The President"s bill pa.s.sed easily with bipartisan support, and he signed it on 6 August 1965. Two days later federal examiners were on the job in three states. The act promised a tremendous difference in the political complexion of significant portions of the country. In less than a year federal examiners certified 124,000 new voters in four states and almost half of all eligible Negroes were registered to vote in the states and counties covered by the law. Another result of the new legislation was that the Attorney General played an active role in the 1966 defeat of the state poll tax laws in _Harper_ v.
_Virginia Board of Elections_.[23-29]
[Footnote 23-29: 383 U.S. 663 (1966).]
Useful against legalized discrimination, chiefly in the south, the civil rights laws of the mid-1960"s were conspicuously less successful in those areas where discrimination operated outside the law. In the great urban centers of the north and west, home of some 45 percent of the black population, _de facto_ segregation in housing, employment, and education had excluded millions of Negroes from the benefits of economic progress. This ghettoization, this failure to meet human needs, led to the alienation of many young Americans and a bitter resentment against society that was dramatized just five days after the signing of the 1965 voting rights act when the Watts section of Los Angeles exploded in flames and violence. There had been racial unrest before, especially during the two previous summers when flare-ups occurred in Cambridge (Maryland), Philadelphia, Jacksonville, Brooklyn, Cleveland, and elsewhere, but Watts was a different matter. Before the California National Guard with some logistical help from the Army quelled the riots, thirty-four people were killed, some 4,000 arrested, and $35 million worth of property damaged or destroyed. The greatest civil disturbance since the 1943 Detroit riot, Watts was but the first in a series of urban (p. 590) disturbances which refuted the general belief that the race problem had been largely solved in cities of the north and the west.[23-30]
[Footnote 23-30: For an account of the Watts riot and its aftermath, see Robert Conot, _Rivers of Blood, Years of Darkness_ (New York: Bantam Books, 1967), and Anthony Platt, ed., _The Politics of Riot Commissions_ (New York: Collin Books, 1971), ch.
vi.]
Discrimination in housing was a major cause of black urban unrest, and housing was foremost among the areas of discrimination still untouched by federal legislation. The housing provision of the 1964 Civil Rights Act was severely limited, and Johnson rejected the idea of yet another executive order proposed by his Committee on Equal Opportunity in Housing. Like the order signed by Kennedy, it could cover only new housing and even that with dubious legality. Johnson, relying on the civil rights momentum developed over the previous years, decided instead to press for a comprehensive civil rights bill that would outlaw discrimination in the sale of all housing. The new measure was also designed to attack several other residual areas of discrimination, including jury selection and the physical protection of Negroes and civil rights workers. Although he enjoyed a measure of bipartisan support for these latter sections of the bill, the President failed to overcome the widespread opposition to open housing, and the 1966 civil rights bill died in the Senate, thereby postponing an effective law on open housing until after the a.s.sa.s.sination of Dr. King in 1968.
The spectacle of demonstrators and riots in northern cities and the appearance in 1966 of the "black power" slogan considered ominous by many citizens were blamed for the bill"s failure. Another and more likely cause was that in violating the sanct.i.ty of the all-white neighborhood Johnson had gone beyond any national consensus on civil rights. In August 1966, for example, a survey by the Louis Harris organization revealed that some 46 percent of white America would object to having a black family as next-door neighbors and 70 percent believed that Negroes "were trying to move too fast." Of particular importance to the Department of Defense, which would be taking some equal opportunity steps in the housing field in the next months, was the fact that this opposition was not translated into a general rejection of the concept of equal opportunity. In fact, although the bill failed to win enough votes to apply the Senate"s cloture rule, the President could boast that he won a clear majority in both houses.
His defeat slowed the pace of the civil rights movement and postponed a solution to a major domestic problem; postponed, because, as Roy Wilkins reminded his fellow citizens at the time, "the problem is not going away ... the Negro is not going away."[23-31]
[Footnote 23-31: Both the Harris and Wilkins remarks are quoted in Sundquist, "Building the Great Society," pp. 205-06.]
_The Civil Rights Act and Voluntary Compliance_
The enactment of new civil rights legislation in 1964 had thrust the armed forces into the heart of the civil rights movement in a special way. As Secretary McNamara himself reminded his subordinates, President Johnson was determined to have each federal department develop programs and policies that would give meaning to the new (p. 591) legislation. That legislation, he added, created "new opportunities"
to win full equality for all servicemen. The secretary made the usual connection between discrimination and military efficiency, adding that "this reason alone" compelled departmental action.[23-32] Obviously other reasons existed, and when McNamara called on all commanders to support their men in the "lawful a.s.sertion of the rights guaranteed"
by the act he was making his more than 300 local commanders agents of the new federal legislation.
[Footnote 23-32: Memo, SecDef for SA et al., 10 Jul 64, copy in CMH; see also SecDef News Conference, 15 Jul 64, p. 13, OASD (PA).]
Defense officials quickly arranged for the publication of directives and regulations applying the provisions of the new law to the whole defense establishment. To insure, as McNamara put it, that military commanders understood their responsibility for seeing that those in uniform were accorded fair treatment as prescribed by the new law, a.s.sistant Secretary Paul had already ordered the services to advise the rank and file of their rights and instruct commanders to seek civilian cooperation for the orderly application of the act to servicemen.[23-33] After considering the service comments solicited by his civil rights deputy,[23-34] Paul issued a departmental instruction on 24 July that prescribed specific policies and procedures for processing the requests of uniformed men and women for legal action under t.i.tles II (Public Accommodations), III (Public Facilities), and IV (Public Education) of the act. The instruction encouraged, but did not compel, the use of command a.s.sistance by servicemen who wished to request suit by the U.S. Attorney General.[23-35]
[Footnote 23-33: Memo, ASD (M) for Under SA et al., 6 Jul 64, ASD (M) 291.2; see also SecDef News Conference, 15 Jul 64, p. 13.]
[Footnote 23-34: Memo, DASD (CR) for Roy Davenport, et al., 5 May 64, sub: Requests for Suit by Military Personnel Under the Civil Rights Bill; idem for ASD (M), 10 Jul 64, sub: DOD Instruction on Processing of Requests by Military Personnel for the Bringing of Civil Rights Suits by the Attorney General; both in ASD (M) 291.2. For an example of a service response, see Memo, Dep Under SA (Pers Management) for DASD (CR), 9 Jul 64, same sub, ASD (M) 291.2.]
[Footnote 23-35: DOD Instr 5525.2, 24 Jul 64, Processing of Requests by Military Personnel for Action by the Attorney General Under the Civil Rights Act; see also Memo, ASD (M) for Under SA et al., 24 Jul 64, same sub, ASD (M) 291.2.]
Finally in December, McNamara issued a directive spelling out his department"s obligations under the act"s controversial t.i.tle VI, Nondiscrimination in Federally a.s.sisted Programs.[23-36] This directive was one of a series requested by the White House from various governmental agencies and reviewed by the Justice Department and the Bureau of the Budget in an attempt to coordinate the federal government"s activities under the far-reaching t.i.tle VI provision.[23-37] After arranging for the circulation of the directive throughout the services, Secretary McNamara explained in considerable detail how grants and loans of federal funds, transfer, sale, or lease of military property, and in fact any federal a.s.sistance would be denied in cases where discrimination could be found. Although this directive would affect the Department of Defense chiefly through the National Guard and various civil defense programs, it was (p. 592) nevertheless a potential source of economic leverage for use by the armed forces in the fight against discrimination.[23-38] Furthermore, this directive, unlike McNamara"s equal opportunity directive of the previous year, was supported by federal legislation and thus escaped the usual criticism suffered by his earlier directives on discrimination.
[Footnote 23-36: DOD Directive 5500.11, 28 Dec 64.]
[Footnote 23-37: Memo, ASD (M) for Dir, BOB, 15 Jul 64, sub: Defense Department Regulations to Implement t.i.tle VI of the Civil Rights Act; see also Ltr, Spec a.s.st to DASD (CR), to Gesell, 24 Jul 64; copies of both in Gesell Collection, J. F.
Kennedy Library.]
[Footnote 23-38: DASD (CP, IR, & CR), The Civil Rights Policies of the Department of Defense, 4 May 65, copy in CMH.]
The Department of Defense"s voluntary compliance program in off-base discrimination cases had its greatest success in the months following the pa.s.sage of the Civil Rights Act. Given the pa.s.sage of the act and other federal legislation, p.r.o.nouncements of the federal courts, and the broad advance of racial tolerance throughout the nation, the Defense Department"s civil rights officials came to expect that most discrimination could be dealt with in a routine manner. As Robert E.
Jordan III, a staff a.s.sistant to the department"s civil rights deputy, put it, the use of sanctions would not "normally" be invoked when the Civil Rights Act or other laws could provide a judicial remedy.[23-39]
Fitt predicted that only a "very tiny number" of requests by servicemen for suits under the act would ever be processed all the way through to the courts. He expected to see many voluntary settlements achieved by commanders spurred to action by the filing of requests for suit.[23-40]
[Footnote 23-39: Ltr, Jordan to William A. Smith, 21 Aug 64, ASD (M) 291.2.]
[Footnote 23-40: Memo, DASD (CR) for ASD (M), 10 Jul 64, sub: DOD Instruction on Processing of Requests by Military Personnel for the Bringing of Civil Rights Suits by the Attorney General, ASD (M) 291.2.]
By early 1965 local commanders had made "very good progress,"
according to one Defense Department survey, in securing voluntary compliance with t.i.tle II of the act for public accommodations frequented by servicemen. Each service had reported "really surprising examples of progress" in obtaining integrated off-base housing in neighborhoods adjoining military installations and heavily populated by service families. The services also reported good progress in obtaining integrated off-duty education for servicemen, as distinct from their dependents in the public schools.[23-41] At the same time lesser but noticeable progress was reported in t.i.tles II and III cases. In the first off-base inventory some 145 installations in twenty states had reported widespread discrimination in nearby restaurants, hotels, bars, bowling alleys, and other t.i.tle II businesses; forty installations in nine states reported similar discrimination in libraries, city parks, and stadiums (t.i.tle III categories). Each succeeding inventory reported impressive reductions in these figures.
[Footnote 23-41: Memo, Timpane (Staff a.s.st) for Shulman, DASD (CP, IR, & CR), 11 Feb 65, sub: Service Reports on Equal Rights Activities, ASD (M) 291.2.]
Defense Department officials observed that the amount of progress depended considerably on the size of the base, its proximity to the local community, and the relationship between the commander and local leaders. Progress was most notable at large bases near towns. The influence of the Civil Rights Act on cases involving servicemen was also readily apparent. But above all, these officials pointed to the personal efforts of the local commander as the vital factor. Many commanders were able to use the off-base inventory itself as a weapon to fight discrimination, especially when the philosophy of "if (p. 593) everybody else desegregates I will" was so prevalent. Nor could the effect of commanders" achievements be measured merely in terms of hotels and restaurants open to black servicemen. The knowledge that his commander was fighting for his rights in the community gave a tremendous boost to the black serviceman"s morale. It followed that when a commander successfully forced a change in the practices of a business establishment, even one only rarely frequented by servicemen, he stirred a new pride and self-respect in his men.[23-42]
[Footnote 23-42: For discussion of command initiatives and black morale, see Memo, DASD (CR) for Under SA et al., 25 May 64, sub: Off-Base Equal Opportunity Inventories; Fitt, "Remarks Before Civilian Aides Conference of the Secretary of the Army," 6 Mar 64; Memo, DASD (CR) for Burke Marshall, Dept of Justice, 20 Mar 64, sub: The Civil Rights of Negro Servicemen. Copies of all in CMH.]
_The Limits of Voluntary Compliance_
If the Civil Rights Act strengthened the hands of the commander, it also quickly revealed the ultimate limits of voluntary compliance itself. The campaign against t.i.tles II and III discrimination was only one facet of the Department of Defense"s battle against off-base discrimination, which also included major attacks against discrimination in the National Guard, in the public schools, and, finally, in housing. It was in these areas that the limits of voluntary compliance were reached, and the technique was abandoned in favor of economic sanctions.
Because of its intimate connection with the Department of Defense, the National Guard appeared to be an easy target in the attack against off-base discrimination. Although Secretary McNamara had accepted his department"s traditional voluntary approach toward ending discrimination in this major reserve component,[23-43] the possibility of using sanctions against the guard had been under discussion for some time. As early as 1949 the legal counsel of the National Guard Bureau had concluded that the federal government had the right to compel integration.[23-44] Essentially the same stand was taken in 1961 by the Defense Department"s a.s.sistant General Counsel for Manpower.[23-45]
[Footnote 23-43: For the discussion of McNamara"s initial dealings with the National Guard on the subject of race, see Chapter 20.]
[Footnote 23-44: "Opinion of the Legal Adviser of the National Guard Bureau, April 1949," reproduced in Special Board to Study Negro Partic.i.p.ation in the Army National Guard (ARNG) and the United States Army Reserve (USAR), "Partic.i.p.ation of Negroes in the Reserve Components of the Army," 3 vols. (1967) (hereafter cited as Williams Board Rpt), II: 20-21.]
[Footnote 23-45: Memo, a.s.st Gen Counsel (Manpower) for ASD (M), 17 Jul 61, sub: Integration of National Guard, ASD (M) 291.2.]
These opinions, along with the 1947 staff study on the guard and the 1948 New Jersey case,[23-46] provided support extending over more than a decade for the argument that the federal government could establish racial policies for the National Guard. Indeed, there is no evidence of opposition to this position in the 1940"s, and southern guard leaders openly accepted federal supremacy during the period when the Army and Air Force were segregated. But in the 1960"s, long after (p. 594) the services had integrated their active forces and seemed to be moving toward a similar policy for the guard, doubts about federal authority over a peacetime guard appeared. The National Guard Bureau disputed the 1949 opinion of its legal counsel and the more recent one from the Defense Department and stressed the political implications of forcing integration; a bureau spokesman a.s.serted that "an ultimatum to a governor that he must commit political suicide in order to obtain federal support for his National Guard will be rejected." Moreover, if federal officials insisted on integration, the bureau foresaw a deterioration of guard units to the detriment of national security.[23-47]
[Footnote 23-46: For a discussion of earlier efforts to integrate the New Jersey National Guard and the att.i.tude of individual states toward Defense Department requests, see Chapter 12.]
[Footnote 23-47: Memo, Legal Adviser, NGB, for Bruce Docherty, Office of the General Counsel, DA, 19 Jul 63, sub: Authority to Require Integration in the National Guard, copy in CMH.]
[Ill.u.s.tration: AUTO PILOT SHOP. _Airmen check out equipment, Biggs Air Force Base, Texas._]
The National Guard Bureau supported voluntary integration, and its chiefs tried in 1962 and 1963 to prod state adjutants general into taking action on their own account. Citing the success some states, notably Texas, enjoyed in continuing the integration their units first experienced during federalized service in the Berlin call-up, Maj.
Gen. D. W. McGowan warned other state organizations that outright defiance of federal authorities could not be maintained indefinitely and would eventually lead to integration enforced by Washington.[23-48]
Replies from the state adjutants varied, but in some cases it (p. 595) became clear that the combination of persuasion and quiet pressure might bring change. The Louisiana adjutant general, for example, reported that considering the feelings in his state"s legislature any move toward integration would require "a selling job." At the same time, he carefully admitted, "some of these days, the thing [integration] is probably inevitable."[23-49] The administration, however, continued to take the view that integration of the National Guard was a special problem because the leverage available to implement it was in no way comparable to the federal government"s control over the active forces or the organized reserves.
[Footnote 23-48: Ltrs, Chief, NGB, to AG"s of Alabama et al., 3 Mar 62, 3 Jul 63, and 9 Dec 63; see also Williams Board Rpt, II: 36.]
[Footnote 23-49: Ltr, Maj Gen Raymond H. Fleming, Adjutant General, Louisiana National Guard, to Chief, NGB, 16 Jul 63, copy in CMH.]
Progress toward total integration continued through 1963 and 1964, although slowly.[23-50] Near the end of 1964, the National Guard Bureau announced that every state National Guard was integrated, though only in token numbers in some cases.[23-51] Even this slight victory could not be claimed by the Department of Defense or its National Guard Bureau, but was the result of the pressure exerted on states by the Gesell Committee.
[Footnote 23-50: See Memos: Chief, NGB, for Gen Counsel, DA, 22 Oct 63, sub: Current Status of Integration of National Guard in Ten Southern States; idem for DASD (CR), 30 Dec 63, sub: Year-End Report on Integration of Negroes in the National Guard; idem for Dep Under SA (Manpower and Res Forces), 9 Jan 64, sub: Meeting With National Chairman of the American Veterans Committee. Copies of all in CMH.]
[Footnote 23-51: "Statement by Maj. Gen. Winston C.
Wilson, Chief, National Guard Bureau Concerning Integration of the National Guard," 28 Dec 64, copy in CMH; see also New York _Times_, December 30, 1964, and Williams Board Rpt, II:38.]
The Civil Rights Act of 1964 altered the Defense Department"s att.i.tude toward the National Guard. t.i.tle VI of the act undercut all arguments against federal supremacy over the guard, for it no longer mattered who had technical responsibility for units in peacetime. In practical terms, the power to integrate clearly rested now with the federal government, which in a complete reversal of its earlier policy showed a disposition to use it. On 15 February 1965 Deputy Secretary of Defense Vance ordered the Army and Air Force to amend National Guard regulations to eliminate any trace of racial discrimination and "to ensure that the policy of equal opportunity and treatment is clearly stated."[23-52] Vance"s order produced a speedy change in the states, so much so that later in 1965 the Department of Defense was finally able to oppose New York Congressman Abraham J. Multer"s biannual bill to withhold federal aid from segregated guard units on the grounds that there were no longer any such units.[23-53]
[Footnote 23-52: Memo, Dep SecDef for SA and SecAF, 15 Feb 65, sub: Equality of Opportunity in the National Guard, SD 291.2; see also Memo, Chief, NGB, for Chief, Office of Reserve Components, 27 Jan 65. For examples of how Vance"s order was transmitted to the individual states, see Texas Air National Guard Regulation 35-1, 17 March 1965, and State of Michigan General Order No. 34, 2 July 1965. In March 1966 the Army and Air Force published a joint regulation outlining procedures to a.s.sure compliance with t.i.tle VI in the Army and Air National Guard and designating the Chief of the National Guard Bureau as the responsible official to implement departmental directives regarding all federally a.s.sisted activities of the National Guard. See National Guard Regulation 24, 30 Mar 66.]