facto segregation vio- gation of schools public accommodations, education, its own precincts. The political effect, how- nondiscrimination in federal pro- late the Constitution? ment and These questions were present in some ever, has been considerable. grams. The work of the 1964 Act subsequent- minds during the 1964 debates, but with ly was completed by passage of the Voting The racial balance language of Title IV, the only 2.25 percent of the Negro children in Rights Act of 1965 17 and the Fair Housing decisions limiting its application, futile ef- s the deep South attending integrated schools Act of 1968.1 forts in Congress to undo what has been (i.e., any school with less than 100 percent Rights Act also provided accomplished have nourished an unfor- The 1964 Civil black enrollment), the focus of concern was for double-barreled implementation of de- tunate myth in certain regions of the coun- the blatant defiance of the and of federal pro- on eliminating try that judges sitting in federal courthouses segregation of schools Supreme Court which was evident in the grams in the states. One implementation was have cheated the people out of their legis- continuation of dual and racially-separate imposed by the sec- lative victories. This has kept alive sparks administrative sanctions school systems. This concern prepared the agencies charged with of resistance to desegregation in many retaries and heads of way for amendments to Title IV of the Civil the nondiscriminatory require- pockets throughout the south, and, as un- enforcing off federal VI. The other implementa- Rights Act of 1964 which closed constitutional aspects of school segregation ments of Title efforts to deal with de facto and other forms tion was the power of the Attorney General in the north became increasingly apparent, it of segregation brought about by means other to bring suit to desegregate schools.20 With has fed flames of violent resistance in such assistance pro- than de jure (as narrowly defined). communities as Pontiac and Denver. Far the enactment of substantial The strategy of those opposed In fact to for education, school administrators worse, it has prevented the possibility of grams desegregation but who recognized the fu- and officials were f,,ced with hard choices: rational discussion of how to achieve desegre- tility of a direct attack on the principles of to forego federal financial assistance only to gation fairly, without unduly interrupting Brown v. Board of Education has been built the education of young children. Instead, we face the Department of Justice in Court in around the thesis that Brown merely com- assurances of nondiscrim- seem to be wasting our time by debating the end, or to give neutrality in school admis- guidelines and mands racial whether we will have desegregation at all. Out ination, follow desegregation and no less. Once the of school sions policies, no more of this ferment came the antibusing cam- take the money. The majority pupil by pupil, case by case approach fell, boards decided to take steps toward compli- paign of 1972. the opponents of desegregation recognized Swann v. Charlotte-Mecklenberg Board of ance. that the next line of defense was to prevent Education was not the only sector of so- Education 28 is credited with feeding the The the courts from examining whether or not emotional storm that swept many sections ciety required to accept desegregation. had of desegregation policies of school boards of the country concerning buslng. Yet, 1964 Act achieved quick desegregation in fact achieved any desegregation at all. places of public accommodation, and other Swann also contained the formulation for the Their principal hope was pinned on the practical and common sense limitation of sectors of society also began to desegregate. "freedom of choice" plans for desegregating required to busing, even though few would, or could, Additionally, employers were schools. Under such plans children were free eliminate discriminatory business practices. listen to what the Court actually was saying.z to attend the school of their choice. Of The formulation of Chief Justice Burger 31 The pervasive impact of the Voting Rights course, no whites freely chose to go to black itself felt as black became the basic building block in the pupil Act of 1965 also made schools which were publicly acknowledged joined with white moderates to oust transportation amendments to the General voters to be inferior. In many areas, only a handful from office those public officials who had Education Amendments of 1972 offered by of black families were willing to risk the very myself and Senator Mansfield. Basically, the counseled and led resistance to desegrega- real dangers of retaliations Involving loss of tion.m amendment states that Congress believes the life, limb and employment of the bread- objections to busing stated in Swann do have What had been accomplished through leg- 2 winner,to send a child to white schools. validity, indeed, that busing funds may not islation was a complete reversal of the legal- A strong buttress of this strategy was the ized segregation which had prevailed only be awarded where effectiveness of the educa- firmly held belief by its champions in Con- tional process would be impeded by the time ten years earlier. Yet, even at the height of gress that if northern school districts could or distance of travel. the civil rights tide, when Congress was de- be forced to deal with their de facto segre- In my view, Title VIII of the Education bating the Civil Rights Act of 1964, Issues gated school districts, the south would have Amendments of 1972 n2 sets the limits on were arising which would turn congresssion- a generous supply of allies who would assist how far Congress can responsibly go in plac- al efforts away from implementing school in defeating efforts to implement school de- ing restrictions on pupil transportation to desegregation toward directly opposing it. segregation and eventually enact a rollback desegregate schools. The simple scheme of In large part the development of these is- of desegregation altogether. The first fruit of the amendment ensures that federal officials sues stemmed from the growing realization this alliance was the famous racial balance cannot circumvent the reasonable stand- that school desegregation would be deter- language found in the definition of "de- ards for busing established by the Supreme mined by the answers to definitional prob- segregation" 2 and in the limitations on the Court in Swann. It is aimed at preventing power of the Attorney General to bring suit lems. What is school desegregation? For ex- 4 the sort of extreme busing that critics fear ample, if the racially segregated schools to desegregate schools in Title IV.2 This can occur; it is not directed at limiting the that existed in the south had to be dis- joinder of northern and southern concerns powers of the Court. It leaves open the "flex- mantled and replaced by "unitary" systems, is explicit in the explanation of the amend- Ibility" and "balance" necessary to imple- what, in fact, constitutes a "unitary" sys- ment given by its sponsor in the House, ment desegregation In an equitable manner. tem? Practical and mechanical problems also Representative Cramer R-Fla.) : The defeat of the anti-busing legislation purpose is to prevent any semblance were involved: are we going to transport "The in the Senate in 1972 and the virtually com- children to integrate schools if they live in of congressional acceptance or approval of plete disestablishment of the separate school the concept of "defacto" [sic) segregation racially segregated neighborhoods? Finally, systems of the south marks the entrance of or to include In the definition of "desegrega- the country into a new era in school desegre- while the Supreme Court in Brown was con- tion" any balancing of school attendance by cerned with, racially segregated school sys- gation which has been most clearly signalled moving students across school district lines by the Court's decisions in Bradley v. School tems resulting from the enactment of laws to level off percentages where one race out- requiring or expressly sanctioning them (de Board of City of Richmond = and Keyes v. weighs another." w Schaol District No. 1. Denver, Volo. The era Jure segregation) what of school segregation A series of incisive opinions by the courts we are in is the era of large city desegregation have deprived the amendmont's southern and of remedying segregation of schools supporters of their home that it would effec- Footnotes at end of article. brought about by unconstitutional state tively bar desegregation of schools by plans action. CXX----920--Part 11

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14600 CONGRESSIONAL RECORD - SENATE May 14, 1974 The constitutional problems of finding part of our urban life, we should keep in I Pub. L. No. 92-318, 86 Stat. 372. state action in northern school de facto mind that the neighborhood easily can be Title VIII of the General Education segregation are not difficult in my opinion, transmuted into "territory" or "turf" to be Amendments of 1972 provides essentially: but devising a remedy is. In fact, it is the protected at all costs, some of them too hor- Section 810 states that no provision of the difficulty of developing an acceptable and rible to contemplate. Not all of the best of Act "shall be construed to require the assign- effective remedy that may be staying the our national character is expressed in the ment or transportation of students or teach- Court's hand more than the conceptual diffi- concept of "neighborhood." One example is ers on order to overcome racial imbalance." culties in defining the wrong. the tragic burning of a young woman in Section 802 (a) prohibits the use of federal Justice Powell's concurring opinion in Roxbury, Massachusetts, simply because she funds- Keyes m is interesting and hopeful, not be- happened to be of the wrong color at the To transport students or to buy buses in cause I necessarily agree with all of it, but wrong place at the wrong time. However, order to overcome racial imbalance; because it demonstrates fresh and major Justice Powell's concurrence in Keyes For busing to carry out a plan of desegre- innovative thinking on the Court about the strengthens my confidence that we can look gation "except on the express written volun- problems of desegregation. Although the sus- to the courts to develop intelligent, fair and tary request of appropriate local school picious may find many pitfalls in Justice effective remedies for desegregating schools. officials;" Powell's opinion, its significance is in the Justice Powell sets forth our duty under the To provide for transportation if the time desegregation glidelines it establishes. fourteenth amendment in positive terms-to or distance is so great as to threaten the First, Justice Powell would obliterate the operate integrated school systems. health or impinge on the educational process distinction between de Jure and de facto It should be remembered that school de- of children; segregation on the grounds that state action segregation has not yet reached the large To provide transportation, if such trans- numbers of minority group persons always is present in the operation of a 43 living portation would result in children being as- segregated school system. In this view he has in cities, North, West and South. A new signed to a school substantially inferior to the distinguished company of Justice Doug- minority group, Mexican Americans, is also the one they would be assigned to under a las 3 and the United States Commission on involved as Keyes indicates. Its problems non-discriminatory geographic zone assign- Civil Rights." cannot be equated automatically with those ment plan. of the black-white Second, Justice Powell defines the concept 44 desegregation context of Section 802(b) prohibits Federal officials of "integrated school system" in a way which the south. An enormous task is involved from requiring the use of non-federal funds allows continuance of all-black and all-white which, if it is not approached in a spirit for busing to correct racial imbalance or schools under certain conditions. Presuma- of humility, will be overwhelming. Justice achieve desegregation or to condition a grant bly, we must look to previous opinions of the Powell suggest some manageable guidelines of Federal funds on student transportation Court to determine under what conditions by which lasting desegregation standards plans "unless constitutionally required." an all-white or an all-black school is con- may be evolved. Section 803 postpones the 38 effectiveness of stitutionally permissible. But Justice Powell We have breached the "massive resistance" any district court order "which requires the leaves no doubt that in his view the Con- of the Old South. During the first Nixon Ad- transfer or transportation of any student or stitution does not require the elimination ministration we completed the job of dis- students . . . for the purpose of achieving a of individual schools which have all-white or establishing the former dual and segregated balance among students with respect to race, all-black or all-Chicano enrollments. An school systems of the past. What we now face sex, religion, or socioeconomic status" until "integregated school system" is one in which is the challenge of operating integrated all appeals have been exhausted or until the following conditions are present: school systems and of remedying school seg- January 1, 1974. (1) faculties and administrative staff are regation wherever it exists. Section 804 gives parents the right to in- integrated; While I may not agree with every particular tervene in desegregation suits if busing (2) equality of facilities and of education in Justice Powell's opinion, I believe that it standards violate Swann v. Charlotte-Meck- program exists; offers a path which will enable us to achieve lenberg Bd. of Educ., 402 U.S. 1 (1971). (3) school attendance zones have been desegregation without extreme social up- Section 805 requires rules of evidence in drawn to promote integration; heaval. If the movement toward integration desegregation cases to be uniform through- (4) new schools are located, old ones begun twenty years ago Is not to be lost or out the United States. closed, and regrouped by size and grade set back by reactionary backlash movements, Section 806 expresses the intent that Sec- categories to promote integration; then Justice Powell's counsel should be tion 407(a) of the Civil Rights Act of 1964 (5) if a district transports pupils, trans- heeded: shall be applied uniformly. portation must be carried out with integra- "It is time to return to a more balanced 5H.R. 13915, as passed by the House of tion in mind.Y evaluation of the recognized interests of our Representatives, August 18, 1972, Senate Cal- If a school district is found to be operat- society in achieving desegregation with other endar No. 1042. ing a segregated school system, then it has an educational and societal interests a com- An opinion poll analysed by the U.S. Com- affirmative duty to achieve the above with munity may legitimately assert. This will mission on Civil Rights shows that sixty- busing a possible remedy. In devising reme- help assure that integrated school systems seven percent of the public support integra- dies courts would be guided by equitable will be established and maintained by ra- tion as a national objective. U.S. CoMMissIoN principles. As Justice Powell stated: tional action, will be better understood and ON CIVIL RIGHTS, PUBLIC KNOWLEDGE AND "This would result . . . in no prohibition supported by parents and children of both BUSING OPPOSITION: AN INTERPRETATION OF A on court-ordered student transportation in races, and will promote the enduring quali- NEW NATIONAL SURVEY (1973). furtherance of desegregation. But it would ties of an integrated society so essential to The analysis of the poll prepared by the also require that the legitimate community its genuine success." '1 Commission, supra note 6, indicates that interests in neighborhood school systems be The progress that has been made toward among those who support integration as a accorded far greater respect." '4 the goal of a just and free society has been national goal only twenty-seven percent sup- In developing remedies, courts would be substantial. The tools for further advances port busing to achieve integration. asked to balance various competing con- in achieving social justice can be formulated 8347 U.S. 483 (1954). sideration. Justice Powell pleads that to produce rational and flexible remedies to The U.S. Commission on Civil Rights in courts should give greater weight to the the complex problems that remain. its 1961 Report, Vol. 2, Education, reported values of the neighborhood, to the parental FOOTNOTES that in May 1961, 775 out of 2,837 biracial school districts interest in education of their children, to the *United States Senator from Pennsylvania; in 17 states and the District rights of children and to the economic and Member of the Senate Judiciary Committee; of Columbia had reported some desegrega- social consequences of extensive tion. The overall increase since the Commis- 41 pupil LL.B. University of Virginia, 1922. transportation plans. 'Birmingham News, Feb. 21, 1972, at 8, sion's 1959 report was said to be only 1.5 per- Justice Powell's suggestion that age per se col. 8. cent. 1961 U.S. Commission on Civil Rights should be a factor in limiting busing war- H.R. 13915, 92d Cong., 2d Sess., introduced Report, Education Book 2, at 39, app. IV. In 1964, only 2.25 percent of the Negro rants careful review. Ironically, integrated on March 20, 1972; reported from the General children in the education is more successful among the Subcommittee on Education of the Commit- 11 states of the old Con- young, i.e., those under 12 years of age, than tee on Education and Labor, July 25, 1972; re- federacy and 10.9 percent in the entire re- gion encompassing the southern and border among children of high school age. Expe- ported from Committee on August 14, 1972, states attended school with white children. rienced educators report that somewhere H.R. Rep. No. 92-1335; considered and passed after the ninth grade, adolescents not only the House of Representatives with amend- Over 3 million Negro children in 1964 were attending segregated segregate themselves by race, but by class ment, August 17 and 18, 1972. schools in the south. U.S. Commission on Civil Rights, and social background as well, these latter H.R. 13915 and the accompanying measure, Survey of School Desegregation in the Southern and factors perhaps being more determinative the Student Transportation Moratorium Act than race or color. Border States 1965-1966, at 1 (1966). of 1972, H.R. 13916, were the subjects of ex- '0 Act of September 9, 1957, Pub. L. No. 85- Special consideration is warranted where tensive hearings in both the House Commit- neighborhoods are already racially 315, 71 Stat. 634. integrat- tee on the Judiciary and the Committee on " Act of May 6, 1960, Pub. L. No. 86-449, ed. A priority exemption should be given to Education and Labor. 74 Stat. 86. such neighborhoods from any plan of deseg- 3CONGRESSIONAL RECORD, Vol. 118, pt. 26, "1For an excellent account of the legisla- regation which required pupil transporta- pp. 33996, 34262, 34410, 34488, 34856, and tive history of the 1960 Civil Rights Bill, see tion. Although neighborhoods are an integral pt. 27, p. 35231. Berman, How A Bill Became Law (1962).

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4 13U.S. Commission on Civil Rights, Po- 1Keyes v. School Dist. No. 1,Denver, Colo. ways subject to review because of change of litical1 Participation 10 (1968). 93 S. Ct. 2686, 2711-19 (1973). circumstances, this is in fact an invitation to 4 U.S. Commission on Civil Rights, South- 42DENMARK, GUTTENTAG & RILEY, COMMU- reverse the school desegregation of the past ern School Desegregation 1966-67, at 5 NICATION PATTERNS AND INTEGRATED CLASS- eighteen years, particularly in the school dis- (1987). ROOMS AND PRE-INTEGRATION SUBJECT VARI- trict where desegregation has long been 15Civil Rights Message of the President, ABLES AS THEY AFFECT THE ACADEMIC ACHIEVE- achieved. Presumably in such districts, the Feb. 28, 1963. MENT AND SELF-CONCEPT OF PREVIOUSLY SEG- alleged disadvantages of pupil transportation ,6 Act of July 2, 1964, Pub. L. No. 88-352, REGATED CHILDREN (1967); U.S. COMMISSION have long since been overcome. It is cynical 78 Stat. 241. ON CIvIt RIGHTS, THE DIMINISHING BARRIER, in the extreme, therefore, to permit new "Act of August 6, 1965, Pub. L. rounds of litigation where successful adjust- No. 89-110, A STUDY OF SCHOOL DESEGREGATION IN TEN ' 79 Stat. 437. CrrIES (1972). ment to constitutional order exists." 18Act of April 11, 1968, Pub. L. No. 90-284, OThe U.S. Bureau of the Census reports This section raises then important ques- 82 Stat. 73. that nearly half the nation's population of tions of policy. Principally, however, this 'p42 U.S.C. § 2000d (1970). Memorandum questions the constitutionality 5 blacks is concentrated in 50 cities and at - 42 U.S.C. § 2000c-6 (1970) least one third of the total is in 15 cities. The of the direct and arbitrary prohibition of "1 POLITICAL PARTICIPATION, supra note 13. top 15 cities are New York City, Chicago, De- busing as a judicial remedy. The reasons are 2For an excellent account of the experi- troit, Philadelphia, Washington, Los Angeles, as follows: ence under freedom of choice plans, see U.S. Baltimore, Cleveland, New Orleans, At- I. The Esch/Gurney amendments will pre- COMMISSION ON CIVIL RIGHTS, SOUTHERN lanta, St. Louis, Memphis, Dallas, Newark vent the Federal courts and school authori- SCHOOL DESEGREGATION 1966-67, at 45-70 and Indianapolis. ties from implementing the constitutional (1967). "On the subject of Mexican-American ed- requirements established by Brown v. Board 23U.S.C. § 2000c (b) (1970): ucation see the five volume series of reports, of Education and subseqbent cases. "Desegregation" means the assignment of U.S. COMMISSION ON CIVIL RIGHTS, MEXICAN Eighteen years ago, Brown v. Board of Edu- students to public schools and within such AMERICAN EDUCATION (1972). cation, 347 U.S. 483 (1954) established that schools without regard to their race, color, 4 Keyes v. School Dist. No. 1, Denver, State-imposed segregation by race in pub- religion, or national origin, but "desegrega- Colo., 93 S. Ct. 2686, 2719-20 (1973). lic schools denies equal protection of the tion" shall not mean the assignment of laws under the Fourteenth Amendment. To students to public schools in order to over- correct such violations, the Fourteenth come racial imbalance. ANTIBUSING AMENDMENTS Amendment commands that the diserlminat- 2442 U.S.C. § 2000c-6(a) (1970): Ing authority take whatever steps are neces- Provided that nothing herein shall em- Mr. JAVITS. Mr. President, tomorrow, sary to convert to a racially, nondiscrimina- power any official or court of the United the Senate will consider a number of tory school system. Brown v. Board of Educa- States to issue any order seeking to achieve amendments to this bill concerned with tion, 349 U.S. 294, 301 (1955) (Brown II); a racial balance in any school by requiring busing. Foremost among these is the Green v. County School Board of New Kent County, 391 U.S. 430 437-38 (1968). If school the transportation of pupils or students amandment to be offered by the Senator from one school to another or one school authorities fail in fulfilling their affirmative district to another in order to achieve such from Florida (Mr. GURNEY) which is constitutional obligations, "Judicial au- racial balance, or otherwise enlarge the exist- identical to the House-passed Esch thority may be invoked." Swann v. Charlotte- ing power of the court to insure compliance amendment. Mecklenburg Board of Education, 402 U.S. with constitutional standards. So that my colleagues may have every- 1, at 15 (1971). The court's power in fashion- 25 CoNG. REc. 2280 (1964). thing bearing on the legal and constitu- ing an appropriate and truly effective remedy is broad, for "breadth 20The key decision was United States v. tional implications of this proposal I ask and flexibility are in- herent in equitable remedies." Swann at 15. Jefferson County Bd. of Educ., 372 F. 2d unanimous consent that a memorandum Brown 11. 836 (5th Cir. 1966), af/'d on rehearing, 380 of law on the constitutionality of the Busing is only one of many techniques F. 2d 385 (5th Cir. 1967), cert. denied, Caddo Esch-Gurney amendment be printed at available for use in desegregating dual school Parrish School Bd. v. United States, 389 this point in the RECORD. I also ask unan- systems. But sometimes busing is found to be U.S. 840 (1967). imous consent for the printing the only effective remedy for the speedy de- 21 These efforts were the so-called "Whitten of two additional documents: the views of the segregation plans mandated by the Court in Amendments" attached to appropriations Green v. County School Board of New Kent U.S. Civil Rights Commission, prepared bills in the House of Representatives and County, supra. Thus, the Supreme Court has which forbade the use of federal funds to re- at my request, and signed personally by recognized busing as an "integral part of quire assignment or transportation of pupils. every member of the Commission; and a the public education system for years," and These proposals inevitably would be amend- statement issued today by the black as a "normal and accepted tool of educa- ed in the Senate so that the limitations caucus of the House of Representatives. tional policy." Swann at 29 (emphasis add- only prohibited officials from carrying out There being no objection, the material ed). In Swann, the Court found "no basis unconstitutional directives. 2 was ordered to be printed in the RECORD, for holding that the local school authorities 402 U.S. 1 (1971). as follows: may not be required to employ bus transpor- 20 "Busing" meant only one thing, school tation as one tool of school desegregation." OF desegregation, even though 20 million chil- MEMORANDUM LAW-THE CONSTITUTIONAL- It added, "Desegregation plans cannot be OF dren were bused to school daily in 1971 and ITY ESCH-GURNEY AMENDMENT TO THE limited to the walk-in school." Swann, supra ELEMENTARY buses traveled 2.2 billion miles, virtually all AND SECONDARY EDUCATION 402 U.S. at p. 30. of it totally unrelated to desegregation pur- AMENDMENTS OF 1974 If these amendments are adopted the poses. See U.S. Commission on Civil Rights, The regressive, anti-desegregation legisla- legislation will overrule the principles of Your Child and Busing (1972). tion now before the Congress was offered in Swann, supra, North Carolina State Board 10 Eventually, the real meaning of Swann the House of Representatives as Title 11 of Education v. Swann, 402 U.S. 43 (1971) and began to become apparent, and I believe "Equal Educational Opportunities" of H.R. Brown v. Board of Education (II), supra. It helped -to defeat the anti-busing bill in the 69-The Elementary and Secondary Educa- will prohibit the use of busing in any mean- 92d Congress. tion Act of 1974. It is very similar to H.R. ingful manner, by school authorities and 11The by-now classic statement reads: 13915 (92nd Congress), the so-called Equal federal district courts, as a remedial tool for An objection to transportation of students Educational Opportunities Act of 1972 which school desegregation. It will prohibit busing was offered by the President may have validity when the time for considera- in every case, for every child of school age, or distance tion in 1972. The amendment was sponsored of travel Is so great as to either risk the regardless of time and distance or number of by Representative Marvin Esch in the health of children or significantly impinge House children involved. and Senator Edward Gurney, on the educational process. in the Senate. II. Congress, as well as the States, may not It seeks to limit the authority of federal Swann v. Charlotte-Mecklenberg Bd. of enact legislation which obstructs the Federal courts transportation of students beyond the Educ.. 402 U.S. 1, 30-31 (1971). courts from fulfilling the mandate of the closest or next closest school. 2 Pub. L. No. 92-313. 86 Stat. 372. fourteenth amendment's equal protection =93 S. Ct. 2773 (1973). But the proposal is even more than pro- clause. spective legislation. 2593 S. Ct. 2686 (1973). One section permits the The Supreme Court has declared that no d. at 2701-20. reopening of court ordered desegregation State enactment may frustrate the constitu- l11d.at 2700. plans, and plans under Title VI of the Civil tional mandate of the Fourteenth Amend- Rights Act of 1964, to conform them with the ment. North Carolina State Board of Educa- "' U.S. COMMISSION ON CIVIL RIGHTS, RA- provisions of the bill, even though many of tion v. Swann, 402 U.S. 43 (1971). "An abso- CIAL ISOLATION IN THE PUBLIC SCHOOLS those cases do not Involve busing. As the lute prohibition against transportation of (1967). Committees on Federal Legislation and Civil 'students," the Supreme Court said, "will... ' Keyes v. School Dist. No. 1, Denver, Colo. Rights of the New York City Bar Association hamper the ability of local authorities to ef- 93 S. Ct. 2686, 2706-07 (1973). concluded after itsanalysis of this proposal: 'Id. at 2706. "While this is arguably permissible under * (See CongressionalRecord, vol. 118, pt. 21, 0ld. at 2718. the usual doctrine that equity decrees are al- pp. 27463-65 at p. 27464.)

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'14602 CONGRESSIONAL RECORD - SENATE May 14, 1974 fectively remedy constitutional violations," "We think not .... We must think, that school," busing restricted to these conditions Id. at 46. Thus, the Court declared North Congress has inadvertently passed the limit will prove ineffectual in countervailing the Carolina's antibusing law to be unconstitu- which separated the legislative from the impact of residential segregation upon school tional are held: judicial power." Id. at 146-47 attendance patterns of children. "If a State-imposed limitation on a Where bus- school The Klein case was decided after Ex parte ing is an indispensable and effective method authority's discretion operates to inhibit or McCardle, 74 U.S. (7 Wall) 506 (1868), which of desegregation, federal courts will find obstruct the operation of a unitary school upheld a post-Civil War Act of Congress that themselves constrained system or to render less than impede the disestablishing of a deprived the Supreme Court of appellate jur- effective remedies. dual school system, it must fall; state policy isdiction over lower federal court decisions For these reasons, this bill contracts the must give way when it operates to hinder in habeas corpus cases. But it is clear from scope of constitutional guarantees afforded vindication of federal constitutional guaran- this case that the Court was not sanctioning by the Fourteenth Amendment. It cannot tees." Id. at 45. unrestricted Congressional power to deprive be sustained upon a reading of Section 5. See also Goss v. Board of Education of it of jurisdiction to consider Constitutional City o1 Knoxville, Tennessee, 444 F. 2d 632, claims. Despite the act of Congress which U.S. CIVIL 637 (6th COMMISSION ON RIGHTS, Cir. 1971); Clark v. Board o1 Direc- it sustained, the Court still had original Washington, D.C., May 6, 1974. tors of Little Rock School District, 328 F. habeas corpus jurisdiction as well as power Hon. JAcoB K. JAVITS, Supp. 1205, 1212 (E.D. Ark, 1971); and Taylor to review lower court habeas corpus decisions U.S. Senate, Washington,D.C. v. Coahoma County School District, 330 F. by writ of certiorari. Ex parte Yerger, 75 U.S. DEAR SENATOR JAVITS: We have received Supp. 174 176, 183 (N.D. Miss. 1970) afj'd (8 Wall) 85 (1868). Professor Alexander your request for our findings and recom- 444 F. 2d 221 (5th Cir. 1971). Bickel, moreover, has described the MeCardle mendations relative to the Gurney, Ervin, Congress has a Uo less stringent constitu- case as "aberrational" and has noted that, and Scott-Mansfield Amendments to the tional duty in this regard than any state in common with Professor Henry M. Hart, Elementary and Secondary Education Act agency. Yet, if Congress were to of enact the Jr., he reads it "as a fairly narrow holding." 1974. We are pleased to comply. Esch/Gurney Amendment it would be im- (See Bickel, "What's Wrong with Nixon's The most extensive of these Amendments plicating itself in exactly the kind of segre- Busing Bills?" is the Gurney Amendment. The gatory activity prohibited for school boards, major Nor do Congressional restrictions on the thrust of the Gurney Amendment is to pro- state legislatures and governors. Congression- jurisdiction of courts found in the Emer- hibit student transportation to promote al action would be the direct cause of con- gency Price Control Act of 1942 and the school desegregation. In its place, the tinuing denial of equal protection, where a Norris-LaGuardia Act justify the busing Amendment would require the constitutional violation has already been acceptance limitations contained in Esch/Gurney. The of the neighborhood school as the appro- found and where busing has been de- structure under the former statute preserved priate basis for determining public school creed a necessary part of the effective a full remedy in federal courts (See Yakus assignments. The Amendment makes several remedy. In short, by staying imple- v. United States, 321 U.S. 414 (1944) and findings: (1) Large amounts of funds have mentation of an effective remedy, Con- Lockerty v. Phillips, 319 U.S. 182 (1943) and been spent by local educational agencies gress would be acting in aid of racial dis- the latter statute did not restrict constitu- on student transportation for desegregation; crimination, and therefore in violation of the tional rights because a businessman does not (2) Such transportation has created "seri- due process clause of the Fifth Amendment. have a constitutional right to have a federal ous risks" to the health and safety of stu- Bolling v. Sharpe, 347 U.S. 497 (1954); Gaut- court enjoin a strike growing out of a labor dents and has been excessive; and (3) Court reaux v. Romney, 448 F. 2d 731 (7th Cir. dispute. In fact the Norris-LaGuardia statute guidelines have not been "clear, 1971). See Green rational v. Kennedy, 309 F. Supp. served to implement the First Amendment and uniform" on the question of reassigning 1127, 1136 (D.C. 1970), dismissed for want of right to peaceful, non-coercive picketing. and transporting students to effect desegre- juris., sub nom., Coit v. Green, 400 U.S. 986 See Thornhill v. Alabama, 310 U.S. 88 (1940). gation. (1971). Cf. Battaglia v. General Motors Cor- Finally, Section 5 of the Fourteenth The Amendment defines as unlawful var- poration, 169 F. 2d 254, 257 (2d Cir.), cert. Amendment, which authorizes Congress to ious practices if taken on account denied, 335 U.S. 887 (1948). of race, And as Kelley v. enforce that Amendment "by appropriate color, sex, or national origin-for example, Metropolitan County Board of Education of legislation," provides no basis for sustaining "deliberate segregation" and faculty or staff Nashville and Davidson County, - F. 2d - the legislation in question. employment discrimination. It would also (No. 71-1178-79) (6th Cir. May 30, 1972) em- Section 5 does not authorize Congress to prohibit the assignment of students to phatically suggests: ". . . no one may forbid contract the scope of protection guaranteed schools other than the one closest to their a school board (or a federal court) from em- by the Fourteenth Amendment. The Equal residence if such assignment resulted ploying any of the in a tools of modern life in Protection Clause of the Fourteenth Amend- greater degree of segregation. carrying out a constitutional The Amend- mandate. Davis ment was designed to expand and to extend ment would permit a court in its discretion v. Board of Commissioners of Mobile County, constitutional protection to those who had to award costs and attorneys' fees to the pre- 402 U.S. 33, 37-38 (1971)" [emphasis added]. previously been denied such rights. Congress vailing party. In addition, the Amendment II. Neither Congress' authority to regulate may not thwart this purpose. prohibits the busing of students as a deseg- the jurisdiction of federal courts nor its au- The Court spoke specifically to this point regation remedy unless the busing is to the thority to enforce the fourteenth amendment in Katzenbach v. Morgan, 384 U.S. 641, 651 school closest or next closest to the student's authorizes legislation which would prevent n. 10 (1966) when it stated: "§ 5 does not place of residence. Another Federal courts of its provisions from effectuating a constitu- grant Congress power to exercise discretion would permit school authorities to "reopen" tional mandate. in the other direction and to enact 'statutes all court orders and Title IV desegregation Although Article III of the Constitution so as in effect to dilute equal protection plans now in effect. authorizes Congress to regulate the jurisdic- and due process decisions of this Court.' We The United States Commission on Civil tion of Federal courts, the principle of sep- emphasize the Congress' power under § 5 is Rights has appeared before Congressional aration of powers precludes Congress from limited to adopting measures to enforce the Committees on five occasions during the limiting the authority of the courts in Inter- guarantees of the Amendment; § 5 grants 92nd and 93rd Congresses to testify on the preting the Constitution and effectuating Congress no power to restrict, abrogate, or so-called "busing" issue. On all five occasions Constitutional rights. Marbury v. Madison, 5 dilute these guarantees." we have opposed efforts which would pre- U.S. (1 Cranch) 137 (1803), Martin v. Hun- Section 5, moreover, cannot be used as a vent a court, department or agency of the ter's Lessee, 14 U.S. (1 Wheat) 304 (1816). basis for regulating the jurisdiction of the United States from utilizing transportation Congress, in the guise of a jurisdictional Federal courts. That Section concerns only in order to achieve the objective of desegre- statute, cannot deprive a party either of a questions of federalism-the Federal Govern- gating the schools of our Nation. We have right created by the Constitution or of any ment's relations with the states-not issues consistently opposed all legislation which remedy the courts deem essential of enforce of checks and balances between Congress would weaken the constitutional prohibition that right. and the Federal Judiciary. The history of against governmentally-sanctioned segrega- Nor can Congress enact legislation which Section 5 plainly demonstrates that its pur- tion of public schools. prescribes a particular result in a case. In pose was simply to enable "Congress, in case Our opposition to these proposals has been United States v. Klein, 80 U.S. (13 Wall.) 128 the States shall enact laws in conflict with based on three principles: (1972) the Court held that the statutory the principles of the Amendment, to correct First, that public education next to the limitation of the Federal courts' jurisdic- that legislation by a formal Congressional family is the Nation's most important social tion-offered by a Congress anxious to cor- enactment." Remarks of Senator Howard, institution. In the words of the Supreme rect what it thought was an erroneous line who reported the Fourteenth Amendment to Court, it is "the principal instrument in of cases-was unconstitutional: the Senate from the Joint Committee on awakening the child to cultural values, in "We are directed"-said the Supreme Reconstruction, Cong. Globe, 39th Cong., 1st preparing him for later professional train- Court---"to dismiss the appeal, if we find Sess., 2766, 2768 (1866). Section 5 was not ing, and in helping him to adjust normally that the judgment must be affirmed ... intended to give Congress greater power than to his environment." Can we do so without allowing one party to the Federal Courts to define Constitutional Second, that governmentaly-segregated the controversy [the Congress] to decide it rights. public schools are "inherently unequal" and in its own favor? Can we do so without al- The legal impact of this proposal will be are therefore violative of the 14th Amend- lowing that the legislature may prescribe to eliminate busing as a viable tool for school ment right to equal protection of the laws. rules of decision to the Judicial Department desegregation. Though the bill's language Third, that participation in the educa- of government in cases pending before it? states "except to the closest or next closest tional programs of desegregated schools is

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May 14, 1974 CO]NGRESSIONAL RECORD - SENATE 14603

the best way to prepare students to live difficult circumstances have obeyed the Con- The Gurney Amendment adopts the op- under and to help implement the principles stitution. posite point of view. In so doing the authors embodied in the Constitution. In addition to unitary school districts al- and sponsors reflect a lack of confidence in In addition, our opposition to these pro- ready existing, there are roughly 1,500 school a process which gives full recognition to posals has been based on evidence, growing districts which are and have been desegre- local conditions and yet, at the same time, out of studies conducted by the Commis- gating their school systems since 1954 pur- achieves the objective of Implementing con- slon, which point conclusively to the fact suant to court orders or plans accepted by stitutional rights. that there are situations where pupil trans- the Department of Health, Education, and In the Swan case, for example, the Su- portation is the only method that will effec- Welfare. Students in these schools are in preme Court stated that "no rigid guide- tively prevent students from being forced to the process of having their constitutional lines as to student transportation can be attend segregated schools. guarantee of equal protection of the laws given for application to the infinite variety We are fully aware of the complex prob- fulfilled. of problems presented in thousands of situa- lems that have confronted and do confront The Gurney Amendment, however, seeks tions." (at 29) communities in the nation that are provid- to stop this process while the courts are The flexibility which the Supreme Court ing transportation so as to prevent students asked to determine whether some of the las encouraged permits local school dis- from being forced to attend segregated students In these formerly de lure districts tricts to design their own plans, in close schools. We have found that many of these should be returned to segregated schools. consultation with the local district court problems have been resolved in a construc- This backward step would be an indefensible or other federal agencies if necessary, and tive manner. expenditure of time, energy and money. to choose from a wide range of tools those Nevertheless we understand that persons 3. The provisions of the Gurney Amend- best suited to deal with the situation as it living in communities that confront the ne- ment establishing the so-called "neighbor- exists in their own districts. In this way local cessity of inaugurating pupil transportation hood school" as the appropriate basis for desegregation plans may be fashioned in programs In order to prevent students from student assignment would in fact cause many the most practical and reasonable manner being forced to attend segregated schools students to attend de lure segregated schools. and yet still meet current constitutional and ask in good faith whether the price that we There is nothing about a neighborhood statutory standards. must pay should be paid. Our response must school that compensates for the denial of a 8. The provision of the Amendment which be that constitutional rights designed to constitutional right. We, therefore, see no would make It an "unlawful practice" to open doors of opportunity for all of our peo- point in entering into a discussion of the "assign a student to a school other than the ple must be treated as absolutes. We cannot pros and cons of neighborhood schools. In one closest to his or her place of residence afford to turn our back on them because of passing, however, it should be pointed out . . . if such an assignment results in a difficulty of implementation. Any other that the argument for neighborhood schools greater degree of segregation of students on course of action undermines our constitu- has been advanced vigorously only since the the basis of race, color, sex, or national tional form of government. advent of desegregation. In connection with origin . . ." would be an administrative our It Is in the light of these principles and responsibilities under the Civil Rights nightmare for school officials and govern- Act of 1957, considerations, Commission research, and our as amended, it is sufficient for us mental authorities. to analysis of the legislation that we are now point out that the Gurney Amendment Local school officials who conscientiously presenting is in direct conflict the following findings and rec- with the declaration of wished not to violate the law would be the ommendation relative to the Gurney, Ervin, Supreme Court of the United States in thrust upon the horns of a virtually im- Swam v. Charlotte-Mecklenburg Scott-Mansfield Amendments. In most in- Board of possible dilemma by this section of the stances we are stating our findings Education, 402 U.S. 1, 30 (1971) that "deseg- and only Amendment. One way that a school district briefly summarizing the evidence on which regation plans cannot be limited to the walk- could be sure that it was not engaging in each finding in schools." is based. In all instances, how- the "unlawful practice" would be to assign ever, we are prepared 4. The provision in the Amendment that to support our find- all children to the school closest to their ings with evidence based on studies and no unitary school system shall be required school officials to legal analyses conducted by the Commission to formulate or implement a desegregation homes. This would compel compute the precise distance between the and by others working in this field. plan because of "residential shifts in popu- homes of all children and the surrounding THE GURNEY AMENDMENT lation . . . which result in school population changes in any school within such schools, and based on these computations, 1. The Gurney Amendment would deny a desegre- gated school system . is misleading and to engage in the wholesale transfer of thou- to Federal Courts or administrative agencies unnecessary. sands of children who presently do not at- the right to prevent students from being Since the Brown decision, the courts tend the closest school. Moreover, school au- forced to attend segregated schools where have distinguished between de facto school segre- thorities would have to update the school- pupil transportation is the method necessary gation caused by residential home distance computations to account for to achieve actual desegregation. change or popu- lation movement and de lure school segre- the construction of new schools, new resi- Congress by adopting such an Amendment dences, and the closing of obsolete facilities, would be attempting to overrule gation resulting from the official actions of the Su- educational and transfer countless additional children preme Court's decision in Swann v. Char- authorities. Every school deseg- regation order that has ever been supported annually. lotte-Mecklenburg Board of Education, 402 The other means by which local school U.S. 1 (1971) that transportation is one of by the Supreme Court has been based upon a factual finding of de lure segregation. This officials could insure their full compliance a number of viable techniques by which with the law created by the Amendment is schools can be desegregated. In some school provision Is therefore misleading in that it creates even more administratively complex and districts, transportation either alone or in the impression that action Is re- quired in mind-boggling. So that school officials could conjunction with other desegregation tech- an area in which it Is not required. 5. The provision of the Amendment continue the often-necessary administra- niques is a "must" if the constitutional man- that failure to "attain a balance, on the basis of tive practice of assigning children to schools date eliminating state-imposed segregation is other than the one closest to their residence, to be carried out. race, color, sex, or national origin, of stu- dents" within a school district "shall they would be compelled to compute annual- It is recognized that any attempt by Con- not constitute a denial of equal educational op- ly the precise student ratios for all schools gress to legislate a dual school system would in the district "on the basis of race, color, be portunity, or equal protection of the laws" unconstitutional. The Supreme Court has sex, and national origin." Then school offi- found in North Carolina State Board of Edu- Is misleading and unnecessary. The federal courts have never required such cials would have to determine that the as- cation v. Swan, 402 U.S. 43, 45 (1971) that signment of a child to a school other than legislation which attempts to reach the same a balance of students. As the Supreme Court stated in Swann, "the constitutional com- the closest one would not contribute to an result through indirect means is just as un- increased level of segregation. constitutional. mand to desegregate schools does not mean It Is ironic that a constitutionally defec- The Gurney Amendment that every school in every community must would lead to tive Amendment is, in addition, administra- such a result by denying the courts one of always reflect the racial composition of the school tively onerous. Needless to say, should the their most potent weapons namely, pupil system as a whole .... " (at 24) Amendment be made administratively feasi- transportation. In essence, 6. The provision of the Gurney Amend- while the Amend- ble, its unconstitutionality ment recognizes and endorses the rights of ment that could result in the parents of chil- should preclude children to be free from governmentally dren being compelled to pay the legal ex- legislative enactment. established segregated schools, it would take penses of the defendant educational agency, 9. The portion of the Gurney Amend- away the means to assure that right. as well as their own, places an indefensible ment which provides for the elimination of 2. The provision in the Gurney Amend- obstacle in the path of parents who attempt excessive transportation of students when ment which would permit the reopening in to vindicate their constitutional rights in this necessitated by desegregation which alleged- the courts of desegregation plans now in area. ly "creates risks to their health and safety" effect because of their alleged conflict with This finding speaks for itself. and "disrupts the educational process" is the transportation provisions of the Gurney 7. The flexibility which the Supreme Court unnecessary and misleading. has demonstrated Amendment would re-open old wounds in in the development of The Supreme Court in Swann forbade the guidelines for desegregation by the courts, many communities, bring to a halt the use of transportation in school desegregation steps departments and agencies of the United that are being taken to achieve genuine de- plans "when the time or distance of travel States has encouraged the development of is so great as to risk either the health of segregation, and would undermine efforts desegregation plans which are responsive the child or significantly impinge on the of conscientious officials who under extremely to varied local situations. educational process." (at 30-31)

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14604 CONGRESSIONAL RECORD - SENATE May 14, 1974 Statistics of the U.S. Department of Trans- long struggle, both inside and outside the EDUCATION PROGRAMS FOR portation show that approximately one minority communities, to implement the HANDICAPPED CHILDREN percent of the increase i public school civil rights guaranteed by the Constitution. transportation from the period 1954 to 1972 The passage of any legislation which would Mr. MATHIAS. Mr. President, in my can be attributed to school desegregation. deny to the Federal Courts or administrative introductory remarks on amendment THE ASI-BROOK AMENDMENT agencies the right to prevent students from No. 1305 for aid to the handicapped, being forced to attend segregated schools I re- In the event the Ashbrook Amendment, ferred to the recent where pupil transportation is the method court decree in the which was adopted by the House of Repre- necessary to achieve actual desegregation State of Maryland to highlight the crit- sentatIves, is offered during the Senate de- would turn the celebrations planned for ical need to expand and improve educa- bate, we are providing our comments on it. the 20th anniversary of the Brown v. Board tion programs for handicapped children. The Ashbrook Amendment would prohibit of Education Supreme Court decision into a In the use of Federal education funds the context of this urgent need, I for trans- dirge. Such an action would convey the fol- portation costs involved in school desegrega- have received several communications in lowing message to the parents of all chil- support of my amendment from various tion plans. dren- 10. The Ashbrook Amendment Maryland school superintendents. seeks to "If you liv- in a location where your chil- I ask erect a roadblock to the granting of equal unanimous dren can walk to a desegregated school, your consent that the text of these educational opportunity by denying the use children can benefit from the constitutional communications be included in the of Federal funds for any plan, voluntary or prohibition against governmentally segre- RECORD. otherwise, which seeks to implement those gated schools and participate in the educa- rights by spending money on pupil trans- There being no objection, the com- tional opportunities provided by a desegre- munications were ordered to be printed portation. gated school. Like in the RECORD, as follows: the Gurney Amendment it seeks to "If, on the other hand, you live in a loca- accomplish indirectly what the authors and tion where your children need transportation BOARD OF EDUCATION sponsors know cannot be accomplished di- to a desegregated school, your children will OF SAINT MARYS COUNTY, rectly; namely, the denial of rights of stu- be denied the benefits of the constitutional Leonardtown, Md. dents to attend schools which are not segre- prohibition against state sanctioned segre- Hon. CHARLES MATHIAS, Jr., gated. gated schools and will be unable to partici- Capitol Hill, TIE ERVIN AMENDMENT pate in the educational opportunities pro- Washington, D.C. The Ervin Amendment would prohibit vided by desegregated schools." Please support the proposed amendment federal officials from using federal funds Once again hope will be replaced by des- to S. 1539 for Federal aid for handicapped. for the purpose of inducing school boards pair. Saint Marys County would benefit by about operating dual schools to convert to unitary We believe the Report of the National Ad- 180,000 dollars for use with handicapped systems. It would permit such school sys- visory Commission on Civil Disorders was children. This aid would contribute greatly tems to implement "freedom of choice" plans right when in 1968 it pointed to the danger to our expanding handicapped program. regardless of the resulting racial composition of our Nation moving toward two societies, ROBERT E. KNG, Jr., of the system's schools. one black, one white-separate and unequal. Superintendent of Schools. 11. The Ervin Amendment if adopted The enactment of the proposed amendments would effectively on which we have commented repeal Title VI of the Civil in this letter PRINCE GEORGE'S COUNTY PUBLIC Rights Act of 1964 as it applies to educa- would contribute to such a tragic develop- SCHOOLS, tion and seeks to overrule the ment. We hope that instead of moving in decision of Upper Marlboro, Md., April 30, 1974. the Supreme Court in this direction the Congress will hold fast to Green v. County School Hon. CHARLES McC. MATHIAS, Jr., Board of New Kent County, 391 U.S. 430 the sure promise of a more united and peace- U.S. Senate, (1968) which ruled that if freedom of choice ful Nation under desegregated institutions. Washington, D.C. plans are to be found constitutional they Respectfully yours, DEAR SENATOR MATHIAS: It has come to my must be effective in that they achieve ARTHUR S. FLEMMING, Chairman; STE- actual attention that you plan to introduce legis- desegregation. In Green PHEN HORN, Vice Chairman; FRANKIE the court found that lation, on or about May 2, 1974, which pro- the plan before it was ineffective. M. FREEMAN, ROBERT S. RANKIN, MAN- motes the national commitment to improv- In support of the Commission's UEL Ruiz, JR., JOHN A. BUGGS, Staff position on ing programs for handicapped children. This this Amendment Director. we enclose a copy of our encouraging prospect prompted my desire to testimony presented before the Senate Sub- express support for your efforts. committee on Constitutional Rights on Feb- CONGRESSIONAL BLACK CAUCUS INC., In the recent decade, the ruary 21, 1974. Washington,D.C., May 14, 1974. State of Mary- land has been in the forefront of educational THE SCOTT/!ANSFIELD AMENDMENT Senator PHILIP A. HART, Washington, D.C. programs for its handicapped children. Re- The Scott/Mansfield Amendment would cent legislation passed in the '73 Legislature prohibit DEAR SENATORS HART, JAVITs, KENNEDY, the use of appropriated funds for MONDALE: The Congressional Black Caucus is (106-D of Article 77, Public Schools Laws of the transportation of students in connection extremely concerned over the anti-busing Maryland) provides that all children 0-20 with court ordered desegregation, make ille- amendments which will be offered when the shall have the advantage of programs of edu- gal the assignment of pupils to overcome Senate considers S. 1539, a bill to extend the cation regardless of the nature and severity "racial imbalance," and postpone the imple- Elementary and Secondary Education Act for of their handicap. Programs that will address mentation of district court orders which re- three more years. The sixteen black members themselves to preschool children will come quire the transportation of pupils until all of the House voted against the anti-busing into being throughout the appeals are exhausted. state and be fully amendments to H.R. 69, which was passed in implemented by 1980. Current costs of edu- 12. The provisions of this amendment the House. would slow down the process ol implement- cating children continue to soar. of the ing the constitutional rights set forth in Of major concern to the members Presently, programs in special education that the Esch amendment Brown. Caucus is the fact receive funding from both educational agen- an assault against the independ- These provisions were included as Sections represents cies and the State Department ence and the integrity of the judicial sys- of Education. 801 and 802 of the General Education Amend- The situation tem. The Esch amendment which is clearly in Prince George's County is ments of 1972 (P.L. 92-318) and incorporate unconstitutional, also presents the grave dan- about a 50-50 proposition. With increased certain decisions by the United States pressures to decrease property taxes and, in- Supreme Court ger of the legislative body trying to usurp the related to transportation dis- deed, state taxes, it is going to be more and tances and the provisions in Section 407 (a) powers of the judicial branch of the govern- more difficult for counties and states to suffi- of the 1964 Civil Rights Act related to so- ment. ciently fund programs for called busing for racial balance. The addition of anti-busing amendments their handicapped to S. 1539 will be an enormous setback to the children and youth. A special subsidy pro- RECOMMENDATION school desegregation and civil rights gains vided by the federal government would ease On the basis of these findings there is just achieved over the last 20 years. The Con- the burden of local governments and, at one recommendation that we can make; gressional Black Caucus is urging members of least, make the federal government a partial namely, that the Senate reject the Gurney, the Senate to defeat all anti-busing amend- partner in the responsibility of educating the Ervin, Scott-Mansfield and Ashbrook ments to S. 1539. handicapped in order that they may become Amendments. Sincerely, fully participating and contributing mem- CONCLUSION Yvonne Braithwaite Burke, Shirley bers of society in the future. On May 17 this nation will Chisholm, William Clay, Cardiss Col- commemorate We, in Prince George's County, are most the 20th anniversary of the unanimous de- lins, John Conyers, Jr., Ronald V. cision of the Supreme Court of the United Dellums, Charles C. Diggs, Jr., Wal- grateful for your continuing efforts to im- States to strike down the major legal barrier ter E. Fauntroy, Augustus F. Hawk- prove the quality of public education in to racial equality-the "separate but equal" ins, Barbara Jordan, Ralph H. Met- the state and nation. doctrine. This event was second only to the calfe, Parren J.Mitchell, Robert N. C. Very truly yours, Emancipation Proclamation from the point Nix, Charles B. Rangel, Louis Stokes, CARL W. HASSEL, of view of its potential contribution to the Andrew Young. Superintendent of Schools.

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May 14, 1974 CONGRESSIONAL RECORD - SENATE 14605 [TELEGRAM] enactment would greatly assist this County national Wheat Agreement, 1971, open CHESTERTOWN, MD. and the State. fo; signature in Washington from April Senator CHARLES MAC. MATHIAS, Please be aware of this County's strong 2 through April 22, 1974. The Protocols Senate Office Building, support of this piece of legislation. Your ef- were formulated by a Conference of Gov- Washington,D.C. forts regarding its Senate passage would be greatly appreciated. ernments which met in London on Feb- Urge you support amendment to SB1539 ruary 22, 1974. which will provide $15.00 per pupil for im- Kindest personal regards, proved programs for the handicapped. Sincerely yours, I transmit also, for the information of RICHARD L. HOLLE, JACK B. KUSSMAUL, the Senate, the report of the Department Superintendent of Schools. Superintendent of Schools. of State with respect to the Protocols. The Protocol for the Extension of the BOARD OF EDUCATION OF GARRETT [Telegram] Wheat Trade Convention, 1971, extends COUNTY, MONTGOMERY COUNTY PUBLIC the Convention until June 30, 1975, and Oakland, Md., May 1, 1974. SCHOOLS, maintains the framework for interna- Rockville, Md. Hon. CHARLES McC. MATHIAS, Jr., tional cooperation in wheat trade mat- Senate Office Building, Hon. CHARLES McC. MATHIAS, Jr., Washington, D.C. Washington, D.C. ters. It also continues the existence of DEAR SENATOR MATHIAS: Let me begin by We strongly support the legislation you the International Wheat Council. thanking you for the interest shown to edu- plan to introduce on behalf of handicapped The Protocol for the Extension of the cation In the State of Maryland. The super- children. The Maryland General Assembly Food Aid Convention, 1971, also extends intendents of the State, and I am sure, the has mandated a comprehensive educational until June 30, 1975, commitments of public, respect the leadership that you are program for handicapped pupils, and a recent parties to provide certain minimum an- exerting in federal aid legislation for educa- Maryland circuit court decision has affirmed the right of handicapped pupils to equal nual quantities of food aid to develop- tion. ing countries. The United States intends Please lend your support to Senate Bill educational opportunities. 1539-Federal Aid for the Handicapped. We Provision of appropriate services to all of not to deposit ratification of this Proto- in Garrett Country are trying to double our our seriously handicapped school age popu- co. unless the European Economic Com- services to these students over the next three lation will be extraordinarily expensive. Fed- munity remains a party. This intention years and this legislation will be a small eral aid, such as you propose, is urgently was formally recorded by the United step in helping to move us in that direction. needed to supplement State and local re- States in a written declaration made at Many thanks for your support in this mat- sources for speedy implementation of these the time the Protocols were signed. programs. ter. HOMER 0. ELSEROAD, Both Protocols provide that instru- Sincerely yours, Superintendent of Schools. ments of ratification shall be deposited WILLIAM H. BUSER, no later than June 18, 1974. The Wheat Superintendent of Schools. Mr. PELL. Mr. President, I suggest the Council may, however, grant an exten- absence of a quorum. sion of time to any signatory government ROCKVILLE, MD., April 30, 1974. The PRESIDING OFFICER. On whose that has not deposited an instrument of Hon. CHARLES MCC. MATHIAS, Jr., time? Old Senate Office Building, ratification by that date. Mr. PELL. Mr. President, I ask unani- It is my hope that the Senate will give Washington, D.C. mous consent that the time for the DEAR SENATOR MATHIAS: We want you to farorable consideration to the two Pro- know of our strong support for your inten- quorum call be charged to neither side. tocols so that, subject to the European tion to offer an amendment to the extension The PRESIDING OFFICER. Without Economic Community remaining a party of the Elementary and Secondary Education objection, it is so ordered. The clerk will tk the Food Aid Convention, ratification Act (S. 1539), which would provide $15 per call the roll. by the United States can be effected and enrolled child to be designated for programs The second assistant legislative clerk instruments of ratification for the Wheat and services for handicapped students. proceeded to call the roll. Trade Convention and the Food Aid Con- The school system's responsibility for. the Mr. ROBERT C. BYRD. Mr. President, education of, all children, regardless of need, vention can be deposited without undue I ask unanimous consent that the order delay. has been given a high priority by our Board for the quorum call be rescinded. of Education. The Maryland General Assem- RICHARD NIXON. bly has mandated a comprehensive educa- The PRESIDING OFFICER. Without THE WHITE HOUSE, May 14, 1974. tional program for handicapped pupils, and objection, it is so ordered. a recent Maryland Circuit Court decision has affirmed the right of handicapped pupils to ORDER FOR CONSIDERATION OF equal educational opportunities. This under- REMOVAL OF INJUNCTION OF SE- UNFINISHED BUSINESS TOMOR- taking, however, will be extraordinarily ex- CRECY FROM THE INTERNA- ROW pensive; and Federal aid, such as you pro- TIONAL WHEAT AGREEMENT, 1971 pose, will be essential to speedy implementa- (EX. C, 93D CONG., 2D SESS.) Mr. ROBERT C. BYRD. Mr. President, I ask unanimous consent that after the tion of these programs. Mr. ROBERT C. BYRD. Mr. President, We have aggressively pursued all available two leaders or their designees have been state and federal support to supplement local as in executive session, I ask unanimous recognized on tomorrow, without any funds on behalf of our handicapped students. consent that the injunction of secrecy be morning business occurring at that time, However, In spite of these efforts, additional removed from the Protocols for the Ex- the Senate proceed to the consideration support is necessary to provide appropriate tension of the Wheat Trade Convention of the unfinished business. educational programs offered by staff and and the Food Aid Convention constitut- specialists adequately trained to offer the The PRESIDING OFFICER. Without ing the International Wheat Agreement, objection, it is so ordered. very specialized services required by our seri- 1971, open for signature in Washington ously handicapped school-age population. Mr. ROBERT C. BYRD. Now, Mr. from April 2 through April 22, 1974- President, is it automatic that the ques- While we believe that S. 6 and H.R. 70 pro- Executive C, 93d Congress, 2d ses- vide the proper long-range approach, it ap- tion at that time would be on the adop- pears that these bills will not be passed In sion-transmitted to the Senate today tion of the amendment by Mr. GURNEY? the near future. Since we feel that our need by the President of the United States, The PRESIDING OFFICER. That will is immediate, we appreciate your efforts in and that the protocols with accompany- be laid before the Senate as the pending assisting us to meet our responsibility for ing papers be referred to the Committee question under the agreement. the education of handicapped pupils. on Foreign Relations and ordered to be Mr. ROBERT C. BYRD. After the two Sincerely, printed, and that the President's mes- leaders or their designees have been rec- DONALD MIEDEMA, sage be printed in the RECORD. Deputy Superintendent of Schools. The PRESIDING OFFICER (Mr. ognized? HOMER 0. ELSEROAD, The PRESIDING OFFICER. The Sen- Superintendent of Schools. NUNN). Without objection, it is so or- ator is correct. dered. BOARD OF EDUCATION OF SOMERSET The message is as follows: COUNTY, PROGRAM Princess Anne, Md., May 1, 1974. To the Senate of the United States: Hon. CHARLES McC. MATHIAS, Jr., For the advice and consent of the Sen- Mr. ROBERT C. BYRD. Mr. President, U.S. Senate, ate to ratification, I transmit herewith the program for tomorrow is as follows: Washington, D.C. the Protocols for the Extension of the The Senate will convene at the hour of My DEAR SENATOR MATHIAS: Senate Bill Wheat Trade Convention and the Food 9 a.m. After the two leaders or their des- 1539, Federal Aid for the Handicapped, upon Aid Convention constituting the Inter- ignees have been recognized under the

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