- Table of Contents
- Executive Summary
- I. Creating the Commission
- II. The Commission’s Early Years
- III. The 60s: Laying the Foundation for Legislation
- IV. The 70s: School Desegregation and an Expanded Mandate
- V. The 80s: Dismantling the Commission
- VI. The 90s: The Commission Devolves
- VII. The Post-Millennial Commission
Creating the Commission on Civil Rights
On September 9, 1957, President Dwight D. Eisenhower signed into law the Civil Rights Act of 1957, the first federal civil rights legislation to be enacted since Reconstruction. Part I of the Act created a Commission on Civil Rights within the executive branch. The duties of the commission were to:
- investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote . . . by reason of their color, race, religion, or national origin;
- study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution; and
- appraise the laws and policies of the Federal Government with respect to equal protection of the laws under the Constitution3
The statute set out the structure, rules of procedure, and compensation of the commissioners. There were to be six commissioners appointed by the president with the advice and consent of the Senate. No more than three members were to be of the same political party. The chair and vice chair were to be designated by the president.
The commission had no enforcement authority, but was empowered to hold hearings and to subpoena witnesses. The statute further required the commission to submit interim reports to the president and to Congress and to submit "a final and comprehensive report of its activities, findings and recommendations not later than two years from the date of enactment." Sixty days after the submission of its final report the commission would, in the words of the statute, "cease to exist."4
The Act contained several other provisions that were "designed to achieve a more effective enforcement of the rights already guaranteed by the Constitution and laws of the United States."5 Part II authorized the president to appoint, with the advice and consent of the Senate, an additional assistant attorney general to head a newly created Civil Rights Division. Parts III and IV provided for federal enforcement authority to protect civil rights, in particular the right to vote in federal primaries and elections.6
What may strike us today as a seemingly modest proposal was the result of a long, and at times contentious, process. Indeed, the idea of creating an independent agency within the federal government charged with investigating and reporting on the status of civil rights had surfaced not within the Eisenhower administration in 1957, but more than a decade earlier.
President Harry Truman laid the foundation for the commission when he established the President’s Committee on Civil Rights in 1946 - a response to growing pressure from the African-American community following World War II.7 Newly returned African-American veterans were demanding the most basic of rights - the right to vote - that were being denied them in southern states.8 Truman hoped to rectify this discrepancy between the ideals these veterans had fought for and the reality that met them at home: "I created this committee with a feeling of urgency. No sooner were we finished with the war when racial and religious intolerance began to appear and threaten the very things we had just fought for."9
No doubt there were political calculations involved as well. Although most African Americans in the South were disenfranchised, Black voters outside the South were showing signs of moving in larger numbers toward the Republican Party in response to inaction on the part of the White House and Congress on civil rights issues. At the same time, there were countervailing pressures from southern Democratic senators to keep civil rights legislation off of the agenda. Some have suggested that the creation of the committee was a way for President Truman to demonstrate leadership without endorsing any specific actions.10
The committee’s mandate was to assess the extent to which current law enforcement measures at the federal, state, and local levels were adequate to safeguard the civil rights of all Americans. If the committee determined that current safeguards were inadequate, it was authorized to recommend appropriate measures, legislative or otherwise, "for the protection of the civil rights of the people of the United States."11
The 15-member committee included representatives from the legal profession, higher education, labor, and the corporate world. There was racial, religious, sectional, and political diversity.12 Less than a year after its creation, the committee reported back to the president. Its 1947 report, To Secure These Rights, asserted that civil rights was not a regional issue but rather a national one that would require national solutions. It also concluded that minorities other than African Americans, including Native Americans, Mexican Americans, Asian Americans, and Puerto Ricans, were being denied civil rights as well. The committee’s report contained several recommendations for federal executive branch action:
- the establishment - preferably through congressional enactment - of a permanent Commission on Civil Rights within the Executive Branch;
- the creation of a Division of Civil Rights in the Justice Department, to be headed by a newly appointed Assistant Attorney General; and
- the creation of a Joint Standing Committee on Civil Rights in Congress.13
The committee’s legislative recommendations would be even more far-reaching.14
In explaining the need for a permanent Commission on Civil Rights, the committee noted:
Nowhere in the federal government is there an agency charged with the continuous appraisal of the status of civil rights. . . . A permanent Commission could perform an invaluable function by collecting data. . . . Ultimately, this would make possible a periodic audit of the extent to which our civil rights are secure. . . .
A permanent Commission on Civil Rights should point all of its work toward regular reports which would include recommendations for action in ensuing periods. It should lay plans for dealing with broad civil rights problems. . . .
The Commission should have effective authority to call upon any agency of the executive branch for assistance. Its members should be appointed by the president with the approval of the Senate. . . . A full-time director should be provided with an adequate appropriation and staff.15
Ten years later, this recommendation would form the basis for legislation establishing the U.S. Commission on Civil Rights.
That it took 10 years for even the more moderate of the committee’s recommendations to become law is, in large part, a reflection of the political realities of the times. Important committee chairmanships in the U.S. Senate in particular were controlled by southern senators who saw any attempt to provide civil rights protections to Black citizens as a threat to the "Southern way of life." In addition, the need to garner a two-thirds vote in the Senate to defeat a filibuster was a nearly insurmountable hurdle.
However, within a few months of the release of the Committee on Civil Rights report, President Truman proposed legislation based on the committee’s recommendations. These recommendations included abolishing the poll tax, protecting the right of all citizens to participate in federal elections, desegregating the armed services, withholding federal funds from entities that discriminate, outlawing discrimination in interstate transportation, instituting federal protection against lynching, and dismantling segregation and discrimination in Washington, D.C. and the Panama Canal Zone. The president’s proposal also included establishment of a permanent executive branch Commission on Civil Rights, a Joint Congressional Committee, and a Fair Employment Practices Commission.16
Although Congress debated President Truman’s proposal for the next several years, it failed to enact any legislation. Truman subsequently used his executive authority to make good on one of the recommendations of the committee. On July 26, 1948, he issued Executive Order No. 9981, ending segregation in the armed services. And in December 1951, Truman issued Executive Order No. 10308, establishing a Committee on Government Contract Compliance to seek compliance with nondiscrimination provisions in federal contracts.17
Initially, the election of Dwight D. Eisenhower in 1952 did not seem to signal a more vigorous approach to civil rights issues. But other events would compel the involvement of the president and eventually Congress. Litigation brought by the NAACP18/ had gradually chipped away at segregation in educational institutions. The initial focus of the litigation was desegregating professional schools and universities, but the organization’s success on higher education issues ultimately led to a direct challenge to the separate but equal doctrine in elementary and secondary schools. Finally, in 1954, in Brown v. Board of Education, the U.S. Supreme Court ruled that segregation of students by race was a violation of the equal protection clause of the Constitution.19
Meanwhile, other events around the country would mark the beginning of the modern civil rights movement, ultimately prompting a federal response on many levels. In 1955, the year-long Montgomery, Alabama bus boycott began when Rosa Parks, an African-American woman, refused to vacate her seat on a city bus so that a White man could sit down. The boycott ended after the Supreme Court rejected the city’s last appeal of a court order requiring desegregation of the city’s buses. In September 1957, just as the Civil Rights Act was on the verge of enactment, Arkansas Governor Orville Faubus used the National Guard to block the entrance to Little Rock’s Central High School to prevent nine African-American students from enrolling. President Eisenhower was forced to send federal troops to Little Rock in order to assure that the Black students could safely attend school.
While the civil rights movement was gaining momentum throughout the country, there were renewed legislative efforts at the federal level. In his 1956 State of the Union message, President Eisenhower asked Congress to create a Civil Rights Commission to investigate allegations that African Americans were being deprived of their right to vote. Later that year, he submitted legislation that embodied several of President Truman and his Committee on Civil Rights’ recommendations. The legislation created a temporary six-member bipartisan Civil Rights Commission, a Civil Rights Division in the Justice Department, and greater federal enforcement authority for the protection of
Although the president’s civil rights bill passed the House of Representatives later that year, it remained bottled up in the Senate. After Eisenhower’s re-election in 1956, he resubmitted the bill to Congress and, in his State of the Union message in January 1957, urged its swift passage. Again, congressional support was in doubt, particularly in the Senate. Southern senators labeled the commission "repugnant to basic constitutional principles" and "a continuing threat to the welfare and security of every person in the nation as long as it exists."20 The commission’s subpoena authority was deemed especially objectionable. Senator Herman Talmadge, D. Ga., predicted "star chamber sessions" and the House minority report declared that "this Commission is nothing more or less than a national grand jury."21 The bill’s Senate opponents were able to eliminate a provision of the bill that would have authorized the U.S. Attorney General to seek injunctive relief against anyone who deprived a citizen of his/her civil rights. Sen. Strom Thurmond, D. S.C.,22 filibustered to prevent final passage of the bill, speaking non-stop for more than 24 hours. Sen. Thurmond’s effort failed, and the bill passed in September 1957 with most of the senators from the southern states voting against it.23
Despite the commission’s limited two-year life, the agency did not become fully operational until nine months after enactment. Delays in nominating and confirming the commissioners - and in appropriating operational funds - all contributed to the slow start. The first step was nominating the commissioners, which President Eisenhower did on November 7. The president had been anxious to select individuals who might have an "ameliorating effect" on the passions aroused by the crisis in Little Rock that had occurred almost simultaneously with passage of the legislation establishing the commission. He wanted "to get the spectrum of American opinion on the civil rights, particularly voting rights. matter and sought men of ""thoughtful mien"" who" would command full public confidence.
But many in the civil rights movement were disappointed that the nominations included former southern governors who were avowed segregationists. The original nominees were: Justice Stanley Reed, recently retired from the U.S. Supreme Court; Robert G. Storey, dean of the Southern Methodist University Law School; John Battle, former governor of Virginia; Doyle Carleton, former governor of Florida; Ernest Wilkins, assistant secretary of labor; and Father Theodore Hesburgh, president of Notre Dame University. Justice Reed withdrew his name from consideration soon after his nomination and was replaced by John Hannah, president of Michigan State University. Wilkins’ term was short-lived as a serious illness forced him to retire in 1958. He was replaced by George M. -8
Johnson, dean of Howard University’s law school. Hannah, Wilkins, and Johnson were Republicans; Storey, Battle, and Carleton were Democrats; Hesburgh was an independent. Wilkins, and then Johnson, were the only African Americans on the commission. Equally divided politically, the commission was also equally divided geographically between northerners and southerners. Hannah was named chair and Storey was named vice chair.
The overall media reaction to the nominations was positive. For example, a New York Times editorial stated:
"This first commission should inspire confidence by its membership. It is bipartisan, or even nonpartisan, since one member is. . . an "independent." It derives from both North and South, in appropriate balance. It has a most distinguished chairman, Dr. John A. Hannah, president of Michigan State University. The members are persons of distinction in public service. They are now continuing in that role."24
However, some newspapers and magazines wondered whether the commission would break any new ground, given its makeup.25
Despite the moderate, even conservative nature of the new commissioners - Battle was an avowed segregationist and Carleton, though less aggressive in expressing his views, occupied a similar place on the political spectrum - the confirmation process was not smooth. Sen. John Eastland, D. Miss., chairman of Senate Judiciary Committee, delayed scheduling hearings on the nominations, and once scheduled, subjected several members to sweeping cross-examinations. He continued his opposition through the debate on the floor of the Senate. Nevertheless, the committee and the full Senate ultimately confirmed all six nominees.26
It was during the Senate confirmation hearings for the commissioners that the first clear legislative statements were made regarding the need for the commission to be independent. The exchanges were initiated by Senate Judiciary Chair Eastland and appear to have grown out of concern that the commission would be too closely tied to the Justice Department and subject to instructions, as Eastland expressed it, "of some high authority."27 Southern fears about an overzealous Justice Department spilled over into concern about the use of the "Commission as a factfinding body for the benefit of the Department."28 These fears proved to be unfounded; if anything, the reverse proved to be true. As later events showed, the Department of Justice often attempted to restrain the commission’s zeal.29
There were also delays appointing the staff director. President Eisenhower finally nominated Gordon M. Tiffany, a former attorney general of New Hampshire, in mid-February of 1958. Southern Democrats were again critical of the nomination, but Tiffany was confirmed in May and was sworn in the following month - nine months after the creation of the commission. The delay in appropriating the necessary funds further complicated the commission’s ability to start work. Although the president had allocated some minimal emergency funds to get things started, Congress did not enact the president’s funding request until late June 1958.30
Next Section: The Commission’s Early Years
3. Pub. L. No. 85-315 (1957).
5. H.R. Rep. No. 291, 85th Cong., 1st Sess.
6. Pub. L. No. 85-315.
7. Exec. Order No. 9808 (1946); see Jocelyn C. Frye, Robert S. Gerber, Robert H. Pees, and Arthur W. Richardson, "The Rise and Fall of the United States Commission on Civil Rights," 22 Harv.C.R.-C.L. L Rev. 449 (1987) for a detailed history of the commission from its founding until the mid-1980’s (hereinafter Rise and Fall).
8. Leadership Conference on Civil Rights, The U.S. Commission on Civil Rights (1990), at 3 [hereinafter LCCR].
9. The New York Times, Oct. 30, 1947, quoted in 22 Harv. C.R.-C.L. L. Rev., at 452.
10. LCCR, note 8 above, at 4.
11. Exec. Order No. 9808 (1946).
12. LCCR, note 8 above, at 2.
13. Id. at 6.
15. President Truman’s Committee on Civil Rights, To Secure These Rights (1947), at 154-155.
16. LCCR, note 8 above, at 7.
17. Id. at 9.
18. The litigation was initiated by the legal arm of the NAACP, its Legal Defense and Education Fund. LDF, as it is commonly known, was chartered as a separate organization in 1940, under the leadership of Thurgood Marshall.
19. 347 U.S. 483 (1954).
20. Rise and Fall, note 7 above, at 22.
22. Senator Thurmond switched his party affiliation to Republican in 1964.
23. Foster Rhea Dulles, The Civil Rights Commission: 1957-1965 (Michigan State University Press, 1968), at 13 and 85.
24. "A Civil Rights Milestone,"The New York Times, January 5, 1958.
25. Dulles, note 23 above, at 18-19.
26. Id., at 22-23.
27. Theodore M. Hesburgh, Integer Vitae: Independence of the United States Commission on Civil Rights, 46 Notre Dame Lawyer 445 (1971), at 449.
30. Dulles, note 23 above, at 26.