The Leadership Conference on Civil and Human Rights

• Table of Contents
• Executive Summary
• Introduction
• 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
• Conclusion
• Recommendations
• Acknowledgements

The 70s: School Desegregation and an Expanded Mandate

During the 1970s, as the commission continued to be authorized on a temporary basis, its jurisdiction was twice expanded. In 1972, it was reauthorized for six years and given authority to investigate and conduct studies related to sex discrimination. In 1978, it was again reauthorized for six years and age and disability were added to its mission. Though still a temporary agency, the commission seemed to have finally gained a measure of stability. But earlier in the decade, mounting tension between the White House and the commission led to the first real threat to its independence.

One of the structural anomalies of the commission was that its members did not have fixed terms. Some have speculated that this was a result of the temporary nature of the agency’s charter and that commissioners’ terms were to be coterminous with the agency’s statutory life.⁶⁰ Nevertheless, commissioners had traditionally assumed that they were obliged to submit their resignations to new presidents. They had done so after the election of President Kennedy and the succession and election of President Johnson. Indeed, after the 1964 election, the White House specifically requested that the commissioners submit their resignations, purely as a formality. Though the acting general counsel expressed some surprise at this development, given the unique nature of the commission as both bipartisan and temporary, he nevertheless recommended that the commissioners comply with the request. Commissioner Erwin Griswold, a Kennedy appointment and dean of Harvard Law School, later solicitor general, strongly disagreed:

It is a mistake for us to be asked for our resignations, and . . .a mistake for us to offer them. It would be an acknowledgement that we are not an independent agency, but are merely a part of the Presidential staff, holding office at the pleasure of the President. I do not think that that is either the legal or factual situation.⁶¹

When President Nixon assumed office, four commissioners did not tender their resignations and two did so for personal reasons. Soon after his inauguration, Nixon asked Father Hesburgh if he would take over the chairmanship of the commission. Hesburgh was prepared to resign, having been on the commission since its inception; however, he agreed to stay on as chair. Contemporaneous news accounts suggest that Nixon, then facing increasing opposition to the Vietnam War, including demonstrations in Washington and on campuses around the country, was impressed by Father Hesburgh’s tough policy toward campus demonstrators at Notre Dame.⁶³

Over time, however, President Nixon became less enamored of the commission because of its ongoing critique of the federal government’s civil rights policies. In the late 1960s, the commission had done significant work in the area of school desegregation, finding in a series of reports beginning in 1966 that desegregation was moving very slowly. Its 1969 report on school desegregation was highly critical of the federal government’s efforts to require school districts to comply with federal law prohibiting use of federal funds in programs that discriminated. Earlier that year, the administration had de-emphasized cutoffs of federal funds to recalcitrant school districts in favor of enforcement in the courts, a lengthier and more cumbersome process. In addition, the commission criticized the administration’s support for delays in desegregation in Mississippi, South Carolina, and Alabama. The commission charged that these policies amounted to a "major retreat."⁶⁴

After issuance of the 1970 report, which was critical of federal enforcement efforts across the board, The New York Times reported that the White House had asked the commission to delay release of the report until after the mid-term elections. Both Chairman Hesburgh and the White House confirmed the news story, although the White House denied that the reason for the request was political.⁶⁵

Despite a 1971 report recognizing progress in civil rights enforcement by the Nixon administration, the commission’s position on school desegregation continued to be a thorn in the administration’s side. The disagreement came to a head over the use of busing as a means to integrate public schools. Chairman Hesburgh testified in March 1972 at a hearing before the House Judiciary Committee against a proposed constitutional amendment to prohibit busing, even as the president was instructing his aides to draft such an amendment and the attorney general was advocating a statutory alternative that would restrict the authority of the courts to order busing.⁶⁶

Soon after the 1972 election, the president asked Father Hesburgh to resign. Originally, the White House contended that the resignation had been initiated by Father Hesburgh himself, but was forced to retreat from that position when Hesburgh denied it. News accounts of the conflict noted that while Hesburgh and the commission had been critical of the administration’s civil rights enforcement efforts as they had of previous administrations, it was Hesburgh’s "biting attacks on the Nixon busing policy that raised the ire of Administration officials."⁶⁷ According to at least one news story, "the speculation in Washington was that [the president] would pick someone less committed to... busing."⁶⁸

Several months later, in an interview with The New York Times, Father Hesburgh made a statement that succinctly described the importance of the role of the commission as an independent voice on civil rights issues:

The people around the President . . . just don’t realize that they can’t fault the commission for doing its job.

The day the commission doesn’t say anything unpleasant to Congress and the President, it ought to go out of business.

The Administration would be well-advised to get the best people it can find regardless of political parties to work on these problems.

I can understand the Administration being touchy about loyalty, all Presidents are. But the others merely expressed their disagreement with the commission without getting rid of commissioners.

After the commissioners said the Federal Government should cut off funds to states that violated civil rights, President Kennedy called a press conference and said he didn’t have such authority and didn’t want it.

The next year, President Johnson wanted it, and he got it [in the Civil Rights Act of 1964]. But nobody talked about firing anybody.⁶⁹

Unfortunately, by not following the earlier model of either handling disagreements behind the scenes or by publicly distancing itself from the commission’s positions, the Nixon administration established a precedent that was to have even more significant repercussions in the future. In the short term, however, the changes in the commission’s makeup did not result in a change in direction. The new chairman, Arthur Flemming, former president of Ohio Wesleyan University and secretary of health, education, and welfare in the Eisenhower administration, was as strong an advocate for vigorous federal enforcement of civil rights laws as Father Hesburgh had been.

Throughout the years, the commission’s staff and budget steadily grew. By 1970, it had a budget of approximately $3 million and a staff of approximately 140. Regional offices had been set up around the country to support the all-volunteer SACs that continued to report to the commission on issues affecting their particular states. In addition to its new statutorily mandated responsibilities in the areas of sex discrimination and discrimination on the basis of age and disability, the commission’s work included issues affecting Hispanics, Asian-Americans, and Native Americans.

The commission also continued to shine its spotlight on voting, issuing a report in 1975 that documented the need for extending the Voting Rights Act and recommended adding provisions to guarantee the voting rights of language minorities. It issued ongoing assessments of the federal civil rights enforcement efforts and, in compliance with its responsibility to act as a "clearinghouse" on civil rights issues, issued a series of informational reports on a wide range of subjects, including a series on racism "to promote discussion and understanding of the manifestations and costs of racism and, especially, to stimulate action, by groups and individuals to effect necessary change."⁷⁰ Similarly, early in the decade, the agency began to produce a series of reports on barriers to equal educational opportunities for Mexican Americans in the public schools of the Southwest.⁷¹ But its continuing work on school desegregation, new work on women’s issues, and its support of affirmative action ultimately set the commission on a collision course with the White House.

Next Section: The 80s: Dismantling the Commission

60. Hesburgh, note 27 above, at 447.

61. Id. at 454.

62. Telephone interview with Theodore M. Hesburgh, former chair of the U.S. Commission on Civil Rights (August 13, 2007).

63. Nan Robertson, "Nixon Letter Hails Notre Dame For Tough Stand on Disruption,"The New York Times, February 25, 1969; see also Paul Delaney, "New Rights Chief Expected Soon,"The New York Times, September 28, 1972.

64. Jack Rosenthal, "U.S. Rights Panel Criticizes Nixon On Desegregation,"The New York Times, September 13, 1969, p. 1.

65. John Herbers, "U.S. Rights Panel Finds breakdown In Enforcement,"The New York Times, October 13, 1970, p. 1.

66. John Herbers, "Hesburgh Warns On Barring Busing,"The New York Times, March 2, 1972.

67. John Herbers, "Hesburgh Forced From Rights Post,"The New York Times, November 18, 1972, p. 1.

68. Id. at 17.

69. Paul Delaney, "Hesburgh Is Pessimistic On Civil Rights Outlook,"The New York Times, February 24, 1973.

70. U.S. Commission on Civil Rights, Racism in America and How to Combat It (1979).

71. U.S. Commission on Civil Rights, Mexican American Education Studies Series (1971).