With only a third of this nation's population, nearly half the nation's poor are living in rural America. It should ensue that the Federal government and the Civil Rights Commission extend affirmative action programs to include all disenfranchished groups, and promote equal access to Federal employment assistance for all areas, regardless of population density. The section on education is largely a review of school desegregation and bilingual education programs targeted on many major cities. Not recognized by the Commission is evidence in a 1974 Bureau of the Census survey of a deplorable discrepancy between urban and rural education quality. This survey found that the percentage of rural people who may be termed illiterate (5.9%) was nearly twice that (3.8%) of metro areas. The highest illiteracy rates in the country were found among Blacks and Spanish-speaking people in rural areas. Lack of educations and employment opportunities are two important factors which work together to prevent rural American's equal access to this nation's vast economic resources. In the housing section of the report, again, there is an abundance of statistics and studies describing discrimination in urban development, planning, and housing programs. While the Commission's report admits that rising costs of housing continue to limit fair housing opportunities, it was not observed that 41% of this nation's poor and 50% of the substandard housing are in non-metropolitan areas. The American Bar Association's study cited in the housing section is yet another example of the Commission's urban mind-set. That study found a need for basic changes in the future direction of urban development and housing programs without acknowledging those who lack access to decent housing in rural areas. It is accepted that discrimination based on income and access to employment are basic factors restricting opportunity for decent housing; however, there is no recognition that these factors bear disproportionately on the rural poor. The Commission's study of the administration of justice is written from an urban perspective. Appraised are reports of police abuse in city after city. Omitted are the issues of rural judges, many of whom have little training in the basic concepts of due process; of rural police forces where the county-elected sheriffs often lack training and skills necessary for fair and unbiased law enforcement, and where appointed deputies are deficient of training in the procedural rights of the criminally accused. Admittedly, there is a shortage of current, reliable statistics on civil rights in rural America. This does not excuse the urban-oriented research that went into the Commission's report. The Commission's report reveals a typically urban misconception of rural social and economic ills, almost as if rural areas existed in the idyllic past where the security of a small community make fairness, justice, and opportunity assumed. Be assured, Mr. Chairman, that the forces of modernization, consolida tion, urbanization, and discrimination have been adversely affecting the lives of many rural citizens for many years. It is our conviction at RURAL AMERICA that the Civil Rights Commission should develop a new awareness of the importance of civil rights for all Americans, not just those living in the neon light areas. With a staff of nearly 200, I gather the Commission has not a single rural watchdog. The job vacated by William Payne, Jr. in 1972 is unfilled or was abolished. We call these matters to your attention in a spirit of basic good will, but with a stubborn conviction that this discrimination must stop. DEAR SENATOR BAYH: Enclosed please find a copy of our additional comments with respect to the hearings that were held on March 6, 1978. We certainly appreciate the interest you have shown and hope that we can move immediately to help rectify the present situation. We stand ready to help in any way we can. Many thanks for giving us this opportunity to be heard. Sincerely, L. F. WALENTYNOWICZ, Executive Director. ADDITIONAL COMMENTS BY LEONARD F. WALENTYNOWICZ, EXECUTIVE DIRECTOR OF THE POLISH AMERICAN CONGRESS Mr. Chairman and Members of the Committee: These comments are being made to take advantage of the opportunity the Chair gave us to supply additional information when we testified on March 6, 1978. At that time, the Chair indicated its interest in securing data that would reflect on the discrimination being suffered by Americans of Polish origin or heritage. We are not entirely certain what kind of data this Committee is seeking but we do want to make it clear that our previous comments not only refer to individual cases of discrimination but more importantly to practices, attitudes and patterns. Because of our limited resources we cannot supply you with a comprehensive list of individual cases of discrimination though we will attempt to do the best we can. Nevertheless, this lack of data highlights what we believe is one of the most blatant forms of discriminatory practices and attitudes now existing, namely the great insensitivity in many of our governmental bodies, including the Congress, the Executive and the Courts to other forms of prohibited discrimination, and other groups "allegedly" protected by our laws and stated policies. Let me cite a specific example. The Chair quite properly cited some data that was collected with regard to voting practices. When this data base was created it included a great variety of catagories including "Germans", "Italians", "Irish", "Polish", "Russian", "Spanish", "Negro", etc. Apparently such a breakdown was a useful tool in determining appropriate action and policies. Yet in most instances most government bodies collect or use data only on certain select groups, namely, Black, Native American, Asian American, Hispanic and White (other than Hispanic), the same catagories repeated for women, asserting in one form or another that these are the only groups that have been approved by the Office of Management & Budget. The Office of Management & Budget has clearly indicated that more catagories can be utilized as Congress and the other governmental bodies need them in doing their work, and that their interest in data collection is only to see to it that it is uniform since this will facilitate budget preparation. In light of this history, we wonder in amazement why Congress doesn't insist that more categories be created and utilized when data is submitted to justify particular policies, practices and programs. The governments' failure to collect data is just as much a form of discrimination as is the practice of denying one educational or job opportunities because of his race, color or sex. Aside from individual cases of discrimination and any systematic pattern to exclude Americans of Polish heritage from educational and job opportunities directly, we are concerned over the current practices and attitudes and policies in governmental bodies, including the courts, of lumping together as a homogeneous unit anyone who is not included as a member of a designated minority. There is no evidence or data to support the conclusion or supposition that everyone in this "non-minority" group has equal opportunity and recognition and has not, is not and will not be discriminated in a prohibited fashion. To the contrary, the evidence available indicated otherwise. Yet many discriminated groups and individuals in this catagory are being asked to suffer the consequences of numerical goals and timetables created in favor of designated minorities. Often these goals and timetables are created to overcome the effects of not only actual past discrimination but also past attitudes, practices and policies. We submit that if it is one of the ultimate goals of our society to change past attitudes, practices and policies so that prohibited discrimination is not a factor in the selection process, we will not do so if we fail to consider and respond appropriately to the problems of other groups and individuals. Instead we will simply create resentment and friction and new attitudes and practices which take into account new political realities and create new patterns of prohibited discrimination. Thus we hope we have made clear by these additional comments that Congress and other appropriate governmental agencies must address themselves directly and now, to the problems in this area of practices, attitudes and policies and the perception thereof and not wait until private organizatios having limited resources provide data on individual cases of discrimination. Given what has oe curred and what are the stated purposes of the Civil Rights Commission, a decision by Congress to so wait will cause many responsible individuals to increase their cynicism of governmental action in this area and to conclude that the dream of equal opportunity and recognition will continue to be denied in practice except that the actors are changing. Chairman BIRCH BAYH, U.S. SENATE, Washington, D.C., May 1, 1978. Subcommittee on the Constitution, Judiciary Committee, Russell Senate Office Building, Washington, D.C. DEAR MR. CHAIRMAN: It has come to my attention that there has been a misunderstanding regarding the submission to me of a memorandum on the issue of federal funding for abortions prepared by the United States Commission on Civil Rights. In the early summer of 1977, my office specifically requested the Commission to prepare a memorandum discussing the legal issues raised by the Hyde Amendment to the Labor-HEW Appropriations Bill. In response to this request, the Commission promptly submitted such a memorandum. I hope this letter clarifies the situation. With best regards, EDWARD W. BROOKE. THE LIBRARY OF CONGRESS, CONGRESSIONAL RESEARCH SERVICE, Washington, D.C., May 9, 1978. To: Senate Constitutional Rights Subcommittee. (Attention Ben Dixon.) In response to your request that we review and comment upon a Report of the United States Commission on Civil Rights entitled "Constitutional Aspects of the Right to Limit Childbearing", which was issued in April 1975, we submit the following. The preface to the report makes it clear that its objective is to delineate the potential negative effects of proposed constitutional amendments designed to nullify the Supreme Court's rulings in Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). "This report analyzes the manner in which proposed constitutional amendments... would undermine the First, Ninth and Fourteenth Amendments to the Constitution. and the effect on private law, including torts, tax, property, and criminal law, of a constitutional amendment, establishing embryonic or fetal rights." The Report therefore makes no pretense that it will present a balanced view of the potential effects of various proposed constitutional amendments on abortional rights and it does not. That is, the report attempts to present the strongest case possible for those who would oppose constitutional modification or elimination of the right established by the Court's landmark 1973 decision. We have therefore read the Report with that view in mind as well as the fact that the author is only responsible for the known law as of April 1975. The Report initially describes the Court's holdings in Wade and Bolton, notes the major issues the Court left unresolved. traces the legal response of the courts, and, finally, the political reaction at the Federal and state levels. In brief summary, the immediate reaction to the decisions was a widespread attempt by the states to test the limits of the rulings through legislative and/or administrative action. These included prohibitions against the use of Medicaid funds for eleetive abortions, forbidding the utilization of public hospital facilities for elective abortions and related procedures, and imposition of a variety of requirements which had the effect of impeding the effectuation of the decision to terminate a pregnancy by such means as spousal and parental consent requirements, limiting the methods of abortion, and imposition of elaborate restrictions on private fa Report, pr cilities. In turn, these state actions spawned extensive litigation at all levels of the federal and state court systems, the result of which, as is accurately detailed in the Report, was an almost uniform response on the part of the judiciary to strike down attempts to block effectuation of the abortion decision relying on a broad reading of the rationale of Wade and Bolton. The Report also describes the congressional response which was to pass legislation limiting abortion activities on the part of Federal government and the introduction of proposed constitutional amendments to nullify the abortion decisions. Those proposals took two forms: a "states rights" or option type amendment which would leave it up to each individual state to deal with the abortion issue as it sees fit; and "right to life" amendments which would attempt to generally ban abortions by creating a due process right for the fetus. On the basis of the then prevailing case law, the Report indicates that litigation contesting restrictions on the right to limit childbearing could be successful. But the Report concludes that "if, however, the movement to deny the right by the passage of a constitutional amendment, should succeed, it would not only nullify the right, but would seriously undermine the existing civil rights provisions of the Constitution." The remainder of the Report is devoted to an examination of the effects the proposed amendments would have on the First, Ninth, and Fourteenth Amendments, on civil rights enforcement activities, and on fetal rights in the areas of torts, property, taxation and criminal law. Again we must emphasize that analysis of the Report is tempered by the fact that it is an advocacy piece and is presented as such. In these circumstances it may not be the obligation of the author to advise readers that reversing Supreme Courts decisions by constitutional amendment is not unprecedented or that the courts will normally seek to accommodate and harmonize apparently conflicting mandates of the Constitution. Our review is therefore limited to an assessment whether the arguments are within realm of legal plausability. By this standard we conclude that, with the qualifications to be noted, the Report is generally a reasonable piece of argumentation. We have some difficulty with the authors apparent argument that "[a]n antiabortion law or constitutional amendment would not pass muster" under the standards established by the Supreme Court for testing laws alleged to violate the free exercise and establishment clauses of the First Amendment since "[t]here is no clearly secular legislative purpose, there is a primary effect that advances certain religious institutions, and there would be excessive government entanglement in the enactment and ever present in the enforcement of the provisions." The thrust of the Reports argument with respect to the First Amendment is encapsulated in the following statement: "Outlawing abortion is a constraint on the First Amendment when the restriction flows from wholly or partially nonsecular, or religious, motives. "When no wholly secular reason can be advanced for the prohibition, then to outlaw abortion is a direct assault on the freedom of conscience protected by the First Amendment."" "Such laws would effectively violate the Frist Amend ment, unless the question of when life begins was, at the time the laws were passed, resolved on purely secular premises acceptable to most Americans on nonreligious grounds so that there was no excessive entanglement of government and religion." It may be questioned whether this was a totally accurate statement of the law at that time. Previously, the Court in McGowan v. Maryland 366 U.S. 420 (1961), a case upholding Sunday closing laws, recognized the nonsecular facet of such laws. More recent religious clause cases exhibit a variety of views upon the tests of secular primary effect and church-state entanglement but do seem to acknowledge that some degree of religious effect is permissible. Thus, the Court appears to be saying that there is not a heirarchy of primary effects with the uppermost controlling, but rather a continuum on which it must be deter Report, p. 26. 3 The decision of the Supreme Court in Chisolm v. Georgia, 2 Dall. (2 U.S.) 319 (1793) accepting jurisdiction of a suit against a State by a citizen of another state resulted in the adoption of the Eleventh Amendment. Section 1 of the Fourteenth Amendment reversed the Court's ruling in Dred Scott v. Sanford, 19 How. (60 U.S.) 393 (1854). Ratification of the Sixteenth Amendment was the direct consequence of the Court's decision in Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429 (1895) holding unconstitutional an attempt by Congress to impose an income tax. Report, p. 29. We do not read the author to say that an amendment passed in conformity with the procedures of Article V could be unconstitutional. 5 Report, p. 27. • Report, p. 32. mined whether the religious effects are substantial or whether they are remote and incidental. See e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 783 n. 39 (1973). On the other hand, it may be that the Report is simply arguing that this is the type of action government should not take. If so, then the question is simply one of clarity of exposition. With respect to the Report's treatment of the Ninth Amendment, we believe that it should have been mentioned somewhere in the discussion that the Amendment has never been the independent basis for a decision by the Supreme Court and has, in fact, been discussed since its passage in 1791 in a mere handful of cases. Thus it was somewhat misleading for the Report to state: "if a constitutional amendment is enacted prohibiting abortion and overriding the Supreme Court's recognition that the right of privacy encompassed in the Ninth Amendment is . . . broad enough to encompass a woman's decision whether or not to terminate her pregnancy,' this would be a disparagement of the rights retained under the Ninth Amendment." In fact, the Court's ruling in Roe v. Wade was founded solely on the Fourteenth Amendment, not the Ninth. The full quote of the Court's language reads: "The right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions on state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 10 (emphasis supplied) The discussion with respect to the Fourteenth Amendment of the potential interpretative difficulties that could arise as a result of the definitional problem of when life begins in the various right to life proposals is essentially sound. We have more difficulty with the statement, contained in the discussion of the states' rights type of amendments that "Any statute passed under the authority of such an amendment, which would make a fetus a person, would be of no Federal constitutional significance because the word 'person' in the Federal Constitution must have a nationwide uniform interpretation for Federal purposes." ." "The purpose of this type of amendment is to effectively return the situation with regard to abortion policy to what it was prior to 1973, allowing each state to decide how it shall handle the issue. In such circumstances, where the range of state options is from total prohibition to total choice, the essential nature and purpose of the amendment would appear to be nonuniformity. Assuming even a necessity for a state to use the term "person" in devising implementing regulations with regard to abortion, there would be no requirement for national uniformity and Federal courts would be obliged to enforce the states' definition. The Report correctly points up the potential widespread effect on fetal rights of the passage of any of the proposed amendments in such areas as torts, property, taxation and criminal law. Although not specifically articulated in the Report, the expansion of the rights of the unborn could take place through the vehicle of the doctrine of equal protection which could be used to declare it improper for a state to discriminate against the unborn. Finally, we would take issue with the statement, in that part of the Report entitled "Restricting the Right to Limit Childbearing as a Threat to Civil Rights Enforcement",12 which argues that states' rights type amendments could give the states license to pass discriminatory legislation, bordering on genocide, which would be constitutionally insulated and unreviewable. "Under the guise of permitting a State to allow, regulate, or prohibit the practice of abortion, the States' rights abortion amendment would provide a renewed opportunity for State invasion of constitutional rights. In regulating or outlawing abortion a State could choose, for example, to enact omnibus legislation to compel abortion for blacks or other social and ethnic minorities 7 "Government should neither require nor prohibit abortions at any stage where such legislation would be based on a question of morality related to religious values." Report, p. 32. 8 See, Constitution of the United States of America, Analysis and Interpretation, pp. 1256-1259 (Killian, Ed. 1973); Rhoades and Patula. The Ninth Amendment: A Survey of Theory and Practice in the Federal Courts Since Griswold v. Connecticut, 50 Denver L.J. 153 (1973). In 1955 Mr. Justice Jackson stated: "[T]he ninth amendment rights which are not to be disturbed by the federal government are still a mystery to me.' Jackson, The Supreme Court and the American System of Government, 74-75 (1955). Report, p. 46. 10 410 U.S. at p. 153. 11 Report, p. 60. 12 Report, pp. 77-82. |