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State statute designed to protect the health and safety of the public unless its purpose to do so is clearly manifested (citing cases), or unless the State law, in terms or in its practical administration, conflicts with the act of Congress, or plainly and palpably infringes its policy." [Italics ours.]

The declared policy of Congress expressed in this act would be nullified by State action to exempt violators of the act from punishment. Such nullification is beyond the power of the States under the commerce clause of the Constitution.

(b) State action to prevent operation of the enforcement provisions of the act would be unconstitutional as a violation of the fourteenth amendment, in that it is an abridgment of a privilege and immunity of a citizen of the United States. The right to employment without discrimination on account of race or religion is a Federal civil right. This is explicitly enunciated in the act, in its findings and declaration of policy (secs. 2 (a), 2 (b), and 2 (c).) State action which infringes upon this right would be violation of the fourteenth amendment, which prohibits State invasion of civil rights. The privileges and immunities of citizens of the United States are safeguarded by the amendment against infringement by the States (Slaughterhouse cases, 16 Wall. (U. S.) 36).

Mr. Justice Bradley, in delivering the majority opinion of the Supreme Court in the (Civil Rights cases. 109 U. S. 3), stated:

"The 1st section of the fourteenth amendment which is the one relied on. after declaring who shall be citizens of the United States, and of the several States, is prohibitory in its character and prohibitory upon the States. It declares that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the laws."

The exercise of the local option to exempt employers within a State from the enforcement provisions of the act would be unconstitutional. For Congress to grant to the States the right of such election is in itself in contravention of the Constitution, and especially of the intent and purpose of section 5 of the fourteenth amendment, which reads as follows: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

(c) State action which is opposed to the laws of the United States made in pursuance to the Constitution or to treaties made under the authority of the United States is unconstitutional as a violation of article VI of the Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States shall be the supreme law of the land. The act makes an express finding of policy that it is a step toward fulfillment of the obligations imposed on the United States by the United Nations Charter, an international agreement to which the United States has subscribed. These obligations are binding on all the United States, and Congress is without power under the Constitution to delegate to the States power to disregard such treaty obligations by State legislative action.

The act also makes an express finding of policy that the right to employment without discrimination because of race, religion, color, or national origin or ancestry is a civil right of all the people of the United States. The enforcement provisions of the act then protect that right by setting up certain penal sanctions against employers and unions who violate that right. Under article VI of the Constitution the act is the supreme law of the land. Congress may not, therefore, add to the act a provision that would permit nullification of any portion of it by the action of a State legislature. Thereby the obligation, international in character, implemented by the act, becomes the law of only part of the land, not of the United States.

III. STATE OPTION ON ENFORCEMENT IS CONTRARY TO ESTABLISHED PRINCIPLES OF SOUND PUBLIC POLICY

State option on enforcement provisions of the act would emasculate the act and make it ineffective in some sections of the country.

It would give legislative sanction to the deprivation of declared rights of citizenship. It would give legislative sanction to setting up different classes of citizenship; to condemning large segments of our population to substandard conditions of living, to fomenting industrial strife and domestic unrest, and to depriving the United States of the fullest utilization of its capacities for production.

It has been pointed out that Congress on at least 23 different occasions in the years 1933-44 has outlawed racial and religious discrimination in legislation for public works projects, the Civilian Conservation Corps, unemployment relief, civil-service classification, National Youth Administration, and other acts (90 Congressional Record, pt. 10, p. A3325 (1944)).

It is the expressed and recognized policy of the United States to prevent racial and religious discrimination. The Charter of the United Nations provides that "the United Nations shall promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race" and that "all members pledge themselves to take joint and separate action" for that purpose (art. 55c; 56). Shall we give sanction by affirmative act permitting local option to nullify what we profess herein as signatory and principal proponent? Shall we create the machinery whereby States may reject treaty obligations entered into on their behalf by the Government of the United States?

On June 29, 1947, in an address to the Conference of the National Association for the Advancement of the Colored People, at the Lincoln Memorial, the President of the United States said:

"For these compelling reasons, we can no longer afford the luxury of a leisurely attack upon prejudice and discrimination. There is much that State and local governments can do in providing positive safeguards for civil rights. But we cannot, any longer, await the growth of a will to action in the slowest State or the most backward community."

IV. STATE OPTION ON ENFORCEMENT RENDERS THE ACT'S ENFORCEMENT UTTERLY IMPRACTICABLE

Should State option be exercised to prevent Federal enforcement of the act in some States, there would arise inherent difficulties that would insure failure of the act in action and would retard its enforcement in areas where local option permits enforcement.

The act applies to employers of 50 or more engaged in interstate commerce. The proposed amendment would create a means toward wholesale evasions of the act by means of transference by industries of their employment offices to areas where enforcement of prohibition against discrimination in employment does not exist. Thus, railroads and other carriers and business enterprises doing business in several States could choose the State within which they would not be subject to the enforcement provisions of the act and thus avoid the requirements of the act. Circumstances of avoidance could be multiplied, unhampered by legal restraint, which would for all practical purposes make the act unenforceable. It might give rise, as well, to unfair competitive advantages for those who succeeded in avoiding and evading the act.

Moreover, State option on enforcement provisions of the act might cause shifts by industries to subsidiaries in States where there is no enforcement. Conversely the greater opportunities in States where minorities received protection against discrimination in employment would cause substantial population shifts. These phenomena would operate to cause harmful dislocations in our economy such as we found so widespread during the recent war and which contributed to the creation of a housing problem and health hazards.

The enforcement provisions of the act endow it with the strength of accomplishment of the ends sought. There may very well be little or no resort to the enforcement provisions; their presence in the act is a sufficient deterrent. This has been proven by the history of the operation of the fair employment practices acts in the States which have adopted them.

The following statement by the President's Fair Employment Practices Commitee in its final report dated June 28, 1946, is significant on this point:

"Discriminatory practices, if they can be solved by negotiation, are the more quickly ended when the National Government makes clear that its authority will be exercised against offenders. Such authority need be sparingly used. Its mere existence serves to ease the way to settlements at every stage of negotiation." Respectfully submitted.

Of counsel:

SOL RABKIN,

JACK SHAUM.

NATIONAL COMMUNITY RELATIONS ADVISORY COUNCIL
HENRY EPSTEIN, Chairman.

Senator DONNELL. Mr. Clarence Barbour.

STATEMENT OF CLARENCE BARBOUR, REPRESENTING STUDENTS FOR DEMOCRATIC ACTION, UNIVERSITY OF NORTH CAROLINA

Senator DONNELL. Mr. Barbour, will you please state your name, address, and occupation?

Mr. BARBOUR. I have that here prefaced in my testimony. I will answer the question, though.

Senator DONNELL. Very well.

Mr. BARBOUR. My name is Clarence Barbour. I am a resident of Chapel Hill, N. C., and a student of the University of North Carolina. Senator DONNELL. Will you proceed with your testimony?

Mr. BARBOUR. I am representing Students for Democratic Action. This organization is of non-Communist progressive students.

Senator DONNELL. May I interrupt you right there? Does the organization have a constitution in which it negatives the right of an individual as a Communist to belong to it?

Mr. BARBOUR. It does, sir.

Senator DONNELL. You have it here?

Mr. BARBOUR. I have a copy of that constitution here.

Senator DONNELL. Would you be kind enough to read to us the particular sentences to which you refer?

Mr. BARBOUR. I have also a membership card.

Senator DONNELL. First, the sentences of the constitution, if youwill.

Mr. BARBOUR. They are identical.

Senator DONNELL. If you will just give us the language that is contained in the constitution.

Mr. BARBOUR. All right, sir.

Since the wording of the two are identical, would it be all right if I read it?

Senator DONNELL. If the wording is identical.

Mr. BARBOUR. The Students for Democratic Action is an organization of progressives dedicated to the achievement of freedom and economic security for all people everywhere, through education and political action. We believe that rising living, standards and lasting peace can be attained by democratic planning, enlargement of fundamental liberties, and international cooperation.

We believe that all forms of totalitarianism, including communism, are incompatible with these objectives. In our crusade for an expanding democracy and against fascism and reaction, we welcome as members of SDA only those whose devotion to the principles of political freedom is unqualified.

Senator DONNELL. Proceed.

Mr. BARBOUR. We are the student division of Americans for Democratic Action.

Senator DONNELL. Would you tell us what the Americans for Democratic Action is?

Mr. BARBOUR. Well, it is a liberal movement in this country. It is an organization of liberal-minded people, leaders in various communities over the country. Our constitution was drawn up, ratified, as of March 29 in convention in Washington.

Senator DONNELL. This year?

Mr. BARBOUR. This year; 1947.

Senator DONNELL. That is, the organization of Americans for Democratic Action is an organization created in the year 1947. Is that right? Mr. BARBOUR. Yes, sir.

Senator DONNELL. And your division of Students for Democratic Action was likewise, therefore, created in this present calendar year?

Mr. BARBOUR. Yes; in a convention of Students for Democratic Action which was, previous to our affiliation with ADA, the United States Student Assembly, and we are now a division of the ADA.

Senator DONNELL. That is to say, your organization had previously existed as the Student Assembly.

Mr. BARBOUR. Yes, sir.

Senator DONNELL. How old an organization is the Student Assembly?

Mr. BARBOUR. That, sir, I will have to get that information. I do not have it here with me.

Senator DONNELL. How long has it been in existence-for several years?

Mr. BARBOUR. Yes, sir; and then taken over as a division of the SDA.

Senator DONNELL. Where was this convention at which the Students for Democratic Action was organized held?

Mr. BARBOUR. In Washington.

Senator DONNELL. How large an attendance was present at that convention?

Mr. BARBOUR. I do not know.

Senator DONNELL. Were you present?

Mr. BARBOUR. I was not.

Senator DONNELL. Do you know how many members Americans for Democratic Action has?

Mr. BARBOUR. Well, I have the approximate number here. Our membership is in the neighborhood of 4,000.

Senator DONNELL. You mean by "our," total membership?

Mr. BARBOUR. Student membership.

Senator DONNELL. I am asking for intermembership of the Americans for Democratic Action, which I understand is a larger organization.

Mr. BARBOUR. I am representing here, not the Americans for Democratic Action but the division of Students for Democratic Action. Senator DONNELL. Which is it that has a membership of 4,000? Mr. BARBOUR. Students division.

Senator DONNELL. What I am asking is, What is the membership of ADA? Do you know?

Mr. BARBOUR. I do not know.

Senator DONNELL. Who is head of that organization?
Mr. BARBOUR. Mr. Wilson Wyatt is the chairman.

Senator DONNELL. Formerly here in the housing work?
Mr. BARBOUR. Yes, sir.

Senator DONNELL. Is he the president of it?

Mr. BARBOUR. He is the chairman.

Senator DONNELL. Do you have a copy of the constitution of that organization?

Mr. BARBOUR. Yes, sir.

Senator DONNELL. You have it here with you?

Mr. BARBOUR. I think I have it here.

Senator SMITH. May I ask this one question?

Do you admit democratically minded representatives to your organization?

Mr. BARBOUR. I think that is obvious, sir; yes.

Senator DONNELL. Do you have any very active chapters in the northern universities?

Mr. BARBOUR. We have active chapters, sir, on northern, western, midwestern campuses, as well as the southern ones. I am speaking primarily for the SDA division of students.

Senator DONNELL. That is what I am talking about-the northern universities.

Mr. BARBOUR. Yes, sir.

Senator SMITH. What ones are there up north? I do not want to get the chairman's question sidetracked here, but I am curious about the ones which are in New York or New England, for instance.

Mr. BARBOUR. I cannot remember the specific campuses, but I can get that information for you.

Senator DONNELL. What organizations do you have south of the Mason and Dixon's line, Mr. Barbour? What colleges?

Mr. BARBOUR. We have an organization of students organized on the campus of Georgia Tech: University of North Carolina; Williams College, in Greensboro, N. C.; and Winthrop College, Rock Hill, S. C. Senator SMITH. Mr. Chairman, the purpose of my facetious question was really to ask you whether it is a political organization or not. Mr. BARBOUR. It is political.

The policies of my organization are made by representatives of all chapters in an annual national convention. Between conventions, the national board and national executive committee are empowered to make policy. At our first national convention in Washington, March 28-30, 1947, a program was adopted which included the statement. "SDA will actively support State and National FEPC bills." In accordance with this section of the program, the national executive committee at its meeting of June 3, 1947, passed the following resolution——

Senator DONNELL. Where was that meeting of June 3, 1947, held? Mr. BARBOUR. That question places me in a very embarrassing position. I am of the opinion that it met in Washington.

Senator DONNELL. Do you not know where it met?
Mr. BARBOUR. Am I free to ask my colleagues?
Senator DONNELL. Did you prepare this statement?

Mr. BARBOUR. I prepared this statement here, but this information was given to me by those whom I represent.

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