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review is conducted, not by a district trial court, but by the circuit court of appeals; in all respects, this proceeding is a review rather than a trial. Second, the Administrative Procedure Act requires the circuit court to uphold the administrative findings of the agency if they are supported by "substantial" evidence. "Substantial" evidence does not mean a majority of the evidence; it does not mean a preponderance of the evidence; according to judicial construction, "substantial" evidence means only a reasonable quantum of evidence in support of the agency's decision. Why is this significant? It is significant because title VI requires the agency only to make an "express finding" of discrimination; it does not require the agency to conduct a formal hearing into that question. Accordingly, the administrator of the agency need only gather information (not under oath), treat it as evidence of discrimination, reach an "express finding" that discrimination exists, cut off the funds and then sit back and wait for the State or other recipient to take an appeal under Administrative Procedure Act to the circuit court of appeals. If the circuit court determines that "substantial" evidence exists, the agency finding is affirmed and the State is out of court without ever having had its full day in court. We will assume, however, that although title VI does not so require, the agency would decide to conduct a full formal hearing at which the State would be permitted to produce its evidence. Even so the State would not enjoy full protection of its rights. The limited review procedure authorized in Administrative Procedure Act was justified when the act was written on the grounds that administrative agencies were supposed to have more expertise in their particular fields than the courts themselves. That is why the courts were allowed to reverse administrative findings only when they were not supported by substantial evidence, were clearly erroneous, or were contrary to law. Outside the Department of Justice itself, no administrative agency can claim to have any special expertise in the field of racial discrimination. Accordingly, the theoretical justification for the limited procedure established in Administrative Procedure Act does not exist, and because it does not exist, tying the judicial remedy of title VI to Administrative Procedure Act is not justified because it does not fully protect the rights of those charged with racial discrimination in the administration of Federal aid programs.
The foregoing consideration has to do with the judicial remedy which would be made available to those charged with acts of discrimination. It should also be remembered that this judicial procedure is available to those who bring charges of discrimination and who are aggrieved by the negative ruling of the administrative agency. Thus, no matter how frivolous the charge may be, the complainant. may demand and the circuit courts must entertain petitions for judicial review. It is obvious that the passage of this legislation would clutter the docket of the circuit court with an unmanageable workload.
To what Federal aid programs would title VI apply? The subcommittee bill embraced all Federal financial assistance programs involving a grant, contract, loan, insurance, guarantee, or otherwise. The bill finally reported by the full committee "narrows" the scope of the act to grants, contracts, and loans. This does not mean, however, that the scope of the legislation is narrow. While it is
impossible to compile a complete list, the following is a partial list of existing Federal aid programs which apparently would be embraced: Agricultural experiment station (7 U.S.C. 361a-361). Agricultural experiment station (Public Law 88-74). Agricultural Marketing Service (7 U.S.C. 1621-1630). Agricultural and the mechanic arts, colleges for (7 U.S.C. 321-326).
Civil defense (50 U.S.C. app. 2281-2286).
Fish restoration and management projects (16 U.S.C. 777777k).
Highway construction (23 U.S.C. 101-133).
Housing: Low rent housing (42 U.S.C. 1401-1435).
Housing: Slum clearance and urban renewal (42 U.S.C. 14501462).
Housing: Urban planning (for smaller communities) (40 U.S.C. 461-462).
Public works planning (non-Federal) (40 U.S.C. 462).
School lunch program (12 U.S.C. 1751-1760).
Soil conservation (16 U.S.C. 590g, 590h).
Watershed protection and flood prevention (16 U.S.C. 669669i).
Juvenile Delinquency and Youth Offenses Control Act of 1961 (Public Law 87-274, 42 U.S.C. 2541-2546).
International research and training (International Health Research Act of 1960, Public Law 86-610, 22 U.S.C. 2101-2104, 42 U.S.C. 242f, and sec. 104 (k), Agricultural Trade Development and Assistant Act of 1954, 7 U.S.C. 1704 (k).
Cooperative research or demonstration projects on social security or related programs (sec. 1110, Social Security Act, 42 U.S.C. 1310).
Federal aid to Cuban refugees (Migration and Refugee Assistance Act of 1962, Public Law 87-510, 22 U.S.C. 2601-2605).
Child welfare services (pt. 3, title V, Social Security Act, 42 U.S.C. 721 et seq.).
Research, training, or demonstration projects in child welfare (sec. 526, Social Security Act, 42 U.S.C. 726).
Temporary assistance to repatriates (sec. 1113, Social Security Act, 42 U.S.C. 1313).
Hospitalization of mentally ill repatriates (Public Law 86-571, 24 U.S.C. 321-329).
Surplus property disposition and utilization (Public Law 152, 81st Cong., sec. 203, 40 U.S.C. 484) (based on acquisition cost of property, not depreciated value at time of disposition).
Financial assistance for maintenance and operations of schools in federally affected areas (Public Law 874, 81st Cong., 20 U.S.C. 236-244).
National Defense Education Act of 1958 (Public Law 85-864, 20 U.S.C. 401-589). Title II, "Loans to Students in Institutions of Higher Education." Title IV, "Graduate Fellowships.' Title V, part B, "Counseling and Guidance Training Institutes.' Title VI, "Language Development." Title VII, "Educational Media."
Area redevelopment program (Public Law 87-27, 42 U.S.C. 2501-2525).
Cooperative research in education (Public Law 531, 83d Cong., 20 U.S.C. 331-332).
Teaching of mentally retarded children (Public Law 85-926, 20 U.S.C. 611-617).
Grants for teaching in education of the deaf (Public Law S7-276, 20 U.S.C. 671-676).
Manpower development and training (Public Law 87-415, 42 U.S.C. 2571-2620).
Community health services, particularly for chronically ill and aged (sec. 316 of the Public Health Service Act, 42 U.S.Č. 237a).
Cancer demonstration and control (Department of Health, Education and Welfare Appropriations Act, 1963, Public Law 87-582).
Hospital and medical facilities research and demonstrations (sec. 636 of the Public Health Service Act, 42 U.S.C. 291n).
Air pollution (Public Law 158, 84th Cong., 42 U.S.C. 18571857g).
Radiological health (sec. 314(c) of the Public Health Service Act. 42 U.S.C. 246(e); Department of Health, Education and Welfare Appropriations Act, 1963, Public Law 87-582)
Public health traineeships (sec. 306 of the Public Health Service Act, 42 U.S.C. 242nd).
Professional nurse traineeships (sec. 307 of the Public Health Service Act, 42 U.S.C. 242e).
Schools of public health and public health training (sec. 314(c) of the Public Health Service Act, 42 U.S.C. 246(c)).
Graduate training in public health (sec. 309 of the Public Health Service Act, 42 U.S.C. 242g).
Research, field investigation, and general research support (sec. 301 of the Public Health Service Act, 42 U.S.C. 241).
Fellowships, trainceships, and training grants (secs. 301 and 433 of the Public Health Service Act, 42 U.S.C. 241, 289c).
Health research facilities construction (title VII of the Public Health Service Act, 42 U.S.C. 292-292i).
Water treatment works construction (sec. 6 of the Federal Water Pollution Control Act, 33 U.S.C. 466e).
Domestic agricultural migratory workers (sec. 310 of the Public Health Service Act, 42 U.S.Č. 242h).
Intensive vaccination programs (sec. 317 of the Public Health Service Act, 42 U.S.C. 247b).
Old-age assistance and medical assistance for the aged under title I, Social Security Act, 42 U.S.C. 301-306.
Aid to families with dependent children under title IV, Social Security Act, 42 U.S.C. 601-609.
Maternal and child health services under part 1, title V, Social Security Act, 42 U.S.C. 701–705.
Crippled children's services under part 2, title V, Social Security Act, 42 U.S.C. 711-715.
Aid to the blind, under title X, Social Security Act, 42 U.S.C. 1201-1206.
Aid to the permanently and totally disabled under title XIV, Social Security Act, 42 U.S.C. 1351-1355.
Aid to the aged, blind, or disabled, and medical assistance for the aged under title XVI, Social Security Act, 42 U.S.C. 13811385. (Hearing provisions, 42 U.S.C. 1383 (c) (2) and 1384.) (Effective fiscal year 1963; as of June 30, 1963, no State had an approved plan.)
General health, tuberculosis, mental health, heart disease, control, and venereal disease control (sec. 314 of Public Health Service Act, 42 U.S.C. 246).
Vocational rehabilitation services (sec. 2, Vocational Rehabilitation Act, 29 U.S.C. 32).
Vocational rehabilitation extension and improvement grants (sec. 3, Vocational Rehabilitation Act, 29 U.S.Č. 33).
School construction in federally affected areas (Public Law 815, 81st Cong., 20 U.S.C. 631-645).
Library services for rural areas (Library Services Act of 1956, 20 U.S.C. 351-358).
Vocational education in practical nurse training (Public Law 911, 84th Cong., 20 U.S.C. 15aa-15jj).
Area vocational education programs (title VIII of the National Defense Education Act of 1958, Public Law 85-864, 20 U.S.C. 15ana-15ggg).
Hospital and medical facilities construction (Hill-Burton). Title VI of the Public Health Service Act, 42 U.S.C. 291h(a), 291j (a).
Water pollution control programs (sec. 5 of the Federal Water Pollution Control Act, 33 U.S.C. 466d).
Land-grant college program (7 U.S.C. 301-308, 321-331).
Not only is it uncertain what programs would be covered, it is unclear what phases of covered programs would be reached in the application of the law. Action to cut off funds can be taken not only when the agency finds that a person has been "excluded from participation in" or "denied benefits of" a Federal aid program. Such action can also be taken when the agency finds that a person has been "subjected to discrimination" under such programs. It may be clear enough what the first two clauses mean, but if it means more than the first two, what does the clause "subjected to discrimination" mean? To what does that phrase apply? Does it apply to only the direct monetary benefits under the Federal aid program? Or does it also extend to the employment practices of Federal contractors? For example, could Federal highway funds be withheld because the administrator found that some person had been "subjected to discrimination" when he applied to the contractor or his subcontractor for a job or promotion? Can funds for the construction of hospitals under the Hill-Burton Act be denied because the administrator feels that nurses, orderlies, and other job applicants have been discriminated against because of race? Motorists receive the primary benefits under the Federal highway program; patients are the primary beneficiaries of the Hill-Burton program; but those who work for contractors constructing hospitals and building highways could be called secondary beneficiaries. To what depths may the Federal administrator descend in searching out discrimination practiced under or incidental to Federal aid programs?
Citizens of all colors of all States pay Federal taxes. All should be entitled, without discrimination on account of race, to share in the
benefits financed by Federal taxes. This cannot be, and the innocent are damned with the guilty, if a Federal executive agency can terminate Federal programs in an entire State or in some geographical portion of that State because one citizen was discriminated against by one State official or by a fellow citizen.
First, this title extends coverage to any employer engaged in any industry "affecting" interstate commerce who employees 25 or more workers, to any labor union with 25 or more members and to any employment agency.
A. ANALYSIS OF TITLE VII
Second, this title enumerates a series of acts or omissions on the part of an employer which it declares to be "unlawful employment practices." These include:
1. failure to hire a job applicant on account of his race;
4. discrimination in compensation against an employee on account of his race;
5. discrimination in terms of employment against an employee on account of his race;
6. discrimination in conditions of employment against an employee on account of his race;
7. discrimination in privileges of employment against an employee on account of his race;
8. limitation of employees on account of race in such a way as to tend to deprive an individual employee of employment opportunities (promotions) or otherwise adversely affect his employee status;
9. segregation of employees on account of race in such a way as to tend to deprive an individual employee of employment opportunities or otherwise adveresly affect his employee status;
10. classification of employees on account of race in such a way as to deprive an individual employee of employment opportunities or otherwise adversely affect his employee status;
11. discrimination against any job applicant or any employee who makes a charge under this title or assists or participates in an investigation or proceeding conducted pursuant to this title; and
12. publication of any notice or advertisement relating to employment which indicates "any preference, limitation, specification, or discrimination, based on race. . ."; and
13. discrimination on account of race against any individual in an apprenticeship program.
(Similar conduct on the part of labor unions and employment agencies is also defined as "unlawful employment practices.")
Third, this title establishes a Federal Equal Employement Opportunity Commission, consisting of five members appointed by the President, with its principal office in Washington and with regional offices located wherever the Commission "deems necessary," staffed by attorneys, officers, agents and employees, unlimited in number, which the Commission deems necessary to carry on its assigned duties.