Senator BROOKE. Mr. Rilling, could you tell us what are you doing now? You were formerly Director of the Civil Rights Office in HEW. What are you doing at the present time?

Mr. RILLING. I am doing consultant work and some writing, working out of an office in my own home.

Senator BROOKE. Did you resign from HEW?

Mr. RILLING. I resigned from HEW in March, yes.
Senator BROOKE. March of this year?

Mr. RILLING. March, 1970.

ADMINISTRATION CREDIBILITY

Senator BROOKE. If it is not too personal, why did you resign? Mr. RILLING. I resigned because I felt my position had become untenable and that I could not really be effective in the work I was doing.

I felt that the lack of support, the lack of consistency of the administration, really made my position untenable. I had used up my credibility, so to speak.

In the summer of 1969, I had told school districts in the South that if they didn't keep their promises, they would lose their money. They didn't keep their promises and they didn't lose their money.

I didn't feel like I could come back to these same districts in 1970 and say, "This year they mean it."

I guess the last straw was the forcing out of his position of Leon Panetta, who I felt symbolized a degree of credibility and integrity in the program. But that was only the last straw. I really just didn't feel I could be effective any longer and that is why I left. Senator BROOKE. You resigned after Leon Panetta resigned? Mr. RILLING. Yes.

Senator BROOKE. Were you under any pressures to resign?
Mr. RILLING. I was not.

HEW-JUSTICE RELATIONSHIP-MONITORING

Senator BROOKE. You made some very strong statements. I am going to ask you several questions about some of them. Many of the questions are just why. For example, on page 1 you said, "Our information on court order districts is very incomplete because these districts have not been visited by HEW field staff." Why?

Mr. RILLING. It had been the theory of the administration, and I must emphasize this was true under the Democratic as well as under the Republican administration, that HEW is responsible for districts desegregating under Title VI and the Department of Justice is responsible for districts desegregating under court order, and HEW had no business in court order districts because these are the purview of the Department of Justice.

The only thing wrong with this theory is that HEW has field staff to investigate and Justice does not have such field staff.

The result has been that the Title VI districts are visited in the fall. We know what is going on. We see if there is slippage. The court order districts are not visited and we only learn what happens

through the press or from NEA, or if local people involved bring it to the attention of the courts.

I am not suggesting there that there is any lack of intent. I am not suggesting that the administration or the Department of Justice is intentionally permitting slippage in the performance of court orders.

I am suggesting that they have not been able to effectively audit these districts, and that HEW could and should.

I know that Mr. Panetta, when he was Director of OCR, tried throughout his tenure to get agreement of the Justice Department for OCR staff to visit court order districts and they weren't able to work it out.

I understand, however, that there has been more recent discussion and that the Department of Justice has indicated that it probably will welcome such visits next fall. This is a good step forward, if true. Senator BROOKE. Was this an HEW responsibility to audit?

Mr. RILLING. The line was that it was HEW's responsibility to audit Title VI districts. But that HEW had no authority over court order districts. These districts were under the court and Justice had the governmental responsibility in connection with those districts.

Senator BROOKE. And Justice did not have the personnel and HEW did not do the job, so the job was not done?

Mr. RILLING. That is it exactly.

Senator BROOKE. And this has been going on for how long a period of time?

Ir. RILLING. Since the beginning.

Senator BROOKE. So at no time has there been proper auditing either by Justice nor by HEW, is that correct?

Mr. RILLING. Right.

DESEGRECATION 1969-EXTENT AND HEW INFORMATION

Senator BROOKE. On page 1A

We really don't know how much desegregation was achieved during the 1969-70 school year. For the first time since 1965, HEW did not release the results of its annual school census by the end of the school year.

Why?

Mr. RILLING. Well, what I was told by HEW when I asked that question was that they are now doing a nationwide census, whereas earlier they were just doing a Southwide census, and they put the answers through computers and the results haven't come back yet.

Frankly, I find this hard to accept. These questionnaires were sent in by school districts last fall. I find it hard to believe that it would take this long to get up the results. But I believe this is the position of the Department.

Senator BROOKE. What do you think the reason is that the annual school census was not released for 1969-70?

Mr. RILLING. I think there are two possibilities. One is bureaucratic inefficiency or breakdown of computers, and we all know that these things do happen.

It is certainly possible that the reason that is given is the correct

reason.

It is also possible that the results this year, as in past years, have not quite met the announced expectations and that this may have created some hesitancy in rushing quickly into print with the results, if they are in fact ready.

Senator BROOKE. When did you first start working for HEW?

Mr. RILLING. I first started working for HEW in the spring of 1966 in the Washington Office, and I took over the Atlanta Office when it was first opened in the fall of 1967.

ADMINISTRATION POLICY-LAXITY

Senator BROOKE. Do you think that HEW has been lax in its administration and enforcement of the desegregation guidelines?

Mr. RILLING. I believe that until this administration took office, HEW was fairly vigorous in its enforcement. There were certainly problems. There have always been some special deals on the basis of political pressure, but these were the exceptions.

I think we have always been lax in our efforts, and there may be legal reasons for this as well as administrative, to protect black principals and faculty members from being pushed around so that the fears of white parents could be accommodated as much as possible.

But I think in general terms, until this administration took office, there was at least the intent and effort on the part of HEW.

I think since this administration took office there has been laxity. I think it has been a laxity of policy than of administration.

I think it may partly be a disagreement with the way these things were done under a previous administration, a desire to work out their own role, a feeling that maybe these things could be better done by Justice, a belief that the political risks of cutting off funds were rather high. I don't know.

But it is my feeling that since this administration took office there has been a substantial letup in the enforcement efforts of HEW. This is substantially why I left my position.

PAST ADMINISTRATION'S PERFORMANCE

Senator BROOKE. How do you account for the fact that you weren't getting any better results prior to this administration?

Mr. RILLING. There are several reasons. One is the skillful entrenched resistance of southern political leadership and local southern leadership, and I guess I would say that the legal and policy basis on which HEW operated between 1965 when it started and 1969 when the Republicans came in was a limited basis.

For instance, the position of the Department, the position of the Government, under title VI, was that districts could continue receiving Federal funds as long as they were moving with sufficient. dispatch towards complete desegregation.

They weren't required to be completely desegregated. In 1965 and 1966, in retrospect, I think was a grave error, but the error was not so visible at that time, when HEW permitted the freedom-of-choice approach to desegregation.

It became clearly evident by the fall of 1966 that this approach had failed and had become a means for further evasion by southern

districts. I think the approach was taken in good faith by the Government. But the approach that was taken by the administration between 1965 and 1969 was a gradual approach. It was based on some expectation of good faith movement. It was based on some expectation of progress under freedom-of-choice. It was based on a premise which is in the regulation of the Department, that as long as a district was under a court order, no matter how weak that court order may be, or how much desegregation was not occurring, as long as the district was under a court order it would receive Federal funds. Interestingly enough, that provision is not in the Department regulation applying to other recipients of Federal funds. A State department of public health may be under a court order but still could legally lose Federal funds under title VI.

But a school district which is satisfying a Federal court does not lose Federal funds no matter how poor its implementation may be.

And I think another reason is the difficulty in movement during those years, was the status of the law. The Green decision which threw out freedom-of-choice, the more recent Alexander decision are relatively new laws. Part of our capacity now to move with more speed is based on law which has developed in the last several years and was not available back in 1965–66.

I don't mean to give an impression of everything working beautifully prior to 1969 and all of a sudden everything falling to pieces. I think certainly prior to 1969 those who had this responsibility, which obviously includes myself, made mistakes, expected too much, and put faith in what we should have known, and what I think most southerners did know, would not work, namely the freedom-of-choice approach.

DESEGRATION 1969 RILLING ESTIMATES

Senator BROOKE. You said that the administration claims that 40 percent of the black children in the South were in desegregated situations during the last school year. You say this figure is almost certainly too high.

On what do you base your statement?

Mr. RILLING. I base the statement on the figures which I read here from some States where I think I have knowledge. I was still in my position after the school year opened last fall. We did get copies in Atlanta of the census reports that were sent to Washington.

The figures that I read from several southern States, Georgia, Mississippi, South Carolina, were figures which are based on our own informal tabulations in Atlanta of the individual district reports, or in some cases these are based on statements made by State departments of education which also got copies of these reports and somehow found the time to tabulate them even though HEW has not been able to.

On the basis of the figures from those States, the five States in the Southeast where I felt I had some knowledge, I think it would almost be impossible for the total percentage Southwide to be 40 per

cent.

I also have asked HEW several times on what the estimate of 40 percent was based, and I have not been able to get any answer except that the estimate was made at 40 percent before the school year opened. Now the estimate is made that 40 percent was achieved.

Senator BROOKE. You seem to me to claim that the administration is misrepresenting facts.

Mr. RILLING. I am not necessarily claiming this. I am claiming that the administration, in my opinion, is making an estimate which is in error, whether or not they may know it.

Senator BROOKE. I must assume that the administration, and I presume these statistics are gathered by HEW-are they not? Mr. RILLING. Correct.

Senator BROOKE.must be gathering this information correctly. You have figures here showing a 20-percent error, 20 percent in Mississippi, 25 percent in Georgia, 28 percent in South Carolina, and about 30 percent overall in the 11 Southern States. That is quite a discrepancy from what the administration says.

Mr. RILLING. When I have asked the people at HEW about the percentages, I have been told that the census is not yet ready. In other words, the computers and so forth have not ground out the real figures for 1969-70, and that the 40 percent is an estimated guess. Of course, it is possible, though I doubt it, for desegregation to reach like 20 percent in Mississippi and 25 percent in Georgia and be 40 percent across the 11 Southern States.

I have no knowledge what the percentage was outside the Southeast. My estimate of 30 percent is an estimate, just as I think the administration's estimate of 40 percent is an estimate.

MONITORING

Senator BROOKE. Would you say in the past, court order districts have not been visited?

Mr. RILLING. Have not been visited in the sense that HEW visits Title VI districts.

I wouldn't suggest for a moment that Justice Department attorneys don't try to keep up with what is going on in the districts where Justice has brought the action and, when they can, go into the district and get information from people there.

But the court order districts have never been visited in the way HEW does it, which is to send a team in to visit each school and to verify that the plan has been carried out, that there is no segregation, that extracurricular activities are being conducted properly.

HEW-JUSTICE COORDINATION

Senator BROOKE. Was there any coordination between HEW and Justice working as a team to bring about desegregation?

Mr. RILLING. I think coordination of the two Departments has never been too effective in this area. There has always been too much of a feeling that each Department has its own job to do and does it pretty much without close coordination with the other.

I think that this is one area where we are moving ahead. I think it probably could be said that there is better coordination today between Justice and HEW than there ever has been, because now when administration spokesmen are going from State to State in the South and meeting with school officials, as they have been doing, in what is a pretty effective approach, HEW and Justice have both been there and are saying the same thing in each other's presence.