they tend to become disqualified for assignment to the more difficult posts such as those at high altitudes or in undeveloped areas where they are unable to obtain necessary medical care. It goes without saying that the above excerpt is a classic statement of the stereotyed notions which give rise to discrimination against the elderly. Naturally, the court in Bradley v. Vance found the Department of State's raison d'etre factually unsupportable and held the 60 year old retirement law to be in violation of the equal protection clause. In that case, it took litigation to rectify an injustice which, perhaps, could have been spotted and corrected earlier had the Commission on Civil Rights been empowered to include age among the bases for classification subject to its investigation and study. Another example of a federal age-based policy which arguably implicates the Fourteenth Amendment, or the federal Age Discrimination in Employment Act which implements it, is the so-called White House Fellowship Program. In 1964, by Executive Order, President Johnson established a program of temporary federal service for individuals in private occupations finding that: "Whereas it is in the national interest that our future leaders in all walks of life have opportunities to observe at first hand the importance and challenging tasks of American government; and "Whereas participation in government service early in their careers will help young persons with high qualifications to become well-informed and publicspirited citizens; ***" The maximum eligibility age fixed for the program was 35 years. Despite the 1974 amendments to the federal Age Discrimination in Employment Act, which extended its application to federal employment, the White House Fellowship Program still exists with the same age limitations and the U.S. Civil Service Commission has placed thereon its stamp of approval upon the ground that the program does not involve "employment." Perhaps the distinction is justified, and perhaps sufficient reasons exist for the age-based policy, but the question is one which should at least be addressed by an entity possessing the objectivity and authority which S. 2300 would invest in the Commission on Civil Rights. Finally, the Commission's December, 1977 report of its study conducted by the Commission pursuant to the Age Discrimination Act of 1975 contains many examples of improper age discrimination in the distribution of benefits provided in federally funded programs. This report confirms that some degree of age discrimination exists in every one of the programs investigated by the Commission and highlights the need for such a continuing study of age discrimination as is contemplated by S. 2300. C. Expansion Of The Authorizing Language May Be Advisable-In enacting S. 2300, Congress would presumably be acting under Section 5 of the Fourteenth Amendment, where the power plainly exists to authorize investigation of unlawful age discrimination which is not itself violative of the equal protection clause. "Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibition they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power." Katzenbach v. Morgan, supra at 650, quoting from Ex Parte Virginia, 100 U.S. 339, 345-46 (1880). Thus the scope of the area subject to investigation under this legislation need not be affected by the United States Supreme Court's narrow application of the equal protection clause to age discrimination claims. Massachusetts Board of Retirement v. Murgia, supra. The language in the present version of S. 2300 would permit the Commission to: *** study and collect information concerning legal developments constituing a denial of the equal protection of the laws under the Constitution on account of age. . . and appraise the laws and policies of the Federal Government with respect to such denials on account of age *** While the latter portion evokes an intention to authorize investigation of discrimination beyond that which directly violates the equal protection clause, the term, "such denials," could be read as limiting the scope even of this provision to "legal developments constituting a denial of the equal protection of the laws" To assure that there will be no question that the Commission's 1 See Remmick v. Barnes County 435 F. Supp. 914 (D.N.D. 1977) and Usery v. Board of Education, 421 F. Supp. 718 (D. Utah. 1976). authority will be at least commensurate with that previously granted under the Age Discrimination Act of 1975, and will be sufficient to embrace consideration of discrimination violative of the Age Discrimination in Employment Act of 1967, as amended, it would be desirable to expand the language of the bill specifically to permit investigation of unlawful discrimination beyond denials of equal protection. CONCLUSION Passage of S. 2300 would be a useful step, both symbolically and practically, in combatting age discrimination, by recognizing that freedom from discrimination on the basis of age is a civil right and by authorizing the Commission on Civil Rights to investigate such discrimination. We urge enactment of the legislation either in its present form or, preferably, amended as suggested in the preceding section of this statement. We appreciate the opportunity to testify concerning this significant legislation. [EXHIBIT NO. 17] Re S. 2300. Senator BIRCH Bayh, NATIONAL SENIOR CITIZENS LAW CENTER, Chairman, Subcommittee on the Constitution, Committee on the Judiciary, U.S. Senate, Washington, D.C. DEAR SENATOR BAYH: You will recall that at the conclusion of our testimony concerning S. 2300 in the January 26 hearing held by the Subcommittee on the Constitution, you asked for our comments concerning Committee Print Nos. 1 and 2, both of which contain proposed revisions of Section 3(a) of S. 2300. We understand that the purpose of each revision is to assure sufficiently broad authorization to the Commission on Civil Rights to enable it effectively to study age discrimination practices and their impact. You requested that we review both revisions and advise you of our opinion as to the ability of each to perform that function. THE AGE DISCRIMINITION "JURISDICTIONAL PROBLEM" In present form, S. 2300 would vest the Commission with authority to: "*** study and collect information concerning legal developments constituting a denial of equal protection of the laws under the Constitution on account of age... and appraise the laws and policies of Federal Government with respect to such denials on account of age ** This language is similar to that of 42 U.S.C. § 1975c, authorizing the Commission to investigate discrimination on the basis of race, color, religion, sex or national origin, and admittedly the Commission seems to have had adequate authority to act effectively in those areas. Yet, because of substantial distinctions between issues and legal standards applied in age discrimination cases, and the areas already under the Commission's purview, one cannot conclude that language satisfactory for those other areas, would necessarily suffice for age discrimination. A. Legal Standards Applied In Age Discrimination Cases Are Different Than For Types Of Discrimination Now Under The Commission's Jurisdiction—For claims of discrimination in most of the areas already within the Commission's jurisdiction under 42 U.S.C. § 1975c, equal protection analysis mandates that the particular discrimination or classification at the outset be regarded as "suspect." Such classifications are subjected to strict scrutiny, and will be upheld only upon a showing by the defendant that there exists a compelling necessity for the classification. See e.g., Loving v. Virginia, 388 U.S. 19 (1967) (race); Oyama v. California, 332 U.S. 633, 644–46 (1949) (national origin). Although the test to be applied in sex discrimination claims is unsettled, it also seems apparent that classification on the basis of sex is disfavored under the equal protection clause, so that something more than a "rational basis" is required to justify sex-based discrimination. See Craig v. Boren, 429 U.S. 190 (1976). Thus, in those existing areas of the Commission's jurisdiction, even where statutory rather than constitutional issues are most apparent, equal protection considerations are at least peripherally involved in practically every claim of discrimination on the basis of race, color, religion, sex or national origin. The 42 U.S.C. § 1975c references to "denials of equal protection" do not constitute such a sweeping restriction as to deprive the Commission of the jurisdiction it needs to conduct effective studies and analyses of those kinds of discrimination. The situation for age discrimination is markedly different. The United States Supreme Court has held that governmental discrimination on the basis of age does not violate equal protection rights of older persons if the discrimination or classification has a "rational basis". See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976). Under this standard only rarely, and in rather unique circumstances, have the courts seen age discrimination as reaching the level of a violation of equal protection. Gault v. Garrison, No. 74– 1579 (7th Cir. 1977); Bradley v. Vance, 436 F. Supp. 134 (D.D.C. 1977). If the Commission's jurisdiction as to age discrimination were restricted to denials of equal protection, that jurisdiction would be narrow indeed. A related point perhaps warrants mention. The Commission has already staked out its jurisdictional responsibilities under the areas named in 42 U.S.C. § 1975c. If there was once any doubt about the scope of the Commission's mandate under the statute, the issue has been effectively resolved by the Commission's own interpretations and actions. In practical terms, there exists no apparent necessity for re-examining the existing language concerning the areas now covered because the Commission has already claimed and established its authority to take the steps needed for effective study and analysis of those forms of discrimination. Unfortunately, that historical background does not apply directly to age discrimination claims. It should not lightly be assumed that the same language would be suitable for age discrimination. It is of course conceivable that the Commission could, under S. 2300 in its present form, assert jurisdiction for age discrimination matters comparable to that already exercised in the other areas. It is perhaps even likely that this assertion would go unchallenged. Such speculation should not be relied upon, however, since S. 2300 is still in the drafting stage and the opportunity remains for clarification of the language to avoid the problem entirely. B. The Commission Should Be Authorized To Study All Forms Of Age Discrimination-The Commission should be vested with authority to study age discrimination in its various forms and contexts, to better assist the nation in understanding the nature of age discrimination and developing appropriate laws and policies. Plainly then, the Commission must be able to study more than constitutional age discrimination issues. At a minimum, it must have authority to study and analyze compliance and noncompliance with existing Federal laws forbidding or restraining age discrimination, such as the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq., and the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101, et seq. In order for the Commission to appraise the effectiveness of existing laws and suggest new laws and policies, however, the Commission must have authority to study all forms of age discrimination, even discrimination which is presently legal, in order to evaluate the need for new laws and policies. Under this standard, it is clear that the language of Committee Print No. 2 is superior to that of Print No. 1, although both represent improvements over the present S. 2300 language. Committee Print No. 1 would authorize the Commission to: (6) study and collect information concerning legal developments constituting unlawful discrimination or a denial of the equal protection of the laws under the Constitution on account of age . . appraise the laws and policies of the Federal Government with respect to such discrimination or denials on account of age ... and serve as a national clearinghouse for information in respect to such discrimination or denials on account of age *** This is an improvement over the present language of S. 2300 in that it would permit the study of unlawful as well as unconstitutional discrimination. However, the policy appraisal and clearinghouse functions, to be of maximum benefit, should consider all age discrimination, in its various forms, not just unlawful and unconstitutional discrimination. Deletion of the word "such" in both instances where it appears between "with respect to" and "discrimination" would remedy this problem and assure that the Commission could consider even those age discrimination policies that are not presently unlawful with an eye toward possible changes in the nation's policies and laws with respect to age discrimination. Committee Print No. 2 would enable the Commission to: (6) study and collect, information concerning legal developments constituting unlawful discrimination on the basis of age or handicap; appraise the laws and policies of the Federal Government with respect to discrimination on the basis of age or handicap; and serve as a national clearinghouse for information in respect to discrimination on the basis of age or handicap; and ... This is clean and simple language which, in age discrimination matters, would permit the Commission to take all steps we have recommended above. Limitation of the study of "legal developments" to "unlawful discrimination" poses no problem, since the language does not limit the policy appraisal and clearinghouse functions to unlawful discrimination. CONCLUSION The Commission should be given authorization which will enable it to make broad studies of age discrimination in the United States, dispense information concerning all such discrimination and assist the nation in its appraisal of laws and policies concerning age discrimination. This authorizaton must not be Imited to discriminations which constitute violations of the equal protection clause or even to discrimination already recognized as unlawful, for the Commission's role in that event would be largely superfluous to that of the courts and private litigants. Employing that standard, it is our judgment that the version of new clause (6) as set out in Section 3(a) of Print No. 2 is wholly satisfactory (subject to any concerns of advocates for the handicapped) for purposes of age discrimination. While Print No. 2 is preferable to Print No. 1 in its present form because No. 1 could be construed as limiting the Commission's authority to appraise laws and policies and serve as a national clearinghouse to unlawful discrimination, No. 1 would also become entirely satisfactory if the word "such" were to be deleted in both instances where it presently appears in the proposed new clause. Print Nos. 1 and 2 are both superior to the clause (6) contained in the present version of S. 2300. We greatly appreciate your concern about the rights of the elderly as evidenced not only by this legislation but also by your support of S. 1393 concerning institutionalized persons, including nursing home residents, and displaced homemaker legislation. Thank you again for the opportunity to comment upon S. 2300. If you so desire, we would be pleased to discuss our recommendations further with you or your staff at any time at your convenience. Sincerely, EDWARD C. KING. Senator BAYH. Our next witnesses this morning are a panel from the National Association for Neighborhood Schools: Mr. Jim Venema, Dr. Herbert Walberg, Dr. Ralph Scott, and Mrs. Naomi Bradford. TESTIMONY OF JIM VENEMA, PRESIDENT, NATIONAL Mr. VENEMA. Mr. Chairman, my name is Jim Venema. I am president of the National Association for Neighborhood Schools, which is a proneighborhood school, proeducation, antiforced busing organization. We were formed in August of 1976, so we are relatively young. That month is significant with respect to the fact that some 10 days after we were formed in August of 1976 the U.S. Civil Rights Commission by way of Chairman Flemming came out with its massive report entitled "Fulfilling the Letter and the Spirit of the Law," dealing solely with school desegregation, what we refer to as forced busing. Chairman Flemming at a press conference said that forced busing or desegregation of schools is a resounding success. He said, "We will challenge anyone to debate this conclusion." Unfortunately for Chairman Flemming, he did not realize that the National Association for Neighborhood Schools had just recently been formed. We immediately accepted Chairman Flemming's challenge to debate. This debate was held in November of 1976 with the cooperation of several PBS television stations, one in Washington and one in Boston. In the hour-long televised debate I think we successfully refuted and essentially destroyed the Commission's contention that forced busing or school desegregation works. As background to some of the testimony that will be presented today by our panel, I would ask that the transcript of that debate, which we sent a copy of to all Senators on the subcommittee, be entered in the record. Senator BAYI. We will put it in our files. I want to see how voluminous it is. We will certainly make it available to everyone. We appreciate your bringing it to our attention. Mr. VENEMA. Our first witness this morning is Prof. Herbert Walberg. Incidentally, Professor Walberg was one of the participants for the National Association in the debate with the Commission. Senator BAYH. Before we proceed further, could you all for the record identify from whence you come? You are from Delaware, aren't you? Mr. VENEMA. I am from New Castle, Del. I believe they have incorporated in their statements that information. Senator BAYH. Fine. TESTIMONY OF HERBERT J. WALBERG, RESEARCH PROFESSOR OF URBAN EDUCATION, UNIVERSITY OF ILLINOIS Mr. WALBERG. Mr. Chairman, I am Herbert J. Walberg, research professor of urban education at the University of Illinois at Chicago Circle, and author or editor of 12 books in the fields of education and psychology, including Rethinking Urban Educational and Evaluating Educational Performance. I have written more than 100 articles for professional and scientific journals; served as research consultant to many public and private agencies at the local, State, and national levels; taught at Harvard University; held research appointments at the Universities of Chicago and Wisconsin; and lectured in Canada, England, and Australia. My chief pursuit since earning my Ph. D. in 1964 is research on improving education. I believe that the U.S. Commission on Civil Rights harms American education and society. Because it abridges rather than enlarges civil rights; because it causes and encourages policies that are greatly injurious to the education of American students and our social fabric; because it reports demonstrably false evidence and conclusions to the Congress and the people; because it usurps the proper educational authority of Federal, State, and local agencies; because it acts against the will of the vast majority of citizens; and because it wastes many millions of dollars of taxpayers money, the Civil Rights Commission should be abolished, in my opinion. Long ago, Thomas Jefferson warned: The germ of dissolution of our government is in the constitution of the federal judiciary, an irresponsible body working like gravity by day and by night, gaining a little today and a little tomorrow and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the states and the government of all shall be consolidated into one. |