Civil rights remains the unfinished business of America. Yet progress in the nation’s historic march toward equality has slowed over the first two years of the Bush administration. This report catalogues the ways in which the administration has reversed longstanding civil rights policies and has impeded civil rights progress. Over the last fifty years, there has been a bipartisan national consensus on the need to remedy past and present discrimination through the establishment of strong federal protections. But today, the national bipartisan consensus in favor of a federal role in protecting fundamental civil rights is beginning to fray.
President Bush and many of his appointees and congressional allies are using the rhetoric of the so-called “states’ rights” movement to undermine Congress’ ability to promote progress on civil rights issues. These right-wing policies and constitutional theories undermine the foundation on which federal civil rights protections stand. If Congress lacks the authority to remedy discrimination, if states cannot be sued in federal court when they discriminate, and if federal agencies do not vigorously enforce the landmark laws of the 1960s, then civil rights protections lack the federal guarantee promised in the 14th and 15th Amendments.
The bipartisan civil rights consensus also has unraveled in Congress. There are a number of long-pending civil rights measures that represent a natural progression from the landmark laws of the 1960s: the Employment Non-Discrimination Act would extend workplace anti-bias protections to gays and lesbians; the End Racial Profiling Act would provide remedies for discriminatory policing; the Local Law Enforcement Enhancement Act would bolster federal authority to prosecute hate crimes. While no movement is afoot to repeal civil rights laws already on the books, President Bush and his congressional allies have refused to support these next-generation protections.
Meanwhile, the country finds itself in a war against global terrorism. The government’s response to that assault itself challenges American values, including the value of equal rights.
The possibility of another terrorist attack and ongoing hostilities with Iraq has combined to shift the public’s attention away from domestic matters, including civil rights enforcement. During this time, the Bush administration has made far-reaching but low-visibility civil rights policy decisions through regulation, litigation, and budgetary activity. In the aggregate, these policy decisions illustrate a pattern of hostility toward core civil rights values and signal a diminished commitment to the ideal of non-discrimination.
Chapter One of the Report details regulatory threats to civil rights. The current administration has been especially adept at quietly wielding its regulatory powers to achieve far-reaching policy objectives. In the area of civil rights, regulation has been used to undermine bedrock protections against discrimination. This chapter explores, for example:
- New regulations that weaken the civil rights of American workers;
- Threats to education equity for women and girls through new Title IX policies and other initiatives;
- The rejection of regulatory changes to address racial disparities in federal sentencing rules; and
- A number of anti-terrorism measures that adversely affect civil rights.
Chapter Two of the Report analyzes the Bush administration’s reversal of civil rights policies through litigation. The Ashcroft Justice Department has abandoned long-held positions in key cases such as:
The University of Michigan affirmative action cases, in which the Bush administration filed amicus briefs in the Supreme Court that declare the university’s policies unconstitutional;
The New York City custodian case in which the Department of Justice — after over 10 years of support for the plaintiffs — unexpectedly abandoned the claims of the female and minority custodians and refused to defend the previously agreed to settlement against a challenge from White male custodians;
The Pittsburgh Police consent decree, in which the Department of Justice abruptly joined with the defendants in asking the court to lift the consent decree, despite strong evidence of continuing problems.
Chapter Three of the Report describes how the current administration is undercutting the anti-discrimination agenda through its budgetary decisions. Key civil rights initiatives have been underfunded over the past year, and budgetary constraints are likely to worsen. While enforcement of existing civil rights laws is one important funding priority, more funding is also needed for social programs that advance the overarching civil rights goal of equal opportunity. Federal programs in the fields of education, housing, and health care are targeted at the low-income communities in which minorities disproportionately live. But the Bush tax cuts and multi-billion dollar increases for the Pentagon have squeezed resources for these domestic priorities.
The Report offers a series of recommendations to combat these trends:
- The Bush administration should demonstrate renewed commitment to the fifty year-old bipartisan consensus on civil rights progress.
- Congress should fulfill its constitutional role of overseeing the administration’s civil rights activities and should consider how it can address regulatory actions inconsistent with the purpose of the 1960s’ civil rights laws.
- Congress should provide adequate funding for important civil rights programs;
- Congress should consider seriously the need for new laws protecting gays and lesbians against employment discrimination, strengthening federal hate crime law, and ending the discredited practice of racial profiling;
- The civil rights community must remain vigilant in monitoring the state of civil rights.
Individuals and organizations concerned about civil rights must be ever vigilant against backsliding in the nation’s civil rights policies. This Report is the first step in a long-term effort to monitor regulations, litigation positions, and funding decisions that affect the state of civil rights in America. The Bush administration’s decisions that make up its civil rights policy will remain below the radar screen unless advocates work to bring this pattern of hostility to civil rights progress to the attention of the public.
For defenders of civil rights, this is a perilous time. Leading advocates in the new states’ rights movement now control or dominate all three branches of the federal government. They are prepared to move forward toward their extremist goals, even though those goals cannot be reconciled with the bipartisan civil rights consensus of the past fifty years.