A third arena in which the current administration is undercutting the anti-discrimination agenda is the federal budget. Key civil rights initiatives and enforcement efforts have been underfunded over the past year, and budgetary constraints are likely to worsen.
Funding is an especially important indicator of an administration’s commitment to civil rights. While there are major civil rights proposals still awaiting congressional action, including the Employment Non-Discrimination Act, the End Racial Profiling Act, and the Local Law Enforcement Enhancement Act, many federal civil rights protections have been on the books for decades. The question is whether they will be enforced.
Enforcement actions by federal agencies are not the only way to vindicate civil rights. Historically, agency enforcement has been only a corollary to private lawsuits. But private civil rights litigation has become more difficult in recent years due to recent Supreme Court decisions such as Alexander v. Sandoval44, which undermined the right of private plaintiffs to bring actions under Title VI’s disparate impact regulations, and Buckhannon Board & Care Home, Inc. v. West Virginia45, which has harmed the ability of plaintiffs’ lawyers to recover attorneys’ fees.
Most ominously, the Rehnquist Court has handed down several decisions in recent years shielding states from private lawsuits under a strained reading of the 11th Amendment to the U.S. Constitution. In Kimel v. Florida Board of Regents46 and University of Alabama v. Garrett,47 the Court held that the Constitution immunizes states from private lawsuits seeking damages under, respectively, the Age Discrimination in Employment Act and the Americans with Disabilities Act. Unlike Sandoval and Buckhannon, which involve statutory interpretation and may someday be overturned by Congress, Kimel and Garrett are constitutional decisions that cannot directly be addressed by amending the underlying statutes. There may be other means available to Congress to bolster enforcement of these laws, but for now, federal agency enforcement is the only clear-cut legal avenue for victims of state-sponsored discrimination.
The Bush administration is therefore undermining civil rights laws from two directions. The President’s judicial nominees include conservative law professors and lawyers who share a “states’ rights” perspective on constitutional law and are likely to continue the legal trends that limit the rights of private plaintiffs to sue states for violations of federal civil rights statutes. At the same time, the President’s budget fails to provide increased resources for federal civil rights agencies to ensure compliance with anti-discrimination mandates. The combined effect of these policies is diminishing civil rights enforcement.
Enforcement of existing civil rights laws is one important funding priority, but 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. Civil rights are illusory in a society without quality public education, decent housing, and affordable health care for all citizens.
In his first two years in office, President Bush has pushed though Congress tax cuts and other economic policies that deplete resources available to domestic discretionary programs, including civil rights enforcement. Among the civil rights programs that have received inadequate funding are programs to remedy the so-called “digital divide,” the well-documented gap between communities with access to computers and high-technology training, and communities without those advantages.
There is a danger that Americans in rural areas and inner cities will be left behind in the New Economy unless special efforts are made to ensure access to new technologies across income brackets and in all geographic regions. To respond to this “digital divide,” Congress authorized and began funding a series of targeted programs to enhance skills development, teacher training, and other mechanisms to address inequality between the technological haves and have-nots.
The Bush administration has resisted the concept of a digital divide and has actively — but so far unsuccessfully — sought to eliminate programs to remedy it. The Clinton Commerce Department had published a series of reports about the digital divide entitled Falling Through the Net. The Bush Commerce Department renamed the series A Nation Online and painted an overly rosy picture of access to technology. Consistent with this approach, the current administration has proposed to eliminate funding for a number of the remedial technology programs, including the Technology Opportunities Program and the Community Technology Centers initiative, both innovative, community-based partnerships. Congress has salvaged these programs up until now, but their prospects are uncertain.
A third crucial program, Preparing Tomorrow’s Teachers to Use Technology (PT3), supports the development of tools and incentives to help educators adapt to technology-infused teaching. School districts are investing billions of dollars to equip schools with computers and modern communication networks, but only a third of all teachers feel prepared to use computers and the Internet in their teaching. The PT3 program was funded at $125 million in the last year of the previous administration, but the current President has consistently sought to defund it.
Finally, the President has tried to eliminate the Start Schools program, a $27 million initiative promoting the development of telecommunications services and audiovisual equipment in under-funded schools. Senator Kennedy, author of the bill establishing the Start Schools program, has consistently fought for continued funding.
The campaign to bridge the digital divide enjoys bipartisan congressional support as well as strong support from the business community, which recognizes the long-term consequences of this disparity for the American workforce. The administration’s unwillingness to accept this consensus parallels its skepticism of the more general bipartisan civil rights consensus.