Restoring the Conscience of the Nation: The 80s: Dismantling the Commission

Restoring the Conscience of a Nation: A Report on the U.S. Commission on Civil Rights. March 2009.

The 80s: Dismantling the Commission

Several times during the 1970s, the commission issued statements and reports in support of affirmative action as a means to remedy past discrimination. And in 1981, in a report initiated before the 1980 election, the agency reiterated the legal underpinnings for affirmative action and its effectiveness in addressing the discrimination experienced by racial and ethnic minorities and women. The report noted that all three branches of government "had advanced the concept and practice of affirmative action" in the last decade.⁷² The report also pointed out that the newly-elected Reagan administration was re-examining the federal government’s support for, and reliance on, affirmative action, and that the Justice Department had decided not to follow the pattern of previous administrations (both Republican and Democratic) that had negotiated specific goals and timetables in settling complaints of illegal discrimination.⁷³ Other commission reports explicitly criticized the decline of civil rights enforcement budgets at government agencies and the lack of minority appointments to high-level administration positions.⁷⁴

Throughout the 1970s, the commission also advocated adoption of the proposed Equal Rights Amendment (ERA) - another measure that was becoming mired in controversy as the ratification period drew to a close in 1978. Chairman Flemming and Commissioner Freeman testified in favor of extending the ratification period for the ERA in 1978. The commission reiterated its support for the amendment in 1981.⁷⁵

In November 1981, the commission took the administration to task yet again in a report on school desegregation. The report, With All Deliberate Speed: 1954-??, expressed concern about the Justice Department’s actions in pending school desegregation cases. As just one example, the department reversed its position in a case involving a voluntary school desegregation effort in Seattle, moving from opposition to support for a local initiative that would limit school assignments and thereby undercut the school districts’ desegregation efforts.

All of these views ran counter to those of the newly-elected Reagan administration. And, as the commission’s own Dismantling the Process of Discrimination report indicated, the administration began early on to put in place civil rights policies that were in direct opposition to the policies that had enjoyed support from previous administrations, Republican and Democratic alike. Through appointments and policy shifts, the administration put its stamp on the Department of Justice and other agencies with civil rights enforcement power. In the fall of 1981, it turned its attention to the Civil Rights Commission. In November, on the same day the commission issued its school desegregation report, the White House announced that Chairman Flemming and Vice Chair Steven Horn would be replaced.⁷⁶ The new chair, Clarence Pendleton, was a conservative Black Republican who had been head of the San Diego Urban League. Mary Louise Smith, a former chairwoman of the Republican National Committee, would replace Horn as vice chair. Pendleton’s views on civil rights were similar to those of the administration; and, as chair, he had considerable influence over the commission’s activities. Nevertheless, the two appointments did not result in an overall shift in outlook at the commission. Smith often sided with the other commissioners to produce 5 to 1 votes critical of administration policy.⁷⁷

Early the following year, in February of 1982, the White House announced that Reverend Sam Hart, a Black minister from Philadelphia, would replace Jill Ruckelshaus, a moderate Republican appointed to the commission by former President Carter. Hart was far more conservative than Ruckelshaus; he opposed both the ERA and busing and had characterized homosexuality as "an abomination both to God and mankind."⁷⁸ After both Republican senators from Pennsylvania, John Heinz and Arlen Specter - neither of whom had been consulted about the nomination - expressed misgivings, Hart withdrew his name from consideration.⁷⁹

The White House then sent three new nominations to the Senate, intending to replace Commissioners Mary Frances Berry, Blandina Cardenas Ramirez, and Rabbi Murray Saltzman. However, the full Senate failed to act on the nominations before adjourning at the end of 1982 so the three sitting commissioners stayed on the job. After Congress reconvened in 1983, the administration tried again to replace Berry, Ramirez, and Saltzman, nominating Catholic University law professor Robert Destro, John Bunzel from the Hoover Institute at Stanford University, and Morris B. Abram, a lawyer from New York. In addition, the White House nominated Linda Chavez as commission staff director. Chavez, a conservative Democrat who later became a Republican, held views consistent with the administration’s opposition to affirmative action and busing to desegregate public schools. Throughout this period, the media wrote that White House officials believed "the President felt entitled to have his own appointees on the panel."⁸⁰ The New York Times reported that the recently appointed chair, Clarence Pendleton, claimed the nominations were in response to his direct appeal to the White House that "you need to appoint more conservatives over here" to put administration policies into effect.⁸¹

Many in the civil rights community and in Congress were alarmed at this unprecedented attempt to change the commission from an independent agency into an instrument of administration policy and sought alternatives. The House of Representatives approved a bill that would have allowed removal of commissioners only for neglect of duty or malfeasance in office. The bill never became law, however, and over time, other legislative proposals emerged. But before Congress could act, President Reagan fired Commissioners Berry, Ramirez, and Saltzman. Berry and Ramirez sued, and, within a few weeks, a federal judge stopped the president from removing the two commissioners from office. In upholding Berry’s and Ramirez’s right to remain on the commission, the court stated:

[T]here is adequate evidence in the legislative record to support plaintiffs’ contention that Congress intended the duties of the Commission to be discharged free from any control or coercive influence by the President or the Congress. When performing its fact-finding, investigatory and monitoring functions, for example, the Commission is often required to criticize the policies of the Executive that are contrary to existing civil rights legislation.⁸²

As the controversy over President Reagan’s nominations unfolded, and with the commission’s authorization once again set to expire, Congress debated the future of the agency. Fearing for the commission’s autonomy, members of the Senate recommended taking the agency out of the hands of the administration and the executive branch altogether and creating a new entity whose members would be appointed by Congress. The proposal was introduced by Sens. Arlen Specter, R. Pa., and Joseph Biden, D. Del. Biden, an opponent of busing, was troubled by the White House’s attempt to remake the commission in its own image, which he likened to President Roosevelt’s 1935 attempt to pack the Supreme Court.⁸³ The House of Representatives went even further, voting not to continue funding the commission unless its independence could be assured.⁸⁴

Finally, Sen. Robert Dole, R. Kan., brokered an agreement that would assure the commission’s survival. The commission would be reconstituted; the number of commissioners would be increased from six to eight, with four appointed by the President, two by the House of Representatives and two by the Senate. Commissioners would serve staggered terms of six years and could only be removed for cause. There would be no Senate confirmation process. The chair, vice chair, and staff director of the commission would be chosen by the President with the concurrence of a majority of the commissioners.

News accounts of the compromise reported that there was an unwritten agreement regarding appointments to the commission. The President would reappoint Mary Louise Smith and Clarence Pendleton and would appoint two new members as well. It was widely assumed they would be Abram and Bunzel. The House of Representatives would recommend reappointment of Jill Ruckelshaus. The other three congressional appointments would be Berry, Ramirez, and a Republican with a strong civil rights record. Details of the agreement were widely reported in the media in mid-November 1983.

However, the scenario that actually unfolded was quite different.⁸⁵ While Berry and Ramirez remained on the commission as congressional appointees, the White House denied the existence of an agreement and did not reappoint Smith. Moreover, House Minority Leader Robert Michel recommended Catholic University Law Professor Robert Destro rather than Jill Ruckelshaus. Amidst expressions of shock and anger from civil rights leaders and congressional participants in the negotiations, White House officials, when announcing the new appointments, made it clear they intended to shape the commission in a conservative vein more in line with the president’s views.⁸⁶ With respect to Commissioner Smith in particular, it was reported that Reagan felt no obligation to her "because... she voted in favor of busing and affirmative action and joined other commissioners in criticizing the civil rights policies of the Reagan Administration."⁸⁷ Later that month, the new staff director said that the policies of the old commission would be reexamined, given that "There is [now] a majority of five for the President’s position" on school desegregation and affirmative action.⁸⁸ Many members of Congress and civil rights leaders who had supported the legislative compromise felt they had been double-crossed, but there was nothing they could do.

While the basic duties of the reconstituted commission remained the same under the 1983 legislation, the impact of the structural changes was significant. That impact manifested itself early on: the reconstituted commission wasted no time in backing away from previously adopted positions, practices, and procedures. In some cases, longstanding commission recommendations were reversed without benefit of hearings, studies, or reports. In January 1984, at its first meeting, the reconstituted commission reversed its predecessor’s previous support for affirmative action without the benefit of a single hearing or study, adopting a position consistent with that of the administration.⁸⁹ The new staff director said in press interviews that she wanted the commission to establish the goal of a colorblind society and not support the race-based policies of the old commission. She described herself in a debate as speaking "only for myself and the Reagan Administration."⁹⁰

Ongoing projects were canceled and new projects were proposed, reflecting an approach to civil rights that closely paralleled the administration’s. The new commission majority canceled a study of the impact of cutbacks in federal student financial aid on minorities in predominantly Black and Hispanic colleges, as well as a study on the employment of women and minorities in high-tech industries. New studies were recommended by the staff director, including one that that would investigate the link between "a general decline in academic standards" and the "advent of affirmative action in higher education." A re-examination of the commission’s longtime support for busing was authorized, as was another study to explore whether discrimination was still an adequate explanation of inequalities in education and income.⁹¹ One media report of the initial meeting described harsh exchanges between the chairman and the commission’s minority, during which "Pendleton seemed to revel in the majority’s power, remarking that his opponents ‘forgot who won the fight.’"⁹²

The new commission also took steps to assert more control over the SACs. In late March 1984, the commission voted to tightly control the release of reports from the committees. Commissioner Berry, who opposed the measure, argued that the more conservative commission was "trying to muzzle the state organizations that disagreed with it."⁹³ By the following year, the SACs had been completely reorganized. The reorganization process - begun during Linda Chavez’s tenure as staff director - resulted in a closer alignment between the SACs’ viewpoint and that of the new, more conservative majority of the commission. Acting Staff Director Max Green, who continued implementing the reorganization plan after Chavez resigned in 1985, acknowledged in a press interview that the SACs "now have more people who agree with the general thrust of the commission."⁹⁴ The effort to reinvent the SACs may have stemmed at least in part from a 1982 letter sent by 33 of the 51 advisory committee chairs to President Reagan during his first term, protesting his civil rights policies. In the letter, the committee chairs asserted that the president was responsible for a "dangerous deterioration in the Federal enforcement of civil rights."⁹⁵

Among other steps taken to exert administration control over the commission was a new directive from the Office of Management and Budget that required the commission to clear all reports and congressional testimony with the budget office in advance to assure "consistency with Administration policy."⁹⁶ No such clearances had been required in the past according to two previous chairs, Arthur Flemming and Father Hesburgh. In fact, in 1966, the commission had been informed by the budget office that, because of its unique nature as a bipartisan agency, it was exempt from the requirement to obtain clearance for legislative comments.⁹⁷

Equally damaging to the commission’s reputation as an even-handed investigatory agency aimed at fact finding were the controversies surrounding Clarence Pendleton, the chair. Pendleton repeatedly made headlines with statements and comments about civil rights issues that even some of his fellow conservatives on the commission found intemperate. There were also reports of questionable financial practices during Pendleton’s tenure at the San Diego Urban League.⁹⁸ The media, as well as current and former commissioners, were blunt in their assessments of both Pendleton and the commission. In April 1986, Newsweek reported that there is "no doubt that the once proud Civil Rights Commission [is] in shambles." Later that same month The Washington Post quoted former Chair Theodore Hesburgh’s view that the agency lacked leadership and integrity and ought to be dismantled. And finally, Commissioner Bunzel, a conservative Reagan appointee whose views on civil rights paralleled Pendleton’s, nevertheless called on Pendleton to resign. In Commissioner Bunzel’s view, Pendleton’s inflammatory rhetoric had diverted attention away from the work of the commission and undermined its credibility. Bunzel concluded that Pendleton’s opportunity to make a significant contribution to the work of the agency had passed.⁹⁹ However, Pendleton remained on the commission as chairman until his death in June of 1988. When Commissioner Bunzel’s six-year term expired, he asked not to be reappointed.

Concerned not only about the direction the commission was taking, but also about increasing controversies and tensions within the commission itself and about the quality and quantity of the commission’s work, Congress began to more closely monitor the commission’s activities. Various congressional committees conducted ongoing oversight hearings and initiated a series of Government Accountability Office (GAO) reports that looked into all aspects of the commission’s operations. The first GAO report, issued in 1986, raised concerns about the commission’s work product and management issues. With respect to the latter issue, the GAO found that productivity had declined: in 1982 and 1983, before the commission was restructured, it had issued nine reports in each year; in 1984 and 1985, it issued only three reports. Additional concerns came from a member of the House oversight subcommittee regarding the commission’s failure to monitor federal civil rights enforcement efforts - one of the commission’s statutory mandates. Rep. Patricia Schroeder, D. Colo., pointed out at a hearing in April 1986 that the agency had not issued a single monitoring report since it was reconstituted in 1983.¹⁰⁰

In response to the GAO report, Congress initiated a series of strong measures intended to re-focus the commission’s attention on its original statutory mission and on the issues the GAO had raised. The commission’s funding for fiscal year 1987 was substantially reduced from previous years and restrictions were placed on how some of its budget could be spent. For example, $700,000 was specifically earmarked for monitoring federal civil rights enforcement efforts. Congress’s original intent that the commissioners serve on a part-time basis was reinforced in response to the GAO finding that Chairman Pendleton had been billing the commission at a nearly full-time rate. As a result of the budget cuts, the commission closed seven of its ten regional offices and significantly reduced its staff. Congress ordered additional reductions in the commission’s FY 1988 and 1989 budgets. Despite previous calls from civil rights organizations, including the Leadership Conference on Civil Rights and the NAACP, to defund the commission, Congress was not prepared to take such a drastic step. Instead, it hoped that the funding limitations and earmarks would help to keep the commission focused on its statutory mission. The budget cuts were also an expression of congressional dissatisfaction with the commission’s lack of output, particularly in the area of monitoring and evaluating enforcement efforts.

The commission’s 1983 authorization was set to expire in November 1989. Many in Congress and in the civil rights community were reluctant to support reauthorization in the absence of some assurance that the commission’s independence could be guaranteed. With several vacancies about to occur, such assurance was in doubt.¹⁰¹ There were strong feelings in Congress and in the civil rights community that the Reagan appointees had reduced the commission to a forum for partisan bickering.¹⁰² In addition, the commission was still suffering from the effects of a series of embarrassing episodes involving Commissioner William Allen during his 14-month tenure as chair in 1988 and 1989.¹⁰³ Allen, a Reagan appointee, had been rebuked by the commission for an October 1989 speech titled "Blacks? Animals? Homosexuals? What Is a Minority?"¹⁰⁴ In addition, he had been the center of a controversy regarding "his entanglement in an adoption case involving a 14-year-old Apache girl in Arizona."¹⁰⁵

The debate over reauthorization revealed sharp differences of opinion among the various participants. Some were prepared to see the commission die. Others supported a short-term reauthorization. The administration sought a six-year extension. The civil rights community advocated a six-month extension, unwilling to support a longer life for the commission without knowing who would be nominated to fill the four vacancies that would occur at the end of the year. The debate continued as the agency’s expiration date approached. Once again, at the 11th hour, the commission got a reprieve.

Next Section: The 90s: The Commission Devolves

72. U.S. Commission on Civil Rights, Affirmative Action in the 1980’s: Dismantling the Process of Discrimination (1981), at 4.

73. Id.

74. U.S. Commission on Civil Rights, Civil Rights: A National, Not a Special Interest (1981); and U.S. Commission on Civil Rights, Equal Opportunity in Presidential Appointments (1981).

75. However, by the early 1980s the ratification effort had stalled three states short of the necessary three-quarters. No further extensions of the ratification period were enacted.

76. Howell Raines, "Reagan Dismisses Civil Rights Chief, Busing Supporter,"The New York Times, November 17, 1981.

77. Dan Fagin, "In Winning His Battle for Rights Commission, Did Reagan Lose the War?"The National Journal, December 17, 1983, at 2622.

78. Rise and Fall, note 7 above, at 477.

79. Id.

80. Francis X. Clines, "Reagan Chooses 3 For Rights Panel,"The New York Times, May 26, 1983.

81. Id.

82. Berry v. Reagan, 32 Empl. Prac. Dec. (CCH) P33,898 (1983).

83. Fagin, note 77 above .

84. Id.

85. President Reagan’s diary entry in mid-November suggests that he had no intention of agreeing to the compromise on appointments: "Clarence Pendleton Chair of Civil Rts. Commission came in re the Congress’s so called compromise to keep me from making new appointments. The boys are playing games but I think I can snooker them." Ronald Reagan, The Reagan Diaries, (Douglas Brinkley, ed., Harper Collins, 2007) at 197.

86. Robert Pear, "Rift Grows Wider Over Rights Panel,"The New York Times, December 9, 1983).

87. Fagin, note 77 above.

88. Robert Pear, "2 Appointees Fill U.S. Rights Panel,"The New York Times, December 17, 1983.

89. Robert Pear, "Rights Commission Abandons Backing of Racial Quotas,"The New York Times, January 18, 1984.

90. Leadership Conference Education Fund, "Special Report No. 1: U.S. Commission on Civil Rights," Civil Rights Monitor April 1986, at 11.

91. See, e.g. Robert Pear, "New Director of U.S. Rights Panel Calls For Major Change of Course,"The New York Times, January 6, 1984; and Robert Pear, "Rights Commission Abandons Backing Of Racial Quotas,"The New York Times, January 18, 1984.

92. Mark Starr and Ann McDaniel, "Civil Rights, Reagan Style," Newsweek, January 30, 1984, at 18.

93. "Civil Rights Group Imposes Tight Control on State Units,"The New York Times, March 29, 1984.

94. Reginald Stuart, "State Rights Panels Are Being Headed by More White Men,"The New York Times, May 26, 1985; Telephone interview with Bert Silver, former Director of Regional Programs (July 26, 2007).

95. Robert Pear, "Reagan is Rebuked by 33 State Heads of Rights Panels,"The New York Times, September 12, 1982.

96. Robert Pear, "Reagan Power To Change Rights Panel Questioned,"The New York Times, June 1, 1983; Hesburgh, note 27 above, at 455.

97. Pear, note 96 above; Hesburgh, note 27 above.

98. LCEF, note 90 above, at 8.

99. Id.

100. U.S. Commission on Civil Rights/GAO Audit, Hearings before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, 99th Cong., 2nd Sess. (1986) at 277.

101. LCCR, note 8 above, at 96.

102. Citizens Commission on Civil Rights, " The U.S. Civil Rights Commission During the Bush Administration," in New Opportunities: Civil Rights at a Crossroads (1993) at 193 (hereinafter New Opportunities).

103. Although Allen resigned as chair in the fall of 1989, he remained on the commission until December 1992. He was originally appointed to the commission by President Reagan in 1987.

104. New Opportunities, note 102 above, at 193.

105. Julie Johnson, "White House Seeking A Shift On Rights Panel,"The New York Times, April 13, 1989.

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