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that federal funds should never be used to discriminate in any manner. Repeal of a regulation that ensures equal opportunity as a condition of $4 billion in federal taxpayer money is an outright attack on civil rights laws.
Threats to Educational Equity for Women and Girls
Title IX of the Education Amendments of 1972 prohibits sex discrimination in education programs that receive federal financial assistance. The law covers approximately 16,000 local school districts, 3,200 colleges and universities, 5,000 for-profit schools, state education and vocational rehabilitation agencies, and numerous libraries and museums. Since its enactment, Title IX has immeasurably improved educational opportunities for women and girls, and lifted glass ceilings that kept women from reaching the highest ranks of academia.
The extent of blatant discrimination against female students prior to the enactment of this landmark law cannot be overstated. In many schools, girls were routinely required to take home economics and were excluded from classes that might lead to “non-traditional” career paths. Many colleges and universities — both public and private — either excluded female students altogether or enforced strict quotas for their admission. Athletic opportunities for girls and young women were scarce or non-existent.
Thankfully, the days of de jure discrimination in education are over. As then-Education Secretary Richard Riley said in marking the 25th anniversary of Title IX in 1997, “America is a more equal, more educated, and more prosperous nation because of the far-reaching effects of this legislation.”
But while there has been substantial progress in addressing sex discrimination in schools over the last 30 years, there is much to be done before true gender equity in education is achieved. For example, female students are still underrepresented in math, science, and high technology programs. There is still de facto> segregation in many vocational education programs, with female students placed in “traditional” classes that lead to low wage jobs. Female students are still excluded from many opportunities to compete in athletics. There is still rampant sexual harassment in schools. And discrimination against pregnant and parenting young women, combined with wholly inadequate educational opportunities, exacerbates high dropout rates and fosters economic dependence.
Vigorous enforcement of Title IX is an essential element of the ongoing campaign for gender equity in education. And the roadmap for Title IX enforcement is found in the long-standing agency regulations and policies interpreting the requirements of the law. For 27 years, state education agencies and school districts have relied upon the specific guidance in the regulations to ensure compliance with civil rights requirements and to provide needed protections for female students and school employees.
So it was more than slightly unsettling when, on May 8, 2002, the Department of Education published a Notice of Intent to Regulate (NOIR) expressing the Secretary’s intent to amend the Title IX regulations “to provide more flexibility for educators to establish single-sex classes and schools at the elementary and secondary levels.”8 The NOIR set off alarm bells because of the troubled history of single-sex education and because it raised the specter of broader changes to these venerable regulations.
While Title IX generally prohibits single-sex education in vocational, professional, and graduate schools, the statute does not explicitly cover admissions policies in non-vocational elementary and secondary schools — at least those that were single-sex before Title IX was enacted. Congress was mindful of the record of single-sex education, a record permeated by harmful stereotypes that tended to limit opportunities for young women. So-called “parallel programs” for girls have often been distinctly unequal in scope and resources.
The Title IX regulations carry forward Congress’ concerns about single-sex education. The regulations allow for the creation of single-sex classrooms in specific circumstances, such as physical education classes or activities involving contact sports, competitive athletics, human sexuality, and choirs. Single-sex classes and schools can also be created for compensatory purposes to allow girls and women to overcome barriers to equal education.
Where single-sex education is utilized, Title IX safeguards ensure that such programming serves, and does not undermine, equality of educational opportunity. The Title IX regulations provide ample flexibility for educators to establish single-sex programming at the elementary and secondary level, while simultaneously providing strong legal protections against programs that would reinforce stereotypes or subject students to discrimination in the educational opportunities they receive. The proposed regulatory action threatens those very safeguards.
Indeed, the Department of Education has received no mandate from Congress to amend Title IX regulations in the name of increased flexibility for single-sex education. The No Child Left Behind Act of 2001(NCLBA) allows local education agencies to use innovative program funding “to provide same-gender schools and classrooms,” but only to the extent that they are “consistent with applicable law.”9 That bill did not call for opening the Title IX regulations. Rather, the NCLBA only required the Department of Education to issue guidelines on applicable law to schools seeking the new funding. The Office for Civil Rights at the Department of Education (OCR) fulfilled this requirement through guidance issued on May 8, 2002.
Only one month after publication of the May 2000 NOIR, Education Secretary Roderick Paige intensified concern among Title IX supporters by establishing a Commission on Opportunity in Athletics to recommend changes in the application of Title IX to school sports programs. The secretary’s appointments to this commission betray the administration’s agenda — ten of the fifteen members are from Division IA schools. These schools, which have large football and men’s basketball programs, have the greatest institutional interest in weakening the regulations to which they are subject.
Moreover, in coordinating the work of the commission, the Department of Education has exhibited hostility towards Title IX in various ways. According to the National Women’s Law Center, witnesses selected by the Department of Education testified two-to-one against current policies. Other expert testimony that was requested by commissioners was not provided. The recommendations advanced by the commission would seriously weaken Title IX protections and result in significant losses in participation opportunities and scholarships from those to which women and girls are entitled under current law.
Two commission members (Olympic champion Donna de Varona and Julie Foudy, captain of the U.S. National Women’s Soccer Team) dissented from the commission’s final report and issued a Minority Report that objects to certain recommendations and takes issue with the ambiguous wording of others.10 Secretary Paige refused to include the Minority Report in the record, and while he said he would move forward only with the so-called “unanimous” recommendations in the final report, he refused to consider specific objections of de Varona and Foudy to recommendations he termed unanimous.
Much has been accomplished in the classroom and on the playing field due to Title IX. Women have entered the medical and legal professions in record numbers and there has been a fourfold increase in women’s participation in intercollegiate athletics. In 1971, only 18 percent of American women had completed four or more years of college, compared to 26 percent of men. This gap has been closed — women now make up the majority of students in America’s colleges and universities and are the majority of recipients of master’s degrees (although women remain concentrated in fields such as teaching and nursing and comprise only a small percentage of professionals in the fields of engineering and physics). But discrimination persists and backsliding can occur. Now is not the time to reverse course.
Regulatory Reversal of Asylum Policy on Battered Women
The Justice Department recently proposed a regulation that would undermine the ability of women to receive protection under U.S. asylum laws. It is disturbing that the administration would seek to reverse current policy, which appropriately provides women who have fled violence with a safe haven once they have satisfied the rigorous requirements of asylum.
In Matter of R-A-, the Board of Immigration Appeals (BIA) ruled that Ms. Rodi Alvarado, a Guatemalan woman who had suffered ten years of horrific domestic violence and whose government would not protect her, could not seek refuge under U.S. asylum laws. Former Attorney General Janet Reno vacated the BIA’s decision, and the INS shortly thereafter issued a proposed rule that clarified that domestic violence and other forms of gender-related persecution could in fact form the basis of an asylum claim.
But the Justice Department reportedly plans to issue a final rule that would reinstate the BIA’s original denial of asylum to Ms. Alvarado. Such a rule would limit the ability of women and girls to seek protection from trafficking, sexual slavery, honor killings, domestic violence, and other gross human rights violations whenever such abuses have been perpetrated by non-state actors. In addition, such a rule would contravene established principles of international law including United Nations High Commissioner for Refugees (UNHCR) guidelines on gender persecution and would be out of step with the policies of countries such as the United Kingdom, Australia, and Canada, which recognize that government-tolerated violence based on gender can form the basis for asylum.
Rejection of Regulatory Changes to Address Racial Disparities in Federal Sentencing Rules
While progress has been made in recent decades to address racial disparities in employment, housing and other aspects of American life, racial inequality in the criminal justice system is growing, not receding. A primary cause and visible manifestation of that inequality is the well-known 100-to-1 ratio in federal law that dictates widely divergent sentences for crack cocaine and powder cocaine offenses. African-Americans feel the sting of this irrational policy since they are almost exclusively targeted for federal crack cocaine prosecutions.
There is bipartisan agreement in Congress on the need to confront this problem, and the independent U.S. Sentencing Commission has attempted to do so through regulation. But the Bush administration has actively thwarted any effort to redress this injustice. In other policy areas discussed in this report, the administration has used regulation to weaken civil rights protections. In this area, the administration has used its muscle in the regulatory process to block civil rights progress.
Beginning in the mid-1980s, Congress enacted a series of laws designed to combat the sale and use of certain drugs. While the goal was laudable, the means often were not. A prominent feature of the so-called “war on drugs” has been mandatory minimum sentencing laws for drug offenses. These laws, enacted by Congress in a wave of racially tinged media hysteria, have led to profound injustices.
Mandatory sentencing laws deprive judges of their traditional discretion to tailor a sentence based on the culpability of the defendant and the seriousness of the crime. The sentences imposed under these laws are not truly mandatory because prosecutors (but not judges) may grant exceptions. Prosecutors can choose to charge particular defendants with offenses that do not carry mandatory penalties or they can agree to a plea agreement in which the charges carrying mandatory penalties will be dismissed. Also, under federal law, only the prosecutor may grant a departure from mandatory penalties by offering the subjective assertion that the defendant has provided “substantial assistance” to law enforcement.
When mandatory sentencing laws for drug crimes were enacted in the mid 1980s, race was a subtext of the congressional debate, especially in the uniquely harsh penalties assigned to crack cocaine. Federal law imposes a mandatory five-year federal prison sentence on anyone convicted of selling 500 grams or more of powder cocaine but the same mandatory five-year sentence applies to a defendant convicted of selling only five grams (the weight of a few sugar packets) of crack cocaine. A 10-year mandatory sentence is dictated for 5000 grams of powder but only 50 grams of crack. Meanwhile, federal law dictates a five-year minimum sentence for possession of crack cocaine, while the maximum sentence for possession of all other drugs is one year.
These rules are not only irrational on their face — they are also implemented in an outrageously discriminatory fashion, since over 90 percent of federal crack defendants are African-American. This facially neutral law in fact produces severe racial disparities in the criminal justice system as a whole.
Recent statistics compiled by the U.S. Sentencing Commission show that the problem relates not just to the unjustified differences between crack and powder cocaine penalties. Rather, minorities are now disproportionately subject to the harsh penalties for both types of cocaine. The issue is no longer just the “ratio” between crack and powder, although that remains a serious concern. The issue is that minorities are almost exclusively targeted for all federal cocaine arrests, and then find themselves in a mechanical sentencing system that results in unacceptably high minority incarceration rates.
In fiscal year 2000, Blacks and Hispanics made up 93.7 percent of those convicted for federal crack distribution offenses, while Whites made up only 5.6 percent. That shocking figure has not changed much over the past decade. But the racial makeup of powder cocaine defendants has shifted in recent years. In 1992, Whites constituted almost one third (32 percent) of those convicted of federal powder cocaine distribution offenses, while Blacks made up 27 percent and Hispanics 39 percent. By 2000, the percentage of White powder cocaine defendants had dropped to 17.8 percent while the percentage of Black powder cocaine defendants had increased to 30.5 percent and the percentage of Hispanic powder cocaine defendants had increased to 50.8 percent. In sum, minorities made up 81 percent of the federal powder cocaine defendants that year.
Thus, the problem of racial disparity has worsened and become more deeply ingrained since the early 1990s. The unjustifiably harsh penalties for crack offenses still fall disproportionately — indeed almost exclusively — on Black defendants. But now, unlike ten years ago, the somewhat more moderate but still very harsh penalties for powder cocaine offenses fall disproportionately on minority defendants (both Black and Hispanic) as well. So the massive weight of federal enforcement against cocaine distribution falls almost exclusively on minorities: 93 percent of all crack defendants and 81 percent of all powder defendants.
Such an imbalanced focus on minorities is not justified by what is known about the racial make-up of cocaine users or cocaine sellers. In fact, even though Blacks and Hispanics are targeted at a higher rate for drug investigations, they have been found to commit drug offenses at a slightly lower rate proportionally to their percentage of the U.S. population. African-Americans represented approximately 12 percent of the U.S. population in 2000 and were 11 percent of all illicit drug users. While Hispanics constitute about 13 percent of the population, they were 10 percent of illicit drug users. In addition, for the past two decades, drug use among Black youths has been consistently lower per capita than among White youths.
Thus, the disturbing statistics regarding racial disparities in the “war on drugs” result from racially disparate enforcement strategies and charging decisions in cocaine cases. Minorities are disproportionately arrested for cocaine offenses, disproportionately charged in federal court, and then sentenced under especially harsh statutes and guidelines. These policies result in unhealthy rates of minority incarceration with untold adverse consequences for minority families and communities.
The U.S. Sentencing Commission is an independent bipartisan agency in the judicial branch of the federal government with responsibility for writing federal sentencing rules. In 1995, the commission recommended to Congress that the drug statutes and sentencing guidelines be altered to eliminate the differences between crack and cocaine sentencing thresholds.11 Congress rejected that approach, but directed the commission to formulate a new recommendation between the discredited 100 to 1 ratio and the rejected 1 to 1 ratio.
In early 2002, the commission again considered changes to the rules governing federal cocaine sentences. The commission heard testimony from noted scientists and criminologists and found no scientific evidence to justify treating crack as though it were 100 times more dangerous than powder cocaine. For example, at the commission’s public hearing on February 25, 2002, Dr. Glenn Hanson, Director of the National Institute on Drug Abuse, was asked: “Is crack significantly more harmful to the individual in terms of its pharmacological effects than regular powder cocaine?” He answered: “I would say in general no; that they would be very similar.”12
Nor is there anything special about the crack cocaine market to justify these differences. Rates of crack use, which have never exceeded rates of powder cocaine use, have remained stable for more than a decade. At the same time, the number of street level crack dealers charged in federal court has climbed from 48 percent to 66 percent of all crack defendants while the number of importers, leaders, and supervisors has fallen. According to U.S. Sentencing Commission statistics, the crack market is decidedly less violent than it was several years ago — well less than half of the crack cases involved a weapon and only 8 percent of the cases involved actual violence.
Whatever anecdotes and stereotypes caused Congress to treat crack cases so harshly in 1986 are no longer valid, if they ever were. Violent crack dealers should be punished for their violence; non-violent crack dealers should not be punished on the false assumption that all crack dealers are violent.
Congress itself, in rejecting the commission’s 1995 proposal, directed the commission to “propose revision of the drug quantity ratio of crack cocaine to powder cocaine” (Pub. L. 104-38). And the record of the House and Senate Judiciary Committee hearings that year is replete with statements from Republicans, Democrats, and representatives of the Reno Justice Department condemning the 100 to 1 ratio and promising eventual change. Attorney General Reno and General Barry McCaffrey, then-Director of the Office of National Drug Control Policy, eventually proposed a 10 to 1 ratio. At that time no one defended the 100 to 1 ratio.
That has changed with the Bush/Ashcroft Justice Department. On March 19, 2002, Deputy Attorney General Larry Thompson testified before the commission, endorsed the 100 to 1 disparity in current law, and said any change in the ratio should be accomplished by raising powder cocaine penalties. Indeed, Deputy AG Thompson described the current penalty structure as “proper.”
Notwithstanding this suggestion, increasing powder sentences would not be a constructive way to redress the 100 to 1 disparity. First, no one seriously believes that current powder cocaine sentences are insufficient to fulfill the purposes of punishment. Deputy AG Thompson conceded to the commission that there is “no evidence that existing powder penalties are too low.” Second, lowering the powder threshold would subject more low-level powder defendants to harsh mandatory sentences; by definition, lowering the threshold affects low-level defendants. Third, raising powder sentences would have a disproportionate impact on Hispanics, who make up more than 50 percent of powder cocaine defendants. Now that more than 80 percent of those charged with powder cocaine offenses are minorities, it would only exacerbate the overall racial disparity if powder sentences were raised.
Deputy AG Thompson argued that lowering crack penalties would send the “wrong message.” But it is current law, based as it is on the scientifically indefensible and racially disparate 100 to 1 ratio, which sends the wrong message: that the criminal law is unfair. Changes to make these laws fair and rational would finally send the right message, not the wrong message.
The Bush administration’s position on this crucial issue contradicts the President’s earlier public statements. In January 2001, President Bush said: “I think a lot of people are coming to the realization that maybe long minimum sentences for the first-time users may not be the best way to occupy jail space and/or heal people from their disease. And I’m willing to look at that.” He then expressed support for “making sure the powder-cocaine and the crack-cocaine penalties are the same. I don’t believe we ought to be discriminatory.”13
The Bush administration’s rejection of regulatory changes in federal sentencing rules results in perpetuation of a sentencing structure that every objective observer believes is irrational, and that many minorities view as racist. Few policies have contributed more to minority cynicism about law enforcement. If anti-drug efforts are to have any credibility, especially in minority communities, these penalties must be significantly revised.
Expanding the Federal Death Penalty
The Bush administration has also been oblivious to civil rights concerns about capital punishment. The Leadership Conference on Civil Rights flatly opposes capital punishment, a view President Bush does not share. But one might hope that widespread outrage about flaws in the administration of capital punishment (as evidenced by more than 100 death row exonerations, many from the President’s home state of Texas), would lead his administration to exercise increased care in federal death penalty cases. Instead, the Bush/Ashcroft Justice Department has displayed unseemly enthusiasm for capital punishment.
Attorney General Ashcroft has ordered U.S. Attorneys to seek the death penalty in at least 19 cases where the U.S. Attorney in charge of the case recommended against it. That amounts to one in every three death penalty cases brought in federal court since he took office. By contrast, Attorney General Janet Reno overruled her prosecutors less than half as often in cases where the death penalty was not initially sought.14 Mr. Ashcroft has even ordered federal prosecutors in New York to seek the death penalty for a murder suspect who had agreed to testify against others tied to a deadly drug ring in exchange for a life sentence.15
Moreover, Attorney General Ashcroft has altered existing DOJ policies to make it easier for the Justice Department to override state prerogatives and invoke federal jurisdiction over capital cases. On June 7, 2001, the Department of Justice protocol governing invocation of the federal death penalty was revised. Previously, the absence of a death penalty statute in a given state did not by itself establish a sufficient federal interest for capital prosecution. That guiding principle was removed from the protocol, and the availability of “appropriate punishment upon conviction” in the state system has been added as a consideration.16
In other words, according to Mr. Ashcroft, the considered wisdom of the citizens of Michigan, Vermont, and the other 12 states that do not authorize capital punishment is not a reason to refrain from seeking the federal death penalty in those states; indeed, it is now a reason to seek death. This perspective is all the more bizarre coming from an administration purportedly committed to “states’ rights.”
This same disrespect for states’ rights was on public display in the aftermath of the Washington-area sniper attacks. Mr. Ashcroft presided over the ghoulish spectacle of neighboring prosecutors competing with each other for the right to bring capital charges against the sniper suspects, including 17-year-old John Lee Malvo. The attorney general awarded the “prize” to two Virginia counties that had each been the scene of one shooting. He explicitly declined to permit the case to go forward in Montgomery County, MD, where six citizens had been shot, because Maryland does not authorize imposition of the death penalty on juveniles and in general, carries out capital punishment with greater restraint than Virginia.
Mr. Ashcroft’s aggressive pursuit of capital punishment has been marred by the same racial disparities that have always characterized the death penalty. Since he became attorney general, the Justice Department has been three times more likely to seek death for Black defendants accused of killing Whites than for Blacks accused of killing non-Whites, according to the Federal Death Penalty Resource Counsel Project, a court-established monitoring effort.17
The influence of race as a factor in the imposition of capital punishment is well documented. First, the evidence reveals disparity in the application of the death penalty depending on the race of the victim. Individuals charged with killing White victims are significantly more likely to receive the death penalty than individuals charged with killing non-White victims. Of numerous studies of death penalty outcomes reviewed by the congressional General Accounting Office (GAO), 82 percent found that imposition of the death penalty was more likely in the case of a White victim than in the case of a Black victim.18
The race of the defendant, when combined with the race of the victim, also yields significant disparities. In a case that reached the Supreme Court, the defendant demonstrated that Georgia prosecutors sought the death penalty in 70 percent of the cases involving Black defendants and White victims, while seeking the death penalty in only 19 percent of the cases involving White defendants and Black victims, and only 15 percent of the cases involving Black defendants and Black victims.19
Statistics on the imposition of the federal death penalty are similarly disturbing. In 1988, Congress enacted a law authorizing capital punishment for murders committed in the course of drug trafficking. From 1988 to 1994, Whites made up 75 percent of those convicted under that statute, but of those targeted for the death penalty under the law in the same period, Hispanics or Blacks were 89 percent (33 out of 37) and Whites were only 11 percent (four out of 37).20 A study published by the Justice Department in September 2000 found that minorities were 80 percent of the 682 defendants who faced federal capital charges since 1995.21
The Bush administration’s reversal of the presumption against use of the federal death penalty in non-death penalty states illustrates its freewheeling use of executive power to carry out its substantive goals. Meanwhile, Attorney General Ashcroft’s application of the new protocol in individual cases illustrates another phenomenon: use of the government’s broad litigation authority to undermine civil rights concerns. The chapter that follows demonstrates that the administration’s litigators, like its regulators, have embarked on a systematic course to reverse the country’s historic progress on civil rights.
Regulatory Activity in the War on Terrorism
A number of anti-terror tactics put in place by the Bush administration pose a direct threat to civil rights, including the widespread detention of non-citizens long after they had ceased to be terrorism suspects; dragnet questioning of immigrants without particularized suspicion; and priority deportations based on national origin. Even former FBI officials have questioned the effectiveness of a strategy so dependent on national origin profiling.22
Among the panoply of anti-terror measures, there are several that were implemented without fanfare and have attracted little attention. More comprehensive critiques of the administration’s tactics in the war on terror and their effect on civil liberties appear elsewhere.23 But two aspects of the war on terror are themselves below the radar of public awareness and therefore merit inclusion here.
First, the administration has altered longstanding guidelines that constrained the FBI from conducting surveillance of religious and political organizations in the United States. The so-called “Levi guidelines,” established by President Gerald Ford’s Attorney General Edward H. Levi, were a response to public disclosure of outrageous domestic surveillance tactics being utilized by the FBI, under the code name Cointelpro, to disrupt peaceful domestic political movements. Martin Luther King, Jr. and other Black leaders, for example, were wiretapped, photographed, and generally hounded by J. Edgar Hoover’s FBI as these leaders pursued their non-violent campaign for civil rights and human dignity.
Now, Attorney General Ashcroft is revising the Levi guidelines in a manner that leaves racial and religious minorities at risk of 1960s style harassment.24 The civil rights movement itself was targeted by such tactics, and remains especially vulnerable to law enforcement abuses.
Second, the administration has used terrorism as a pretext to undermine the work of federal unions. For example, several months after the September 11 attacks, the White House issued an Executive Order stripping employees in four Department of Justice subdivisions of their right to union representation.25 In a related vein, the administration pushed hard for language in the new Homeland Security legislation to establish a process by which the administration can bar airport screeners and many other federal workers from joining a union.26 And early this year, the Director of the National Imagery and Mapping Agency invoked the September 11 attacks as he summarily terminated the collective bargaining rights of 1, 322 workers at that agency. Federal employee union head Bobby Harnage decried the administration’s attempt to “cloak this union busting with a respectable cover.”27
The horrific attacks on the World Trade Center and the Pentagon in September 2001 have challenged the nation in unprecedented ways. Americans are united in the goal of homeland security, yet generally recognize the need to protect public safety in a manner that respects the principles upon which our nation was founded. The United States should respond to the narrow-minded religious intolerance of its enemies with policies that are true to constitutional principles, including the principle of equal protection under law. Now, more than ever, the nation’s laws must be enforced without resort to discrimination.
