just a year or so ago the district court in the State of Delaware in the case of Evans v. Buchanan, which is reported in 207 F. Supp. at page 820 held exactly the same thing and about a year and a half ago or 2 years ago the Federal district court sitting in the State of Indiana in the case of Bell v. The School District of Gary, 213, F. Supp. 819, held the same thing and that case was appealed to the circuit court in that area and the circuit court affirmed that judgment in the case of Bell v. The School District of Gary, 324 Fed. 2d 209, and in my recollection in March of this year there was a circuit court case from Kansas, the Federal court sitting in Kansas, or it may have been a three-judge district court, an appeal from the State of Kansas court to the Supreme Court and the Kansas court held that the 14th amendment did not require a State to furnish a desegregated education and the Supreme Court of the United States refused to grant certiorari to review that Kansas decision.

Mr. EMERSON. You just didn't cite the cases that I had in mind. There is at least one other that can be so construed, I think, that goes the other way. The Supreme Court has just not decided it. But there are cases

Senator ERVIN. I know there are about 5,000 different lawbooks that abound with it and I am not going to dispute it. I would appreciate your sending them to me.

Going back to the Civil Rights Bill Act of 1964, I would just like to read this into the record. This is title IV dealing with desegregation of public education. Section 401 as used in this title, and I refer to subsection (b):

Desegregation means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but 'desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance.

Mr. EMERSON. As used in this title, title IV, yes.

Senator ERVIN. I do not quarrel with the thing. I think it is constitutional under the Brown interpretation of the 14th amendment to say to a child, you cannot attend your neighborhood school, we are going to haul you over here because we have not got enough people of your race over there I think that would be denying the right to attend his neighborhood school on the basis of his race.

But I certainly was surprised when my bretheren in the Senate who are such great advocates of desegregation-of desegregated schoolsthey did not want to have an opportunity to let the Federal courts in their areas pass on the question of whether the Constitution did permit the transportation of children.

Mr. EMERSON. I must disagree with your interpretation of that. Section 407(a), which I think you refer to provides that in suits by the Attorney General under title IV, it says, "provided that nothing herein shall empower any court to decide" as you said, but it doesn't affect the jurisdiction of the courts apart from the jurisdiction given them. So it is a very limited one.

Senator ERVIN. They took no chance. They said over here you can't do it. In other words, they are like the man who got the telegram that said, "Your mother-in-law died today, shall we have her cremated or bury her?" He said, "Take no chances, do both." [Laughter.]

Mr. EMERSON. That is what they did there. Section 409 provides, "nothing in this title shall affect adversely the right of any person to sue for or obtain relief in any court against the discrimination in public education."

Senator ERVIN. Except in de facto segregation cases north of the Mason-Dixon line.

Thank you, sir.

Prof. Louis Lusky.

I might state that I am calling you slightly out of turn at the request of the Senator from Michigan. He said you are in the same kind of situation that Professor Emerson is.

Mr. LUSKY. I appreciate it, sir, I came from out of town.

STATEMENT OF LOUIS LUSKY, PROFESSOR OF LAW, COLUMBIA UNIVERSITY LAW SCHOOL, NEW YORK CITY

My name is Louis Lusky. I live in Ridgewood, N.J. I am a professor of law at Columbia University Law School in New York City.

This subcommittee is sitting to hear facts bearing on the fitness of James P. Coleman, of Mississippi, to sit as a judge of the Fifth Circuit Court of Appeals. This is an important public question because the fifth circuit includes the Deep Southern States which have most successfully resisted the enforcement of Federal law in civil rights matters, and in which the Federal district courts have shown most reluctance to enforce the mandates of Congress and the Supreme Court. The Fifth Circuit Court of Appeals, over the past 10 years particularly, has performed a uniquely important service. It has, on the whole, applied the Federal law as Congress and the Supreme Court have directed it to be applied. By reversing dozens if not hundreds of persistently erroneous district court rulings, it has screened the Supreme Court from a crushing caseload which might well have swamped it if it had been compelled to take jurisdiction of these myriad appeals in order to prevent judicial nullification of the Federal law. The role of the court, and its performance, are assessed in a comprehensive study entitled "Judicial Performance in the Fifth Circuit," which appeared in the November 1963 issue of the Yale Law Journal (June 29, 1965).

The responsibility involved in confirming Mr. Coleman's appointment is a heavy one. If confirmed, he can sit on this court for the rest of his life. The Senate has one opportunity, and only one, to make a judgment as to whether he is likely to aid or obstruct the proper functioning of the court.

In making that judgment, the Senate will of course consider Mr. Coleman's previous acts and statements insofar as they bear on his acceptance of his obligation as a lawyer and a public official, to uphold the Constitution and laws of the United States. But there are two particular points on which especially careful inquiry is justified. First, what is his attitude toward an oath of office? Does he respect it and consider it binding upon him, or does he subordinate it to some higher loyalty? Second, is he a competent lawyer? Does he have the legal skills that are required for satisfactory service on a court outranked only by the Supreme Court itself?

Since I have been asked to be brief, I shall confine my attention to one particular item in Mr. Coleman's record, which seems to me

to raise very grave question on at least one of these scores. It concerns the interposition effort which he helped to devise, and which the Mississippi Legislature, with his encouragement and full approval as Governor, adopted in 1956.

Interposition means the refusal of a State to recognize the validity of a Federal law unless and until it is confirmed by adoption of a new, constitutional amendment. There was once a time when it was possible for a competent lawyer to believe that it was a lawful procedure. But that time passed a century or more ago. Interposition was proposed by John C. Calhoun in the early 1830's, in an effort to nullify the protective tariff. South Carolina attempted to put it into effect. President Andrew Jackson sternly repulsed this attack on the supremacy of Federal law.

Senator ERVIN. Talking about history, I also recall when Chief Justice Marshall wrote the opinion in the Cherokee Nation case, Andrew Jackson didn't have the enthusiasm for that that he had for proceeding against South Carolina. As I recall, he said that Chief Justice Marshall handed down the decision and he said, now, enforce it.

Mr. Lusky. If Governor Coleman had only said that I wouldn't be here today. If he said the Supreme Court has made its decision, let it enforce it, I would not be talking about interposition. Interposition is a great deal more than that.

Senator ERVIN. I agree with you, and I believe originally, did it not originate in the handwriting of Thomas Jefferson in the VirginiaKentucky resolutions?

Mr. LUSKY. I believe Madison first authored that and then reputed the Virginia resolutions. His message to Congress on January 16, 1833 (Misc. Doc. of the House of Representatives for 2d Sess. of 53d Cong. vol. 37, pt. (2) (1893-94), p. 610) points out the many reasons why interposition cannot be good law. And he proceeded to make his position good. Any lingering doubts as to the soundness of his position were resolved by the Civil War, and by several clear decisions of the Supreme Court. Since that time it has not been possible for a competent lawyer to believe that interposition is or can be constitutionally permissible.

When Mr. Coleman was inaugurated as Governor at the beginning of 1956, he presumably took the oath prescribed by section 268 of the Mississippi Constitution, which included an undertaking that he would "faithfully support the Constitution of the United States." On January 24, 1956, however according to a signed news article in the New York Times of the following day (a photocopy of which is submitted as an exhibit to my testimony) he joined with three other southern Governors in proposing interposition to prevent enforcement of the Supreme Court's school segregation ruling. (The document referred to follows:)

FOUR SOUTHERN GOVERNORS JOIN TO FIGHT PUPIL INTEGRATION-HEADS OF MISSISSIPPI, SOUTH CAROLINA, VIRGINIA, AND GEORGIA MEET TO MAP OPPOSITION TO HIGH COURT RULING

(By Clarence Dean)

RICHMOND, VA., January 24.-The Governors of four Southern States agreed here today to stand together in challenging the U.S. Supreme Court's ruling outlawing public school segregation.

The united front, as announced in a statement after a 6-hour meeting, contemplates three measures: a resolution of interposition in each of the four State

legislatures, a request for congressional action and the use of "legal measures" within the States to prevent school integration.

This program was accepted by Govs. Thomas B. Stanley of Virginia, Marvin Griffin of Georgia, J. P. Coleman of Mississippi, and George Bell Timmerman, Jr., of South Carolina. The legislatures in these States are now in session.

Gov. Luther Hodges of North Carolina, the legislature of which is not in session, also attended the meeting. While he did not join in the plan of action, he said that he had found the discussion of "substantial benefit and encouraging to us.” The program of the other States, he added, will "be given serious consideration by the advisory commission on education and myself for possible submission to the general assembly at its next meeting."

An atmosphere of tension hung over the capitol, where the meeting was held. Mr. Timmerman read the statement after the meeting in the presence of the other Governors. No questions were permitted.

The statement follows:

"This conference composed of the Governors of the four Southern States whose legislatures are in regular session does declare:

"That the States have not delegated to the Federal Government or any agency thereof the power to prohibit the segregation of the races in the public schools and we, therefore, shall recommend to the legislatures of our respective States that the following action be taken:

"1. That there be adopted a resolution of interposition or protest in appropriate language against the encroachment of the Central Government upon the sovereignty of the several States and their people.

"2. That a call be made upon the Congress of the United States to take such action within the limits of its constitutional authority as to protect the States and their people against present and future encroachment by the Central Government. "3. That each state exercise its right to enact and utilize such other appropriate legal measures as it may deem advisable to protect its sovereignty and the rights of its people."

The significance of the program, or exactly how it would be carried out, was not made clear.

INTERPOSITION PLANS OFFERED

Resolutions of interposition, in varying strength of language, have been proposed in several southern legislatures. One of the milder versions was introduced in Virginia last week and referred to a senate committee.

Essentially, the resolutions would "interpose" the sovereignty of the State between the Federal Government and the people in an endeavor to obstruct Federal action that the State holds to be in violation of the Federal Constitution. The call on Congress to take action "within the limits of its constitutional authority" was interpreted to mean congressional action leading to a constitutional amendment declaring segregation in schools unconstitutional. Since three-quarters of the States would have to approve such an amendment, the South belives it would be defeated.

However, before such an amendment could be submitted to the States, a two-third vote of each chamber of Congress would be needed. Supporters of the interposition idea concede that they are not sure the two-third votes could be obtained.

STATES RIGHTS STRESSED

One effect of the plan, however, might be to delay any immediate action toward integration. State Senator Harry F. Byrd, Jr., of Winchester, son of the U.S. Senator, said today he believed that during such a move "no drastic action" would be ordered.

Mr. Byrd declared he wished to make clear that his position and that of many other Virginians was not so much concerned with the school integration issue as the question of "Federal encroachment upon States rights."

The third point in the Governor's program, "appropriate legal measures” within the States, apparently would apply to such actions as the Virginia proposal to make State tuition funds available to private schools. A constitutional convention to implement this will be held March 5.

I may interrupt myself just long enough to say that the one time when the Governor is under the least political compulsion to make campaign-type statements is just after he has been elected. The following month the Mississippi Legislature adopted an interposition

resolution (S. Con. Res. No. 125, adopted by both houses on February 29, 1956) which declared the school segregation decision to be "a usurpation of power *** and therefore*** invalid and of no lawful effect within the confines of the State of Mississippi." A photocopy of this resolution, taken from the official Mississippi session laws, is submitted as an exhibit to my testimony. The State legislature then proceeded to enact a comprehensive series of statutes designed to implement this unlawful effort to nullify the Federal law, including the one (ch. 254, Miss. Gen. Laws 1956) which required the entire executive branch of the State government and every local government to "give full force and effect*** to the Resolution of Interposition," and "to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 U.S. 483 * * *) and of May 31, 1955 (349 U.S. 294 * * *)

** [or] of any orders, rules or regulations of any board, commission or agency of the Federal Government, based on the supposed authority of said Integration Decision ***" Governor Coleman approved this statute on April 5, 1956. A photocopy is submitted to be filed with my testimony.

(The document referred to follows:)

CHAPTER 254

SENATE BILL No. 1870

AN ACT To give effect to the Resolution of Interposition, Senate Concurrent Resolution No. 125, and to the principle of segregation of the races, to define violations thereof, and to provide penalties for the violation of the provisions of this act.

Be it enacted by the Legislature of the State of Mississippi:

Section 1. That the entire executive branch of the government of the State of Mississippi, and of its subdivisions, and all persons responsible thereto, including the governor, the lieutenant governor, the heads of state departments, sheriffs, boards of supervisors, constables, mayors, boards of aldermen and other governing officials of municipalities by whatever name known, chiefs of police, policemen, highway patrolmen, all boards of county superintendents of education, and all other persons falling within the executive branch of said state and local government in the State of Mississippi, whether specifically named herein or not, as opposed and distinguished from members of the legislature and judical branches of the government of said state, be and they and each of them, in their official capacity are hereby required, and they and each of them shall give full force and effect in the performance of their official and political duties, to the Resolution of Interposition, Senate Concurrent Resolution No. 125, adopted by the Legislature of the State of Mississippi on the 29th day of February, 1956, which Resolution of Interposition was adopted by viture of and under authority of the reserved rights of the State of Mississippi, as guaranteed by the Tenth Amendment to the Constitution of the United States; and all of said members of the executive branch be and they are hereby directed to comply fully with the Constitution of the State of Mississippi, the Statutes of the State of Mississippi, and said Resolution of Interposition, and are further directed and required to prohibit, by any lawful, peaceful and constitutional means, the implementation of or the compliance with the Integration Decisions of the United States Supreme Court of May 17, 1954 (347 U.S. 483, 74 S. Ct. 686, 98 L. ed. 873) and of May 31, 1955 (349 U.S. 294, 75 S. Ct. 753, 99 L. ed. 1083), and to prohibit by any lawful, peaceful, and consitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government, any person employed by the federal government, any commission, board or agency of the federal government, or any subdivision of the federal government, and to prohibit, by any lawful, peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission