segregation which, in our judgment, characterizes the career of the nominee, as an educator in Virginia, finds succinct symbolism in his shrug-of-the-shoulder attitude on the issue of membership in segregated country clubs. How can a man who has never raised his voice to such distasteful segregationist practices claim to be philosophically sensitive or at all attuned to the vital issues of particular import to blacks on which he will have to exercise considered judgment as a member of the Supreme Court?

The importance of this issue becomes readily apparent when one realizes that a member of this illustrious body, Senator Edward Brooke, and if, in my judgment unfortunately, if Mr. Powell is confirmed, a fellow member of the Supreme Court, Justice Thurgood Marshall, would be precluded from joining him as a guest at a number of the clubs in which he holds membership.

I only mention for purposes of inviting discussion the fact that is dealt with in some detail, the fact that the law firm of the nominee which reputedly has in its employ over a hundred attorneys, has yet to face the question of equal employment for black attorneys as well as whites in that office.

We would conclude, if it pleases the chairman and members of this committee, that the life style, his view of government as evidenced by Mr. Powell's own activities on the boards of education, his close association with a variety of corporate giants, his public conduct, his membership in the largest all-white law firm in Richmond, his support of segregated social clubs, and his defense of the status quo, are inconsistent with the kind of jurist that we would hope you would see, as we do, is desperately needed for the court in the 1970's and in the 1980's. These considerations take on more weight when one considers the tremendous problems which our country will be facing during those decades.

I might close by raising a different kind of troubling question because we now have had some indication from the questioning that has gone on, and I have attempted to follow it as closely as I could, that the nominee has attempted to make some distinction, to our surprise, about his position in connection with the Gray Commission and the pupil placement schemes that allowed parents, white parents, to take their children out of the public school systems wherever there was an opportunity or a chance that there might be an integrated school system and send them to private schools at the expense of the State. On that note, I would conclude my remarks and with the kind indulgence of the Chair, ask if my counsel be permitted an observation in connection with this statement on the nomination.

(Mr. Conyer's prepared statement follows.)

TESTIMONY BEFORE THE SENATE JUDICIARY SUBCOMMITTEE CONSIDERING THE NOMINATION OF LEWIS F. POWELL TO THE SUPREME COURT OF JUSTICE PRESENTED BY THE HON. JOHN CONYERS, JR. MEMBER OF CONGRESS ON BEHALF OF HIMSELF AND MEMBERS OF THE CONGRESSIONAL BLACK CAUCUS

Mr. Chairman and distinguished members of the subcommittee, I appreciate the opportunity to testify before you on a matter of such great importance as the nomination of Lewis F. Powell as an Associate Justice of the Supreme Court.

In considering Mr. Powell or any other nominee to the Court, no one would deny the Presidential prerogative of examining a potential candidate's philosophy before placing his name before the Senate for confirmation. Nor is there any requirement of the type of philosophy a nominee should espouse. But it also follows

that there is nothing to preclude the Senate from laying bare that nominee's predilections, but indeed it has a responsibility to do so.

Many of the founding fathers feared that nominal "advice and consent" of the Senate on nominations to judgeships would create a dependency of the judiciary on the executive. It was their intent to make the judiciary independent by insisting on joint action of the legislative and executive branches of each nomination. Consequently, as Charles L. Black, Professor of Law at Yale University, has pointed out, such inquiry is consistent with the Senate's constitutional duty in advising on presidential nominations:

a Senator, voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee's views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court, and that, on the other hand, no Senator is obligated simply to follow the President's lead in this regard, or can rightly discharge his own duty by doing so. Competency as a legal technician is not sufficient cause for appointment to the Supreme Court. Since judges by definition must sit in judgment, exercising what Oliver Wendell Holmes called the "sovereign prerogative of choice," they must bring more to their task than a highly specialized technocracy. What a judge brings to bear upon his decision is the weight of his experience and the breadth of his vision, as well as his legal expertise. In the words of Felix Frankfurter, a justice ought to display both "logical unfolding" and "sociological wisdom." Or, as Henry Steele Commager put it: "Great questions of constitutional law are great not because they embody issues of high policy, of public good, of morality." Similarly, great judicial decisions are great not because they are brilliant formulations of law alone, but because they embody highmindedness, compassion for the public good, and insight into the moral implications of those decisions.

I. POWELL'S RECORD ON THE RICHMOND SCHOOL BOARD

For the past several days, the press and Lewis Powell's supporters have been treating us to a view of Mr. Powell which would have us believe that he was the champion of the successful, gradual integration of the Richmond public schools. As Time Magazine put it, Mr. Powell, as Chairman of the Richmond School Board, presided over the "successful, disturbance-free integration of the city's schools in 1959."

While it is true Mr. Powell sat on the School Board of the City of Richmond from 1950 to 1961, serving as its chairman during the last eight years of that period, something less than successful integration took place. The opinion of Circuit Judge Boreman, not noted for his liberal views, in Bradley v. School Board of the City of Richmond, Virginia clearly documents the fact that in Richmond, only a matter of months after Mr. Powell had left the city School Board, "the system of dual attendance areas which has operated over the years to maintain public schools on a racially segregated basis has been permitted to continue." [317 F. 2d 429 (1963) at 436.] What the very words of the United States Court of Appeals, Fourth Circuit, indicate beyond a shadow of a doubt is that Lewis Powell's eight-year reign as Chairman of the Richmond School Board created and maintained a patently segregated school system, characterized by grossly overcrowded Black public schools, white schools not filled to normal capacity, and the school board's effective perpetuation of a discriminatory feeder or assignment system whereby Black children were hopelessly trapped in inadequate, segregated schools.

The entire text of the Bradley opinion is submitted for inclusion into the record of these proceedings, so that it may be carefully scrutinized by this committee and members of the Senate in order that a more accurate view may be gained of the conditions that existed under the Powell administration.

Under his guidance, the Richmond School Board maintained a "discriminatory 'feeder' system, whereby pupils assigned initially to Negro schools were routinely promoted to Negro schools." To transfer to white schools, they had to "meet criteria to which white students of (the) same scholastic aptitude (were) not subjected." [317 F. 2d, at 430.] The Court found that, including the years when Lewis Powell was the leading policy-maker on the Richmond School Board, the infant plaintiffs in the Bradley case were "able to escape from the 'feeder' system only after the District Court made possible their release by ordering transfers." [317 F. 2d, at 436.]

Listen to the words of Judge Boreman, as he describes the state of the Richmond public school system which Mr. Lewis Powell and his supporters so proudly point to as a prime example of his "sensitivity" to the needs of Black people:

it is clear, as found by the District Court, that Richmond has dual school attendance areas; that the City is divided into areas for white schools and is again divided into areas for Negro schools; that in many instances the area for the white school and for the Negro school is the same and the areas overlap. Initial pupil enrollments are made pursuant to the dual attendance lines. Once enrolled, the pupils are routinely reassigned to the same school until gruaduation from that school.

The deleterious effect of eight years of Lewis Powell's control over the education of the Black and white children of the city of Richmond is clearly pictured in the statistics cited by the Court:

As of April 30, 1962, a rather serious problem of overcrowding existed in the Richmond public schools. Of the 28 Negro schools, 22 were overcrowded beyond normal capacity by 1775 pupils, and the combined enrollments of 23 of the 26 white schools were 2445 less than normal capacity of those schools. [317 F. 2d, at 432-3.]

As of 1961 when Mr. Powell left the Richmond School Board only 37 Black children out of a total of more than 23,000 were attending previously all-white schools in Richmond.

A fair examination of the evidence suggests that Lewis Powell, in this instance, certainly was no respecter of the decrees of the very Court for which his nomination is now being considered. For in Brown v. Board of Education [347 U.S. 483.] and Cooper v. Aaron [358 U.S. 358], the Court had found that it was primarily the duty of the School Board to eliminate segregationist practices in the public schools. But as the Bradley opinion notes, the Richmond School Board could not even claim that a reasonable start had been made toward the elimination of racially discriminatory practices. [317 F. 2d, at 435.] "The Superintendent of Schools testified that the City School Board had not attempted to meet the problem of overcrowded schools by requesting that Negro pupils in overcrowded schools in a given area be assigned to schools with white pupils." [317 F. 2d, at 435.] Rather than admitting that it had failed, the Richmond School Board was blaming the "Pupil Placement Board" and others for what was clearly, as the Court decreed in Bradley, its own miserable dereliction of duty. Mr. Powell, in a letter to the City Attorney, dated July 20, 1959, wrote that "The entire assignment perrogative is presently vested in the State Pupil Placement Board, and although the law creating this Board may be shaky, it has still not been invalid. In any event, it is our basic defense at the present time." Here, Mr. Powell is clearly letting a weak governmental agency take the blame for what in fact were his own segregationist policies where pupil assignment was concerned.

Numerous other cases which deal with the conditions of the Richmond schools during the era of Mr. Powell's chairmanship document the horrendous conditions which he helped to perpetuate and institutionalize. In Warden v. The School Board of Richmond, a special meeting of the School Board of Richmond on September 15, 1958 is shown to have recommended that an all-white public school be converted to an all-black school in order to perpetuate segregation [Lorna Renee Warden et al. v. The School Board of the City of Richmond, Virginia, et al.]. Obviously Mr. Powell's sanction of the maintenance of a dual system of attendance areas based on race offended the constitutional rights of the black school children who were entrapped by Powell's policy decisions. From the foregoing evidence, it does not appear that Mr. Powell was a neutral bystander during these critical years of Richmond's history. In fact, the record reveals that Mr. Powell participated in the extensive scheme to destroy the constitutional rights that he had sworn to protect.

When Lewis Powell resigned from the Richmond School Board in order to take his place on the Virginia State Board of Education, an editorial in the March 3, 1961 edition of the Richmond Times-Dispatch praised him for the fact that "the two new white high schools (were) planned and built during his chairmanship.' (Emphasis added.) There were those in Richmond who had good cause to be justly proud of the masterful way in which Mr. Powell had perpetuated the antiquated notions of white supremacy through a clever institutionalization of school segregation.

II. POWELL'S RECORD ON THE VIRGINIA STATE BOARD OF EDUCATION The defenders of Lewis Powell's record in the field of education proudly point to his support of the "Gray Proposals" in the 1950's as proof-positive of his

"courage" in the face of those who were advocating the stiffer line of "Massive Resistance" vis-a-vis the Brown decision. His early support of these proposals, it can be documented, was translated into his later actions as a member of the State School Board, which, I shall show, also served to foster substantive segregation in the public schools-this time on a state-wide scale.

On August 30, 1954, the Governor of Virginia appointed a Commission on Public Education (known as the "Gray Commission") to examine the implications of the Supreme Court's Brown v. Board of Education decision of May 17, 1954 for the school segregation issue in the State of Virginia.

The Gray Commission made at least three separate reports to the Governor-on January 19, 1955, June 10, 1955, and November 11, 1955. In summary, these 'Gray Proposals" called for legislation which would provide "educational opportunities for children whose parents will not send them to integrated schools." [Race Relations Law Reporter, Vol. 1., No. 1., 1956, p. 242]:

To meet the problem thus created by the Supreme Court, the Commission proposes a plan of assignment which will permit local school boards to assign their pupils in such manner as will best serve the welfare of their communities and protect and foster the public schools under their jurisdiction. The Commission further proposes legislation to provide that no child be required to attend a school wherein both white and colored children are taught and that the parents of those children who object to integrated schools, or who live in communities wherein no public schools are operated, be given tuition grants for educational purposes. (Emphasis added. Ibid.)

In order to implement the tuition grant strategy, the Gray Commission called for the amendment of Section 141 of the Virginia Constitution-which had formerly prohibited public funds from being appropriated for tuition payments of students who attended private schools-so that ""enforced integration (could be) avoided".

I submit the entire text of the "Gray Proposals" into the record of these proceedings, so that all may view its other recommendations, which include the following:

1. That no child be required to attend an integrated school.

2. That localities should be granted State funds upon certifying that such funds would be expended for tuition grants (to send, in practice, white children to segregated, all-white private institutions).

3. That the State Board of Education be empowered to liberalize certain conditions in jthe distribution of State funds (so that, in practice, tuition grants, transportation costs, institutional fees, and other expenses involved in supporting the multitudinous new white private schools could be met). Thus was the idea of using tuition grants as a means of circumventing the intent and spirit of the Brown decision first expressed. The Gray Proposals subsequently became the policy of the State of Virginia and its Board of Education. White parents who refused to send their children to integrated public schools but who could not afford to carry the entire financial burden of sending them to segregated private schools were soon subsidized by publically-funded tuition grants, or "pupil scholarships" as they came to be called.

That Lewis Powell was a support of the tuition grant strategy there is little doubt. The actual minutes of the Virginia State Board of Education show that Powell was present at numerous meetings between 1962 and 1968 at which the regulations governing the payment of tuition grants were approved, the actual appropriations of funds for these grants were made, and annual reports summarizing the total outlay of State and local monies for the "pupil scholarships were given." The total annual outlay in Virginia for these tuition grants was enormous. During the 1962 to 1963 school year, for example, a total of $2,252,995.07 paid from State funds and local funds advanced by the State for the localities was paid out in the form of tuition grants of various forms (Minutes of the Virginia State Board of Education, Vol. XXXIV, p. 84, August 22-24, 1963).

The minutes of the State Board's special meeting of July 1, 1964 clearly indicate that Lewis Powell was present when, by a unanimous vote, a resolution was passed which facilitated the filing of tuition grant applications by Prince Edward County parents. This July 1, 1964 vote, which clearly documents Lewis Powell's favorable stance towards the tuition grant strategy in Prince Edward County, Virginia, is a particularly crucial one. For in the case of Prince Edward County, all public schools were closed for five full years, from 1959 to 1964. Lewis Powell was on the State Board of Education for a full three of those five years. As the text of the Fourth Court of Appeals indicates, "the county made no provision

whatever for the education of Negro children; white children attended segregated foundation schools financed largely by state and county tuition grants to the parents." [Griffin v. Board of Supervisors of Prince Edward County, 339 F. 2d 488]. For five years, only white children attending private schools subsidized by publically funded tuition grants received an education in Prince Edward County. Foundation schools, for white students only, thrived and were supported almost entirely by public funds in the form of tuition grants. They were staffed with the same white teachers as formerly taught in public schools. Despite such findings as those of the Court of Appeals in Griffin that such practices were constitutionally impermissible, that the payment of tuition grants to parents desiring to send their children to such schools was enjoined so long as those schools remained segregated, and that the entire tuition grant practice constituted discrimination on racial grounds [339 F. 2d, 486], there has been no indication that Mr. Lewis Powell individually or the State Board of Education collectively ever opposed the perpetuation of this practice.

On July 1, 1964 the minutes of the State Board of Education show that Lewis Powell voted for a resolution authorizing retroactive reimbursement to Prince Edward parents who had paid tuition for their children.s attendance at private schools during the 1963-4 school year. There could be no clearer or more candid declaration of Lewis Powell's intentions with regard to the school segregation issue than his support of the unanimous vote on that day. A random samping of the entire range of the Virginia State School Board minutes from 1962 to 1968 reveals that on at least eight occasions, Lewis Powell was present at meetings at which specific tuition grants were made, not only in Prince Edward County, but all over the State of Virginia. A Survey of the minutes also has produced proof of at least three instances in which Mr. Powell was present while the "Regulations of the State Board Governing Pupil Scholarships" (tuition grants) were adopted. Also of prime importance in evaluating Mr. Powell's behavior on the Virginia State Board of Education is the lack of information that he did anything but acquiesce in the face of the State Board's routine accreditation of segregated, all-white, private schools. For example, at a meeting of the State Board on March 26, 1964, with Powell recorded as present, a list of 65 private secondary schools was approved and accredited. These private, all-white, segregated schools included some of the same ones-Huguenot Academy, Surry County Academy, and Prince Edward Academy for which the U.S. District Court for the Eastern District of Virginia found that publically-funded tuition grants were the main support. The minutes of these meetings fail to indicate that Mr. Powell voted against the accreditation of such schools, despite the District Court's decree in Griffin that the further payment of the grants for use in those schools was suspended so long as they maintained segregation. Notwithstanding the Federal District Court's admonition that "the State cannot ignore any plain misuse to which a grant has or is intended to be put," [239 F. Supp at 563], the State Board of Education continued to process and approve applications for tuition grants without making any investigation to determine whether the schools were embodying racially discriminatory policies. Looking at the record, it is clear that Mr. Powell was in fact the "champion" of segregation rather than champion of integration as has been suggested.

The question can legitimately be asked-what was it that Lewis Powell was trying to preserve as Chairman of the Richmond and Virginia public schools? Was it merely, as Powell maintained in yesterday's testimony, the preservation of the public school system per se that he was unflinchingly interested in? I cannot condone the simplistic acceptance of Mr. Powell's literal word in this matter. For what was the public school system of Richmond in 1958 or even in 1961 but a microcosm of white supremacy-all white, under-attended, well-equipped schools vis-a-vis over-crowded, dingy, all-black schools. Cannot Mr. Powell's "saintly” crusade for the presentation of the Virginia-style of "equal" public education be viewed as an inherent desire on his part to preserve a system which to so fine a degree sought to further institutionalize the Virginia schools' own peculiar brand of racism? Are not his lofty pleas for the maintenance of public education at any cost often refuted by a record which finds Mr. Powell rejecting the obviously vulnerable positions in favor of more sophisticated schemes which have effectively preserved segregation.

III. POWELL'S DIRECTORSHIP OF CORPORATIONS IMPLICATED IN RACIAL

DISCRIMINATION

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race. Powell is a member of the Board of Directors of 11 corporations. (His firm also represents many of these corporations.)