Rights at Risk: Equality in an Age of Terrorism. Report of the Citizens' Commission on Civil Rights. INSTITUTION Citizens Commission on Civil Rights, Washington, DC

DOCUMENT RESUME

ED 463 386 UD 034 917

AUTHOR Piche, Dianne M., Ed.; Taylor, William L., Ed.; Reed, Robin A., Ed. TITLE Rights at Risk: Equality in an Age of Terrorism. Report of the Citizens' Commission on Civil Rights. INSTITUTION Citizens Commission on Civil Rights, Washington, DC. SPONS AGENCY Spencer Foundation, Chicago, IL.; Annenberg Foundation, St. Davids, PA.; John D. and Catherine T. MacArthur Foundation, Chicago, IL.; Ford Foundation, New York, NY. PUB DATE 2002-00-00 NOTE 351p.; Published biennially. For other reports in this series, see ED 429 150 (1999) ;ED 407 476 (1997) ; ED 439 988 (1995) ,ED 343 986 (1991) ;and ED 319 835 (1989). AVAILABLE FROM Citizens' Commission on Civil Rights, 2000 M Street, Ste. 400, Washington, DC 20036 ($15) .Tel: 202-775-8822; e-mail: [email protected]; Web site: http://www.cccr.org. For full text: http://www.cccr.org/RightsAtRisk.htm. PUB TYPE Books (010) Collected Works General (020) EDRS PRICE MF01/PC15 Plus Postage. DESCRIPTORS *Affirmative Action; *Civil Rights; Diversity (Student); Educational Policy; Elementary Secondary Education; *Equal Education; *Equal Opportunities (Jobs); Federal Government; Federal Legislation; Gender Issues; High Stakes Tests; Higher EducationHispanic Americans; Homosexuality; Limited English Speaking; Minority Group Children; *Minority Groups; Political Issues; Racial Discrimination; Special Education; Urban Areas; Violence; Voting Rights IDENTIFIERS Bush Administration; Clinton Administration; Congress; Criminal Justice System; Equal Employment Opportunity Commission; Fair Housing Laws; Hate Crime; Office of Federal Contract Compliance Programs; Supreme Court

ABSTRACT This volume chronicles the progress of the administration, executive branch agencies, and Congress in ending discrimination and advancing civil rights. The study has 21 chapters in 2 parts. Part one includes: (1) "Rights at Risk"; and (2)"Recommendations of the Commission." Part two includes a series of working papers prepared by leading civil rights and public interest experts: (3) "Federal Judicial Nominations and Confirmations during the Last Two Years of the Clinton Administration" (Elliot M. Mincberg); (4) "Recent Supreme Court Decisions Affecting Congress' Ability To Redress Employment Discrimination" (Michael H. Gottesman); (5) "The New Legal Attack on Educational Diversity in America's Elementary and Secondary Schools" (John Charles Boger); (6) "Diversity in Higher Education: A Continuing Agenda" (Arthur L. Coleman); (7) "Urban Fragmentation as a Barrier to Equal Opportunity" (John A. Powell and Kathleen M. Graham); (8) "Federal Fair Housing Enforcement at a Crossroads: The Clinton Legacy and the Challenges Ahead" (John P. Relman); (9) "The Current Civil Rights Challenge for the Growing Latino Community: Inclusion and Participation in Political Life" (Marisa J. Demeo);(10) "Voting Rights" (Armand Derfner); (11) "Affirmative Action in Public Contracting: The Final Years of the Clinton Administration" (Georgina Verdugo);(12) "Equal Employment Opportunity: EEOC and OFCCP" (Nancy Kreiter);(13) "Federal Action To Confront Hate Violence in

Reproductions supplied by EDRS are the best that can be made from the original document. PERMISSION TO REPRODUCE AND DISSEMINATE THIS MATERIAL HAS BEEN GRANTED BY LILA

k_ TO THE EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) 1 00 ("4")

4-1

U S DEPARTMENT OF EDUCATION Office of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) CifiThis document has been reproduced as received from the person or organization originating it 0 Minor changes have been made to improve reproduction quality

Points of view or opinions stated in this document do not necessarily represent official OERI position or policy

Nilharmn.m.-

BEST COPY AVAILABLE 2 Rights at Risk: Equality inanAge of Terrorism

Dianne M. Piché, William L.Taylor, and Robin A. Reed, Editors

Report of the Citizens' Commission on Civil Rights 2002

Cover design by Rock Creek Publishing Group, Inc. Cover photography by Rick Reinhard.

Library of Congress Card Number: 2001099766 Library of Congress Cataloging-in-Publication Data

Citizens' Commission on Civil Rights (U.S.) Rights at Risk: Equality in an Age of Terrorism Report of the Citizens' Commission on Civil Rights/Dianne M. Piché, William L. Taylor, and Robin A. Reed, editors. p. cm.

2000 M Street, NW Suite 400 Washington, D.C. 20036 (202) 775-8822 www.cccr.org [email protected]

Published by Citizens' Commission on Civil Rights

4 Acknowledgments

Many people contributed to the creation experts, including some of our authors, who of this report. Dianne M. Piché, the consulted with members of the Commission Commission's Executive Director, worked in early 2001 as this report was developed. closely with many of the authors, helped They include: Marisa Demeo, Ralph Neas, develop the Commission's recommen- Elliot Mincberg, John Relman, Ron Weich, dations, and wrote and edited portions of and Chester Hartman. the report. William L. Taylor, the Acting The Commission also extends its thanks Chair of the Commission, also worked to Rock Creek Publishing Group, Inc., for closely with authors, wrote and edited their cover design, to Rick Reinhard for his portions of the report and provided overall photography, to Mary McLaughlin for her guidance to the project. Robin A. Reed, the proofreading skills, and to Sheppard Ran- Commission's Project Coordinator, managed born and his colleagues at Communication the production of the report, including Works LLC for their assistance in drawing formatting and page design. She also as- public attention to the Commission's work. sisted in communicating with authors, A very large debt of gratitude is owed to drafting recommendations, editing and the many authors whose contributions form proofreading, and keeping us all on a tight the core of this report. schedule. This report would not have been possible Toinette Marshall provided valuable without the support of the Ford Foundation. administrative support to the editors during The Commission expresses its appreciation the preparation of the report. We also wish to Alan Jenkins of the Ford Foundation for to acknowledge the many contributions to his continuing commitment to the Com- the report, including expertise on education mission's work. The Commission is also and criminal justice issues, made by Pamela grateful to the MacArthur, Spencer, and Cherry. Thanks also to Kathy Downey for Annenberg Foundations for their support of her ongoing assistance to the Commission. our programs in the area of public education. The Commission also appreciates the contribution made by several leading Foreword

The Citizens' Commission on Civil Rights Administration Mid-term (1991), and One is a bipartisan organization established in Nation,Indivisible: The CivilRights 1982 to monitor the civil rights policies and Challenge for the 1990s (1989). practices of the federal government and to This study has two parts. Part One seek ways to accelerate progress in the area consists of the report and recommendations of civil rights. of the members of the Commission, a diverse This volume is the seventh in a series of and distinguished group of former govern- reports published since 1989 that chronicle ment officials and leaders in business, the progress of the incumbent admin- education, and religious and civic life. Part istration, executive branch agencies and Two is a series of working papers prepared Congress in carrying out both their moral by leading civil rights and public interest and legal duties to end discrimination and experts. Several of these authors contributed to advance civil rights and opportunity for to earlier works of the Commission. While all Americans. These reports include: The the Commission sought out and publishes Test of Our Progress: The Clinton Record on these papers in order to advance public Civil Rights (1999), The Continuing Struggle: knowledge and understanding of a broad Civil Rights and the Clinton Administration cross-section of civil rights issues, the views (1997), New Challenges: The Civil Rights expressed in each paper represent those of Record of the Clinton Administration at Mid- the author/s and not necessarily of the term (1995), New Opportunities: Civil Rights Commission as a whole or any of its at a Crossroads (1993), Lost Opportunities: individual members. TheCivilRightsRecordoftheBush

6 Members of the Citizens' Commission on Civil Rights

Acting Chairman William L. Taylor Attorney, Washington, D.C. Former Staff Director, U.S. Commission on Civil Rights

Members Birch Bayh Augustus F. Hawkins Ray Marshall Venable, Baetjer, Howard & Washington, D.C. The LBJ School of Public Affairs, Civiletti Former U.S. Representative University of Texas Washington, D.C. from California Austin, TX Former U.S. Senator from Former Chairman, House Former Secretary, U.S. Indiana Department of Labor Former Chairman, Senate Education and Labor Subcommittee on the Committee Constitution Eleanor Holmes Norton Aileen C. Hernandez Congresswoman, District of Bill Bradley Aileen C. Hernandez Associates Columbia Allen & Company San Francisco, CA Former Chair, Equal New York, NY Former Member, Equal Employment Opportunity Former U.S. Senator from New Employment Opportunity Commission Jersey Commission Ian Rolland William H. Brown, ffi Fort Wayne, IN Schnader, Harrison, Segal & Father Theodore M. Hesburgh Lewis President Emeritus Former Chief Executive Officer, Philadelphia, PA University of Notre Dome Lincoln National Corporation Former Chairman, Equal Notre Dome, IN Employment Opportunity Former Chairman, U.S. Rabbi Murray Saltzman Commission Commission on Civil Rights Fort Myers, FL Former Member, U.S. Frankie M. Freeman William H. Hudnut, ifi Commission on Civil Rights Montgomery Hollie & Associates The Urban Land Institute St. Louis, MO Washington, D.C. Roger Wilkins Former Member, U.S. Former Mayor, City of George Mason University Commission on Civil Rights Indianapolis Former Inspector General, Fairfax, VA Community Services Former Assistant Attorney Administration Diana Lam General for Legislative Affairs Superintendent, Providence Public Former Director, Community Schools Relations Service, U.S. Providence, RI Department of Labor

Executive Director Dianne M. Piché 7 Table of Contents

Part One: Report and Segregation in Housing Recommendations of the Citizens' Chapter 7 Urban Fragmentation as a Barrier to Commission on Civil Rights Equal Opportunity by john a. powell and Kathleen M. Chapter 1 Graham 79 Rights at Risk 1 Chapter 8 Chapter 2 Federal Fair Housing Enforcement at a Recommendations of the Crossroads: The Clinton Legacy and Commission 7 the Challenges Ahead by John P. Relman 99 Part Two:Working Papers Political Participation Chapter 9 The Federal Courts The Current Civil Rights Challenge for Chapter 3 the Growing Latino Community: Federal Judicial Nominations and Inclusion and Participation in Political Confirmations During the Last Two Life Years of the Clinton Administration by Marisa J. Demeo 115 by Elliot M. Mincberg 21 Chapter 10 Chapter 4 Voting Rights Recent Supreme Court Decisions by Arnzand Derfner 133 Affecting Congress' Ability to Redress Employment Discrimination Affirmative Action and Employment by Michael H. Gottesman 37 Chapter 11 Affirmative Action in Public Segregation in Education Contracting: The Final Years of the Chapter 5 Clinton Administration The New Legal Attack on Educational by Georgina Verdugo 143 Diversity in America's Elementary and Secondary Schools Chapter 12 by John Charles Boger 43 Equal Employment Opportunity: EEOC and OFCCP Chapter 6 by Nancy Kreiter 153 Diversity in Higher Education: A Continuing Agenda by Arthur L. Coleman 71

s Criminal Justice Chapter 18 Chapter 13 New Research on Special Education Federal Action to Confront Hate and Minority Students with Violence in the Bush Administration: Implications for Federal Education A Firm Foundation on Which to Build or Policy and Enforcement a Struggle to Maintain the Status Quo? by Daniel J. Losen 263 by Michael Lieberman 161 Chapter 19 Chapter 14 Blueprint for Gender Equity in Racial Disparities in the American Education Criminal Justice System by Verna Williams 285 by Ronald Weich and Carlos Angulo 185 Digital Divide Chapter 20 Lesbian and Gay Rights The Progress and Proposals for a Civil Chapter 15 Rights Agenda in the Communications Mixed Reviews on Lesbian and Gay Policy Arena Rights for Bush's First Year by Mark Lloyd 293 by Lou Chibbaro Jr. 219 Federal Resources and Direction Discriminatory Practices in Education Chapter 21 Chapter 16 The Adverse Consequences of a New High Classroom Turnover: Federal Direction How Children Get Left Behind by Gary D. Bass, Kay Guinane, Reece by Chester Hartman 227 Rushing and Ellen Taylor 311

Chapter 17 About the Authors 345 Limited English Proficient Students and High-Stakes Accountability Systems by Jorge Ruiz de Velasco and Michael Fix 245

9 Part One: Report and Recommendations of the Citizens' Commission on Civil Rights

10 Part One: Rights at Risk Chapter I

Chapter I Rights at Risk

In June 1997, then-President Bill Clinton I. The Judicial Assault on launched his "Initiative on Race," saying such a national effort "is the unfinished work Rights of our time, to lift the burden of race and redeem the promise of America." Perhaps the most far-reaching assault on Today those words echo as a distant civil rights remedy is the judiciary's disman- memory. The Clinton initiative faltered and tling of the principles of affirmative action faded from public consciousness. Then soon that had guided previous decisions the after we entered the new millennium with a idea as expressed by former Justice Harry new Administration, the nation was con- Blackmun that "in order to get beyond race fronted with the shock and tragedy of the we must first take race into account." Tak- September 11 terrorist attacks. The urgent ing a cue from the five-Justice majority that need to protect national security and com- has ruled against race-conscious action in bat terrorism understandably became all- several cases, some lower courts have gone consuming and seemed to blot out other con- even further to strike down voluntary ef- cerns. forts by colleges and universities to pursue Now, as the Bush Administration enters policies of diversity and inclusiveness in its second year, an economic decline and admitting students. A similar assault is tak- domestic tax policies may curtail government ing place in the area of elementary and sec- resources needed to combat discrimination ondary education. and to provide assistance to the disadvan- In the 1990s, the conservative Supreme taged. Racial and other forms of discrimina- Court majority issued three decisions clos- tion appear to have faded from national con- ing the books on court-ordered desegrega- sciousness, even as remedies for denials of tion with the proposition that if school offi- equal opportunity receive unfriendly atten- cials were acting in good faith courts should tion from the courts and the executive relinquish jurisdiction even if vast educa- branch. tional inequities remained. Now, some federal courts have gone a step further and said that school officials may not act voluntarily to avoid racial isolation of schools (through such devices as magnet

11 Citizens' Commission onCivilRights Chapter I Part One: Rights at Risk

schools) even when they justify their poli- When the Court wavered in this view in cies as educationally and socially sound. the 1980s, Congress passed the Civil Rights Thesedecisionshavereversedthe Act of 1991, specifically affirming its purpose progress of earlier years and led to a trend to provide a remedy for nonpurposeful dis- toward resegregating America. That trend crimination. has been reinforced by failures to fully en- But in 2001, the Court's five-member ma- force the fair housing laws and by the disso- jority again curbed the right of people suf- lution of federal programs designed to give fering such discrimination to obtain a rem- low-income people access to affordable hous- edy under Title VI of the Civil Rights Act of ing outside areas of highly concentrated pov- 1964, holding that a Latino woman had no erty. At the same time new patterns of ur- right to challenge in court an Alabama law ban sprawl have succeeded the subur- that barred non-English speakers from ob- banization trends of the 1940s, 1950s, and taining driver's licenses. Even if the Bush 1960s. Increasingly, large numbers of afflu- Administration decides to enforce Title VI ent whites have found homes far from cen- with vigor, a proposition by no means cer- tral cities and jobs to accommodate them tain, hundred of thousands of people who are have been located along interstate highway subjected to discrimination in education, corridors. The results, in addition to ineffi- housing, transportation, the administration cient use of resources, have been segrega- of justice, and many other areas will be tion and lack of access by low-income people stripped of a remedy. of color to jobs and services. Dialogue about The Court majority has not stopped at nar- how to change this through "smart growth" rowing long accepted interpretations of the policies seems not to be high on government's rights declared by the Constitution and Con- agenda. gress; it has also challenged the authority of The Supreme Court's assault on civil Congress and state legislative bodies to en- rights remedies has not been limited to de- act protections for civil rights. Thus in two cisions curbing affirmative action. Among cases radically reinterpreting the 11th the most important decisions of the Burger Amendment, the five-member majority has Court during the 1970s were opinions af- held that state officials are sovereignly im- firming that the Civil Rights Act of 1964 pro- mune from damage suits for their acts of dis- hibited not simply acts of deliberate discrirni- crimination against older people and people nation but practices that had an adverse with disabilities. impact on minorities and women that could So, too, the same majority has decided that not be justified as necessary to the opera- the Commerce Clause, long accepted as a tion of a business or other institution. So, basis for federal laws protecting the social for example, if a police or fire department and economic interests of individuals, could imposed height, weight, or strength require- not provide a basis for a law prohibiting vio- ments for recruits that disadvantaged lence against women. women and could not be justified as neces- Similarly, although section 5 of the 14th sary to performance of the job, these would Amendment grants Congress affirmative be struck or modified under Title VII of the power to implement the Amendment's pro- 1964 Act. If a public school consigned chil- tections, the Court majority has decided that dren to a dead-end track for "educable men- extensive hearings and findings by Congress tally retarded" without considering whether they might succeed better if mainstreamed, the tracking could be treated as a violation of Title VI of the 1964 Act.

Citizens' Commission onCivilRights Part One: Rights at Risk Chapter I

may not justify some laws providing a right cancies with nominees who mirror the views of action against discrimination. of Justices Scalia and Thomas, erosion of the In sum, a narrow majority of the Supreme promise of equality of opportunity will con- Court has begun over the last decade to re- tinue. shape American jurisprudence in ways that In its appointments of persons to key civil thwart individuals seeking to participate rights positions in the executive branch, the fully in society and that squelch the efforts Bush Administration appears to have by coordinate branches of government to re- adopted a policy of populating henhouses move barriers to equal opportunity. with foxes. One exception is the nomination The judicial nominations that President of an experienced person with a strong civil Bush will make during his term in office and rights background as Chair of the Equal how the Senate uses its advice and consent Employment Opportunity Commission. But powers will determine whether this trend the pivotal job of Assistant Attorney Gen- will continue far into the future or whether eral for Civil Rights at the Justice Depart- some balance will be restored to the Courts' ment has been filled with a person who has decision-making. very little experience in the area. He reports to an Attorney General with a history of de- fying civil rights laws and must work with a II.The First Months of the Solicitor General who has a record of opposing civil rights remedies in the courts. And, Bush Administration reportedly, he has been surrounded in the Division with members of the Federalist On the crucial question of judicial appoint- Society whose mission is to narrow the ap- ments, the direction of the Bush Adminis- plication of civil rights laws. While it is still tration seems ominous. The President said early in the Administration, the decision of as a candidate that he would seek to appoint the Civil Rights Division to withdraw sup- more justices like Antonin Scalia and port in a court of appeals from an important Clarence Thomas to the Supreme Court. His claim of sex discrimination in employment Administration ended the role that the may be a harbinger of things to come. American Bar Association had played for half Similarly, the Administration has success- a century in screening the qualifications of fully nominated a General Counsel at the candidates and sought the advice of the Department of Education and is seeking con- right-wing Federalist Society in finding firmation as Assistant Secretary for Civil nominees. And the early nominations of Mr. Rights two people who are on record as op- Bush to key positions on Circuit Courts of posing major remedies the Department em- Appeals included people with long records ploys in implementing the civil rights laws. of opposing the use of federal authority to Both lack any experience in the field of edu- protect civil rights. cation. One important issue pending at the While many senators have professed con- Department is whether to issue guidance on cern about the direction of the federal courts, testing to school officials throughout the they have been reluctant to state clearly that nation. The guidance, adopted by the Clinton they would oppose nominees whose record Administration after careful study, calls and philosophy demonstrate an unwilling- upon educators to ensure that tests that may ness to protect the least powerful members have an adverse impact on students of color of American society. If senators mount only or those with disabilities or limited English token resistance to the apparent Bush Ad- proficiency meet professional standards of ministration strategy of filling appellate va- validity, reliability, and fairness.

13 Citizens'Commission onCivilRights Chapter I Part One: Rights at Risk

Although it was supported by all major III. The Road Ahead education associations, civil rights groups and test publishers, the Bush Administra- During his Administration, President Bill tion withdrew the guidance and put it on the Clinton held the banner high for the loftiest shelf presumably for further study. If the goals of equal opportunity. He told young stated opposition of the Bush Administra- people that: tion nominees to remedies for nonpurposeful discrimination is allowed to prevail, the cause of education reform espoused by the ITThe alternative to integration is not iso- Bush Administration, as well as fair treat- lation or a new separate but equal; it is ment for students, will receive a setback. disintegration. Other policies being pursued by the Bush Administration threaten the interests of His policies sometimes failed to match his minorities and the poor. When the new cen- rhetoric. Provisions he sponsored or agreed tury began, surpluses in the federal budget to in the welfare reform and immigration encouraged many to believe that new invest- laws have added misery to the lives of many ments in employment, education, housing poor women and children and people of and health could provide opportunity for color. He appeared to lack the will to fight those worst off in American society. Now, an for the confirmation of his court nominees. economic recession, the costs of defending But he preserved government's positive ap- against terrorism, and proach to protecting the rights of its people most of all a by "mending" rather than "ending" affirma- huge tax cut sought and obtained by the Bush Administration for the direct benefit of the tive action policies. And through strong and affluent have wiped out the surplus and all capable appointments in key areas of the ex- but extinguished the hopes of many who ecutive branch he helped ensure that civil would have benefited by an investment in rights laws would be enforced to provide their futures. Further, steps taken by the opportunities for those who had suffered Administration to dismantle or water down discrimination. regulatory protections of the environment Like his predecessor, George W. Bush ap- and of the health and safety of workers are pears to have an understanding of the sensi- having disproportionately adverse impacts bilities and concerns of disparate groups of on people of color and the poor. people. In his successful campaign for an In the area of administration of justice, education reform bill he spoke often of the concern about such matters as racial profil- "soft bigotry of low expectations" of poor chil- ing and the detention and deportation of dren and children of color. In the aftermath immigrants on insubstantial grounds ap- of September 11, he sought to ward off ra- pears now to have been overshadowed by the cial recriminations by appealing for fair fears generated by the September 11 attacks. treatment of Muslim and Arab Americans. Finally, whatever one's view of the legiti- But Mr. Bush's open and positive views macy of the outcome of the November 2000 stand in stark contrast to the declared election it is clear that people of color are agenda of the core of his political party. That still disproportionately disenfranchised by core seems determined, with the President's outmoded voting equipment and local preju- concurrence, to reshape the federal courts dice or indifference. so as to undo the civil rights and social justice gains of the last half of the 20th century. It seems determined to pursue legislative and executive policies that will widen the

14 Citizens' Commission onCivilRights Part One: Rights at Risk Chapter I

gap between the haves and have-nots. These to restore momentum and balance to the results are not inevitable. Occasionally, the nation's quest for opportunity for all its advocates of more positive social and eco- people. Lacking this, we may awaken some nomic policies prevail, as when the Bush day from our understandable preoccupation Administration recently advocated a resto- with national security to find ourselves a ration of food stamp benefits to noncitizens. nation more divided, less equal and there- But the trend is unmistakable. What is fore less secure than before. needed now is a conscious, bipartisan effort

Citizens'Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

Chapter 2 Recommendations of the Commission

The Citizens' Commission offers the,fol- nominee lacks such a commitment they lowing recommendations: should vote against confirmation. A narrow majority of Supreme Court jus- Presidential Leadership and tices, along with many appellate judges named during the 1980s, has seriously Appointments eroded the civil rights protections secured by Congress and the courts beginning with I.Secure Judges Committed to Equal Brown v. Board of Education. The trend of the decisions is to restrict the authority of Justice other branches of government to protect rights and to move the nation toward We recommend that President Bush re- resegregation and the constriction of oppor- quire his future nominees to have a dem- tunity. onstrated commitment to equal justice We hope that the President will take a under law. In seeking out qualified can- long, hard look at the mismatch between his didates the President should hold genu- rhetoric on fairness and opportunity and the ine consultations with both Democratic ideology of many of the people he has nomi- and Republican senators. He should also nated to the courts in his first year of office. consult with a wide range of scholars, re- Whatever the President does, the Senate spected lawyers, and civil rights experts should exercise its role as a full partner in to determine the likely impact of proposed the judicial appointment process. In the nominations on his stated goal of secur- words of The New York Times, senators ing equality of opportunity for all persons. should not "move aside passively for confirmation of ideological jurists" whose appoint- We recommend to the Senate, and par- ment "could distort the balance of the judi- ticularly to Senate leaders and members of the Judiciary Committee, that they ciary for decades to come." carefullyandthoroughlyreviewthe President's nominees, especially nomina- 2.Establish a Vigorous Civil Rights tions to the appellate courts, to determine Enforcement Program whether these nominees have a demonstrated commitment to equal justice un- a. We recommend that the President appoint der law. Where senators conclude that a or nominate to key civil rights positions in the executive branch people experienced

Citizens' Commission onCivilRights 16 Chapter 2 Part One: Recommendations of the Commission

in the field who are committed to strong Effective law enforcement is not possible enforcement. without adequate resources. During the 1980s, the Citizens' Commission documented President Bush has already nominated a decline in civil rights enforcement marked one such person as Chair of the Equal Em- by decreased resources, failures to investi- ployment Opportunity Commission. But he gate and monitor, and failures by enforce- has also sought particularly for the posi- ment agencies to collect the data necessary tion of Assistant Secretary of Education for to assess compliance. Some of these prob- Civil Rights to appoint persons opposed lems were addressed in the 1990s but re- to the very laws they would be charged with sources still are not sufficient. enforcing. The time has also long passed The Commission is particularly concerned when a lack of experience or commitment in about the Attorney General's statement in civil rights can be regarded as an asset. The November 2001 that he would consider di- President should understand that the true verting staff and funding from civil rights test of his verbal professions on civil rights enforcement to support the Administration's will be the appointment of people fully pre- battle against terrorism. The need to compared to match his words with Administra- bat terrorism and to protect our national tion deeds. security should not become a pretext for cutting back on the resources needed by the b.The President should vest civil rights re- Justice Department's Civil Rights Division sponsibility with an official in the White for vigorous and effective enforcement of House who reports directly to the Presi- anti-discrimination laws. Similarly, a weak- dent and whose responsibility should in- ening economy and compelling national se- clude providing guidance and direction to curity interests should not provide an excuse agency and department heads. to fail to support either the congressional appropriations or the high-quality executive The lack of such leadership has been a fail- branch leadership needed to carry out the ure of several Administrations. But the need various federal agencies' civil rights enforce- is greater than ever to develop cohesive civil ment obligations. rights policies, to provide coordination where civil rights issues cross departmen- d. We recommend the use of affirmative rem- tal lines, and to furnish guidance and assis- edies for violations of civil rights laws and tance, particularly on controversial and sen- encourage use of voluntary affirmative sitive issues. action plans.

c.The President should provide the tools and President Bush should direct federal de- resources for civil rights enforcement. We partments and agencies to continue the recommend that the President send a clear policies of his predecessor in support of message to all federal departments and affirmative action. Specifically, the Ad- agencies that he expects the civil rights ministration should continue to use affir- laws to be vigorously enforced. The Ad- mative remedies for violations of civil ministration and Congress also should en- rights laws and should encourage the use sure that the enforcement agencies have of voluntary affirmative action plans. Fed- the resources they need to carry out their eral departments and agencies (including responsibilities. the Office of Federal Contract Compliance Programs) should continue to employ and

17 Citizens' Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

should defend affirmative action pro- A comprehensive federal policy to address grams and remedies. these barriers should include programs and initiatives in the following areas: If there is any lesson to be learned from the civil rights history of the last half-cen- Housing: The federal government should tury it is that court decisions and laws are substantially increase the supply of af- of little practical value to persons who have fordable housing available to low and suffered discrimination until there are af- moderate income families and ensure firmative remedies to afford opportunity. that such housing is sited throughout This has proved to be the case'in education, metropolitan areas to give people access in employment, in housing, and many other to jobs and services. Such a policy would areas. Now we have evidence that when in also step up fair housing enforcement the name of "color blindness" affirmative and promote smart growth policies that remedies are dismantled, opportunities will will make efficient and equitable use of be rapidly lost. In the 1990s, the federal gov- urban resources. ernment mended affirmative action so that it would continue to provide opportunity to Education: In the area of education, a those once denied without unduly trammel- comprehensive urban policy would assist ing the interests of others. Those policies local school authorities in fighting off at- should be continued. tacks in the courts on their policies of diversity and desegregation. It would call 3.Develop a Comprehensive Policy to for strong enforcement of the No Child Left Behind Act of 2001 to ensure that Provide Opportunity to school officials are held accountable for Disadvantaged Persons the progress of poor children. It would provide choice for children attending We recommend that the President develop failing public schools to enroll in better a comprehensive policy designed to pro- performing public schools throughout the vide economic and educational opportu- area. nity, particularly for those who live in high concentrations of poverty in inner Health and .Social Services: The policy cities, as well as the poor in rural areas. should address such other basic and critical needs as health treatment and immu- It is incontestable that even in economic nization,adequatenutrition,and good times there are millions of people in childcare. It should ensure that welfare this nation who remain trapped in poverty reforms provide practical opportunities or in dead end jobs without the means to for poor women and their children to be- advance by dint of their own efforts. come self-sufficient. Often the poor are faced with structural barriers that must be eliminated if they are Jobs and Economic Opportunity: The to have a chance to succeed. For example, policy should ensure job training and pro- the large concentrations of poverty in which vide incentives for job creation in inner many African Americans, Latinos, and Na- cities. It should ensure that newcomers tive Americans (along with some recently- to our nation and its urban areas will re- arrived Asian immigrants) live effectively ceive the support and opportunities they deny them access tq educational and job op- need to succeed. It should also take into portunities that they need to progress. account the particular barriers that face

Citizens' Commission onCivilRights 18 Chapter 2 Part One: Recommendations of the Commission

the rural poor with the goal of helping the tone for national discourse and have an them to achieve long-term economic suf- essential role in shaping attitudes. ficiency.

Finally, the President should continue to discuss not only the needtoavoid Civil Rights Legislation and scapegoating Arab Americans but the barriers that racial isolation, prejudice, and mis- Policy understanding pose and the ways in which we can surmount these barriers. 5.Education He should underline a lesson that we all should have learned in the last century, that We recommend that the Administration neither our great cities nor any other area vigorously enforce federal education and of the nation will thrive for very long if they civil rights statutes to ensure that no child continue to contain large groups of people is left behind by: who are afforded neither opportunity nor hope. a. Enforcing provisions of Title I of the El- ementary and Secondary Education Act 4. Promote Public and Private designed to close achievement gaps and Leadership to Enhance Civility and seeking the resources needed for its suc- Acceptance of Differences in Our cess. Society The No Child Left Behind Act of 2001, reauthorizing the Elementary and Secondary We recommend that the President, Cong- Education Act, was a centerpiece of the ress, cabinet officials, and other political President's domestic agenda. The Act was leaders undertake major efforts to help approved with strong bipartisan support in promote civility and acceptance of differ- Congress and contains important measures ences in our society. This should include to direct assistance to high-poverty schools, seeking opportunities to speak out against to improve reading skills in the early elemen- bigotry, intolerance, and prejudice in our tary grades, and to hold schools and school society. districts accountable for improving student performance, lowering dropout rates and As the nation witnessed a series of closing gaps that separate poor and minor- disturbing attacks against individuals ity children from their more affluent and perceived to be Middle Eastern, Arab, or non-minority peers. While similar measures Muslim, in the aftermath of the September were approved in 1994 during the Clinton 11 terrorist incidents, we were reminded Administration, they were met with resis- once more of the need to directly confront tance in many states and further limited by the prejudice and intolerance that can lead weak federal enforcement. The current Ad- to hate crimes in our communities, in our ministration has yet to take up the mantle houses of worship, in our schools, and, and demonstrate that it is serious about the especially, in our homes. President's commitment to closing achieve- It is hard to overstate the importance of ment gaps. The test will come during 2002 outspoken leadership and funding for and 2003, when the Department of Educa- federal educational initiatives in opposition tion is required to make key decisions about to all forms of bigotry. Our civic leaders set enforcement and guidance and the President

I 0 19 Citizens' Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

will submit his education funding proposals unfair and impermissible consequences on to Congress. How the Administration per- students. forms on these challenges will signal its true commitment to disadvantaged children and, d. Giving priority to the needs of particularly ultimately, will determine whether the law vulnerable student populations. will be an effective remedy for educational neglect and failure in high-poverty, high-mi- Children with disabilities or with limited nority communities. English proficiency, particularly when also poor and minority, are at tremendous risk b.Preserving and affirming voluntary diver- of educational failure. Similarly, children sity and desegregation plans in elemen- who lack a stable residence and who change tary and secondary education. See chap- schools frequently suffer overwhelming edu- ter 1 and recommendation 2.d. cational and psychological harm. The De- partment of Education (along with other c.Affirming and promulgating fair testing agencies where appropriate) should take guidelines. steps to ensure such children are fully included in school reform and improvement In December 2000, the Department of Edu- efforts and are provided with qualified cation issued a resource guide on "The Use teachers and the educational programs and of Tests as Part of High-Stakes Decision- services they need to succeed. Making for Students." The guidance tracks both legal requirements under federal laws e.Recommending that Congress reauthorize prohibiting discrimination on the basis of the Individuals with Disabilities Educa- race, gender, disability, and national origin tion Act (IDEA) and make good on its and widely recognized standards on test use promise to provide adequate federal fund- that have been developed by experts in edu- ing for IDEA-mandated services to stu- cational measurement. The guidance was dents with disabilities. We further recom- issued after substantial input from a body of mend that Congress pay careful attention the National Academy of Sciences and with to research documenting the adverse im- the support of major test publishers, educa- pact of overclassification on minority stu- tion associations, and civil rights groups. dents. Early in the Bush Administration, however, the guidance was withdrawn without f.Taking aggressive steps to ensure that all explanation. To date, there has been no sig- agencies that administer federal educa- nal that the Administration intends either tion programs enforce Title IX's prohibi- to follow the guidance in the Education tion against sex discrimination. The De- Department's own Office for Civil Rights partment of Education should take the (OCR) enforcement program or to dissemi- lead in Title IX enforcement by: nate it to the education officials who will be making high-stakes decisions (often with a Conducting targeted compliance re- disparate racial impact) about student pro- views to ensure that female students motion, placement, retention, and gradua- receive their fair share of athletic option. Particularly as additional tests to mea- portunities; sure school progress proliferate under the President's education program, it is impor- Workingtoeliminate(including tant to ensure that tests are not used to visit through targeted compliance reviews) sex-segregation in career education

Citizens' Commission onCivilRights 2 0 Chapter 2 Part One: Recommendations of the Commission

programs, including School-to-Work, fective access to registration and voting. vocational education, and computer Such legislation should include the follow- scienceandtechnologyeducation ing: programs; and A requirement that under the aegis of Ensuring that recipients of federal aid a federal election entity each state de- adhere to the Department's guidance velop standards to ensure ballot ac- on sexual harassment, including process; viding students and employees with information and procedures to ad- A requirement for computerized state- dress complaints. wide voter registration that will reduce erroneous purging; While Title IX has led to many gains by women and girls in education, female A requirement that eligible voters who students continue to lag behind males in are challenged (e.g., for appearing at severalsignificantrespects.Girls are the wrong precincts) be allowed to vote significantly underrepresented in high provisionally so that their ballots will school courses that lead to high-tech careers be counted for all offices for which they orto postsecondary opportunities in are eligible to vote; mathematical and computer sciences. E.g, only 9% of students taking the Advanced A requirement that accommodations be Placement computer science exam are girls. made to ensure that polling places and Women now make up over half the ballots will be accessible to people with undergraduate college enrollment, but disabilities and, through ballot trans- receive only 41% of athletic scholarship lation, to non-English speakers; and monies and 33% of athletic operating budgets. A requirement that federal funds be made available to the states and used g.Defend civil rights statutes (including for computerized registration systems, Title VI, Title IX, section 504, and the provisional voting, providing access to Americans with Disabilities Act) against disabled and non-English speaking challenges that would limit their scope in citizens, and training election person- protecting students and employees from nel. discrimination. The elections held in 2000 amply demon- 6. Voting strated the need for the reforms recommended above. As to some provisions, Con- We recommend that reform of voting progress has authority to act with respect to all cedures and full enforcement of the Vot- elections under the 14th and 15th Amend- ing Rights Act of 1965, as amended, be ments to the Constitution. As to others its raised to a high priority on national, state authority may be limited to federal elections, and local agendas. where it has broad regulatory authority under Article I, section 4. But since the cost to a. We recommend that Congress enact legis- states of maintaining two electoral systems lation to ensure that within each state all is very high, the legislation recommended qualified persons will have equal and ef- may lead to reform across the board.

21 Citizens' Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

While Congress may soon take action on a. Congress should consider legislation to some of the reforms recommended above, the reduce disparities in sentencing. effort should not end there. New efforts should be mounted in Congress to complete Sentencing guidelines are often based on the agenda. sentencing statutes that are infected by racial distortions. For example, the Controlled b.The Administration should fully and vig- Substance Act includes a 100-to-1 ratio be- orously enforce the Voting Rights Act and tween the amount of powder cocaine and the Congress should consider legislation to amount of crack cocaine needed to trigger facilitate private suits under the Act. the statutory mandatory penalty, a policy which results in great racial disparities. c.As noted in the following section, action should be taken by both the federal gov- b.Congress and affected states should act ernment and the states to restore the fran- to end or severely restrict the practice of chise to ex-offenders. transferring juveniles into the adult criminal justice system. 7. Criminal Justice Many states and the federal government We recommend that Congress and the have adopted laws that permit or require states seriously address pervasive bias juveniles to be tried as adults and trans- and disparities in the enforcement of the ferred into adult prison populations. Be- criminal laws in the areas of sentencing, cause they are overrepresented in the juve- felony disenfranchisement, profiling (in- nile justice system, minority youth bear the cluding traffic stops), and juvenile justice. brunt of these laws. Black, Hispanic and Asian American youths are far more likely Since 1989, the Citizens' Commission has to be transferred to adult courts, convicted issued reports comparable to this volume and incarcerated than white youths. Within assessing the nation's progress on a variety the federal system, 60% of youths in federal of civil rights subjects. In many areas of civil custody are Native American. Because the life, progress has been made, particularly federal government often has jurisdiction when there has been responsive leadership over crimes committed on reservations, Na- at the federal and state levels. Yet, as we tive American youths who engage in minor detail in chapter 14 of this report, the mas- criminal conduct often receive penalties that sive and pervasive bias in the Administra- are far harsher than those that ordinarily tion of criminal justice in the United States would be imposed by a state court. is a serious threat to civil rights progress. Thus the Commission is impelled to issue a c.Congress and the Administration should set of recommendations that, while by no encourage the repeal of state felony dis- means comprehensive, would begin to re- enfranchisement laws, and states should dress racial injustice in criminal law enforce- act to restore the franchise to ex-offend- ment, to hold officials accountable, and to ers. restore public confidence in the system, including in policing agencies. Our specific State laws disenfranchising convicts are recommendations are as follows: pervasive and contribute to lower voting participation among black and Hispanic adults. As a result, it is estimated that 1.4 million black men are denied the right to vote. In

22 Citizens' Commission onCivilRights - I.

two states Alabama and Florida 31% of The Justice Department's Bureau of Jus- all black men are permanently disenfran- tice Statistics has funded a necessary study chised. These laws are antithetical to democ- on the differences in Hate Crimes Statistics racy and are not necessary to protect the Act (HCSA) reporting rates among national public, or for deterrence or rehabilitation law enforcement agencies. The federal gov- purposes. ernment should use its full range of resources to implement policy recommenda- d. Congress and the Administration should tions from that study and encourage compre- support legislation requiring federal and hensive participation in the national data state law enforcement agencies to collect collection initiative. and report data on traffic stops and other The Justice Department should make activities associated with racial profiling, participation in the HCSA program a pre- including INS enforcement and airport requisite for receiving money through either security activities. the Office of Community Oriented Policing Services (COPS) or its Office of Justice Pro- The practice of racial profiling the grams (OJP). Congress and the Administra- identification of potential criminal suspects tion should require that new officers hired on the basis of skin color or accent is under the COPS initiative receive training widespread. The collection of data by major in how to identify, report, and respond to racial groups isessential in order to hate violence. Congress and the Administra- understand the dimensions of the problem tion should make the receipt of OJP techni- and to devise workable solutions. cal assistance grants dependent on participation in the HCSA data collection effort. 8. Hate Crimes c.Congress and the Administration should We recommend that Congress and the Ad- provide funds for a national assessment ministration take action to investigate and of juvenile hate violence, its causes, the prevent crimes motivated by bias. prevalenceoftheprobleminpublic schools, the characteristics of the offend- a Congress should enact the Local Law En- ers and victims, and successful interven- forcement Act. tion and diversion strategies.

The legislation should authorize the pros- The problem of bias-motivated gang activ- ecution of cases in which the bias violence ity and youth violence has not been effec- occurs because of the victim's actual or per- tively studied. Additional efforts are neces- ceived sexual orientation, gender, or disabil- sary to identify and promote effective pro- ity. Congress and the Administration should grams, including community service and al- provide the resources necessary to develop ternative sentencing options. training materials to successfully implement this expanded authority. d. The Departments of Education and Jus- tice and other involved federal agencies b. We recommend that Congress and the should step up their response to prejudice- Administration promote improved data motivated violence including gang vio- collection and analysis on hate crimes. lence through educational programs and initiatives developed for elementary

23 Citizens' Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

and secondary schools, colleges and uni- The 1996 amendments removed judicial versities, and in community settings. discretion to prevent deportation in cases where legal immigrants had received a one- The American Psychological Association year sentence or more, even if the defendant (APA), in a landmark 1993 report, docu- never served any time. Judges are precluded mented the role of prejudice and discrimi- from considering the defendant's ties to the nation in fostering social conflict that can United States, the extent of rehabilitation, lead to violence. Educational resources are or family hardship. As aresult,the effective tools to alter attitudes and behav- deportations mandated under the law have iors which in turn can prevent and reduce resulted in harsh consequences for many acts of hatred and discrimination. The Ad- legal immigrants and their families. The ministration and Congress should support legislation also stripped legal immigrants of adequate ftmding for new and existing pro- an array of due process protections. grams such as Partners Against Hate, an initiative funded by the Justice Department's c.Congress should act to remove barriers to Office of Juvenile Justice Delinquency Pre- voting faced by citizens with limited vention. English proficiency. (see Voting, recommendation 6).

9. Protecting the Rights of Immigrants 10. Closing the Digital Divide

We recommend as follows: We recommend that the Administration develop and implement a comprehensive a .The Immigration and Naturalization Ser- set of policies to close the "digital divide" vice (INS), in cooperation with community that has meant unequal access to infor- organizations, should invest resources mation technology. These policies should and personnel to remove barriers to na- include: turalization. a. Continuing the E-rate program, which Many legal immigrants lack effective supports telecommunications access for access to the naturalization process. Many schools, libraries, and rural health care face language and socio-economic barriers. centers; For example, many do not complete the forms correctly and are turned down. b.Devoting more resources (through the Fed- Affirmative steps are needed both to eral Communications Commission and the examine government-created barriers and Departments of Agriculture, Education, to simplify the process and assist im- Housing and Urban Development, Inte- migrants through it. rior, and Health and Human Services) to informing low-income consumers, as well b.Congress should repeal provisions of the as carriers in rural and high-cost areas, IIRIRA (Illegal Immigration Reform and of their eligibility for benefits and support Immigrant Responsibility Act of 1996) and under the 1996 Telecommunications Act. the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) which c.Supporting investment in community tech- require mandatory deportation of legal nology centers in low-income and rural immigrants for minor offenses. neighborhoods across the country.

2 4 Citizens'Commission onCivilRights Chapter 2 Part One: Recommendations of the Commission

d. Conducting studies of "information red- ceiling" issues), racial and sexual harass- lining" to determine the extent to which ment, and national origin discrimination. In private telecommunications providers a- addition, widespread age discrimination and void poor or minority communities. exclusion of persons with disabilities from the workplace remain critical issues for the The "digital divide" refers to the dispar- Administration to tackle. Finally, more ate access that poor and minority communi- outreach should be done to ensure that EEOC ties have had to a variety of information tech- is an effective resource for the affected nologies, from basic telephone service to communities. high-speed Internet access and other advanced services. We urge the Bush Admin- c.As noted in recommendation 2.d,the istration to continue the progress made un- federal government, including EEOC, der the Clinton Administration in closing the OFCCP and the Civil Rights Division of divide with the aid of federal intervention the Justice Department, should continue and assistance. to use affirmative remedies for problems of discrimination. II. Employment Discrimination d. Congress should pass and the President We recommend as follows: should sign the Employment Nondiscrimi- nation Act (ENDA) to protect the rights of a. Federal agencies, including the Equal gays and lesbians to be free from harass- Employment Opportunity Commission ment and discrimination in the workplace. (EEOC) and the Office of Federal Con- tract Compliance Programs (OFCCP) at 12. Housing the Department of Labor, strategically targetlitigation and enforcement ac- We recommend as follows: tivities to remedy systemic patterns and practices of discrimination. a. The Secretary of Housing and Urban Development (HUD) should move quickly We advise strongly against returning to to reaffirm the agency's commitment to the policies of the 1980s, when investigation fair housing enforcement, to ensure that and enforcement on a class or systemwide the Office of Fair Housing and Enforce- basis were discouraged as Administration ment (FHEO) is staffed with competent policy. While many individual cases have leadership committed to aggressive and merit, addressing barriers that affect large effective enforcement of the nation's fair numbers of employees is a more efficacious housing laws, and to put in place a team use of agency resources and expertise. of top investigators and other officials and to develop credible plans and goals that b.The EEOC should ensure that it is ac- will: cessibleto members of affected communities and that addressing all forms Resolve the Department's backlog of ofdiscriminationremains a high fair housing complaints; and priority. Increase significantly the number of The EEOC should continue to investigate complaints charged, and Secretary- claims of sex discrimination (including "glass initiated complaints filed, including

25 Citizens' Commission onCivilRights Part One: Recommendations of the Commission Chapter 2

cases involving unfair lending prac- ination in the areas of lending and in- tices. surance.

b.Between now and the end of FY2002, the The Housing Section's testing program Department of Justice should increase the has been extraordinarily successful, leading number of new pattern and practice cases the Department to file 62 cases between brought (including cases involving dis- 1992 and August 2000. Fifty-nine of these crimination in lending and insurance). cases were favorably resolved, resulting in $7.4 million in compensatory damages, $1.4 Since 1999, the Justice Department has million in civil penalties, and the opening received additional attorney positions and up of housing opportunities to the victims the number of case referrals from HUD has of discrimination and their families. The declined. The Citizens' Commission believes program should be expanded to focus on a reasonable goal would be for the Civil realtors that engage in interstate commerce Rights Division to increase by half the and explore ways to test lending and number of new pattern and practice cases insurance practices. filed by the end of FY2002. d. The federalgovernmentshouldsub- c.The Department of Justice should con- stantially increase the supply of affordable tinue its successful testing program while housing. See recommendation 3. expanding its role in addressing discrim-

Citizens' Commission onCivilRights Part Two: Working Papers

(

2 7 Part Two: The Federal Courts Chapter 3

Chapter 3 Federal Judicial Nominations and Confirmations During the LastTwoYears of the Clinton Administration by Elliot M. Mincberg'

Introduction as too little and too late. The administration continued to nominate primarily "centrist" individuals considered easier to confirm, but During the last two years of the Clinton soon found that virtually any candidate, Administration (1999-2000), the problems particularly for the courts of appeals, ran that had surfaced previously during the into problems in the Senate. And after the administration with respect to federal November elections, early actions by the judicial nominations and confirmations Bush Administration strongly suggested that became even worse. The delays in affording conflicts and dangers to civil rights would hearings and votes to nominees, particularly continue to plague the judicial nomination female and minority nominees, continued and confirmation process. and increased. In several instances, nom- This chapter will review the record of the inees literally waited more than four years. Clinton Administration and the Senate in Only 15 nominees were confirmed to the nominating and confirming judges for the courts of appeals during this period, less federal bench during 1999-2000. First, it than half the number nominated. For the describes the procedures used to select and first time in more than a decade, the full process candidates, which remained similar Senate voted to reject a federal judicial to the procedures used since 1995. Second, nominee, as Republican Senators delivered it analyzes the record of President Clinton aparty-line vote against an African in making nominations and the Senate in American statesupreme court judge processing and confirming them, including nominated to fill a district court seat. A such factors as quality, experience, diver- prominent law professor pointedly asked in sity, and ideology. Finally, the chapter will a New York Times op-ed in August, "Why has include a brief look at the nominations and the G.O.P. kept blacks off federal courts?"' confirmations process during the first six The political forces that underlie these months of the Bush Administration, and will developments were similarly disturbing. discuss the outlook for judicial nominations Both inside and outside the Senate, some over the next several years, including conservatives strongly pushed a strategy of suggestions for helping prom6te excellence, opposition and delay, in part to save more diversity, and commitment to equal justice judicial seats for the President to be elected in November 2000. The Clinton Admin- in the federal judiciary. istration sought to push for votes for its nominees, although some saw those efforts

Citizens' Commission onCivilRights Chapter 3 Part Two: The Federal Courts

I. Procedures for troversial candidates encountered sig- Nominating and nificant problems in securing confirmation. Processing Federal B. Overall Method of Selection Judgeship Candidates in The general method used by the Clinton 1999-2000 Administration to select nominees remained similar throughout its two terms. At the During 1999-2000, the procedures for district court level, the administration nominating and then processing nominees primarily followed the historical practice of for federal judgeships remained essentially "senatorial courtesy." Under this procedure, the same as since the Republican party the senior Democratic Senator from the state assumed control of the Senate in November, with a judicial vacancy recommended 1994. Although the rhetoric and the results between one and three candidates for the altered somewhat, most of the technical position. Where there have been two procedures used by the President and the Democratic Senators from a state, they have Senate did not materially change. divided up responsibility for suggesting nominees in an agreed-upon fashion. In A. Criteria for Selection states represented by both a Democratic and Republican Senator, the two Senators have The overall criteria utilized by the Clinton generally worked out a method in which Administrationforselectingjudges each plays some role in the selection. Where remained relatively constant throughout the there was no Democratic Senator, the administration's two terms. President recommendation was made by the ranking Clinton continued to express his interest in Democrat in the state's House delegation, increasing diversity on the federal bench, the Governor, the Representative from the particularly in light of the extremely low specific area, or another official selected in number of women and minorities previously consultation with the White House, and appointed by Presidents Reagan and Bush. informal methods have generally been He also stated that he sought to appoint as worked out to provide some input from the judges "men and women of unquestioned Republican Senators for such states. The intellect,judicial temperament, broad Justice Department and the White House experience, and a demonstrated concern for, screened candidates, and the President made and commitment to, the individual rights the final selection. protected by our Constitution, including the As during the earlier part of the Clinton right to privacy."3 For a number of years, Administration and during previous Re- moreover, an additional criterion appears publican administrations, the White House to have been added: a desire to avoid reserved a larger role in finding and se- significant controversy over judgeships. As lecting nominees to the federal courts of oneadministrationofficialcandidly appeals. A significant role was played by the admitted, "[w]e've steered clear of a few Office of Counsel at the White House. A va- people who might have been fabulous judges riety of sources have provided input, in- but who would have provoked a fight that cluding Senators and other officeholders, we were likely to lose."4 As 1999-2000 and again the President made the final se- continued, the administration increasingly lection after screening took place. found that even apparently non-con-

29 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

Even more than during the first part of 2. The American Bar Association the Clinton Administration, the White House consulted Senate Judiciary Duringthe last two years of the Clinton Committee chairman Orrin Hatch as well Administration, the American Bar Assoc- as other Republican Senators prior to iation's Standing Committee on the Federal submitting nominations. This represented Judiciary maintained its traditional role of a noticeable change from the practice under evaluating the qualifications of potential thefirstPresidentBush, when the nominees for the federal bench prior to their Republican Party controlled the Presidency nomination, continuing a practice with a 50- and the Democrats controlled the Senate. year bipartisan pedigree of providing input Sometimes, the Clinton Administration was prior to a final decision on nomination. criticized for taking the advice of Republican Although Senator Hatch had ended the Senators on nominations, as when President ABA's formal role at the Senate Judiciary Clinton accepted the recommendation of Committee level, its crucial function prior Senator Slade Gorton and nominated to nomination continued until the early days Barbara Durham, who later withdrew for of the Bush Administration, as discussed health reasons, for a seat on the 9th Circuit below. Most of President Clinton's nominees court of appeals in 1999.5 during this period received the ABA's highest "well qualified" rating; overall, as of C. Investigations and Interviews 1999, Clinton's appointees received "the highest ABA ratings among the past four Presidents."' I. The Justice Department and the White House 3. The Senate Judiciary Committee Although some of the individual names have changed, the basic procedures for the The Senate JudiciaryCommittee plays a extensive process of investigating and key part in the Senate's "advice and consent" interviewing candidates for the federal function on judicial nominations by inves- bench did not alter significantly during the tigating, holding hearings, and voting in last two years of the Clinton Administration. committee on noininees. Since 1995 and until As before, both the Justice Department and 2001, the committee was chaired by Re- the White House played important roles, publican Senator Orrin Hatch. with the activity at Justice centered in the The period of 1999-2000 saw an increase Office of Policy Development, headed by in the problems of delay and slowdown in Assistant Attorney General Eleanor D. the work of the Senate Judiciary Committee. Acheson. The focal point for judicial During the first half of 1999, not a single nominations activity at the White House confirmation hearing was held. Only a total remained in the Office of Counsel, where the of seven hearings were held in 1999, and leading role was played by Mark Childress only eight in 2000, compared to 11 in 1998.7 and then by Sarah Wilson. As before, the Thirty-seven nominees, almost one-third of Attorney General, White House Counsel, the eligible nominees submitted during the and other administration officials par- period, never received hearings at all, ticipated in the process. including more than half of the President's nominees to the courts of appeals.8 This included one nominee, Helene White for the 6th Circuit court of appeals, who literally

Citizens' Commission onCivilRights Chapter 3 Part Two: The Federal Courts

waited more than four years and received II.The Record on Judicial no action whatsoever on her nomination. A primary reason for these problems was Nominations during the the clear abuse by some Republican Senators Last Two Years of the of the process of placing "holds" on judicial nominees, particularly the "blue slip" Clinton Administration process. The purpose of the "blue slip" policy is to encourage an administration to consult During 1999-2000, President Clinton both home state Senators prior toa made 74 nominations to the federal bench candidate's nomination, as the Clinton that were voted upon by the Senate. Three Administration carefully did during its additional nominees were withdrawn, and tenure. Under the policy, each home state 41 nominations were made and not acted Senator literally receives a blue slip of paper upon by the Senate, more than twice the when a candidate from that stateis number as during the previous two years.1° nominated and that slip is to be returned in Although progress continued to be made in order for a nomination to proceed. Despite improving the diversity, quality, and com- extensive pre- and post-nomination con- mitment to equal rights of judicial nominees sultation by the Clinton Administration, compared to the situation in the Reagan- however, a number of Republican Senators Bush Administrations, observers reported refused to return their blue slips for seriousproblemsconcerningjudicial extensive periods of time, blocking any nominations during this period. action on nominees for years. Although the process was a confidential one during this A. The Overall Record period, reports indicated, for example, that Senator Spencer Abraham's refusal to return As the late Judge Leon Higginbotham has his blue slip was responsible for much of the written, a diverse federal judiciary is four years of delay on Helene White's important in order to ensure that all nomination. In an even more troubling litigants "benefit from the experience of move, reports indicated that beginning in those whose backgrounds reflect the breadth 1995, Senator Jesse Helms used his refusal of the American experience, as well as to to return blue slips to block hearings or any help ensure that the bench is"both action for almost five years on African substantively excellent and respected by the American nominees to the 4th Circuit court general population."" In this key area, of appeals. This was despite the fact that significant progress clearly was made under until President Clinton's recess appoin- President Clinton. Out of some 570 judges tment of Roger Gregory of Virginia, who also nominated in 1981-92 by Presidents Reagan did not receive a hearing during 2000 after and Bush, less than 4% were African he was nominated, no African American had American and less than 8% were minority. ever served on the 4th Circuit court of In sharp contrast, more than 16% of appeals. Although the blue slip process President Clinton's appointees were African remains an important one, there is little American and more than 24% have been question that it was seriously abused during minority, including the first Japanese- the latter part of the Clinton Admin- American judge nominated for the federal istration.' courts of appeals. In fact, the number of African Americans appointed by President Clinton in his eight years in office was

31 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

greater than the total number appointed claims are "a bunch of nonsense." The studies during the 23 years of the first Bush, Reagan, suggest, in fact, that Clinton's appointees Carter, and Ford presidencies put together. have generally been less liberal than those During the last two years of his presidency, of other Democratic Presidents and most approximately 27% of Clinton's nominations resemble the judicial appointments made by were minorities.'2 President Gerald Ford." As Professor President Clinton also made significant Herman Schwartz of American University progress with respect to gender diversity. explained, Clinton's appointments "show a Overall, just over 29% of his judicial appoin- surprising indifference to trying to undo the tments have been women, again repre- sharp tilt to the right of the Reagan and Bush senting a larger number than the previous Administrations' judges ...His judges have four presidencies. During 1999-2000, just been quite middle of the road, and I wouldn't over 31% of President Clinton's federal call them liberals."15 judicial nominees were women. In general, the President's nominees have B. The Problem of Delay and demonstrated high quality, as measured by Inaction and the Impact on Female such factors as prior experience with the judicial system as a judge, prosecutor, or and Minority Nominees public defender as well as ABA ratings as discussed above. Most have listed at least Overall, the 1999-2000 period was char- some pro bono or public interest experience, acterized by significant delay and inaction although, as the Alliance for Justice has by the Senate on many Clinton nominees. noted, the use by conservative Senators of As discussed above, 41 nominations made by some nominees' public service work as a the President during this period were never basis for opposing or delaying nominations acted upon, more than twice the number as has clearly been detrimental." Several 1999- during the previous two years. Specifically, 2000 nominees have distinguished records the Senate confirmed only 69% of the of helping provide legal assistance to the President's district court nominees during disadvantaged. For instance, Judge George this period, compared with 84% during Daniels now of the Southern District of New 1997-98, and confirmed only about 40% of York worked at the Legal Aid Society, served his court of appeals nominees, a significant on the board of a program for youth crime drop from the 68% two years earlier." One prevention, and was awarded the Thurgood report estimates that, overall, more than Marshall prize for his death penalty-related 35% of President Clinton's nominees to the advocacy work. appellate courts were not approved, com- Throughout this period, some conser- pared with less than 15% under President vatives inside and outside the Senate Reagan.'7 continued to attack President Clinton for Even those Clinton nominees who were allegedly nominating "liberal" and "activist" confirmed during this period often faced long judges. The available facts, however, clearly delays. For example, although it took 77 to belie these claims. Academic studies of 81 days for an appeals court nominee to Clinton's appointees, focusing both on their receive a hearing during the first Bush previousrecordsconcerning partisan Administration and Clinton's first term, that activism and on their voting behavior after figure ballooned to 231 days during 1997-98 appointment, demonstrate that, as the co- and even further to 247 days during 1999- author of several of the studies put it, critics' 2000." As nominations expert Sheldon Goldman and his colleagues put it, a process

Citizens' Commission onCivilRights 3 2 Chapter 3 Part Two: The Federal Courts

that had previously been routine for most received a vote on their nominations is nominees was "turned into an obstacle illustrative. During 1999-2000, the 4th course fueled by partisan and ideological Circuit court of appeals had 4 to 5 vacancies, divisions to which only a minority of out of a total of 15 authorized judgeships. nominees were immune."' Indeed, current Moreover, there had never been a nonwhite White House counsel Alberto Gonzalez judge on that court in its entire history. recently conceded that the "conduct of the Earlier in his administration, President Republican Senators" in delaying nominees Clinton had made clear his strong desire to for as long as four years "was wrong.'f 20 integrate the 4th Circuit and nominated Perhaps even more troubling was the fact James Beaty for the court in 1995, but Beaty that delay and inaction had a particularly never even received a hearing. In 1999, he significant impact on female and minority nominated another African American nominees. Of the 41 nominees not acted upon candidate, James Wynn, but Wynn also by the Senate during this period, 22 (or more never received a hearing, reportedly due to than 53%) were women or minorities.21 Even the "blue slip" hold exercised by Senator those female and minority nominees who Jesse Helms, as discussed above. In June were ultimately confirmed were delayed 2000, Clinton nominated African American much longer than other Clinton nominees. attorney Roger Gregory of Virginia to the At the district court level, female and court. Despite strong support from both minority nominees in 1999-2000 waited on home-state senators, Gregory also never average six weeks longer than white male received a hearing on his nomination in 2000. nominees, taking an average of four months The 4th Circuit was finally integrated on to get a hearing on their nominations. At the December 27, 2000, when President Clinton appellate court level, female and minority gave a recess appointment to Gregory, and nominees had to wait for an average of more Gregory was renominated by President than 9 months for a hearing, nearly two Bush and promptly confirmed by the months longer than white male nominees. Democratic-controlled Senate in2001. The total confirmation process took nearly Nevertheless, the treatment of African five months longer for female and minority American nominees to the 4th Circuit by the appellate court nominees.22 One study Republican-controlled Senate in 1995-2000 indicated that overall, minority nominees was extremely troubling and produced were more than twice as likely to fail to significant criticism by other government receive confirmation as white nominees.23 officials, newspapers, and civil rights Goldman and his colleagues concluded, groups.26 "[e]mpirically, as we have demonstrated, the Another example is provided by the 6th nominees who did not move or who moved Circuit court of appeals. As noted above, only after great delay during Clinton's Clinton nominee Helene White waited more tenure in the presidency, were dispro- than four years and never received even a portionately nontraditional [i.e., female and hearing on her nomination. In 1999, Clinton minority] judgeship candidates."24 As Pres- also nominated Kathleen McCree Lewis, a ident Clinton more graphically put it, a num- respected Michigan attorney who received ber of his minority nominees were "being a "well qualified" rating from the ABA and held in political jail because they can't get a would have been the first African American hearing from this Republican Senate."25 woman to sit on the 6th Circuit. Never- An examination of what happened (or theless, Lewis never received even a hearing failed to happen) to several of the many on her nomination. As Senator Carl Levin female and minority nominees who never explained, these nominee's waited "in vain

3 3

Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

just for a hearing" despite the fact that Irdo to the federal bench produced widespread one has questioned their qualifications for condemnation. Congressional Hispanic the bench."' Caucus chair Lucille Roybal-Allard called Similarly, Enrique Moreno was nominated the delays to female and minority nominees to the 5th Circuit court of appeals in 1999, a "slap in the face." Nearly 200 law but was blocked by his two Republican home- professors signed a letter in late 1999 state senators from receiving a hearing, expressing concern about the threat to "both despite the fact that the ABA unanimously judicial independence and diversity on the gave him its highest rating and that Texas federal bench" posed by the conduct of state judges had rated Moreno one of the top Senate leaders. Criticism came from the three trial attorneys in El Paso. Dolly Gee National Bar Association, the Congressional would have been the first Chinese-American Black Caucus, the Leadership Conference woman to serve as a federal judge, but she on Civil Rights, and the President of the never even received a hearing on her 1999 National Association of Women Judges. nomination to the federal district court in SenatorsBarbaraBoxerand Dianne Los Angeles, despite the support of both her Feinstein condemned the delays as "unfair" home-state senators. Both home state sen- and "ridiculous." Senator Edward Kennedy ators, one Democratic and one Republican, concluded that the "Republican stone- supported the nomination of former Iowa walling" was "irresponsible and unaccep- Attorney General Bonnie Campbell to the table" and a "gross perversion of the Eight Circuit court of appeals in 2000, and confirmation process."3° she did receive a hearing, but she was never voted on by the Senate Judiciary Committee C. Controversies over Specific or the full Senate. Far-right groups like the Clinton Nominees Christian Coalition and the Iowa Right to Life Committee opposed Campbell, who had During 1999-2000, significant contro- headed the Justice Department's Office of of Violence Against Women.28 versiesaroseconcerningseveral In fact, activity by far right groups to delay President Clinton's female and minority or oppose Clinton nominees appears to have nominees who did receive votes by the full further contributed to the problems of 1999 Senate. Most significant were the con- 2000. In 1999, Phyllis Schlafly's Eagle Forum troversies concerning the nominations of began a "Court Alert" campaign that called Ronnie White, Richard Paez, and Marsha for conservatives in the Senate to block all Berzon. of the President's judicial nominees. Right- wing groups like the Christian Coalition, I. Ronnie White Free Congress Foundation, and the Family ResearchCounciljoinedtheeffort, Ronnie White was originally nominated sometimes opposing individual female and by President Clinton to the federal district minority nominees like Campbell and some- court in St. Louis in 1997. Judge White was times calling for a halt to all confirmations. the first African American to sit on the Such groups stepped up their efforts in 2000, Missouri Supreme Court and was highly with the Eagle Forum, for example, using recommended at his 1998 confirmation email alerts to call on the Senate to confirm hearing both by Republican Senator "NO MORE CLINTON JUDGES."29 Christopher Bond and by Democratic The delays and failures to act on the Representative William Clay. According to nominations of female and minority lawyers Clay, then-Missouri Senator John Ashcroft

Citizens' Commission onCivilRights 3 4 Chapter 3 Part Two: The Federal Courts

told him that Ashcroft had canvassed the already been asked about the death penalty other six members of the state supreme at his hearing and made clear that he has court, all of whom had been appointed by consistently voted to affirm death penalty Ashcroft, and "they all spoke very highly of convictions except in cases of serious Ronnie White and suggested that he would constitutional error. Despite Ashcroft's make an outstanding Federal judge." efforts to solicit opposition, moreover, Ashcroft was present at the hearing and did several Missouri law enforcement officials not contradict Clay's account.31 andorganizationssupportedWhite's Nevertheless, Judge White did not receive confirmation.32 a Senate vote on his nomination for more The rejection of White's nomination was than two years, reportedly due to a hold the first time in more than a decade that the placed by Ashcroft on the nomination. An full Senate had turned down a judicial agreement was finally reached to hold a vote noininee and the first time in nearly 50 years on White's nomination in October 1999, as that a district court nomination had been part of an arrangement under which voted down. Condemnation of the action was President Clinton agreed to nominate a extremely harsh. The New York Times called candidate favored by Senator Orrin Hatch thevotea "judicialmugging."The to a federal district court judgeship in Washington Post concluded that it showed Hatch's home state of Utah. Despite the that "there is no longer even a component of previous support of Judge White by Senator principle in the Senate's judicial confir- Bond and several other Republican Senators mation process." Representative Clay and who voted for him inthe Judiciary California Representative Maxine Waters Committee, Ashcroft spearheaded a fight characterized the behavior of Ashcroft and that defeated the White nomination strictly Bond as racist. Others suggested that on party lines, with every Republican Ashcroft's actions may have been motivated Senator voting against him on the Senate by disagreements with White about abortion floor. or by Ashcroft's concern about his upcoming Ashcroft's attack on White centered on his reelection battle, in which Ashcroft had claim that White had a "serious bias" against raised the issue of support for the death upholding death penalty verdicts, claiming penalty and his opponent had raised the that White was more "liberal" on the death issue of the White nomination. Whatever the penalty than any other judge on the Missouri reasons; even Republicans later expressed Supreme Court. In fact, these claims signi- regret about the White vote, with some even ficantly distorted White's record. White making the remarkable claim that they had voted to uphold death penalty verdicts in not known that White was an African 41 out of 59 capital cases, and in most cases American at the time. Indeed, Ashcroft's role in which he dissented, White voted with in the attack on White became a major issue state court judges who had been appointed in Ashcroft's own confirmation as Attorney by Ashcroft himself when he served as General in 2001. The Congressional Black Governor. Indeed, three judges appointed Caucus concluded that White's rejection "left by Ashcroft had voted to reverse death profound doubts about fair and unbiased penalty sentences a greater percentage of treatment of African American nominees" the time than had Judge White. The death and "cast a racial cloud over the process."" penalty attack was raised by Ashcroft virtually on the eve of the Senate floor debate, with no opportunity for White to respond, despite the fact that White had

35 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

2.Richard Paez and Marsha Berzon a vote, and Senator Bob Smith of New Hampshire began a filibuster against Paez. Richard Paez was nominated for the 9th The filibuster was defeated, however, and Circuit court of appeals in January 1996, and Paez was approved by a vote of 59 to 39.35 was finally confirmed more than four years The story concerning the nomination of later in March 2000. By then, Judge Paez had Marsha Berzon, who waited more than two more than eighteen years of judicial years for a vote on her nomination to the experience, including as a federal district 9th Circuit court of appeals, was similar. A judge in Los Angeles. His colleagues on the nationally renowned California appellate bench, attorneys who appeared before him, lawyer who specialized in labor matters, she his home state Senators, and officials of both was supported by both her home state parties praised him highly, and he received Senators, Judiciary chair Orrin Hatch, a the ABA's highest "well qualified" rating. He former key aide to President Ronald Reagan, was approved both in 1998 and in 1999 by and many corporate lawyers who had the Senate Judiciary Committee, receiving opposed her in labor cases. As with Paez, votes from both Republicans and Democ- the only significant opposition came from far rats." right groups and Senators. Nevertheless, Nevertheless, a full Senate vote on his several Republican Senators were able to nomination continued to be delayed, as some prevent a full Senate vote on the nomination, Senate Republicans charged that he was too necessitating an effort closely paralleling liberal. Some claimed that he was "soft on what happened with the Paez nomination. crime," despite the fact that he had never As with Paez, Senator Robert Smith tried to been reversed on criminal sentencing and filibuster a vote, but that attempt failed, and that a Justice Department analysis showed Berzon was confirmed on the same day as that he was more stringent than most other Paez by a vote of 64 to 343' judges on criminal matters. Some asserted that he had violated the Judicial Code of Conduct by raising concerns about anti-civil III. The First Six Months of rights ballot propositions in California, but Judiciary chair Orrin Hatch himself made the Bush Administration clear that this charge was erroneous. and the Outlook for the Extensiveadvocacy and negotiations involving the White House and the Senate Future became necessary to secure a Senate vote on Paez, including discussions and a The controversy over judicial nominations purported deal around the time of the did not end with the 2000 election. During Ronnie White vote, serious and sustained the election itself, judicial nominations criticism by Democratic Senators and by became an issue; it was raised against now Hispanic and other civil rights groups, and former Senators John Ashcroft and Spencer finally an agreement between Senator Abraham, who were charged with delaying Barbara Boxer and Senate Majority Leader and opposing female and minority nominees. Lott in 2000 to "trade" a vote on Paez for a It also became an issue discussed during the vote on a friend of Lott who had been Presidential election, particularly because nominated to the Tennessee Valley Author- of concerns about then-candidate Bush's ity board. Even after all this, several right- statements that he would seek to appoint wing Senators made final efforts to prevent more justices like Antonin Scalia and Clarence Thomas to the Supreme Court.37

Citizens' Commission onCivilRights 3 6 Chapter 3 PartTwo: The Federal Courts

In early 2001, President Clinton renom- troubling records on civil rights and civil inated nine individuals whose nominations liberties. For example: had lapsed because of the often long delays Jeffrey Sutton, nominated to the 6th in their processing, including six minority Circuit court of appeals, has been criticized and female nominees: James Wynn, Roger for extensive efforts as an appellate lawyer Gregory, Enrique Moreno, Helene White, to curtail congressional authority and limit Kathleen McCree Lewis, and Bonnie federal protections against discrimination Campbell. Support of these nominees by and injury based on disability, age, race, President Bush, and confirmation by the religion, and sex. As of July 3, 2001, more Senate, could have been a significant step than 50 national groups and over 220 toward progress and bipartisanship on regional, state, and local organizations have judicial nominations. opposed his confirmation, including the Unfortunately, this did not occur. To the National Rehabilitation Association, the contrary, President Bush's first public action American Association of Persons with with respect to judicial nominations in Disabilities, the Welfare Law Center, and March 2001 was to withdraw President the National Women's Political Caucus. As Clinton's nominees and to end the role of the The Wall Street Journal reported, Sutton the ABA for some 50 years in screening was described even by one of his supporters potential nominees prior to their nomin- as the "perfect kind of poster child for what ation. These moves provoked objections from Democrats see as prototypical George W. Senate Democrats and many others. In Bush judges." addition, reports indicated that little or no Michael McConnell, a University of Utah genuine consultation with Democratic law professor nominated to the 10th Circuit Senators occurred on potential nominees. At court of appeals, has generated significant the same time, reports that the right-wing criticism,focusing on hisviews on Federalist Society was directly recom- reproductive choice, privacy, and church- mending nominees, coupled with the state separation. For example, McConnell appointment of a number of lawyers with has called the Supreme Court ruling in Roe Federalist Society and other right-wing v. Wade "illegitimate" and "an embar- credentials to key positions in the Justice rassment," and signed a 1996 "pro-life" Department and the White House counsel's statement that asserted that abortion "kills office, fueled concerns that Bush would 1.5 million innocent human beings in nominate far right candidates with troubling America every year" and called for a views on civil rights and civil liberties.38 constitutional amendment to ban abortion.4° President Bush announced his first set of He has also advocated a "radical" departure nominations on May 9, 2001, nominating 11 from decades of First Amendment decisions individuals to appellate court seats, a by the Supreme Court, such as rulings number of which had been the subject of forbidding government-sponsored prayer at significant delays under President Clinton. public school graduations.41 On a positive note, Bush renominated Roger Carolyn Kuhl, a state superior court judge Gregory to the 4th Circuit court of appeals, nominated in June 2001 to the 9th Circuit and also nominated African American court of appeals, has been severely criticized Barrington Parker, Jr., a Clinton district for her record on civil rights, privacy, and court appointee, to the 2nd Circuit. On the reproductive rights. For example, while in other hand, a number of Bush's initial picks, theReaganJusticeDepartment,she as well as several made later, have come reportedly played a key role in convincing under fire as extreme conservatives with the Attorney General to reverse prior policy

3 0 37 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

and support a policy that would have granted circuit courts of appeals will be made up of tax-exempt status to Bob Jones University Republican-appointed judges. Although past despite its racially, discriminatory practices, Republican Presidents have sometimes an approach rejected by the Supreme Court appointed moderate judges, the risk is clear by an 8 to 1 vote. She also urged the if President Bush does not. When the Supreme Court to overturn its Roe v. Wade prospect of vacancies on the closely divided ruling as "flawed."42 Supreme Court is also considered, the Senate reaction to these nominations has danger is even more evident. As a report by been mixed. Republicans have generally been People For the American Way Foundation very positive, switching their views of only concluded last year, the appointment of just several months previously and urging that one or two more justices like Scalia and all the nominees be voted on swiftly with Thomas could "reverse decades of Supreme little deliberation. Although Senate Repub- Court precedents in civil rights" and many licans had reportedly been preparing to do other areas, "curtailing or abolishing fun- just that, the decision by Senator James damental rights that millions of Americans Jeffords to become an independent and vote take for granted."'" Far right groups recog- with Democrats to organize the Senate, nize the stakes as well, calling the federal prompted in part by concern about judicial judiciary "the top prize" in last year's nominations, changed the picture consi- election, and pushing the administration and derably. As of September 1, 2001, the Senate allies to appoint judges and justices Democratic-controlled Senate had already that will "tip the judicial balance decis- held hearings on and confirmed several ively."' nominees as to whom there was genuine The prospects for the future, therefore, bipartisanconsultationandsupport, are clearly troubling. President Bush should including Roger Gregory and several others. be urged to restore the pre-nomination role As many Senators have made clear, of the ABA and to seek out moderate, however, careful scrutiny of Bush's nominees diverse nominees with a demonstrated will occur. Even White House counsel understanding of and commitment to civil Alberto Gonzalez predicted that as few as and constitutional rights. In that regard, he five of Bush's nominees would be confirmed should genuinely consult with Democratic by the end of 2001, in part because of the as well as Republican Senators prior to poisoned relations produced by Senate nomination.Thisshouldinclude,as Republican treatment of Clinton nominees President Clinton did, listening to and over the last several years and in part following advice on nominating specific because of the concern that President Bush suggested candidates, particularly some of is seeking to "stack the federal judiciary the nominees treated so unfairly during the with conservatives."" latter part of the Clinton Administration. In fact, that concern poses a significant For its part, the Senate should insist on danger to civil and constitutional rights. In such action by the President. It should care- large measure because of the delays and fully and thoroughly review the President's failures to vote on Clinton nominees, there nominees, particularly for the courts of are now more than 90 vacancies on the appeals and the Supreme Court, looking for federal courts, many on the influential keycharacteristicslikedemonstrated courts of appeals. Projections indicate that commitment to civil and constitutional if all anticipated vacancies over the next four rights, as more than 200 law professors have years are filled by Bush nominees, the recently suggested." Nominees that reflect majority of judges on each one of the nation's genuine bipartisanconsideration and

Citizens' Commission onCivilRights 38 Chapter 3 PartTwo: The Federal Courts

moderation should receive priority in the nominees' views on important issues are processing. And the Senate should not wrong."47 As The New York Times explained, hesitatetofulfillitsconstitutional while the President clearly has the power responsibility of rejecting and withholding to nominate judges, Senators should not its consent from those that do not. A recent "move aside passively for confirmation of poll indicates, for example, that a clear ideological jurists" who would seriously majority of the American people believe that weaken civil rights and other protections Senators should ask judicial nominees about and whose appointment could "distort the their views on such subjects as civil rights balance of the federal judiciary for decades and affirmative action, and should vote not to come."48 to confirm nominees "if the Senator thinks

39 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

Endnotes

' Vice President, General Counsel, and Legal and Education Policy Director, People For the American Way Foundation. 2 C. Ogletree, "Why Has the G.O.P. Kept Blacks off Federal Courts," The New York Times, Aug. 18, 2000. 3 See ABA Journal at 57 (Oct. 1992). 4 See Gest, "Disorder in the Courts?" U.S. News & World Report, at 40 (Feb. 12, 1996) (quoting Assistant Attorney General Eleanor Dean Acheson). 5 See People For the American Way Foundation (PFAWF), The Senate, the Courts and the Blue Slip, at 2 (2001) ("Blue Slip"). 6 S. Goldman and E. Slotnick, "Picking Judges Under Fire: Clinton's Second Term Judi- ciary," 82 Judicature 282 (1999) ("Picking Judges"). 7 See PFAWF, Status Chart on Judicial Nominees (Dec. 7, 2000); Alliance for Justice, Judi- cial Selection Project Annual Report 1999, at 5 (Feb. 22, 2000) ("1999 Alliance Report"). 8Id. 9 See Blue Slip at 2-3. 10 See Alliance for Justice, Judicial Selection Project Annual Report 2000, at 5 (Mar. 7, 2001); E. Mincberg and T. Hahn-Burkett, "Judicial Nominations and Confirmations During the First Half of the Second Clinton Administration," The Test of Our Progress, at 61 (Citizens Commis- sion on Civil Rights 1999). (Note: Although the number provided in the Alliance report is 42, the actual number is 41 since one of the nominees listed in the report, Barbara Durham, was actually withdrawn.) ("2000 Alliance Report"). 11 L. Higginbotham, "The Case of the Missing Black Judges," The New York Times, July 29, 1992, at A21. 12 These and similar numbers in this chapter were derived from White House reports on judicial nominations dated Oct. 3, 1996 and Oct. 8, 1994, the PFAWF status chart, and the 1995, 1999, and 2000 Alliance reports. 13 See 2000 Alliance Report at 10-11. 14 See Picking Judges; S. Goldman and E. Slotnick, "Clinton's Judges," 84 Judicature 228, 245, 254 (2001) ("Clinton's Judges"); R. Carp, K. Manning, and R. Stidham, "President Clinton's District Judges," 84 Judicature 282 (2001); S. Haire, M. Humphries, and D. Songer, "The Voting Behavior of Clinton's Court of Appeals Appointees," 84 Judicature 274 (2001); R. Carp, D. Songer, and R. Stidham, "The Voting Behavior of President Clinton's Judicial Appointees," 80 Judica- ture 16 (1996). The quotation in text is from Professor Ronald Carp, the co-author of two of these articles, in T. Mauro, "Experts Warn that Ranking Jurists Is Risky," USA Today, May 7,

Citizens' Commission onCivilRights 40 Chapter 3 Part Two: The Federal Courts

1996, at 1A. " See J. Biskupic, "Hill Republicans Target 'JudicialActivism," The Washington Post, Sep. 14, 1997, at Al. 16See Clinton's Judges at 231. 17See E. Palmer, "For Bush's Judicial Nominees, ATough Tribunal Awaits," 59 Congres- sional Quarterly Weekly Report 898, 900 (2001) ("CQ Report"). " Clinton's Judges at 235. 19Id. at 231. 20 See "White House Gloomy over /Judiciary Prospects," CNN.conz-allpolitics.com (Aug. 14, 2001) (quoting White House Counsel Alberto Gonzales) ("Gonzales"). 21 See 2000 Alliance Report at Appendix B. 22See Clinton's Judges at 234-235. 23See J. Biskupic, "Politics Snares Court Hopes of Minorities and Women," USA Today, Aug. 22, 2000, at Al (quoting study by Citizens for Independent Courts). 24Clinton's Judges at 238. 25 See N. Lewis, "President Criticizes G.O.P. for Delaying Judicial Votes," The New York Times, July 31, 2000. See also, e.g., C. Ogletree, "Why Has the G.O.P. Kept Blacks off Federal Courts," The New York Times, Aug. 18, 2000. 26See, e.g., 2000 Alliance Report at 18-19; 1999 Alliance Report at 19. 2' Congressional Record S96661-62 (daily ed. Oct. 2, 2000) (statement of Senator Carl Levin). 28See 2000 Alliance Report at 21-26. 29See PFAWF, Ordering the Courts: Right-Wing Attacks on Judicial Independence in 2000, at 12-14 (Apr. 2001) ("Ordering the Courts"). 30See 1999 Alliance Report at 22. 31See PFAW, The Case Against the Confirmation of John Ashcroft as Attorney General of the United StatesPart One, at 6 (Jan. 4, 2001) (quoting Senate Judiciary Committee hearing tran- script) ("Ashcroft Report"). 32See Ashcroft Report at 7-9; 1999 Alliance Report at 26-29. 33See 1999 Alliance Report at 27-29; Ashcroft Report at 8-9; Clinton's Judges at 239-41. 34See 1999 Alliance Report at 23-24; 2000 Alliance Report at 14-16. 35Id. 36Id. See also Ordering the Courts at 12-13. 37See F. Barnes, "Bush Loves Scalia," Weekly Standard, at 16 (July 5/July 12, 1999); Chris- tian Science Monitor at 13 (Feb. 1, 2000). For examples of the discussion of the judicial nominations issue in Michigan during Senator Abraham's reelection campaign, see "A Political Trav- esty," Detroit Jewish News (June 16, 2000); "Is the G.O.P. Playing Politics with Judicial Ap- pointments," Michigan Press (June 25, 2000). 38See Blue Slip at 3-4; Ordering the Courts at 14-15; CQ Report at 898-99; N. Lewis, "Bush to Reveal First Judicial Choices Soon," The New York Times, Apr. 24, 2001. 39R. Greenberger, "As Hearings on Judicial Nominees Begin, Senate Panel Reserves Fire- works for Fall," The Wall Street Journal, July 11, 2001. For the list of organizations opposing Sutton, see . 40M. McConnell, "Roe v. Wade at 25: Still Illegitimate," The Wall Street Journal, Jan. 22, 1998, at A18; W. Glaberson, "In New Senate, New Scrutiny of Judicial Nominees," The New York Times, May 30, 2001, at A18; "The America We Seek: A Statement of Pro-Life Principle and Concern," First Things, May 1996, at 1. 41See "Bush Wants to Place Anti-Separationist Law Professor on Federal Court," Church

41 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 3

and State, at 15 (June 2001). 42 See National Abortion Rights Action League, "Judge Carolyn Kuhl Fact Sheet," available at. 43 Gonzales. See also "Judges and Politics," Congressional Quarterly Researcher, at 577-600 (July 27, 2001). In fact, 27 Bush nominees were confirmed in 2001 despite these problems and the serious disruption in the Senate and the country, the same number as were confirmed in the first year of the Clinton Administration in 1993. See Legal Times at 31 (Dec. 24, 2001). 44 PFAWF, Courting Disaster, at 3 (May 2000). See also Ordering the Courts at 15-16; E. Fraser, "Tilting the Bench Farther to the Right," National Journal 1518-20 (2001); "Long-Term Impact of President Bush's Appointments to the Federal Bench" (2001) (unpublished analysis available from PFAWF); "Bush's Nominees Should Worry Civil Rights Defenders," Detroit Free Press, May 11, 2001. 45 Ordering the Courts at 15 (quoting materials from Courting Justice campaign by Free Congress Foundation). 46 "Dear Senator" letter signed by over 200 law professors (July 13, 2001) (available from PFAWF). 47 Hickman-Brown Public Opinion Research, Current Public Opinion on Judicial Confirma- tion, at 1, 2 (July 23, 2001). 45 "Blocking Judicial Ideologues," The New York Times, Apr. 27, 2001.

Citizens' Commission onCivilRights 4 2 - .

Chapter 4 Recent Supreme Court Decisions Affecting Congress' Ability to Redress Employment Discrimination' by Michael H. Gottesman2

Universityof Alabama-Birminghamv. prior Supreme Court decisions position Garrett' is the latest in a series of decisions the Court's present majority outside the in which a five-person majority on the mainstream of contemporary American present Court has struck down, one after thought about the relationship between another, a number of congressional statutes federal and state governments. attempting to protect citizens against This is a harsh assessment. But just two wrongdoing by state officials. In the past six recent examples show that it is accurate. In years, the Court, in most instances by a 5 to the Garrett case, the Court struck down a 4 vote, has declared nearly 30 federal provision of the ADA that was approved in statutes to be unconstitutional in whole or the Senate by a vote of 91 to 6, and in the in part, a rate of roughly five per year. By House by a vote of 377 to 28. This provision contrast, in the entire 200-year history of the was signed into law by President George H. nation before that, the Court had struck W. Bush, who declared it one of the land- down only 129 statutes,4an average of one mark civil rights laws in our country's statute every two years. history, one that would bring us "closer to This article focuses on just two of the that day when no Americans will ever again doctrines the Court has used to achieve these be deprived of their basic guarantee of life, results an expanded reading of the liberty and the pursuit of happiness." immunity accorded states by the 11th Title I of the ADA imposed duties upon Amendment, and a contracted reading of the states (as well as on all other employers in powers conferred on Congress by the 14th America) to stop discriminating against Amendment. It is these two doctrines that persons with disabilities, and authorized led the Court to invalidate the private private-party lawsuits as a means to enforce damagesuitprovisionsofthe Age those duties. Although this legislation Discrimination in Employment Act and the subjected States to damages actions by Americans with Disabilities Act (ADA), as employees claiming disability discrim- well as of other statutes. These decisions are ination, the states did not oppose any part not manifestations of traditional divides of the ADA. Quite the contrary, the bill that between liberals and conservatives, or became the ADA was vigorously supported Democrats and Republicans. Rather, these by the National Association of Attorneys decisions which represent a degree of General and other national organizations of judicial activism that is unprecedented, and state officials. abandon traditional understandings of the The Garrett case came to the Court a meaning of our Constitution articulated in decade after the ADA's passage, but nothing

Citizens' Commission onCivilRights 43 1 I -

had happened in the interim to diminish the similar story can be told about other broad enthusiasm for the statute, including congressional statutes that have been for its provisions regulating the states and declared unconstitutional as applied to the authorizing private suits to enforce and for states, among them the Age Discrimination damages. Former President Bush filed an in Employment Act, the Religious Freedom amicus brief in the Supreme Court urging Restoration Act, and the Patent Remedy Act. the Court to uphold the challenged provision The five-person majority on the Court has of the ADA.5 Similarly, those in both parties achieved these results by ignoring well- who had championed the ADA at the time established Supreme Court precedents; by of its enactment filed an amicus brief urging ignoring (as it admits) the plain language of that the Court uphold the provision.6 the Constitution in favor of a vision of the Nor had there been any broad defection states as "equal sovereigns" (a vision that by states in the decade since the ADA's ignorestheConstitution's Supremacy passage. Although states were now finding Clause); and by discarding the tradition of themselves defendants in numerous private deference to the fact-finding and policy suits seeking damages for violating the ADA, judgments of Congress, a deference that and although Alabama urged all the states previously had been a hallmark of the to join in an amicus brief supporting its Court's approach to assessing the con- effort to invalidate the ADA's authorization stitutionality of federal statutes. of private-party suits, only seven states This article will briefly describe the two answered Alabama's call. Remarkably, twice 180-degree turns in the Court's juris- as many states responded by filing an prudence that led to the invalidation of the amicus brief urging the Court to uphold the ADA's private-suit provision in Garrett. provision that subjected them to these suits. This brief advised the Court that the problems of disability discrimination by I. The II th Amendment individual state actors remained real, that state laws were inadequate to solve the problem, and that states were willing to The 11th Amendment provides that: "The suffer these damage suits in order to assure Judicial power of the United States shall not thatthepublicinterestinending be construed to extend to any suit in law or discriminationagainstpersonswith equity, commenced or prosecuted against disabilities is vindicated. one of the United States by Citizens of Other recent decisions in which the another State, or by Citizens or Subjects of Court's five person majority has struck down any Foreign State" (emphasis added).7 As is federal legislation have similarly lacked any evident fromitswording,the11th significant constituency within our nation. Amendment does not purport to deprive the For example, in Morrison v. United States, federal courts of jurisdiction to entertain the Court struck down an important suits against states brought by their own provision of the Violence Against Women citizens. This is not an accident. It reflects Act, which had been enacted by Congress the limited purpose the 11th Amendment with the votes of huge majorities in both was adopted to serve. parties. That triumph for "state's rights" was The 11th Amendment was added to the achieved although 37 states had joined in an Constitution to overturn one of the Supreme amicus brief urging the Court to uphold the Court's earliest decisions, Chisholmv. provision, and only one state had filed a brief Georgia (1793).8 Chisholm held that the urging the result the Court reached. A "diversity of citizenship" clause in Article

44 Citizens' Commission onCivilRights Part Two: The Federal Courts Chapter 4

III of the Constitution conferred jurisdiction suit of an individual without [the state's] on federal courts to adjudicate claims consent."12 The Court made no effort to brought by non-citizens alleging that a state square this reasoning with the had violated state law. Justice Iredell, who Constitution's Supremacy Clause, which dissented in Chisholm, argued that this was clearlydeclaresthatstatesarenot error that the diversity of citizenship "sovereign" when Congress has enacted a clause should not be construed to deprive federal law. states of their traditional immunity when Just how far from the mainstream the sued under state law. But even Justice Court's Seminole Tribe decision wanders can Iredell conceded that the federal courts had be discerned from the reaction of Justice jurisdiction over suits against states seeking John Paul Stevens who was appointed to toenforce federallaw;that followed the Court by President Gerald Ford, and logically from the fact that the Constitution who is not by nature given to hyperbolic contained a Supremacy Clause declaring diatribes.Traditionally,Justices who federal law to be supreme and binding on dissent from a decision (as Justice Stevens the states. had in Seminole Tribe), nonetheless will The 11th Amendment was designed to accept it as controlling precedent, and apply incorporate into the Constitution the vision it in future cases despite their misgivings. expressed in Chisholm by Justice Iredell. When the challenge to the Age Discrim- That is why it is worded as it is. True to the ination in Employment Act was before the literal language and the clear purpose of the Court in Kimel, Justice Stevens explained 11th Amendment, the Supreme Court had why he could not follow that traditional held, prior to enactment of the ADA, that course: the 11th Amendment is no bar to Congress' creating private causes of action against I remain convinced that Union Gas was states to enforce the obligations imposed correctly decided and that the decision of upon states by federal statutes.9 But six years five Justices in Seminole Tribe to overrule after enactment of the ADA, the new five- thatcase was profoundly misguided. person majority on the Court overruled Despite my respect for stare decisis, I am Union Gas, in Seminole Tribe v. Florida unwilling to accept Seminole Tribe as (1996),rn and held that, except for statutes controlling precedent . . . (Bly its own enacted by Congress in the exercise of its repeated overruling of earlier precedent, power to enforce the 14th Amendment, the the majority has itself discounted the 11th Amendment denied Congress any importance of stare decisis in this area power to create private causes of action of the law. The kind of judicial activism against states. manifested in cases like Seminole Tribe The Seminole Tribe majority conceded that . . . represents such a radical departure its ruling was contrary to the language of from the proper role of this Court that it the 11th Amendment. As it acknowledged, should be opposed whenever the "the text of the Amendment would appear opportunity arises. to restrict only the Article III diversity jurisdictionofthefederalcourts."ll Justice Stevens' assessment is shared by Nonetheless, the Court ruled that the the virtually unanimous scholarly literature Amendment also restricted the federal tracing the history of the 11th Amendment question jurisdiction of the federal courts, and its limited purpose. because "[i]t is inherent in the nature of [state] sovereignty not to be amenable to the

M Citizens' Commission onCivilRights 4 -

II.The 1 4th Amendment solely out of animus toward persons with disabilities "does not aconstitutional As noted above, the Seminole Tribe maj- violation make."As the four dissenters ority allowed an exception for statutes explained, prior Supreme Court decisions enacted by Congress pursuant to its power (including a decision finding a denial of equal to enforce the 14th Amendment. Congress protection against persons with disabilities) could create private causes of action to had held that the Equal Protection Clause enforce the 14th Amendment because the invalidates "discrimination that rests solely 14th Amendment was enacted long after the upon 'negative attitude[s],"fea[r],' ... or 11th, and expressly empowered Congress to 'irrational prejudice/lciting prior cases]. enact statutes enforcing it. But in recent decisions that same five- B. Congressional Authority person majority has dramatically narrowed the understanding of what Congress' 14th Second, the five-person majority has Amendment power encompasses. It has abandoned entirelythedeferenceto achieved that narrowing by two devices congressional fact-finding, and to the working in tandem. congressional determination of what steps are necessary to vindicate 14th Amendment rights, and has imposed its own judgments A. Decreased Protection Against about these matters in substitution for those Discrimination of our elected representatives. This has been clear in several recent decisions, but First,thefive-personmajorityhas nowhere more dramatically than in Garrett, reconstrued the 14th Amendment sub- where the Court dismissed out of hand stantively, so that it affords less protection Congress' express findings of rampant against discrimination than previous Court discrimination against persons with dis- decisions had provided. This narrowing abilities, and mocked the massive eviden- process reached its climax (so far, at least) tiary record Congress had compiled in in Garrett, where the Court declared that arriving at those findings. As the dissenters actions taken by states that intentionally noted, the majority had "review[ed] the discriminate against persons with dis- congressional record as ifit were an abilities, and that are motivated solely by administrative agency record." This is in prejudice and aversion toward such persons, stark contrast to the Court's traditional are not violations of the Equal Protection approach. Clause, so long as some "rational" basis for taking that action can be imagined, and even though it is clear that the action was not motivated by that "rational" consideration Ill.Conclusion but instead by irrational animus. The Court declared in Garrett that a classification The two doctrinal issues described in this disqualifying persons with disabilities is article are only a part of a larger arsenal with constitutional unless the challenging party which the Court's present majority is can carry the burden of "negative[ing] any eviscerating, in the name of "states' rights," reasonably conceivable state of facts that Congress' ability to legislate. These five could provide a rational basis for the Justices have also narrowed the traditional classification."13 That an action was taken understanding of Congress' powers under the Commerce Clause, and have invented an

4 0 Citizens' Commission onCivilRights d . -

entirely new doctrine that prevents Con- them aimed at preventing employment gress from imposing any affirmative ob- discrimination. For example, the logic of the ligations on states. On these issues, as on five-person majority, and the rigor with the ones I have discussed, the agenda of the which it has shown itself willing to enforce Court's majority lacks any significant that logic, place in jeopardy the disparate constituency in our nation. Neither party in impact provisions of Title VII of the Civil Congress holds the views (or seeks the ends) Rights Act of 1964, the Civil Rights Act of espoused in these decisions. And the states 1991, Title II of the ADA, the Fair Housing have shown no interest in enjoying the new- Act, and many other civil rights statutes. found "rights" that the Court's majority is Cases are pending on certiorari today that so eager to bestow upon them. may provide the Court the opportunity to The Court's recent decisions in these cases apply its new jurisprudence to many of these imperil numerous other federal statutes statutes. enacted with bipartisan majorities, many of

4 7 Citizens' Commission onCivilRights I Chapter 4 PartTwo: The Federal Courts

Endnotes

1 This article is adapted from the statement of Michael H. Gottesman before the Senate Committee on Health, Education, Labor and Pensions, concerning recent Supreme Court decisions affecting Congress' ability to redress employment discrimination, on Apr. 4, 2001. 2 Mr. Gottesman is a professor of law at Georgetown University Law Center. Much of his scholarship focuses on issues of constitutional law, especially the Constitution's allocation of power between the federal government and the states. He represented the plaintiffs, Patricia Garrett and Milton Ash, in University of Alabama-Birmingham v. Garrett, decided Feb. 21, 2001 3 University of Alabama-Birmingham v. Garrett, 531 U.S.C. § (Feb. 21, 2001) ("Garrett"). 4 The data appears in Seth Waxman, "Defending Congress," 79 North Carolina Law Review 101 (2001). 5 To my knowledge, this is the first time in our nation's history that an ex-President felt so strongly about a bill he had signed as to file a brief in the Supreme Court defending it. This brief was filed by, among others, Senators Dole, Hatch, Jeffords, Kennedy and Harkin. U.S. Constitution amendment XI. 8 2 U.S.C. § 419 (1793). 9 Pennsylvania v. Union Gas Co., 491 U.S.C. § 1 (1989). 1° 517 U.S.C. § 44 (1996). " Id. at 54. 12 Id. 13 Garrett.

4 8

Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

Chapter 5 The New Legal Attack on Educational Diversity in America's Elementary and Secondary Schools by John Charles Boger

Introduction ary school context is justified neither by the Supreme Court's prior jurisprudence nor by During the past 50 years, school boards this multiethnic nation's pressing educa- throughout the nation have struggled with tional and social needs. The conservative ad- varying degrees of earnestness and success vocates who advance this position purport to dismantle public school systems once seg- to rely upon a body of affirmative action regated by law or practice. Impelled by the cases in the contracting and higher education context, none of which presumes to ad- Supreme Court's seminal decision in Brown dress, or place limits on, public school as- v. Board of Education, later by other key signment policies. To be sure, in those cases federal judicial decisions, and eventually by their own growing appreciation of the many principally disputes among rival claim- values of educational diversity, thousands of ants for scarce governmental resources such public school officials have made consider- as construction contracts,2 public employ- able progress, especially in those school dis- ment,3 admission to competitive graduate and professional schools,4 or redistricting of tricts where the school-age population re- the Su- mains racially diverse. state and federal voting districts5 Several lower federal courts, however, preme Court has counseled judicial "skepti- have recently accepted a novel argument cism" of all governmental classifications by that the well-intentioned practice of assign- race and has obligated federal courts to undertake a "strict judicial scrutiny" of all gov- ing students to assure racial and ethnic di- ernmental decisions that rely, even in part, versity is itself unconstitutional (except upon racial or ethnic considerations.6 when it is a direct response to a court order to eliminate illegal segregation). Other fed- Although such "strict scrutiny" often eral courts are presently facing similar le- works to invalidate governmental decisions gal challenges. Under the logic of these new when scarce benefits or competitive awards attacks, since all government actions must depend upon race or ethnicity alone, the Su- be "colorblind" (except in narrowly defined preme Court has repeatedly emphasized remedial contexts), voluntary efforts by that the 14th Amendment does not forbid school boards to assure that students will state and federal decision makers from ra- learn together in racially diverse classrooms cial or ethnic considerations in every con- are forbidden by the Equal Protection text. As Justice O'Connor explained in 1995: Clause. [Wie wish to dispel the notion that strict This remarkable extension of "colorblind" scrutiny is 'strict in theory, but fatal in jurisprudence to the elementary and second-

4 9 Citizens' Commission onCivilRights Chapter 5 Part Two: Segregation in Education

fact.". ..The unhappy persistence of both ing race in making school assignments can- the practice and the lingering effects of not plausibly claim to be unaware of the in- racial discrimination against minority evitable social consequences of these unor- groups in this country is an unfortunate thodox decisions. Neither can they accu- reality, and government is not disquali- rately claim that Supreme Court precedent fied from acting in response to it.... When dictates such actions. Instead, they must take race-based action is necessary to further full responsibility for abandoning, on ideo- acompellinginterest,such actionis logical grounds alone, what have long been, within constitutional constraints if it sat- with all their difficulties and disappoint- isfies the "narrow tailoring" test this Court ments, the most effective means for knitting has set out in previous cases.7 together our increasingly heterogeneous society racially and ethnically diverse pub- The recent challenges that attack elemen- lic schools.'° This misguided effort to extend tary and secondary school assignments ap- "colorblind" policy to the elementary and pear deaf to these cautions. Even more re- secondary school context should be vigor- markably, they have overlooked a 30-year ously opposed and defeated. The Justice body of Supreme Court cases that acknowl- Department which, during the Clinton Ad- edge the constitutionality of race-conscious ministration, supported school authorities public school assignments, including a unani- in defending thoughtful diversity policies, mous Supreme Court decision rendered in should continue to do so. 19718 and a variety of opinions by at least six subsequent Justices. It is this substantial body of constitutional authority that, I. The Nature and Extent of with ample justification, has been relied upon by school officials throughout the na- the New Attack tion for the past two generations. If this new challenge were simply a tech- The new challenge has come in nearly half nical dispute among scholars over the his- a dozen recent federal lawsuits filed by par- tory of some narrow constitutional phrase, ties who contend that school boards may not it could be appropriately relegated to law consider race or ethnicity when assigning school libraries or obscure journals. Yet the children to schools. These parties recently campaign threatens immediate, real-world won two key victories in the conservative harm to millions of American school chil- U.S. Court of Appeals for the 4th Circuit dren. Belying its surface gesture toward "ra- Tuttle v. Arlington County School Board" and cial fairness," it could eventually overrule Eisenbergv. Montgomery County Public the good-faith educational judgments of hun- Schools.12 Relying on a different ground, a dreds of school boards and lead to the federal district court within the 4th Circuit resegregation of literally thousands of the has also accepted the "colorblind" argument nation's schools, exacerbating the present in the long-running Charlotte/Mecklenburg socio-economic isolation of millions of lower school desegregation case.13 This essay will income American schoolchildren.9 carefully examine each of these three deci- The growing success of this new legal cam- sions, since they exemplify the dubious le- paign constitutes a disturbing and reaction- gal rationales on which the broader legal ary chapter in the long history of America's assault has relied. judicial involvement in issues of race and These three 4th Circuit opinions do not social justice. Policymakers and judges who stand alone, however; plaintiffs have gone would forbid school boards from consider- to federal court in recent years in Boston

Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

and Lynn, Massachusetts, in suburban Roch- ity. On the other hand are measures, such ester, New York, in Louisville, Kentucky, in as those designed to effect racially inte- Los Angeles, and in Seattle to challenge pub- grated public schools, that seek to ensure lic school assignment policies." Indeed, a that a benefit, available to all, is distrib- small coterie of public advocates and attor- uted in a manner that the governing body neys15 have pledged a broad attack on all has decided will benefit the citizenry as a race-conscious public student assignments, whole.19 ensuring that such legal challenges will continue. Whether through a process of zealous One possible source of public confusion overgeneralization or a more deliberate about this new legal threat to public schools sleight-of-hand, those who press the present is that prominent conservatives have di- challenges against public school assignment rected much of their present fire against col- policies obscure the profound differences lege and university admissions policies. In that distinguish the two situations. The fol- those cases, they take aim at the Supreme lowing section will examine these constitu- Court's 1979 decision in the Bakke case, tionally significant differences. which held that the use of racial consideration as a "plus" factor in college admissions decisions does not violate the 14th Amend- II.The Legal Support for ment or federal civil rights statutes.16 The ultimate success of these ongoing challenges School Boards' Use of to Bakke some of which have been suc- Race in Making Student cessful in the lower federal courts17 and others of which have failed18 ultimately will Assignments to Public lie with the Supreme Court. Schools Yet none of those challenges has controlling impact on the very different issues pre- To appreciate the constitutional dimen- sented when a public school board offers, not sion of these issues, it is necessary to exam- a limited number of admissions to a handful ine three bodies of law: (a) the Supreme of successful college applicants, but univer- Court's long-standing prescriptions for those sal assignments to every single elementary school districts found to have engaged in and secondary student in the system. As one deliberate segregation; (b) the Supreme district court in Washington has recently ob- Court's frequent and favorable acknowledg- served when approving a school board's use ment of school board decisions that under- of race-conscious public school assignments, take voluntary, race-conscious student as- designed to further educational diversity and signments as a matter of educational policy; reduce racial isolation: and (c) the Supreme Court's decisions pre- scribing "strict judicial scrutiny" of all race- [There are] two different types of govern- conscious governmental actions or decisions. mental programs that take race into ac- In considering this third body of law, we will count. On the one hand are "affirmative closely examine the three decisions within action" programs, such as those used in the 4th Circuit that have most aggressively higher education admissions and con- and uncritically transposed general affirma- tracting awards that use racial minority tive action principles designed to address status as a positive factor, conferring a government contracting and other scarce government benefit to members of a mi- benefits cases. nority at the expense of those of the major-

51 Citizens' Commission onCivilRights Chapter 5 Part Two: Segregation in Education

A. The Supreme Court's Imposition signing school children and teachers to de- of Mandatory, Race-Conscious segregated schools.26 Indeed, the Court added that "school authorities should make Student Assignments on School every effort to achieve the greatest possible Districts That Have Practiced degree of actual desegregation [among stu- Deliberate School Segregation dents] and will thus necessarily be concerned with the elimination of one-race Although Brown v. Board of Education2° schools." 27 began the long task of desegregating the The Court ratified race-conscious assign- nation's public schools in 1954, it was not ment policies even more explicitly in North until Green v. County School Board21 in 1968 CarolinaStateBoardofEducationv. and Swann v. Charlotte-Mecklenburg Board Swann,28 a companion case decided the same of Education22 in 1971 that the specific tools day as Swann. In this case, the Court unani- for carrying out Brown's constitutional com- mously struck down a North Carolina state mand were finally forged. Green and Swann law that had forbidden any assignment of together established the parameters for ev- school children by race.29 Writing for the ery subsequent desegregation order. Green Court, Chief Justice Burger described race- imposed an "affirmative duty" upon every conscious student assignments as an essen- formerly segregated Southern school board tial tool to fulfill "the promise of Brown" and to "take whatever steps might be necessary rebuffed North Carolina's contention that the to convert to a unitary system in which ra- federal Constitution required "color-blind" cial discrimination would be eliminated root student assignments.3° "The [North Caro- and branch."" Green directed federal district lina] legislation," Chief Justice Burger ob- judges, in overseeing the transition to "uni- served, "exploits an apparently neutral form tary status," to assess the racial impact of to control school assignment plans by &red- school board actions and identify any "ves- ing that they be 'color blind;" moreover, the tiges" of segregation in the student atten- Court's approval of "color-blind" statutes, set dance patterns as well as five other areas of "against the background of segregation, school operations.24 would render illusory the promise of Brown," Three years later, in Swann, a unanimous and "deprive school authorities of the one Court authorized district judges, as they tool absolutely essential to the fulfillment oversaw the desegregation process, to em- of their constitutional obligations to elimi- ploy a variety of sturdy remedial tools to nate existing dual school systems."' desegregate students and schools, including: Although the Supreme Court later tack- (1) express racial goals for student popula- led important school issues outside the tions at each desegregating school; (2) ex- South,32 Green and Swann set the param- press faculty and staff racial ratios; (3) ad- eters for Southern school desegregation liti- ministrative "pairing" of geographically dis- gation throughout the 1970s and 1980s. Hun- persed neighborhoods within a school dis- dreds of judicial decrees were implemented trict, if necessary, to meet these student and in formerly state-segregated districts, in- staff desegregation goals; and (4) cross-town cluding scores in North Carolina, in reliance busing or other transportation remedies nec- upon the unanimous holdings of these cases. essary to facilitate desegregation." The Court in Swann recognized, of course, that dismantling the former dual systems would require school boards to consider race in as-

52 Citizens' Commission onCivilRights : . I -

B. The Supreme Court's Frequent were unhappy with a race-conscious student assignment plan being implemented in Los Indications of Approval for Public Angeles County." Justice Rehnquist noted School Boards That Engage in that the white parents' "novel" argument Voluntary Assignment of Students seemed to depend upon an assumption "that To Achieve Racial and Educational each citizen of a State who is either a parent or a schoolchild has a 'federal right' to be 'free Diversity from racial quotas and to be free from extensive pupil transportation.'"37 Although Jus- While Swann circumscribed the author- tice Rehnquist emphasized that California ity of federal courts to order local school was under no obligation to undertake vol- boards to engage in race-conscious school as- untary desegregation, he wrote that he had signments, the Supreme Court never sug- "very little doubt that it was permitted ... gested that school boards themselves lacked to take such action."38 constitutional authority to do so. To the con- A third voice validating school boards' dis- trary, in a series of decisions, the Court cretion to use race in making student assign- strongly supported the proposition that ments came from Justice Powell in the Den- school boards might lawfully choose to as- ver school case in 1973.39 Justice Powell ob- sign students to achieve racial diversity for served that, beyond their constitutional duty educational reasons. The most prominent of to remedy prior segregation, "[s]chool boards these cases was Swann itself." There, Chief would, of course, be free to develop and ini- Justice Burger contrasted the limited au- tiate further plans to promote school deseg- thority reposed in the federal judiciary to regation."40 Underscoring the need in our remedy constitutional violations with the far "pluralistic society" to teach "students of all broader discretion that school boards possess races [to] learn to play, work, and cooperate when they use racial assignments for peda- with one another," Justice Powell insisted gogical reasons: that his opinion was not "meant to discour- age school boards from exceeding minimal Schoolauthoritiesare traditionally constitutional standards in promoting the charged with broad power to formulate values of an integrated school experience."41 and implement educational policy and In sum, Justice, Powell agreed with the ear- might well conclude, for example, that in lier opinions by Chief Justice Burger and order to prepare students to live in a plu- Chief Justice Rehnquist, that school boards ralistic society each school should have a could engage in voluntary, race-conscious prescribed ratio of Negro to white students student assignments for educational reasons reflecting the proportion for the district as without violating the federal Constitution.42 a whole. To do this as an educational In 1982, the Supreme Court addressed a policy is within the broad discretionary statewide initiative in the State of Washing- powers of school authorities; absent a ton that had effectively forbidden the Seattle finding of a constitutional violation, how- school district to institute a voluntary, race- ever, that would not be within the author- conscious desegregation ofitspublic ity of a federal court.34 schools.43 The school district, which recognized that segregated housing patterns in Subsequently, then-Justice Rehnquist, act- Seattle had led to racially imbalanced ing on an emergency application in 1978," schools and that its prior efforts to overcome decisively rejected a 14th Amendment argu- this racial isolation had not succeeded, had ment put forward by California parents who formally adopted "racial balance" goals to

Citizens' Commission onCivilRights 5 3 -

eliminateall imbalances within three state's race-conscious means were "precisely years." tailored" to accomplish its "compelling" state When the statewide voter initiative suc- interest5' the "attainment of a diverse stu- ceeded with Washington voters, the Seattle dent body...clearly is a constitutionally School Board went to federal court, challeng- permissible goal for an institution of higher ing the state-imposed constraints on its lo- education."52 In sum, Justice Powell's opin- cal student assignment policies. The Su- ion held that student diversity in higher edu- preme Court agreed with the Seattle board cation is a compelling state interest suffi- and struck down the state initiative under cient to survive strict scrutiny by a federal the Equal Protection Clause, reasoning that court.53 In subsequent years, Justice Powell's it "remove[d] the authority to address a ra- opinion in Bakke became a familiar guide- cial problem and only a racial problem post used to shape thousands of voluntary from the existing decisionmaking body, in admissions policies, not only for institutions such a way as to burden minority interests."45 of higher education, but for elementary and In writing for a majority of the Court, Jus- secondary schools as wel1.54 The Supreme tice Blackmun clearly signaled that no fed- Court, fully aware of this widespread reli- eral constitutional principles prevented Se- ance on its Bakke opinion by educational attle school districts from carrying it out. Al- authorities, neither renounced nor sought though Justice Blackmun acknowledged that later reconsideration of that decision. such assignments, especially when accom- In sum, then, the Supreme Court or vari- plished by busing for desegregation, often ous of its Justices, in nearly half a dozen de- engendered strong public controversy,46 his cisions rendered over a 30-year period opinion stated that in the absence of a con- Swann, Bustop, Inc., Keyes, Bakke, and Se- stitutional violation, "the desirability and attle School District No. 1 offered express efficacy of school desegregation are matters approval of, and gave constitutional sanction to be resolved through the political pro- to, the voluntary use of race-conscious stu- cess."47 The Supreme Court's decision thus dent assignment policies by states or local freed the local school board to resume its school boards to achieve ends of educational voluntary efforts to desegregate its schools diversity to end racial isolation in schools. by race, achieve racial diversity, and end racial isolation, despite state efforts to impede the choice of the local board.45 III. The Supreme Court's One of the most difficult and contentious issues to confront the Supreme Court dur- Recent Affirmative Action ing the 1970s was whether public institu- Decisions: Their Dubious tions of higher education could use race as a criterion for admission to their institutions. Significance for School In Regents of the University of California v. Boards That Wish To Bakke in 1978, a disappointed applicant to the University of California at Davis Medi- Assign Elementary and cal School challenged a policy that set aside Secondary Students To 16 out of 100 seats in each entering class for applicants from certain minority groups.5° Achieve Racial and Justice Powell concluded while a state's use Educational Diversity of race in making admissions decisions should prompt strict judicial scrutiny by a The new "colorblind" challenge to student federal court necessitating proof that the assignment policies relies principally upon

54 Citizens' Commission onCivilRights ":. 1 -

certain Supreme Court affirmative action the 4th Circuit concluding race-conscious decisions announced since 1989, especially assignments are an unacceptable means of two decisions rendered in the governmen- achieving that end. tal contracting area, City of Richmond v. J.A. Croson Co." and Adarand Constructors, Inc. A. Can Educational Diversity Be a v. Pena." From those cases, they draw the "Compelling State Interest"? premise that state or federal governmental actors may not engage in any race-conscious The Limited Relevance of the governmental decisions unless (1) they are Supreme Court's Affirmative pursuing ends that are found constitution- Action Decisions ally "compelling" and (2) the means they have chosen to achieve those "compelling" ends The first decision we must examine was are "narrowly tailored" to avoid unnecessary rendered by a federal district court in 1999 racial harm. This two-part constitutional lit- in the historic Swann v. Charlotte-Mec- mus test demanding both a compelling gov- klenburg School Board case (later redesigned ernmental interest and a narrowly tailored Capacchione v. Charlotte-Mecklenburg means has indeed become a commonplace Schools57 in the district court litigation in of 14th Amendment jurisprudence. Public 1999-2000, and most recently resdesignated school assignment policies admittedly must as Belk v. Charlotte-Mecklenburg Board of survive just such a judicial review. Education58). This decision, which we will It is in taking the next step that these new call Swann/Capacchione, concluded that the decisions so clearly falter, for the Supreme Charlotte-Mecklenburg School Board could Court cases set forth above strongly suggest not lawfully adopt school assignment poli- that assigning students to public schools to cies that take race or ethnicity into account, assure racial diversity is a compelling end, even to maintain educational diversity, once and the means employed by most American the board had finally met its constitutional school boards to achieve these ends are nar- obligations under the Supreme Court's rowly tailored enough to survive judicial re- Swann decision and been declared "unitary." view. The new federal decisions, however, The linchpin of the ban announced by the disagree on one (or both) of these two points. Swann/Capacchione court was its assertion Some decisions have held or suggested that that "[m]odern Supreme Court precedent" achieving racial or "educational diversity" could not countenance educational diversity can never be a compelling end; they argue as an acceptable end, since that precedent that only government actions to remedy its recognizes only one proper state interest that own prior segregative policies can ever meet would justify race-based classifications: rem- that standard. Other decisions have held or edying the effects of a school board's own past assumed that educational diversity may be racial discrimination.59 compelling, but have concluded, oddly enough, that school boards' use of race in I. The Dubious Argument for Limiting assigning students is an unacceptable means to achieve racial diversity in schools. States to the Remedial Ends: This section will carefully examine these The Supreme Court Precedent That's contentions, focusing on the Charlotte- Just Not There Mecklenburg school decision rejecting educational diversity as a "compelling end" for The "[m]odern Supreme Court precedent" school boards, and two sister decisions from invoked by the district court began with Jus- tice O'Connor's opinion in City of Richmond

55 ' Citizens' Commission onCivilRights -

v. J.A. Croson Co.6° The battle among the con- board discrimination. He contended that this tending partiesinCroson,asJustice was the only appropriate use of race: "[I]t is O'Connor recounted it, was "the scope of [the implicit in our cases that after the dual City of Richmond's] power to adopt legisla- schoolsystemhasbeencompletely tion designed to address the effects of past disestablished, the States may no longer as- discrimination"61 by setting aside a portion sign students by race."64 of Richmond's city contracts for minority If Justice Scalia had spoken for the unani- business enterprises. The Croson Court iden- mous Supreme Court, or even for a bare tified two remedial interests that might jus- majority of Justices, both Swann/Capac- tify Richmond's reliance on those racial con- chione and the new federal decisions would siderations redressing its own prior, have identified a controlling "[m]odern Su- proven discrimination, or ending its "passive preme Court precedent." Yet no other Jus- participation" in an entrenched system of tice chose to join Scalia. Indeed, Justice racial exclusion in the private market.62 For O'Connor's opinion seemed meant deliber- our purposes, what is crucial is that Justice ately to repudiate his extreme position, not- O'Connor was concerned with possible re- ing that medial uses of race-conscious standards. Croson simply was not a case in which the the purpose of strict scrutiny is to "smoke Court set out to identify the full roster of out" illegitimate uses of race by assuring state interests that might justify state use that the legislative body is pursuing a of racial distinctions. Instead, it addressed goal important enough to warrant use of a more limited question: what is the author- a highly suspect tool. The test also ensures ity of a state or city to use race within a re- that the means chosen "fit" this compel- medial context? The answer Croson gave was ling goal so closely that there is little or no that remedial uses of race by state actors possibility that the motive for the classifi- must be carefully circumscribed. cation was illegitimate racial prejudice To be sure, one voice in Croson strongly or stereotype.65 urged that the only permissible use of race by government is to achieve remedial ends, In other words, Justice O'Connor implied, and that even then such uses must be em- contrary to Justice Scalia's view, that there ployed sparingly. The voice was that of Jus- are state goals "important enough to war- tice Scalia, who summarized his contention rant use" of racial considerations, even as follows: "In my view there is only one cir- though such uses are subject to strict judi- cumstance in which the States may act by cial scrutiny to ferret out "illegitimate" leg- race to 'undo the effects of past discrimina- islative motives such as "racial prejudice or tion': where that is necessary to eliminate stereotype."66 their own maintenance of a system of unlaw- A majority of the Court reemphasized this ful racial classification."63 point in several later cases. For example, Justice Scalia indeed spoke to the very is- Justice O'Connor again sought to correct the sue now under consideration in the school misapprehension that all governmental uses assignment cases the authority of school of racial classifications are forbidden in boards to use voluntary, race-conscious Adarand Constructors Inc. v. Pena in 1995: methods outside of a remedial context. Scalia "Strict scrutiny does not 'trea[t] dissimilar acknowledged prior Supreme Court cases, race-based decisions as though they were including Green and Swann that had sanc- equally objectionable," she wrote; "to the con- tioned the use of race-conscious student as- trary, it evaluates carefully all governmen- signment policies to remediate prior school tal race-based decisions in order to decide

5 0 5 6 Citizens' Commission onCivilRights -

which are constitutionally objectionable and would not only have subjected race-conscious which are not.'"67 By requiring strict scru- state classifications to a much lower level of tiny of racial classifications, she explained, judicial scrutiny," but would have upheld a "we require courts to make sure that a gov- state goal of remedying prior societal dis- ernmental classification based on race ...is crimination as well as "the prospective [goal] legitimate, before permitting unequal treat- . ..of preventing the city's own spending ment based on race to proceed."68 decisions from reinforcing and perpetuating As in Croson, Justice Scalia disagreed with the exclusionary effects of past discrimina- the majority's conclusion in Adarand, insist- tion."73 Finally, in Adarand, both Justice ing that race-conscious classifications should Souter, in a dissent joined by Justices only be used to provide remedies to the Ginsburg and Breyer, and Justice Ginsburg, proven victims of the state's own prior dis- in a dissent joined by Justice Breyer, voiced crimination.° Justice Scalia's argument man- support for race-conscious actions by state aged to win the agreement of one additional and federal governments that were designed Justice, Clarence Thomas, who wrote sepa- to diminish lingering racial discrimination rately that "government-sponsored racial in the broader society." discrimination based on benign prejudice is To summarize the analysis thus far, the just as noxious as discrimination inspired by only direct support for the view of "[m]odern malicious prejudice."" Supreme Court precedent" upon which the Thus, in the two key affirmative action district court relied in Swann/Capacchione cases, Croson and Adarand, only two of the has come from two Justices, Scalia and Tho- Court's nine justices supported the position mas, who have never attracted additional that school assignment opponents presently support. To the contrary, their views appear seek to establish. In both of those cases, to have been considered and repudiated, not moreover, all four dissenters wrote to en- only by the four more liberal members of the dorse a far broader range of compelling state current Court (Justices Stevens, Souter, interests that might justify a state's adop- Ginsburg, and Breyer), but also by Justices tion of race-conscious policies. For example, O'Connor and Kennedy, and Chief Justice Justice Stevens argued in Croson that the Rehnquist as well, in both Croson and Equal Protection Clause should be inter- Adarand.76 preted to permit the race-conscious selec- Beyond Croson, Adarand, and a sentence tion of public school teachers if a "school from the Metro Broadcasting dissent (which board had reasonably concluded that an in- cannot bear the weight the Capacchione tegrated faculty could provide educational courtintendedforit),77theSwann/ benefits to the entire student body that could Capacchione court's reference to "[m]odern not be provided by an all-white, or nearly Supreme Court precedent" dwindles to noth- all-white, faculty."71 He later noted in ing more than a single 5th Circuit case, Adarand that the majority had not reached Hopwood v. State of Texas.78 To be sure, or decided the question of diversity as a pos- Hopwood did repudiate the use of race, at sible compelling governmental interest: least in the higher educational context.79 Yet "[The] proposition that fostering diversity Hopwood is not a Supreme Court decision, may provide a sufficient interest to justify nor did the Supreme Court subsequently af- such a program is not inconsistent with the firm it.8° It was, instead, a bold departure by Court's holding today indeed, the ques- a lower federal court, like Capacchione, that tion is not remotely presented in this case."72 set sail against the winds of prior Supreme Justice Marshall, writing for himself and Court precedents ignoring Swann, Bus- Justices Brennan and Blackmun in Croson, top, Inc., and Bakke with apparent confi- 57

Citizens'Commission onCivilRights Chapter 5 Part Two: Segregation in Education

dence that it could foresee a future time in government franchise (Metro Broadcasting), which the Court would repudiate its former a seat in a graduate or professional school handiwork. In sum, then, Swann/Capac- (Bakke, Hopwood), a merit-based scholarship chione's conclusion that educational diver- (Podberesky v. Kirwan"), or a seat in a com- sity could never be deemed 'compelling' un- petitive-exam high school (Wessniann v. der the Equal Protection Clause has no sub- Gittens"). When such glittering prizes are stantial support." being bestowed, it is plausible to reason, as the district court did in Swann/Capac- 2. The Argument for Limiting States to chione, that "the use of race as a reparational Remedial Ends: The Rationales That device risks perpetuating the very race-con- Simply Don't Apply sciousness such a remedy purports to overcome.'"87 It seems instinctively "unfair" or It is perhaps unjustified to judge the work "unequal" if such decisions, which ought be of these new federal courts solely on the based upon worth or merit lowest bid, strength of the precise legal holdings of prior best qualified, most competitive tip to- cases.If the underlying concerns that ward one less qualified or less competitive prompted the Supreme Court in Croson or solely because of his or her race or ethnicity. Adarand to reject race-conscious classifica- Moreover, if others sense that recipients tions in those cases can be shown to extend actually are inferior, their suspicions will not to the elementary and secondary school con- only breed resentment but also will ulti- text, then the district court's decision might mately stigmatize those who have been se- be vindicated through the power of well-rea- lected on racial grounds. soned analogy. To evaluate these new deci- Access to second-grade teachers or fifth- sions on these grounds, it is first necessary grade classrooms, however, is not a scarce to identify the considerations that have resource but a public good. Every child is prompted the Supreme Court to guard sent to school; no child is denied. Of course, against the unreflective use of race-conscious every public elementary and secondary state classifications. In Croson, Justice school has its own special characteristics: its O'Connor spoke of several such consider- history, its identifying architectural features, ations: (1) the "personal rights' of all citi- its corps of teachers (each with their own zens to be treated with equal dignity and special talents and personalities). Yet as respect";" (2) the need to avoid "illegitimate Chief Justice Rehnquist observed in Bustop, notions of racial inferiority"; (3) the risk that Inc., there is no "federal right" granted any racial classifications might become a form of parent or child that assures attendance at "simple racial politics"; (4) "a danger of stig- any particular public school." For legal pur- matic harm"; and (5) the prospect of poses, public schools have been deemed "reinforc[ing] common stereotypes.'" The equivalent and fungible, and to that extent, Supreme Court has also worried about "giv- at least, our law normally recognizes no ing local governments license to create a "winners" and "losers" in the distribution of patchwork of racial preferences based on public school resources." Therefore, a child's statistical generalizations about any particu- assignment to a particular elementary school lar field."84 does not stigmatize in the ways that worried Most of these concerns arise, however, Justice O'Connor in Adarand and Croson, when a government must award a scarce re- because the criteria for assignment do not source to one among several rival claimants reflect adversely upon the character of stu- of different races whether a government dents or their ability to perform. construction contract (Croson, Adarand), a

5 8 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

Some recent cases have involved the use B. Are Race-Conscious Student of racial criteria in the context of special Assignment Policies "Narrowly "merit schools," i.e., public schools where admission is normally predicated on objective Tailored"? indicia of excellence. The 1st Circuit's recent decision in Wessmann v. Gittens9° offers per- In two sister decisions announced in 1999, haps the greatest support for this position, both of which examined school assignment and it understandably became a source of policies one from Arlington County, Vir- special reliance in the Charlotte litigation.9' ginia, Tuttle v. Arlington County School Wessmann involved the use of race as one Board,94 and the other from Montgomery criterion for admission to such a merit school, County, Maryland, Eisenberg v. Montgomery Boston Latin, where access was normally County Public Schools95 the 4th Circuit has reserved for students with the highest scores declared that it will assume, at least until on competitive merit examinations. The 1st the Supreme Court declares otherwise, that Circuit's decision held that when school efforts to achieve "diversity in student popu- boards operate special schools with the goal lations" do further a constitutionally suffi- of nurturing exceptional talent, no child cient end. Yet both decisions faulted school should be deprived of a place earned on the board assignment policies for being insuffi- merits, because of inflexible racial consider- ciently "narrowly tailored" to survive the ations even to further diversity ends.92 second prong of the Supreme Court's strict Student assignments to most public schools, scrutiny test. by contrast, are not made on the basis of In reaching its conclusion, Tuttle looked merit, and Wessmann's logic simply does not to five "narrow tailoring" criteria that had extend to those routine choices, as two Mas- earlier been cited by the Supreme Court in sachusetts federal courts have since con- United States v. Paradise," an affirmative cluded when addressing challenges against action case involving employment discrimi- ordinary student assignment practices in nation in the hiring of Alabama state troop- other Massachusetts school districts.93 ers. The five Paradise factors included: To summarize, then, neither the affirmative action decisions of the Supreme Court (1) the efficacy of alternative race-neutral nor the logic and rationale of those decisions policies, (2) the planned duration of the hold or suggest that school board efforts to policy, (3) the relationship between the nu- achieve racial'and educational diversity in merical goal and the percentage of minor- America's public schools are impermissible ity group members in the relevant popu- ends. As we will see later, the overwhelm- lation or work force, (4) the flexibility of ing weight of educational research and in- the policy, including the provision of waiv- formed public policy argues strongly to the ers if the goal cannot be met, and (5) the contrary. Bringing the children of this multi- burden of the policy on innocent third par- ethnic nation together to live and learn in ties." our classrooms and schoolyards is one of the most compelling objectives for state and lo- In measuring Arlington's policies against cal governments in the early 21st century. these five factors, the Tuttle court began by noting that a local committee, studying admissions policies in Arlington County, had identified an alternative assignment policy, not adopted by the school board, that would have been race-neutral. The court concluded

Citizens' Commission onCivilRights 59 Chapter 5 Part Two: Segregation in Education

that since this alternative proposal would America's racial and ethnic groups maintain have been race-neutral, the board's race-con- any separate cultural and social identity. 102 scious policy was not tailored narrowly In its consideration of the third Paradise enough to avoid the unnecessary use of ra- factor, what seemed dispositive to the Tuttle cial considerations." panel was its view that "racial balancing" was Yet the Tuttle panel stopped too soon, for driving the entire Arlington County pro- the Supreme Court had earlier made clear cess.103 For the Tuttle panel, the desire for that when examining this "narrow tailoring" racial balance seemed sufficient to condemn requirement, a court's job did not end sim- the Arlington policy without further analy- ply because it had identified an alternative, sis or citation; the Eisenberg court agreed, race-neutral plan. Lower courts are instead citing a number of cases that purportedly obligated to "examine the purposes the [chal- condemned racial balancing. Yet what those lenged school policy] was intended to serve" Supreme Court cases actually condemned and determine whether alternative means was racial balancing ordered by federal would equally or better serve to carry out courts.'" As we noted earlier, the Supreme those purposes.99 Moreover, the Paradise Court expressly distinguished in Swann be- Court admonished that a remedial plan need tween the limited authority of federal courts not be limited to "the least restrictive means to order racial balancing to remedy a proven of implementation." It recognized that the constitutional violation and the "broad "choice of remedies to redress racial dis- power" of school boards "to formulate and crimination is 'a balancing process." implement educational polic[ies that] might The Tuttle panel next turned to consider well [include]... aprescribed ratio of Negro the "planned duration of the [p]olicy" insti- to white students reflecting the proportion tuted by the Arlington school board.m Quot- for the district as a whole." ing Justice O'Connor's opinion from Croson, The Tuttle panel turned next to the fourth the court proposed an invariable rule that of the five Paradise factors, "the flexibility "a racial classification cannot continue in of the [state's race-conscious] policy."105 The perpetuity but must have a 'logical stopping panel contrasted Justice Powell's favorable point," and concluded that the Arlington discussion in Bakke of Harvard's flexible policy was not "narrowly tailored" because admissions plan, one that considered race a it was of apparently indefinite duration.101 "plus" factor in reviewing applications Once again, this approach avoids serious re- Harvard was, by the 4th Circuit's lights, flection on the purpose of the criterion. When "treat[ing] each applicant as an individual the government's objective is the remediation in the admissions process" with the more of its own prior discrimination, the need will inflexible policies that, like those of the Ar- usually be only temporary, until it has re- lington school board, did "not treat appli- dressed the wholesale exclusion of the pre- cants as individuals."106 Yet the differences viously underrepresented racial group. Un- between Harvard and the Arlington public der those circumstances, it is logical for schools are manifest. Elementary students courts to insist upon a stopping place. By con- have no enforceable right to be "treated as trast, a school board's objective in creating a individuals" when being assigned to public diverse student population is not for schools. Indeed, there is little pretense that remediation of past misdeeds but to further school boards weigh student abilities or in- a future goal of best educating children who terests at all in making school assignments. will live and work in a heterogeneous, multi- Residential location has traditionally been racial nation. That need is not short term determinative, and district lines are adjusted but long term, extending at least as long as every few yearsoften dividing streets and

s o Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

neighborhoods in ways that would be judged Eisenberg's transfer plan, however, pur- purely arbitrary if assessed in terms of the ported to assess the individual merit of stu- needs or interests of the individual children dent applicants for magnet schools or trans- on each street. Yet because school districts fers; thus, the considerations of fairness that deliver a system of "common, public schools, were central in the 1st Circuit's decision in available to all," their schools are deemed the Wessmann decision are not applicable fungible for legal purposes, and students are in the more routine assignment case. deployed to different schools at the discre- The final Paradise factor considered in tion of the school board. As one recent fed- Tuttle was "the burden on innocent third eral court in Massachusetts observed in up- parties" whom it depicted as "young kinder- holding a race-conscious transfer program garten-age children."108 The court suggested in the Lynn public schools: it would be ironic for the Arlington board "to teach young children to view people as As compared to the Boston Latin School individuals rather than members of certain [the competitive school at issue in the racial and ethnic groups [and yet] classif[y] Wessmann case] the schools in the Lynn those same children as members of certain system are more fungible. Nothing indi- racial and ethnic groups."°9 Such assign- cates that one school is considered clearly ment policies, however, are neither ironic superior to all others. While parents' sub- nor self-contradictory. What public school jective preferences for certain schools may students learn from each other when they be strong, there is no clear objective ben- arrive at school is neither limited to, nor efit to attending any one school over an- constrained by, the assignment plans that other. In this sense, the plan is merely have brought them together. Schools, prin- race-conscious in deciding where students cipals, and teachers often mix together el- will be eligible to attend school, not race- ementary students for a variety of reasons: preferential in deciding which students those with different academic strengths; may attend better schools. boys with girls; stronger readers with weaker Moreover, no merit issues are involved. all to pursue valid educational goals. The policies do not grant preferences to Schools have done so at every academic level students of one race who are objectively from time immemorial. It is simply untrue less qualified than students of other races. that the deliberate use of racial classifica- Unlike many challenged race-based pro- tions will necessarily lead students to think grams, more qualified applicants are not of their classmates only in racial or ethnic excluded from access to a scarce resource terms. or benefit. No one is excluded from par- Indeed, it is far more likely that if willing ticipating in the benefit; all students at- school boards cannot assign students to tend a school.107 schools by race or ethnicity, we risk a return to a time when each school child could (and Of course, if and when school boards in- did) identify "white schools" and "black stitute public merit schools limited to stu- schools," simply by reference to the predomi- dents with exceptional needs or abilities, nant race of the children who attended them. they normally undertake individualized con- Far more certainly than school boards' good- sideration among potential applicants. At faith efforts to assure educational diversity, that point (though not before) the concerns this de facto resegregation of our schools will voiced in Bakke begin to outweigh a school re-create the conditions condemned in board's unilateral authority. Neither Tuttle's Brown in 1954. weighted lottery plan for magnet schools nor

61 Citizens' Commission onCivilRights Chapter 5 Part Two: Segregation in Education

Beyond the 4th Circuit's mistaken reliance the lowest bidder, or to the most reliable upon the five Paradise factors in assessing company, but to all there simply are no the adequacy of the school board's "narrow victims in the sense that has troubled fed- tailoring" of their race-conscious plans, the eral courts in other, zero-sum-game contexts. more fundamental failure of these two 4th Were the Tuttle plaintiffs disappointed Circuit cases was their neglect of the deeper when their daughter was denied attendance questions that "narrow tailoring" presents at the Arlington Traditional School? Of in the public school context. Both decisions course they were. But every autumn, hun- purported to accept educational diversity as dreds of thousands of parents are similarly a constitutionally acceptable end. Yet if disappointed when they learn that their chil- achieving diversity in local school popula- dren have been assigned to public schools tions is indeed compelling, why may school not of their hearts' desire. Dispatching chil- boards not work to attain it in the most di- dren to new and unfamiliar schools can pro- rect and logical way assigning children to voke apprehension in parents and children assure that every school will reflect racial alike. Yet federal and state laws do not rec- and ethnic diversity? The 4th Circuit's best ognize these anxious parents as legal victims, (non)answer seems to be that school boards with rights to vindicate or losses that entitle may only achieve racial diversity indirectly, them to seek compensation. There are no by employing nonracial assignment consid- principles of constitutional educational law erations. that afford a cognizable, vested liberty or Yet that answer betrays an underlying con- property interest in attending any particu- ceptual misunderstanding. If a school board lar elementary and secondary school.'" that employs another, racial-neutral assignment plan fails thereby to achieve actual racial and ethnic diversity in its schools, may it try again? Surely it would be untenable In sum, then, our close evaluation of the for federal courts to say 'no,' that is, to ac- legal evidence has reached three conclu- knowledge a state interest as compelling, yet sions. First, the Supreme Court has long di- refuse to allow the means necessary to at- rected school boards to employ race-contain it. On the other hand, if school boards scious student assignment policies to rem- may try again, then presumably they can try edy their own prior creation and mainte- a succession of race-neutral methods, one nance of segregated public schools. Second, after another, until they find one that suc- the Supreme Court has sent strong signals, ceeds in achieving racial diversity. Yet this for at least 30 years, that public school au- brings us full circle, for if a school board may thorities may voluntarily take race or permissibly pursue school diversity as a race- ethnicity into account in order to achieve conscious goal, why is it impermissible to educational diversity or eliminate lingering take a direct route rather than an adminis- racial isolation when they assign children to tratively cumbersome, analytically dubious, public schools. Third, the Supreme Court's path toward the same end? constitutional decisions in the contracting, The best, though unsatisfying, answer may set-aside, and employment area simply do be the courts' concern to avoid harm to "in- not support the broad extension of a "color- nocent parties" to the full extent possible; blind" approach to school boards that assign indeed, the two opinions voice precisely this elementary or secondary students to public concern. Yet when a school board is distrib- schools for educational diversity ends. uting a common goodwhen its assignments Conservative advocates who now support are made not to the most meritorious, or to a contrary position doubtless have strong

62 Citizens' Commission onCivilRights -

ideological convictions in doing so; some may past two decades, that strongly confirms the actively wish for, or be indifferent to, the desirability of integrated schooling)11 Pub- widespread racial resegregation that will lic schools present many children with their certainly follow if their arguments are first and only public interracial experi- broadly accepted. They cannot plausibly ences.'12 Such experiences often lead to sig- claim, however, that their misguided course nificant reductions in racial stereotyping is compelled either by the 14th Amendment among students, reduced interracial anxi- or by the prior jurisprudence of the Supreme eties, and positive responses to persons of Court. other races in interracial vocational settings."' Interracial exposure strongly affects fu- IV. The Crucial Need for ture life trajectory as well. One extensive ongoing study of minority children who moved Educational Diversity in from segregated Chicago city schools to in- Coming Decades tegrated suburban Chicago schools has established that these integrated children are Although this essay has dealt chiefly with subsequently "more likely to be (1) in school, legal considerations, school boards in (2) in college-track classes, (3) in four-year shaping the essential mission of the public colleges, (4) employed, and (5) employed in schools normally begin with careful con- jobs with benefits and better pay)14 Studies sideration of the chief educational interests in other school districts confirm that deseg- at stake. In a world growing more racially regated educational experiences can lead to and ethnically interdependent every year, significant improvements in the higher edu- many boards nationwide have concluded cational attainment, employment success, that children have compelling educational and residential community choice of minor- interests in learning more about children of ity students.'5 other racial and ethnic backgrounds. From In addition, desegregation has been shown that exposure, children can discern for them- to positively affect the academic perfor- selves the role that racial background plays mances of minority students. Professors (or very often, does not play) in students' re- Christopher Jencks and Meredith Phillips sponses to good literature, their thoughts on report extensive research suggesting that civic issues, their work together in groups, "[d]esegregation seems to have pushed up and the way they approach contemporary southern blacks' [school test] scores a little problems. Indeed, the pedagogical objective without affecting whites either way." Pro- in assuring racially diverse classrooms fessors Rita Mahard and Robert L. Crain seems founded not upon some chimerical ste- have found that desegregated public school reotype about 'what African American chil- experiences by students who began deseg- dren think' or 'how Hispanic children be- regated education in the early grades had have,' but on precisely the opposite view significant, though modest, improvements in that all children share many more things in the tests scores of minority students."6 common than they do differences and that One federal court in Washington State re- the best device for overcoming the lingering cently summarized such a body of expert racial suspicions or prejudices is exposure, evidence in a case challenging student as- not separation. signment plans: These judgments rest upon a large body of social scientific evidence, conducted in the The research shows that a desegregated educational experience opens opportunity

Citizens' Commission onCivilRights networks in the areas of higher education as individuals, not "as cogs in a social experi- and employment, particularly for minor- mentation machine."119 ity students, which do not develop when It is the prospect that additional federal students attend less integrated schools.. . court decisions may soon follow, replacing Theresearchshowsthatacademic the carefully considered, extensively de- achievement of minority students im- bated, good-faith judgment of elected school proves when they are educated in a de- board officials with an inflexible role no- segregated school, likely because they have where found in the Constitution or the pre- access to better teachers and more ad- cedents of the Supreme Court, that pres- vanced curriculum. The research also ently pose a real and immediate threat to shows that both white and minority stu- the educational experiences of millions of dents experienced improved critical think- American school children. ing skills the ability to both understand and challenge views which are different from their own when they are educated V.The Indispensable Role in racially diverse schools. . . . The research clearly and consis- To Be Played by Federal tently shows that, for both white and mi- and State Officials in nority students, a diverse educational experience results in improvement in race- Maintaining Racially and relations, the reduction of prejudicial at- Ethnically Diverse Public titudes, and the achievement of a more democratic and inclusive experience for Schools all citizens. ...Recent research has identified the critical role of early school expe- A legal campaign is underway, as we have riences in breaking down racial and cul- seen, one with a far-reaching agenda. It tural stereotypes. would forbid all American school boards

Research. . . shows that, as a group, from taking race or ethnicity into account minority students who exited desegregated when they assign students to particular high schools were more likely to be em- schools (even from considering racial demog- ployed in a racially diverse workplace, ob- raphy when they redraw school attendance tained more prestigious jobs than those zones).12° Many school boards simply do not who did not, and that their jobs tended to have the legal sophistication to counter the be higher paying than those students who well-financed, expertly counseled, ideologi- did not attend desegregated schools.117 cally driven foe they now face. Although the traditional civil rights groups have served A number of the new federal decisions, in- as counsel in a number of these cases, they cluding that of the district court in Swann/ have small budgets, face many competing liti- Capacchione, have conceded the significance gation priorities, and ultimately lack the of much of this evidence, noting "that chil- capacity to respond to these attacks in ev- dren may derive benefits from encounters ery forum in which they m4 arise. with students of different races."118 Yet the The U.S. Department of Justice has played Swann/Capacchione judge nonetheless con- a crucial role in mounting or assisting in demned the Charlotte-Mecklenburg school many school desegregation cases during the board's "single-minded focus on racial diver- past 40 years.121 More recently, its voice and sity" and ordered that students be viewed resources have played an important role in affirming that educational diversity is an end

64 Citizens' Commission onCivilRights -

sufficiently compelling to survive strict ju- society has traditionally relied upon pub- dicial scrutiny under the Equal Protection lic schools to lay the bedrock for integra- Clause.122 It will be of greatest importance tion. Elementary and secondary schools in the coming decade, as school boards were not only designed to prepare students struggle to educate American children for for the challenges and opportunities of life in a nation and a world grown ever more American life; they were also meant to diverse, for the Department of Justice to serve as melting pots where interracial support with its prestige as well as its friendship could counteract prejudice at legal resources the critical distinction be- an early age. Separatist educational ar- tween government consideration of race in rangements threaten both of these goals.'" various zero-sum contexts and voluntary, good-faith efforts by willing school boards to Nothing less than a "separatist educational assure that their elementary and secondary arrangements" is at stake in litigation that schools do not become racially and ethnically would deprive school boards of the discre- isolated, one from another. For, as Chief tion to assure students the opportunity to Judge J. Harvie Wilkerson, III, has observed: learn in schools "meant to serve as melting pots where interracial friendship could coun- The values of Brown are most poignantly teract prejudice at an early age." implicated [in public education], because

Citizens' Commission onCivilRights -

Endnotes

1 347 U.S.C. § 483 (1954). See Richmond v. J.A. Croson Co., 488 U.S.C. § 469 (1989) (municipal construction contracts); Adarand Constructors, Inc. v. Pena, 515 U.S.C. § 200 (1995) ("Adarand") (federal construction contracts). 3 See U.S. v. Paradise, 480 U.S.C. § 149 (1987) (hiring of state troopers); Wygant v. Jackson Board of Education, 476 U.S.C. § 267 (1986) (layoffs of public school teachers). 4 See Regents of University of California v. Bakke, 438 U.S.C. § 265 (1978) (admission to medical school); see also Hopwood v. Texas, 78 Federal Reporter 3d 932 (5th Circuit 1996) (admission to law school). 5 See Shaw v. Hunt, 517 U.S.C. § 899 (1998); Miller v. Johnson, 515 U.S.C. § 900 (1995); Shaw v. Reno, 509 U.S.C. § 630 (1993). 6 Adarand, 515 U.S.C. § at 223. 7 Id. at 237. 8 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.C. § 1, 16 (1971) ("Swann") (observing that a school board decision to require each school to meet "a prescribed ratio of Negro to white students... as aneducational policy is within the broad discretionary powers of school authorities"). 9 Of course, the crucial link between colorblindness and these dire educational and social consequences lies in the nation's continued residential segregation, a social reality even the "colorblind" can surely see. Although some school boards may turn to creative alternatives, see Elizabeth Jean Bower, Note, "Answering the Call: Wake County's Commitment to Diversity in Education," 78 North Carolina Law Review 2026 (2000) (describing the Wake County, North Carolina plan, which will rely on both student test scores and parental income levels to distrib- ute school children among Wake County schools), most school boards, if no longer able to consider race or ethnicity as they make student assignments, will experience strong political and social pressures to assign students based upon their neighborhood of residence. And throughout the nation at large, most of those neighborhoods are currently, and long have been, segregated by race, and to a lesser extent by socio-economic class. See generally Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass, at 61-88, tables 3.1, 3.3, 3.4 (1993) (describing and documenting the persistence of residential segregation and "hypersegregation" in major metropolitan areas in every geographical region of the United States in 1970 and 1980); Reynolds Farley and William H. Frey, "Changes in the Segregation of Whites from Blacks during the 1980s: Small Steps toward a More Racially Inte- grated Society," 59 American Sociological Reviezv 1 (1994) (documenting a slight overall decline

6 0 66 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

in average residential segregation from 1980 to 1990, measured by the widely used "dissimilar- ity index," from 78.8 to 74.5); see also John Yinger, "Housing Discrimination Is Still Worth Worrying About," 9 Housing Policy Debate 893, 910-11 (1998) (noting that these declines reported by Farley and others are "modest," and insisting that "[t]he degree of [residential] segregation between blacks and whites, by any measure, remains far above the degree observed between any other two large groups," which rarely exceed 30 among any European ethnic group); Gary Orfield and Susan Eaton, Dismantling Desegregation: The Quiet Reversal of Brown v. Board of Education, at 291-300 (1996) ("Dismantling Desegregation") (examining the close relationship between housing segregation and the educational isolation of minority students, and federal judicial reluctance to acknowledge either the relationship or the extensive governmental complicity in perpetuation of segregated housing). 10 See William L. Taylor, "The Continuing Struggle for Equal Educational Opportunity," in Race, Poverty, and American Cities, at 463-70 (John Charles Boger and Judith Welch Wegner, eds., Chapel Hill, NC: University of North Carolina Press 1996) (reviewing evidence on the positive educational benefits of desegregation); Gary Orfield, "Unexpected Costs and Uncer- tain Gains of Dismantling Desegregation," in Dismantling Desegregation at 73-114 (reviewing both the positive benefits of school integration and the unrecognized costs of resegregation). " 195 Federal Reporter 3d 698 (4th Circuit 1999), cert. dismissed, 120 Supreme Court Re- porter 1552 (2000). 12 197 Federal Reporter 3d 123 (4th Circuit 1999), cert. denied, 120 Supreme Court Re- porter 1420 (2000). 13 Capacchione v. Charlotte-Mecklenburg Schools, 57 Federal Supplement 2d 228 (W.D.N.C. 1999), aff'd in part and rev'd in part sub nom. Belk v. Charlotte-Mecklenburg Board of Education, 269 Federal Reporter 3d 305 (4th Circuit 2001) (en banc). 14 See generally, Boston's Children First v. Boston, 98 Federal Supplement 2d 111, 112-14 (D. Massachusetts 2000) (denying school committee's motion to dismiss plaintiffs' allegations that the Boston School Committee's creation of attendance zones, based in part on racial considerations, violates the 14th Amendment and other federal and state laws); Comfort v. Lynn School Committee, 100 Federal Supplement 2d 57 (D. Massachusetts 2000) (denying injunctive relief to plaintiffs who allege that school district's plan, which limits student transfers that might increase racial isolation or imbalance, violates the 14th Amendment and various federal and state statutes); Brewer v. West Irondequoit Central School District, 212 Federal Reporter 3d 738 (2d Circuit 2000) (vacating a district court injunction that had forbidden a school board's use of race-conscious assignment policies as a 14th Amendment violation and remanding for a full trial on whether the goal of reducing racial isolation constitutes a sufficiently compelling interest to justify race-conscious assignments to public schools); Rosenfeld v. Montgomery County Public Schools, 2001 U.S. App. LEXIS 27330 (4th Circuit, Dec. 27, 2001) (affirming, the dismissal, for lack of legal standing, of a challenge brought by white parents who alleged that Montgomery County's assignment plan for "gifted and talented" students relied, in part, upon racial considerations); Hampton v. Jefferson County Board of Education, 102 Federal Supple- ment 2d 358, 382 (W.D. Kentucky 2000) (dissolving a 25-year-old school desegregation decree and enjoining any further use of race-conscious admissions for a special magnet high school that operated to exclude African American students from those programs); Hunter v. Regents of University of California, 190 Federal Reporter 3d 1061, 1067 (9th Circuit 1999) (rejecting a challenge to the race-conscious selection of elementary students for admission to a university- based, research-oriented public school that sought, as part of its mission, to study the effects of racial integration); Parents Involved in Community Schools v. Seattle School District No. 1, 137

6 7 61

Citizens' Commission onCivilRights 4 Chapter 5 Part Two: Segregation in Education

Federal Supplement 2d 1224 (W.D. Washington 2001) (rejecting the claim that the 14th Amend- ment and federal statutes forbid the Seattle School Board from considering race in making school assignments, even for the objectives of encouraging racial diversity and combating de facto racial segregation). See also Lutheran Church-Missouri Synod v. FCC, 141 Federal Re- porter 3d 344, 354 (D.C. Circuit 1998) (suggesting that racial diversity may never be a compelling governmental interest). 15 The Center for Individual Rights (CIR) and the Institute for Justice are both active on this issue. The CIR has crafted a litigation campaign to challenge any use of race, proclaiming in its web site that: CIR is perhaps best known for it role as counsel to the plaintiffs in Hopwood v. Texas, a constitutional challenge to racial preference in student admissions. Hopwood was the first successful challenge since the Supreme Court 1978 ruling in the Bakke decision. The Fifth Circuit's decision in Hopwood is widely viewed as the most important civil rights case of the 1990s. CIR since has moved to extend the Hopwood holding through legal challenges to racially discriminatory admissions systems in other judicial circuits, including the University of Washington Law School [Smith v. University of Washington Law School, CV No. C-97-335 (W.D. Washington filed Mar. 5, 1997)] and the University of Michigan.

See . See generally "Beachhead for Conservatism," National Law Journal, Dec. 27, 1999, at All (naming the Center as its "runners-up" for lawyers of the year and explaining that while "[s]everal conservative groups are fighting similar battles the Institute for Justice and the Washington Legal Foundation, among others ...CIR has been especially effective, carefully selecting both its battles and the circuits they fight them in, with an eye to victory"). The Institute for Justice, which describes itself alternatively as "our nation's only libertarian public interest law firm" and as a "merry band of libertarian litigators," see , , has identified opposition to racial preferences as one of the six legal areas in which its work focuses, although that work to date seems directed more toward the active support of citizen initiatives or referenda, in states such as California and Washington, to ban all race-conscious governmental actions, than toward participation in litigation. . 16 Regents of the University of Californiav. Bakke, 438 U.S.C. § 265 (1978) ("Bakke"). The plaintiff in that case was a disappointed applicant to the University of California at Davis Medical School who challenged a policy that set aside 16 out of 100 seats in each entering class for applicants from certain minority groups. In resolving this challenge, the Court fractured into three groups. The first group, a more liberal faction of four Justices, contended that "benign" uses of race (such as affirmative action when used to increase the number of minority students attending institutions of higher education) should be judicially reviewed under the 14th Amendment, applying a less exacting "intermediate" standard that can be met by demonstrating that a state's use of race was "substantially related" to an "important governmental interest," such as the redress of prior "societal discrimination." A second group of four more conservative Justices would not have reached the 14th Amendment issues in Bakke at all, urging instead that any race-conscious behavior violated Title VI of the Civil Rights Act of 1964. Justice Powell wrote alone, though his judgment for the Court drew four votes from more liberal Justices on some positions and four votes from more conservative Justices on others. While every major facet of his opinion commanded five votes, no other single Justice agreed

68 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

with his entire opinion. Justice Powell did reach the 14th Amendment issues in Bakke, and concluded that the state's use of race in admissions decisions required strict scrutiny by a federal courtproof that the racial considerations were "precisely tailored" to accomplish a "compelling" state interest. In addition, Justice Powell, joined by the four liberals, went on to hold that the "attainment of a diverse student body ...clearly is a constitutionally permissible goal for an institution of higher education." 438 U.S.C. § 311-12. Nevertheless, he did not approve the particular use that UC Davis Medical School made of race during its admissions process, and reasoned that le[thnic diversity ...is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." In sum, Justice Powell's opinion held that while achieving student diversity in higher education is a compelling state interest sufficient to survive strict scrutiny by a federal court, and while race may constitutionally be used as a "plus" factor in admissions decisions, race may not be employed as the sole factor in determining admission for seats in an entering medical school class. 438 U.S.C. § 311-18. 17 See Hopwood v. Texas, 78 Federal Reporter 3d 932 (5th Circuit), cert. denied, 518 U.S.C. § 1033 (1996) (holding that the use of racial considerations by the University of Texas Law School in making admission decisions violated the Equal Protection Clause); Johnson v. Board of Re- gents of University of Georgia, 263 Federal Reporter 3d 1234 (11th Circuit 2001) (holding that the University of Georgia's preferential treatment of nonwhite applicants violated the Equal Protection Clause); Grutter v. Bollinger, 137 Federal Supplement 2d 8212, 848 (rejecting educational diversity as a sufficiently compelling interest to justify race as one consideration in making law school admissions decisions) (E.D. Michigan 2001), appeal pending, 247 Federal Re- porter 3d 821 (6th Circuit 2001) (granting stay pending the appeal). 18 Smith v. University of Washington Law School, 233 Federal Reporter 3d 1188, 1201 (9th Circuit 2000) (holding that "educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures"), cert. denied, 121 Supreme Court Reporter 2192 (2001); Gratz v. Bollinger, 122 Federal Supplement 2d 811, 819021 (E.D. Michigan 2000) (upholding the use of racial considerations by the University of Michigan in making undergraduate admissions decisions), appeal pending. 19Parents Involved in Community Schools v. Seattle School District No. /, 137 Federal Supple- ment 2d 1224, 1230 (W.D. Washington 2001). 20 347 U.S.C. § 483 (1954). 21 391 U.S.C. § 430 (1968). 22402 U.S.C. § 1 (1971). 23Green, 391 U.S.C. § 437-38. 24Id. § 435.

25Swann, 402 U.S.C. § 22-31. 26Proper remediation in Charlotte-Mecklenburg, Chief Justice Burger wrote, would require an lalwareness of the racial composition of the whole school system;" a "limited use ...of mathematical ratios [setting a 71% white, 29% black target for assignment of students to most Charlotte schools] was within the equitable remedial, discretion of the District Court." Id. § 25. 27Id. § 26. 28402 U.S.C. § 43 (1971). 29Id. § 46. 3°Id. § 45-46. 31Id. 32See Keyes v. School District No. 1, Denver, Colorado, 413 U.S.C. § 189, 208 (1973) (holding

Q Citizens' Commission onCivilRights 6 9 Chapter 5 Part Two: Segregation in Education

that a districtwide school desegregation decree was warranted upon proof that a school board had administered its school statutes with the intent to create or maintain racially segregated schools in a substantial portion of the system); Milliken v. Bradley, 418 U.S.C. § 717, 744-45 (1974) (holding that a federal court lacked authority to order interdistrict school segregation in a metropolitan area absent proof that the district lines were drawn for racial reasons, or that the violations in one school district caused segregation in an adjacent district). 33402 U.S.C. § 1 (1971). 34Id. § 16. 35 Bustop, Inc. v. Board of Education, 439 U.S.C. § 1380, 1383 (1978). 36Id. § 1382-83. 37Id. § 1383. 38Id. 39Keyes v. School District No. 1, Denver, Colorado, 413 U.S.C. § 189, 242 (1973) (Powell, J., concurring in part and dissenting in part). 4° Id. (Powell, J., concurring in part and dissenting in part). 41Id. 42See also Offermann v. Nitkowski, 378 Federal Reporter 2d 22, 24 (2d Circuit 1967) (holding that a school district's voluntary use of race in making school assignments to end de facto segregation is constitutionally permissible when "its use is to insure against, rather than to promote deprivation of equal educational opportunity"); Lee v. Nyquist, 318 Federal Supple- ment 710 (W.D.N.Y. 1970), aff'd without opinion, 402 U.S.C. § 935 (1971) (holding that a New York State statutory provision that forbade state officials or appointed school boards from assigning students or from altering school attendance zones in order to improve racial balance was unconstitutional). 43See Washington v. Seattle School District No. 1, 458 U.S.C. § 457 (1982) ("Washington"). 44Id. 45Washington, 458 U. S.C. § 474. 46Id. § 473.

47Id. § 474. A dissenting opinion in Washington by Justice Powell did not dispute the constitutional authority of the local board to engage in race-conscious student assignments, but instead focused on whether it was appropriate for federal courts to intrude on a dispute between the State of Washington and its local school boards over student assignment policies. Washington, 458 U.S.C. § 488-89. ' 438 U.S.C. § 265 (1978). 50Id. § 269-75. 51Id. § 299, 305. 52Although Justice Powell and four other members of the Court concluded that race may constitutionally be used as a "plus" factor in admissions decisions, Justice Powell additionally held that race may not be employed as the sole factor in determining admission for seats in an entering medical school class. Instead, he reasoned that "[e]thnic diversity...is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body." Id. § 311-12, 314. 53Id. § 316-18. 54For evidence that the Bakke principle was relied upon by colleges and universities, one need look no further than to former Presidents of Princeton and Harvard, see William G. Bowen and Derek Bok, The Shape of the River: Long Term Consequences of Considering Race in College

70 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 5

and University Admissions, at 8 (1998) ("On of the authority of Justice Powell's decisive opinion in Bakke, virtually all selective colleges and professional schools have continued to consider race in admitting students"). See also Bernard Schwartz, Behind Bakke: Affirmative Action and the Supreme Court, at 154 ("A special committee appointed to analyze [New York University Law School's] admission policy in light of the Bakke decision reported that the policy should be guided by the Powell opinion.") 55488 U.S.C. § 469 (1989). 56515 U.S.C. § 200 (1995). 5757 Federal Supplement 2d 228 (W.D. N. C. 1999), aff'd en banc sub nom. Belk v. Charlotte- Mecklenburg Board of Education, 269 Federal Reporter 3d 305 (4th Circuit 2001) (en banc). " 269 Federal Reporter 3d 305 (4th Circuit 2001) (en banc). 5957 Federal Supplement 2d 241. 60488 U.S.C. § 469 (1989). Croson, 488 U.S.C. § 486. In Croson, the parties drew their battle lines over the meaning of a prior decision by the Supreme Court in Fullilove v. Klutznick, 448 U.S.C. § 448 (1980), which had recognized congressional authority to set aside a certain percentage of government construction contracts for minority contractors in order "to identify and redress the effects of society-wide discrimination." In her Croson opinion, Justice O'Connor explained that the latitude afforded to Congress by Fullilove had been dependent upon "the unique remedial powers of Congress under §5 of the Fourteenth Amendment." Because of its constitutionally authorized role "to enforce the dictates of the Fourteenth Amendment," Congress could use racial classifications to "identify and redress the effects of society-wide discrimination" under a more deferential standard of judicial review. In contrast, Justice O'Connor reasoned, "States and their subdivisions are [not] free to decide that such remedies are appropriate. Section 1 of the 14th Amendment is an explicit constraint on state power, and the States must undertake any remedial efforts in accordance with that provision." Croson, 488 U.S.C. § 488-90. 62la". § 491-92; see also id. § 504. In this portion of her Croson opinion, only Chief Justice Rehnquist and Justice White join Justice O'Connor; elsewhere, she spoke for at least five members of the Court. " Id. § 524 (Scalia, J., concurring in the judgment). 64Id. § 525 (Scalia, J., concurring in the judgment). Justice Scalia's sole authority for the "implicit" principle he attempted to identify was a single "cf" citation to the Court's 1976 decision in Pasadena City Board of Education v. Spangler, 427 U.S.C. § 424 (1976) ("Pasadena"). Upon examination, however, Pasadena offers no support for Justice Scalia's position. Indeed, the case stands for the very different proposition that once a dual system has been completely disestablished, federal courts may not order further race-conscious relief. Pasadena says absolutely nothing about the latitude open to school boards that act voluntarily. See Pasadena, 427 U.S.C. § 433-35. Croson, 488 U.S.C. § 493 (emphasis added). In this portion of the opinion, Chief Justice Rehnquist and Justices White and Kennedy joined Justice O'Connor. 66To be sure, as Justice O'Connor was explaining the central purpose of the strict scrutiny standard "to 'smoke out' illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool" she pointed out the "danger of stigmatic harm" that racial classifications often carry, and observed in passing that lulnless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority." 488 U.S.C. § 493. Although one circuit judge, writing in dissent, has characterized her remark as holding that racial classifications can never be justified except in a

71 Citizens' Commission onCivilRights Chapter 5 Part Two: Segregation in Education

remedial context, (see Hunter ex rel. Brandt v. Regents of University of California, 190 Federal Reporter 3d 1061, 1070 (9th Circuit 1999) (Beezer, J., dissenting)), other respected jurists such as Judge Richard Posner have expressly declined to read Justice O'Connor's remark in so categorical and sweeping a fashion, see, e.g., Wittmer v. Peters, 87 Federal Reporter 3d 916, 919 (7th Circuit 1996). 67515 U.S.C. § 228. 68Id.

69See id. § 239 (Scalia, J., concurring in part and concurring in the judgment). 70 Id. § 241 (Thomas, J., concurring in part and concurring in the judgment). Croson, 488 U.S.C. § 468, 512 (1989) (Stevens, J., concurring in part and concurring in the judgment); see also Adarand, 515 U.S.C. § 243 (Stevens, J., dissenting) (contending that benign race-conscious state actions should not be subjected to strict judicial scrutiny, since "[n]o sensible conception of the Government's constitutional obligation to 'govern impartially,'...should ignore [the] distinction" between "a policy that is designed to perpetuate a caste system and one that seeks to eradicate racial subordination"). 72Adarand, 515 U.S.C. § 258 (Stevens, J., dissenting). 73Croson, 488 U.S.C. § 551-52 (Marshall, J., dissenting). 74Id. § 536-37 (Marshall, J., dissenting). 75See Adarand, 515 U.S.C. § 264-72 (Souter, J., dissenting); id. § 271-72 (Ginsburg, J., dissenting). 76After reviewing Croson, Adarand, and other pertinent authorities, Judge Richard Posner of the 6th Circuit concluded in 1996 that "[a] judge would be unreasonable to conclude that no other consideration except of history of discrimination" could warrant state use of race-conscious measures without first considering the specific circumstances that presented themselves to state policymakers. Wittmer v. Peters, 87 Federal Reporter 3d 916, 919 (6th Circuit 1996). Judge Posner expressly held that "the rectification of past discrimination is not the only setting in which government officials can lawfully take race into account in making decisions." Id. § 919. 77 The Swann/Capacchione court also cited a dissenting opinion by Justice O'Connor, joined by the Chief Justice and by Justices Scalia and Kennedy, in the case Metro Broadcasting, Inc. v. FCC, 497 U.S.C. § 547, 602 (1990) (O'Connor, J., dissenting), overruled by Adarand, 515 U.S.C. § 227 ("Metro Broadcasting"). The five-Justice majority in Metro Broadcasting upheld the promotion of "programming diversity" as a sufficiently important governmental end (under a lower standard of Equal Protection review deemed applicable to federal governmental decisions) to justify a racial/ethnic preference in the federal government's awarding or transferring of certain FCC-supervised broadcasting licenses. In dissent, Justice O'Connor subjected the FCC's justification of "broadcast diversity" to a withering analytical attack. The heart of her argument appears in the following quotation:

Modern equal protection doctrine has recognized only one [compelling governmental interest]: remedying the effects of racial discrimination. The interest in increasing the diversity of broadcast viewpoints is clearly not a compelling interest. It is simply too amorphous, too insubstantial, and too unrelated to any legitimate basis for employing racial classifications. The Court does not claim otherwise. Rather, it employs its novel standard and claims that this asserted interest need only be, and is "important" [under intermediate scrutiny review]. This conclusion twice compounds the Court's initial error of reducing its level of scrutiny of a racial classification. First, it too casually extends the justifications that might support racial classi-

72 Citizens' Commission onCivilRights : -

fication, beyond that of remedying past discriminations... . Second, it has initiated this departure by endorsing an insubstantial interest. 497 U.S.C. § 613. It was almost certainly from this paragraph that the district court in Swann/ Capacchione drew its generalization about the permissible range of "compelling governmental interests." Yet a close reading defeats the meaning that the court would ascribe to the passage. Justice O'Connor clearly was not speaking prescriptively here to set the outer boundaries of compelling state interest law but instead descriptively to observe that no previous decision of the Court had recognized a nonremedial interest as compelling. Her descriptive use appeared even more clearly in her follow-up critique, in which she lamented that the Court had "too casually" extended the justification for a race-conscious action. What evidently distressed Justice O'Connor was that, by lowering the standard of review, the majority had gone into unfamiliar legal territory approving a nonremedial justification for a racial classification without the careful consideration that strict scrutiny entails. Justice O'Connor's later insistence in Adarand that some additional compelling governmental interests do exist and might survive strict scrutiny made it unmistakable that neither she nor the other Metro Broadcasting dissenters (apart from Justice Scalia, of course) intended permanently to close the door on governmental interests that might justify race-conscious actions for other than remedial ends. 7878 Federal 3d 932 (5th Circuit 1996). 79Id. § 944. 80Instead, the Court denied certiorari. See Hopwood v. Texas, 518 U.S.C. § 1033 (1996). Justice Ginsburg, joined by Justice Souter, wrote a brief opinion respecting the denial of certiorari, emphasizing that, while the use of race by public universities in their admissions decisions was "an issue of great national importance," Hopwood itself was not a good vehicle for Supreme Court review, since all parties conceded "that the particular admissions procedure used by the University of Texas Law School in 1992 was =constitutional" and had "long since been discontinued." Id. § 1034.

81Moreover, the Swann/Capacchione court failed to address earlier cases that pointed in the opposite direction. Among those were the following lower court decisions, all of which recognized some appropriate use of racial considerations in voluntary schooling contexts. See Riddick v. School Board of Norfolk, 784 Federal Reporter 2d 521 (4th Circuit 1986) (upholding authority of a unitary school board to take "white flight" into consideration and to adopt a plan relying upon neighborhood schools with the aim "to keep as many white students in public education as possible and so achieve a stably integrated school system"); Parents Association of Andrew Jackson High School v. Ambach, 598 Federal Reporter 2d 705, 717-21 (2d Circuit 1979) (holding that a race-conscious state student assignment plan, designed to minimize white flight from public schools, can survive strict scrutiny if it is narrowly tailored to attain the compelling end of promoting racially integrated public schools). 82Croson, 488 U.S.C. § 493. 83Id. § 493-94. 84Id. § 499. 8538 Federal Reporter 3d 147 (4th Circuit 1994). 86160 Federal Reporter 3d 790 (1st Circuit 1998). 87Capacchione, 57 Federal Supplement 2d 241 (quoting Maryland Troopers Association v. Evans, 993 Federal Reporter 2d 1072, 1976 (4th Circuit 1993)). 88See, e.g., In re United States ex rel. Missouri State High School Activities Association, 682

7 3 Citizens' Commission onCivilRights Chapter 5 Part Two: Segregation in Education

Federal Reporter 2d 147, 152 (8th Circuit 1982) (observing that "[s]tudents have no indefeasible right to associate through choice of school. Mandatory assignment to public schools basedon place of residence or other factors is clearly permissible"); Wharton v. Abbeville School District No. 60, 608 Federal Supplement 70, 76 (D. S. C. 1984) (noting that plaintiffs in that school desegregation case had "presented no independent source, either in the law of South Carolina,or otherwise, which has granted to them a legitimate claim of entitlement to attenda particular school"); Citizens Against Mandatory Bussing v. Palmason, 495 P.2d 657, 663 (1972); cf. Bronson v. Board of Education of City School District, 550 Federal Supplement 941, 959 (S. D. Ohio 1982) (noting that "Ohio law....does not confer a right upon pupils to attend a specific school, even if they were previously assigned thereto"), modified and aff'd on other grounds, 525 Federal Re- porter 2d 344 (6th Circuit 1975). 89 As the Chief Judge of the 4th Circuit has noted, "[i]n drafting attendance plans, school

boards have always been free to deny parental preference for any one of a hundred reasons... [O]nce a child is in a public school, the parent cannot dictate what teacher he gets, whatcourses he takes, what grades he receives, or what discipline he meets." J. Harvie Wilkinson, III, From Brown to Bakke: The Supreme Court and School Integration, at 109 (1979) ("Wilkinson"). 9° 160 Federal Reporter 3d 790 (1st Circuit 1998). 91 See Capacchione, 57 Federal Supplement 2d 291-92. 92 160 Federal Reporter 3d 800. 93 See Comfort ex rel. Neumyer v. Lynn School Committee, 100 Federal Supplement 2d 57, 65-68 (D. Massachusetts 2000) (distinguishing Wessmann); Boston's Children First v. Boston, 62 Federal Supplement 2d 247, 258-61 (D. Massachusetts 1999) (same). 94 195 Federal Reporter 3d 698 (4th Cir. 1999), cert. dismissed, 120 Supreme Court Re- porter 1552 (2000). 95 197 Federal Reporter 3d 123 (4th Circuit 1999), cert. denied, 120 Supreme Court Re- porter 1420 (2000). 96 480 U.S.C. § 149, 171 (1987). 97 Tuttle, 195 Federal Reporter 3d 706 (quoting Hayes, 10 Federal Reporter 3d 16; Paradise, 480 U.S.C. § 171). 98 Id. § 706 and note 11. In footnote 11, the panel recited the alternatives that had been mentioned by the school committee, but it made no independent assessment of their effectiveness in promoting diversity. 99 Paradise, 480 U.S.C. § 172-73. Indeed, in Paradise itself, the Supreme Court rejected arguments by the State of Alabama that other proposed alternatives would suffice, finding them "inadequate because [theyl failed to address" some of the compelling ends identified in the opinion. 100 Tuttle, 195 Federal Reporter 3d 706. 101 Id. (quoting Croson, 488 U.S.C. § 498). 102 See Wilkinson at 304 (commenting with approval on Justice Powell's choice of diversity as the "most acceptable public rationale" in Bakke, contrasting its forward-looking perspective with remedial or compensatory rationales, and observing that at least in education, "the need for diversity will continue forever, as long as race matters to men"). 103 Tuttle, 195 Federal Reporter 3d 706; see Eisenberg, 197 Federal Reporter 3d 131-32. 104 See Tuttle, 195 Federal Reporter 3d 707; Eisenberg, 197 Federal Reporter 3d 131-32, citing Pasadena City Board of Education v. Spangler, 427 U.S.C. § 424, 436 (1976) and Freeman v. Pitts, 503 U.S.C. § 467, 497-98 (1992). 1°5 Tuttle, 195 Federal Reporter 3d 707.

74 Citizens' Commission onCivilRights -

106Id. 107 Comfort ex rel. Neumyer v. Lynn School Committee, 100 Federal Supplement 2d 67. See also Parents Involved in Community Schools v. Seattle School District No. /, 137 Federal Supple- ment 2d 1230-32 (distinguishing between more neutral "reshuffling" plans that do not confer any special benefit by race and "stacked deck" plans that specifically favor some racial groups in competitive applications). 1" Id. at 707. 109 Id. 110 See, generally, Leroy J. Peterson et al., The Law and Public School Operation, § 11.6, at 333-34 (1968) (stating that school boards are not required to assign a child "to the nearest school or the school most conveniently located," nor will a court "compel reassignment to the school selected by the parents"); 3 James A. Rapp, Education Law, § 8.02[8], at 8-64 (1999) ("There is no constitutional right to a particular placement. A student does not have a proprietary interest in where the student receives an education. Students do not have a right to . .. aparticular school."); 1 William D. Valente, Education Law: Public and Private, § 9.2, at 138-39 (1985) ("The discretion vested in local school boards to assign students to particular schools is limited only by the rules against abuse of discretion and special circumstances. ...Absent constitutional compulsion or state legislation that mandates neighborhood school assignments, students have no general right to be assigned to a neighborhood school."). See, e.g., Janet W. Schofield, Promoting Positive Peer Relations in Desegregated Schools, in Beyond Desegregation: The Politics of Quality in African American Schooling, at 91, 93 (Mwalimu J. Shujaa, ed., 1996). 112Janet W. Schofield, "Review of Research on School Desegregation's Impact on Elemen- tary and Secondary School Students," in Handbook on Research on Multicultural Education (James A. Banks and Cherry A. McGee Banks, eds., 1994) 113James E. Rosenbaum et al., "Can the Kerner Conunission's Housing Strategy Improve Employment, Education, and Social Integration for Low-Income Blacks?," in Race, Poverty, and American Cities, at 273, 300 (John Charles Boger and Judith Welch Wegner, eds., 1996). 114Amy Stuart Wells and Robert L. Crain, "Perpetuation Theory and the Long-Term Ef- fects of School Desegregation," 64 Review of Education Research 531 (Winter, 1994); Marvin Dawkins et al., "Why Desegregate? The Effect of School Desegregation on Adult Occupational Desegregation of African American, Whites, and Hispanics," 31(2) International Journal of Con- temporary Sociology 273 (1994); James M. McPartland and Jomills H. Braddock, II, "Going to College and Getting a Good Job: The Impact of Desegregation," in Effective School Desegrega- tion (Willis D. Hawley, ed., 1981).

115Christopher Jencks and Meredith Phillips, "The Black-White Test Score Gap: An Intro- duction," in The Black-White Test Score Gap, at 1, 9, 26, 31 (Christopher Jencks and Meredith Phillips, eds., 1998); Rita Mahard and Robert L. Crain, "Research on Minority Achievement in Desegregated Schools," in The Consequences of School Desegregation, at 103-25 (Christine H. Rossell and Willis D. Hawley, eds., 1983). 116Capacchione, 57 Federal Supplement 2d 291. 117Id. 118Capacchione, 57 Federal Supplement 2d at 291. 119Id.

128See Boston's Children First v. City of Boston, 62 Federal Supplement 2d at 249 (noting that plaintiffs there seek not only to "eliminate the use of race as a factor in the assigning of

'7 5 Citizens'Commission onCivilRights -

students to individual schools" but"challenge the way in which the [Boston School Committee has] divided up the school zones"). 121 The United States Department of Justice led or participated in many of the most wide- ranging Southern school desegregation cases. See, e.g., United States v. Jefferson County Board of Education 372 Federal Reporter 2d. 836 (5th Circuit 1966), adopted en banc 380 Federal Reporter 2d 385 (5th Circuit 1967) (requiring school districts throughout the six states of the old 5th Circuit Georgia, Florida, Alabama, Mississippi, Louisiana, and Texas to begin immediate school desegregation); Lee v. Macon County Board of Education, 267 Federal Supple- ment 458, 460-61 (M.D. Alabama), aff'd sub nom. Wallace v. United States, 389 U.S.C. § 215 (1967) (requiring immediate steps toward statewide school desegregation in Alabama); United States v. State of Georgia, 19 Federal Reporter 3d 1388, 1390 (11th Circuit 1994) (noting that in 1969, the United States filed suit against the state of Georgia and 81 public school districts in the state, seeking school desegregation); United States v. State of Texas, 158 Federal Reporter 3d 299, 301 (5th Circuit 1998) (noting that since 1971 the Texas public education system has been governed by a federal court desegregation order). The DOJ has also played a major role in many Northern and Midwestern school cases. See, e.g., Reed v. Rhodes, 607 Federal Reporter 2d 714 (6th Circuit 1979) (Cleveland, Ohio); Liddell v. Board of Education, 667 Federal Reporter 2d 643 (8th Circuit 1981) (St. Louis); Columbus Board of Education v. Penick, 443 U.S.C. § 449 (1979) (amicus curiae in support of court-ordered desegregation of Columbus, Ohio, schools); Dayton Board of Education v. Brinkman, 443 U.S.C. § 526 (1979) (amicus curiae in support of court-ordered desegregation of Dayton, Ohio, schools); United States v. Yonkers Board of Edu- cation, 837 Federal Reporter 2d 1181 (2d Circuit 1989) (affirming school and housing desegregation orders in Yonkers, New York). According to Professor Parker, the Department of Jus- tice was a party to school desegregation litigation in approximately 400 school districts as of 1997. Wendy Brown, "The Supreme Court and Public Law Remedies: A Tale of Two Kansas Cities," 50 Hastings Law Journal 475, 480 n. 16 (1999). 122 See,e g Eisenberg v. Montgomery County Board of Education, 197 Federal Reporter 3d 123 (4th Circuit 1999) (amicus curiae in support of race-conscious student transfer plan); Brewer v. West Irondequoit Central School District, 212 Federal Reporter 3d 738 (2d Circuit 2000) (amicus curiae in support of inter-district, race-conscious school transfer program).

7 0 7 6 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 6

Chapter 6 Diversity in Higher Education: A Continuing Agenda by Arthur L. Coleman'

Introduction regard to affirmative action in higher education. Through its outreach, policy, technical assistance, research, enforcement, Affirmative action in higher education has seized center stage in recent years, with a andadvocacy-relatedactivities,the plethora of federal court decisions regarding Department has the potential to continue college and university admissions practices its balanced and strategic focus on this issue and the value of "diversity,"2 as well as one that is aligned with the educational interests and research relatedtothe countless headlines that emphasize the consideration of race or national origin in politicizationoftheissueandthe surrounding debate. The extremes of the higher education. With a series of steps that as reflect this alignment, the Department can political divide on thisissue are continue to establish a position of reasoned unwarranted as they are distracting. They leadership that rejects the polarity and the distract the dialogue from a more meaningful politics of the issue, just as it reinforces and important conversation and agenda that principles of educational soundness in its could: effort. Highlight the distinction between the largely indisputable value of diverse learning environments for all students I. Highlight the Value and and the means of achievingthat Importance of Diverse diversity, which include race-conscious programs; Learning Environments Emphasize the need to explore and Amid the debate about affirmative action, highlight various ways of achieving that one of the frequently overlooked points that diversity, including through race-neutral has generated relatively little dispute is the means; and fact that a diverse learning environment generates positive benefits for all students Call attention to the critically important from all walks of life.3 In fact, the rapidly role of race in higher education financial growing body of research on the subject aid decisions. confirms that there are teaching and learning, civic, and employment benefits The U.S. Department of Education has (among others) that inure to students in played a central and balanced role with higher education.4 Diversity can improve

. . 77 Citizens' Commission onCivilRights Chapter 6 Part Two: Segregation in Education

teaching and learning, both inside and public record accurately captures the body outside the classroom, by exposing students of research on the subject and reflects the to multiple perspectives on a range of issues consensus view (even among those who and by challenging their existing pers- might disagree about the means of achieving pectives,therebystrengtheningtheir diversity) that diversity in higher education critical thinking and problem solving skills. is of educational and economic importance Diversity can also enhance students' civic to our institutions of higher education and values by bringing students together across to our national well-being. lines of difference, real or perceived, and teaching students how to be good neighbors and citizens in our multicultural, democratic II. Explore and Highlight society. Finally, diversity can promote economic benefits by teaching students the VariousWays ofAchieving value of diverse perspectives and how to That Diversity, Including function most effectively in diverse business environments and the expanding global Through Race-Neutral marketplace.5 Means Notably, an increasingly strong voice in favor of pursuing strategies to promote Despite the broad-based support for campus diversity isthat of corporate diversity in higher education, race-conscious America. Supported by empirical evidence policies that have been designed to promote that "consistently" demonstrates that "more that goal have been under attack in recent diverse work teams produce ideas and years, both as to the question of whether the solutions that are more creative and of education-related diversity goals are "com- higher overall quality than homogenous pelling" under federal constitutional stan- groups," America's business community dards, and irrespective of this issue, with justifies the pursuit of higher education regard to whether the means for obtaining diversity as supporting both educational and the educational benefits of diversity are business interests. In a report issued in appropriately tailored to meet those goals. January of 2002, for instance, the Business- Again, the unnecessary politicization of the Higher Education Forum emphasized the latter issue masks the opportunity for economic power of bringing different ideas greater consensus. Given the benefits of and backgrounds to the table, particularly diversity, not to mention the benefits of in a world in which global markets demand greater access for minority students, the that employers focus on obtaining workers focus should be on developing and sup- who "have studied and lived with people porting strategies that can achieve diversity from a range of racial, ethnic, and cultural while respecting to the fullest extent pos- backgrounds [who] are better prepared to sible competing values. In part, this means collaborate with colleagues around the "mending, not ending" affirmative action globe, as well as to perceive and respond to programs, and this should be clear. But it world-wide business opportunities."' also means developing race-neutral stra- With this foundation of broad-based tegies that can be successful over time, as support, the Department of Education well as strengthening the education pipe- should, in its policy pronouncements, public line. This implies a series of questions that statements, and work with the Department should be a focus of research and related of Justice related to possible amicus and outreach efforts by the Department of case intervention decisions, ensure that the Education: 78

Citizens' Commission onCivilRights Are there race-neutral policies that can Ill. Acknowledge the Critical materially advance diversity interests in higher education? Role Financial Aid Plays in Students' Abilities to What are the ramifications of the use of these policies and how are diversity Pursue Higher Education interests affected? Goals and the Important What are the tradeoffs involved with but Limited Impact of respect to the multiple higher education Race-Conscious Financial admissions goals and related mission- Aid in That Context driven objectives? Frequently considered to be the third rail The current national debate regarding by affirmative action proponents, who affirmative action in higher education has categorically maintain that no race neutral centered on the highly visible federal court program can under any circumstances reactions that, with some exceptions, address plicate the "success" of race conscious race in admissions decisions.9 While criti- programs, this issue has for too long been at cally important for those selective insti- the center of the political vortex.8 As a result, tutions that consider race as part of the an honest and straightforward effort to admissions process, the affirmative action meaningfully evaluate the range of options issue in financial aid has significance and that may be considered in the context of potential impact that extends beyond the promoting diversity goals has been un- question of admissions.° First, minority necessarily hampered. students are more likely to come from low- The Department of Education could income families." As a result, for most of promote a comprehensive research agenda these students, the availability of financial devoted to a series of studies in multiple aid is a significant factor affecting their higher education and K-16 contexts. By ability to go to college." Second, at a time of helping to lead this national conversation increasing national diversity, and with the and examination, the Department would recognition that we can "leave no child help put us on a track toward achieving our behind," we face the prospect that by not diversity goals while addressing competing providing the necessary financial aid values over time. supporting college and university attendance, college campuses "will be missing" 800,000otherwisequalifiedminority students between now and 2015, with the commensurate impact of losses of billions of dollars to the national economy." Finally, the indisputable fact is that race-conscious financial aid policies provide opportunities to tens of thousands of students each year who attend our nations institutions of higher education'4 and it does so with less burden on non-beneficiaries than the consideration of race in higher education admissions decisions."

7 9 Citizens' Commission onCivilRights Given the important and expansive role Concluded that financial aid was a that financial aid plays with respect to minimally intrusive method for achiev- providing opportunities for students to ing student body diversity because of the attend institutions of higher education, the limited impact of such aid on non- issue of financial aid should be central in any minority students; and discussion about affirmative action. The need to preserve a full range of programs Affirmed many of the principles set forth and strategies to promote the educational in the 1991 proposed policy and des- interets reflected in diversity goals is thus cribed in detail the legal foundations closely associated with the need to ensure allowing for such aid.17 that college and universities do not in a time of increasing national diversity unduly With respect to diversity interests, in restrict the aid that has made the difference particular, the 1994 policy recognized the for so many minority students in higher possibility that colleges and universities education. could use race or national origin in situ- The U.S. Department of Education should, ations other than those in which race or therefore, take the necessary steps to affirm national origin was only a "plus" factor in its long-standing policy of support for such awarding student aid.18 Specifically, the scholarships, as it works to help institutions Department recognized that such aid might of higher education conform their practices be awarded "as a condition of eligibility.... to that policy. Importantly, with few ifitis narrowly tailored to promote exceptions, that policy document represents diversity." the work of two administrationsone Framed in the context of a still operative Republican and one Democratic in which legal framework, and grounded in a body of the U.S. Department of Education closely research and public commentary regarding examined the practice of race-conscious theissue,theU.S.Departmentof financial aid as well as governing legal Education's race-targeted scholarship policy principles as a foundation for its final policy is one that should continue to provide guidance. guidance to states and institutions of higher FollowingtheDecember10,1991, education, and serve as a basis for the publication of a notice of proposed policy Department of Education's outreach and guidance and request for public comment technical assistance efforts with respect to regarding race and national origin-conscious issues of federal compliance. financial aid, and the subsequent study of the General Accounting Office (GAO) regarding such aid, the Department of IV. Conclusion Education issued final policy guidance on February 23, 1994, which (among other The policy and enforcement respon- things): sibilities of the U.S. Department of Educ- ation that relate to the issue of affirmative Acknowledged the GAO finding with action must continue to be executed in a regard to the relatively small percentage balanced way that affirms educationally of such aid, when compared to all sound policies and practices, and that is scholarships at institutions of higher research-driven, nuanced, and reflective of education;16 stakeholder input. Principles of educational sufficiency lieat the heart of federal

8 0 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 6

compliance determinations and ultimately depend on context-specific facts and analysis, rather than on rhetoric or hyperbole. To continue to carry the mantle of leadership on the important issue of race in education, the Department should affirm that fact, and act in ways that will ultimately expand opportunities for all of America's youth.

Citizens'Commission onCivilRights Chapter 6 Part Two: Segregation in Education

Endnotes

I Counsel with Nixon Peabody LLP in Washington, D.C., Mr. Coleman served as Deputy Assistant Secretary in the U.S. Department of Education Office for Civil Rights during the Clinton Administration, where he led the Department's outreach and technical assistance efforts related to affirmative action. He is the author of the College Board's recent publication, Diversity in Higher Education: A Strategic Policy and Planning Manual (2001). 2 E.g., Hopwood v. Texas, 78 Federal Reporter 3d 932 (5th Circuit), cert. denied, 518 U.S.C. § 1033 (1996); Smith v. University of Washington Law School, 233 Federal Reporter 3d 1188 (9th Circuit 2000), cert. denied, 121 Supreme Court Reporter 2192 (2001); Johnson v. Board of Regents of the University System of Georgia, 106 Federal Supplement 2d 1362 (S.D. Georgia 2000), aff'd, 263 Federal Reporter 3d 1234 (11th Circuit 2001); Gratz v. Bollinger, 122 Federal Supplement 2d 811 (E.D. Michigan 2000); Grutter v. Bollinger, 2001 U.S. District Lexis 3256 (E.D. Michigan 2001). 3 For example, the parties in the University of Michigan litigation in which admissions policies related to the undergraduate institution and the law school have been challenged do not debate the existence of educational benefits of a diverse learning environment. They dispute the claim that such benefits amount to a "compelling interest" under prevailing federal standards, and that the programs in question have been appropriately designed and implemented to achieve those goals. See Gratz v. Bollinger, 122 Federal Supplement 2d 811 (E.D. Michigan 2000); Grutter v. Bollinger, 2001 U.S. District Lexis 3256 (E.D. Michigan 2001). See also Great Expectations: How the Public and Parents White, African American, and Hispanic View Higher Education, at 13 (Public Agenda 2000). 4 See, e.g., Diversity Challenged: Evidence on the Impact of Affirmative Action (Orfield and Kurlaender, eds., President and Fellows of Harvard College 2001) ("Diversity Challenged"); American Council on Education and American Association of University Professors, "Does Diversity Make a Difference? Three Research Studies on Diversity in College Classrooms," Stanford University Center for Comparative Studies in Race and Ethnicity 1999) ("Compelling Interest"). See generally Coleman, Diversity in Higher Education: A Strategic Planning and Policy Guide (The College Board 2001) ("Diversity") (providing a bibliographic summary of research related to the educational benefits of diversity produced by the U.S. Department of Education in November of 2000); Expert Report of Patricia Gurin in Gratz v. Bollinger and in Grutter v. Bollinger.

82 Citizens' Commission onCivilRights Part Two: Segregation in Education Chapter 6

Palmer, "A Policy Framework for Reconceptualizing the Legal Debate Concerning Affirmative Action in Higher Education," in Diversity Challenged. See also Compelling Interest; Diversity. 6Crossing the Great Divide: Can We Achieve Equity When Generation Y Goes to College?, at 39 ("Crossing the Great Divide"). 7Investing in People: Developing All of America's Talent on Campus and in the Workplace, at 35 (Business and Higher Education Forum 2002). See also Amicus Brief of General Motors Corporation in Grutter v. Bollinger, at 1 (concluding that "the future of American business and, in some measure, of the American economy depends upon [racially and ethnically diverse student bodies["). 8See, for example, the U.S. Conmiission on Civil Rights Report (Apr. 11, 2000) and Dissenting Statement regarding various state percentage plans, which address the elimination of affirmative action in Texas and California and the subsequent enactment of "race neutral" policies designed to promote a more diverse student population in higher education. In Texas, following Hopwood v. Texas, 78 Federal Report 3d 932 (5th Circuit), cert. denied, 518 U.S.C. § 1033 (1996), which prohibited the use of race in admissions decisions, the state established a new set of admissions criteria known as the "10 percent plan," pursuant to which students graduating in the top 10% of their high school classes would be guaranteed admission to any state institution of higher education. In California, following the elimination of affirmative action, the state guarantees college admission to any student ranked in the top 4% of his or her high school class, but unlike the Texas plan, the California plan does not guarantee a student admission to the institution of his or her choice; it guarantees admission only to one of the University of California campuses. 9See supra n. 2. Compare Condit v. State of Oklahoma, CIV-99-2106-W (Western District of Oklahoma) (involving challenge to a statewide scholarship program involving, among other things, scholarships related to the National Achievement Scholars Program and the National Hispanic Scholars Program). '° See, e.g., Thomas J. Kane, "Misconceptions in the Debate over Affirmative Action in College Admissions," Chilling Admissions: The Affirmative Action Crisis and the Search for Alternatives, at 28 (Orfield and Miller, eds., President and Fellows of Harvard College 1998) ("While the extent of affirmative action seems to be significant at elite schools, there is little evidence of race-based admissions policies at the institutions that enroll 80 percent of four- year college students"). " Money Matters (American Council on Education 1999). 12Terenzini et al., Swimming Against the Tide: The Poor in American Higher Education (The College Board 2001); see also Carnevale and Fry, Crossing the Great Divide, at 29 (ETS 2000) (college enrollment is "sensitive to tuition and fee costs," and the "correlation between cost and attendance is especially true for low-income youth"). 13Id.

1456 Federal Register 64,548 (1991) (citing an American Council on Education study finding that 45,000 minority students at four-year colleges received "race-exclusive scholarships" "scholarships for which students of only a designated race or national origin may compete"). 15 59 Federal Register 8756 (1994). 16The General Accounting Office concluded that "many schools" used minority-targeted scholarships "to some extent" but that those scholarships "were a small proportion of all scholarships" awarded. It determined that despite the "widespread use" of such scholarships, they accounted "for a small share of all scholarships and scholarship dollars," representing "no

Citizens' Commission onCivilRights '83 Chapter 6 Part Two: Segregation in Education

more than 5 percent of all undergraduate and graduate scholarships and scholarship dollars. . ..[and] 10 percent of all [professional school] scholarships and 14 percent of scholarship dollars." 17 The issuance of the 1991 proposed policy and the subsequent final policy in 1994 followed a turn of events at the Department of Education, where, between 1990 and 1991, Secretary of Education Lamar Alexander reversed his Assistant Secretary for Civil Rights, who had declared that Title VI categorically prohibited the award of scholarships on the basis of race. Secretary Alexander affirmed that the Department would "continue to interpret Title VI as permitting federally funded institutions to provide minority scholarships." Washington Legal Foundation v. Alexander, 984 Federal Reporter 2d 483, 485 (D.C. Circuit 1985). The 1991 proposed policy guidance, providing for the first time in the Department's history a "clear set of principles" based on a "full policy review" surrounding the use of race-conscious scholarships, 56 Federal Register 64,548 (1991), explained that the Department planned to interpret Title VI "as permitting race-based scholarships in a variety of instances." Alexander, 984 Federal Reporter 2d 485. 18 59 Federal Register 8761.

Citizens'Commission onCivilRights Part Two: Segregation in Housing Chapter 7

Chapter 7 Urban Fragmentation as a Barrier to Equal Opportunity by john a. powell and Kathleen M. Graham'

Introduction terized by racial segregation and concentrated poverty.2 These physical circum- This chapter describes an important prob- stances limit the reach of many civil rights lem that has received almost no attention efforts and present a major obstacle to the as a civil rights issue the fact that our considerable work of securing the civil American cities have sprawled into thou- rights described elsewhere in this report. sands of autonomous and homogenous self- The demographics are well known a interested suburbs. Why is this a civil rights highly disproportionate number of African issue? There are two powerful reasons why Americans live in those central urban areas this is one of the most important civil rights that are most isolated from economic issues of the new millenium. One is the resources, educational and social oppor- impact of the phenomenon and the other is tunities, and political power, while most its genesis. Despite many gains in our whites have moved, with those resources and society, we remain frustrated with per- opportunities, to the suburbs. This racial- sistent segregation in our housing market, ization of residential space over the last 50 the deterioration and economic and racial years was no accident. The federal govern- segregation of our schools, racial discrim- ment played a key role in paving the way ination in our workplaces and racial seg- for the majority of white metropolitan regation of the job market, and a visible residents to migrate out of the nation's disparity in both tax base and demand for central cities while simultaneously denying municipal services between some wealthy to African Americans living in urban suburbs and stressed older cities. These communities significant available resources problems are often interrelated and they are that could have fostered the healthy a direct consequence of the growth of development of those communities. The sprawling and fragmented metropolitan result is the physical distancing of the areas. The genesis of this phenomenon is economic and social resources required for rooted in two historical dynamics the African American citizens and communities federally subsidized movement of the largely to thrive. Those resources now reside in white middle class from city to suburb and inaccessible and autonomous enclaves establishmentof outside the city, where concentrated poverty thestate-authorized renders the goals of civil rights legislation thousandsofindividualautonomous governments in those suburbs. These two unattainable. dynamics have left the majority of African Importantly, the states have granted to Americans living in urban areas charac- local municipal authorities autonomy in

85 Citizens' Commission onCivilRights Chapter 7 Part Two: Segregation in Housing

establishing boundaries, land use policies, localized self-interested nature of our taxation, education, and the provision of fragmented metropolitan areas. other services. The result has been the proliferation of thousands of suburban municipal jurisdictions, each seeking to I. The History of Sprawl and create and attract a valuable tax base while simultaneously externalizing expensive Concentrated Poverty social costs and excluding people of color. In other words, the federal subsidy to move, A. The American Metropolis Is combined with the local power to exclude, Highly Geopolitically Fragmented drew white people and opportunity from the city while walling in people of color with The emerging literature of urban growth constantly diminishing resources. describes the vast physical sprawl and Thisalteredgeopoliticallandscape, stunning demographic transformation of resulting from the fragmentation of local urban spaces over the last50years.3 People government function into thousands of self- moved from city to suburb in extraordinary interested jurisdictions, remains unnamed numbers, with the result that most metro- and unrecognized as the most significant politan whites live in suburbs and most obstacle to the achievement of full civil African Americans live in city centers. To rights for African Americans. The enforce- understand the obstacle that this urban ment of laws, policies, and regulations that history presents to the achievement of civil are designed to ensure equal opportunities rights goals, it is necessary to examine that in employment, housing, education, and history thoughtfully, beginning with two public accommodation is not possible when simple dynamics repeatedly described by those opportunities are located far from the researchers: first, there has been a constant residential spaces occupied by the laws' population migration from the "old" city intended beneficiaries. Moreover, the right centers to a second, then third, then fourth to vote, or to hold office, is diminished when generation of "metro cores" at the ever- the electoral gain provides purview over a growing urban periphery; and, secondly, the disinvested economy, crumbling housing resulting sprawled population has organized stock, sinking tax base, inferior schools, and itself into literally thousands of self-deter- high but unmet demand for social services. mined local governmental units.4 For pur- Below we document the federal govern- poses of this chapter, the term "city" refers ment's central role in creating racialized to the central cities and "suburb" to those space and concentrated poverty among areas outside the city to which the popul- African Americans. Without minimizing the ation has moved since1950,granting that difficulty presented by the autonomy of respective suburbs, or layers of suburbs, may multiple local authorities, there is much the be quite different from each other.' federal government can do within existing and proposed laws and programs to open In1950, 56%of the nation's population lived in the168areas identified as metropolitan access for African Americans to the oppor- by the national census;660%of these metro- tunities from which they have been excluded. politan residents lived in the old central cit- But the government also needs to work ies.7 The dominance of the city in the metro- together withcivilrightsadvocates, politan region and the presence of city-based beginning now, to develop a more comprehensive strategy to counterbalance the public institutions produced a sense of re-

80 86 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

gional identity and unity, despite the het- expenses, the rush to the periphery was also erogeneity of the metropolitan population. significantly motivated by explicit racial By 1990, 66% of the nation's population discrimination.13 One researcher found that lived in the same 168 metropolitan areas, the desire for racial exclusion was a stronger but two-thirds of that population now lived forcedrivingincorporationofnew outside the central city, shrinking the urban governments in the 1950s and 1960s than the representation of the population to one- desire for better services and lower taxes.14 third in these metropolitan areas. Addition- In 1990, 33% of white metropolitan ally, 152 new metropolitan areas had been residents lived in central cities, whereas created by four decades of "new" urban 67.8% of African American metropolitan growth, with the result that three-quarters residents lived in central cities. Economic of the American public lived in 320 metro- segregation not only parallels this racial politan areas, most outside the city centers.8 segregation but is seen as increasing in The function of governing the population intensity with the proliferation of the of these metropolitan areas became highly, suburbs. For example, "areas of poverty" are indeed stunningly, fragmented. In 1950, 60% those where 20% or more of the residents of the 168 census-defined metropolitan have incomes below the federal poverty areas' population lived within 193 municipal level. Three of four poor urban African organizations; by 1990, 70% of those living Americans lived in such areas in 1990.15 in those same 168 metropolitan areas "fell "Concentrated poverty" exists where 40% or under the governance of approximately 9600 more of the residents have incomes below suburban cities, towns, villages, townships the federal poverty level; and in the cities, 1 and counties."9 Stated another way, in 1942 in 3 poor African Americans lives in a there were approximately 24,500 munici- neighborhood of concentrated poverty, palities and special districts in the United compared with 1 in 20 poor whites. More- States; by 1992 that number had more than over, between 1970 and 1990 the number of doubled to 50,834.'° concentrated poverty census tracts more than doubled, and the number of people B. The Fragmented Metropolis Is living in such tracts nearly doubled, while the overall population increased by only Economically and Racially 22%. By 1990 over half of the nearly eight Segregated million Americans living in concentrated poverty were African American, and a As the population moved outside existing quarter were Hispanic.16 city centers, frequen4 facilitated by the Four decades of migration from city to activities of real estate developers or suburb have resulted in the proliferation of manufacturers, citizens sought municipal more and more densely populated areas of incorporation in order to control their tax poverty and concentrated poverty within burden and define the character of their the city, disproportionately inhabited by neighborhoods." The reliance on local poor people of color, particularly African property taxes to fund services placed devel- Americans. The suburbanization of America opment of a strong tax base at a premium is thus inextricably tied to the creation and and created simultaneous pressure to limit expansion of the ghetto, barrio, and slum.17 density.12 While many new suburban Those who live in these urban areas are jurisdictions were thus fiscally motivated to completely isolated from the structures of use exclusionary zoning and development opportunity located in many suburbs. policies, to garner assets while controlling

Citizens'Commission onCivilRights 87 Chapter 7 Part Two: Segregation in Housing

In the 1970s and 1980s some African C.The Racialization of Impoverished Americans did move to the suburbs, and in some Southern cities rural African Amer- Urban Space and the icans became suburbanites as the metro- Fragmentation of City politan area grew around them. A closer Government Are the Result of look at these "black suburbs," however, Federal Programs and Policies and reveals that many are older cities in decline themselves, with relatively low socio- State and Local Law economic status and high population density.18 Further, moving to the suburbs has I. The Federal Role not meant that African Americans are integrated into the white metropolitan Both the population migration from city population. Suburbs where African Amer- to suburb and the exclusion of African icans have settled reflect rates of segre- Americans from that migration are directly gation and isolation ahnost as high as those attributabletofederal programs and of their respective city centers.19 For the policies.Neithermarketforcesnor most part, suburban opportunity structures aggregated private choices played as continuetoevade suburban African significantarole as did the federal Americans. government, augmented by state and local Even suburbs that have attracted middle- law and policy." As noted above, through the class African Americans and bear a semb- middleofthe20thcenturymost lance of economic stability risk economic metropolitan residents lived in the city meltdown. For example, Prince George's centers, where they frequently sorted County, Maryland, has been touted as "the themselves by class and race, with recog- highest per-capita income, majority black nizablewealthier neighborhoods and jurisdiction in the United States."2° In fact, racially segregated communities.24 Begin- this suburb is experiencing a decline in ning, however, with the National Housing property values, an increase in child poverty, Act of 1934, which created the Federal more numerous incidents of crime, lower Housing Administration (FHA), the federal standardized test results, and an increase government created the incentive to move in the population of low-income students.' out of the city and subsidized the move of A recent analysis revealed that the county's whites to the suburbs." The FHA both proximity and openness to neighborhoods subsidized mortgages and insured private populated by low-income African American mortgages, creating terms of suburban home families, its inability to attract new jobs, and ownershipthat werefrequentlyless its failure to capture other new economic expensive than renting.26 growth create an impending crisis.22 The On itsface the federal mandate to hope that African Americans would find stabilize and expand home ownership opportunity in the suburbs has been favored the new single-family housing in the undermined because the new residential suburbs, which had proportionately lower spaces are as fragmented and as segregated quantities of rental housing than found in as the old. the central cities. More importantly, both the FHA and its predecessor Home Owner- ship Loan Corporation (HOLC) incorporated explicit racial criteria in their own programs and in the home appraisal standards established for their vast and critical

Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

support of private mortgages. Indeed, insurance and banking industries' disinvest- "(f)ederally subsidized mortgages often ment in the housing stock of many central required that property owners incorporate city neighborhoods and all on explicitly (racially) restrictive covenants into their racial terms. deeds."' Other substantial federal financial sup- The FHA would insure mortgages (and by port that expanded and reinforced the the 1950s the FHA and Veterans Admin- settlement of the suburbs includes the istration (VA) were insuring half the mort- creation of the secondary mortgage market, gagesinAmerica) onlyin"racially whosegovernment-sponsoredentities homogenous" neighborhoods.28 The agency's (GSEs) raised billions of dollars, beginning underwriting manual required areas to be in the late 1960s, to be used by private investigated "to determine whether incom- frontline mortgage lenders. While civil patible racial or social groups are present, rights and consumer advocates succeeded in for the purpose of making a prediction preventing the Federal National Mortgage regarding the probability of the location Association (FNMA) from adopting policies being invaded by those groups. ." 29 People that sanctioned redlining, many discrim- of color were literally classified as nuisances, inatorypracticeswerealreadyen- to be avoided along with "stables" and "pig trenched.34 Thus, the GSE money poured pens."3° HOLC and the FHA created four into suburban housing and Congress did not categories of neighborhood value, with require GSEs to direct a designated share homogenous white neighborhoods in the of funds to mortgages for city center home- most valued category, and neighborhoods owners until the early 1990s.35 housing people of color, even in miniscule The federal government did turn its representation, relegatedtotheleast attention to the demise of urban centers desirable category.31 The FHA urged devel- when Congress appropriated funds for opers, bankers, and local government to use "urban renewal." These programs channeled zoning ordinances and physical barriers to $13.5 billion to cities for urban redevelop- protect homogeneity, and racially restrictive ment between 1953 and 1986. The end result covenants were a precondition of mortgage for many city residents was displacement insurance. "The FHA Insurance Manual from their poor but viable neighborhoods to used in the thirties and forties 'read like a high-density, high-rise public housing in chapter of the Nuremberg Laws.'"32 isolated sections of the city. Urban renewal These HOLC-FHA policies, augmented by became synonymous with "Negro removal," the Servicemen's Readjustment Act of 1944, frequently to "black holes of high crime and which ensured that returning veterans could poverty."36 Public housing that was intended buy their own homes through cheap VA to be temporary became permanent.37 The loans, set the stage for the post-World War unattractive downtown commercial build- II suburban boom the white migration to ings, parking ramps, and public housing new single-family homes in spaces away from complexes funded by federal money has- the city centers.33 Simultaneously, the tened the exodus of the middle class and federal government was withholding mort- privateinvestmenttosafer,cheaper gages, and mortgage insurance, from those territory.38 Urban hopes were again raised properties relegated to the undesirable by the federally funded Model Cities appraisal categories, i.e., from integrated program of the 1960s, when plans were and minority neighborhoods and older made to transform inner-city neighborhoods housing stock. The federal government was by linking residential rehabilitation to mas- thus responsible for its own as well as the sive investment in education, job training,

Citizens'Commission onCivilRights 8 9 Chapter 7 Part Two: Segregation in Housing

health care, all based on community input. center residents, who are dispropor- However, funding for implementation did tionately without access to cars, standing on not materialize and the program became a city streets waiting for overcrowded buses.' model of raised, and dashed, expectations." Even in the 1990s, when certain federal In addition to subsidizing homes in the highway funds were available on a flexible suburbs for whites, the federal government basis for states and regional localities to built and paved the roads that would carry transfer from highway programs to public the urban population away from the city transit projects, only $4.2 billion of the $33.8 center. Conceived and enacted in the 1950s, billion available, or 12.5%, was actually the interstate highway system, eventually transferred.46 54,714 miles of pavement, was originally Life in the sprawling suburbs is dependent designed to emphasize long-distance inter- on the automobile, and the automobile on state roads. Regardless, by the mid-1990s gasoline. A leading commercial real estate over half the $652 billion in highway aid (in advisor emphasizes that the real estate 1996 dollars) had been spent to construct industry has standardized suburban devel- 22,134 miles of new highways within opment in a way that creates distance, both metropolitanareas.4°These highways within the suburb and away from the city. invariably run from city center to suburb, or Suburbs are characterized by the spatial suburb to suburb, allowing white suburb- separation of places for shopping, working, anites the freedom to liveat greater playing, and living, and income-producing distances from their workplaces and making property is dependent on visibility from a it easy and advantageous for businesses to highway and accessibility by car.' Cars are relocate to suburbs with attractive tax required to negotiate this space, and cars advantages.41 Highways were even designed require more square footage than do the and located to divide the city along racial cars' owners, resulting in buildings "stran- and ethnic lines, heightening the isolation ded in the middle of vast asphalt parking of urban minorities.42 lots[1"48 The paramount importance of the No such investment in public transpor- automobile to suburban lifeis, again, tation, which would best serve residents of supported by federal tax policy. Due to the city center, occurred. Contrast the mag- modest gasoline taxes Americans pay one- nitude of the investment in federal highway half to one-third the price per gallon of gas dollars with the relatively modest aggregate paid in European countries.49 It is U.S. of $85 billion (in 1996 dollars) in federal aid national policy to promote cheap gasoline spent pursuant to 1964's urban mass transit and in the process subsidize the massive use legislation.43 Since many African American of the private automobile essential to central city households are without a car suburban life.5° in Philadelphia and Boston, roughly 50%; in Finally, federal grants have historically New York about 70% do not have access to a subsidized new suburban development by car public transportation is critical to providing billions of dollars to state and local these central cityresidents,to reach governments for new sewage treatment increasingly distant job sites." plants, much of the money used to provide The decentralization of transportation new capacity for suburban growth rather funding effectuated by the block grants of than to rectify problems or improve existing the 1980s has seen precious mass transit wastewater systems.51 dollars spent to assist commuters from Over time the federal programs and distant suburbs train to the financial city policies described in this section have been centers while leaving thousands of city revised to remove racially explicit criteria.

9 0 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

However, the policies and programs them- maintain boundaries has had on the selves continue. There has been no effort to development of American cities cannot be quantify the magnitude of the opportunities underestimated.54 lost by those individuals and communities An early federal court decision declaring who were excluded from significant federal zoning laws unconstitutional described benefits, or to ascertain the ongoing effects exactly the intended result of such laws: "to of these programs and policies on those classify the population and segregate them individuals and communities previously according to their income or situation in excluded. life."" And segregate they did, economically but particularly by race. Suburbs initially 2. The Role of State and Local drafted zoning ordinances and deed Government covenants with explicit racial exclusions, from the 1920s until they were declared As noted above,themigrationof illegalinthelate1940s. They then metropolitan residents away from city substituted and continue to use exclusionary centers was paralleled by the incorporation zoning in the form of restrictions on of thousands of economically self-interested multifamily housing and publicly financed suburban entities, fragmenting the function projects, and minimum acreage require- of governing the metropolis. States deleg- ments for the construction of single family ated to individual municipalities the power homes." Whether facially neutral exclus- to incorporate, tax, spend tax revenues ionary zoning was even necessary to exclusively on those who live within the maintain segregation is questionable, as municipal boundaries, and, critically, to racialized fragmented space will perpetuate control their respective land use, primarily itself even without further racist action." through the zoning power but also through The autonomy granted to local govern- condemnation, financial incentives, and ments in land use and related issues allowed municipal borrowing." both racial and economic incentives to The autonomy exercised by the suburbs, operate to exclude the poor, people of color, particularlyin zoning restrictions,is and particularly African Americans. In frequently but wrongly assumed to be a several important rulings the United States bedrock principle of democracy. In fact, local Supreme Court condoned and sanctioned governments have no claim to exercise this exercise of local autonomy. The Court control over their incorporated space, except held that it is constitutional for suburbs to by state delegation of that authority. Indeed, use exclusionary zoning ordinances that have the federal government played a significant demonstrable racial effects, absent clear role in spreading the idea of locally evidence of overt race-based animus; and to controlled zoning throughout the nation. In grant other preferences to residents over 1923 then-Secretary of Commerce Herbert nonresidents, also despite disparate racial Hoover authorizedthedraftingand effects." widespread circulation of the Standard State The Court's sanction of local autonomy in Zoning Enabling Act, following New York the area of education is among the most State's enactment of a similar provision. problematic for the advancement of the civil Within a few years more than half the states rights of African Americans. In Milliken v. had adopted the federal model, and today Bradley, the Court found that cross-district virtually every metropolitan area has desegregation measures could not be autonomouszoningauthority."The ordered unless it was shown that all importance that this authority to create and districts involved, in addition to the state,

91 Citizens' Commission onCivilRights had engaged in intentionally segregative D. Fragmentation Begets practices.59 While this decision did not completely rule out metropolitan-wide Homogeneity,Which Contributes desegregation efforts, it set a high standard to Structural Racial Inequality and of proof that has rarely been met.° The Hostility Toward the Poor and Court did not consider the historical People of Color in Particular motivation for those boundaries, or that it is the state, not the respective municip- The new political jurisdictions created by alities, that is the source of governmental the migration to the suburbs are more authority for the delegated powers at homogenous racially and economically than issue.61Either analysiswouldhave the cities from which these residents came.66 supported an interjurisdictional remedy. The greater the fragmentation in a metro- Similarly, the Court has ruled that school politan area the greater the observed financing can legitimately be limited to the economic and racial segregation.67 Geo- local tax base, regardless of the arbitrary and unequal results.62 graphic borders make racial and economic distinctions readily apparent, and the urban The Supreme Court has repeatedly ruled population has accordingly organized itself that there is no remedy where segregation into cities segregated by race, educational occurs interjurisdictionally rather than achievement, and occupation.° This high within a given jurisdiction. Interjuris- level of homogeneity has several conse- dictional segregation is almost always the quences. case, as suburbs have had free reign to First, African Americans who remain in attract and exclude residents and businesses urban centers of concentrated poverty consistent with their economic and racial remain segregated from opportunity. The preferences.° Moreover, the Court requires migration to the suburbs included not only that those who challenge municipal action people but resources. Employment has prove overt racially invidious intent.64 This moved to the periphery and, at least one evidentiaryrequirementpresentsan researcher would argue, to a select "favored insurmountable obstacle when the discrim- quarter" of the periphery.69 Thus, in the ination consists of facially neutral policies Chicago metropolitan region, from 1980 to designed to maintain the existing homogen- 1990 the "favorecLquarter" of the far north- eity of previously segregated space. western suburbs garnered 458,000 new jobs, The Supreme Court has thus granted the virtually the entire increase for that region.7° principle of local autonomy constitutional At the same time Chicago itself lost about status. It has examined, and-legitimated, the 90,000 jobs, the same number gained by fragmentation of metropolitan governance suburbs outside the favored quarter.71 One described above. It has legalized a process veteran urban researcher and analyst that contributes significantly to the contin- reports that 80% of all job creation in recent uing intense segregation of African Amer- decades has occurred in the suburbs.' icans in the inner city and to the location of Between 1970 and 1990 the percentage of opportunities in distant places.65 the nation's offices located in the suburbs grew from 25% to 60%.73 At the same time central cities were losing their traditional manufacturing jobs. The total proportion of metropolitan manufacturing jobs located in central cities fell from 63.3% in 1950 to 46.2%

92 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

in 1980, and has continued to fall to the between black and white and rich and poor. present.24 In the 20-year period from 1967 Suburb after suburb and neighborhood after to 1987 New York and Detroit each lost more neighborhood are organized in terms of a than 50% of their manufacturing jobs multitude of 'we' feelings, each of which (520,000 and 108,000 respectively), and defines itself in opposition to outsiders."78 Philadelphia and Chicago each lost more Other commentators on the dynamics of than 60% (160,000 and 326,000 respec- urban growth recognize that the economic tively).28 and racial segregation reflected in the Jobs moved away from central cities in fragmentation of metropolitan areas reduces large absolute numbers at the same time that the capacity of citizens to empathize with job creation in at least some suburbs soared. the "other."79 The fear of African American This happened at the very same time that ghettos and the complex of social problems the number of people living in concentrated often associated with the poverty found poverty in the central cities nearly doubled. there fueled, and was at times the primary The limited housing options physically proxi- cause for, white and middle class flight from mate to employment opportunities coupled city centers.8° with lack of transportation (both situations This increased aversion to all strangers, fueled by federal policy) preclude city resi- particularly those associated with complex dents from securing employment. and expensive social problems, combined Concentrated unemployment affects all with the decentralized power of local levels of social organization including jurisdictions, decreases the prospects for a those necessary for effective participation political solution tothe problems of in democratic government and civil society. fragmentedsprawland concentrated The prevalence and strength of social poverty. networks, the extent of collective super- Gentrification is sometimes heralded as vision and personal responsibility commun- an antidote to the problems of inner-city ities assume in addressing their problems, neighborhoods, as it frequently involves and the participation in formal or voluntary middle and upper-middle-class whites organizations are all affected by unemploy- returning to rehabilitate the housing stock ment.28 in declining urban neighborhoods. Commer- Other effects of concentrated poverty cial development may follow, to provide include poor school performance, higher services to a stable or affluent population. dropout and teen pregnancy rates, family And, arguably, diversity should increase and instability, and dramatic increases in homogeneity decrease. However, when crime.72 While white flight to the suburbs gentrification does occur, the poor whose and theexclusionary policiesof the neighborhoods are being "improved" are fragmented governments there created the forced to move to other areas of concen- increased concentrations of poverty in the trated poverty within the city or, where city centers, the residents of those centers affluent cities like San Francisco or Boston are frequently blamed themselves for the are concerned, to poor areas outside the bleak consequences of being left to live in city.81 The poor, frequently African Amer- diminished circumstances. icans, again find themselves in spaces A second insidious consequence of the physically distant from newly created division of metropolitan areas along racially opportunities.82 homogenous linesisthecreationof Revitalization of a city is not the same as intensified feelings of suspicion and fear. gentrification, it should be made clear, "Metropolitan areas are not simply divided because it does not necessarily entail

9 3 Citizens' Commission onCivilRights Chapter 7 Part Two: Segregation in Housing

displacement of low-income people of color. political power of African Americans in the Indeed, many cities with large low-income urban core while leaving them without populations greatly benefit from revital- access to the resources of the greater metro ization. The federal government should area. 85 encourage the development of mixed-income Several other urban theorists would and racially stable neighborhoods, but work oppose regionalization in the belief that to prevent displacement at the neighbor- small communities foster desirable attri- hood, city, and even regional levels. butes citizen participation, government responsiveness, cultural pride, and a sense of belonging." II. Regional Efforts to Despite these reasons for resistance to regional cooperation, the fact remains that Address Sprawl and sprawl and concentrated poverty cannot be Concentrated Poverty solved at the local level. As a result there are a growing number of instances where There havebeen someeffortsto some form of limited-purpose regional regionalize decision-making in metropolitan government and tax sharing is underway. areas, a logical response to problems that These efforts vary with the metropolitan transcend individual municipal boundaries. context. Most reformers accept that a move to For example, in Minnesota a state legis- metropolitan-wide government is unreal- lator who represents part of Minneapolis has istic, for several reasons.83 Most suburban used maps reflecting extensive census and jurisdictions are not interested in sharing fiscal data to demonstrate to the repre- the increased fiscal burden associated with sentatives of older, inner ring suburbs that regional government and, as described they share the plight of the central city in above, not only fear the communities of color subsidizing the infrastructure and develop- associated with inner cities but also feel ment of the newer suburbs. The older disassociated from those in other, econom- suburbs are in fact in decline themselves, ically differentiated suburbs. with aging infrastructures and housing stock There is also a well-founded concern on and declining tax base. Regional alliances the part of African Americans that hard-won among older suburbs and urban centers can political power would be diluted in a move seek mutually beneficial allocation of to regional decision-making. "Many inner- resources and resist the flow of benefits to city communities of color have resisted the newest suburbs. One researcher points regional strategies for fear of losing cultural out that only 15 to 30% of the population lives control, cultural identity, and political in these "favored quarters," although they power within their communities."84 In garner a disproportionate amount of the Indianapolis, for example, the regional "Uni- resources and contribute little if anything Gov" has diluted the political power of to the metropolitan area that has subsidized communities of color in the central city by their infrastructure. Thus older suburbs, uniting the Democratic presence in the city which initially zoned to keep the poor and with surrounding Republican areas. Schools, people of color out, might voluntarily, out of police and fire departments, and significant self-interest, ally themselves for limited welfarecosts, however, remain local purposes with the urban core.87 responsibility. This particular example of These voluntary alliances that grow out selective regionalism diluted the growing of grass roots efforts represent one approach to addressing sprawl and poverty. Another

94 Citizens' Commission onCivilRights : -

would encourage states to withdraw some areas with little opportunity for advance- of the autonomy granted to local government. When the Kerner Commission wrote ments, mandating regional solutions in the in 1968, many of the country's central face of local intransigence. This is what cities could still offer great opportunities happened in Atlanta. Traffic congestion for employment and economic advance- created by fragmented sprawl and lack of ment. By the early 1990s, employment and regional planning resulted in ozone levels economicwealthhadshiftedtothe that disqualified the region from receiving suburbs, . . . and the movement of the federal highway funds. The legislature middle classof allracial and ethnic stepped in, to create a regional transpor- groups out of cities had intensified.91 tation authority, with broad powers to shape transit, restrict development throughout the And the report contains a general re- area, and sanction cities or counties that do commendation that the President develop a not cooperate.88 comprehensive economic policy designed to Whether the result of voluntary alliances assist "particularly minorities who live in orstate-mandatedcooperation,these high concentrations of poverty in inner limited-purpose regional solutions are cities[.]"92 relatively rare. Their use might increase if This has not been done. Perhaps sprawl suburbanites recognize that their commun- has not received attention because it is not ities' interests lie beyond their residential recognized or prioritized as a civil rights status89 and if communities of color can find issue. It is hoped that the overwhelming ways to retain their political power while evidence of the federal government's key role seeking regional alliances to address the in creating the problem of sprawl and economic and social problems presented by concentrated poverty presented in this concentrations of poverty." While civil chapter will motivate appropriate positive rights advocates should be alert to press the steps on the part of the President and advantages that regionalism offers, they Congress.Effortstoaddresssprawl, must also turn their efforts to the federal transportation, education, pollution, and level. economic development must be undertaken with a consciousness of their consequences for inner-city residents. The promotion of national goals economic prosperity, III. A Call to Action:The enhancing the environment and improving Federal Government's safety, mobility, and quality of life can Response serve as the framework for federal actions. The magnitude of this problem cannot be In the introduction to the 1999 Report of underestimated. The breadth of the effort to rectify the consequences of concentrated the Citizens' Commission on Civil Rights, the poverty must match that magnitude. That editors mention the problem of concentrated effort must include plans adequate to poverty: dismantle the barriers that isolate African Americans from the real opportunities of the Particularlydaunting[in1993,the twenty-fifth anniversary of the Kerner twenty-first century. Commission]wastheplightofthe As a first step, each federal agency or minority poor, most of whom were locked program must evaluate all funding that inracially and economicallyisolated

95 8 9 Citizens'Commission onCivilRights goes to support local governmental units, the Americans with Disabilities Act, and the or to provide housing, transportation, Executive Order on Environmental Justice. education,healthcare,environmental Reference to these civil rights laws can benefits or services,infrastructure or further open the process to equity concerns. energy support. As to each, there should ISTEA and TEA 21 provide billions of be an accounting, to ascertain whether dollars per year for local highway use, facially neutral criteria are in fact main- through the federal Highway Trust Fund. taining or expanding theracialand Thus the federal leverage to influence local/ economicboundariescreatedbythe regional entities in pursuit of the fair dynamics of the sprawled and fragmented allocation of transportation funds, to move metropolitanareasdescribedinthis isolated urban residents to centers of chapter. opportunity, is substantial.

Existing laws that provide opportunities TitleVIII to remediate concentrated poverty or opportunities for the federal government to Federal agencies and executive depart- foster regional cooperation must be fully ments are already required to administer enforced. programs related to urban development in a way that advances the goals of fair housing Examples include: laws, by preventing further segregation and striving for integration of protected class ISTEA/TEA 21 members throughout the metropolitan region. Since "urban development" includes The Intermodal Surface Trans-portation employment growth, adequacy of educ- Efficiency Act (ISTEA) of 1991 and the ational systems, transportation, and housing Transportation Equity Act for the 21st development, this mandate represents Century (TEA 21) have the potential to another significant opportunity to address advance civil rights goals and overcome existing inequitable distribution of these fragmentation through the empowerment of resources. Advancement of fair housing metropolitanplanningorganizations goals requires efforts to overcome the (MPOs), multi-juris-dictional entities that fragmented nature of most metropolitan must create long-range transportation plans governments. A comprehensive evaluation for the region. of all grants should be undertaken. If any ISTEA and TEA offer several important federal grants exacerbate or perpetuate opportunities, in the form of restraints on segregation, there must be immediate steps the power of the MPOs. First, the trans- to rescind or amend those grants. As noted portation planning process requires public in the Atlanta air pollution case, the leverage involvement, which opens transportation created by funding conditioned on meeting planning tothe input of low-income federal standards is effective. communities of color. Secondly, the MPOS must "seek out and consider the needs of Title VI those traditionally underserved by existing transportation systems, including but not Title VI provides that "no person in the limited to low-income and minority house- United States shall, on the grounds of race, holds" in the planning process. Finally, color, or national origin, be excluded from MPOs must comply with all applicable laws, participation in, be denied the benefits of, which arguably include the Civil Rights Act, or be otherwise subjected to discrimination

9 0 9 6 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

under any program or activity receiving funding. Efforts to evaluate and enhance federal financial assistance." Because nearly cooperation should be made. all local governments receive some form of federal support, nearly all are subject to its New legislation anti-discrimination requirements. Again, every federal agency should review under The Community Character Act. The pur- Title VI all funding policies and practices, pose of this legislation, which died in to ascertain impact on people of color, even committee last fall, was to respond to the where there is no evidence of racist intent. factthat"ourlandscapehasbeen "[R]ecipients should have available for the pockmarked by incremental haphazard department racial and ethnic data showing development,...which too often saps our the extent to which members of minority economic strength by requiring very groups are beneficiaries of federally assisted expensiveinvestmentforextending programs."93 A more targeted approach to infrastructure farther and farther into the addressing fragmentation's effect on the countryside."95 administration of programs, and the result- The proposed Community Character Act ing impact on communities of color, could provided financial incentives and technical take the shape of a regional equity audit, or assistance to state and local governmental a mapping of the opportunity-enhancing and entities conducting comprehensive growth -denying structures in the metropolitan planning. The goal is to integrate state and region. local land use plans into larger federal goals, Additionally, programs administered thus acknowledging a federal role in land under the Clean Air Act, the President's use. Because the resources that state and Executive Order on Environmental Justice, local planning entities would receive the Congestion Mitigation and Air Quality through block grants would have been Funds, and the Job Access and Reverse channeled through the Department of Commute Program should be reviewed for Housing and Urban Development (HUD), opportunities to address sprawl and urban the planning would have had to comply with concentrations of poverty. the duty of HUD and fund recipient agencies to affirmatively further fair housing goals Other federal efforts to promote regional in comprehensive planning. The result, if solutions must be evaluated and fostered. this duty were enforced, would have been theopeningofhousing opportunity Federal agencies have initiated some throughout metropolitan regions: agencies efforts to promote cooperation among would be required to plan in a way that does jurisdictions, effectively promoting a reduc- not discriminate against and contributes to tion in fragmentation, although typically the integration of protected class members. without equity as the goal. For example, Anotherbillthatdid notsurvive "HUD and HHS have promulgated regul- con-imittee but similarly carried potential for ations that compelled collaboration among reducing the impact of political fragmen- entities and organizations at several levels tation in our metropolitan regions is the (such as Councils of Government, or COGs), National Affordable Housing Trust Fund bill, to qualify for funding."94 introduced in summer 2000. Under this bill, The federal government supports regional the profits created by federal mortgage structures through funding. A recent study programs would be dedicated to the creation found that 669 regional councils of various of mixed-income, affordable housing. What types receive direct and indirect federal was particularly compelling about this bill

9 7 Citizens'Commission onCivilRights -

as drafted was the mandate that housing be IV.Conclusion created only in neighborhoods with fewer than 20% residents living in poverty and Many things have changed since the 1968 where employment opportunitiesare developing. Moreover, the housing would be Kerner Commission Report starkly de- targeted to very low-income renters and scribed two societies in America, one white, owners, with 75% of the budget dedicated one black. The position of some African to housing for extremely low-income rental Americans has improved. But the plight of and 25% to low-income rental and home many more has become more drastic. Today more African Americans live in poverty in ownership. Additionally, this bill would have required a 40-year commitment from the our central cities than ever before. Today the opportunities they need to thrive good developers and/or owners of the housing. jobs, decent housing, and adequate schools This bill would have spurred the creation of are continuing to move farther beyond housing in high-opportunity areas, main- their reach. tained the housing there, and greatly Changing this reality requires a change increased the likelihood that residents of in the thinking of the President and segregated and concentratedpoverty Congress. They do need to continue efforts neighborhoods would have access to housing throughout a given metropolitan region. In to pass and implement laws and policies that these ways, the impact of fragmentation on provide equal access and affirmative the siting of affordable housing would have assistance. But they also need to focus on been lessened. the structural dynamics that created the existing segregated urban landscape. They must acknowledge the key role of the federal Review federal policies that contribute to government in creating and perpetuating the problems of central cities. the problem. They must develop a new The federal government continues to approach that will move African Americans contribute to the disinvestment of central toward the opportunities that have been cities. For example, where federal funding denied. Both the President and Congress is tied to the population size of cities, even must create policies that will address as cities lose scores of residents to the fragmentation and dismantle the structures suburbs, sprawl is supported and the in- thateffectively deny to metropolitan centive for regional solutions is diminished. residents living in concentrated poverty Another example is the continued sub- opportunities intended for them. This sidization of highways and the support of chapter suggests the first steps for such gasoline prices far below those found in executive and congressional action. other countries. Policies such as these must be reviewed and, at least as to direct federal funding, altered so as not to undermine civil rights goals.

9 8 Citizens' Commission onCivilRights -

Endnotes

1 john a. powell is the Marvin J. Sonosky Chair in Law and Public Policy at the University of Minnesota Law School, as well as Executive Director, Institute on Race and Poverty. Kathleen M. Graham is a Minneapolis-based lawyer and international consultant on issues of access, equily, and justice. While this chapter focuses on the effects of urban sprawl and fragmentation on African Americans, these phenomena have the same consequences for all people of color who live in the concentrated poverty of many city centers. Their civil rights are equally at risk. 3See, e.g., David Rusk, Cities Without Suburbs (1995); David Rusk, Inside Game/Outside Game: Winning Strategies for Saving Urban America (1999) ("Inside Game/Outside Game"); Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (1993) ("American Apartheid"); Gerald E. Frug, City Making: Building Communities Without Building Walls (1999) ("City Making"); Dennis Judd and Todd Swanstrom, City Politics: Private Power and Public Policy (1994). 4 See Inside Game/Outside Game at 66-69, 96 (1999); Christopher Leinberger, "The Market and Metropolitanism," The Brookings Review, at 35 (Fall 1998). 5See City Making at 97-98,117-118, 157-58 (1999); Sheryll D. Cashin, "Localism, Self-interest, and the Tyranny of the Favored Quarter: Addressing the Barriers to New Regionalism," 88 Georgetown Law Journal 1985, 2003-06 (2000) ("Tyranny of the Favored Quarter"). The fact that not all suburbs fit the stereotype of a prosperous pastoral single-family lifestyle and that city/suburb constructs differ quite distinctly from region to region across the country render the "city/suburb" terms problematic for some commentators. See, e.g., City Making. While many African Americans live in suburbs, the migration out of the city center into suburbs post World War II is uniformly characterized by white flight and public as well as private efforts to exclude African Americans from this migration. Since the suburban formative process was uniformly racially exclusionary, the term "suburb" suffices to describe the issues raised in this report, recopizing that suburbs are not homogenous in other respects. See Inside Game/Outside Game at 66. 7Id. at 67. 8Id. at 67-68. The migration of people who live in urban areas from city to suburb occurred at the same time that African Americans were moving in unprecedented numbers from the rural South to the urban North, West, and South. In the 1950s 1.5 million African Americans migrated from the rural South, and in the 1960s 1.4 million; these numbers represent twice the movement observed in an earlier wave of African American migration, which began in 1910 and continued into the 1920s. See American Apartheid at 29, 45.

9 9 Citizens' Commission onCivilRights Chapter 7 Part Two: Segregation in Housing

9See Inside Game/Outside Game at 67. 10See Tyranny of the Favored Quarter at 1985, 1992 (citing Nancy Burns, The Formation of American Local Governments: Private Values in Public Institutions (1994) ("American Local Governments") and data from the U.S. Census Bureau). See American Local Governments at 102; Tyranny of the Favored Quarter at 1985, 1992; Paul Kantor, The Dependent City Revisited: The Political Economy of Urban Development and Social Policy, at 164 (1995) ("Dependent City Revisited"). 12See American Local Governments at 102; Tyranny of the Favored Quarter at 1985, 1992; Dependent City Revisited at 164; Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States, at 131 (1985) ("Crabgrass Frontier"). 13See john a. powell, "Sprawl, Fragmentation and the Persistence of Racial Inequality: Limiting Civil Rights by Fragmenting Space," at 11-12 (2001) (forthcoming chapter in Urban Sprawl: Causes, Consequences, and Policy (Gregory Squires, ed.)) ("Sprawl, Fragmentation"); Tyranny of the Favored Quarter at 1985, 1993; Crabgrass Frontier; and Gary Weiher, The Fractured Metropolis: Political Fragmentation and Metropolitan Segregation (1991). 14See Tyranny of the Favored Quarter at 1985, 1993 (2000) (citing American Local Governments at 75-95). While noticeable race effects were not noted by this researcher in the 1970s and 1980s, the desire to avoid taxes (associated with expensive services) was present. See American Local Governments. This could be a pretextual motivation. Regardless, once space is racialized, no further overt discrimination is necessary to maintain the existing segregation. See Richard Thompson Ford, "The Boundaries of Race: Political Geography in Lega1l Analysis," 107 Harvard Law Review 449, 451 (1995) ("Boundaries of Race"). Inside Game/Outside Game at 71-72, 105-06. 16See id. at 71-72, 105-06; Sprawl, Fragmentation at 19. 17See Paul A. Jargowsky, Poverty and Place: Ghettos, Barrios, and the American City, at 118 (1997) ("Poverty and Place"); Inside Game/Outside Game at 71-72. 18See American Apartheid at 67-74. 19See id. at 67-74. 20See Sheryll Cashin, Middle-Class Black Suburbs and the State of Integration: A Post- Integrationist Vision for Metropolitan America, at 3 (draft) (Sept. 2000) (on file with authors). -21See id. at 37-38, 41-42, 50-51, 58 (citing Myron Orfield, Washington Metropolitics: A Regional Agenga for Community and Stability, at 19, 38, and generally (1999)). See id. at 3. 23See Sprawl, Fragmentation at 6. 24See Tyranny of the Favored Quarter at 2016. 25See Inside Game/Outside Game at 86; American Apartheid at 51; Boundaries of Race at 451; see also Sprawl, Fragmentation at 6. 26See Inside Game/Outside Game at 86-89; Sprawl, Fragmentation at 8; American Apartheid at 53 (citing Crabgrass Frontier at 205-206, 231-233). 27See Boundaries of Race at 451. 28See Inside Game/Outside Game at 86, 88. 29See Michael H. Schill and Susan M. Wachter, "The Spatial Bias of Federal Housing Law and Policy: Concentrated Poverty in Urban America," 143 University of Pennsylvania Law Review 1285, 1286-90 (1995). 30See Boundaries of Race at 451 (citing Charles Abrams, Forbidden Neighborhood: A Study of Prejudice in Housing, at 231 (1955)).

100 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 7

31See Sprawl, Fragmentation at 7; Crabgrass Frontier at 195-218; American Apartheid at 51-52. 32See Inside Game/Outside Game at 87 (citing Irving Welfeld, Where We Live: A Social History of American Housing (1988)). 33See id. at 86-88. 34 Civil rights advocates also helped reduce the extent of discriminatory practices through litigation including Shelly v. Kramer, 334 U.S.C. § 1, 68 Supreme Court Reporter 836 (1948) and the Fair Housing Act of 1968. 35See Inside Game/Outside Game at 88. The deduction of mortgage interest from federal income tax liability also stimulates home ownership at the expense of renters, favoring those who obtained mortgages over those who could not; in fiscal 1999 the value of this deduction was estimated to be $54.4 billion in tax breaks for 40 million homeowners. See Inside Game/ Outside Game at 89. The deductibility of mortgage interest favors suburbs over cities, as rental properties are more common in the latter. Also, homeowners build equity in their property, a major factor of wealth creation in this country, and another opportunity afforded whites at the expense of African Americans. If treated as a budget appropriation the 1999 value of this deduction would constitute the federal government's sixth largest expenditure, after social security, national defense, Medicare, interest paid on the national debt, and Medicaid. See Inside Game/Outside Game at 89. 36See Inside Game/Outside Game at 90-91; see also City Making at 134. 37See Jonathon Barnett, The Fractured Metropolis: Improving the New City, Restoring the Old City, Reshaping the Region, at 163 (1995) ("Fractured Metropolis"). 38See Inside Game/Outside Game at 90-91. 39See The Fractured Metropolis at 162. 40See Inside Game/Outside Game at 91. 41See id.; American Apartheid at 44; City Making at 132-133; Sprawl, Fragmentation at 10. 42See City Making at 133. 43See Inside Game/Outside Game. 44See Sprawl, Fragmentation at 11 (citing John D. Kasarda, Urban Change and Minority Opputunities, The New Urban Reality, at 56 (1985)). See,e.g., Labor/Community Strategy Center v.Los Angeles County Metropolitan Transportation Authority, No. CV 94-5936 TJH, Consent Decree (C.D.California Aug. 29, 1996); Ron Hayduk, Regionalism and Structural Racism, at 10-11 (Sept. 2000) (draft paper prepared for The Race and Community Building Project of The Aspen Institute Roundtable on Comprehensive Community Initiatives) ("Regionalism and Structural Racism"). See Robert Puentes, Flexible Funding for Transit: Who Uses It? Brookings Institution report: Survey Series of the Brookings Institution Center on Metropolitan Policy, at 1, 2 (available at ) (May 2000). 47See Christopher Leinberger, "The Market and Metropolitanism," The Brookings Review, at 35, 36 (Fall 1998). 48See id. 49See Inside Game/Outside Game at 92. 50See id. 51See id. 52See City Making at 143; American Apartheid; Sprawl, Fragmentation at 11; Boundaries of Race at 449, 457. 53See City Making at 143.

101 Citizens' Commission onCivilRights '-*Chapter 7 Part Two: Segregation in Housing

54See id. at 134. 55See Ambler Realty Co. v. Village of Euclid, 297 Federal Supplement 307, 316 (1924), reversed in Village of Euclid v. Ambler Realty Co., 272 U.S.C. § 365 (1926). 56See Crabgrass Frontier at 155; American Apartheid at 36; Boundaries of Race at 457; Inside Game/Outside Game at 57; City Making. 57See Boundaries of Race; John Charles Boger, "Race and the American City: The Kerner Commission in Retrospect: An Introduction," in "Symposium on The Urban Crisis: The Kerner Commission Report Revisited," 71 North Carolina Law Review 1289 (1993); American Apartheid; Sprawl, Fragmentation. 55See Village of Arlington Heights v. Metropolitan Housing Dev. Corp. 429 U.S.C. § 252 (1977); Martinez v. Bynum, 461 U.S.C. § 321 (1983); San Antonio Independent School District v. Rodriguez, 411 U.S.C. § 1 (1973); City Making at 134; Boundaries of Race at 1841, 1860-1878. 5§'See Milliken v. Bradley, 418 U.S.C. § 717 (1974). 60See Evans v. Buchanan, 555 Federal Reporter 2d 373 (3d Circuit 1977); Cunningham v. Grayson, 541 Federal Reporter 2d 538 (6th Circuit 1976). 61See Boundaries of Race at 458; City Making at 134. 62See San Antonio Independent School District v. Rodriguez, 411 U.S.C. § 1 (1973). 63See Sprawl, Fragmentation at 17. 64Neither interjurisdictional issues nor proof of intent to discriminate has proven to be an obstacle in lawsuits that challenge the adequacy of education provided by the state, a claim arising from the state constitution. These actions are not based on federal notions of equal protection or due process but a right based in a state's constitution. See, for example, Sheff v. O'Neill, 238 Conn.1, 678 A.2d 1267, 111 Ed. Law Rep. 360 (Conn. July 9, 1996). 65See City Making at 134 (citing Boundaries of Race). 66See Tyranny of the Favored Quarter at 1985, 2018; Fractured Metropolis at 113. 67See Inside Game/Outside Game at 33; Sprawl, Fragmentation at 13 (citing Fractured Metropolis at 111-113). 68See Fractured Metropolis at 111-113. 69See Tyranny of the Favored Quarter at 1985, 2010. 7° See id. at 1985, 2009, 2018. 71See id. at 1985, 2009. 72See Inside Game/Outside Game at 117. 73See Neil Peirce, Citistates: How Urban America Can Prosper in a Competitive World, at 28 (17993). See Poverty and Place at 122-23. 75See William Julius Wilson, When Work Disappears: The World of the New Urban Poor, at 29-30 (1997) ("When Work Disappears"). 76See Sprawl, Fragmentation at 20 (citing When Work Disappears at 20-21). 77See Tyranny of the Favored Quarter at 2014; Sprawl, Fragmentation at 21 (citing American Apartheid at 153, 169-170; Gary Orfield, "Urban Schooling and the Perpetuation of Job Inequality in Metropolitan Chicago," in Urban Labor Markets and Job Opportunity (1992)). 78See City Making at 137. 79See Tyranny of the Favored Quarter at 2019 and sources cited therein. 80See Sprawl, Fragmentation at 6. 81See id. at 25-29, 38-39; john a. powell, "Race, Poverty, and Urban Sprawl: Access to Opportunities Through Regional Strategies," 28 Forum for Social Economics 1, 9 (1999) ("Race, Poverty, and Urban Sprawl").

1 02 Citizens'Commission onCivilRights 82Examples of this include the displacement of African Americans and Hmong when the public housing on the North Side of Minneapolis was demolished to make way for mixed income housing and the migration of poor Hispanics from the Mission District of San Francisco to poorer neighborhoods around the Bay Area. 83The movement for metropolitan-wide government beginning in the 1950s and lasting into the 1970s did not succeed. See John J. Harrigan, Political Change in the Metropolis, at 342- 65 (1993). See Race, Poverty, and Urban Sprawl at 1, 7. 85See .John powell, "Addressing Regional Dilemmas for Minority Communities," in Refle8c6tions on Regionalism, at 236-37 (1999). See Tyranny of the Favored Quarter at 1985, 2048 (citing Richard Briffault, "The Local Government Boundary Problem in Metropolitan Areas," 48 Stanford Law Review 1115 (1996); Richard Briffault, "Our Localism, Part I The Structure of Local Government Law," 90 Columbia Law Review 1, 2 n.1 (1990); Richard Briffault, "Our Localism: Part II Localism and Legal Theory,"90Columbia Law Review 346,426-27(1990);Jerry Frug, "Decentering Decentralization," 60 University of Chicago Law Review 253, 273-79 (1993); Georgette C. Poindexter, "Collective Individualism: Deconstructing the Legal City," 145 University of Pennsylvania Law Review 607 (1997)). 87See Inside Game/Outside Game at 223-238; Myron Orfield, Metropolitics (1997); Tyranny of the Favored Quarter at 1985, 1992. 88See Tyranny of the Favored Quarter at 1985, 2037-38 (citing David Firestone, "Georgia Setting Up Tough Anti-Sprawl Agency," The New York Times, Mar. 25, 1999, at A20). 89See, generally, discussion of the "ageographical city" in City Making at 101-105. 90See .John a. powell, "Race and Space," The Brookings Review, at 20-22 (Fall 1998); Race, Poverty, and Urban Sprawl at 1, 12-13. 91See The Citizens' Commission on Civil Rights, The Test of Our Progress: The Clinton Record on Civil Rights, at 1 (1999) (Corrine M. Yu and William L. Taylor eds.). 92See id. at 15. 93See Regionalism and Structural Racism at 22. 94See id. 95See 146 Congressional Record S7908-01, *S7911 (2000).

103

Citizens'Commission onCivilRights Part Two: Segregation in Housing Chapter 8

Chapter 8 Federal Fair Housing Enforcement at a Crossroads: The Clinton Legacy and the Challenges Ahead by John Relman'

Introduction given it the resources it needs to expand its enforcement work. HUD, on the other hand, has performed Midway through the second Clinton term, less well. Secretary Cuomo's fair housing en- the Citizens' Commission on Civil Rights forcement program has met with little suc- reported that the Justice Department had cess during the final two years of the second continued its "impressive fair housing en- Clinton term. A strategy of self-promotion forcement efforts," but that the Department that Cuomo began early in his tenure to bur- of Housing and Urban Development's (HUD) nish HUD's image on Capitol Hill in order performance had been "decidedly mixed."2 to win more funding has, in the end, pro- On the positive side, the Commission ob- duced more spin than substance. At the con- served that Secretary Cuomo had done a "re- clusion of the Clinton Administration, the markable job in a difficult political climate" harsh reality sadly remains that, notwith- of protecting HUD's fair housing budget and standing Cuomo's success in winning bud- promoting certain high profile settlements, get increases for the agency, HUD's dismal but that HUD still had shown "little improve- record in processing fair housing complaints ment ...in its ability to process fair housing shows no signs of improvement. Fair hous- complaints effectively and expeditiously."3 ing policy initiatives have foundered, and Nearly three years later, the Justice De- morale within the fair housing section at partment continues to earn high marks for HUD has eroded. The high expectations that its determined and productive fair housing Cuomo's arrival at the agency generated enforcement program. While new case filings among fair housing advocates have ended in have dipped a bit, damage awards and settle- frustration and disappointment. ments have matched the impressive results The point is illustrated by a press release of the prior two-year period. The Depart- issued during the final days of the Clinton ment's fair lending and disability initiatives Administration, in which Secretary Cuomo have yielded a number of important victo- proclaimed the many ways that he and his ries, and amicus briefs have been filed in staff had "transformed a monolithic govern- support of private plaintiffs in an array of ment agency into a model of government re- cases raising vital new issues. Equally im- invention."4 The lead paragraph noted that portant, Assistant Attorney General Bill Lee the General Accounting Office had taken won a much needed budget increase for the HUD off its "high risk" list "as a result of Civil Rights Division that has resulted in 21 significant management reforms set in place new positions for the Housing Section and

104 9 9 Citizens' Commission onCivilRights under Secretary Andrew Cuomo's leader- program designed to assess levels of dis- ship."5 crimination in the areas of housing sales, Whether Secretary Cuomo's extravagant rentals, and mortgage lending to minori- claims with respect to all of HUD's depart- ties.' ments and programs are supported by ob- These continuing victories in the budget jective evidence is a matter that exceeds the battles on Capitol Hill, however, must be scope of this Report. It is clear, however, that juxtaposed against a fair housing enforce- when it comes to fair housing enforcement, ment record that in virtually all respects Cuomo's public pronouncements are contra- remains as dismal as before, largely un- dicted by HUD's own statistics. Indeed, the changed and unimproved from the disap- major accomplishment noted in this final pointing state of affairs reported by the Com- press release with respect to fair housing mission in 1999. If anything, efficiency and a claim that under Cuomo's leadership HUD productivity have eroded further over the "doubled the number of anti-discrimination past two years, accompanied by an exodus actions taken under the Fair Housing Act" of high-level personnel who have chafed un- since 19976 is false. The trend is in the der the demands of Cuomo's highly politi- opposite direction. HUD fair housing en- cized regime. forcement actions have, on a relative scale, None of the problems discussed in the sub- declined across the board since 1997.7 sections below should be attributed to a lack Cuomo has had some important victories of effort by FHEO's senior manager (and the for which he deserves credit. In its 1999 Re- senior manager during the Clinton-Bush port, the Commission noted that at a time transition), David H. Enzel, a knowledgeable, when conservatives in Congress were look- committed, and capable executive who has ing for ways to dismantle HUD, Cuomo's worked hard over the last 18 months to plug success in protecting HUD's budget and win- the holes in the dike. But unless significant ning substantial increases for fair housing resources and attention are directed to over- programs was "nothing short of stunning."' hauling this beleaguered bureaucracy, there Cuomo's success in this regard continued for is little hope that HUD will be able to shift the balance of his term. HUD's overall bud- course any time soon and begin to fulfill the get increased from $25.2 billion in FY1999, promise of the statutory scheme envisioned to $26.2 billion in FY2000, and finally to $32.4 by Congress when it revised the Fair Hous- billion in FY2001.9 ing Act in 1988 to give HUD new enforce- Funding for fair housing enforcement ef- ment powers. forts also increased during this time period. As political appointments are made at both In FY2000, for example, the budget for the the Department of Justice and HUD and the Office of Fair Housing and Enforcement transition to the new administration be- (FHEO) increased by 7.5% from $40 million comes complete, warning signs loom on the to $43 million. Cuomo requested and won a horizon. Although it is still too soon to draw substantial increase in funding for the all- conclusions, indications are emerging that important Fair Housing Initiatives Program reversals may be in store for the fair hous- (FHIP) from roughly $17 million per annum ing enforcement programs at both agencies to $24 million in FY2000.1° This program that will further weaken the enforcement channels much needed enforcement dollars effort at HUD and slow the progress that has directly to private nonprofit fair housing been made at the Justice Department. The testing organizations around the country. Six next six months may prove critical in set- million dollars of the FHIP budget was set ting the course that fair housing enforcement aside for a national discrimination testing will take for the balance of the Bush Admin-

100 1 05 Citizens' Commission onCivilRights PartTwo: Segregation in Housing Chapter 8

istration. Fair housing advocates will need eral court. If there is no "cause finding" and to monitor developments carefully. no basis for issuance of a charge, the case is The remainder of this chapter is divided dismissed." The decision whether to issue a into three sections. Part I focuses on HUD's charge is of critical importance to the com- fair housing performance over the last two plainant. It determines whether the case will years, analyzing both policy initiatives and proceed to trial or will be dismissed. The case management problems. Part II assesses number of charges filed also serves as a ba- the Justice Department's performance. This rometer of HUD's willingness to find and section focuses on new cases filed, signifi- prosecute discrimination. cant case settlements, and successful pro- Despite the continuing high numbers of gram initiatives. Conclusions and recommen- claims processed, the percentage of total dations are set forth in Part III. claims resolved in which a "cause finding" was issued during this time period remained unacceptably low. In FY1999, only 1.7%, or I. The Department of 114 of the 6,527 claims resolved resulted in a cause finding.16 In FY2000, this percent- Housing and Urban age dipped slightly to 1.4%, or 99 of 7,124 Development claims resolved.17 These figures represent a significant drop from 1995, when fully 8% of resolved claims ended in cause findings." As A. Complaint Processing the Commission noted in 1999, what is remarkable about the high levels of claims pro- Since 1995, claims received by HUD have cessed and cases resolved is that it has been steadily increased.12 Over the past two years, accompanied by a relative decrease in the the number of claims filed with HUD has number and percentage of cause findings.' remained at the same high levels. HUD re- In this respect, nothing has changed from the ceived approximately 7,190 claims in FY1999 time this disturbing trend was identified and and 6,200 claims in FY2000, roughly equiva- discussed in 1999. lent to the 6,190 claims received in FY1997 In discussing this development in its ear- and the 6,800 claims filed in FY1998.13 Of lier Report, the Commission noted that: these claims, HUD processed only approximately 31% as actual "complaints," electing The trend is moving in the wrong direc- to close the remainder for failure to satisfy tion. It seems unlikely that the quality of one of four "jurisdictional" requirements con- the cases received by HUD has changed cerning coverage under the Fair Housing so dramatically over the last two years. Act, standing, and statute of limitations is- Rather, at a time when Secretary Cuomo sues.'4 has proudly and publicly accepted Presi- Under the Fair Housing Act, HUD is re- dent Clinton's challenge to double the num- quired to investigate all complaints of dis- ber of fair housing enforcement actions, it crimination. If HUD concludes at the end of appears that HUD investigators and re- the investigation that there is reasonable gional counsel have inexplicably raised cause to believe that discrimination has oc- the bar for complainants to have their case curred, it must issue a charge. It is the issu- heard by a fact finder, whether it be an ance of the charge that triggers the complain- administrative law judge or a federal ant's right to either proceed before an ad- jury." ministrative law judge or have the Depart- ment of Justice prosecute the case in fed-

106 101 Citizens'Commission onCivilRights Chapter 8 Part Two: Segregation in Housing

The same could be said now based on the Viewed from a slightly different perspec- FY1999 and 2000 numbers. But in one im- tive, at the end of FY1999, fully 78% of the portant sense the trend is more disturbing total complaints in the HUD inventory, or because HUD's budget for fair housing en- 2,229 complaints, had been pending for more forcement is now at a higher level than it than 100 days. At the end of FY2000, that was in FY1998. number had dropped only marginally to 68% Low levels of cause findings have been ac- of total complaints, or 1,751.28 companied in turn by worsening delays in In short, over the last two years there has the completion of the mandatory investiga- been no improvement in the speed or effi- tions required before a cause determination ciency with which complaints are investi- can be made. The Fair Housing Act mandates gated and resolved. The situation has con- that HUD complete its investigation of a com- tinued to deteriorate, even though substan- plaint within 100 days "unless it is impracti- tially fewer claims initially received are be- cable to do so."21 Failure to meet this require- ing accepted and investigated as complaints ment, however, has never been held to con- than was the case in 1994.29 The end result stitute a jurisdictional bar to prosecution of has been greater delay in making fewer cause a complaint.22 As a result, since 1988, HUD determinations. The story told by these sta- has routinely allowed complaints to stagnate tistics simply does not square with the fair many times for as much as a year past the housing enforcement "record" trumpeted by 100 day limit.23 These delays are devastat- Secretary Cuomo in his end-of-term press ing. Witnesses disappear or die, memories release. become hazy, complainants lose heart, and defendants complain loudly at trial about the B. Compensation to Victims lack of a speedy and fair adjudicatory process. HUD's early difficulties in meeting the I.Settlements and Conciliations 100-day limit following passage of the Fair The amount of monetary relief that HUD Housing Amendments Act were the subject has been able to win for victims of housing of focused and sustained criticism by fair discrimination through settlement increased housing advocates.24 In response to this criti- steadily from 1989 through FY1998, starting cism HUD appeared to make some progress at $799 as an average compensation per case in 1993 and 1994,25 but the timeliness of its in the first year following passage of the investigations always remained a sore point. 1988 Fair Housing Amendments Act, and Since 1994, delays in processing complaints ending at $15,727 in FY1998." have steadily worsened. In 1994, the aver- Over the last two years, however, compen- age number of days from time of complaint sation obtained through settlement has de- receipt to cause finding or closure was 154 clined. In FY1999, average compensation per days. By FY1997, the average time to cause case dropped off sharply to $3,400, reflect- or closure had stretched to 350 days. In ing total compensation of $6.2 million won FY1999, average processing time had in 1,825 successful conciliations.31 In FY2000, reached 400 days; and in FY2000 it rose to total compensation increased dramatically 497 days.26 Between FY1997 and FY2000, the to $23.9 million, but nearly $17 million of that average time for reaching cause determina- total was obtained in one large settlement tions increased from 448 days to 656 days; with Riverside County in a case alleging dis- and the average time for reaching a no cause crimination against Hispanic mobile home determination rose from 461 days to 515 owners.32 And of that settlement, $16.1 mil- days.27

102 1 0 7 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 8

lion constituted loans and grants for com- and skilled ALJs have been left all but look- munity-based projects.33 Calculated with the ing for more work. The recent departure of Riverside settlement, the 2,148 cases suc- HUD's Chief Administrative Law Judge, cessfully conciliated in FY2000 yielded an Alan Heifetz, one of HUD's most experi- average compensation of $11,120.34 Exclud- enced, knowledgeable, and committed fair ing the loan commitments obtained in Riv- housing jurists, may be attributed in part to erside, and including only the $747,000 in the dearth of work. This loss will be felt damages obtained for victims in that case, throughout the entire HUD fair housing en- the FY2000 average compensation amounts forcement process. to $3,600, only slightly more than the FY1999 In terms of monetary relief to victims, with average case recovery.35 one notable exception, damage awards in The current trend in average case compen- these recent ALJ decisions have been sation is even more troubling when viewed roughly consistent with awards in prior in terms of the average time it now takes to years." In FY1999, HUD ALJs decided two reach a successful conciliation. In 1995, av- cases alleging discrimination on the basis of erage time to conciliation was 172 days.36 By familial status and two cases claiming dis- 1998, average elapsed time had increased to crimination based on race and color, finding 251 days.37 In FY1999, that number had for the complainant in three of the four de- reached 280 days, and in FY2000 it had in- cisions." These three cases resulted in a to- creased yet again to 314 days.38 Once again, tal of $106,227.50 in damages and $11,550 in the conclusion is not favorable to HUD. In civil penalties, with an average compensa- sum, over the last two years cases concili- tory award per case of approximately ated by HUD have taken longer and won less $35,000.45 for complainants. In FY2000, HUD ALJs found for the complainant in two of three decisions." One of 2.Administrative Law Judge Decisions these decisions, HUD v. Wilson, resulted in one of the largest compensatory damage Inits 1999 Report, the Commission noted awards ever obtained in a fair housing case.' that the number of cases tried to decision In that case, Judge Heifetz ordered a white before HUD administrative law judges supremacist who made public threats on the (ALJs) had decreased substantially due to a Internet against a public housing advocate drop-off in the number of cases charged and and her daughter to pay more than $1.1 mil- an increase in the number of complainants lion in compensatory damages and $55,000 and respondents electing to have charged in civil penalties." cases prosecuted by the Department of Jus- The small number of ALJ decisions dur- tice.39 In 1996, parties elected to have 70% ing the last two years and the wide range of of charged cases handled by the Justice De- monetary relief obtained make it impossible partment." In 1997, the election rate de- to draw any meaningful conclusions about creased slightly, but still remained at the trends, or to compare either aggregate dam- surprisingly high rate of 61%. 41 age totals or per case averages awarded in Over the last two years the election rate earlier periods." has dropped slightly to 53%, and the number of cases tried to decision before admin- C. Policy Initiatives istrative law judges has crept up from six to seven cases." The HUD administrative law In its 1999 Report, the Commission noted judge hearing process, however, remains that HUD had undertaken several policy underutilized, and HUD's highly competent

108 103 Citizens' Commission onCivilRights Chapter 8 Part Two: Segregation in Housing

initiatives that appeared potentially prom- programs,57 with the exception of one large ising.° Nearly three years later, virtually settlement in Riverside, California, on be- none of these initiatives has come to frui- half of migrant farm workers, even these tion, and the pipeline for future initiatives "high-profile" investigations have had only seems dry. As with other aspects of the limited success during the last two years in Clinton Administration's civil rights agenda, improving HUD's standing with the public the expectations that Cuomo raised among or delivering relief to victims of discrimina- fair housing advocates in 1995 and 1996 have tion. 58 largely ended in disappointment. Efforts to push through additional regu- In May 1997, HUD announced that it had lations have largely stalled. HUD has yet to implemented a series of self-styled "manage- draft regulations on the important topic of ment reforms" recommended by PriceWa- disparate impact claims, and although com- terhouse to speed the processing of comments were due nearly one year ago for pro- plaints.51 As discussed at length above, there posed regulations on sexual harassment, has been little noticeable improvement in the these regulations have yet to be made final.59 speed or efficiency of HUD's investigations One of Cuomo's most publicized initiatives, or cause decisions. Efforts to decentralize housing discrimination studies that were ini- decision making by delegating authority to tially designed and funded in 1997 to iden- regional offices52 have also had little discern- tify levels of housing and lending discrimi- ible effect on HUD's chronic inability to re- nation across the nation through the use of duce red tape and improve the quality of com- thousands of fair housing tests, has yet to be plaint processing.53 Equally important, there released.° Although HUD deserves credit is no indication that HUD has managed to for publishing an insightful and provocative monitor effectively state and local agencies study concerning racial disparities in who receive HUD funding to process fair subprime lending,61 no Secretary-initiated housing complaints and HUD referrals to fair lending or predatory lending cases have ensure that cause findings are being issued been filed in the past two years based on this where appropriate and claims are being pro- report or any enforcement reviews conducted cessed in a timely manner.54 of lending institutions by HUD staff.62 Secretary Cuomo's much publicized effort In short, despite the many press releases to double the number of charge filings, re- and promises, when it comes to policy ini- ferred to earlier, in effect became a central tiatives HUD appears to have done no bet- policy initiative of the last four years. This ter than tread water for the past two years. initiative has now proved to be a failure.55 Much is due to a lack of leadership at the The unintended effect of this effort has been top and poor morale within FHEO. The to divert much needed resources from com- unique demands created by Cuomo's per- plaint processing to a handful of "high pro- sonal leadership style resulted in the depar- file" investigations or complaints that have ture of a number of highly qualified and com- been used by the front office for press pur- mitted managers within FHEO over the last poses.56 Although the Commission com- few years.° The effects have been felt in all mented favorably in its last report on the aspects of HUD's fair housing performance, initial press value of these headlines in gen- but perhaps nowhere as deeply as in the area erating support on Capitol Hill for HUD's of policy initiatives.

104 109 Citizens' Commission onCivilRights Part Two: Segregation in Housing Chapter 8

II. The Department of difficult to explain. A significant accomplishment of Bill Lee's tenure as Assistant Attor- Justice ney General for Civil Rights is the increase in budget funding he won for the Civil Rights A. New Cases Filed Division in FY2000. The Housing and Civil Enforcement Section received authorization Under the Fair Housing Act, the Depart- for approximately 21 new positions. It may ment of Justice has the power to bring pri- be too early to expect an increase in pattern marily two types of cases: pattern and prac- and practice filings as a result of this expan- tice cases and "election cases."64 The latter sion, but it is not at all clear why those fil- are complaints that have been filed with ings actually decreased in FY2000. With HUD and charged by the Secretary. Once a fewer election cases competing for the charge is issued, either party complain- Section's resources, and more attorneys ant or respondent may "elect" to have the available to investigate and prosecute pat- case prosecuted by the Department in fed- tern and practice cases, the time would ap- eral court. If an election is made by a party, pear ripe for a significant expansion in the the Department is required to file suit. With number and type of pattern and practice fil- pattern and practice cases, on the other ings. hand, the Department has discretion to file if it concludes that the evidence is strong B. Damage Awards enough to support a finding that a pattern or practice of discrimination exists. The Housing Section has continued to pro- Over the last two years, the total number duce impressive damage awards over the of new pattern and practice case filings has course of the past two years. As noted in ear- decreased slightly from the previous two lier Commission Reports, comparing aggre- years. In FY1997 and 1998, the Department gate totals between years can be misleading filed a total of 39 new pattern and practice because one or two large settlements may cases.6 5 ITn FY1999 and 2000, the Department drive the outcome for the entire year. Simi- filed a total of 32 pattern or practice cases.66 larly, declining numbers of election case fil- Of these filings, 14 were the result of test- ings may distort both damage totals and cal- ing done by the Department, 6 were lending culations of average awards. By any measure, cases, and 6 were election cases with pat- however, the section has continued to obtain tern or practice counts added.67 In terms of excellent results. type of case, this breakdown mirrors that of New filings for FY1999 produced $9.3 mil- the previous two-year period.68 Election case lion in compensatory damage awards and filings, on the other hand, have continued to $855,000 in civil penalties!' Average awards decline, reaching a record low in FY1999 of in election cases remained steady at approxi- 22, and increasing slightly in FY2000 to 26.69 mately $15,000.72 Average, per case, mon- This is down from a high of 149 filings in etary relief in pattern and practice cases FY1995 and 1996.7° hovered around $480,000." This latter aver- The Department of Justice, of course, can age, however, was driven primarily by re- hardly be faulted for the small number of coveries in two lending cases and a new con- election case filings; the rate limiting factor struction case that totaled $6.3 million.74 for these cases is based on the pace of HUD Likewise, two new election filings with pat- cause findings. But the declining numbers tern and practice counts yielded an addi- of pattern and practice case filings remain tional total of $1.7 million in relief."

110 ;4 1 0 5 Citizens' Commission onCivilRights Chapter 8 Part Two: Segregation in Housing

FY2000 filings produced equally good re- results over the last two years, yielding sults. Compensatory damage awards held multi-million-dollar settlements and com- steady at $9.2 million.76 Yet as in 1999, one mitments to retrofit hundreds of apartment pattern and practice case, United States v. units in order to make them accessible to Delta Funding Corp., drove the total, with a persons with disabilities.8 One of the Ne- total recovery of $7.3 million.77 Excluding the vada cases, United States v. Camden Trust, recovery in Delta Funding Corp., the aver- resulted in the creation of a $1.7 million fund age damage recovery in new pattern and to retrofit common areas and individual practice filings was $211,000.78 Average per units, the largest to date in a new construc- case relief in election cases increased to ap- tion case. Multiple investigations initiated proximately $41,000.79 in the Northern District of Illinois also have These totals, of course, do not include produced excellent results, if not quite at the many cases filed in the last two fiscal years Nevada leve1.82 that remain open. Notwithstanding these annual fluctuations in the total number of 2.Lending cases tried or settled, the Housing Section is continuing to win significant damage The lending program has also continued awards for victims of housing discrimination to produce impressive and important re- that in many parts of the country are con- sults. In 1999, the Department won a $3 mil- tinuing to set the standard for damage re- lion settlement in a suit brought against coveries in both private and government Deposit Guaranty National Bank alleging cases. that the Bank had discriminated against Af- rican American applicants for home im- C. Enforcement Initiatives provement loans." The settlement was particularly noteworthy because it represented In prior years the Housing Section's fair the first time the Department had focused housing enforcement initiatives have fo- extensively on the use and misuse of credit cused on three areas: the testing program; scoring systems. In 1999, the Department lending and homeowners' insurance discrimi- also filed its first suit against a consumer nation; and access for persons with disabili- credit card bank, Associates National Bank, ties in newly constructed multifamily hous- alleging that the Bank had violated the Equal ing." Over the last two years, the Depart- Credit Opportunity Act by subjecting His- ment has continued to focus its resources on panic applicants to stricter underwriting lending and new construction cases, but ap- standards and less favorable terms.84 The pears to have shifted away from developing case was settled in January 2001 after the and filing new testing cases. Several new and Bank agreed to pay $1.5 million in compen- important sexual harassment cases have satory damages and reform its policies. been filed and settled, signaling a renewed In March 2000, the Department, joining interest in this important enforcement area. forces with HUD and the Federal Trade Commission, filed suit against Delta Fund-

I. New Construction Cases ing Corporation, a subprime mortgage lender operating in minority areas of Brooklyn and Several of the Department's most impres- Queens, New York." The complaint alleged sive victories in recent years have come in that Delta Funding underwrote loans with the new construction area. A series of inves- higher mortgage broker fees for African tigations in Nevada have produced stunning American women than for similarly situated

I 0 6 Citizens' Commission onCivilRights :

white males, paying kickbacks to brokers to the country, 62 testing cases have been filed induce them to refer applicants, all without through August 2000, resulting in $7.4 mil- regard to the applicant's ability to repay the lion in compensatory damages and $1.4 mil- loan. The Company's goal, the complaint al- lion in civil penalties.9° Of the 62 cases, 59 leged, was to expose minority borrowers to have been favorably resolved, either by the risk of default or foreclosure. The case settlement or at trial.91 resulted in an important victory for the gov- The past two years have witnessed a fall- ernment, with Delta agreeing to pay $7.5 off in the filing and settlement of new test- million in damages and eliminate its policy ing cases. This may be the natural result of of funding loans with discriminatory or un- efforts to focus resources on new and differ- earned broker fees. ent priorities, or the inevitable consequence of a change in leadership in the testing pro- 3. Sexual Harassment gram and the need for start-up time to adjust to new program management. At this The past two years have also produced a point, however, there is no reason to believe marked increase in pattern and practice fil- that testing case filings will not return to ings alleging sexual harassment by landlords earlier levels. and housing providers. Buoyed by its victory in United States v. Crawford, a 1998 case that 5. Amicus Filings resulted in a $490,000 jury verdict against an Akron, Ohio, landlord accused of sexu- Over the last two years, the Department's ally harassing tenants and applicants," the amicus filings have been a surprising bright Department has filed three new pattern and spot in the enforcement program. The De- practice sexual harassment cases since 1999. partment deserves credit for filing three The first, United States v. Prestonwood Prop- important briefs in private sector cases. In erties, alleged that a Texas housing provider Hargraves v. Capital City Mortgage Co., the had sexually assaulted tenants over a period Department filed an amicus brief in support of six years.87 The Department won $150,000 of the plaintiffs' position that reverse in compensatory damages for 17 victims, redlining the practice of marketing and along with a court order barring the defen- selling predatory loans in minority neighbor- dant from owning or managing any residen- hoods because of the race of the neighbor- tial rental property for four years. In addi- hood violates the Fair Housing Act.92 The tion to Prestonwood, the Department filed case resulted in the first federal court deci- two additional complaints alleging similar sion holding that reverse redlining can con- practices at a group of Jackson, Mississippi, stitute a violation of the Fair Housing Act.93 rental properties, and at an apartment com- The Department also filed an amicus brief plex in New Hampshire." supporting the plaintiffs in a novel but important case challenging discriminatory loan 4. The Testing Program practices by car dealers under the Equal Credit Opportunity Act.94 This case will have In past reports the Commission has re- important ramifications for the Depart- marked repeatedly upon the extraordinary ment's fair lending program. And in Fair success of the Housing Section's testing pro- Housing of Marin v. Combs, the appellate gram." Since 1992, when the Department section of the Civil Rights Division filed a filed its first pattern and practice cases noteworthy brief in the 9th Circuit arguing based on evidence gathered by its own fair for an appropriately expansive interpreta- housing testers in local communities across

112 107 Citizens' Commission onCivilRights Chapter 8 Part Two: Segregation in Housing

tion of standing rights under the Fair Hous- This is not an appointment that inspires con- ing Act.95 fidence. Mr. Marcus's reputation is that of a conservative ideologue who has made his name in the fair housing arena suing FHEO III. Conclusion and and HUD employees for damages in their individual capacities in an effort to restrict Recommendations HUD's ability to enforce the Fair Housing Act. His appointment has had a negative im- Notwithstanding the impressive fair hous- pact on morale at FHEO. ing enforcement record that the Justice De- The real danger at HUD now lies in the partment has amassed throughout the sec- distinct possibility that the new administra- ond Clinton term, ten months into the Bush tion will deal with the complaint processing Administration it is not at all clear whether backlog by summarily dismissing complaints the progress made will continue. As noted without proper investigation or legal analy- above, the Housing Section has received 21 sis. HUD has a long way to go before it can new positions in the last two years, and has claim to have mastered the case management created several new deputy section chief and processing problems that have plagued positions to oversee fair lending and dis- the agency since 1988. To date, there is no criminatory zoning cases. Yet with all this indication that the current administration new firepower, the Bush leadership has yet has the understanding, ability, will, or de- to authorize the filing of a single new lend- sire to overcome these problems. ing discrimination case. Although it is too soon to draw conclu- A. Recommendations for the sions, warning signs lie on the horizon. New, highly conservative political appointees in Department of Housing and the office of the Assistant Attorney General Urban Development for Civil Rights have recently taken office, and the first indications are emerging that Secretary Martinez should move quickly reversals may be in store for the fair hous- to determine why cause determinations, ing and lending program. Likewise, it is clear as a percentage of total complaints, have from Attorney General Ashcroft's recent pro- remained at such low levels. Senior HUD nouncements that some amount of resources management should take steps to ensure will likely be diverted from the Civil Rights that investigators and regional counsel Division's enforcement efforts to deal with are applying proper legal standards in the administration's war on terrorism.% evaluating complaints. Where necessary, Whether the battle against terrorism will new training should be instituted to as- become a convenient excuse for a slowdown sist investigators in discovering relevant in new filings and investigations remains to facts and assembling the evidence nec- be seen. Advocates will need to monitor de- essary to determine whether there is rea- velopments in coming months closely. son to believe discrimination has oc- Prospects for the future appear even curred. bleaker at HUD. President Bush has yet to appoint an Assistant Secretary for Fair The backlog of over-age cases must be Housing. For ten months HUD has operated broughtundercontrol.Secretary without a General Deputy Assistant Secre- Martinez should establish a strike force tary for FHEO. Recently, HUD announced of top investigators and regional counsel that Kenneth Marcus would fill that spot. to complete investigative reports on the

108 Citizens' Commission onCivilRights 113 oldest of HUD's pending complaints. The market).99 The following items, however, Secretary should allocate additional re- should remain Department priorities for the sources to FHEO to ensure that all com- new administration: plaint investigations are completed in as close to 100 days as possible. Care must With election case referrals from HUD be taken, however, to ensure that com- continuing to decline, the Housing Sec- plaints and claims are not given short tion should focus its expanded resources shrift to improve "the numbers" without on increasing the number of new pattern due regard for the completion of a proper and practice case filings. The section investigation and legal analysis. should reasonably be expected to increase by half the number of new cases To expedite merits determinations, filed between now and the end of FY2002. FHEO staff should direct regional investigators to enlist the assistance of local Given the remarkable success of the private fair housing organizations wher- Housing Section's testing program over ever possible in conducting fair housing the years, the Housing Section should ex- tests as soon as the complaint is filed. pand the program so that testing can be directed at more than just rental prac- The number of Secretary-initiated com- tices. Testing should be aimed, for ex- plaints remains unacceptably low. Sec- ample, at real estate sales companies retary Martinez should direct the Office that engage in interstate business, and of General Counsel to investigate, pre- at lending and insurance practices. pare for litigation, and charge 25 Secre- tary-initiated cases, including lending To maintain its leadership role in the ar- cases, before the end of FY2002. eas of lending and insurance discrimination, the Department must complete B. Recommendations for the lending and insurance investigations now pending and increase the number of Department of Justice new case filings. In particular, the De- partment should allocate additional re- During the past two years, the Depart- sources to permit a more comprehensive ment has successfully implemented several investigatiOn of the subprime lending of the recommendations contained in the market. Commission's 1999 Report. The Department has exceeded the Commission's recommen- The Housing Section should continue its dation that it fund ten new attorney posi- efforts to work with the private sector tions;97 worked closely with the private sec- and nonprofit community to identify is- tor and nonprofit community to identify im- sues, areas, and cases that would benefit portant issues that would benefit from Jus- from DOJ intervention. tice Department attention;98 and allocated more resources for investigation of lending practices (and particularly the subprime

114 109 Citizens'Commission onCivilRights :

Endnotes

The author is indebted to Gretchen Rohr for her able assistance in helping prepare this chapter. 2Citizens' Commission on Civil Rights, The Test of Our Progress: The Clinton Record on Civil Rights,at 231 (1999) ("1999 Commission Report"). 3Id. Department of Housing and Urban Development (HUD) News Release No. 013 (Jan. 17, 2001). 5Id.; see also HUD News Release No. 00-332 (Nov. 20, 2000) (hailing "astonishing turnaround" at HUD under Cuomo's leadership). 6Id. 7 National Council on Disability, Reconstructing Fair Housing, at 43-47 (Nov. 6, 2001) ("NCD Study"). 81999 Commission Report at 232. 9HUD News Release No. 013 (Jan. 17, 2001). 10Funding Availability for the Fair Housing Initiatives Program, 65 Federal Register 9,467 (Feb. 24, 2000). 11 Id. 121999 Commission Report at 223. 13NCD Study at 54. 14NCD Study at 55; HUD Internal FHEO National "TEAPOTS" Tracking System Report (2001) (provided to author upon request) ("FHEO Tracking System Report"). 1542 U.S.C. § 3608(e)(2)(B)(I)-(iii). 16FHEO Tracking System Report. 17Id. 181999 Commission Report at 233. But compare NCD Study at 79-82 (tracking cause findings as percentage of total cases, and noting that absolute numbers of cause findings have dropped dramatically from FY1994 to FY2000). 191999 Commission Report at 233. 20Id. 2142 U.S.C. § 3610 (a)(1)(B)(iv). 22See, e.g., Kelly v. HUD, 3 Federal Reporter 3d 951, 956 (6th Circuit 1993); Baumgardner v. HUD, 960 Federal Reporter 2d 572, 578 (6th Circuit 1992). 23See, e.g., 1993 Commission Report at 87; 1995 Commission Report at 186; R. Schwemm, Housing Discrimination, at 24-15 n.90.1 (1998).

115 110 Citizens' Commission onCivilRights 24See Commission Reports cited in n.21 supra. 251995 Commission Report at 183, 186. NCD Study at 90. 27Id. at 100, 102. 28Id. at 289-290. 29Id. at 90. NCD Study at 109; 1999 Commission Report at 234. " FHEO Tracking System Report; but see NCD Study at 109 (calculating average compensation per case in FY1999 at $6,741). FHEO Tracking System Report; HUD v. Riverside County, California, reported at Fair Housing-Fair Lending Rptr. Report Bulletin¶7.1 (July 1, 2000) (settlement valued at more than $17 million in housing-related relief for migrant farm workers). 33HUD News Release No. 00-110 (May 22, 2000). 34FHEO Tracking System Report. 35Id. 36NCD Study at 98. 37Id. 38Id. 391999 Comniission Report at 234. 40Id. 41Id. 42FHEO Tracking System Report. 43For discussion and analysis of ALJ awards in prior years, see 1999 Commission Report at 235. 44HUD v. Kocerka, 2 Fair Housing-Fair Lending (Aspen) (landlord held liable for refusing to rent to interracial couple)¶25,138 26,138 (HUDALJ May 4, 1999); HUD v. Schmid, 2 Fair Housing-Fair Lending (Aspen) (refusal to rent to families with children)I25,139 26,146 (HUDALJ July 15, 1999); HUD v. Gunderson, 2 Fair Housing-Fair Lending (Aspen)¶25,140 26,155 (HUDALJ Aug. 25, 1999) (landlord not liable for refusing to rent to interracial couple who planned to conduct home business); HUD v. Active Agency, 2 Fair Housing-Fair Lending (Aspen)¶25,141 26,157 (HUDALJ Sept. 22,1999) (real estate agent liable for discriminating against families with children by telling prospective mobile home owners the park did not allow children). 45Id. 46HUD v. Cube llo, 2 Fair Housing-Fair Lending (Aspen)¶25,144 26,167 (HUDALJ June 5, 2000) (property owner liable for refusing to rent to families with children); HUD v. Blue Meadows, 2 Fair Housing-Fair Lending (Aspen)¶25,145 26,171 (HUD ALJ July 5, 2000) (defendant not liable where applicant with disability failed to state a prima facie case); HUD v. Wilson, 2 Fair Housing-Fair Lending (Aspen)I25,146 26,178 (HUDALJ July 19, 2000) (white supremacist held liable for harassing fair housing advocate and engaging in unlawful acts of interference and intimidation). This does not include the decision on remand against the complainant in HUD v. Gunderson, 2 Fair Housing-Fair Lending (Aspen)I25,147 26,197 (HUDALJ Aug. 14, 2000). 47HUD v. Wilson, 2 Fair Housing-Fair Lending (Aspen)I25,146 26,178 (HUDALJ July 19, 2000). 48Id. 491999 Commission Report at 235. 116

Citizens' Commission onCivilRights Chapter 8 Part Two: Segregation in Housing

50Id. at 235-237. 51Id. 52NCD Study at 41. 53Id. at 145-148, 193-195. 54Id. at 85-86; 189 (examining FHAP [Fair Housing Assistance Program agencies otherwise referred to as state and local agencies] cause determinations by region; and noting that'at the end of FY1999 fully 60% of the complaints in FHAP agencies were more than 100 days old). 55Id. at 43-47. 56Id. at 147-149. 571999 Commission Report at 236. 581999 Commission Report at 235-36; HUD v. Riverside County, California, reported at Fair Housing-Fair Lending Rptr. Report Bulletin ¶ 7.1 (July 1, 2000) (settlement valued at more than $17 million in housing related relief for migrant farm workers); NCD Study at 147- 149, 42-45. 59Fair Housing Act Regulations Amendments Standards Governing Sexual Harassment Cases, 65 Federal Register 67666 (2000) (to be codified at 24 C.F.R. Part 100) (proposed Nov. 13, 2000). 60 1999 Commission Report at 236-237. 61HUD, Unequal Burden: Income and Racial Disparities in Subprime Lending in America (Apr. 2000); HUD, U.S. Department of Treasury, Curbing Predatory Home Mortgage Lending: A Joint Report (June 2000). 62This does not include the joint action, undertaken by HUD with the Department of Justice (DOD and the Federal Trade Commission, against Delta Funding Corporation discussed elsewhere in this Report. See also NCD Study at 113-114 (only two Secretary-initiated cases filed in area of disability). 63See also NCD Study at 41-42 (noting loss of capable managers resulting from reorganization and devolution of complaint processing functions to regional hubs). 6442 U.S.C. § 3614 (a), 3612 (o). 651999 Commission Report at 237. 66Internal DOJ Tracking Report, prepared by the Housing and Civil Enforcement Section of the Department of Justice ("DOJ Tracking Report"). 67Id. 681999 Commission Report at 237. DOJ Tracking Report. 70 1999 Commission Report at 237. DOJ Tracking Report. 72Id. 73Id. 74Id. United States v. Associates National Bank, Civil Action No. 188-15-1 (D.Del. 1999); United States v. Deposit Guaranty National Bank, Civil Action No. 188-40-4 (N.D.Mississippi 1999); U.S. v. Camden Property Trust, No. CV-8-99-112-DWH (D.Nevada 2001), reported at Fair Housing-Fair Lending Rptr. Report Bulletin I 4.11 (Apr. 1, 2001) ($1.9 million settlement). 75United States v. Prestonwood, C.A. No. 175-75-80 (N.D. Texas 1999); U.S. v. Boston Housing Authority, C.A. No. 175-36-270 (D.Massachusetts 1999). 76DOJ Tracking Report. 77Civil Action No. 188-52-7 (E.D.N.Y. 2000). 78DOJ Tracking Report.

11 7 Citizens' Commission onCivilRights 79Id. 801999 Commission Report at 238. 81See, e.g., U.S. v. Camden Property Trust, No. CV-8-99-112-DWH (D.Nevada 2001), reported at Fair Housing-Fair Lending Rptr. Report Bulletin 11 4.11 (Apr. 1, 2001) ($1.9 million settlement); U.S. v. Rock Springs Vista Development Corp., C.A. No. S-97-1825-JBR (D.Nevada 1999), reported at Fair Housing-Fair Lending Rptr., Report Bulletin ¶ 2.3 (Feb. 1, 2000), 2001 WL 488884 (9th Circuit 2001) ($1 million settlement). 82See, e.g., United States v. J & G Construction Co., C.A. No. 99C-4403 (N.D. Illinois 1999), reported at Fair Housing-Fair Lending Rptr., Report Bulletin ¶ 4.5 (Apr. 1, 2000) (settlement involving 16 covered units); United States v. Orchard Hill Building Co., C.A. No. 99-4404 (N.D. Illinois 1999), reported at Fair Housing-Fair Lending Rptr., Report Bulletin I 1.20 (Jan. 1, 2000) (settlement involving 16 townhouses and 40 condominium units). 83United States v. Deposit Guaranty National Bank, C.A. No. 3:99CV670 (S.D. Mississippi 1999). 84United States v. Associates National Bank, C.A. No. 99 196 (D.Delaware 1999). 85United States v. Delta Funding Corp., 00 1872 (E.D.N.Y. 2000). 86Walker v. Crawford, C.A. No. 5:98 CV 1033 (N.D. Ohio Oct. 26, 1999). 87United States v. Prestonwood Properties, Inc., C.A. No. 3:99-CV-0495-R (N.D. Texas Mar. 8, 1999). 88United States v. L.T. Jackson, C.A. No. 3:99 CV 556 DN (S.D. Mississippi Aug. 9, 1999); United States v. Mills, C.A. No. 1:00 CV 00276 SM (D.N.H. June 7, 2000) (consent order entered Nov. 14, 2001 (awarding $100,000 in compensatory damages to four victims)). 89See, e.g., 1999 Commission Report at 239. 90U.S. Department of Justice Testing Program News Release (Aug. 16, 2000). 91Id 92Hargraves v. Capital City Mortgage Corp., C.A.No. 98-1021 (D.D.C. 1998). 93140 Federal Supplement 2d 7 (D.D.C. 2000). 94Brief of the United States as Amicus Curiaein Support of Plaintiffs' Opposition to Defendant's Motion for Summary Judgment, Casonv. Nissan Motor Acceptance Corp., No. 3- 98-0223 (M.D. Tennessee Aug. 1, 2000). 95Fair Housing of Marin v. Combs, No. 0015925 (9th Circuit Apr. 28, 2000). 96 Department of Justice News Release Concerning Reorganizationto Meet Counterterrorism Mission (Nov. 8, 2001). 971999 Commission Report at 242 (recommendation 2). 98Id. (recommendation 4). 99Id. (recommendation 3).

11 8

Citizens'Commission onCivilRights . .

Chapter 9 The Current Civil Rights Challenge for the Growing Latino Community: Inclusion and Participation in Political Life by Marisa J. Demeo

Introduction The first part of this article focuses on the immigrant Latino community. Citizenship is a necessary precursor to full political par- Census 2000 surprised much of the gen- ticipation, but our country's views toward eral public and the media when its results immigrants fluctuate, thus greatly affecting revealed that Latino' residents in the United the immigrant community's ability to inte- States now number 35.3 million, or 12.5% of the total resident population of the U.S.2 grate fully. Achieving citizenship has become While Latinos have been in the United States more difficult as our federal laws have in- in significant numbers for most of our creasingly viewed immigrants as a drain on country's history, the common perception, at the economy and as criminals. In addition, least on the national level, was that Latinos many barriers remain even in the process to become a citizen. were not a significant factor when discuss- Citizenship alone, however, is not suffi- ing the economic, political, or cultural influences in the United States. Although the cient. The second part of this article reviews perception was not accurate, the new cen- the limited access Latino citizens have to sus data are changing that perception of the voting and electing representatives of their Latino influence in the United States. choice. Within the voting context, the pri- Since the release of the 2000 census data, mary obstacle preventing Hispanics from many political commentators and politicians achieving more political power is the have talked about the current and growing community's low rate of registration and political clout of the Hispanic community. voting. But in order to increase their politi- Those comments that equate demographic cal participation, Hispanics must surmount data with political empowerment, however, an assortment of barriers at the polling place exaggerate the influence the Hispanic com- and in the redistricting process. Until these munity has on policy decision-makers. This problems are redressed, Hispanics will be article explores the challenge facing the unable to achieve their full political power. growing Hispanic community in the United States, to participate more fully and effectively in political life.

119 Citizens'Commission onCivilRights . .

I. Viewing Latino B. Changes to Immigration Law in Immigrants as 1996 Contributing to the One of the more recent trends seen by look- Economy and Citizens-in- ing at changes in our immigration laws is the growing view of immigrants as criminals Training, and Not as a rather than on the road to citizenship. For Drain on the Economy many years, the primary distinctions in our or as Criminals immigration laws were between those who were undocumented and those who were documented. It was the undocumented who A. Background lived in constant fear of deportation, who were hesitant to leave the country for fear Many Latinos living in the United States they could not get back in, and who tried to come from families who have lived in the remain below the radar screen so as to not United States for generations. Many do not draw any unwanted attention to themselves. know any cotmtry but the United States, and Once documented as a legal permanent resi- many do not speak Spanish. When, however, dent (LPR) (or "green card" holder), immi- 40% of the Hispanic community living in the grants felt secure in their residence in the United States was born outside of the United United States. There were few distinctions States,3 a discussion about the political par- between the obligations and rights of being ticipation of Hispanics in the U.S. cannot an LPR and the obligations and rights of be- ignore a discussion about Latino immigrants. ing a citizen. The most significant difference Although often called the "nation of immi- was that only citizens can vote, but beyond grants," the United States has had mixed that, LPRs felt they were here to stay and as feelings about immigrants, particularly long as their children were U.S. citizens they newer immigrants, over the span of our his- often thought there was no pressing need to tory. Often, the state of the economy has become citizens themselves. greatly shaped America's feelings towards In the early 1990s, the economy took a turn immigrants. When the economy is strong and for the worse. One of the first places to feel there are many jobs to fill, America has wel- the squeeze was California. When the comed immigrants and recognized their con- economy became tight and layoffs were hap- tribution to the economy. When, however, pening, many Californians blamed immi- the economy goes sour, it is often the latest grants for what they were experiencing. Cali- immigrants who are to blame for "taking jobs fornians passed a statewide initiative called away from Americans." In addition to the Proposition 187, which was designed to strip state of our economy, racism, xenophobia, undocumented children of the right to attend religious discrimination, as well as political school and legal immigrants of the right to beliefs such as "fighting communism" and receive various welfare benefits. Although "valuing diversity" have also shaped the initiative was never implemented due America's feelings and policies toward at to lawsuits filed by groups such as the Mexi- least certain groups of immigrants. All of can American Legal Defense and Educa- these factors have played a role in determin- tional Fund (MALDEF),.as the economy went ing our immigration laws and practices at down across the country Congress followed different points in our history.4 California's example and did it more success-

Citizens' Commission onCivilRights . O.

fully since it had the power to strip immi- "to the satisfaction of the officer" that they grants of federal benefits. are eligible for release.11 This means immi- The Citizens' Commission on Civil Rights' grants are detained without bond or indi- report of 1999 entitled The Test of Our vidual custody hearings, sometimes for Progress: The Clinton Record on Civil Rights months. Often immigrants are held along- focused one of its chapters on the welfare side criminals in state and local jails far from reform provisions passed by Congress in their families even though they have not com- 1996. The welfare reform law stripped legal mitted a crime or perhaps have already immigrants of many welfare benefits even served time for a petty crime committed though legal immigrants were not only here years ago. in the United States legally but they were The 1996 law made small petty offenses also working legally and paying into our tax equivalent to serious criminal offenses, so system. Instead of revisiting the welfare law now immigrants are being deported for mi- changes, this article focuses on two other nor infractions such as shoplifting and high- laws passed in 1996 the Illegal Immigra- school fights." Under the changed laws, if a tion Reform and Immigrant Responsibility one-year sentence was imposed, even if the Act5 (IIRIRA) and the Antiterrorism and Ef- individual never served any of the time, he fective Death Penalty Act6 (AEDPA) which is subject to mandatory detention." Although significantly affected the civil rights of im- ex post facto laws are unconstitutional in migrants in this country. The immigration criminal law, they have not been found to be laws were so dramatically changed under so in immigration law. The 1996 law requires these laws that many of the legal protections deportation for the petty offenses mentioned that legal immigrants had were stripped above no matter how long ago they occurred.14 away. What follows are a few examples to In addition, the 1996 law removed the immi- highlight the unfairness of the new laws. gration judge's discretion." The mandatory Under the 1996 changes, Immigration and deportations apply regardless of the nature Naturalization Service (INS) officers can of the offense, the extent of the immigrant's make many decisions to deport immigrants ties to the United States, evidence of reha- without any review from a judicial or quasi- bilitation, or the severity of the hardship the judicial officer.7 Appeals to a federal circuit deportation would cause U.S. citizens or le- court were also stripped away.8 Although gal resident family members." deportation has not been legally recognized These laws have created a wide divide as a punishment equivalent to criminal pun- between lawful permanent residents and ishment, in many cases it could be equiva- citizens. Aside from the unjust results for the lent, or even worse for some individuals. individual immigrants affected, the laws are Deportation can mean not only losing a job, having a larger societal effect of pushing it can also mean losing your family, your immigrants away from full integration and home, and the place you consider your coun- incorporation. Legal immigrants who have try. lived in the U.S. for many years, who felt The immigration law also requires man- "American," are now feeling that America no datory detention in nearly all cases if the INS longer sees them that way. While the pas- is planning to pursue administrative depor- sage of such laws has caused some immi- tation charges against an immigrant.9 The grants to apply for citizenship in order to detention is mandatory in the case of "crimi- protect themselves, others feel less invested nal aliens"10 and is presumed in the case of and connected to the political process in the noncriminal detainees unless they can prove U.S. than ever before.

121 - Citizens' Commission onCivilRights . .

The laws passed under IIRIRA and ralization provisions. Under these provi- AEDPA are some of the harshest laws we sions, a person must be at least 18 years of have seen in our history because the targets age; be a lawful permanent resident of the of the law enforcement activities are long- United States; have resided in the U.S. for 5 term legal residents and not undocumented continuous years; speak, read, and write immigrants. While the legal immigrants English; have knowledge of U.S. government have committed to or pled guilty to minor and history; and be of good moral character.18 crimes, they have also paid their requisite One group of Latino immigrants who penalties for those crimes under our crimi- clearly are not eligible to apply for citizen- nal laws. Although some immigrants may ship is undocumented immigrants. Accord- deserve the additional penalty of deporta- ing to estimates produced by the INS, about tion, none are given the guarantees that citi- 2.7 million undocumented persons in the zens have in our legal system of due process United States are from Mexico.19 Other Latin or judicial review. The cumulative effect of American countries, including El Salvador, these laws is to disempower not only those Guatemala, Honduras, the Dominican Re- directly subject to prosecution but also en- public, Nicaragua, Colombia, Ecuador, and tire immigrant communities. Instead of be- Peru, contribute another 885,000 undocu- coming more involved in political life, immi- mented persons to the U.S. total undocu- grants become hesitant not only to engage mented population.2° Taking the total num- politically but also even to access a whole ber of Hispanic noncitizens (9.5 million) and assortment of government services or pro- subtracting out undocumented Hispanics (3.6 grams for which they are eligible, such as million) as well as foreign-born Hispanics basic health services. One specific govern- who are under 18 (1.7 million),21 that still ment program that deserves particular at- leaves over 4 million Hispanics who at least tention in the context of political empower- potentially fall into the range of persons who ment is Latino immigrants' access to the could apply for citizenship, if not immedi- government's naturalization program. ately then within a handful of years.22 When so many in the Latino community C. Access to the Naturalization are potentially eligible to naturalize but have Process not naturalized, it reduces the political impact that the community could have on the political process. There are a variety of rea- A person who is born outside of the United sons why many Hispanics who are eligible States generally enters the United States as to naturalize have not. First, many eligible a noncitizen of the U.S. The person can be- Latino legal residents have not even initi- come a citizen through the legal process ated the naturalization process. Contrary to called naturalization. In an earlier section what some might believe, this group of non- of this article, it was highlighted that 40% of citizens overwhelmingly wants the United the Hispanic community are foreign-born. Of States to be their permanent home and be- the close to 13 million Latinos who were born lieve becoming a citizen is important.23 Even outside of the United States, one out of four so, Mexican noncitizens (the largest Latino has naturalized and become a citizen yet the subgroup of noncitizens) continue to have low remaining three out of four are noncitizens.17 Not all of the Hispanic noncitizens here in rates of naturalization,24 but Canadians also this country are eligible to naturalize. There have low rates of naturalization.25 It has been are a number of ways to naturalize, but the hypothesized that sharing a border with the most common is through the general natu- United States allows Mexicans and Canadi-

122 Citizens' Commission onCivilRights O.

ans to have easy access to their home coun- ture development. To demonstrate the effect tries.26 As a result, although Mexican and of lack of resources, the number of natural- Canadian long-term residents of the United ization petitions filed between 1991 and 1998 States may grow attached to the United was 6,197,701.'3 Except in 1991, every other States, it is harder for them to formalize the year through 1998, the INS processed fewer attachment through the process of natural- naturalization petitions than were filed.As ization since they can remain so active in life a result, the INS did not reach a final reso- in the country of origin.27 lution on 1,656,508 petitions.35 Second, according to the National Latino Once the data are explored further, a num- Immigrant Survey (NLIS), a surprisingly ber of other red flags are raised that deserve high percentage (43%) of Latino immigrants attention and solutions. The INS has increas- who were eligible to naturalize had actually ingly denied naturalization petitions. In begun the process in some concrete way but 1991, the rate of denial was as low as 2% of for some reason naturalization did not oc- the petitions that were processed.36 By 1998, cur.28 When comparing those eligible immi- the percentage of applications being denied grants who had not naturalized to those who had risen to 22% of petitions that were pro- did, a number of socio-economic and integra- cessed.37 Past studies have demonstrated tion factors emerge as indicators separating that applications from Latin American and the two groups. Older immigrants, immi- African countries experienced higher rates grants who came at an early age, immigrants of denials than applications from other coun- with higher incomes, immigrants with strong tries.38 Those studies found that there were English skills, immigrants who work, and vast differences of denial rates between dis- immigrants who owned homes were all more trict offices, suggesting that differences in likely to succeed in naturalizing than those the applicant pools from different countries who had not naturalized.29 alone could not explain the high rates of de- Beyond the societal barriers, there are nial from certain district offices.39 Part of the also government-created barriers to natural- problem in the past has been the decentrali- izing for Latino immigrants eligible to natu- zation of the process.° It would be impor- ralize. Even though the statutory require- tant to delve further into the causes for the ments for naturalization have steadily in- high denial rates. creased throughout our country's history,3° A major reason in the past for administra- the administration of the naturalization ap- tive denials by INS of Latino naturalization plication process has also created a number applications was due to failure by Latino of obstacles that have sometimes become in- applicants to complete the application form surmountable to Latino applicants.31 properly." Among the steps of the applica- The naturalization program has often re- tion process, the process of filling out the ceived little attention and priority as com- application has been the biggest deterrent pared to other INS functions,32 thus affect- for Latinos who are eligible to naturalize;42 ing the productivity of the Service in pro- 15% of those eligible obtained the form but cessing applications. While the law enforce- never completed it. ment functions of the INS receive large sums of appropriated funds from Congress, the D. Recommendations INS relies almost exclusively on fees paid by applicants to provide services such as Until the harsh aspects of the IIRIRA and naturalization processing. The fees alone AEDPA laws are reversed or at least often fall short of the resources that are scaled back, immigrants will find it diffi- needed for both processing and infrastruc-

123 Citizens' Commission onCivilRights Chapter 9 Part Two: Political Participation

cult to integrate into all aspects of our II.Latino Citizens' Access to society, including the political life. Voting and Electing One way to address the societal barriers Representatives of Their to naturalization would be for community-based organizations and government Choice programs to target assistance to those who, because of socio-economic barriers, A. Low Registration and Voting Rates find it harder to start or even complete the process. Since the INS must have The current population reports published some contact with every legal immigrant by the Census Bureau for the 1986, 1990, who enters the country, it could design 1994, and 1998 congressional election years proactive programs to provide natural- reveal a fairly consistent pattern of low reg- ization information and assistance to istration rates and even lower voting par- immigrants at the time of entry and again ticipation rates for the general population.43 five years after becoming an LPR. This disparity is further magnified for minorities, especially Hispanics who have par- With regard to the government-created ticularly low registration and voting rates. barriers to naturalization, both commu- In the four elections between 1986 and 1998, nity organizations and the INS should white registration rates fluctuated between invest time and resources in removing 64% and 68% of the white voting age popu- these obstacles. Starting with the appli- lation, and 47% of the white voting age popu- cation, which is currently ten pages long lation consistently voted in elections.'w Black with six pages of additional instructions, registration fluctuated between 56% and the INS should examine simplifying the 64%, while their voting rates ranged from form so that it is not such a barrier and 37% to 43%.45 By comparison, Hispanic reg- provide more assistance at the commu- istration rates ranged between 31% and 36%, nity level so that more eligible immi- and their voting rates ranged from 20% to grants will not only complete the form 24%.46 A similar pattern exists for the elec- but also decrease their denial rates by tions that have occurred during Presiden- filling them out correctly. In addition, tial election years.' INS should proactively present to com- Some of this disparity between Hispanic munity groups more information regard- registration and voting as compared to ing the bases for denials. When more than whites and blacks can be attributed to dif- 20% of applications are being denied, the ferences in citizenship rates. For example, INS is expending a huge amount of re- the report on the 1998 elections analyzed sources that ultimately do not serve the registration and voting of citizens. In that interest of the applicants who are eligible election, 69% of whites, 64% of blacks, and but made some error in the process. 55% of Latino voting age citizens were registered to vote.48 Of the citizen voting age population, 47% of whites, 42% of blacks, and 33% of Latinos actually voted.49 Despite the decrease in the differences between Latinos and non-Latinos when citizenship is taken into account, there still exists a significant disparity in both registration and voting rates.

120 124 Citizens' Commission onCivilRights *

Government should play a role in examin- Puerto Rico as U.S. citizens and raised in a ing how to make the voting process more Spanish-speaking environment. When they accessible and to increase voter participa- come to the United States, although they are tion rates of all voters, with special empha- not immigrants, they still face many language sis on identifying the particular needs of barriers. In addition, other citizens, born in minority voters who are registered but who the States and raised in Spanish-speaking vote less. The Census Bureau's own analy- households, can also face language barriers. sis reveals that both white and black regis- In 1975, Congress recognized the language tered voters listed as their top three reasons barriers that certain citizens faced in cast- for not voting as: (1) no time off/too busy; (2) ing their vote when they extended protec- not interested; (3) ill/disabled/emergency." tion against voting discrimination under the While these three reasons fall into Latino Voting Rights Act to "language minority registered voters' top four reasons for not groups."55 If either 5% or 10,000 of the vot- voting, Latinos also listed "other reasons" for ing-age citizens of a political subdivision are not voting as the second most common rea- limited English proficient and speak a single son for not voting.51 language, the jurisdiction is prohibited from providing materials exclusively in English.56 B. Election Systems and Procedures Many states and local jurisdictions provide even further protection for a larger class of Once Hispanic citizens are registered to language minorities. Despite these legal pro- vote, they often face barriers to voting and tections, Latino citizens still face barriers having their vote counted, ranging from lan- when they try to cast their ballot at the poll- guage barriers to unfair voting systems to ing place on election day. even voter intimidation. In a report issued by the U.S. Commission on Civil Rights reviewing the voting irregularities that occurred in Florida in the Presi- I. Language Barriers dential election in 2000, the Commission In 1990, 14% of the U.S. population spoke unveiled a number of language barriers faced languages other than English at home." Of by Spanish-speaking Latino citizens.57 Ac- those persons who spoke other languages, cording to testimony submitted by the 54% spoke Spanish in the home." Although Puerto Rican Legal Defense and Education the detailed Census 2000 data have not been Fund (PRLDEF), many Latino voters were released, the Census Bureau did conduct a turned away at the polls without proper lan- Census 2000 Supplemental Survey, which guage assistance." The Commission found estimates that the percentage of the U.S. that many poll workers were not properly population speaking languages other than trained to handle language accessibility con- English at home has risen to 18%, and 60% cerns.59 In addition, the Commission found of those persons are speaking Spanish at that in some cases, either willing bilingual home. 54 volunteers or poll workers were stopped Not all persons who speak Spanish in the from providing assistance to voters with lim- home are citizens and eligible to vote, but a ited English skills.6° fair number of them are. Some of the citizens who speak Spanish in the home are 2.Voting System Barriers naturalized citizens, but others are persons who are native-born citizens. Native-born In addition to language barriers, Latino citizens whose first language is Spanish citizens face barriers to casting their vote could be Puerto Ricans who were born in by the voting systems that are often used by

Citizens' Commission onCivilRights . I.

states and localities in predominantly Latino In Illinois, the state legislature has refused neighborhoods. A lawsuit brought by to change the state law to allow or require MALDEF demonstrates this type of barrier error notification to voters in election juris- to voting. MALDEF has filed a civil rights dictions using punch-card voting systems. By class action lawsuit in the Northern District comparison, state law requires error notifi- Court of Illinois on behalf of Latino and Af- cation in election jurisdictions using optical- rican American voters challenging the non- scan voting systems where the ballots are uniform, arbitrary, and unequal system of counted in-precinct. At these precincts, vot- voting in Illinois as violating section 2 of the ers can have their ballots placed in tabula- Voting Rights Act of 1964, 42 U.S.C. § 1973, tion equipment, which will return any bal- and the 14th Amendment to the Constitu- lot with an overvote or which cannot be read. tion of the United States.61 The defendants Then the voter has the opportunity to ob- include members of the Illinois State Board tain a new ballot and correct the vote. of Elections as well as a number of local elec- In the Presidential election of 2000, the tion commissions and voting officials. rate of votes not counted (the "fall-off rate") At issue in the complaint is that the type on ballots cast statewide was approximately of voting systems that are located in pre- 3.85%. In jurisdictions using optical-scanning dominantly Latino and African American systems with error notification, the fall-off voting areas are more likely to produce er- rate was approximately 0.5%. By compari- rors in voting that are not corrected than son, in jurisdictions and wards with signifi- those voting systems available in other ju- cant Latino and African American popula- risdictions, thus infringing on the Latino and tions, the fall-off rate was significantly African American right to vote. In Illinois, higher. The City of Chicago, which used the most jurisdictions, including some of the ju- punch-card voting system without error no- risdictions with the highest concentrations tification, had a fall-off rate of 7%. In the of Latino and African American voters, use Chicago wards where 65% or more of the punch-card ballots. Other jurisdictions use residents are Latinos and/or African Ameri- optically scanned ballots. Most of the juris- cans, the fall-off rates were even higher. In dictions that use optically scanned ballots the heavily Latino 12th ward, the fall-off was provide voters at the time they are at the 12.6%, and the predominantly African poll with notice of certain errors on their American 37th ward was 12.4%. Similarly, ballots, and provide those voters an oppor- the Township of Cicero, with a significant tunity to vote again to correct the errors. This Latino population and located within Cook process is called "error notification." For County, using a punch-card system without purposes of the litigation, "errors" refer to error notification, had a fall-off rate of 8.8%. the case in which a voter's ballot contains The City of East St. Louis, with a significant more votes for an office than allowed by law African American population and which (an "overvote") or in which the tabulating ma- used optical-scan balloting but without er- chines cannot accurately read the voter's ror notification, had a fall-off rate of approxi- ballot. Punch-card ballots and optically mately 11%. scanned ballots without error notification To summarize the primary facts in the case, have a higher error rate for recording, count- the majority of Latino and/or African Ameri- ing, and tabulating votes than do optically can voters live in jurisdictions that use scanned ballots with error notification. In punch-card voting systems or that use opti- addition, punch-card ballots have a higher cal-scan ballots without error notification, error rate among Latino and African Ameri- which result in substantially higher rates of can voters than among non-minority voters. voting error than optical-scan ballots with

126 Citizens' Commission onCivilRights error notification. A larger proportion of Il- does not appear on the voting rolls to com- linois' Latino and African American voters plete a challenge affidavit and cast a vote, live in such jurisdictions than the propor- election judges often are unaware of this law tion of Illinois' white voters who live in such and do not provide the voters an opportu- jurisdictions. Moreover, in jurisdictions with nity to vote. These examples demonstrate the punch-card voting systems, areas with high need for additional education and training Latino and/or African American populations of election personnel. have higher error rates than areas with high Jurisdictions covered by section 5 of the non-minority populations. As a consequence, Voting Rights Act must receive administra- Illinois' Latino and African American voters tive approval from the United States Attor- are significantly less likely to have their ney General or judicial approval from the votes counted than non-minority voters. United States District Court for the District Thus, in elections at all levels, including of Columbia for all proposed changes in vot- municipal elections, the voting strength of ing laws or practices by proving that the pro- Latino and African American voters is posed changes do "not have the purpose and thereby diluted and these voters have less will not have the effect of denying or abridg- opportunity than other members of the elec- ing the right to vote on account of race or torate to participate in the electoral process, color [or membership in a language minor- to form coalitions with like-minded voters, ity group]." Texas is one of nine states fully and to elect representatives of their choice. covered by section 5; an additional seven The problem identified through MALDEF's states are partially covered by section 5. Sec- case in Illinois is found in many parts of the tion 5 coverage reaches all changes in vot- country. ing, including polling location changes and changes in the hours of polling places. In the 3.Additional Voting Barriers 1998 elections in Texas, MALDEF had to bring a lawsuit to prevent Bexar County Beyond the specific areas of language bar- from closing early, without the section 5 fed- riers and barriers created by certain voting eral preclearance required, a number of vot- systems, Latinos face a wide range of barri- ing polling places in Latino and African ers to full and effective participation in the American neighborhoods. voting process by other practices. Examples MALDEF continues to intervene in situa- from Texas will illustrate some of the other tions of voter intimidation of Latino voters. barriers Latino citizens must overcome to In 2000, MALDEF defended a number of eld- have their vote counted. This section raises erly Latino voters who were being harassed the issues of lack of training for election by a local district attorney in Fort Stockton, judges; provisional and affidavit ballots; com- which is located in West Texas. It is very pliance with section 5 of the Voting Rights common for elderly and disabled Latino vot- Act, 42 U.S.C. § 1973; and voter intimida- ers to cast their ballots by mail because they tion.62 cannot physically travel to the polls. The With regard to training for election judges, people who help the elderly and disabled MALDEF has received numerous complaints absentee voters are often Latinas from the about election judges not administering elec- neighborhood who have assisted voters for tions in accordance with standing laws and decades. regulations. Often, judges turn Latinos away In a particularly close race for district at- from voting polls after telling them that they torney in the Fort Stockton area, the adja- are not on the list of registered voters. Al- cent district attorney launched an investi- though Texas law allows a voter whose name gation into the absentee voting of elderly and 127

Citizens' Commission onCivilRights Chapter 9 Part Two: Political Participation

disabled Latinos, sent uniformed officials to redistricting process occurs, state and local their homes, demanded some people appear governments can draw political district for a videotaped interrogation, asked them boundaries that result in reducing Latino to reveal for whom they had voted, and ulti- voters' ability to elect candidates of their mately gave the results of the investigation choice. In some cases, line-drawers may try to the disgruntled loser of the election who to pack many Latinos into one voting district then subpoenaed some of these elderly vot- when there are a sufficient number of ers to appear in a court over 80 miles from Latinos to create more than one district.65 their homes. MALDEF appeared to quash In other cases, Latinos can be split into two the subpoenas of the voters who could not districts, where they cannot affect the out- appear. Many of the voters stated they would come of the vote in either; whereas, if they not vote again because of all they had expe- had been allowed to vote out of one district, rienced. Although this particular incident they might have had the voting strength to happened in a local election, federal elections affect the outcome.66 In either situation, what are not immune from incidences of voter in- could be occurring is called minority vote timidation. dilution. One of the ways to avoid minority vote di- C. Creation of Latino Voting Districts lution is to create a voting district that is During Redistricting majority-minority. In other words, by drawing a political district that has over 50% of a racial or language minority population, the Every ten years, the U.S. Government government increases the opportunity for counts the resident population of the United that population to express their will at the States through the census. Once the census polls. The reasons why courts approve ma- data are available, governments at the state jority-minority districts as a way to avoid and local level go through a process called vote dilution of minorities are numerous. redistricting. Redistricting involves drawing Many jurisdictions have a history of discrimi- district boundaries from which officials are nating against minority voters through poll elected for the U.S. House of Representa- taxes, literacy tests, and similar barriers. tives, state legislative seats, as well as local Some jurisdictions purposefully selected wards, boards, and councils. One of the principles driving the need to redistrict every voting by all voters in the jurisdiction at large ten years is the concept of having "one per- instead of from individual districts within son, one vote."" This means that the num- the jurisdiction in order to reduce the power ber of people in each voting district should of a minority vote. In many, although not all, be equal to the number in other districts in jurisdictions, voters are still voting in a racially polarized manner.67 Experts can often the jurisdiction, so that one person's vote will not count more than another person's vote. prove racially polarized voting by demonstrating that minority voters tend to vote for When redistricting occurs, governments the same candidate, and white voters tend must ensure they comply with both consti- to vote against the candidate whom the mi- tutional and statutory requirements. One of nority community wants elected. For these those requirements comes from section 2 of and other reasons, courts have looked favor- the Voting Rights Act of 1965, which prohib- ably on the creation of majority-minority dis- its the creation or use of voting procedures tricts. that would deprive voters of an effective vote because of their color, race, or membership By way of illustration of the difficulty for in a language minority group.64 When the Latinos to be elected from other than majority-Latino districts, one needs to look no fur-

128 Citizens' Commission onCivilRights .

ther than the Latino members of Congress. critical role. The Department can also bring Of the 19 members of Congress who are His- cases, such as the ones brought by MALDEF panic, 18 are from congressional districts to ensure that minorities' voting rights are with at least 50% Hispanic population.68 protected in the redistricting process. The Only one member Robert Menendez from Department also has an additional unique New Jersey succeeded in being elected to "preclearance" role, mandated by section 5 a district that was not majority Latino.69 of the Voting Rights Act of 1964, which was Even in Menendez' case, he was elected from explained more fully in an earlier section. a district that was more than 50% minority.70 This is a powerful tool that the Department No Latinos have succeeded in being elected can use to prevent a redistricting plan that from a majority white district?' harms Hispanic voters from being imple- For decades, MALDEF has played a lead mented. MALDEF has found that the role in ensuring that Latino voters' rights Department's review under section 5 has are protected in the redistricting process. sometimes comported with our analyses but This year is no exception. MALDEF has been sometimes has not. For example, the Depart- active in presenting redistricting plans to ment pre-cleared the redistricting plan for various legislative bodies adopting redis- the Texas State Senate even though we chal- tricting plans, and where Latino voters lenged the plan. The Department did, how- would experience vote dilution by new plans ever, issue an objection to the Texas House that are adopted we have had to resort to of Representatives' redistricting plan find- litigation in states such as California and ing that the plan illegally retrogressed the Texas. In California, MALDEF brought a case voting strength of Hispanics in Texas. The challenging the manner in which new con- court's.decisions on the two plans suggest gressional and State Senate district lines that much weight was giventothe were drawn. California experienced signifi- Department's analyses. cant growth (14%) of its total population between 1990 and 2000.72 A stunning 80% of D. Recommendations that growth was due to growth in the His- panic coinmunity, which grew by over 40% In the area of low registration and vot- of its population?' ing rates, politicians and community or- In Texas, MALDEF challenged in court the ganizations should tackle registered vot- way that the Texas House and Senate as well ers' decision not to participate because as the congressional lines were drawn. Texas they are not interested. Government experienced tremendous population growth should explore expanding voting days (23%) between 1990 and 2000.74 Sixty percent and hours and even consider a day off of the growth was due to growth of the His- from work to ensure those who could not panic population, which experienced growth vote because they do not have time off of 2.3 million more Latinos by the end of the have the ability to participate in our po- decade.78 Already, a court ruled in favor of litical system. Government expanding MALDEF's case regarding the State House days and hours, creating a holiday, or plan and created an additional Latino seat, even making absentee ballots more ac- but ruled against MALDEF on the State Sen- cessible could also address the barriers ate plan. for those who are ill or disabled. The fed- Aside from the role that advocacy organi- eral government should also conduct zations such as MALDEF play to ensure the some follow-up surveys, particularly of protection of the voting rights of Hispanics, Hispanics who list "other reasons" as the the Department of Justice plays a central and

129 Citizens' Commission onCivilRights .

second most common reason for not vot- a role at least with regard to federal elec- ing. There may be other obstacles that tions by providing grant money for these can be removed or addressed once they purposes. In addition, the example re- come to light. garding affidavit voting demonstrates the importance of having not only state To address language barriers to voting, laws for provisional and affidavit voting government, at all levels, must conduct but also a mechanism to ensure notice and a more aggressive education campaign compliance with those laws. The federal before elections and a more aggressive government could play a role with set- enforcement campaign during elections ting standards in this area with regard to ensure that all citizens have full ac- to federal elections. States could further cess to the voting process. Because much strengthen the training and compliance of election day operations occurs at a very with their laws through investing person- local level, where resources can be lim- nel and resources from the state level to ited, the federal, state, and larger local the local jurisdictions. jurisdictions should invest money to design and implement training for election Both the section 5 violation and the voter officials and poll workers in the area of intimidation examples demonstrate that language accessibility. Governments the Department of Justice needs to en- could also work with technology compa- gage in vigorous enforcement of our vot- nies to design voting systems that are ing laws to ensure no one is denied the more accessible to those with language fundamental right to vote. barriers. Finally, the Department of Jus- tice, which is charged with enforcing the It cannot be emphasized enough that Voting Rights Act, should enforce more strict enforcement of both section 5 and vigorously the provisions that apply to section 2 of the Voting Rights Act by the language minorities. Department of Justice in reviewing redistricting plans is critical to the politi- The federal government could play a cal empowerment of Latino communities. more proactive role in the area of remov- Every ten years, the federal government ing voting system barriers by setting na- should invest additional resources in re- tional federal standards for uniform and viewingtheredistrictingprocess nondiscriminatory voting systems as throughout the country. Without the ad- they are used in federal elections. In additional resources, the level of the dition, the federal government could pro- Department's review and the reach of the vide grant money to states to assist them arm of law enforcement will be limited. with improving and/or replacing voting equipment and technology. If the federal government fails to set such standards, Ill. Conclusion states could also set such standards within their states and provide financial assistance to jurisdictions that have lim- This article has attempted to explore the biggest challenge facing the growing His- ited resources to upgrade their voting panic community, translating demographic equipment. growth into political participation and To ensure more training for election of- power. While many challenges face the com- ficials, the federal government could play munity, becoming a political force will go the

-130 Citizens'Commission onCivilRights furthest to address the myriad of issues fac- Finally, the article discussed the obstacle to ing the community, from immigration to edu- Hispanic voters being able to elect candi- cation, from access to health care to access dates of their choice when redistricting does to good jobs. not protect Latino voters. The key actor The article started with a discussion on needed to assist the community in the re- the Hispanic immigrant community. The fed- districting area is the Department of Jus- eral government has increasingly treated tice, which is charged with enforcing the immigrants as if they are a drain on the Voting Rights Act in the area of redistrict- economy and as criminals. This trend pushes ing as well as many other areas covered by Latino immigrants away from integration this article. and, until the trend is reversed, a large seg- In a short article, it would be impossible ment of the Hispanic community will find it to solve the entire dilemma of the Latino difficult if not impossible to participate po- community, which so far has failed to trans- litically in the society. Even beyond integrat- late its demographic growth into full politi- ing legal immigrants so that they feel a part cal participation and power; however, the of our society, there remain substantial bar- article has attempted to raise some specific riers for those who are eligible to become areas that, if addressed, could increase His- naturalized citizens. The current system re- panic political participation in the near fu- lies on individuals, who face socio-economic ture. and government-created barriers to naturalizing, to surmount all barriers on their own. Instead, the article argued that proactive Post-Script: September II government steps should be taken to better educate and assist those who are closest to Since the terrorist attacks on the World joining our democracy on a deeper level. Trade Center and the Pentagon on Septem- After discussing some of the ways to bet- ber 11, 2001, the points made in the first half ter integrate immigrants and assist them to of the article related to the need to view im- the road to citizenship, the article switched migrants as contributing to the economy and gears and focused on the right to vote. In this citizens-in-training have become more im- half, the article reviewed the low rates of portant. Because the individuals who com- registration and voting for Latinos, even mitted the terrorist attacks were nonciti- when citizenship is taken into account. Al- zens, federal and local governments are mak- ready some studies have identified what a ing policy decisions and engaging in prac- number of the barriers are. The article pro- tices that push us further into the direction posed solutions such as expanding days and of viewing immigrants as criminals. To pro- hours for voting and even creating a holiday vide one example, Congress recently passed to reduce some of the obstacles to voting, the Aviation and Transportation Security while recognizing that more needs to be done Act.76 This bill contained a provision requir- to identify additional barriers. The article ing that all baggage screeners at airports be explored a variety of obstacles faced by His- citizens. While it is true that all the terror- panic voters at the polls, from language bar- ists were noncitizens, it does not follow that riers to voting system barriers to barriers all noncitizens are terrorists; however, this created by election personnel. While the ar- is exactly the conclusion that many policy ticle suggested a number of proposals, a key makers appear to be drawing from the char- component to all of them was more invest- acteristics of the terrorists. To the extent ment in training, education, and technology that Congress is concerned about baggage by the federal, state, and local governments.

Citizens' Commission onCivilRights 131_ . . I .

screeners being a security risk, background In fact, many legal immigrants have served checks and security measures should be and do serve in our military, and many have taken; however, all employees should have died protecting the national security of this to pass the same background checks. country. The irony of Congress' recent decision is The road to Latino immigrant integration that the same legal immigrants who cannot is made much harder when government be baggage screeners are required to regis- makes sweeping and erroneous conclusions ter for our military draft if they are male and about immigrants. Federal, state, and local between the ages of 18 and 25, and all the governments must slow down and do a bet- legal immigrant baggage screeners who will ter job of determining what, in fact, are be fired from their jobs could today sign up needed steps to fight terrorism, and reject and serve in our National Guard (who are the misconception that all immigrants are stationed at many airports for security pur- terrorists or suspected terrorists. poses) and in our active military branches.

132

Citizens' Commission onCivilRights .

Endnotes

1 In this article, the terms "Latino" and "Hispanic" are used interchangeably. 2 U.S. Census Bureau, Census 2000, Profile of General Demographic Characteristics for the United States: 2000 (visited Aug. 13, 2001). 3 See U.S. Census Bureau, Foreign-Born Population by Sex, Citizenship Status, Year of Entry, Hispanic Origin, and Race: Mar. 2000 (visited Nov. 12, 2001); U.S. Census Bureau, Population By Sex, Age, Hispanic Origin, and Race: Mar. 2000 (visited Nov. 12, 2001). 4 For a brief review of the historical discrimination in U.S. immigration laws, see U.S. Com- mission on Civil Rights, The Tarnished Door: Civil Rights Issues in Immigration, at 7-12 (1980). 5 Public Law No. 104-208, div. C, 110 Stat. 2009 (1996) (codified in scattered sections of 8 and 18 U.S.C.). 6 Public Law No. 104-132, 110 Stat. 1214 (1996) (codified in scattered sections of 8, 18, 22, 28, 40, and 42 U.S.C.). 7 See Lucas Guttentag, The 1996 Immigration Act: Federal Court Jurisdiction Statutory Restrictions and Constitutional Rights, Interpreter Releases, at 245-254 (1997) ("Federal Court Jurisdiction"). Id. 9 Id. at 253; see also Margaret H. Taylor, The 1996 Immigration Act: Detention and Related Issues, Interpreter Releases, at 209 (1997) ("Detention and Related Issues"). 1° Federal Court Jurisdiction at 253; Detention and Related Issues at 216. " Detention and Related Issues at 214-15. 12 Nancy Morawetz, "Understanding the Impact of the 1996 Deportation Laws and the Lim- ited Scope of Proposed Reforms," 113 Harvard Law Review 1936, 1939-40 (2000) ("Understand- ing the Impact"). 13 Id. 14 See, e.g., Nancy Morawetz, "Rethinking Retroactive Deportation Laws and the Due Pro- cess Clause," 73 New York University Law Review 97 (1998); Paige Krasker, Note, "Crimes of the Past Revisited: Legal Aliens Deported for Past Crimes Under the Retroactive Application of the Antiterrorism and Effective Death Penalty Act," 22 Suffolk Transnational Law Review 109 (1998); Bruce R. Marley, Comment, "Exiling the New Felons: The Consequences of the Retroactive Application of Aggravated Felony Convictions to Lawful Permanent Residents," 35 San Diego Law Review 855 (1998); and Anjali Parekh Prakash, Note, "Changing the Rules: Ar- guing Against Retroactive Application of Deportation Statutes," 72 New York University Law Review 1420 (1997).

133

Citizens' Commission onCivilRights Chapter 9 Part Two: Political Participation

" Understanding the Impact at 1938, 1954. " Id. at 1950-1954. 17 U.S. Census Bureau, Foreign-Born Population by Sex, Citizenship Status, Year of Entry, Hispanic Origin, and Race: Mar. 2000 (visited Nov. 12, 2001). 18Immigration and Naturalization Service, 1998 Statistical Yearbook of the Immigration and Naturalization Service (visited Nov. 13, 2001). 19Id. 20Id.

21U.S. Census Bureau, Latin American Foreign-Born Population by Sex, Age, and Region of Birth: Mar. 2000 (visited Nov. 13, 2001). 22One author estimated that 2.5 to 3 million noncitizen Latinos were eligible to apply for citizenship in 1996, but acknowledged, at the time his book was published in 1996, that about 2.6 million more Latino immigrants were about to be eligible through various legalization programs. Louis DeSipio, Counting on the Latino Vote: Latinos as a New Electorate, at 131 (1996) ("Counting on the Latino Vote"). 23Id. at 124. 24Id. at 130. 25Id. 26Id. 27Id. " Id. at 135. 29Id. at 127. 30Id. at 144. 31Id. at 145-148. 32Id. at 147. 33Immigration and Naturalization Service, 1998 Statistical Yearbook of the Immigration and Naturalization Service, Table 44. 34Id. 35Id. 36Id. 37Id. 35Counting on the Latino Vote at 148. 39Id. 40Id. 41Id. at 149. 42Id. 43U.S. Census Bureau, Voting and Registration in the Election of November 1990 (1991); U.S. Census Bureau, Voting and Registration in the Election of November 1994 (1996); U.S. Census Bureau, Voting and Registration in the Election of November 1998 (2000) ("Voting 1998"). 44Id. 45Id. 46Id.

47See U.S. Census Bureau, Voting and Registration in the Election of November 1996 (1998) ("Voting 1996"). The Census Bureau has not released the results from the 2000 Presidential election yet. 45Voting 1998.

130 134 Citizens' Commission onCivilRights Part Two: Political Participation Chapter 9

49Id. 5° Voting 1996. " Id. 52U.S. Census Bureau, Language Use and English Ability, Persons 5 Years and Over By State: 1990 Census (visited Nov. 28, 2001). 53Id. U.S. Census Bureau, Census 2000 Supplemental Survey Summary Tables (visited Aug. 7, 2001). " 42 U.S.C. § 1973b(f)(1) (2000); Congress, at the time of amending the Voting Rights Act to protect language minorities, limited the protection to persons who are "American Indian, Asian American, Alaskan Natives, or of Spanish heritage." 42 U.S.C. § 1973aa-la(e). " 42 U.S.C. § 1973aa-la (2000). 57 U.S. Commission on Civil Rights, Voting Irregularities in Florida During the 2000 Presi- dential Election, at 128-131 (June 2001) (Advance Copy). " Id. at 129. 59Id. 6° Id.

61The facts set forth in this article are taken from the amended complaint filed by MALDEF in federal district court. The lead attorney on the litigation for MALDEF is Maria Valdez, Senior Litigator, in MALDEF's Chicago office. 62To write this section, the author relied on testimony filed by Nina Perales, Staff Attorney in the MALDEF San Antonio office, with the Texas State Democratic Caucus Special Commit- tee on Election Reform in May 2001. 63See Reynolds v. Sims, 377 U.S.C. § 533 (1964); Wesberry v. Sanders, 376 U.S.C. § 1 (1964); Baker v. Carr, 369 U.S.C. § 186 (1962). 6442 U.S.C. § 1973, as amended (2000). 65Mexican American Legal Defense and Educational Fund et al., The Impact of Redistrict- ing in Your Community: A Guide to Redistricting, at 18 (2001). 66Id. 67Id. at 28. 68See Juan Andrade and Andrew Hernandez, The Almanac of Latino Politics 2000, at 24 (1999). 69Id. at 25. 70 Id. at 23.

71Id. 72U.S. Census Bureau, Difference in Population by Raceand Hispanic orLatino Origin, for California: 1990 to 2000 (visited Nov. 28,2001). 73Id. 74U.S. Census Bureau, Difference in Population by Raceand Hispanic orLatino Origin, for Texas: 1990-2000 (visited Nov. 28, 2001). 75Id. 76Public Law No. 107-71 (2001).

135

Citizens' Commission onCivilRights . . .. . - I

Chapter 10 Voting Rights by Armand Derfner

Introduction the-board, and (2) making the system fair to all voters and segments of voters. Since the U.S. Supreme Court decided The federal government has a wide role that George W. Bush would be President of to play in all this. Its power derives from the United States, everyone has been talking several solaces, some of which are: (1) power about voting but, as with the weather, no one to enforce constitutional guarantees, espec- has done much. Voting is said to be ially equal protection and due process; (2) fundamental to our nation, but until the 2000 plenary power over federal elections; and elections we didn't seem to understand how (3) ability to spend money and offer money rickety our election process is. to states on certain conditions. The respon- We know that in our federal system voting sibility belongs to the executive branch is administered by states, each one having directly, as well as in seeking legislation, different systems of casting and counting and in litigating before the judiciary. votes. But it goes deeper, as we saw in November and December. Voting is actually administered by counties (3000 nationwide), I. Redistricting and takes place at precincts (several hundred thousand) where it is administered The federal government should play an by Volunteer-Managers-for-a-Day (more active role in shaping redistricting law to than a million all told). The differences we protect minority voters. saw in Florida between how votes are cast, Since the recent release of 2000 census counted, and miscounted by voters and figures, most governmental units in the officials in different precincts let alone United States are actively engaged in different counties are not news. They can redrawing their district lines. Time is short. never be eliminated entirely but in the past Every state will have congressional elections they have been tolerated far too much. in 2002, and most will also have state legis- Small wonder that in such a system lative elections at the same time. Therefore, ascertaining the will of the people would not with a few exceptions (such as states that be easy even if everyone were pulling for an have only a single U.S. congressman, or honest deal and a fair count and if we all states whose legislative elections do not shared the same vision of what that meant. take place in 2002), each state will need But of course we don't. Therefore, working three separate state redistricting plans. to improve our election system requires two Some states also use districts to elect other focuses: (1) streamlining the system across- statewide officials such as judges or highway

136 Citizens' Commission onCivilRights i Chapter 10 Part Two: Political Participation

commissioners. Below the statelevel, greatest application of section 5 is in the innumerablecities,counties,school South. districts,waterdistricts,andother governmental units are engaged in the same Since Baker v. Carr in 1962, the courts have process, with the same 2002 elections facing gone through three generations of redis- most of them. tricting law. In the 1960s there was a drive The direct federal role in redistricting is for mathematical equality, creating the rule limited. District lines in each state are of one-person one-vote. In the 1970s the drawn by state bodies, and lawsuits over courts began striking down plans that were such lines are traditionally brought by found to dilute the votes of minority voters private citizens and defended by state sometimes through districts that were agencies. However, the Justice Department racially gerrymandered, and more often is armed under sections 2 and 5 of the Voting through using at-large elections to avoid Rights Act to oppose racial or other minority districting altogether. In the 1990s the discrimination in districting plans. Both Supreme Court created a new body of these sections will be discussed more gener- redistricting law designed to protect white ally below, but at this point it is enough to voters) say that the Department has played and can The issue in this decade will be how to play a major role in achieving districting reconcile these mandates, and here the role fairness through active use of section 2 and of the Justice Department is critical. The section 5. Supreme Court cases following Shaw have developed a somewhat shifting and ill- Section 2 allows the Justice Department defined body of law, mostly in examining (as well as any private citizen) to file suit plans drawn before Shaw was decided.2 The against any voting practice or procedure new plans will be the first widespread (including a redistricting plan) that has efforts to apply the new jurisprudence, and the purpose or result of discriminating the cases will likewise be the first to review on account of race. Such suits may be a generation of post-Shaw plans. brought in any state, and in fact have been The question is whether the new plans will brought not only on behalf of black voters seek to protect minority voters from vote in the South, but also on behalf of His- dilution. The Shaw cases do not end the need panic voters and American Indians. to avoid minority vote dilution, nor do they bar use of race as a factor in creating district Section 5 requires that in certain states lines. The most recent North Carolina case and portions of other states all voting upheld a congressional districting plan that changes (including redistricting plans) took account of race in drawing lines to avoid must be sent to the Justice Department minority vote dilution. The Court indicated for "preclearance" before they can be that taking account of race is likely to be implemented. This is an expeditious inevitable, and that it does not invalidate a screening process in which the submit- plan without evidence that race was the ting jurisdiction has the burden of predominant concern over and above politics showing the change does not have a or other "traditional state criteria."' racially discriminatory purpose and will The Justice Department should vigorously not have a discriminatory effect. If this bring suits under section 2 and deny showing is not made, the Department preclearance under section 5 to plans that "objects" and the change is blocked. The dilute minority voters' votes. Moreover, the Department should seek to join cases as

137 Citizens' Commission onCivilRights I

amicus curiae where significant issues under And here the genius of section 5 came into Shaw arise. This amicus role is not new. The play. Section 5 was a preventive response Department played a crucial role in argu- to the massive resistance described by ments before the Supreme Court in the Mississippi Governor J.P. Coleman, who said 1950s cases that first shaped redistricting that any southern legislature could pass new law. So important were these cases that laws faster than federal courts could strike arguments were presented not only by them down. Previous laws had foundered; Solicitor General Archibald Cox, but also by southern states simply ran around them by Attorney General Robert F. Kennedy, who adopting new schemes. In section 5, Cong- chose the Georgia county unit system case ress stopped trying to play "catch-up" and as the occasion for his first and only Supreme said in effect, "We don't know what tactics Court argument.4 you will try, but we know you will try We are at a crossroads. How districts are something and when you do we will be ready drawn in thousands of city, county, and state for you ahead of time." bodies will test whether we mean to include Thus section 5 created a novel procedure everyone in our democracy. There is by which any voting change in a "covered" significant pressure to abandon the quest for jurisdiction' was blocked and could only be fairness to minority voters. The Department put into effect if the jurisdiction showed the of Justice needs to lead the defense against change had no discriminatory purpose or that pressure. effect. Thus, the burden was shifted from the voter to the jurisdiction in two ways: procedurally, because the preclearance II.Section 5 requirement was automatic so the jurisdiction had to make the necessary showing without anyone having to file a suit, and The Department of Justice should vigor- substantively, because the jurisdiction had ously enforce section 5 of the Voting Rights the burden of proving non-discrimination Act. The federal government's most prominent rather than the voter having to prove the executive function relating to voting is its opposite.8 enforcement of section 5 of the Voting Rights Section 5 has been an extraordinarily Act, which requires preclearance of voting successful prophylactic. It has been applied changes in various states, mostly southern. in numerous types of voting changes, The Voting Rights Act, first passed in 1965 including such changes as new election and extended several times since then, has methods, shifting polling places and many been called the most successful civil rights others but most notably redistricting. In recent years the number of submissions has law ever passed. It has had at least three mushroomed, especially after each decennial lives. Its first and most electrifying success plansare was in section 4, which almost overnight census whenredistricting ended generations of outright disfran- submitted by states, counties, cities, school chisement of black voters throughout the boards, hospital and water districts, etc. Much ofthebusinesshasinvolved South.5,6 redistricting. It took only a few years for black In the first several years, most section 5 registration to swell. Once black voters submissions related to restrictions on the could no longer be kept away from the polls, right to register and vote. That changed however, new tactics arose, commonly after a 1969 Supreme Court decision that grouped under the heading of vote dilution. brought within the ambit of section 5 any

Citizens'Commission onCivilRights i38 Chapter 10 Part Two: Political Participation

change that could affect a person's vote in a good job; I guess we won't be needing you the slightest, and that recognized that a voter any more." could be injured by vote dilution as well as It is too early to tell now whether section by outright denia1.9 Therafter the number 5 should be extended again or not when 2007 of submissions mushroomed, and vote arrives. Two things need to be done, though. dilution as a concern came to the forefront. First, of course, the Department of Justice It is no exaggeration to say that the admin- needs to be keeping a careful record as it istrative process of section 5 and the administers the statute. Second, no matter presence of an agency developing expertise what happens in 2007, vote dilution will not helped rapidly develop a jurisprudence of have ended, nor will the difficulty of using vote dilution. the court system to combat vote dilution. Section 5 has not only blocked outright Therefore, if there are valid arguments in efforts to discriminate; it has helped ensure 2007 against simply extending section 5, that jurisdictions making voting changes pay there needs to be something in place as a close attention to ensure fairness. It plays a substitute weapon again vote dilution. Those fundamental role in preventing vote di- who expect to advocate an end to section 5 lution, and the Department of Justice must in 2007 will be called on to tell us what will continue to enforce it vigorously in line with replace it, and it is not too early to begin its important purposes. developing a permanent and universal system today. The Department of Justice should do so. III.Expiration of Section 5

The Department of Justice should prepare IV. Section 2 for 2007. Section 5 of the Voting Rights Act, The Justice Department should litigate originally passed for 5 years, has been vigorously under section 2. extended in 1970, 1975, and 1982, the most Section 2 of the Voting Rights Act came recent time for a period of 25 years through about because of an aberrant decision by the the year 2007. What will happen in 2007? Supreme Court in the City of Mobile case." Each time section 5 has come up for In that case, the Court turned its back on its expiration or renewal, there have been those own jurisprudence and held that vote who said it was no longer needed and should dilution could not be proved except by be ended. Although the burden of compli- specific proof of discriminatory intent." ance by covered jurisdictions is not great, Editorial writers around the country were the concept of singling out some states for a properly brutal in ridiculing the Court's special procedure has created strong pres- opinion. One editorial, referring to the fact sures against its continuation. In 1982, these that the Mobile plan was more than a century pressures were overcome by presentation of old, said, "It would be a good trick to an extensive record in hearings before U.S. subpoena the legislators from their graves." House and Senate Committees of continued Congress likewise was moved to action. abuses necessitating extension. A devas- Because the Supreme Court's straitjacketed tating cartoon in a Birmingham newspaper interpretationofthe14th and15th showed a herd of sheep in the foreground Amendments could not be changed by with a pack of wolves just beyond, while the Congress, that body instead executed its shepherd tells the guard dog, "You've done constitutional authority to enforce voting 139

Citizens' Commission onCivilRights Part Two: Political Participation Chapter 10

rights by amending section 2 of the Voting A possible list of other federal statutes Rights Act. That section, which had would include two sections of the 1964 Civil originally followed the language of the 15th Rights Act, one section of the Voting Rights Amendment, was now amended to include Act of 1965, and one section of the National an explicit "results" test, which remains in Voter Registration Act: the statute today." As discussed above, the Justice Depart- Section 101 of the Civil Rights Act of 1964, ment has filed suit under section 2 in a 42 U.S.C. § 1971(a)(2)(A), enacts what was number of redistricting cases, and it is known as the "freezing principle," by recommended that this activity should providing that no state or local official increase. However, it is not only districting may apply differential standards or cases that call for section 2 treatment. procedures in determining voter qualifi- Indeed, the Supreme Court's decision in cations. Bush v. Gore creates a new mandate for applying section 2. That mandate will be Another subsection of section 101, 42 discussed below in connection with the U.S.C. § 1971(a)(2)(B), enacts a "mater- discussion of that case. iality" rule in providing that no one may be prevented from voting because of an error or omission that is not material in V. Other Voting Rights determining the voter's qualifications. Authority Section 10(a) of the Voting Rights Act, 42 U.S.C. § 1973i(a), makes it illegal to The Department of Justice should initiate fail or refuse to permit any qualified litigation under other voting rights statutes. person to vote. In 1939, then-Attorney General Frank Murphy asked attorneys in the Department Various portions of section 8 of the Na- of Justice to examine whether there was any tional Voter Registration Act, 42 U.S.C. civil rights enforcement authority in exist- § 1973gg-6, regulate the grounds and ing federal law. This led to the revival of methods of removing voters' names from several long-dormant Reconstruction-era the registration list. statutes, which were used to bring criminal civil rights prosecutions like the Screws case While these sections may not reach as far and later the Neshoba County, Mississippi, as section 2 of the Voting Rights Act in ad- murders. dressing subtle discrimination that is uni- Today it is appropriate again to look at form on its face, they are powerful weapons the U.S. Code for statutory authority that because the proof requirements are straight- the Department of Justice may use to seek forward. In effect they provide strict liability. voting rights and voter equality. Moreover, each of them applies to all elec- Of course there is section 2 of the Voting tions federal, state, and local except Rights Act, which bars voting practices that for the NVRA, which applies only to federal discriminate on account of race in purpose elections. The Department of Justice has or result. This section has been used in many specific statutory authority to bring suits situations to attack practices that are "fair under each of these sections.14 Finally, their in form but discriminatory in operation" potential scope is quite broad because of the like the fabled offer of milk to the stork and definition of vote or voting: the fox."

140 Citizens'Commission onCivilRights .

The term 'vote' or 'voting' shall include all They often harm poor and minority vot- action necessary to make a vote effective ers disproportionately. in any primary, special, or general election,including,butnotlimitedto, They violate the Constitution, according registration,listing pursuantto[the to the U.S. Supreme Court. Voting rights Act], or other act required by law prerequisite to voting, casting a Attention has focused on the most obvious ballot, and having such ballot counted category of problem, the different methods properly and included in the appropriate of casting and counting ballots. "Punch- totalsof votescastwithrespectto cards" of various kinds appear to be the candidates for public or party office and biggest culprits, and their elimination is the propositions for which votes are received most evident and widespread change taking in an election.15 place (as recommended by the Federal Election Commission more than a decade Overall, Congress has given the Depart- ago). But that should not be the end of ment of Justice broad authority to ensure change. that the right to vote is real and fair.'6 A host of other problems occurred or are said to have occurred in Florida. Other kinds of voting machines had operating or count- VI. Bush v. Gore ing problems. Registration lists at polling places were inaccurate. Lists of voters The Department of Justice, the Federal disqualified for felony conviction were Election Commission, the U.S. Commission inaccurate, causing some voters to be on Civil Rights, and other arms of the federal illegally rejected while others were allowed government should move forward to apply the to vote despite convictions. Polling place lessons learned in the 2000 Presidential elec- officials could not reach central offices to tion. solve disputes about eligibility. Just adding to the chorus of opinions about Well, guess what? These problems happen the 2000 elections is not the purpose here. all the time in American elections, in every Rather the purpose is to see how the state. They hurt all voters, and all voters administration can help us make improve- have a stake in devoting the resources to ments. provide the necessary technology and The 2000 Presidential election, especially training for officials in order to minimize the the events in Florida, taught us that we have error rate. a Model T election system, and also taught The problems are aggravated because they us some subsidiary lessons, including: are not necessarily evenly distributed. Wealth, political partisanship, and race play The problems we saw in Florida are parts in how the problems are distributed. widespread throughout the nation. Wealthier counties can better afford to spend money on modern voting machines. They harm everyone; for example, an es- In Florida, the State created a computer timated 2 million Presidential votes program that could be accessed by laptop went uncounted because of undervotes computers to resolve eligibility disputes on or overvotes. the spot, but only the wealthier counties bought them, while poorer counties were left with the futile (but traditional) method of trying to use the one available telephone to

141 Citizens' Commission onCivilRights Part Two: Political Participation Chapter I 0

call the always busy central registration court "with the power to assure uni- office. In one county registration officials formity" that did not provide equal treat- saw errors on absentee ballot request forms, ment.17 and alerted Republicans (but not Democrats) If the Supreme Court retreats from the who then came in and corrected them. At strong equal protection position it took in least 8000 voters, mostly black, were Bush v. Gore, that will put the decision into erroneously disqualified by a process the class as a former Justice described an designed to purge convicted felons (appar- earlier case of "a restricted railroad ently carried out at the polling places on ticket, good for this day and train only. //18 Election Day rather than well beforehand The federal government can help ensure as typically required of all purges with that does not happen. the voter receiving ample notice and The Department of Justice can and should opportunity to challenge errors). participate in litigation to bring about A number of states have begun to study statewide uniformity in each state. The their election processes and make legislative pattern is not new. Even after the U.S. changes. A common problem so far seems to Supreme Court rejected a federal right to be an unwillingness to spend the necessary statewide equal education opportunity, ma- money. For example, Georgia has passed a ny states have acted to secure such a right, reform bill with no funding. South either by state legislative action or by state Carolina appointed a commission that court decisions. The Department of Justice recommended numerous changes but the has the statutory authority, as explained General Assembly skippedthe most above, to press such a litigation program. important and expensive ones. In addition, other agencies, such as the Private lawsuits have been brought in Federal Election Commission19 and the U.S. several states, generally seeking reform that Commission on Civil Rights, have important is both across-the-board and seeks to information-gatheringand-exchange eliminate inequalities of every kind. functions. They can help the states achieve The Supreme Court in the Bush v. Gore equality among their voters. decision appeared to set new standards for electoral equality. "Having once granted the right to vote on equal terms, the State may VII. CongressionalAction to not by laterarbitrary and disparate treatment, value one person's vote over that Improve Registration and of another." Voting There have been no Supreme Court or lower court decisions since to explain how The administration should seek legislation far this rule goes. Specifically, the question to require minimum standards, accompanied iswhetherthismandatesanequal by federal funding if necessary. opportunity statewide to cast effective The Constitution gives Congress virtually ballots. The Court's opinion contains some plenary power over federal elections. language giving room for local differences Through exercise of this power Congress in but not on the basis of wealth. "The question a practical sense controls all elections, before the Court is not whether local entities because the power over federal elections in the exercise of their expertise may develop includes regulation of all elections con- different systems for implementing elec- ducted at the same time and place as the tions." Instead, the Court said, it was the federal elections i.e., state offices on the actions of a state agency in this case a

142 Citizens'Commission onCivilRights Chapter I 0 Part Two: Political Participation

same ballot as congressional elections in overrode that tradition. If that decision is November of even-numbered years. States to bring reform rather than simply deciding may theoretically have two election systems, one political election, it is time to follow up but the cost is high and would undoubtedly with federal legislation to set minimum spur voter revolt. standards. Whereas the Civil Rights Acts and the Voting Rights Act were based largely on Congress' power to enforce the 14th and 15th VIII. Conclusion Amendments, other statutes, mainly the NVRA, have been based on Congress' power There has never been a better time to over federal elections. Congress could act improve our Model T system that needs so likewise to ensure minimum standards and much improvement. We trail all the world's statewide equality in election procedures. democracies (and many of the dictatorships) If needed, Congress could also authorize in voting participation. People who are poor appropriations to help the states carry out and minority bear the special brunt of the the new federal equal standards. (Unlike problems, but everyone pays a heavy price. exercise of the spending power, the states The administration can lead the way to would not have the choice of ignoring the bringing real democracy and atruly substantive provisions of the law by rejecting republican form of government to the United the money.) This does not necessarily mean the same standards in each state, but the States. same standards within each state. State and local control over elections is an American tradition. The Supreme Court

14 3

140 Citizens' Commission onCivilRights .

Endnotes

' These cases are commonly known as Shaw cases, after the case that first began the doctrine, Shaw v. Reno, 509 U.S.C. § 630 (1993). The author believes this is a fallacious and ephemeral jurisprudence, reflecting little more than Justices' and judges' attitudes of white supremacy, ranging from slick to crude. This chapter, though, deals with the world as it is. 2 The first decision in Shaw v. Reno created a cause of action for voters to challenge the use of race as a factor in redistricting, without requiring a showing of injury or intent to injure. Later cases have developed the (often-shifting) standards for liability in such cases; the current rule is essentially that race may be a factor as long as it does not overcome "traditional" redistricting principles such as incumbent protection. The main examples of cases reviewing plans drawn after and in light of Shaw is the set of North Carolina cases following Shaw v. Reno itself. There have been three, in which the Supreme Court has reversed the lower court three straight times. Shaw v. Hunt, 517 U.S.C. § 899 (1996), Hunt v. Cromartie, 526 U.S.C. § 541 (1999), Hunt v. Cromartie, 532 U.S.C. § 234 (2000). 3 Hunt v. Cromartie, 532 U.S.C. § 234 (2000). 4 On Jan. 17, 1963, Attorney General Kennedy argued as amicus in Gray v. Sanders, 372 U.S.C. § 368 (1963). On four days in Nov. 1963 Solicitor General Cox argued the four cases that included Reynolds v. Sims, 377 U.S.C. § 533 (1964). The main engine of enfranchisement was the suspension of literacy tests across the South, enforced by taking registration out of the hands of local registrars where they would not comply. The 1965 Act also hastened the end of the poll tax in the last few states where it still existed. After suspension of literacy tests in the South did not bring the world to an end, the experiment was made permanent and universal when the 1970 extension of the Act ended literacy tests everywhere. 6 The Voting Rights Act was the fourth modern attempt to end disfranchisement of black voters. The Civil Rights Acts of 1957, 1960, and 1964 targeted specific disfranchising schemes but produced little change. The sweeping approach of the Voting Rights Act of 1965 was born out of frustration at the failure of these earlier efforts. 7 The coverage formula or "trigger" swept in states or parts of states that used literacy tests and that had low voter turnout rates in 1964, which formed the basis for a presumption that the literacy tests were discriminating. (All literacy tests nationwide were suspended by Congress in 1970 and banned permanently in 1975). 8 In fact there have had to be a few suits to enforce section 5, but the only requirement in such suits is proof that a voting change has occurred. When that is proved, usually a simple matter, the suit is ended and the change is unenforceable without preclearance.

144

Citizens' Commission onCivilRights - 1 .

9 Allen v. State Board of Elections, 393 U.S.C. § 544 (1969). 10 Mobile v. Bolden, 446 U.S.C. § 55 (1980). " The leading case ignored by the Supreme Court was White v. Regester, 412 U.S.C. § 755 (1973). The Mobile opinion listed White as a prior consistent case that had held proof of discriminatory purpose was essential to find at-large elections violate the 14th Amendment. Plainly, White did no such thing. 12 Ironically, as the 1982 extension of the Voting Rights Act, including section 2,was roaring down the track to enactment by lopsided votes in both houses of Congress, the Supreme Court moved to take some of the sting out of the Mobile decision by deciding Rogers v. Lodge, 458 U.S.C. § 613 (1982). In that case, a majority of the Court struck down at-large elections in Burke County, Georgia, on evidence that was almost a carbon copy of that whichwas found insufficient in Mobile, Alabama. If the New Deal Supreme Court could read the election returns, this Court could read the editorials. 13The Aesopian reference and the quotation come from Chief Justice Burger's opinion in Griggs v. Duke Power Co., 401 U.S.C. § 424 (1971), which invalidated discriminatory tests and employment requirements under Title VII of the Civil Rights Act of 1964. 14 E.g., 42 U.S.C. § 1971(c), 42 U.S.C. § 1973j(d). 1542 U.S.C. § 19731(c)(1). The definitions in the other statutes have small wording differences. 16It is unclear whether the Department of Justice has authority to bring suits to enforce 14th or 15th Amendment rights apart from the specific grants of authority to enforce particular statutes. While these specific grants of authority would probably cover most suits the Department might bring, there may well be suits that would not fit, for example, a dueprocess violation in a procedure that might not fit within the broad definition of voting. If the occasion arises, the Department should not hesitate to bring suit directly under the 14thor 15th amendment and have that general authority tested. 17The issue is reminiscent of the "statewide school funding" cases of the 1970s, which culminated in San Antonio Independent School District v. Rodriguez, 411 U.S.C. § 1 (1973). In that case a majority of the Supreme Court rejected claims that the equal protection clause required states to provide or fund equal education opportunities. Education, like voting, has been typically administered and funded locally, which means large differences between the opportunities found in rich versus poor areas. The Supreme Court in Rodriguez foundno right to equal education opportunity, but said voting is different because the equal right to vote (although not the right to vote itself) is fundamental. Bush v.Gore should also teachus that, because all state voters compete with each other in statewide elections, the statewhich has the power to assure uniformity cannot allow voters in one area of the state to buy better votes. 18Smith v. Allright, 321 U.S.C. § 649, 669 (1944) (Roberts, J., dissenting). 19Under 2 U.S.C. § 438(a)(10), the Federal Election Commission is specifically directed to "serve as a national clearinghouse for the compilation and review of procedures with respect to the administration of federal elections..."

1 4 5 Citizens' Commission onCivilRights Part Two: Affirmative Action and Employment Chapter II

Chapter II Affirmative Action in Public Contracting: The Final Years of the Clinton Administration by Georgina Verdugo

I. Adarand and Its Aftermath segment of the contract. Adarand Construc- tors, Inc., a specialist in guardrail work, submitted the lowest bid. However, Gon- In 1995, the U.S. Supreme Court handed zales Construction Company, a certified down Adarand v. Pena,' the landmark deci- small business owned and controlled by sion in which the Court chose to apply the socially and economically disadvantaged most stringent level of judicial review the individuals, also submitted a bid. Under the strict scrutiny standard to federal high- DOT's Subcontractor Compensation Clause way construction programs. This decision (SCC), Mountain Gravel would receive a generated the most comprehensive review bonus if it hired subcontractors certified as of federal affirmative action programs in small businesses controlled by socially and history and led to the Clinton Adminis- economically disadvantaged individuals. tration's "Mend it, don't end it" policy. Adarand, a Colorado-based company Once again, the Court will consider owned by a Caucasian male, challenged the Adarand in light of this strict scrutiny constitutionality of the SCC, alleging a standard and could possibly impose the violation of the Due Process Clause of the severest constraints on federal contracting Fifth Amendment. Adarand sought declar- programs in U.S. history. The impact of this atory and injunctive relief against any future decision could reach all federal affirmative use of the subcontractor clauses that he action programs deemed "racial classifi- challenged. In Adarand Constructorsv. cations" and could render them fatal in fact, Skinner2 the District Court upheld the thereby ending them. Thus, Adarand v. statutory provisions defining Disadvantaged Mineta is the latest of a line of cases Business Enterprise (DBE) and its goals involving affirmative action in government program asconstitutional,usingthe procurement that could have far-reaching "intermediate level" of judicial review and implications for programs designed to relying upon Fullilove v. Klutznick3 and promote equal opportunity in employment, Metro Broadcasting Inc. v. FCC.4 The U.S. education, and other sectors as well. Court of Appeals for the 10th Circuit In 1989, the Central Federal Lands affirmed, using the intermediate scrutiny Highway Division of the U.S. Department level of review and citing Metro Broadcasting of Transportation (DOT) awarded the prime and Adarand Constructors v. Skinner.5 contract for a Colorado highway construction The U.S. Supreme Court reversed the 10th project to Mountain Gravel & Construction Circuit's decision, holding that "all racial Company. Mountain Gravel solicited bids classifications imposed by whatever federal, from subcontractors for the guardrail 146

Citizens'Commission onCivilRights Chapter II Part Two: Affirmative Action and Employment

state or local governmental actor, must be appealed the decision of the district court, analyzed by a reviewing court under strict arguing that the court incorrectly found that scrutiny."' The Court remanded the case to the SCC program was not sufficiently the lower court for a determination as to narrowly tailored to a compelling govern- whether the SCC was narrowly tailored to mental interest and therefore could not serve a compelling governmental interest. survive strict scrutiny. While the appeal of The Court (O'Connor, J.) articulated three this decision was pending, the plaintiff filed considerations to be used to analyze the suit against state officials, making the same constitutional sufficiency of the racial arguments that the State of Colorado's use classification at issue: skepticism, consis- of the federal guidelines in certifying tency, and congruence. "Skepticism" re- disadvantaged business enterprises violated quires any racial characteristic to be inher- the Constitution.9 ently suspect. "Consistency" mandates a The Colorado Department of Regulatory standard of review to be applied regardless Agencies changed its certification program of the race of the persons benefited or in response to the earlier district court burdened. "Congruence" requires that the decision and replaced it with a requirement equal protection analysis under the 14th that all applicants certify that each of their Amendment and the 5th Amendment's Due majority owners has experienced social Process Clause be the same. disadvantage based on the effects of racial, In his dissent, Justice Stevens argued that ethnic, or gender discrimination. Using the controlling precedent required the appli- revised standard, the agency certified cation of the intermediate scrutiny standard, Adarand as a DBE. Citing these events, the citing Metro Broadcasting and Fullilove. He U.S. Court of Appeals held that the case was also criticized the Court's failure to acknow- moot and vacated the district court's earlier ledge adifference between invidious decision.'° Adarand filed a petition for discrimination and the benign use of race to certiorari seeking Supreme Court review. promote equality. He wrote: The U.S. Supreme Court held that the case was not moot and remanded it back to the There is no moral or constitutional equi- lower court to apply its strict scrutiny valence between a policy that is designed standard to the merits of the case." to perpetuate a caste system and one that On September 25, 2000, the court of seeks to eradicate racial subordination. appeals (Lucero, J.) upheld the DOT's Invidious discrimination is an engine of program asrevised,citing numerous oppression,subjugatingadisfavored congressional investigations and hearings as group to enhance or maintain the power well as statistical and anecdotal evidence of the majority. Remedial based pref- that showed thatdiscrimination had erences reflect the opposite impulse: a prevented the formation of qualified minor- desire to foster equality in society. No ity business enterprises in the national sensible conception of the government's subcontracting market. In so ruling, the constitutionalobligationto"govern court found that the federal government had impartially" . . . should ignorethis a "compelling interest in not perpetuating distinction.7 the effects of racial discrimination in distributing federal funds or in remediating The U.S. District Court for the District of the effects of past discrimination in the Colorado, applying strict scrutiny, granted government contracting markets created by plaintiffs' motion for summary judgment.' its disbursements.12 The court also found The U.S. Department of Transportation that while the SCC program in existence in

147 Citizens'Commission onCivilRights Part Two: Affirmative Action and Employment Chapter II

1996 was not narrowly tailored, the program mented when Congress enacted the Trans- as revised had removed the defects of the portation Equity Act for the 21st Century previous program and was narrowly tailored (TEA-21) in 1998. As the 10th Circuit court by requiring an individualized determin- of appeals indicated, the congressional ation of economic advantage and eliminating record supporting this legislation showed the race-based presumption of economic that"informal,raciallyexclusionary disadvantage. The court considered other business networks dominate the subcon- criteria as well, including the possible use tracting industry, shutting out competition ofrace-neutral meansoffacilitating from minority firms."13 For example, a participation, the limited duration of the Colorado Department of Transportation race-conscious measures, program flexi- disparity study found that a dispropor- bility, the aspirational (vs. mandatory) tionately small number of women and nature of the goal, the burden on third minority-owned contractors participated in parties, and whether the program was over- that state's highway construction industry; or underinclusive. and more than 99% of contracts went to firms On March 26, 2001, the US Supreme Court owned by white males.14 granted certiorari, thereby agreeing to While minorities make up to 20% of the review the Circuit Court's decision. Oral national population and own 9% of construc- argument will take place during the Court's tion firms, they receive only 4% of construc- 2001-2002 term beginning October 2001. The tion receipts.15 Non-minority construction questions to be answered are: "1. Whether companies receive 50 times as many loan the court of appeals misapplied the strict dollars as African American-owned firms scrutinystandardindeterminingif that have identical equity. Minority-owned Congress had a compelling interest to enact firms receive only 61 cents for every dollar legislation designed to remedy the effects of work that white male-owned firms of racial discrimination and 2. Whether the receive; women-owned firms receive 48 United States Department of Transpor- cents. While Jim Crow laws have disap- tation's current Disadvantaged Business peared, transportation construction Enterprise program is narrowly tailored to continues to rely on the "Old Boy Network," serve a compelling governmental interest." which, until the past decade, was almost The Supreme Court will decide whether exclusively white. This network perpetuates the DOT's DBE program, which was revised itself because itis based on business since the 1995 decision, is constitutional friendships and relationships established when the strict scrutiny standard is applied. decades ago, before minority-owned firms This case has far-reaching implications. The were allowed to compete." Court could rule on narrow grounds and A Denver-based study showed that African send the case back to the 10th Circuit court Americans were 3 times, and Hispanics 1.5 of appeals to reconsider its decision, or it times, more likely than whites to be rejected could further narrow the boundaries of for business loans. Minority businesses are acceptable federal affirmative action pro- viewed as bad risks and less desirable. Thus, grams involving "racial classifications" even thelegitimatecapital needs of such when intended to remedy centuries of businesses are ignored.' The average loan discrimination. to a black-owned construction firm is DBE programs are necessary to open the $49,000 less than the average loan to an doors historically closed to minorities and equally matched non-minority firm, and in women. The barriers to opportunity in the Denver minority construction firms are construction industry were well docu- three times aslikelyto be rejected. 148

Citizens' Commission onCivilRights Chapter II Part Two: Affirmative Action and Employment

Discrimination by private contractors, While companies owned by blacks received unions, and lenders has impeded the for- slightly more work (up from zero in 1998 to mation of qualified minority businesses in 0.5%) Hispanic-, women-, and Native subcontracting. Prime contractors also have American-owned firms experienceda been found to refuse to employ minority significant decline in participation. As a subcontractors due to the unwritten rule of result, the Colorado Department of Trans- the "Old Boys" network. Prime contractors portation announced that it is embarking on that resist working with minority sub- an "aggressive effort to bring those numbers contractors have also gone so far as to refuse back up. // 22 to accept low minority bids or to share low Contracting is a closed network, with bids offered by minority firms with non- primecontractorsmaintaininglong- minorities in order to help them undercut standing relationships with subcontractors; the bid. This is called "bid shopping." so minority-owned firms are rarely used as A 1997 Urban Institute study found subcontractors on projects that lack affir- substantial disparity in government contrac- mative action requirements. For the above ting.15 It found that minority-owned bus- reasons, the compelling state interest a inesses receive approximately 57% of the required element of the strict scrutiny stan- amounts they would be expected to receive dard of review in enacting and imple- based on the number of available, i.e., "ready, menting a DBE program on the federal level willing and able," minority-owned firms. is beyond dispute. These data apply for African American, The DBE program is intended to "level the Latino, Asian American and Native Amer- playing field" for qualified female- and ican groups and for women, who receive only minority-owned firms, not taking away 29% of the dollars they would be expected contracts from low bidders. Therefore, while to receive based on their availability.19 some have argued that the DBE program Disparities are greater in localities where "results in white male contractors not no affirmative action programs are in place. receiving the contracts they would otherwise When DBE programs are eliminated, expect to receive," without those programs, there is usually a sharp drop in minority and minorities and women would lose the female business participation. For example, opportunity to compete.23 According to when the State of Michigan terminated its congressional testimony, some non-minority DBE program, minority participation fell to contractors have accepted higher bids from zero, while the federal program was able to other firms in order to avoid working with maintain12.7%participation."Other DBEs. Others testified that some general examples cited by the U.S. Department of contractors "would rather lose money" than Transportation include Louisiana; Hillsbor- deal with female contractors.' ough County, Florida; Arizona; Arkansas; The Department of Transportation's Rhode Island; and Delaware; where DBE regulations do not require prime contractors participation on construction projects plum- to accept higher bids from minority and meted once the programs were eliminated. femalesubcontractors.Moreover,the Other jurisdictions included Nebraska, selection of subcontractors is not usually Missouri, Tampa and Philadelphia.21 In subject to low-bid requirements on the state Colorado, after the federal district court and local levels. Other factors, including the held in Adarand that the DBE program was experience of the prime contractor, the unconstitutional, significantly less highway quality of the subcontractor's work, and the construction work reportedly went to reputation of the subcontractor are also companies owned by minorities and women. considered.25 The DBE regulations merely

149 Citizens' Commission onCivilRights II -

require good faith efforts to achieve the DBE law. Non-minority males who can demon- goals. Prime contractors do not have to strate that they are socially or economically ignore price or quality in the selection of disadvantaged may participate in the DBE minority or female subcontractors. program. Moreover, according to the DOT, DOT's 10% goal in the DBE program is an businesses owned by white males have "aspirational goal," not a quota or a "set- qualified for DBE status.28 The presump- aside." The program specifically prohibits tions of social and economic disadvantage the use of quotas. The DBE goal is a national are rebuttable, and if a state/recipient or goal; it is not imposed on any state or locality. third party demonstrates that there is a It is used to evaluate overall performance reasonable basisto conclude that an of the DBE program nationwide. If there is individual is not disadvantaged, the pre- a precipitous drop in participation by DBEs, sumption may be removed. the department will evaluate its efforts to The DOT's program is also narrowly ensure nondiscrimination in DOT-assisted tailored. As the 10th Circuit Court observed, contracting opportunities. State agencies thecurrentregulationsrequirethat are allowed to waive goals when they cannot recipients (states) must "meet the maximum achieve the goal on a particular contract for feasible portion" of their overall goal by a specific year.26 The flexible goals contained using "race-neutral means of facilitating in the DBE program are tiedto the DBE participation." The DBE regulations availability and capacity of firms in the local lista number of race-neutral means market. Lastly, the standard for compliance available, including assistance with bonding is good faith effort. As the 10th Circuit Court and financing barriers, establishing a stated, race-neutral means to eliminate program to assist new start-up firms, discrimination in this industry were used assisting DBEs to develop their capacity to by Congress for years, and only after use emerging technology, and technical Congress continued to find discriminatory assistance.29 Recipients are not required to effects did it implement a race-conscious have contract goals on each contract, but to remedy. Hence, the goal included in the use goals only for any portion of the overall department's DBE program has ample goal that they cannot meet through race- justification, as a matter of both consti- conscious means. tutional law and sound public policy. The program has built-in flexibility; While the program permits a presumption recipients set their own goals based on local of economic disadvantage, the DOT added a conditions. Recipients also develop their net worth cap of $750,000. Thus, regardless own methods for setting goals and any of one's race, gender, or the size of one's contract may be waived entirely if the prime business, a person whose personal net worth contractor shows that it made good faith exceeds $750,000 is not deemed economically efforts but could not meet the goal. The disadvantaged and is ineligible to partici- TEA-21 legislation also provided for an end pate in the program. Applicants will have date of 2004, unless reauthorized by Cong- to submit a personal net worth statement ress. and supporting documentation with their The DBE program affectsasmall applications.27 percentage of total federal contracting The presumption of disadvantage con- dollars awarded by the Department of tained in this revised program is based on Transportation. In fiscal year 2000, only 7% well-documented history of racial and of the prime contracts and only 2% of the gender exclusion in the contracting industry federal dollars awarded went to DBEs.3° and is therefore sustainable as a matter of

150 Citizens'Commission onCivilRights Chapter II Part Two: Affirmative Action and Employment

As it was intended to remedy the effects orities account for 70% of the growth in the of past discrimination, and as it is construc- U.S. workforce and minority firms, as with ted, the program does not unduly impinge other entrepreneurs, are an important upon the rights of third parties. The revised source of job, income, and wealth creation. regulations also require that DBEs not be The report warns that without minority so overconcentrated that they unduly bur- labor force participation, "labor shortages den the opportunity of non-DBEs to will become acute, further limiting produc- participate.31 tivity and growth." Access to capital for minority-owned firms is therefore vital for the healthy development of this growing II. sector of American businesses.35 The Importance of The role of minority entrepreneurs is also Minority Business: becomingincreasinglyimportantas The Milken Report demographic indicators suggest the growth of a disproportionately majority retired population, which will be dependent upon a The importance of minority and women workforce that is becoming increasingly business to the United States economy was diverse. As a result, minorities and women documented in a report issued by the Milken are becoming a critical segment of the Institute and the U.S. Department of economy and institutional investors must Commerce's Minority Business Develop- invest in firms owned by these groups in ment Agency (MBDA) in September 2000. order to meet the high yield returns Thisreport,"The Minority Business necessary to support the aging "Baby Challenge:Democratizing Capitalfor Boomer" population.36 The report also sug- Emerging Domestic Markets," found that the gests that investing in minority communities economic growth of the nation cannot be will also foster "bridgeheads" into the global sustained without the inclusion of minority markets.37 The report recommended that business. It also found that "Absent broad- there be "greater enforcement of minority based institutional investor participation in procurement programs" as well as more minority and immigrant business commun- innovative financial instruments to expand ities soon to be the new majority of the pool of domestic and international capital businesses continued growth in the investment in minority business, training American economy is impossible, affecting and mentoring programs to create more not just minority businesses but putting the minority venture capitalists and tax and nation's macro economy at risk."32 Minority other incentives for investment in minority firms are surpassing the growth of majority- businesses.38 owned firms and are growing at a rate of 17% a year, six times the rate for all firms. Minority firms' sales are also growing at a faster rate than majority firms: 34% per year III.Conclusion or more than twice the rate of all firms.33 However, minority firms receive only 2% of The Clinton Administration and the all private equity investments and 3% of all Department of Transportation, led by SmallBusinessInvestment Company Secretary Rodney Slater, are to be com- investment funds.34 mended for their valiant efforts to preserve This underinvestment in minority bus- affirmative action in federal contracting iness also limits employment growth. Min- since the Supreme Court's decision in

151 Citizens'Commission onCivilRights -

Adarand v. Pena. Since the days when IV.Recommendations former Representative Parren J. Mitchell (D-Md.) attached an amendment to Pres- ident Carter's $4 billion Public Works Bill The Bush Administration must continue the to set aside 10% of state, county, and bipartisan legacy of protecting and advanc- municipal funds to hire minority companies ing opportunities for minority and women- as contractors and subcontractors, Congress owned firms to contract with the federal and both Democratic and Republican government. administrations have tried to open the doors of opportunity to those historically excluded Standing alone, legislation that simply from federal contracting programs. The proscribes racial discriminationisan effort to integrate the construction industry, inadequate remedy, said the Clinton Justice the last bastion of the proverbial "Old Boys" Department." Then-Senator Bob Dole once network that has profited handsomely from said that "one of the most important steps billions of dollars in federal aid projects, has this country can take to ensure equal met with relentless opposition since the opportunity for its Hispanic, black and other 1970s. Organizations including Associated minority citizens is to involve them into the GeneralContractorsofAmericaare mainstream of our free enterprise system."4° constantly challenging the legal standing of Inordertoachievethisresult,the minority and women's DBE programs. One government must continue to attack the might ask, "Why the intense opposition to deliberate, overt, and subtle barriers that leveling the playing field? What are they have excluded minorities and women from afraid of?" obtaining contracting opportunities in both Surely there is enough federal highway government and the private sector. Judge construction money to go around. Moreover, Lucero said, "Without affirmative action in the demographic data released by the its procurement, the federal government Census Bureau tells us that America is might well become a participant in a cycle quickly becoming more raciallyand of discrimination." The Bush Administration ethnically diverse. If the federal government has indicated some support for the DOT's is to be able to serve the taxpayers' need for Disadvantaged Business Enterprise pro- new highways, bridges, airports, and other gram as evidenced by its Supreme Court transportation projects, it will have to reach brief in the Adarand case.'" This is an en- out and include those men and women who couraging first step. It is hoped that as the have been systematically excluded from the administration continues its first term, it construction industry. We simply cannot will indisputably demonstrate its commit- afford to have these projects remain the ment to the law and principles of equal exclusive domain of the "Old Boys" club, opportunity and affirmative action. Other- which perpetuates itself by family and wise, this Bush Administration will simply business relationships created long before be a passive participant, and "Affirmative minority and women-owned firms were Access" will have no meaning. allowed to compete. Perhaps these "Old Boys" are afraid of the future, but the future The administration must support and enforce is here. laws that promote equal opportunity and affirmative action in employment and education as well as procurement.

152 Citizens' Commission onCivilRights -

As the Milken report stated, "America's ment of Education, the Justice Department, economic future is so inextricably linked and other federal agencies during the with minority and immigrant groups that Clinton Administration amply document the investment in these communities is essen- continuing problem of discrimination in tial." Affirmative action, first embraced by employment and education, as well as in former Vice President Nixon and by Pres- housing, health care, finance, and other ident John F. Kennedy, continues to be an aspects of life in the United States. The Bush important tool to remedy the effects of past Administration must examine the facts and discrimination, to promote equal employ- embrace policies and programs that will ment opportunity, and to prevent discrimin- ensure a truly integrated and diverse ation in the future. Cases settled by the business community, workforce, and student Equal Employment Opportunity Commis- body. America's future depends upon it. sion, the Department of Labor, the Depart-

153

150 Citizens' Commission onCivilRights Part Two: Affirmative Action and Employment Chapter II

Endnotes

515 U.S.C. § 200 (1995). 2 790 Federal Supplement (1992). 3 448 U.S.C. § 448 (1980). 4497 U.S.C. § 547. 516 Federal Reporter 3d 1537 (1994).

6515 U.S.C. § 227. 7 Id. § 243. Adarand Constructors v. Pena, 965 Federal Supplement 1556 (D. Colo. 1997).

9Adarand Constructors v. Romer, Civil No. 97-K-1351 (June 26, 1997). '° Adarand Constructors v. Slater, 169 Federal Reporter 3d 1292 (10th Circuit 1999). " Adarand Constructors v. Slater, 528 U.S.C. § 216 (2000) (per curiam).

12Adarand Constructors v. Slater, 228 Federal Reporter 3d 1147 (2000). 13228 Federal Reporter 3d . " U.S. Department of Transportation, Office of Small and Disadvantaged Business Utiliza- tion website, , at 12 ("Supplemen- tary Information"). 15Id. 16Id. at 13. 17Id.

18Urban Institute, Do Minority Businesses Get a Fair Share of Government Contracts? (1997). The Urban Institute report was discussed at length in Citizens' Commission on Civil Rights, The Continuing Struggle: Civil Rights and the Clinton Administration, at 111-113 (1997). 19Id. 20Supplementary Information at 12. 21Id. 22"Getting Diversity Back on the Road," RockyMountainNews.com, Apr. 19, 2001, at . 23 Supplementary Information at 9. 24Id. at 10. 25Id. 26Id. at 4. 27Id. at 7. 28Id. at 8. 29U.S. Department of Transportation, Office of the Secretary, Participation by Disadvan-

154 Citizens' Commission onCivilRights . 4 . a

taged Business Enterprises in Department of Transportation Programs, Final Rule, 64 Federal Register 5,095, 5,132-33 (Feb. 2, 1999). 30 General Accounting Office, Disadvantaged Business Enterprises: Critical Information Is Needed to Understand Program Impact, GA0-01-586, at 5 (June 2001). " 64 Federal Register 5,130. 32 Milken Institute and U.S. Department of Commerce, Minority Business Development Agency, The Minority Business Challenge: Democratizing Capital for Emerging Domestic Mar- kets, at iii (Sep. 25, 2000). 33 Id. 34 Id. at iv. 35 Id. 36 Id. at v. 37 Id. 38 Id. at vii. 39 U.S. Department of Justice, Federal Procurement, Proposed Reforms to Affirmative Ac- tion, Notice, 61 Federal Register 26,041, 26,053. 4° Id. at 26,052, note 20. 41 Adarand Constructors v. Mineta, Brief for the Respondents (Aug. 11, 2001).

155

Citizens' Commission onCivilRights Part Two: Affirmative Action and Employment Chapter 12

Chapter 12 Equal Employment Opportunity: EEOC and OFCCP by Nancy Kreiter

I. The Equal Employment agency, engaged in a number of landmark cases during the Clinton Administration, Opportunity Commission including the Mitsubishi and Texaco cases. In the last years of the Clinton Adminis- The Equal Employment Opportunity tration, EEOC also made great strides in the Commission (EEOC) enforces Title VIP of effort to improve its efficiency and effec- the Civil Rights Act of 1964 (as amended), tiveness. This is particularly significant which prohibits employment discrimination given the fluctuations in EEOC's operating based on race, color, religion, sex, or national budget and the continual influx of new origin. It also enforces the Equal Pay Act of discrimination charges. Compared with similar statistics during 1963,2 which bars sex-based discrimination the Reagan and Bush years, the EEOC in compensation; the Age Discrimination in reduced its backlog of private sector charges Employment Act (ADEA) of 1967, which significantly, received an unprecedented protects workers over 40; section 501 of the amount of financial settlements for victims Rehabilitation Act of 1973, which prohibits of discrimination, reduceditscharge discrimination against individuals with processing time, and issued numerous policy disabilities in the federal sector; and the guidelines interpreting the laws within its Americans with Disabilities Act (ADA) of jurisdiction. It also launched its Compre- 1990, which protects qualified individuals hensive Enforcement and National Medi- with disabilities from employment discrim- ation Programs, thereby increasing the ination in the private sector and in state and number of charge resolutions. local governments. In addition, under Exec- utive Order No. 12067, the EEOC is charged A. Policy Developments with providing leadership and coordination among the federal agencies involved in equal The EEOC, under the chairmanship of employment opportunity issues. Gilbert F. Casellas and, since 1998, Ida L. At the dawn of the 21st century, the work Castro, took a number of policy positions of the EEOC continues unabated and the that will improve EEO law enforcement in challenges of eradicating discrimination in the private and federal sectors. In recent the workplace remain despite the gains that years, the agency issued enforcement have been made since the enactment of the guidance on many significantissues, Civil Rights Act of 1964. The EEOC, as the including the application of the ADA to con- largest equal employment enforcement tingent workers placed by temporary

156 Citizens'Cornmission onCivilRights - .

agencies and other staffing firms; policy B. Enforcement Performance guidance on "reasonable accommodation," "undue hardship," disability-related inquiries, and medical examinations under the I. Charge Processing ADA; guidelines on employer liability for In the 1990s, the Commission reversed the sexual harassment by supervisors in res- "full investigation" enforcement philosophy ponse to the Supreme Court decisions on the of the Reagan era by attempting to achieve subject; new federal sector 1614 regulations a balance between individual and systemic to streamline the discrimination complaint discrimination cases. This led to the adop- process for federal employees; remedies for tion of the Priority Charge Handling system, undocumented workers;guidance on which prioritized incoming charges into compensation discrimination; policy on three categories based upon the likelihood mandatory binding arbitration of employ- that discrimination may have occurred. This ment discrimination disputes as a condition system has arguably helped to reduce the of employment; and a Commission decision pending inventory or "backlog" of charges. finding that the exclusion of prescription In thelastfullyear of the Clinton contraceptives in health insurance plans Administration (FY2000), the EEOC's pen- violated Title VII of the Civil Rights Act. ding inventory declined to 34,297, 69% lower In addition, EEOC began to implement its than EEOC's all-time high of 111,345 in National Mediation Program, which became FY1995, third quarter. The average charge fully operational in April of 1999. Mediation, processing time for resolving private sector a form of alternate dispute resolution, charges also dropped to 216 days, down from enables charging parties and employers to 265 days in 1999 and 379 days in FY1996. resolve their conflicts without lengthy These accomplishments occurred while the litigation or agency investigations. At the agency continued to receive an average of urging of the civil rights community, 78,000 charges per year. mediation is a strictly voluntary process. Monetary benefits obtained in 1999 and The EEOC's National Mediation Program 2000 for victims of discrimination also is part of its Comprehensive Enforcement reached a high of $210.5 million and $245.7 Program (CEP), initiated in 1998 to stra- million, respectively. These amounts are tegically coordinate and integrate agency double the benefits obtained in 1992 and 1993 resources, including the increased collabor- ($117.7 million and $126.8 million). In ation of legal and investigation staff in all addition, successful resolutions included agency functions from outreach to reso- charges settled through voluntary medi- lution. Through the CEP, the agency focused ation. In 1999, 4,833 and in 2000, 7,438 char- on such important issues as sex-based wage ges were successfully handled using this new discrimination and equal pay violations; process. Finally, the percentage of cases workplace harassment based on gender, found to have "reasonable cause" to believe race, and national origin; "glass ceiling" cases that discrimination occurred (8.8%) is at its involving women and minorities; language highest level in the history of the program and accent discrimination and English-only after years of stagnating between 2% and 4%. rules; and egregious discrimination cases. While these achievements are commendable, we must express concern that the "no cause" rate (the rate at which the EEOC finds that there is no cause to believe that an adverse employment decision was dis-

157

Citizens' Commission onCivilRights .1 . -

criminatory), although slightly lower in 2000 C. Recommendations for the EEOC than in 1999 (58.3% and 59.5%), is virtually unchanged since 1992, when the "no cause" I. The Bush (II) Administration Should rate was 61%. This "no cause" rate also com- pares unfavorably with the 28.5% rate in Fully Fund the EEOC 1980. Moreover, the settlement rate of 12.5%, This agency, whose workload increased although climbing in past years, remains exponentially after it received responsibility unacceptably low; nearly one-third of all for enforcing the Americans with Disabil- charges were settled in FY1980. ities Act, the Older Workers' Benefits Protection Act, and the Civil Rights Act of 2. Litigation 1991, must have the resources it needs to do its work. In recent years, the Commission InthelastyearsoftheClinton has been able to obtain important budget Administration, the EEOC filed and/or increases, including the 15% funding settled several major systemic discrim- increase of $37 million in 1999 and an 8% ination cases and must be commended for increase in 2001. However, the most recent its accomplishments. These multi-million budget request by the Bush Administration dollar settlements of class action lawsuits (for FY2002) would result effectively in a encompassed a wide variety of fields affect- budget decrease for the Commission because ing women in nontraditional jobs, workers it would not cover cost-of-living/inflation of color, older workers, vulnerable recent- adjustments. If the Bush Administration, immigrant communities, and persons with which has unveiled its New Freedom disabilities. The agency also obtained $96.9 Initiative to assist persons with disabilities, million in monetary benefits in 1999, but is sincerely interested in protecting the these dropped to $46.9 million in 2000, 42% most vulnerable populations who depend of the amount obtained in 1997. In that year, upon the government to protect their a high point for the agency, the EEOC employment rights, it will demonstrate its obtained $112.3 million in benefits resulting commitment by funding the EEOC at a level from its litigation efforts. that will enable it to be most effective. In 1999, the EEOC filed 439 lawsuits, but filed only 291 in 2000. However, class cases 2. The EEOC's New Leadership Should accounted for 36% of the lawsuits filed in 2000, an increase from 25% in 1999. Support the Reforms Initiated to While the EEOC's litigation statistics do Efficiently Prioritize Charges and to not separate direct suits from interventions, Mediate Cases the number of known interventions, including the Texaco and Coca-Cola cases, rep- During the Clinton Administration, this resents some of the agency's more notable agency made remarkable progress in manag- actions. The use of the intervention author- ing its ponderous workload. The Bush (II) ity is commendable. However, if it is used Administration should not return to the to excess, the agency could be vulnerable to policies of the 1980s, which effectively shut criticism that itis merely "ambulance down the agency by forcing equal attention chasing," or engaging in well-publicized to be given to every charge filed, discourag- litigation that the private bar and plaintiffs, ing class actions, and virtually denying re- who have received "right-to-sue" notices dress to millions of discrimination victims. from the EEOC, have initiated without the agency's assistance. 158

Citizens' Commission onCivilRights Chapter I 2 Part Two: Affirmative Action and Employment

3. The EEOC General Counsel Should employment discrimination prohibited by Continue to Maximize Its Effectiveness law. by Strategically Targeting Its Litigation Efforts While Filing More Lawsuits II. The Office of Federal While there are many meritorious cases Contract Compliance involving individuals, systemic or pattern and practice cases are simply more effica- Programs cious and address barriers to employment equity that affect larger numbers of workers. The Office of Federal Contract Compli- Once again, we must guard against returning ance Programs (OFCCP) of the U.S. Depart- to the 1980s, when class action cases were ment of Labor's Employment Stan-dards discouraged as administration policy. The Administration enforces Executive Order General Counsel should use its authority to No. 11246, which prohibits discrimi-nation intervene in private lawsuits advisedly, by federal contractors on the basis of race, however. Where such suits are proceeding gender, national origin, color, and religion, successfully, the agency's resources may be and requires contractors to take affirmative better deployed elsewhere. While the new actionto promote equal employment charge processing system will reduce the opportunity. The program also enforces backlog, EEOC should make every effort to section 503 of the Rehabilitation Act of 1973, ensure that cases that appear to be as amended, which requires nondiscrim- meritorious are fully investigated. ination and affirmative action for qualified individuals with disabilities; and the 4. The EEOC Should Continue Efforts to VietnamEraVeteransReadjustment Investigate Wage Discrimination and Assistance Act of 1974, as amended, which Equal Pay Act Violations,"the Glass requires nondiscrimination and affirmative Ceiling," Racial/Sexual Harassment, and action for special and disabled veterans of National Origin Discrimination as High- any war, campaign, or expedition in which a Priority Matters campaign badge has been authorized. The laws enforced by the OFCCP cover approx- These, among others, including age imately one-quarter of the U.S. civilian discrimination and the virtual exclusion of workforce, employed by 200,000 federal persons with disabilities from the work- contractor establishments. place, are some of the most critical civil rights issues of the 21st century. Much prog- A. Policy Developments ress was made during the Clinton Admin- istration to address these problems, but During the years 1994-2001, the OFCCP much more is needed. In addition, more pursued three major policy initiatives: outreach needs to be done to ensure that breaking the glass ceiling, narrowing the pay members of the affected communities view gap, and removing the vestiges of systemic the EEOC as an effective resource. As it was job discrimination. The bold policy moves during the Clinton Administration, the made by OFCCP to promote equal employ- federal government in general, and the ment opportunity were supported by a EEOC in particular, must continue to be "Three-Pronged Fair Enforcement Stra- accessible if they are to truly serve the role tegy," designed to fundamentally change, of protector against the many forms of through regulatory reform, the way in which

1 59 Citizens' Commission onCivilRights IP -

OFCCP conducted its business. The OFCCP program, and codified the Equal Opportun- also significantly broadened the scope and ity Survey the third prong of the Fair impact of its Glass Ceiling Initiative during Enforcement Strategy. The Equal Opportun- these years. The goal of the initiative was to ity Survey collects data regarding a con- examine and eliminate the subtle and tractor's personnel activity (hires, promo- attitudinal barriers that prevent women and tions, and terminations) and compensation minorities from obtaining opportunities in by race and gender. This is the most compre- senior executive positions in the corporate hensive equal employment opportunity data workplace. OFCCP's glassceilingor collection instrument since the Standard "corporate management reviews" (CMRs) Form 100 ("EE0-1") was instituted in the evolved from a process of self-education and 1960s. The survey received strong support technical assistance, to a more investigatory from organized labor and the civil rights process in which issues of discrimination community. and the removal of systemic barriers to promotional opportunities were empha- B. Enforcement sized. The number of CMRs conducted by OFCCP increased from one CMR in 1990 to Since 1993, OFCCP obtained more than approximately 42 in FY2000. In most $275 million for more than 53,000 women, instances, contractors' recruitment, promo- minorities, persons with disabilities, and tion and/or compensation systems were veterans. During those years, OFCCP con- improved in order to foster greater oppor- ducted an average of 4,000 compliance tunity for protected groups. Since 1993, evaluations, and since 1998, 2000 compliance OFCCP has conducted more than 281 CMRs. checks per year. As a result of "linkages" that The OFCCP's equal pay efforts grew out OFCCP established with contractors and of an attempt to develop a systemic approach placement/training organizations, an aver- to analyzing the impact of compensation age of 3,000 persons per year obtained policies and practices at the "glass ceiling" employment at approximately $75 million level. OFCCP settled several significant per year in annual salaries. The program also "equal pay" cases involving the Boeing, maintained an active inventory of approxi- Texaco, CoreStates, Computer Sciences, mately 30 large federal construction "mega- Duke Energy, and Waste Management projects" per year in order to promote corporations. The Texaco and Boeing cases opportunities for women and minorities in are also significant because they marked the the construction trades. These achievements beginning of OFCCP's evolution from an occurred in a time when affirmative action establishment-level investigation model to sustained intense scrutiny. one that embraces the entire corporation, While OFCCP maintained an excellent i.e., the "global settlement." compliance program, combining quantity In August 1997, and in November 2000, the with quality of compliance activity, the Department of Labor delivered on its number of administrative complaints filed promises and promulgated changes to the by the Department of Labor's Office of the OFCCP regulations at 41 C.F.R. sections 60- Solicitor (SOL) showed a marked decline in 1 and 60-2 respectively. This was the first these years. When OFCCP is unable to reach successful attempt to revise the affirmative a settlement with federal contractors, it may action regulations since 1978. These regula- refer the cases to SOL, which is authorized tions codified the tiered compliance review tofileadministrativecomplaintson process, reduced the size and required OFCCP's behalf before the Department's ingredientsoftheaffirmativeaction

6 0 Citizens' Commission onCivilRights - a

administrative law judges. Administrative The new administration must clarify the complaints constitute the beginning of a myths about affirmative action and educate lengthy enforcement process that can lead its constituents who would argue that the to the debarment of a contractor from OFCCP programenforcesquotasor receiving federal contracts. While SOL filed preferences. The revised regulations made a total of 34 complaints in 1991 and 30 in patently clear that quotas are illegal. OFCCP 1994, its filing record declined precipitously must also continue to publicize its settle- in subsequent years. At its lowest point, in ments in order to gain the multiplier effect FY2000, SOL filed only 13 administrative of such publicity with other contractors. complaints,nineofwhichincluded complaints filed against a single contractor. 2. The Equal Opportunity Survey Should To its credit, SOL recently appointed civil be Fully Integrated into OFCCP's rights counsel in each regiona welcome Compliance Activities addition that will promote expertise in an area of law that requires constant practice The Survey was fully tested and any and learning. burdens imposed upon the contractor During theClinton Administration, community are balanced by the reductions OFCCP/SOL obtained 11 debarments, the in the size and content of the affirmative highest number since the Carter Adminis- action program. Unequal pay is one of the tration. However, it should be noted that most significant civil rights issues of the 21st there was no debarment activity between century and the Department of Labor must 1997 and 2000. Debarments are a severe continue the effort to remove the vestiges remedy and should be pursued only when of compensation discrimination from the other options are unavailable. However, one workplace. The annual collection of survey cannot overstate the importance of enforce- data which forces contractors to analyze ment, including debarments when neces- their compensation policies and practices sary, in order to reflect the seriousness of and eliminate any disparities is intended the department's law enforcement effort and to aid in this effort and should be fully the importance of the law itself to its funded and left to achieve this essential beneficiaries and to the workforce at large. mission.

C. Recommendations for the 3. The Office of the Solicitor of Labor OFCCP Should Fully Embrace Its Responsibility to Enforce the Civil Rights Laws I.As the OFCCP Enters into a New Era of Entrusted to It Enforcement with.the Advent of the Bush Administration, It Must Continue The solicitor's office should implement an to Vigorously Defend Affirmative Action enforcement plan that provides training, and Pursue Systemic Discrimination filing of administrative complaints in each region and in the national office, reducing OFCCP should emphasize the inverse aged cases, and expeditiously returning relationship between affirmative action and unlitigable cases to the agency for alternate discrimination, and should continue to dispute resolution. Justice delayed is justice investigate discriminatory, systemwide denied. Productivity and accountability barriers to equal employment opportunity standards should be developed and enforced, from the entry level to the executive suite. and increased cooperation between the field

161 Citizens' Commission onCivilRights 5 . 5-

offices and the Associate Solicitor for Civil Rights is essential. Failing these changes, the Secretary of Labor should permit the OFCCP to hire outside counsel to assist it in enforcing the law where conciliation efforts fail. The Secretary should also consider removing the exemption that the Office of the Solicitor currently enjoys from the accountability and performance standards required by the Government Perfor- mance and Results Act.

16 2 Citizens'Commission onCivilRights ii PartTwo: Criminal Justice Chapter 13

Chapter 13 Federal Action to Confront HateViolence in the Bush Administration: A Firm Foundation on Which to Build or a Struggle to Maintain the Status Quo? by Michael Lieberman'

I. Defining the Issue: The Muslim, Middle Eastern, and South Asian descent. Perhaps acting out of anger at the Impact of HateViolence terrorists involved in the September 11 attacks, the perpetrators of these crimes are All Americans have a stake in effective re- irrationally lashing out at innocent people sponse to violent bigotry. These crimes de- because of their personal characteristics mand priority attention because of their spe- their race, religion, or ethnicity. Law en- cial impact. Bias crimes are designed to in- forcement officials are now investigating timidate the victim and members of the hundreds of incidents reported from coast victim's community, leaving them feeling iso- to coast at places of worship, neighbor- lated, vulnerable, and unprotected by the hood centers, grocery stores, gas stations, res- law. Failure to address this unique type of taurants, and homes including vandalism, crime could cause an isolated incident to intimidation, assaults, and several murders. explode into widespread community tension. In response to this disturbing series of at- The damage done by hate crimes, therefore, tacks, all of the key administration officials cannot be measured solely in terms of physi- including President George W. Bush, cal injury or dollars and cents. By making First Lady Laura Bush, Secretary of Educa- members of minority communities fearful, tion Rod Paige, Attorney General John angry, and suspicious of other groups and Ashcroft, FBI Director Robert Mueller, and of the power structure that is supposed to Assistant Attorney General for Civil Rights protect them these incidents can damage Ralph Boyd, Jr. have spoken out against the fabric of our society and fragment com- hate crimes and reached out to affected communities. munities. The Justice Department has The urgent national need for both a tough launched more than 300 federal civil rights law enforcement response as well as educa- investigations and is now on pace to bring tion and programming to confront violent a record number of federal hate crime indict- bigotry has only increased over the past few ments emanating from these incidents. On months. In the aftermath of the September September 26, at a meeting with Sikh lead- 11 terrorism, the nation has witnessed a dis- ers at the White House, President Bush turbing increase in attacks against Ameri- pledged that "our government will do every- can citizens and others who appear to be of thing we can not only to bring those people

164 Citizens' Commission onCivilRights -

to justice, but also to treat every human life A. Regional U.S.Attorney-Led Police- as dear, and to respect the values that made Community Hate Crime Working our country so different and so unique. We're all Americans, bound together by common Groups (HCWGs) ideals and common values." Yet, many of the President's core constitu- An effort to improve local community co- ents including some conservative and ordination among affected parties in re- right-wing organizations, adamantly oppose sponding to hate violence, HCWGs were es- all hate crime initiatives. It is too early to tablished at the direction of Attorney Gen- tell what new hate crime prevention and re- eral Janet Reno in many of the 90-plus U.S. sponse programs the Bush Administration attorney's offices. Designed to enhance com- will support and what level of commit- munication on hate crime investigations and ment the administration will have to exist- prosecutions, improve hate crime data col- ing federal hate crime prevention and re- lection efforts, and promote expanded law sponse initiatives, many of which were ini- enforcement training, the HCWGs have been tiated in the second term of the Clinton Ad- composed of FBI investigators, state and lo- ministration. cal law enforcement officials, prosecutors, community-based organizations, and civil rights groups.3 II.Early Response to Clinton Following the September 11 attacks, the Bush Administration established U.S. Attor- Administration Initiatives ney counterterrorism task forces. While the principal focus of these groups will clearly The second term of the Clinton Adminis- be directed at investigating and preventing tration was marked by an unprecedented terrorism, it is too early to tell whether U.S. White House commitment to improve race Attorneys will also continue to play a leader- relations and address hate crimes in an in- ship role in helping to ensure a coordinated clusive and comprehensive manner. During local response to hate violence. that time, President Clinton established a Race Initiative, hosted a national conference B. Law Enforcement Hate Crime on hate crimes, and, on many occasions, Training Programs spoke out in support of improved intergroup relations and against prejudice, bigotry, and The Clinton Justice Department devel- bias-motivated violence. Other Cabinet offi- oped several excellent hate crime training cials most notably Attorney General Janet curricula designed for different command Reno also repeatedly spoke out against hate violence and helped spark the develop- levels of Federal, state, and local law enforcement officials and conducted a number of ment of a number of important new federal initiatives.2 regional training sessions across the country, training over 5600 officers. An early indication of the level of engage- The Justice Department under John Ash- ment of the Bush Administration in effec- croft has not promoted continuing hate crime tive federal response to hate violence will training using these curricula, although a be found in the degree to which the most wide array of training materials and hate notable Clinton Administration initiatives crime response resources are available at the are carried forward. Justice Department Web site, .

i 65

Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 13

C. Improved Data on Hate Crimes D. Partners Against Hate: Confronting Youth-Initiative Bias In an effort to better gauge the magnitude Crime of the hate crime problem in America, the Bureau of Justice Statistics (BJS) in the Clinton Justice Department added questions In 1992, Congress approved several new about hate violence to its well-established hate crime and anti-bias initiatives as part National Crime VictimizationSurvey of the Juvenile Justice and Delinquency Pre- (NCVS), an annual assessment of crime in vention Act reauthorization.6 Since then, the America that complements the FBI's na- Justice Department's Office of Juvenile Jus- tional crime collection effort under the Uni- tice Delinquency Prevention (OJJDP) has form Crime Reporting System. achieved distinction for the development of Although efforts to perfect survey instru- fine educational resources and training curricula addressing hate violence. In Septem- ments were ongoing throughout thelast months of the Clinton Administration, no ber 2000, OJJDP awarded a three-year $3 NCVS report using new hate crime data has million grant to the Partners Against Hate yet been published. project created by the Anti-Defamation However, in September 2001, BJS pub- League, the Leadership Conference Educa- lished a Special Report derived from close tion Fund, and the Center for the Preven- analysis of a small subset of the hate crimes tion of Hate Violence. reported to the FBI from 1997 to 1999. This Partners Against Hate has designed and report, Hate Crimes Reported in NIBRS, begun to implement an ambitious three-year 1997-99,4 provided previously unavailable program of outreach, public education, and detail about both hate crime victims and of- training to help address the cycle of bias, fenders, including useful information about hatred, distrust, and violence by: (1) increas- youthful hate crime offenders. ing public awareness especially among In 1998, Congress amended the Higher youth and juvenile justice professionals Education Act to require the Department of about promising practices to reduce and pre- Education to collect information on a vari- vent youth-initiated hate violence; (2) pro- ety of crime categories including acts dividing effective hate crime prevention and rected at individuals because of their race, intervention strategies and training and religion, sexual orientation, national origin, technical assistance for law enforcement and disability from the nation's 6,000 agencies, educators, religious and commu- postsecondary institutions and to make the nity leaders, parents, and youth; and (3) help- information widely available. ing individuals working with youth embrace Secretary of Education Rod Paige released the potential of advanced communications the 2000 data in November 2001. These re- technologies particularly the Internet ports, available online at , include a significant increase in provide communities with the services and the number of reported hate crimes on cam- support they need. pus.5 The Partners website, , serves as a comprehensive clearinghouse of hate crime-related information, including resources developed through the grant, as well as other promising programs from across the country. In addition, the website includes access to the finest da- 166

Citizens'Commission onCivilRights Chapter 13 Part Two: Criminal Justice

tabase of hate crime laws that form the ba- F Legislation to Expand Federal sis of criminal enforcement in the states, and Hate Crime Investigative and counteraction tools. Prosecutorial Authority

E. Educating Youth About Hate Clinton Administration officials, working Crimes with Members of Congress and representatives of civil rights groups, developed legis- In the Clinton Administration, the Depart- lation which would eliminate the current ment of Justice and the Department of Edu- overly-restrictive obstacles to federal in- cation jointly produced and distributed a volvement in hate crime cases and expand manual for educators on the causes of hate authority for federal investigations and pros- crimes, responses to prejudice and bigotry, ecutions in cases in which the bias violence and useful resources on the subject.' The occurs because of the victim's sexual orien- Justice Department also developed an inter- tation, gender, or disability. Clinton Admin- active hate crime website for children. istration officials actively supported this leg- The still-developing Justice Department islation in the 106th Congress. website for children, , has eliminated the interactive hate lation during President debates with former crime pages, but retains a link to the very use- Vice President Al Gore. Then-Senator Ash- ful Justice/Education educators' manual. croft opposed this legislation when the Senate The Department of Education's Office for approved the measure as an amendment to a Civil Rights, in association with the National defense authorization bill 57 to 42 in June Association of Attorneys General, provided 2000. Both President Bush and Attorney Gen- excellent counsel and programming for eral Ashcroft have expressed support for schools in a publication, "Protecting Stu- legislation,sponsoredbySenator Orrin dents from Harassment and Hate Crimes: A Hatch (R-LIt.), which calls for a national stu- Guide for Schools." dy of hate crimes and creates a grant pro- This Guide is available at the Department gram for state and local authorities to combat of Education's website at . In a very welcome indication of continuity, the Justice Department's Bureau of Justice Assistance published Hate Crimes on Cam- III. The 107th Congress pus: The Problem and Efforts to Confront It8 in October 2001. This monograph, which con- Before September 11, the first session of tinues the BJA's "Hate Crime Series," was the 107th Congress had been characterized prepared by staff at the Center for the Pre- by partisan wrangling over budget and tax vention of Hate Violence. The report exam- issues. After the terrorist incidents, mem- ines the prevalence of hate violence on cam- bers of Congress have tried to downplay pus and the impact of these acts, identifies party politics in an effort to focus on needed common obstacles colleges face in effective counterterrorism and aviation security mea- response to campus hate crimes, and describes sures. At the end of the session, Congress several promising strategies to respond and succeeded in reauthorizing the Elementary prevent campus hate crime. and Secondary Education Act (ESEA), the most important federal funding measure for public schools. Despite significant opposition

1 6

Citizens' Commission onCivilRights -

by some national conservative groups, Con- House approved this version in May with- gress retained the important anti-bias pro- out the hate crime provisions. The Senate gramming authority in ESEA. This measure, passed its version of the bill, which retained along with the pending Local Law Enforce- each of the hate crime provisions, in June. ment Enhancement Act (LLEEA), are the top Efforts to reconcile the two versions on a legislative priorities for the coalition of civil wide range of issues continued until early rights, religious, law enforcement, and edu- December. On several occasions over that cation groups that advocate on behalf of period of time, a broad coalition of over 100 strong federal action to confront hate vio- civil rights, religious, law enforcement, civic, lence. and education groups sent letters of strong support for the hate crime provisions. In the end, overcoming considerable opposition, the A. Reauthorization of the version signed into law by President Bush Elementary and Secondary in January 2002 retained existing hate crime Education Act prevention authority.°

In 1994, with broad bipartisan support, B. The Local Law Enforcement Congress approved several important new initiatives as part of the ESEA to provide Enhancement Act: training and technical assistance for commu- Closing Gaps in Federal Law nities to address violence associated with prejudice and intolerance. Under these pro- First proposed in the aftermath of the 1997 visions in ESEA, a number of innovative and White House Conference on Hate Crimes, successful prejudice reduction programs the LLEEA would permit federal investiga- have been developed and piloted in local com- tions and prosecutions of certain hate crimes. munities across the country. Title IV of the This new authority would complement sec- Act, Safe and Drug Free Schools and Com- tion 245 of Title 18 U.S.C. one of the pri- munities, also included a specific hate crimes mary statutes now used to combat racial and prevention initiative promoting curricu- religious bias-motivated violence. That stat- lum development and training and develop- ute prohibits intentional interference, by ment for teachers and administrators on the force or threat of force, with enjoyment of a cause, effects, and resolutions of hate crimes federal right or benefit (such as voting, go- or hate based conflicts. The enactment of ing to school, or working) on the basis of the these federal initiatives represented an es- victim's race, color, religion, or national ori- sential advance in efforts to institutionalize gin. Under the current law, enacted in 1968, anti-bias initiatives as a component of vio- the government must prove that the crime lence prevention programming. occurred because of a person's membership Yet, these important provisions have also in a protected group and because (not attracted persistent, vehement opposition while) he/she was engaging in a federally from some conservative and right-wing or- protected activity. Justice Department offi- ganizations.' In part because of this vocal (if cials have identified a number of significant wrongheaded and erroneous) opposition, the racial violence cases in which federal pros- leadership of the House Committee on Edu- ecutions have been stymied by these un- cation and the Workforce removed every wieldy dual jurisdictional requirements. existing reference to bias, prejudice, and hate The LLEEA would remove these overly re- crime as they crafted their version of the strictive obstacles to federal involvement by ESEA rewrite early in the session. The permitting prosecutions without having to

168

Citizens' Commission on CivilRights -

prove that the victim was attacked because cases under all federal criminal civil rights he/she was engaged in a federally protected statutes combined. In fact, since its enact- activity. Second, it would provide expanded ment in 1968, there have never been more authority for federal officials to investigate than ten indictments in any year under 18 and prosecute cases in which the bias vio- U.S.C. § 245. Yet, while the number of fed- lence occurs because of the victim's actual eral prosecutions for racial violence is small, or perceived sexual orientation," gender," these efforts provide an essential supple- or disability." ment to state and local criminal prosecu- The vast majority of bias crimes are effec- tions. The importance of these few cases can- tively addressed at the state and local level. not be overstated. For example, a number of However, in states without hate crime stat- the racial violence cases involve prosecutions utes, and in others with limited coverage, of members of the Ku Klux Klan and other local prosecutors are simply not able to pur- organized hate groups. These cases 7 in sue bias crime convictions.14 In a limited 2000, involving 7 defendants, and 8 more number of these cases, and others in which cases in the last two years, involving 16 de- the local prosecutor is unable or unwilling fendants help to demonstrate the federal to investigate and prosecute, federal assis- government's resolve to combat organized tance or involvement is warranted." bigotry.' As drafted, the LLEEA contains a number Supporters of the LLEEA know well that of significant limitations on prosecutorial new federal criminal civil rights jurisdiction discretion. First, the bill's requirement of to address crimes directed at individuals actual injury, or, in the case of crimes involv- because of their gender, sexual orientation, ing "the use of fire, a firearm, or an explo- or disability will not result in the elimina- sive or incendiary device," an attempt to tion of these crimes. But the possibility of cause bodily injury, limits the federal federal prosecutions in select cases, the im- government's jurisdiction to the most seri- pact of FBI investigations in others, and ex- ous crimes of violence against individuals panded partnership arrangements with not property crimes. state and local investigators in still other Second, for the proposed new categories cases, should prompt more effective state gender, sexual orientation, and disability and local prosecutions of these crimes. The federal prosecutors would have to prove LLEEA also includes grants for state and an interstate commerce connection with the local hate crime investigations and prosecu- crime similar to the constitutional basis tions. Especially at this time of enhanced relied upon for the Church Arson Preven- counterterrorism coordination between law tion Act, which was passed unanimously by enforcement authorities, facilitating Fed- Congress in 1996. eral, state, and local cooperative working ar- Third, the LLEEA includes a certification rangements to combat hate violence and requirement comparable to the limitations other forms of domestic terrorism has great under 18 U.S.C. 245. Justice Department of- merit. ficials have historically been extremely se- In the 106th Congress, bipartisan majori- lective in choosing which cases to prosecute ties in both the Senate and the House voted under the federal criminal civil rights stat- to approve the measure. On June 20, 2000, utes. For example, in 2000, a year in which the Senate voted 57 to 42 to include the lan- the FBI's Hate Crimes Statistics Act (HCSA) guage of the Local Law Enforcement En- report documented 8,063 hate crimes re- hancement Act as an amendment to the De- ported by 11,690 police agencies, the Justice partment of Defense Authorization bill. On Department brought only 25 racial violence September 13, the House instructed its par-

166 1 6 9 Citizens' 'Commission onCivilRights -

Federal Criminal Civil Rights Statutes'

State and local law enforcement authorities play the primary role in the prosecution of bias-motivated violence. Current federal law contains significant gaps and limitations reaching only racially-motivated violence which is intended to interfere with the victim's federal rights or participation in a federally-protected activity. The federal government does play a critical role in supplementing state and local prosecutions in appropriate circumstances.

42 U.S.C. section 3631, the criminal portion of the Fair Housing Act of 1968, prohibits housing-related violence on the basis of race, color, religion, sex, handicap, familial status, or national origin. The violence usually prosecuted under this section includes cross-burnings, firebombings, arsons, gunshots, rock throwing, and vandalism. The statute reaches all persons involved in any housing-related activity sellers, buyers, landlords, tenants, and real estate agents. 18 U.S.C. section 245 is the primary criminal civil rights statute for racial violence cases that do not involve housing. As enacted in 1968, section 245 prohibits the use of force or threats of force against individuals because of their race, color, religion, or national origin, and because those individuals are engaged in certain specified activities. Section 245 protects against race-based interference in the right to enroll in public school or college; the right to participate in and enjoy any benefit, service, or program administered by a state; employment by any private employer or state or local agency; travel in or use of a facility of interstate commerce; and enjoyment of goods or services of any place of public accommodation.

18 U.S.C. section 247 criminalizes attacks on religious property and obstructions of persons who are enjoying the free exercise of their religious beliefs. This statute, originally enacted in 1988 and amended by the Church Arson Prevention Act of 1996, covers racially-motivated church burnings and bombings, as well as acts of desecration motivated by religious animus when the defendant has traveled in interstate commerce or has used a facility or instrumentality of interstate commerce.

18 U.S.C. section 241 broadly prohibits a conspiracy to injure or threaten "any person" in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.

170

Citizens' Commission onCivilRights -

ticipants in a House-Senate conference ability is disturbingly prevalent. While the meeting to reconcile differences in that bill overall number of crimes reported to the FBI to retain that hate crimes language by a marin 2000 declined slightly (0.2%), reported gin of 232 to 192. Unfortunately, at the urg- hate crimes increased 2.3% from 7,876 in ing of Republican leadership in the House 1999 to 8,063 in 2000. Another disappoint- and Senate, the LLEEA was stripped from ing element of the 2000 report was the fact the final version of this legislation. In this that the number of law enforcement agen- Congress, the measure has attracted over 200 cies participating in the HCSA data collec- cosponsors in the House and 51 in the Sen- tion effort decreased from 12,122 in 1999 to ate. The Senate Judiciary Committee ap- 11,690 in 2000. Here are highlights from the proved the bill in July 2001, and the mea- 2000 report: sure is expected to be taken up in the Sen- ate early in the second session. About 54% of the reported hate crimes were race-based, with 18% committed against individuals on the basis of their IV The Hate Crime Statistics religion, 11% on the basis of ethnicity, and Act (HCSA)'8 over 16% against gay men and lesbians. Overall, approximately 36% of the re- Though a number of private groups19 and ported crimes were anti-black, 11% of the state law enforcement agencies track inci- crimes were anti-white, 3.5% of the dents of hate violence, the HCSA now pro- crimes were anti-Asian, and 6.9% anti- vides the best national picture of the magni- Hispanic. tude of the hate violence problem in America though still clearly incomplete. Enacted The 1,109 crimes against Jews and Jew- in 1990, the HCSA requires the Justice De- ish institutions comprised almost 14% of partment to acquire data on crimes that the total and 75% of the reported hate "manifest prejudice based on race, religion, crimes based on religion. sexual orientation, or ethnicity" from law enforcement agencies across the country and Only 73% of the 16,000 law enforcement to publish an annual summary of the find- agencies that regularly report crime data ings. In the Violent Crime Control and Law to the FBI are reporting hate crime data Enforcement Act of 1994,2° Congress ex- to the Bureau. Moreover, as in years panded coverage of the HCSA to require FBI past, the vast majority of these "partici- reporting on crimes based on "disability." pating" agencies affirmatively reported that no hate crimes were committed in their jurisdictions. Of the 11,690 depart- V. The FBI's 2000 HCSA ments participating in the 2000 HCSA data collection effort, only 1,892 (16%) Data at a Glance reported even one hate crime. As documented by the FBI in its Novem- Clearly these hate crime numbers do not ber 2001 report, Hate Crime Statistics, 2000, speak for themselves. Behind each and ev- violence directed at individuals, houses of ery one of these statistics is an individual or worship, and community institutions be- a community targeted for violence for no cause of prejudice based on race, religion, other reason than race, religion, sexual ori- sexual orientation, national origin, and dis- entation, disability, or ethnicity. Despite an

7.1 Citizens' Commission onCivilRights -

incomplete reporting record over the first crimes.27 These issues present a critical chal- ten years of the Act, the HCSA has proved lenge for improving law enforcement re- to be a powerful mechanism to confront vio- sponse to hate violence. When police depart- lent bigotry against individuals on the basis ments implement the HCSA in partnership of their race, religion, sexual orientation, or with community-based groups, the effort ethnicity. In addition, the Bureau's annual should enhance police-community rela- jurisdiction-by-jurisdiction hate crime report tions.28 provides an important measure of accountability for those law enforcement agencies that report and those that do not.21 Im- VI. Addressing Youth- portantly, the HCSA has also increased public awareness of the problem and sparked Initiated Hate Violence improvements in the local response of the criminal justice system to hate violence.22 There is growing awareness of the need Studies have demonstrated that victims are to complement tough laws and more vigor- more likely to report a hate crime if they ous enforcement which can deter and re- know a special reporting system is in place.23 dress violence motivated by bigotry with Police officials have come to appreciate education, training, and diversion initiatives the law enforcement and community benefits designed to reduce bias-motivated violence. of tracking hate crime and responding to it The federal government has a central role in a priority fashion. Law enforcement offi- to play in funding program development in cials can advance police-community rela- this area and promoting awareness of ini- tions by demonstrating a commitment to be tiatives that work. both tough on hate crime perpetrators and There is a paucity of published informa- sensitive to the special needs of hate crime tion about juvenile hate crime offenders. The victims.24 By compiling statistics and chart- FBI's annual HCSA report, though clearly ing the geographic distribution of these incomplete, now provides the best national crimes, police officials may be in a position picture of the magnitude of the hate violence to discern patterns and anticipate an in- problem in America. That report, however, crease in racial tensions in a given jurisdic- does not provide specific information about tion. either juvenile hate crime offenders or vic- However, studies by the National Organi- tims. In fact, a 1996 OJJDP "Report to Con- zation of Black Law Enforcement Executives gress on Juvenile Hate Crime" stated: "the (NOBLE) and others have revealed that research team found very little information some of the most likely targets of hate vio- pertaining to the issue of hate crimes in gen- lence are the least likely to report these eral and even less on the nature and extent crimes to the police.25 In addition to cultural of juveniles' involvement." 29 and language barriers, some immigrant vic- The September 2001 Bureau of Justice Sta- tims, for example, fear reprisals or deporta- tistics Special Report, Hate Crimes Reported tion if incidents are reported. Many new in NIBRS, 1997-99 closely examined about Americans come from countries in which 3,000 of the almost 24,000 hate crimes re- residents would never call the police es- ported to the FBI during that period and pecially if they were in trouble.26 Gay and found that 60% of the hate crimes reported lesbian victims, facing hostility, discrimina- under the incident-based system were vio- tion, and, possibly, family pressures because lent crimes, while only 20% of the other in- of their sexual orientation, may also be re- cident-based reports were violent crimes. luctant to come forward to report these

172 Citizens' Commission onCivilRights -

Perhaps most important, the report pro- in bias-motivated crimes and provide ex- vided disturbing information about the too- panded authority for federal officials to frequent involvement of juveniles in hate investigate and prosecute cases in which crime incidents. The report documented that the bias violence occurs because of the a disproportionately high percentage of both victim's actual or perceived sexual orien- the victims of hate violence and the perpe- tation, gender, or disability. Congress and trators were young people under 18 years of the administration should provide the re- age: sources necessary to develop training materials to successfully implement this ex- Thirty-three percent of all known hate panded authority. State and local au- crime offenders were under 18 31% of thorities investigate the vast majority of all violent crime offenders and 46% of the hate crime cases and will continue to property offenders. do so after the LLEEA is enacted into law. The LLEEA, however, would pro- Another 29% of all hate crime offenders vide a necessary backstop to state and were 18 to 24. local enforcement by permitting federal authorities to provide assistance in these Thirty percent of all victims of bias-mo- investigations and by allowing federal tivated aggravated assaults and 34% of prosecutions when necessary to achieve the victims of simple assault were under a just result. 18. Working with U.S. Attorneys and private Thirty-four percent of all persons ar- civil rights and community-based organi- rested for hate crimes were under 18 zations, the Justice Department should 28% of the violent hate crimes and 56% continue to help coordinate Hate Crime of the bias-motivated property crimes. Working Groups (HCWGs) in every judicial district in the country. Established Another 27% of those arrested for hate in many of the 90-plus federal districts crimes were 18 to 24. across the country under the Clinton Administration, HCWGs are well equip- ped to make decisions on state and local VII. A Hate Violence hate crime initiatives, to improve hate crime data collection efforts and enforce- Deterrence and Response ment of existing laws, and to set priori- Action Agenda for the ties for the future. Bush Administration and Justice Department officials should vig- the I 07th Congress orously investigate and, where appropriate, prosecute threats of violence transmitted over the Internet. Federal prosecutors A. Enforcement of Federal Hate should be trained in how to investigate Crime and Civil Rights Statutes and prosecute hate crimes on the Internet. In 1998, prosecutors obtained the first Congress should enact the Local Law En- federal criminal civil rights conviction in forcement Enhancement Act, legislation a case involving an individual who had that would remove the current overly re- sent email messages threatening to "hunt strictive obstacles to federal involvement

170 1 73 Citizens' Commission onCivilRights -

down and kill" Asian American students ing Services (COPS) or its Office of Jus- at the University of California at Irvine.30 tice Programs (OJP). Congress and the administration should require that new The Justice Department and the FBI officers hired under the COPS initiative should provide expanded training on the receive training in how to identify, re- federal hate crime sentencing enhance- port, and respond to hate violence. Con- ment provisions. While the 1994 federal gress and the administration should sentencing enhancement provision has make the receipt of OJP technical assis- been used to step up penalties for crimes tance grants dependent on participation in which the victim was targeted because in the HCSA data collection effort. of race, religion, or national origin, it has, apparently, never been applied in cases Congress and the administration should involving victims targeted because of provide additional incentives for HCSA their sexual orientation, disability, or implementation, including national rec- gender. Though federal criminal civil ognition, matching grants for training, a rights statutes do not currently include network to promote replication of success- these categories, the use of this enhance- ful programs, and awards for exemplary ment in other bias-motivated crimes departments. The readiness of the crimi- should be encouraged. nal justice system to address hate violence has significantly improved over the The FBI should take steps to enhance civil ten-year history of the HCSA. As efforts rights and hate crime-related positions to implement the HCSA continue and ex- within the Bureau as career-advancing pand, we will learn more about the per- posts. petrators of these especially hurtful crimes and how to prevent them.

B. Improved Data on Hate Crimes Congress and the administ\i-ation should Congress and the administration should provide funds for a national assessment promote comprehensive implementation of of juvenile hate violence, its causes, the the Hate Crime Statistics Act (HCSA) by prevalenceoftheprobleminpublic state and local enforcement officials. The schools, the, characteristics of the offend- Justice Department's Bureau of Justice ers and victims, and successful interven- Statistics has funded a necessary study tion and diversion strategies. The prob- on the differences in HCSA reporting lem of bias-motivated gang activity and rates among national law enforcement youth violence has not been effectively agencies. The federal government should studied. Additional efforts are necessary use its full range of resources to imple- to identify and promote effective pro- ment policy recommendations from that grams, including community service and study and encourage comprehensive par- alternative sentencing options. ticipation in the national data collection initiative. C.Federal Hate Crime Research and Training Initiatives The Justice Department should make participation in the HCSA program a prereq- Congress and the administration should uisite for receiving money through either provide the necessary resources to widely the Office of Community Oriented Polic- promote and continue outreach using the

174 Citizens' Commission onCivilRights -

Justice Department's excellent law en- develop initiatives to address inmate re- forcement training curricula. cruitment. At least two of the men convicted of the murder of James Byrd, Jr., The administration and Congress should in Jasper, Texas, in 1998 were members take steps to ensure that the FBI receives of white supremacist prison gangs dur- sufficient funding to continue to respond ing their previous incarceration. to requests for hate crime training from law enforcement agencies across the coun- D. The Justice Department's try, as well as funding to continue its own Community Relations Service training and education outreach efforts for both new agents and in-service training (CRS) for field agents at its Quantico training academy. Congress and the administration should provide the Community Relations Service Congress and the administration should with sufficient funding to fulfill its vital promote hate crime training initiatives for and unique violence prevention mandate. prosecutors and judges. Building on successful and established hate crime train- Congress should act to expand the man- ing initiatives for police officers and ex- date of CRS to include providing media- ecutives, the next critical step is the de- tion and conciliation services on the basis velopment of model protocols, a model of religion and sexual orientation.32 Lim- training guide, and an overall hate crime ited by its authorizing statute (Title X of training curriculum for prosecutors.3' the Civil Rights Act of 1964) to respond only to conflicts based on race, color, and Congress and the administration should national origin, CRS has been unable to provide funding to study federal and state respond to well-documented evidence hate crime prosecutions, including the that a high incidence of hate-based number of convictions, the perpetrators, crimes are committed against gays and the impact of incarceration, and the re- lesbians and religiouslyidentified cidivism rate. people.

Congress and the administration should E. Education provide resources to promote education and training initiatives for juvenile jus- The American Psychological Association tice and victim assistance professionals. (APA), in a landmark 1993 report,33 docu- Excellent resources for these two groups mented the role of prejudice and discrimi- have been developed in recent years nation in fostering social conflict that can including excellent new resources cre- lead to violence. Educational resources are ated by Partners Against Hate under a effective tools to alter attitudes and behav- Justice Department grant but addi- iors which in turn can prevent and reduce tional funds are necessary to promote acts of hatred and discrimination.34 outreach and training for professionals who serve these constituencies. The Department of Education should makeinformationavailableregarding Congress and the administration should successful prejudice-reduction and hate fund research on racist prison gangs and crime prevention programs and resources.

175 Citizens' Commission onCivilRights -

Resources must be allocated to institute tent to which this propaganda is acces- and replicate best practices and promis- sible to minors, and making appropriate ing programs on prejudice awareness, ju- recommendations for response not regu- venile diversion, conflict resolution, and lation or censorship.36 multicultural education.35 F Responding to Racism and Hate Congress and the administration should Crimes in the Armed Forces provide funding for the anti-prejudice initiatives included in the recently reauthorized Elementary and Secondary Educa- The Departmentof Defense andall tion Act. In addition to hate crime pre- branches of the military should increase vention programs, the federal govern- their efforts to collect information on ex- ment should fund properly crafted citi- tremist groups, provide anti-bias and anti- zenship and character education initia- gay harassment training for all recruits tives and programs to support teaching and military personnel, improve proce- about the Bill of Rights. dures for screening out racist recruits, and clarify and publicize existing prohibitions The Justice Department, the Department against active duty participation in hate of Education, and other involved federal group activity. agencies should institutionalize and coordinate their response to prejudice-moti- Congress should hold oversight hearings on the Defense Department's implemen- vated violence including gang violence through programs and initiatives de- tation of initiatives on hate groups in the veloped for schools and community youth military enacted as part of the National violence prevention programs. Defense Authorization Act of 1997. In consultation with the Justice Depart- Congress and the administration should ment, the Department of Education should support legislation to amend the Uniform provide training and technical assistance Code of Military Justice, which governs to officials at colleges and universities to military conduct, to provide enhanced pen- ensure comprehensive implementation of alties for bias-motivated violence commit- the campus hate crime reporting require- ted by members of the Armed Forces. ments included in the 1998 anzendments to the Higher Education Act. G. Leadership from Political and Civic Leaders The Department of Education should analyze the hate crime data it receives from Congress and the administration should colleges and universities and publish an help promote civility and acceptance of annual report similar to the separate differences in our society. As the nation annual report published by the FBI un- witnessed a series of disturbing attacks der the Hate Crime Statistics Act of 1990. against individuals perceived to be Middle Eastern, Arab, or Muslim, in the Congress and the administration should aftermath of the September 11 terrorist support effortsto study hate onthe incidents, we were reminded of the need Internet, analyzing its use for the dissemi- to directly confront the prejudice and in- nation of propaganda, evaluating the ex- tolerance that can lead to hate crimes

Citizens'Commission onCivilRights 176 Chapter 13 Part Two: Criminal Justice

in our communities, in our houses of wor- in opposition to all forms of bigotry. Our ship, in our schools, and, especially, in civic leaders set the tone for national dis- our homes. course and have an essential role in shaping attitudes. Members of Congress and administration officials should seek opportunities to speak Politicians and civic leaders should never out against bigotry, intolerance, and preju- engage in divisive appeals based on race, dice in our society. It is hard to overstate ethnicity, sexual orientation, or religion. the importance of outspoken leadership

1 77 Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 13

Comparison of FBI Hate Crime Statistics, 1991-2000

1991 1992 1993 19941995 1996 1997 1998 1999 2000

Participating 6,1816,8657,3569,58411,355 11,211 10,461 12,12211,690 Agencies 2,771 Total Hate Crime Incidents Reported 4,5587,4667,5875,9327,947 8,759 8,049 7,755 7,876 8,063

Number of States, 47 49 49 including D.C. 32 42 47 44 46 50 49 Percentage of U.S. Population N/A 51 58 58 75 84 85 79 85 84.2 Agencies Represent

Offenders' Reported Motivations in Percentages of Incidents

1991* 1992 1993 1994 1995 1996 1997 1998 1999 2000

Racial Bias 2,963/62.3 4,025/60.7 4,732/62.4 3,545/59.8 4,831/60.85,396/61.6 4,710/58.5 4,321/55.7 4,295/54.5 4,337/53.8

Anti-Black 1,689/35.5 2,296/34.7 2,815/37.1 2,174/36.6 2,988/37.6 3,674/41.93,120/38.8 2,901/37.4 2,958/37.6 2,884135.8

Anti-White 888/18.7 134,220.30 1,471/19.4 1,010/17 1,226/15.4 1,106/12.6 993/12.3 792/10.2 78119.9 875/10.9

Religious Bias 917/19.3 1,162/17.5 1,298/17.1 1,062/17.9 1,277/16.1 1,401/15.9 1,385/17.2 1,390/17.9 1,411/17.9 1,472/18.3

Anti-Semitic 792/16.7 1,017/15.4 1,143/15.1 915/15.4 1,058/13.3 1,109/12.7 1,087/13.5 1,081/13.9 1,109/14.1 1,109/13.8

Anti-Semitic as Percentage of 86.4 87.5 88.1 86.2 82.9 79.2 78.5 77.7 78.6 75.3 Religious Bias

Ethnicity 45019.5 669/10.1 697/9.2 638/10.8 814/10.2 940/10.7 836/10.4 754/9.7 829/10.5 911/11.3

Sexual 1,299/16.1 Orientation 425/8.9 767/11.6 860/11.3 685/11.5 1,019/12.8 1,016/11.6 1,102/13.7 1,260/16.2 1,317/16.7

*1991 - dueto limited data, this column represents offender's reported motivations in percentages of offenses.

Charts compiled by the Anti-Defamation League's Washington Office from information collected by the FBI

178 Citizens' Commission onCivilRights State A 1991 B A 1992 B A 1993 B A 1994 B A 1995 B A 1996 B A 1997 B A 1998 B A 1999 B A 2000 B AlaskaAlabama *1"1'* 4 4 4 1 24 5 1 9 1 " 8 289 1 90 282 1 100 ** ** 1 5 1 4 ArkansasArizona 169 1 4810 18390 17237 18789 208 13 18982 205 9 19087 220 7 19181 250 1 19485 330 0 19390 283 3 19286 252 8 88 4 240 3 ColoradoCalifornia 194 2 128 5 197 7 25875 19911 364178 231 13 354173 228744 1,751149 230718 2,052 133 232720 1,831113 233719 1,749 128 235720 1,949 148 234722 1,943 101 ConnecticutDelaware 5829 2969 5723 4762 4939 11733 5189 4268 9451 4587 5098 11467 5459 11358 9450 109 19 5498 13537 5297 15134 District of Columbia **'1' "1- ' 1 14 1 10 1 2 1 4 1 16 1 6 1 2 1 4 1 5 HawaiiGeorgiaFlorida 2 23 374 4 33466 374 4 23975 370 3 214 51 411 3 16449 394 2 18728 580 5 4593 464 58 17934 483 56 26736 49180 24035 IllinoisIdaho 2698 13333 620115 24154 224110 72470 11719 23979 116 1 146114 114112 333 72 11996 33946 12073 277 58 12155 24734 11846 18345 IowaIndiana 201 1 89 0 190 5 3619 19652 3982 226 89 6132 232164 2935 231179 4336 230139 5562 218150 50 0 222143 11131 220166 10633 KentuckyKansas 31 06 2 53 31 13 5 4 513 81 527 1 10928 213 1 4855 264 1 4554 251 1 4171 317 1 7342 MaineLouisiana Ii6 0 109 1913 586 3223 92 5 79 130146 75 7 131140 58 6 131147 57 4 133134 5710 165172 22 6 181174 2812 MassachusettsMaryland 15630 200431 158156 424484 135153 343404 150 ''" 3254* 202148 333353 405148 454387 359148 441321 177147 431282 303146 443230 341146 458217 iS MinnesotaMichigan 42*4 225 *4. 454 69 411122 55566 377247 518** 252** 480 66 285405 307485 485268 312465 214461 54672 384248 314610 225407 313620 425169 A 1991 1992 B A 1993 B A 19,4 B A 1995 B A 1996 B A 1997 B A 1998 B A 1999 B A 2000 B StateMissouriMississippi 184 136 BA1 17 1 158 0 8117 168 0 15553 139 6 15751 135 6 230129 150 3 19475 157 0 21290 118 3 20988 83 2 18678 702 NebraskaMontana 1-1" ** ''.* -' " 18 21 2 0 6 11 9510 103 9510 15 3 20277 5222 233 86 3527 202102 1719 F. NewNevada Harnsphire 1 16 3 23 9 1 12 0 25 163 35 2 2468 42 44 1 34* , 45*,- 3557 6016 8637 2075 11037 3285 New MexicoJersey 271 1 895 0 291 *1- 1,114 ** 317 13 1101 4 55957 895 4 56870 76824 56870 13944 56758 69424 56559 757 31 565 59 617 16 56443 652 15 New York 773 943 569 1 1,112 1 571 6 934 10 567 7 911 7 52059 84552 49983 90334 502 853 500 776 506 59031 539 608 31 OhioNorth DakotaCarolina 30 80 26 1 105 1 12891 260 1 26682 357 5 32174 267 3 405101 234 1 30444584 26542 2 344434 81 17239 2 35146384 232 2 34820580 240 5 OregonOklahoma 5039 7 27729699 944279 9 432376147 279 9 39123760 206 4 27817720 1,134 243 7 28215237 1,137293174 20517283 300171 16810541 16725 1689357 239300 18512342 933171301 14114280 SouthRhodePennsylvania Carolina Island ,* ** , 44 4 48 4 1,03629545 2762 1,044 30245 3037 29345 4626 34046 4240 1,10831645 4371 1,12730046 9429 1,14033948 5241 35248 3348 TennesseeSouth Dakota 2,r,", 1 2 4 56 3 42 113 4 20 1 10438 25 5 19132 333 16742 4634 26076 5819 355117 12714 422121 230 7 Texas *"28 *95 870 9 486 12 879121 41845 123895 36493 914116 326107 915124 350 59 924124 33349 931101 30066 939122 26259 942127 28671 VermontUtah 19 53 24 102 21 1 100 1 16018 9512 17519 5110 409 3 924 409 20 105 3 41537 16013 37243 203 16 38443 325 19 WestWashingtonVirginia Virgin a 206 196 207 374 207 457 22 281 229 226 ** 23022 198 4 22932 190 3 238112 221 21 249231 23032 268236 24260 181 WyomingWisconsin 303 41 145 5 67 0 16149 1019 15060 40 6 337 59 4519 33870 43 4 34538 50 6 33*4' -,*6 36468 49 2 36867 47 9 -

Resources

These websites include outstanding resources on hate crimes laws, anti-bias and prevention programs, and links to other related sites:

(Anti-Defamation League) (Anti-Defamation League Law Enforcement Agency Resource Network) (Anti-Defamation League, Leadership Conference Education Fund, Center for the Prevention of Hate Violence) (Leadership Conference on Civil Rights/Leadership Conference Education Fund) (The Center for the Prevention of Hate Violence) (Southern Poverty Law Center/Klanwatch) (The Human Rights Campaign) (The International Association of Chiefs of Police)

183

Citizens'Commission onCivilRights -

Endnotes

1 Michael Lieberman has been the Washington Counsel for the Anti-Defamation League (ADL) since Jan. 1989. He has written widely about the impact of hate crimes and has been actively involved in efforts to secure passage of a number of federal and state hate crime statutes. Mr. Lieberman has participated in seininars and workshops on response to violent bigotry and has served on Advisory Boards for hate crime projects funded by the Department of Justice, the Department of Education, and the Department of Housing and Urban Develop- ment. The Anti-Defamation League: Since 1913, the mission of ADL has been to "stop the defamation of the Jewish people and to secure justice and fair treatment to all citizens alike." Dedi- cated to combating anti-Semitism, prejudice, and bigotry of all kinds, ADL has played a national leadership role in the development of innovative materials, programs, and services that build bridges of communication, understanding, and respect among diverse racial, religious, and ethnic groups. The League's website, , contains excellent background on legal and legislative response to hate violence, as well as educational resources on prevention of bias that can lead to violence. Attorney General Reno is especially deserving of high praise. Under her energetic leadership, working groups within the Department of Justice met regularly for months preceding the historic Nov. 1997 White House Conference on Hate Crimes. Justice Department working groups met repeatedly, soliciting input from government experts, law enforcement groups, academics, and civil rights activists to build on existing programs, assess future needs, and establish priorities. Most importantly, they followed up with the implementation of an ambitious and impressive series of national initiatives. This partnership between community groups and law enforcement was modeled after the Washington, D.C. Bias Crime Task Force, established in February 1996 to fight hate crimes and increase public awareness about bias-motivated crime in the nation's capital. The Task Force was founded by ADL's Washington, D.C./Maryland/Virginia/North Carolina Regional Director, David Friedman, and Eric Holder, then U.S. Attorney for the District of Columbia, who later served as Deputy Attorney General in the Clinton Justice Department. 4 U.S. Department of Justice, Bureau of Justice Statistics, Sept. 2001. 5 The Education Department website provides the crime statistics reported by every postsecondary institution that participates in federal financial aid programs and includes separate data for each campus. The data are categorized under one of four locations where the crime occurred: residence halls, other on-campus locations, noncampus buildings or properties, or nearby public property.

184

Citizens' Commission onCivilRights 6Public Law 102-586. 7Department of Education and Department of Justice, Preventing Youth Hate Crime: A Manual for Schools and Communities (1997). 8This monograph is available at the Center for the Prevention of Hate Violence's website: . 9One website posting by the Traditional Values Coalition stated: "Currently, under the guise of "hate crime prevention" and "promoting tolerance," federal education dollars have provided a major funding stream to undermine and denigrate the religious beliefs of Christian parents and children. These taxpayer dollars have produced unbalanced, bigoted and offensive anti-Christian materials." 10 Public Law 107-110. " Despite the fact that a significant number of hate crimes are committed against gays and lesbians, hate crime statutes in only 27 states and the District of Columbia now include crimes directed at an individual because of his/her sexual orientation. Currently, the Justice Depart- ment has limited authority to seek enhanced penalties in bias-motivated attacks against gay men and lesbians, since sexual orientation is one of the categories included in the Hate Crime Sentencing Enhancement Act, 28 U.S.C. § 994. This authority, however, has apparently never actually been used. 12In the past five years, as states have realized that it is difficult to distinguish race-based and religion-based crimes from gender-based crimes, the trend in a number of state legislatures has been to include gender in hate crimes legislation. In 1990, only 7 of the statutes in the 31 states that had hate crime statutes included gender. Today, including the District of Colum- bia, 25 of the 45 states with penalty-enhancement hate crimes statutes include gender. Gender- based crimes are also subject to federal sentencing enhancements although, again, apparently the enhancement has never been applied to a federal crime. 13The hate crime statutes in 26 states and the District of Columbia now provide enhanced penalties for disability-based crimes. " For additional information about hate crime statutes across the country, including each state's breadth and coverage, see or . 15Similarly, in 1968, during the debate over 18 U.S.C. § 245, Congress had determined at that time that certain crimes directed at individuals because of "race, color, religion or national origin" required a federal remedy. 16Data provided by the Department of Justice as of Aug. 31, 2001. 17An excellent primer on the federal criminal civil rights statutes is a orientation document prepared by federal prosecutors Karla Dobinski, Tamara J. Kessler, and Suzanne K. Drouet of the Criminal Section of the Justice Department's Civil Rights Division. 1828 U.S.C. § 534. 19The Anti-Defamation League has been compiling data on anti-Jewish vandalism and harassment since 1979. In 2000, a total of 1,606 anti-Semitic incidents from 44 states and the District of Columbia were reported to ADL regional offices across the country, representing a 4% increase from the 1999 figure of 1,547. For more information, see Anti-Defamation League, 2000 Audit of Anti-Semitic Incidents (Mar. 2001) (annual report). In addition, the National Asian Pacific American Legal Consortium (NAPALC) has conducted an annual audit of anti-Asian violence since 1993. In 1999, NAPALC documented 486 anti-Asian incidents, an increase over its 1998 figure of 429. For more information, see National Asian Pacific American Legal Consor- tium, 1999 Audit of Violence Against Asian Pacific Americans (Jan. 2000). 20Public Law 103-322 (Sept. 13, 1994).

180 185 Citizens' Commission onCivilRights .1-

21The separate HCSA jurisdiction-by-jurisdiction breakdown reports have been especially useful in helping to gauge the seriousness with which communities are approaching the hate crime data collection effort. For example, in 2000, the most current jurisdiction-by-jurisdiction information available, seven states (Alaska, Arkansas, the District of Columbia, Mississippi, North Dakota, South Dakota, and Wyoming) reported ten or fewer hate crime incidents. Ala- bama and Hawaii did not participate in the HCSA program at all. In addition, of the 50 most populous cities in the United States, 7 did not participate in the reporting of hate crime data at all: Honolulu, Toledo, Birmingham, Baton Rouge, Montgomery, Augusta/Richmond County (GA), and Mobile. Other large cities were, quite obviously, egregiously deficient in their HCSA reporting. Nashville and New Orleans each affirmatively reported zero hate crimes to the FBI. Milwaukee reported one, Oakland and Miami reported two, Detroit, Oklahoma City, and Omaha reported three, Washington, D.C., reported five, and Indianapolis, Baltimore, and Denver each reported seven. For comparison purposes, Boston, a city known for effective hate crime response and approximately the same size as Milwaukee, Baltimore, Washington, D.C., and Nashville reported 177 hate crimes to the FBI in 2000. 22An excellent primer on the federal criminal civil rights statutes is a orientation document prepared by Federal prosecutors Karla Dobinski, Tamara J. Kessler, and Suzanne K. Drouet of the Criminal Section of the Justice Department's Civil Rights Division. 23National Organization of Black Law Enforcement Executives (NOBLE), Racial and Reli- gious Violence: A Model Law Enforcement Response (Sept. 1985) ("NOBLE report"). 24As stated in the International Association of Chiefs of Police's National Policy Center's Apr. 1991 Concepts and Issues Paper on Hate Crime (revised in May 2000): "Swift and effective response to hate crimes helps to generate the degree of trust and goodwill between the community and its law enforcement agency that has long-term benefits for all concerned." 25NOBLE report at 36. 26For a fine review of these issues, see Japanese American Citizens League, Walk With Pride Taking Steps to Address Anti-Asian Violence (Aug. 1991). NAPALC has also noted that a lack of bilingual police officers can exacerbate community fears and mistrust and may contribute to an inability to initially identify a hate crime incident and create difficulties in interviewing the-victim and conducting an effective investigation. 27Reporting rates for gay and lesbian hate crime victims are also likely affected by mistrust and fear of the police. For a particularly sobering review of these issues, see National Coalition of Anti-Violence Programs (NCAVP), Anti-Lesbian, Gay, Bisexual and Transgendered Violence in 1997 ("NCAVP report"). Information gathered by NCAVP across the country indicates "a growing reluctance on the part of victims to report anti-LGBTH (Lesbian, Gay, Bi- sexual, Transgender, and HIV-positive) crimes to the police and an alarming increase in police indifference or hostility to those victims that did seek police assistance. The resistance of many victims to reporting is validated by the fact that there were significant increases in wrongful arrests, the number of offenders who are members of law enforcement and the number of incidents that occurred in a police precinct/jail." NCAVP report at 23. 28Collecting data under the HCSA and training officers to identify, report, and respond to acts of violence based on prejudice demonstrates a resolve to treat these inflammatory crimes seriously. These positive steps can be amplified by involving representatives of minority communities in the training sessions. Excellent resources now exist to help municipalities establish hate crime response procedures. ADL has developed a number of hate crime training resources that are available to communities and law enforcement officials, including a comprehensive guide to hate crime

186 Citizens' Commission onCivilRights Chapter 13 Part Two: Criminal Justice

laws, a new crime training video on the impact of hate crime and appropriate responses, and a handbook of existing hate crime policies and procedures at both large and small police departments. ADL's anti-bias initiatives, coordinated through our A World of Difference Institute, are most often used as proactive measures to help educators, employers, and civic leaders develop the skills, sensitivity, and knowledge to combat bigotry and encourage understanding and respect among diverse groups in the classroom and in the workplace. For more information, see . The League has also developed a special section of our website, the Law Enforcement Agency Resource Network, which is devoted to resources for law enforcement agencies in confronting terrorism, organized hate groups, and response to violent bigotry at. 29 Report to Congress on Juvenile Hate Crime (July 1996). 30 U.S. v. Machado, No. SA CR 96-142-AHS (Central District of California, Feb. 10, 1998). 31 The National District Attorney's Association's American Prosecutors Research Institute has produced an excellent resource guide, which is available at and . 32 CRS has determined that anti-Semitism can be defined as conflict based on national origin or race and has offered its services in attacks or threats against Jews and Jewish institutions. In addition, CRS has responded to intercommunal violence directed at individuals on the basis of their sexual orientation on at least one occasion. On Feb. 17, 1994, Attorney General Reno exercised her authority under 28 U.S.C. § 509-510 to direct CRS to intervene in a community dispute involving a campaign of terror and harassment against a lesbian couple in Ovett, Mississippi. CRS has also provided both valuable staff assistance and significant funding for the inclusive hate crimes outreach and training programs developed by the FBI and the Trea- sury Department's Federal Law Enforcement Training Center (FLETC), as well as the comprehensive training curricula developed by the Department of Justice. 33 American Psychological Association, Violence and Youth: Psychology's Response (1993). The APA report asserts that education programs that reduce prejudice and hostility are integral components of plans to address youth violence. The report concludes that conflict resolution and prejudice reduction programs can provide needed information and skills to prevent youth violence. 34 There are many existing programs designed to address prejudice. For example, ADL's A World of Difference Institute, founded in Boston in 1985 and now operating in over 30 cities, provides training and educational programming about the roots and consequences of prejudice. A World of Difference combines specially produced television programming, public service announcements, teacher training, curriculum materials, community-based projects, and video resource materials designed to help children and adults explore issues of prejudice and diversity. To date, more than 400,000 elementary and secondary school teachers nationwide have been trained to address prejudice and to better value diversity. 35 Many of the League's best programs and hate crime prevention initiatives are highlighted in Hate Crimes: ADL Blueprint for Action, a publication originally prepared for distribution at the 1997 White House Conference on Hate Crime and recently updated and expanded. 36 In 1993, the Commerce Department's National Telecommunications and Information Ad- ministration (NTIA) published an early study on the connection between broadcast hate and hate violence (National Telecommunications and Information Administration, U.S. Department of Commerce, The Role of Telecommunications in Hate Crimes (Dec. 1993)). The issue of the impact of hate on the Internet is worthy of further study. The global nature of the Internet

187 Citizens' Commission onCivilRights -

permits the Web to reach a worldwide audience in a simple and inexpensive manner. Many traditional hate groups, like the Ku Klux Klan and other white supremacist groups, have already established anonymous fundraising and propaganda websites, many designed to appeal to young, impressionable youth. While the use of the Internet by cyberhaters, racists, Holocaust deniers, and organized hate groups is disturbing, ADL believes strongly that censorship is not the best way to confront these messages. Rather, the Internet must be closely monitored, with people of goodwill and organizations exposing bigots and countering lies and distortions with accurate information. For more information on this issue, see Anti-Defamation League, Poisoning the Web: Hatred Online (1999), and Anti-Defamation League, Combating Extremism in Cyberspace: The Legal Issues Affecting Internet Hate Speech (2000).

188

Citizens' Commission onCivilRights Chapter 14 Racial Disparities in the American Criminal Justice System by Ronald Weich and Carlos Angulo*

Introduction In 1965 Congress passed the Voting Rights Act. Yet today, 31% of all black In many ways, the United States has made men in Alabama and Florida are perma- significant progress over the last half cen- nently disenfranchised as a result of tury toward the objective of ensuring equal felony convictions. Nationally, 1.4 million treatment under law for all citizens. But in black men have lost the right to vote un- one critical arena criminal justice ra- der these laws. cial inequality is growing, not receding. Our In 1968 Congress passed the Fair Hous- criminal laws, while facially neutral, are ing Act. Yet today, the current housing enforced in a manner that is massively and for approximately 2 million Americans pervasively biased. The injustices of the two-thirds of them African American or criminal justice system threaten to render Hispanic is a prison or jail cell. irrelevant 50 years of hard-fought civil rights progress. Our civil rights laws abolished Jim Crow laws and other vestiges of segregation In 1964 Congress passed the Civil Rights and guaranteed minority citizens the Act prohibiting discrimination in employ- right to travel and utilize public accom- ment. Yet today, three out of every ten modations freely. Yet today, racial pro- African American males born in the Unit- filing and police brutality make such ed States will serve time in prison, a sta- travel hazardous to the dignity and tus that renders their prospects for le- health of law-abiding black and Hispanic gitimate employment bleak and often citizens. bars them from obtaining professional licenses.

This chapter is adapted from a report the authors prepared for the Leadership Conference on Civil York County, Special Counsel to the U.S. Sentencing Rights and the Leadership Conference Education Commission, and Chief Counsel to Senator Edward Fund entitled Justice on Trial: Racial Disparities M. Kennedy on the U.S. Senate Judiciary Com- in the American Criminal Justice System (2000). mittee. Carlos Angulo is an associate at Zuckerman Ronald Weich is a partner in the Washington, D.C., Spaeder LLP. He previously served in the law firm of Zuckerman Spaeder LLP. He previously Department of Justice and as Counsel to Senators served as an Assistant District Attorney in New Paul Simon and Paul Sarbanes.

189 Citizens' Commission onCivilRights -

The system by which lawbreakers are ap- ties, and most minorities are not criminals prehended and punished is one of the pil- indeed, less than 10% of all black Ameri- lars of any democracy. But for that system cans are even arrested in a given year. Yet to remain viable, the public must be confi- the unequal targeting and treatment of mi- dent that at every stage of the process norities at every stage of the criminal jus- from the initial investigation of a crime by tice process from arrest to sentencing the police officer walking a beat to prosecu- reinforces the perception that drives the in- tion and punishment individuals in like equality in the first place, with the unfair- circumstances are treated alike, consistent ness at every successive stage of the process with the Constitution's guarantees of equal compounding the effects of earlier injustices. treatment under the law. The result is a vicious cycle that has evolved Today, our criminal justice system strays into a self-fulfilling prophecy: More minor- far from this ideal. Blacks, Hispanics and ity arrests and convictions perpetuate the other minorities are victimized by dispropor- belief that minorities commit more crimes, tionate targeting and unfair treatment by which in turn leads to racial profiling and police and other front-line law enforcement more minority arrests. officials; by racially skewed charging and Racial disparity in the criminal justice sys- plea bargaining decisions of prosecutors; by tem may be the most profound civil rights discriminatory sentencing practices; and by crisis facing America in the new century. It the failure of judges, elected officials, and undermines the progress we have made over other criminal justice policymakers to re- the past five decades in ensuring equal treat- dress the inequities that become more glar- ment under the law and calls into doubt our ing every day. national faith in the rule of law. Racial disparities affect both innocent and This chapter examines the systematically guilty minority citizens. There is obvious unequal treatment of black and Hispanic reason to be outraged by the fact that inno- Americans and other minorities as compared cent minority citizens are detained by the to their similarly situated white counter- police on the street and in their cars far more parts within the criminal justice system. But than whites. But there must also be outrage it does not propose less public safety or in- about the disparate treatment of minority effective law enforcement. The issue is not citizens who have violated the law. A defen- whether to be tough on crime, but rather dant surrenders many civil rights upon con- whether to be fair and smart in the course viction, but equal protection of the laws is of being tough on crime. There is no contra- not one of them. diction between effective law enforcement and The unequal treatment of minorities in our the promotion of civil rights. criminal justice system manifests itself in a mushrooming prison population that is overwhelmingly black and Hispanic; in the de- I. Race and the Police cay of minority communities that have given up an entire generation of young men to The disparate treatment of minorities in prison; and in a widely held belief among the American criminal justice system begins black and Hispanic Americans that the crimi- at the very first stage of that system: the in- nal justice system is deserving neither of vestigation of suspected criminal activity by trust nor of support. law enforcement agents. Police departments Enforcement of criminal laws based on ra- disproportionately target minorities as cial generalizations is not rational: The ma- criminal suspects, skewing at the outset the jority of crimes are not committed by minori-

Do Citizens' Commission onCivilRights ..-

racial composition of the population ulti- Unfortunately, that discretion is routinely mately charged, convicted and incarcerated. exercised through the prism of race. The And too often the police employ tactics practice of racial profiling that is, the iden- against minorities that simply shock the con- tification of potential criminal suspects on science. the basis of skin color or accent is perva- There is no reason to believe that overt sive. racism or bigotry is more prevalent among For example, a growing body of statistical police officers than among other profession- evidence demonstrates that black motorists als. To be sure, there have been highly pub- are disproportionately stopped for minor licized instances of such bigotry, such as the traffic offenses because the police assume annual "Good 01' Boys Roundup" for law en- that they are more likely to be engaged in forcement personnel in eastern Tennessee, more serious criminal activity. This ironi- which, when investigated in 1995, was found cally labeled "driving while black" syndrome' to feature a Redneck of the Year contest, has two deleterious effects. It causes a large performances in blackface, the wearing of number of innocent black drivers to be sub- masks in the likeness of Martin Luther King, jected to the hassle and humiliation of po- Jr., with a bullet hole in the face, and the lice questioning, and it results in a lopsided display of a banner entitled "Nigger Check number of blacks being arrested for nonvio- Point." But such blatant prejudice is always lent drug crimes that would not come to the roundly condemned when it comes to light. attention of authorities but for the racially In contrast, the racial generalizations that motivated traffic stop. inform policing strategies in America today The practice is widespread: are subtle, deeply rooted, and difficult to eradicate. Under a federal court consent decree, traffic stops by the Maryland State Po- A. Racial Profiling and the lice on Interstate 95 were monitored. In Assumptions That Drive It the two-year period from January 1995 to December 1997, 70% of the drivers stopped and searched by the police were Some crimes are brought to the attention black, while only 17.5% of overall driv- of the police by circumstances (e.g., a dead ers as well as overall speeders were body) or by bystanders who witness it. But black.' very often the police seek to uncover criminal activity by investigation. They patrol the In Volusia County, Florida, in 1992, streets looking for activity they think is sus- nearly 70% of those stopped on a particu- picious, they stop cars for traffic violations lar Interstate highway in central Florida in the hope of discovering more serious were black or Hispanic, although only 5% criminality, and they engage in undercover of the drivers on that highway were black operations in an effort to uncover crimes, like or Hispanic. Moreover, minorities were drug trafficking and prostitution, without detained for longer periods of time per complaining witnesses. Each of these police stop than whites, and were 80% of those tactics involves the exercise of a substantial whose cars were searched after being amount of discretion the police decide who stopped.3 they consider suspicious, which cars to tail, what conduct warrants further investiga- A study of traffic stops on the New Jer- tion, and which neighborhoods are ripe for sey Turnpike found that 46% of those enforcement activity. stopped were black, although only 13.5%

191 Citizens' Commission onCivilRights i Chapter 14 Part Two: Criminal Justice

of the cars on the road had a black driver lice Department and the U.S. Border Patrol. or passenger and although there was no According to a study conducted by the Ari- significant difference in the driving pat- zona Attorney General's office, local police terns of white and non-white motorists.4 and U.S. Border Patrol officials implementing Operation Endeavor "without a doubt .. In 1992, as part of a report by the ABC .stopped, detained, and interrogated [Chan- news program "20/20," two cars, one filled dler residents]...purely because of the color with young black men, the other with of their skin."' Similarly, in Katy, Texas, the young white men, navigated the same INS and officers from the Katy Police De- route, in the same car, at the same speed partment conducted a joint operation through Los Angeles streets on succes- whereby they stopped and detained cars sive nights. The car filled with young driven by individuals of "Hispanic appear- black men was stopped by the police sev- ance," conducted street sweeps in which His- eral times; the white group was not panics were the only ones targeted or ques- stopped once, despite observing police tioned, and undertook searches of Hispanic cars in their immediate area at least 16 residences.' times during the evening.' Racial profiling is seemingly inconsistent with today's dominant law enforcement phi- Even the United States government has losophy: community policing. But community facilitated racial profiling. The Volusia policing is still a vague and elastic concept. County highway interdiction program dis- At its best, community policing refers to a cussed above is part of a network of drug in- more diverse police force working with com- terdiction programs established and funded munity institutions to prevent crime before by federal authorities under the name "Op- it occurs. For example, Boston's anti-gang eration Pipeline." And it was the Drug En- efforts have featured after-school programs forcement Agency that encouraged New for high-risk students and a constructive Mexico state police to use a "cocaine courier partnership between the police and crime profile," one element of which was that "[t]he prevention agencies. In such places, commu- vehicle occupants are usually resident aliens nity policing deserves credit for helping to from Colombia."' reduce crime rates. The immigration law context furnishes fur- But too often, community policing is just a ther evidence of widespread racial profiling. label, a slogan to attract federal grants and A recent study by the National Council of La favorable headlines. In some jurisdictions, Raza identified a pattern of selective enforce- community policing means little more than ment of U.S. immigration laws by the Immi- giving street-level officers wide discretion gration and Naturalization Service (INS) and to "clean up" the communities they patrol local officials, whereby individuals of iden- by whatever means seem expedient. Thus, tifiably Hispanic origin including many community policing may come to mean "qual- who were American citizens, legal perma- ity of life" policing, under which the police nent residents, or otherwise lawfully in the adopt a zero-tolerance approach to minor United States were targeted by the au- violations of law. Such an ends-justify-the- thorities and subjected to interrogation, de- means approach invariably works to the det- tention, or arrest for suspected immigration riment of and is disproportionately tar- violations. geted at black and Hispanic populations. One of many examples of such targeting Professor David Cole has pointed out that was "Operation Restoration" in Chandler, such an enforcement strategy "relies heavily Arizona, a joint endeavor of the Chandler Po- on inherently discretionary police judgments

1 92 Citizens' Commission onCivilRights -

about which communities to target, which the same per capita for black and white mo- individuals to stop, and whether to use torists. Similarly, a nationwide study by the heavy-handed or light-handed treatment for U.S. Customs Service revealed that while routine infractions."9 According to Professor over 43% of those subjected to searches as Angela Davis, "[t]he practical effect of this part of the Service's drug interdiction efforts deference [to law enforcement discretion] is were black or Hispanic, the "hit rates" for the assimilation of police officers' subjective those groups per capita were lower than for beliefs, biases, hunches, and prejudices into white Americans.'5 And according to the con- law,"1° and the evidence suggests that such gressional General Accounting Office (GAO), discretion is exercised to the detriment of while black female U.S. citizens were nine America's minorities. times more likely to be subjected to x-ray Some continue to defend racial and ethnic searches by U.S. Customs Officials than profiling by law enforcement as a rational white female U.S. citizens, these black response to patterns of criminal conduct. women were less than half as likely to be Such arguments rest implicitly or explicitly found carrying contraband as white fe- on two basic assumptions, each of which is males.16 flawed, pernicious, and divisive. The harms caused by racial profiling ex- The first assumption is that minorities tend beyond racial division and distrust. In commit the majority of crimes and that there- effect, racial profiling becomes a self-fulfill- fore it is a sensible use of police resources to ing prophecy. As noted by Professor David focus on the behavior of those individuals. Harris, a leader in identifying the "driving This attitude was epitomized by Carl Will- while black" phenomenon: iams, Superintendent of the New Jersey State Police until his dismissal in March Because police will look for drug crime 1999, who stated in defense of racial profil- among black drivers, they will find it dis- ing that "mostly minorities" traffic in mari- proportionatelyamongblackdrivers. juana and cocaine." Superintendent Will- More blacks will be arrested, prosecuted, iams' assumption, shared by many, is flatly convicted, and jailed, thereby reinforcing incorrect with respect to those crimes most the idea that blacks constitute the major- commonly investigated through racial pro- ity of drug offenders. This will provide a filing drug crimes.12 Blacks commit drug continuing motive and justification for offenses at a rate proportional to their per- stopping more black drivers as a rational centage of the U.S. population: black Ameri- way of using resources to catch the most cans represent approximately 12 to 13% of criminals.17 the U.S. population, and, according to the most recent federal statistics, 13% of all drug And, indeed, this prophecy has come to users.° And for the past 20 years, drug use pass. Despite the fact that, as noted earlier, rates among black youths have been consis- blacks are just 12% of the population and tently lower per capita than drug use rates 13% of the drug users, and despite the fact among white youths!' that traffic stops and similar enforcement Findings related to the "driving while strategies yield equal arrest rates for minori- black" phenomenon and other forms of ra- ties and whites alike, blacks are 38% of those cial profiling lead to the same conclusion. arrested for drug offenses and 59% of those While black motorists were disproportion- convicted of drug offenses.18 Moreover, more ately stopped by Maryland State Police on I- frequent stops, and therefore arrests, of mi- 95, the instances in which drugs were actu- norities will also result in longer average ally discovered in the stopped vehicles were

193 Citizens'Commission onCivilRights prison terms for minorities because patterns ees to lie down on the floor, and dragged of disproportionate arrests generate more Gomez' secretary across a room by her hair. extensive criminal histories for minorities, The raid, based on an anonymous tip, uncov- which in turn influence sentencing out- ered no illegal activity.21 comes." In each case the questions linger: Would Diallo's actions have generated suspicion if B. Violent Consequences of Race- he had not been black, and would the offic- Based Policing ers who shot him have seen a gun where there was only a wallet if he had been white? Would the officers who approached Doris- Police tactics based on racial assumptions mond simply have left him alone, or walked are not only unfair to minorities; they actu- away from a fight, if Dorismond had not been ally place minorities in physical danger. In of Haitian descent? Would an anonymous tip recent years, several highly publicized po- about a white business owner been treated lice shootings appeared to result from the like the tip that caused an armed raiding police acting on unjustified racial generali- party to descend on Rafael Gomez? zations. There is little doubt that these tragedies Amadou Dia llo was a young black man liv- were the consequence of a law enforcement ing in a predominantly minority neighbor- culture that encourages suspicion of minori- hood in New York City. On the night of Feb- ties. The same assumptions that lead police ruary 4, 1999, Dia llo was approached by four to engage in disproportionate stops of mi- police officers as he stood by the front steps nority drivers and minority pedestrians led of his apartment building. He reached for his police to .assume the worst about Dia llo, wallet to produce identification. The offic- Dorismond, and Gomez. These cases made ers mistook this action as reaching for a headlines in the cities in which they oc- weapon and fired 41 gunshots, killing Dia llo. curred. Countless incidents that do not re- On March 16, 2000, soon after the officers sult in death or wildly unsuccessful police who shot Amadou Dia llo were acquitted of raids occur every day and escape public no- criminal charges, a 26-year-old black man tice. But they contribute to a well-grounded named Patrick Dorismond was trying to hail fear among minorities that the police will a cab on a midtown Manhattan street corner assume the worst about them, and on a dark when he was approached by three under- street corner that assumption can be fatal. cover police officers who, without apparent reason to believe that Dorismond was a drug dealer, tried to buy drugs from him. C. Race and Police Misconduct Dorismond became angry, and in the ensu- ing fight Dorismond was shot and killed by The unequal treatment of minorities by the police.20 law enforcement officials extends beyond Hispanics have also been the victims of vio- racially based traffic stops and profiling. lence associated with racial profiling. On Minority citizens are also the prime victims April 25, 1997, a factory in Salt Lake City of police brutality and corruption. Such mis- owned by an American citizen, Rafael Gomez, conduct is unacceptable in any form, but it was the subject of a police raid in which 75 is doubly offensive when it flows from atti- heavily armed police officers brandished tudes about race that are contrary to our rifles and pistols, struck Gomez in the face cominitment to equal justice and the rule of with a rifle butt, pointed a gun at his six- law. year-old son, ordered the 80 factory employ-

190 194 Citizens'Commission onCivilRights Part Two: Criminal Justice Chapter 14

In Los Angeles, authorities uncovered mas- misperceptions that have justified every- sive police corruption centered in the anti- thing from pretextual traffic stops to the gang unit of the Rampart division a po- entirely unjustified beatings and abuse of lice station located in one of the city's poor- innocent individuals.24 Second, both profil- est neighborhoods. The investigation re- ing and police misconduct contribute to the vealed that officers in that unit manufactured belief shared to one degree or another by evidence and perjured themselves to pro- Americans of all races and ethnicities that duce convictions, thousands of which could the police do not treat black and Hispanic be affected by the revelations; routinely en- Americans in the same manner as they do gaged in police brutality to intimidate their white Americans, and that the promise of victims; participated in the drug trade; and fair treatment enshrined in the Constitution used the Immigration and Naturalization has limited application when police confront Service to deport anti-police witnesses, in a black or brown face. violation of Los Angeles city policy. 22 As part of their abuse of the immigration laws, the officers allegedly compiled a list of more II. Race and Prosecutorial than 10,000 Hispanics whom they believed to be deportable, effectively placing an en- Discretion tire community under suspicion on the basis of its racial composition. Racial profiling and other enforcement General patterns of misconduct similar to strategies begin the insidious process by the Los Angeles scandal have been revealed which minorities are disproportionately in New York, where the Mollen Commission caught up in the criminal justice system. But uncovered widespread brutality and corrup- such disparities do not end at the point a tion in the Bronx directed largely at blacks suspect is arrested. At every subsequent and Hispanics, and in Philadelphia, where stage of the criminal process from the first similar patterns of misconduct were found plea negotiations with a prosecutor to the to persist in the predominantly black neigh- imposition of a prison sentence by a judge borhood of North Philadelphia. To name the subtle biases and stereotypes that cause these cities is not to ignore the breadth of police officers to rely on racial profiling are police abuse and misconduct that occurs compounded by the racially skewed decisions throughout the country. Indeed, in a nation- of other key actors. wide poll, 59% of respondents believed that Prosecutors occupy a central role in police brutality is common in some or most American criminal justice. They represent communities in the United States, and 53% the public in the solenm process of holding of respondents believed that police are more accountable those who violate society's rules. likely to use excessive force against black or That task carries with it substantial un- Hispanic suspects than against white sus- checked discretion. The threshold decision pects.23 of whether to bring charges against a sus- Practices like racial profiling and the ac- pect, and, if so, which charges are appropri- tions uncovered by the Mollen Commission ate, is almost never subject to review by a and in the Rampart investigations are re- court. The subsequent decision to enter into lated. First, they all proceed in large part a plea agreement is reviewable at the mar- from the twin misperceptions that (1) blacks gins because courts may reject plea agree- and Hispanics commit most crimes, and (2) ments under certain circumstances. But in most blacks and Hispanics commit crimes practice, prosecutors decide who will be

195 Citizens'Commission onCivilRights -

granted the leniency that a plea bargain rep- found, 20% of white defendants charged with resents. crimes providing for the option of diversion Prosecutorial discretion is most dramati- received that benefit, while only 14% of simi- cally exercised in the area of sentencing. larly situated blacks and 11% of similarly Traditionally, sentencing has been a judicial situated Hispanics were placed in such pro- prerogative, but, as will be explained, the grams. 27 advent of mandatory minimum sentencing Related to the decision to decline prosecu- laws and sentencing guideline systems has tion is the decision to charge the defendant shifted in large measure the power to deter- in state or federal court. This choice is pre- mine punishment from judge to prosecutor. sented when jurisdiction over the crime re- Even where judges retain ultimate author- sides concurrently in state and federal court, ity to impose sentence, a prosecutor's sen- as in many drug cases. The police may make tencing recommendation will carry great an initial decision of whether to bring the weight. Prosecutors today enjoy more power evidence to state or federal prosecutors (a over the fate of criminal defendants than at discretionary call that may itself be influ- any time in our history.25 enced by racial considerations), but the au- Regrettably, the evidence is clear that thority to determine that a defendant will prosecutorial discretion is systematically be federally prosecuted rests with federal exercised to the disadvantage of black and prosecutors. Typically they will decline to Hispanic Americans. Prosecutors are not, by prosecute the defendant in federal court if and large, bigoted. But as with police activ- the case does not seem "serious" enough or ity, prosecutorial judgment is shaped by a if the defendant does not seem to pose a sig- set of self-perpetuating racial assumptions. nificant threat to public safety. Obviously these are not scientific judgments rather A. The Decision To Prosecute they are exercises of discretion informed by predictions, hunches, and preconceptions, The first and most basic prosecutorial de- some of which are racially tinged. cision is whether to pursue a particular The decision of whether to prosecute a criminal case at all.26 Prosecutors have the drug case in federal court has important con- authority to decline prosecution altogether, sequences for the defendant because federal or to authorize diversion, under which sentences are notoriously harsher than state completion of drug treatment or community sentences. Federal parole was abolished in service results in the dismissal of the 1987, and federal drug convictions fre- charges. But such displays of prosecutorial quently result in lengthy, mandatory sen- mercy appear to be exercised in a manner tences. Moreover, if the prosecutor includes that disproportionately benefits whites. in the indictment charges carrying manda- In 1991 the San Jose Mercury News re- tory penalties and then refuses to permit a viewed almost 700,000 criminal cases from plea to other charges, the defendant has no California between 1981 and 1990 and un- opportunity to undergo drug treatment as covered statistically significant disparities an alternative to imprisonment, since fed- at several different stages of the criminal eral law does not offer judges that option. justice process. Among the study's findings According to the U.S. Sentencing Commis- was that 6% of whites, as compared to only sion, federal courts in 1990 sentenced drug 4% of minorities, won "interest of justice" dis- traffickers to an average of 84 months in missals, in which prosecutors dropped a prison, without possibility of parole. By con- criminal case entirely. Moreover, the study trast, state courts in 1988 sentenced drug traffickers to an average maximum sentence

1 96 Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 14

of 66 months, resulting in an average time prised more than 50% of those who had ever served of only 20 months." used crack and about one-third of those who That the prosecutorial decision to bring could be termed "frequent users."32 charges in federal, rather than state, court The reality is that many black defendants is often exercised to the detriment of minori- prosecuted in federal court are not high-vol- ties is best demonstrated by statistics on ume traffickers. According to Los Angeles crack cocaine prosecutions. In 1986 Congress federal district judge J. Spencer Letts, "those enacted especially harsh mandatory mini- high in the chain of drug distribution are mum penalties for these offenses. From 1988 seldom caught and seldom prosecuted." U.S. to 1994, hundreds of blacks and Hispanics District Court Judge Consuelo B. Marshall but no whites were prosecuted by the has observed: "We do see a lot of these [crack] United States Attorney's office with jurisdic- cases and one does ask why some are in state tion over Los Angeles County and six sur- court and some are being prosecuted in fed- rounding counties.29 The absence of white eral court...and if it's not based on race, crack defendants in federal court could not what's it based on?"33 be ascribed to a lack of whites engaged in The crack/powder cocaine sentencing di- such conduct; during the 1986-1994 period, vide remains unresolved. In 1995, the U.S. several hundred whites were prosecuted in Sentencing Commission recommended to California state court for crack offenses." Congress that the sentencing guidelines be National statistics tell the same story: altered to eliminate the differences in crack From 1992 to 1994, approximately 96.5% of and cocaine sentencing thresholds, noting all federal crack prosecutions were of non- both the inequality inherent in these differ- whites. A 1992 U.S. Sentencing Commission ences and the cynicism they engender in Report determined that only minorities minority communities.34 Nonetheless, Presi- were prosecuted for crack offenses in over dent Clinton proposed, and Congress half of the federal judicial districts that passed, legislation rejecting the Commis- handled crack cases. And during that period, sion's proposed changes." The Commission in New York, Texas, California, and Penn- has since revisited the issue and has recom- sylvania combined, eight whites were con- mended a reduction, not an elimination, in victed of crack offenses; the number of white the current 100-to-1 disparity, noting again crack defendants convicted in Denver, Bos- that "[t]he current penalty structure results ton, Chicago, Miami, Dallas, and Los Ange- in a perception of unfairness and inconsis- les combined was zero, compared to thou- tency."36 Congress has never acted on this sands of convictions of black and Hispanic recommendation. crack offenders.31 These discrepancies are remarkable be- B. Charging Decisions and Plea cause the crack epidemic knew no racial Bargaining bounds. Despite stereotypes perpetuated by the media and popular culture, government Once a prosecutor decides to bring charges statistics show that more whites overall used crack than blacks. According to the National against an individual, plea negotiations Institute on Drug Abuse, between 1991 and present the next opportunity for a prosecutor to grant some degree of leniency to a de- 1993 whites were twice as likely to have used crack nationwide as blacks and Hispanics fendant or to insist on maximum punish- combined. Crack use was somewhat more ment.37 Prosecutors have virtually unlimited concentrated in minority communities, but discretion to enter into an agreement by in Los Angeles, for example, whites corn- which the defendant will plead guilty in ex-

197 Citizens'Commission onCivilRights Chapter 14 Part Two: Criminal Justice

change for the dismissal of certain charges often than they offered such deals to blacks or a reduced sentence, and once again the or Hispanic defendants.4' exercise of discretion is characterized by racially disparate results.38 C. Bail The San Jose Mercury News report discussed above revealed consistent discrepan- Ailother turning point in the criminal jus- cies in the treatment of white and non-white tice process, one that can mean the differ- criminal defendants at the pretrial negotia- ence between freedom and incarceration for tion stage of the criminal process. During criminal defendants, is bail determination. 1989-1990, a white felony defendant with no While the decision to set bail is ultimately a criminal record stood a 33% chance of hav- judicial function, prosecutors play an impor- ing the charge reduced to a misdemeanor or tant role in determining whether a criminal infraction, compared to 25% for a similarly defendant will be released on bail or de- situated black or Hispanic. Between 1981 tained in jail prior to trial by recommending and 1990, 50% of all whites who were ar- detention or release. rested for burglary and had one prior offense A New York State study examined the ex- had at least one other count dismissed, as tent to which black and Hispanic criminal compared to only 33% of similarly situated defendants were treated differently from blacks and Hispanics. Blacks charged with similarly situated white criminal defendants a single offense received sentencing en- with respect to pretrial detention and con- hancements in 19% of the cases, whereas cluded that, statewide, minorities charged similarly situated whites received such en- with felonies were detained more often than hancements in only 15% of the cases.39 white defendants charged with felonies. In- Statistics from other jurisdictions confirm deed, the study found that 10% of all minori- that prosecutorial discretion may result in ties held in jail at felony indictment in New disparate treatment of minorities and York City, and 33% of all minorities held in whites. The state of Georgia has a "two jail at felony indictment in the rest of New strikes, you're out" law, under which a life York State, would be released before ar- sentence may be imposed for a second drug raignment if minorities were detained as offense. Under the Georgia scheme, the often as comparably situated whites.42 state's district attorneys have unfettered Another study reviewed bail determina- discretion to seek this penalty. As of 1995, tions for criminal defendants in New Haven, life imprisonment under the "two strikes" Connecticut, and concluded that the bail law had been imposed on 16% of eligible rates set for black defendants exceeded those black defendants, while the same sentence set for similarly situated white defendants. had been imposed on only 1% of eligible In short, the study concluded, lower bail white defendants. Consequently, 98.4% of rates could have been set for black defen- those serving life sentences under Georgia's dants without incurring the risk of flight that "two strikes, you're out" law are black.4° bail rates are designed to avoid.43 And fed- Statistics in federal court mirror the ex- eral statistics indicate that while non-His- periences in these states. A U.S. Sentencing panics are likely to be released prior to trial Commission report found that, for compa- in 66% of cases, Hispanics are likely to be rable behavior, prosecutors offered white released only 26% of the time.44 defendants plea bargains that permitted the Bail status not only determines whether imposition of sentences below what would the defendant is to be incarcerated before otherwise be the statutory minimum more trial, it also bears on the likelihood of con-

198 Citizens' Commission onCivilRights ..-

viction. Although jurors are not supposed to have received the death penalty had they know whether the defendant has been jailed killed a black person.49 before trial, they can often discern the Second, while some of the evidence con- defendant's bail status and are more likely cerning the death penalty reveals that the to convict a defendant who has already been race of the defendant alone does not result incarcerated.45 Here again, one racial dispar- in unwarranted disparity,50 other evidence ity begets disparity further along in the jus- is to the contrary. It is at least true that the tice system. race of the defendant, when combined with the race of the victim, yields significant dis- D. The Death Penalty parities in the application of the death penalty. The Baldus study concluded that blacks Thirty-eight states and the federal govern-who killed whites were sentenced to death ment authorize capital punishment. In each 22 times more frequently than blacks who of those jurisdictions it is the prosecutor who killed blacks and seven times more fre- makes the critical decision of whether or not quently than whites who killed blacks. Again, to seek death. That decision is guided some- this discrepancy appears to hinge on the ex- what by statutory aggravating and mitigat- ercise of prosecutorial discretion. Georgia ing factors, but many of these factors, such prosecutors sought the death penalty in 70% as the heinousness of the crime, are subjec- of the cases involving black defendants and tive. Judges and juries may eventually re- white victims, while seeking the death pen- ject a prosecutor's request that the death alty in only 19% of the cases involving white penalty be imposed, but prosecutors alone defendants and black victims and only 15% decide whether death is an option.46 of the cases involving black defendants and The importance of race as a factor in the black victims.51 imposition of capital punishment is well Statistics on the imposition of the federal documented. First, the evidence reveals dis- death penalty are similarly disturbing. In parity in the application of the death pen- 1988, Congress enacted the first federal alty depending on the race of the victim. In- death penalty provision in the aftermath of dividuals charged with killing white victims Furman. The 1988 law authorized the death are significantly more likely to receive the penalty for murders committed by those in- death penalty than individuals charged with volved in certain drug-trafficking activities killing non-white victims. Of numerous stud- under 21 U.S.C. § 848. From 1988 to 1994, ies of death penalty outcomes reviewed by 75% of those convicted under 21 U.S.C. § 848 the GAO, 82% found that imposition of the were white. However, of those who were the death penalty was more likely in the case of subject of death penalty prosecutions under a white victim than in the case of a black vic- that law in the same period, 89% were His- tim.47 One of the most thorough death pen- panic or black (33 out of 37) and only 11% (4 alty studies, conducted by Professors David out of 37) were white.52 Baldus, Charles Pulaski, and George Wood- It appears that race explicitly influences worth, found that defendants charged in the administration of capital punishment in Georgia with killing white victims were 4.3 some jurisdictions. The recent case of Sal- times more likely to receive the death pen- dano v. Texas presents an astonishing ex- alty than defendants charged with killing ample of race-based sentencing and the self- black victhns.48 The Baldus study also found perpetuating nature of racial disparities in that more than 50% of those sentenced to the criminal justice system. At the capital death for killing a white person would not sentencing hearings for Saldano and other defendants, Texas prosecutors relied upon

199 Citizens'Commission onCivilRights i -

the expert opinion of a psychiatrist who, ac- A. Brief History of U.S. Sentencing cording to the Texas Court of Criminal Ap- peals: Policy

[T]estified about statistical factors which In the late 18th and early 19th century, have been identified as increasing the federal and state legislators typically set probability of future dangerousness. He mandatory penalties for violations of law. noted that African Americans and His- But more enlightened penological views soon panics are over-represented in prisons gained favor, and judges were granted dis- compared to their representation outside cretion to sentence offenders to a range of of prison [and] testified that because ap- punishments depending upon the severity pellantis Hispanic, this was a factor of the crime and the character of the defen- weighing in the favor of future dangerous- dant. ness.53 At several points in this century, most recently in the mid-1980s, Congress and many The Texas courts found that this testimony state legislatures have enacted laws to deny was not fundamental error and upheld judges sentencing discretion. These laws Saldano's death sentence, but the U.S. Su- establish a minimum penalty that the judge preme Court vacated the judgment after must impose if the defendant is convicted Texas conceded error.54 under particular provisions of the criminal It is undeniable that prosecutors exercise code. Mandatory sentencing laws are gener- their discretion in capital and noncapital ally premised on the view that punishment cases in ways that cause racially dispropor- and incapacitation, not rehabilitation, is the tionate outcomes. Even if Saldano is an ab- primary goal of the criminal justice system. erration and most cases do not involve ex- While they deprive judges of their tradi- plicit racism, such unfairness may ultimately tional authority to impose just sentences, be more dangerous than explicitly racist be- such mandatory minimum sentencing laws havior, since it is harder to detect (both by are not truly mandatory because they pro- victim and perpetrator) and harder to eradi- vide opportunities for prosecutors to grant cate than the blatant racism most Americans exceptions to them. Prosecutors can choose have learned to reject as immoral.55 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 III.Race and Sentencing penalties will be dismissed. Under federal law only the prosecutors may grant a depar- Sentencing is arguably the most important ture from mandatory penalties by certifying stage of the criminal justice system. While that the defendant has provided "substan- policing strategies help determine who will tial assistance" to law enforcement.56 be subjected to the criminal process in the Mandatory minimum laws embody a dan- first place, and prosecutorial choices help de- gerous combination. They provide the gov- termine who will be granted leniency from ernment with unreviewable discretion to the full force of the law, sentencing is where target particular defendants or classes of de- those earlier decisions bear fruit. fendants for harsh punishment. But they provide no opportunity for judges to exercise discretion on behalf of defendants in order to check prosecutorial discretion. In

Citizens' Commission onCivilRights effect, they transfer the sentencing decision harsh punishment that the legislature has from impartial judges to adversarial pros- authorized the prosecutor to demand. ecutors, many of whom lack the experience The final policy development that has that comes from years on the bench. transformed sentencing in the last two de- At the same time that mandatory sentenc- cades is the abolition of parole in the fed- ing laws came back into vogue in the mid- eral system and in many states. Indetermi- 1980s, a separate movement to establish sen- nate sentencing, in which parole boards ex- tencing guidelines gained favor. Guidelines ercised discretion to release defendants from are a middle ground between unfettered ju- prison based on rehabilitation and good be- dicial discretion and mandatory penalties. havior, has been discarded in favor of "truth- These laws, such as the Sentencing Reform in-sentencing." Sentencing is now generally Act of 1984 at the federal level, establish a mandatory, determinate, and harsh, a vola- centralized cominission to set a presumptive tile mix that has led to dramatically in- sentencing range and to enumerate sentenc- creased prison populations. ing factors that a judge must consider. But they permit judges to depart upward or B. The Result of Tough-on-Crime downward based on unusual factors in an Sentencing Policies individual case. Interestingly, some supporters of civil rights championed mandatory sentencing Some politicians treat sentencing policy and guideline sentencing as an antidote to as an opportunity for demagoguery, but the perceived racial disparities in sentencing.57 combined effect of the various sentencing But the evidence is clear that minorities fare laws enacted in the past three decades is any- much worse under mandatory sentencing thing but rhetorical. In 1972, the population laws and guidelines than they did under a of federal and state prisons combined was system favoring judicial discretion. By de- approximately 200,000. By 1997, the prison priving judges of the ultimate authority to population approached 1.2 million, an increase of almost 500%. Similar developments impose just sentences, mandatory sentenc- at the local level led to an increase in the ing laws and inflexible guideline systems put sentencing on autopilot. jail population from 130,000 to 567,000. Thus, The mandatory sentencing movement America now houses some 2 million people reached its apex in the mid-1990s when Con- in its federal and state prisons and local jails.58 gress and many states adopted so-called "3 Prison and jail populations have not only strikes, you're out" laws. Under these stat- swelled in the last 30 years, they have also utes, defendants with two prior criminal convictions can be sentenced to life in prison, changed in character. As a result of the even if their third "strike" is for relatively nation's current "War on Drugs," which be- minor conduct. Some states, such as Geor- gan in the early 1980s, an increasingly large gia, have enacted even harsher "2 strikes" percentage of those incarcerated have been laws. But again, these mandatory laws are charged with or convicted of nonviolent drug typically invoked by prosecutors who have crimes. substantial discretion in choosing which de- Between 1980 and 1995, the number of fendants to single out for grossly dispropor- state prisoners locked up for drug crimes in- tionate punishments. Once the "3 strike" or creased by more than 1000%. Whereas only "2 strike" statute is invoked, there is often 1 out of every 16 state inmates was a drug offender in 1980, 1 out of every 4 in 1995 was nothing a judge can do to ameliorate the a drug offender. By the middle of the 1990s,

201 Citizens' Commission onCivilRights 1 -

60% of federal prison inmates had been con- Racial disparities can be found not only in victed of a drug offense, as opposed to 25% the fact of incarceration but in the length of in 1980. If local and county jail inmate popu- prison or jail time served. According to a lations are included in the calculation, there Justice Department review of state sentenc- are now some 400,000 federal and state ing, whites who serve time for felony drug prison inmates almost a quarter of the offenses serve shorter prison terms than overall inmate population serving time or their black counterparts: an average of 27 awaiting trial for drug offenses.59 Drug of- months for whites, and 46 months for blacks. fenders accounted for more than 80% of the These discrepancies are mirrored with re- total growth in the federal inmate popula- gard to nondrug crimes. Whites serve a mean tion and 50% of the growth of the state sentence of 79 months for violent felony of- prison population from 1985 to 1995.60 fenses; blacks serve a mean sentence of 107 An overly punitive crime control strategy months for these offenses. Whites serve a is unwise and ineffective for many reasons, mean sentence of 23 months for felony weap- most beyond the scope of this chapter. But ons offenses, blacks serve a mean sentence one of the chief failings of undue reliance on of 36 months for these offenses. Overall, imprisonment to solve social problems is whites in state prisons nationwide in 1994 that this approach results in serious racial served a mean time of 40 months, as com- disparities. The "tough on crime" movement pared to 58 months for blacks.64 of the past several decades have led to incarceration rates for minorities far out of D. Minority Incarceration Rates proportion to their percentage of the U.S. population. The choice of legislatures to lengthen drug sentences, combined with drug enforcement C. Racially Disparate Sentencing tactics, has had a disproportionate impact Outcomes on America's minorities.65 As the overall prison population has increased because of One of the most thorough studies of sen- the war on drugs, so too has the minority tencing disparities occurred in the New York proportion of the overall prison (and drug courts between 1990 and 1992.6' State re- offender) population. From 1970 to 1984, searchers concluded that one-third of mi- whites generally comprised approximately norities sentenced to prison would have re- 60% of those admitted to state and federal ceived a shorter or nonincarcerative sen- facilities and blacks around 40%. By 1991, tence if they had been treated like similarly these ratios had reversed, with blacks com- situated white defendants. If probation-eli- prising 54% of prison admissions versus 42% gible blacks had been treated like their white for whites.66 counterparts, more than 8,000 fewer black The changing face of the U.S. prison popu- defendants would have received prison sen- lation is due in large measure to the war on tences in that period, resulting in a 5% de- drugs: In 1985, the number of whites impris- cline in the percentage of blacks sentenced oned in the state system actually exceeded to prison.62 Nationwide, black males con- the number of blacks. Between 1985 and 1995, victed of drug felonies in state courts are while the number of white drug offenders in sentenced to prison 52% of the time, while state prisons increased by 300%, the num- white males are sentenced to prison only 34% ber of similarly situated black drug offend- of the time.° ers increased by 700%, such that there are

202 Citizens' Commission onCivilRights ..-

more than 50% more black drug offenders in Why are minorities the primary targets of the state system than white drug offenders.67 the war on drugs? Much of this discrepancy Because the overall number of imprisoned can be traced to practices such as racial pro- drug offenders has increased, and the num- filing. The assumption that minorities are ber of minorities as a percentage of that more likely to commit drug crimes and that population has increased, far more minori- most minorities commit such crimes will ties than whites are serving time for drug prompt a disproportionate number of inves- offenses as a percentage of their respective tigations, and therefore arrests, of minori- prison populations. As of 1991, 33% of all ties. Drug arrests are easier to accomplish Hispanic state prison inmates, and 25% of in impoverished inner-city neighborhoods all black state prison inmates, were serving than in stable middle-class neighborhoods, time for drug crimes, as compared to only so the insistence of politicians on more ar- 12% of all white inmates.68 rests results in vastly more arrests of poor, Minorities are disproportionately disad- inner-city blacks and Hispanics.74 vantaged by current drug policies not be- Blacks are not only targeted for drug ar- cause they commit more drug crimes, or use rests. They are also 59% of those convicted drugs at a higher rate, than white Ameri- of drug offenses and, because they are less cans. Rather, the disproportionate effect of likely to strike a favorable plea bargain with the war on drugs on minorities results from a prosecutor, 74% of those sentenced to prison three factors: First, more arrests of minori- for a drug offense. Thus, blacks are dispro- ties for drug crimes; second, overall increases portionately subject to the drug sentencing in the severity of drug sentences over the regimes adopted by Congress and state leg- past 20 years; and third, harsher treatment islatures. And these sentencing regimes, of those minority arrestees as compared to across all levels of government, increasingly white drug crime arrestees. provide for more and longer prison sen- As noted, while blacks constitute approxi- tences for drug offenders. mately 12% of the population, as well as a Mandatory minimums such as "three similar percentage of U.S. drug users, they strikes" laws result in the extended incar- constitute 38% of all drug arrestees.69 Given ceration of nonviolent offenders, who, in the demographics of the United States, there- many cases, are merely drug addicts or low- fore, far more blacks than whites per capita level functionaries in the drug trade. Indeed, are arrested for drugs, and overall increases in the first two years after enactment of in arrests affect more blacks per capita than California's "three strikes, you're out" law, whites. Indeed, by 1989, with the war on more life sentences had been imposed un- drugs in full force and overall drug arrests der that law for marijuana users than for having tripled since 1980," blacks were be- murderers, rapists, and kidnappers coming arrested for drug crimes at a rate of 1600 bined." An Urban Institute study examin- per 100,000, while whites were being ar- ing 150,000 drug offenders incarcerated in rested at one-fifth the frequency per capita state prisons in 1991 determined that 300 per 100,000.7' The statistics in certain 127,000 of these individuals 84% had U.S. cities were even more eye-catching: In no history of violent criminal activity, and Columbus, Ohio, black males accounted for half of the individuals had no criminal record 11% of the total population, and for 90% of at all." the drug arrests." In Jacksonville, Florida, black males comprised 12% of the population, but 87% of drug arrests."

203 Citizens' Commission onCivilRights 1 -

IV.Willful Judicial Blindness signaled the Court's unwillingness to confront statistical evidence of racial unfairness In this era of mandatory sentencing laws in the criminal justice process. The require- and sentencing guidelines, judges have less ment that a defendant demonstrate that ra- authoiity to affect the outcome of criminal cial bias infected his case specifically is al- cases through the exercise of judicial discre- most always an impossible test. In setting tion. Still, courts bear significant responsi- the bar so high, the Court declared, in ef- bility for the injustices suffered by minori- fect, that systemic racial bias does not offend ties in our criminal system. In the face of the Constitution. The Court candidly ex- overwhelming racial disparities created by pressed concern that overturning McCles- policing tactics, prosecutorial decision-mak- key's sentence on the grounds he presented ing, and unjust sentencing laws, courts have would have opened the door to challenges generally declined to examine or redress based on other statistical disparities in the racial inequality in the criminal justice sys- criminal justice system. But that concern is tem and have made it harder for litigants to our concern the criminal justice system is expose such flaws. awash in racial disparities. As Justice Will- The Supreme Court's consideration of iam Brennan stated in dissent, the Court's capital punishment disparities in McCleskey decision "seem[ed] to suggest a fear of too v. Kernpn exemplifies the judiciary's unwill- much justice."8° ingness to look behind the exercise of dis- The Court's reasoning in McCleskey has cretion by other criminal justice decision- been adopted in other cases where law en- makers. McCleskey, sentenced to death in forcement practices were challenged on Georgia, presented statistical evidence from grounds of racial disproportionality. The the Baldus Study, discussed earlier, that in- Georgia Supreme Court, for example, hav- dividuals charged with killing white victims ing invalidated the state's "two strikes, were far more likely to be sentenced to death you're out" law because it was disproportion- than individuals charged with killing black ately applied to blacks, reversed itself two people. Had the victim in McCleskey's case weeks later after receiving a brief signed by been black instead of white, with all other all 46 of the state's District Attorneys. The factors remaining constant, there was a 59% District Attorneys contended that the Court's chance he would have received a sentence initial decision could undermine Georgia's other than death.78 entire criminal justice system, an implicit ad- By a 5 to 4 vote, the Court upheld McCles- mission that charging and sentencing out- key's death sentence. It found that while the comes in Georgia are racially skewed. The statistical evidence cast doubt on the fair- State Supreme Court's decision reversing ness of the Georgia death penalty in general, itself relied almost exclusively on McCles- the evidence did not speak to whether capi- key.81 tal punishment was unfairly applied to The Supreme Court raised the bar for chal- McCleskey himself. In order to justify over- lenging systemic racial bias even higher in turning his death sentence, the Court held, United States v. Armstrong.82 In McCleskey McCleskey would need to demonstrate that the Supreme Court had held that a defen- his own sentence was tainted by racial con- dant claiming unfair sentencing or selective siderations, which he could not do. prosecution based on race must demonstrate McCleskey "may be the single most impor- that his case was handled differently from tant decision the Court has ever issued on similar cases involving defendants (or in the the subject of race and crime"79 because it case of the death penalty, victims) of other races. Of course, much of the information

200 .Th Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 14

bearing on this question will be in the hands plied the chokehold on 975 occasions over 5 of law enforcement officials themselves. In years, and that application of the chokehold Armstrong, the Court put this information had resulted in 16 deaths, 12 of which were out of the reach of defendants. of blacks.86 Armstrong was prosecuted for a crack co- The Court's treatment of pretextual traf- caine offense in Los Angeles. He sought to fic stops further forecloses challenges to law make an issue of the manifestly disparate enforcement practices that disproportion- treatment, discussed earlier, of white and ately burden blacks and Hispanics. In Whren black crack defendants in that jurisdiction. v. United States,87 the Court upheld a purely But the Court held that efforts to obtain pretextual traffic stop, one based on no spe- records from the U.S. Attorney's office to cific evidence of additional criminal activ- prove selective enforcement could not pro- ity. Indeed, the Court held that even if a rea- ceed absent a threshold "colorable basis" for sonable officer would not have stopped the the charge of selective prosecution. Of car in question, the mere existence of a traf- course, the government's files were neces- fic offense constituted probable cause for the sary to make that colorable showing, but the stop. As one judge wrote in a dissent criti- Court held that a defense attorney's affida- cizing such reasoning: "Given the 'multitude vit alleging the absence of federal prosecu- of applicable traffic and equipment regulations of white crack offenders was simply tions' in any jurisdiction, upholding a stop "hearsay."83 Under the Catch-22 reasoning on the basis of a regulation seldom enforced of McCleskey and Armstrong, claims of se- opens the door to ...arbitrary exercises of lective prosecution and other claims alleg- police discretion."88 ing bias in law enforcement practices remain The judiciary's use of evidentiary thresh- "available in theory, but unattainable in prac- olds and procedural barriers to foreclose tice."84 challenges to racially based law enforcement Judicially created obstacles, based on a va- has sustained a criminal process that pro- riety of legal doctrines, also prevent chal- vides, for too many Americans, "too little jus- lenges to racially tinged police tactics. For tice." The courts afford few remedies for any- example, in City of Los Angeles v. Lyons,85 thing but the most blatant (and generally out- the Supreme Court declined to issue an in- dated) forms of racial and ethnic discrimi- junction preventing the Los Angeles Police nation. Department (LAPD) from using chokeholds during routine traffic stops. Lyons had been pulled over by the police because his car had V. Race and the Juvenile a burned-out taillight. After the police officers ordered Lyons out of the car, spread his Justice System legs, subjected him to a patdown search, they applied a chokehold on him that perma- The racial disparities that characterize nently damaged his larynx and caused him criminal justice in America affect young to lose consciousness. people deeply, and cause minority youth to The Supreme Court held that Lyons lacked be overrepresented at every stage of the ju- standing to obtain an injunction against the venile justice system. Juvenile justice de- police procedure because he could not dem- serves separate consideration in this chap- onstrate that he would ever again be sub- ter because it plays an especially destruc- jected to a chokehold by the LAPD under tive role in the lives of minority communi- these circumstances. In so ruling, the court ties. overlooked evidence that the LAPD had ap-

201 Citizens' Commission onCivilRights Chapter 14 Part Two: Criminal Justice

Juvenile justice was conceived as a way to ing that drug use rates among white, black, intervene constructively in the lives of teen- and Hispanic youths are about the same, and agers in order to steer them away from the that drug use has in fact been lower among adult criminal justice system. Juvenile black youths than white youths for many courts were established throughout the years.91 Similar disparities appear in rela- United States in the early 1900s based on tion to non-drug-related crimes.92 the recognition that children are different Overrepresentation of minority youths in from adults; while children may violate the the juvenile justice system increases after law, they remain uniquely suited to rehabili- arrest. As a general matter, minority youths tation. It has long been recognized as coun- tend to be held at intake, be detained prior terproductive to label children as criminals, to adjudication, have petitions filed, be ad- because the description becomes self-fulfill- judicated delinquent, and be held in secure ing. But for many black and Hispanic chil- confinement facilities more frequently than dren, juvenile justice serves as a feeder sys- their white counterparts.93 For example, in tem into adult courts and prisons. 1995, 15% of cases nationwide involving Because the whole point of the juvenile jus- white juveniles resulted in detention, while tice system is to head off adult criminality, a 27% of cases involving black juveniles re- pillar of that system is the segregation of sulted in detention, even though whites com- children from adult prisoners. In the last prised 52%, and blacks only 45% of the en- decade, juvenile justice policy has increas- tire juvenile caseload.94 ingly blurred the distinctions between chil- The experiences of individual states are dren and adults. Many states and the fed- equally dismaying. Disproportionate con- eral government have adopted laws that per- finement of young Hispanics has been docu- mit, encourage, or require youthful offend- mented in each of the four states with the ers to be tried as adults and ultimately trans- largest Hispanic youth populations Ari- ferred into adult prison populations. Minor- zona, Texas, New Mexico, and California. In ity youth suffer most from this policy shift Ohio in 1996, minorities represented 43% of because they already bear the brunt of ra- the juveniles held in secure facilities, despite cially skewed law enforcement. representing only 14.3% of the overall state For example, black teenagers are dispro- juvenile population.95 Similarly, in Texas in portionately targeted for arrest in the war 1996, minority youths represented 80% of on drugs. In Baltimore, Maryland, 18 white those juveniles held in secure facilities, while youths and 86 black youths were arrested representing only 50% of the overall state for selling drugs in 1980. One decade later, juvenile population. A 1990 Florida study juvenile drug sale arrests had increased more determined that "when juvenile offenders than 100% overall, and the almost 5-to-1 ra- were alike in terms of age, gender, serious- cial disparity that existed a decade earlier ness of the offense which promoted the cur- had become a 100-to-1 disparity: white rent referral, and seriousness of their prior youths were arrested 13 times for selling records, the probability of receiving the drugs in 1990 less than in 1980 while harshest disposition available at each of sev- black youths were arrested 1304 times, a eral processing stages was higher for minor- 1400% increase from 1980.89 ity youth than for white youth."96 These figures reflect the broader national Black, Hispanic, and Asian American experience: From 1986 to 1991, arrests of youths are far more likely to be transferred white juveniles for drug offenses decreased to adult courts, convicted in those courts, and 34%, while arrests of minority juveniles in- incarcerated in youth or adult prison facili- creased 78%.9° All this despite data suggest- ties than white youths. A study of Los Ange-

202 (106 Citizens' Commission onCivilRights -

les County juvenile justice trends carried out nonviolent offenses."' Yet overall, in 1998, by the Justice Policy Institute (JPI) is reveal- nearly 18,000 youths spent time in adult prising. Under California law, an under-18 youth ons, and approximately 20% of these youths may be prosecuted in either juvenile court were mixed in with the adult population."2 or adult court, may either be sentenced to a Third, minority youths make up the ma- prison term in a California Youth Authority jority of those youths in the state prison sys- (CYA) facility and then perhaps transferred tem. In 1997, Hispanic and black youths to an adult facility at age 18, or given proba- made up 73% of the overall under-18 state tion. The JPI study concluded that while prison population, a 10% increase from 1985 minority youths are five times more likely figures.103 than white youths to be transferred to a CYA Fourth, the disparity between the num- facility by a juvenile court (a disturbing dis- bers of minority and white youths in state parity in and of itself), they are ten times prisons is increasing, especially for drug of- more likely to be placed in CYA facilities by fenses. In 1985, the number of black youths an adult criminal court. The study found that held in state prisons for drug offenses was although minority youths comprised 75% of 1.5 times greater than the number of white California's juvenile justice population, they youths imprisoned for the same offenses. By comprised almost 95% of all cases found "un- 1997, the number of black juvenile drug of- fit" for juvenile court and transferred to fenders in state prisons was over 5.3 times adult court.97 greater than the number of imprisoned Several national trends parallel the Cali- white juvenile drug offenders.104 fornia experience: "tough-on-crime" juvenile Finally, minority youths are involved in justice policies are in vogue, and minority an increasing number of the cases trans- youths are the primary targets of these poli- ferred from juvenile to adult court: the num- cies. ber of cases involving white youths that were First, the overall under-18 population in transferred from juvenile to adult courts in- state prisons is increasing. In 1985, 3,400 creased approximately 50% between 1985 youths were admitted to state prisons; by and 1994; transferred cases involving black 1997, the number was 7,400, more than youth increased almost 100% and are now double the prior total. This increase was approximately half of all transferred cases, more pronounced than the increase in ar- despite the much smaller percentage of black rests during that time. For every 1,000 ar- youth in the overall juvenile population."' rests for violent crimes by under-18s, 33 And cases involving black juveniles were al- youths were incarcerated in 1997, as com- most twice as likely to be transferred to adult pared to 18 in 1985.98 criminal court as cases involving white ju- Second, the number of cases transferred veniles, principally because of the relatively from juvenile courts to adult courts has in- large number of transferred (nonviolent) creased 70% in a decade, from 7,200 in 1985 drug cases involving black juveniles."' to 12,300 in 1994.99 The prison terms served Federal policy toward juveniles already by these youths have also increased, from a disproportionately impacts some minority mean minimum term in 1985 of 35 months to groups. Because crimes committed on In- a mean minimum term in 1997 of 44 dian reservations often fall within federal months.10° Contrary to contentions that this jurisdiction, Native American youths who development reflects a surge of violent crimi- engage in minor criminal conduct that ordi- nal activity by America's youth, approxi- narily would be prosecuted in state court mately two-thirds of the youths prosecuted instead face federal prosecution and federal in adult court in 1996 were charged with penalties that, as described, are often far

) ti 203 Citizens' Commission onCivilRights -

harsher than those imposed in state court. mit crimes. Although empirically false, these For this reason, approximately 60% of youths perceptions cause a disproportionate share in federal custody are Native American.107 of law enforcement attention to be directed Disabled children are also disadvantaged in at minorities, which in turn leads to mo're the juvenile justice system because they may arrests of blacks and Hispanics. Dispropor- lose their statutory entitlement to individu- tionate arrests fuel prosecutorial and judi- alized education programs upon being trans- cial decisions that disproportionately affect ferred to adult facilities. minorities and result in disproportionate in- The fear of crime by minority youths will carceration rates for minorities. The accu- lead to policies that breed crime by minor- mulated effect is to create a prison popula- ity youths, and that will justify even more tion in which blacks and Hispanics increas- aggressive efforts to bring minorities under ingly predominate, which in turn lends cre- criminal justice control. Meanwhile, efforts dence to the misperceptions that justify ra- to examine the race-based disparities that cial profiling and "tough-on-crime" policies. pervade juvenile justice in America languish. There are innumerable consequences to this vicious cycle of inequality for incarcerated minorities, for their families and VI. The Consequences of too communities, and for the continued legiti- Little Justice macy of the criminal justice system. A. The Lost Generation and Their Concerns about racial disparity in criminal justice are not new.108 But the crisis has Families grown dramatically worse in the years since the problem was first identified. Two million people are housed in Ameri- Today it is beyond debate that America's can prisons. Although they comprise less minorities are treated unfairly within the than a quarter of the U.S. population, black criminal justice system. Innocent minorities and Hispanic Americans make up approxi- are detained and interrogated more often mately two-thirds of the total U.S. prison than innocent whites. Minorities who violate population. The percentage of prisoners who the law are more likely to be targeted for are black is four times that of the percent- arrest, less likely to be offered leniency, and age of blacks in the U.S. population (49% to are subject to harsher punishment when com- 12%); the percentage of prisoners who are pared to similarly situated white offenders. Hispanic is almost twice that of the percent- Each successive measure of unequal treat- age of Hispanics in the U.S. population (17% ment compounds the prior disparities. Mean- to 10%)."9 In order to grasp the enormity of while minority youths face similar inequi- these facts, consider that: ties, and are therefore more likely than white youths to be transformed by government Almost one in three black males aged 20- policies into career criminals. 29 is on any given day under some form There is a cyclical quality to the treatment of criminal supervision either in of black and Hispanic Americans in the prison or jail, or on probation or parole.11° criminal justice system. Much of the unfairness visited upon these groups stems from As of 1995, 1 in 14 adult black males was the perceptions of criminal justice decision- in prison or jail on any given day. 111 makers that (1) most crimes are committed by minorities, and (2) most minorities com-

204 2 08 Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 14

A black male born in 1991 has a one-in- juana, or for shoplifting, may be permanently three chance of spending time in prison disenfranchised. at some point in his life. A Hispanic male Because of the disproportionately high born in 1991 has a one-in-six chance of percentage of convicted black criminals, spending time in prison.112 these laws have a disproportionate effect on blacks, reneging on the guarantees of the For every 1 black male who graduates 14th Amendment and the Voting Rights Act. from college, 100 black males are ar- As a consequence of disenfranchisement rested.113 laws, 1.4 million black men 13% of the entire adult black male population are de- Black and Hispanic America have lost a nied the right to vote. In two states, 31% of generation of young men to the criminal jus- all black men are permanently disenfran- tice system. Statistical projections suggest chised. In five states, approximately one in that future generations of minority males four men are currently disenfranchised. And will be lost unless our criminal justice po- given current rates of incarceration, in states licies are reformed. with the most restrictive voting laws, 40% The rate at which young minorities are of black men are likely to be permanently relegated to lives of incarceration and its disenfranchised in upcoming years."5 Dis- consequences serves to negate many of the enfranchisement laws furnish another ex- hard-fought gains of the civil rights move- ample of the disproportionate and lingering ment. During the last half of the 20th cen- effects of criminal justice policies on minori- tury, black Americans and other minorities ties.'16 struggled to win the right to equal opportu- The massive incarceration of black and nity in employment, housing, education, and Hispanic males also has a destabilizing ef- public accommodations. These rights are fect on their communities. It skews the male- meaningless to hundreds of thousand of mi- female ratio in those communities, increases nority prisoners and are largely unavailable the likelihood that children will not be raised to hundreds of thousands of minority ex-con- by both parents, and contributes to the frag- victs. The ability of minorities to enjoy the mentation of inner-city neighborhoods that fruits of the civil rights struggle is compro- renders the crime-race linkage a self-fulfill- mised by the racial disparities of the crimi- ing prophecy. In many communities involve- nal justice system. ment in the criminal justice system is so com- Perhaps the most precious of the civil mon that the criminal law has lost its stig- rights victories was the right to vote. In a matizing effect. Jail can become a badge of democracy such as ours, the franchise is the honor through overuse of criminal sanc- fundamental engine of change. Yet in 46 tions.117 states and the District of Columbia, con- These ripple effects of imprisonment on victed adults in prison are stripped of the family and community are especially acute right to vote. Thirty-two states also disen- when the prisoner is a woman. Black women franchise felons on parole, while 29 states are incarcerated at a rate seven times disenfranchise felons on probation. And 14 greater than that of white women. The 417% states even disenfranchise for life ex-felons increase in their incarceration rates between who have fully served their prison terms."4 1980 and 1995 is greater even than the in- Many of those who lose the right to vote are crease for black men. Three-fourths of the convicted of relatively minor, nonviolent women in prison in 1991 were mothers, and crimes. In some states, an offender who re- two-thirds had children under 18.118 More ceives probation for a single sale of mari-

205 Citizens' Commission onCivilRights Chapter 14 Part Two: Criminal Justice

women in prison therefore means fewer The perception of racial injustice manifests mothers caring for their children, a trend itself in important ways when minorities are that further exacerbates the deterioration asked to serve as jurors. First, many minori- of minority communities and family struc- ties, when summoned for jury duty, simply tures. do not appear. In Chicago, 60% of residents of black neighborhoods did not even respond B. Effects on the Justice System Itself to calls for jury duty, as compared to 8% of residents in white neighborhoods.12° Given The effects of racial disparities in the jus- the constitutional guarantees of trial by a jury tice system extend beyond prisoners and of a defendant's peers, the failure of minori- prisoners' families. That inequality ulti- ties to appear for jury duty has enormous mately affects all Americans because it com- implications for minority defendants and for promises the legitimacy of the system as a the legitimacy of the jury system. whole, undermines its effectiveness, and fos- Those minorities who do appear for jury ters racial division. duty may have such strong preconceptions Persistent inequality in the justice system about the justice system that they simply will gives minorities good reason to distrust the not accept the testimony of police witnesses system and to refuse to cooperate with it. or the arguments of prosecutors. In some ju- Such lack of cooperation can take many risdictions it is difficult to obtain a convic- forms, each of which has a corrosive effect tion predicated on uncorroborated police on the system's strength and continued vi- testimony. And even if jurors believe the ability. prosecution's case, they may engage in the To be effective, police and prosecutors practice of jury nullification. Deputy Attor- need the cooperation of those who are vic- ney General Holder recalls that when he timized by criminal conduct. Minorities are served as a Washington, D.C., trial judge, it disproportionately victimized by crime. was not uncommon for drug possession pros- Black Americans are victimized by robbery ecutions to result in hung juries because a at a rate 150% higher than that for whites. single juror decided that "I just was not go- They are the victims of rape, aggravated as- ing to vote to send another young black man sault, and armed robbery at a rate 25% to prison" (Holder's words). 121 Jury nullifi- greater than that for whites. And homicide cation, which is also gaining legitimacy in is the leading cause of death among young civil rights scholarship,122 is a troubling de- black males.119 It is in the interest of minor- velopment for law enforcement officials. ity communities to support the fight against crime. Yet the perception that the criminal C. Health and Economic Effects justice system is not on their side leads many black and Hispanic Americans as well as The health consequences of rising incar- other groups with historically tense relation- ceration rates are often overlooked. As a re- ships with the police, such as gays to un- sult of prison overcrowding and the lack of derreport criminal activity. This is true as appropriate correctional health care, tuber- much for witnesses of crime as it is for vic- culosis spread rapidly in the early 1990s. In tims of crime. Minorities are often reluctant New York City, where a particularly viru- to assist in a criminal investigation because lent, multi-drug-resistant form of the disease they view law enforcement authorities as broke out, 80% of known cases were traced hostile or indifferent to their concerns. to prisons.123 Moreover, the rate of HIV in- fection in the prison population is now 13

206 1 0 Citizens' Commission onCivilRights -

times that of the nonprison population.124 Our national self-image, against which we Given the number of individuals incarcer- judge both ourselves and other nations ated, and the constant interchanges between around the world, is of a land in which all the prison and outside population, these people are created equal and each is entitled developments signal a public health crisis to fair treatment before the law. We have that has dire consequences for prisoners and often failed to live up to this goal, but have nonprisoners alike. And because minorities never given up the struggle to attain it. The are disproportionately represented among inequities detailed in this chapter demon- prisoners, these public health effects are felt strate that we have fallen short. most sharply in minority communities. Overuse of incarceration also has significant economic consequences. Rapid increases VII. Recommendations in incarceration rates require increased construction of facilities in which to house pris- There are several reasons why racial in- oners. More than half of the prisons in use equality in the criminal justice system can- today in the United States were built in the not be eradicated easily. last 20 years. The Bureau of Prisons is the First, there actually is no single Ameri- largest arm of the Justice Department.125 The can criminal justice system. The federal gov- 1994 crime bill alone included $8 billion in ernment, each state, and many localities op- funding for new state prison construction. erate independent court systems, and there Funding for prison construction not only are thousands of discrete law enforcement edges out funding for alternative crime-fight- agencies throughout the United States. Un- ing strategies, such as prevention and treat- like some other civil rights battles, criminal ment programs, it also edges out funding for justice reform is a state-by-state challenge. many other priorities, within and outside the Second, little or no de jure racial discrimi- justice system. More money for prisons nation remains in the criminal law (although means less money for schools, libraries, the different federal sentencing schemes for youth athletic programs, literacy programs, crack and powder cocaine come close). In- and many other programs that might do more stead, racial disparities emerge from deeply to reduce crime than lengthy incarceration. rooted, self-fulfilling stereotypes and as- Minority communities, which are often sumptions. A complex network of laws, poli- beneficiaries of social spending, therefore feel cies, priorities, and practices perpetuate the the sting of criminal justice twice. They are racially skewed outcomes described in this victimized by racially skewed enforcement chapter. It is difficult enough to get to the strategies and then deprived of needed fund- source of the problem, much less change it. ing for schools and community development. Third, efforts to reform criminal justice Once again the system is self-perpetuating, policies are politically perilous no office because the paucity of quality education and holder wants to be labeled "soft on crime" jobs can bear directly on rates of criminality and measures to make crime policy more in minority communities. rational and equitable are uniquely suscep- tible to such demagoguery. Crime rates have D. Loss of National Ideals declined in recent years, a phenomenon that has more to do with demographics and the The final and perhaps most important strength of the economy than the racially consequence of a racially divided crimi- tainted policing strategies and sentencing nal justice system is the hardest to quantify. initiatives of recent years.126 But mayors,

211 207 Citizens' Commission onCivilRights -

police chiefs, legislators even Presidents report on racial profiling and every new ac- love to take credit for safer streets and count of police brutality. Closing this gap are loath to tinker with a winning electoral requires the following mechanisms to im- formula. prove police accountability: Still, efforts to redress racial biases in criminal justice are beginning to take root, The development of national standards and a growing number of courageous politi- for accrediting law enforcement agencies. cians are willing to challenge criminal jus- No such national standard currently ex- tice orthodoxy. The recommendations set ists, leading to a patchwork of law en- forth below build on these encouraging forcement guidelines throughout the na- trends. tion. The national standards should include specific guidance on traffic stop A. Build Accountability into the procedures; the use of force; and inter- Exercise of Discretion by Police action between police officers and multicultural communities. The standards and Prosecutors should expressly prohibit racial profiling of any kind. Just as racial disparity begins with discretionary decisions by front-line law enforce- Improved training of current and incom- ment personnel, so should remedies begin ing police officers to bring police depart- there. ments into compliance with the national We do not advocate that discretion be standards. eliminated from the criminal justice system. That goal would be unattainable and unwise. The passage of federal legislation requir- Criminal laws are written in broad terms, ing federal and state law enforcement of- and experienced law enforcement officials, ficials to gather data on traffic stops and both police and prosecutors, must retain the other encounters associated with racial authority to apply the laws in individual profiling, such as INS enforcement activi- cases with wisdom and common sense. A ties and airport/drug courier inquiries. criminal justice system that did not delegate Such data should be disseminated pub- some discretion to those who enforce the licly. laws would yield even harsher, less rational results than the current system. As our un- Expanded authority and resources for fortunate experience with mandatory sen- police oversight agencies such as the tencing proves, discretion is a key ingredi- Civil Rights Division of the Justice De- ent of justice. partment to investigate and punish mis- The problem with discretion in today's conduct, including racial profiling, bru- criminal justice system is that it is exercised tality, and corruption. without meaningful accountability. While law enforcement discretion must be pre- The improper exercise of prosecutorial dis- served, the type of unchecked, unreviewable cretion, like law enforcement discretion, has discretion that police and prosecutors cur- a disproportionate impact on minorities and rently wield breeds racial disparity and re- should also be subjected to greater public sentment. scrutiny. We recommend passage of federal The credibility gap between minority legislation requiring the collection and pub- Americans and front-line law enforcement lication of data by each U.S. Attorney's of- is yawning, and it widens with every new fice and each state prosecutor's office regard-

208 212 Citizens' Commission onCivilRights -

ing the charging and sentencing practices collection efforts, at least where such em- and outcomes in those offices and the racial pirical evidence would be statistically sig- impact of those outcomes.127 nificant.

B. Improve the Diversity of Law D. Suspend Operation of the Death Enforcement Personnel Penalty

Much of the hostility between minority As capital punishment is currently imple- communities and the police can be traced to mented, the decision of who will live and the underrepresentation of minorities in law who will die depends, in significant measure, enforcement. In too many neighborhoods, the on the race of the defendant and the race of police are seen as an occupying force rather the victim. This is due both to flawed proce- than a community resource. Police depart- dures such as the appointment of incompe- ments and prosecutors' offices should re- tent lawyers for indigent defendants as well double their efforts to recruit minorities. as to racial attitudes and stereotypes that Police departments should encourage, and cannot be easily overcome. perhaps require, that officers live in the cit- Even those who do not believe that death ies they patrol. penalty statutes should be repealed alto- Diversification requires adequate funding gether should agree on the need for a na- and well-targeted recruitment efforts. We tionwide moratorium on application of the recommend that the federal government con- death penalty while flaws in death penalty dition grant programs to state and local law procedures are studied and remedies are enforcement agencies on efforts by those proposed. During this period there should agencies to implement minority recruitment be a comprehensive review of the effects of and hiring practices. race on capital sentencing outcomes.

C. Improve the Collection of E. Repeal Mandatory Minimum Criminal Justice Data Relevant to Sentencing Laws Racial Disparities Although sometimes conceived as a means As in other areas of American life, we need to combat unwarranted racial disparity in to be more conscious of racial issues in crimi- sentencing, mandatory minimum sentencing nal justice in order to achieve a color-blind laws are, in fact, engines of racial injustice. criminal justice system eventually. The col- They have filled America's prisons to the lection of racial data is essential to identify rafters with thousands of nonviolent minor- flaws in current policies and devise the ity offenders. They deprive judges of the abil- means to redress them. ity to consider mitigating circumstances Many of the data sets generated by gov- about the offense or the offender, an exer- ernment agencies and private researchers cise of judicial discretion that can help re- concerning race and criminal justice take dress racial bias at earlier stages of the account of the experiences of African Ameri- criminal justice system. Particularly egre- cans and whites but do not include statistics gious are "three strikes" or "two strikes" on Hispanics, Asian Americans or Native mandatory sentencing laws that impose long Americans. We recommend that all major and irreducible prison terms for even the minority groups be included in future data most minor criminal conduct. These dema- gogic policies have resulted in a mushroom-

213 209 Citizens' Commission onCivilRights ing prison population and in the dispropor- practice, are applied disproportionately to tionate incarceration of minorities. minority youth, and threaten to create a per- The repeal of mandatory minimum sen- manent underclass of undereducated, un- tencing laws would be a significant step to- trained, hardened criminals. Laws that en- ward restoring balance and racial fairness courage treating nonviolent juvenile offend- to a criminal justice system that has increas- ers as adults should be repealed. ingly come to view incarceration as an end

in itself. H. Improve the Quality of Indigent Defense Counsel in Criminal F. Reform Sentencing Guideline Cases Systems Many of the racially disparate outcomes Were mandatory minimum sentencing in the criminal justice system are attribut- laws to be repealed, sentencing in the fed- able to inadequate lawyering. To be sure, eral system and many state systems would there are some obstacles that even the fin- be carried out pursuant to sentencing guide- est lawyer cannot overcome, such as the com- lines. The problem is that the guideline sys- bination of a mandatory sentencing law and tems are often based on and therefore in- an obstinate prosecutor. But other inequi- fected by the racial disparities in current ties can be exposed and perhaps reversed sentencing statutes. through aggressive advocacy by defense For example, the disparate treatment of counsel. crack and powder cocaine offenders in the Unfortunately, many minority defendants federal system has been carried over from depend on indigent defense services pro- the Controlled Substance Act to the sentenc- vided by the state. The lawyers who perform ing guidelines manual. The 100-to-1 ratio be- this role are often very dedicated and hard- tween the amount of powder cocaine and the working, but undercompensated and over- amount of crack cocaine needed to trigger whelmed with a caseload that precludes vig- the statutory mandatory penalty is found in orous advocacy on behalf of individual de- the drug equivalency table in the guidelines fendants. The problem here is a system that as well. So even after the statute is changed, inadequately funds this vitally important it will be necessary to revisit and redress component of the" criminal process. unfairness in the guidelines. There should be a systematic review of indigent defense services in the United G. Reject or Repeal Efforts to States in order to inject new resources and Transfer Juveniles into the Adult effect significant improvements. Justice System I. Repeal Felony Disenfranchise Perhaps no criminal justice policy is more ment Laws and Other Mandatory destructive to our nation than one that ex- Collateral Consequences of tends incarceration and punishment-based crime approaches to children. Laws that Criminal Convictions shun rehabilitation of youthful offenders in favor of their transfer into the adult crimi- Disenfranchisement laws are antithetical nal justice system are inconsistent with a to democracy and disproportionately affect century of U.S. juvenile justice policy and minorities, eroding the important gains of the civil rights era. They also violate inter-

210 2 1 4 Citizens' Commission onCivilRights -

national law specifically, Article 25 of the tial resources to treatment, prevention, edu- International Covenant on Civil and Politi- cation and research as a necessary comple- cal Rights.'28 These laws should be abolished, ment to interdiction and law enforcement. and other collateral consequences of crimi- But today, demand reduction efforts are on nal convictions such as eviction from public the back burner. housing and restrictions on student loans The United States needs a more balanced should be reviewed and, in any event, not drug strategy, one that adequately supports mandatorily imposed. Criminal sentences, treatment, prevention, education, research, including collateral consequences such as and other efforts to reduce the demand for disenfranchisement, should be tailored to the drugs. The current strategy places far too nature of the crime and the circumstances much reliance on the criminal justice system of the offender and should impose no more to solve a problem that is at least in part a punishment than is necessary to achieve public health problem. The result has been public safety, deterrence, and rehabilitation. an experiment in mass incarceration that has devastated minority communities without J. Restore Balance to the National discernable benefit. Drug Control Strategy

As noted above, the massive increases in VIII. Conclusion incarceration, including minority incarceration rates, are largely attributable to the war Racial disparities in the criminal justice on drugs. Even if each of the criminal justice system are one manifestation of broader ra- recommendations already proposed were cial divisions in America. Many of the per- adopted, we would be left with a national ceptions and prejudices that give rise to in- drug control strategy that seeks to combat equities in criminal justice are the same drug abuse by locking up addicts. As we have prejudices that have been with us since the seen, that policy has inevitable and disas- founding of the Republic. Not until those trous consequences for minority communi- underlying prejudices are shattered will true ties. equality for all Americans, in all facets of life, Thirty years ago, during the Nixon Admin- have been achieved. istration, there was recognition that drug The criminal justice arena is an especially abuse was a medical problem as well as a critical battleground in the continued criminal justice challenge.'29 Even at the struggle for civil rights. Current disparities height of the crack cocaine epidemic during in criminal justice threaten 50 years of the first Bush Administration, there was lip progress toward equality. Criminal justice service paid to the concept of a balanced reform is a civil rights challenge that can no drug strategy, one that dedicated substan- longer be ignored.

,215

Citizens' Commission onCivilRights . .-

Endnotes

1 For extensive discussion of the "driving while black" phenomenon, see Angela J. Davis, "Race, Cops, and Traffic Stops," 51 University of Miami Law Review 425 (1997); David A. Harris, "Driving While Black' and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops," 87 Journal of Criminal Law and Criminology 544 (1997); David Harris, "The Stories, the Statistics, and the Law: Why 'Driving While Black' Matters," 84 Minnesota Law Review 265 (1999) ("Why 'Driving While Black' Matters"). 2 David Cole, No Equal Justice: Race and Class in the American Criminal Justice System, at 36 and n. 66 (The New Press 1999) ("No Equal Justice"). See also "Why 'Driving While Black' Matters" at 280-81 and nn. 82-92. 3 No Equal Justice at 36-37, nn. 69-70. See also Marc Mauer, Race to Incarcerate, at 129 and n. 13 (New York, The New Press 1999) ("Race to Incarcerate"). 4 No Equal Justice at 38. 5 No Equal Justice at 25 and n. 29. 6 Gary Webb, "DWB; Police Stops Motorists To Check for Drugs," Esquire, at 126 (Apr. 1, 1999). 7 National Council of La Raza, The Mainstreaming of Hate: A Report on Latinos and Harass- ment, Hate Violence, and Law Enforcement Abuse in the 90's, at 26 (1999) ("The Mainstreaming of Hate"). Id. at 19. 9 No Equal Justice at 44-45. 10 Angela J. Davis, "Prosecution and Race: The Power and Privilege of Discretion," 67 Fordham Law Review 13, 27 (1998) ("Prosecution and Race"). Why 'Driving While Black' Matters at 297. " There is evidence that violent crime rates are higher in black neighborhoods, for reasons involving the correlation between violence and poverty, and the reality that blacks in the United States are disproportionately poor. See generally Race to Incarcerate at 163-170. In any event, racial profiling and drug courier profiles are employed to uncover nonviolent drug crimes, not assaults, and therefore derive no legitimacy from violent crime rate statistics. 13 Substance Abuse and Mental Health Services National Administration, U.S. Department of Health and Human Services, "National Household Survey on Drug Abuse, Preliminary Results from 1997," at 13, 58, Table 1A (1999). While involvement in drug trafficking is harder to measure, a National Institute of Justice Report indicates that drug users tend to purchase from members of their own racial or ethnic background. K. Jack Riley, National Institute of Justice, U.S.

'16 Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 14

Department of Justice, "Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities," at 1 (Dec. 1997). 14Why 'Driving While Black' Matters at 296 (citing National Institute on Drug Abuse, "Drug Use Among Racial/Ethnic Minorities," at 64-66 (1997); Bureau of Justice Statistics, U.S. Department of Justice, "Drugs, Crime, and the Justice System," at 28 (1992)). 15Id. at 295-296 (citing U.S. Customs Service, "Personal Searches of Air Passengers Results: Positive and Negative, Fiscal Year 1998," at 1 (1998) (finding that 6.7% of whites, 6.3% of blacks, and 2.8% of Hispanics carried contraband)). 16U.S. General Accounting Office, U.S. Customs Service: Better Targeting of Airline Passengers for Personal Searches Could Produce Better Results, at 2 (Mar. 2000). 17Why 'Driving While Black' Matters at 297. 18Bureau of Justice Statistics, U.S. Department of Justice, Sourcebook of Criminal Justice Statistics 1997, at 338 (table 4.10), 422 (table 5.46). 19Why 'Driving While Black' Matters at 303. See also Prosecution and Race at 36 (noting that "Mace... mayaffect the existence of a prior criminal record even in the absence of recidivist tendencies on the part of the suspect"). 20See William K. Rashbaum, "Undercover Police in Manhattan Kill an Unarmed Man in a Scuffle," The New York Times, Mar. 17, 2000, at Al; Eric Lipton, "Giuliani Cites Criminal Past of Slain Man," The New York Times, Mar. 20, 2000, at Bl. 21The Mainstreanzing of Hate at 20. 22Adam Cohen, "Gangsta Cops," Time, at 32 (Mar. 6, 2000). 23The Mainstreaming of Hate at 15 and n.41. See also Julia Vitullo-Martin, "Fairness Not Simply A Matter of Black and White," The Chicago Tribune, Nov. 13, 1999 (citing recent poll by the Joint Center for Political and Economic Studies indicating that 56% of whites agree that police are far more likely to harass and discriminate against blacks than against whites). 24Indeed, many instances of police brutality against minorities begin with a race-based misperception that an individual is a criminal suspect. In 1988, for instance, Hall of Fame baseball player Joe Morgan was approached by a police officer at an airport. The officer's sole basis for approaching Morgan was that another black man who was a suspected drug dealer had stated that he was traveling with someone who "looked like himself" i.e., black. When Morgan objected to the officer's accusation, the officer threw Morgan to the ground, handcuffed him, put his hand over Morgan's mouth and nose. Of course Morgan was eventually cleared of any wrongdoing. No Equal Justice at 24-25. Hispanics can point to similar experiences. See The Mainstreaming of Hate at 17. 25Bennett L. Gershman, "The New Prosecutors," 53 University of Pittsburgh Law Review 393, 448 (1992) ("The American prosecutor, owing to a variety of social and political factors, has emerged as the most pervasive and dominant force in criminal justice."). See also Prosecution and Race at 20-25. 26Prosecution and Race at 21-22 and nn. 28-33. 27 Christopher Schmitt, "Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price," The San Jose Mercury News, Dec. 8, 1991, at 1A ("Mercury News Report"). " U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy, at 138 and nn. 186-188 (Feb.1995) ("Cocaine and Federal Sentencing Policy"). Dan Weikel, "War on Crack Targets Minorities over Whites," The Los Angeles Times, May 21, 1995, at Al ("Weikel"). 30Id.

217

Citizens' Commission onCivilRights " Id. See also Cocaine and Federal Sentencing Policies at xi (Blacks and Hispanics accounted for 95.4% of crack cocaine distribution offenses in 1993). 32Id. " Weikel at Al. Data analyzed by the U.S. Sentencing Commission reveals that nationwide, more than 94.5% of federal crack defendants in 1992 were either low- or middle-volume dealers or couriers, and only 5.5% were high-volume dealers. Cocaine and Federal Sentencing Policy at 172. 34Cocaine and Federal Sentencing Policy at 192 ("[S]entences appear to be harsher and more severe for racial minorities than others as a result of this law, and hence the perception of unfairness, inconsistency, and a lack of evenhandedness"). 35Public Law No. 104-38, 109 Stat. 334 (Oct. 30, 1995). 36Cocaine and Federal Sentencing Policy at 8. 37Most criminal cases end in a plea bargain. See Rebecca Hollander-Blumoff, "Getting to 'Guilty': Plea Bargaining as Negotiation," 2 Harvard Negotiation Law Review 115, 117 n. 7 (1997) (discussing studies showing that as much as 90% of all criminal cases end in plea bargains). 38See Prosecution and Race at 23-25 and nn. 41-59 (discussing importance of, and prosecutorial discretion inherent in, charging decisions and plea bargaining). 39Mercury News Report at 1A. 4° No Equal Justice at 143. The Georgia Supreme Court initially held that these statistics presented a prima facie case of discrimination, and invalidated the "two strikes, you're out" statute. Stephens v. State, 1995 WL 116292 (Georgia 1995). The court, however, reversed itself less than two weeks later upon being presented with a petition signed by all of Georgia's 46 district attorneys claiming that the court's approach, because it would apply to so many other areas of prosecution, such as the death penalty, would "paralyze the criminal justice system" in Georgia. No Equal Justice at 143 (citing Stephens v. State, 456 S.E.2d 560 (Georgia 1995)). 41 Race to Incarcerate at 139. The Justice Department contends that these disparities were due to legally relevant case-processing factors. Id. (citing Dale Parent et al., National Institute of Justice, Mandatory Sentencing, at 4 (Jan. 1997)). 42Office of Justice Systems Analysis, New York State Division of Criminal Justice Services, "Disparities in Processing Felony Arrests in New York State, 1990-1992," at v-vi, xi (Sept. 1995) ("New York Felony Study"). 43Ian Ayres and Joel Waldfogel, "A Market Test for Race Discrimination in Bail Setting," 46 Stanford Law Review 987 (1994). " Bureau of Justice Statistics, U.S. Department of Justice, Compendium of Federal Justice Statistics, at 25 (Jan. 1999). 45See generally Bail Reform Hearings, 1982: Hearings on S. 1554 Before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 97th Congress, 1st Session (1982) (statement of Professor Daniel Freed). 46Prosecution and Race at 24 and nn. 49-51. 47U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, at 5 (1990) ("GAO Study") (noting that qt]his finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques."). 48David C. Baldus, Charles Pulaski, and George Woodworth, "Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience," 74 Journal of Criminal Law and Criminology 661-753 (1983) ("Baldus Study"). 49McCleskey v. Kemp, 481 U.S.C. § 279, 321 (1987) (Brennan, J., dissenting) (citing Baldus study).

41 8 Citizens' Commission onCivilRights Part Two: Criminal Justice Chapter 14

5° The Baldus study concluded that black defendants were only 1.1 times more likely to receive the death penalty than white defendants. See also GAO Study at 6 ("The evidence for the influence of the race of defendant on death penalty outcomes was equivocal"). 51McCleskey v. Kemp, 481 U.S.C. § 327 (Brennan, J., dissenting) (citing Baldus study). 52Staff Report by the Subcommittee on Civil and Constitutional Rights, House Judiciary Committee, "Racial Disparities in Federal Death Penalty Prosecutions 1988-1994," 103rd Congress, 2d Session, at 2 (Mar. 1994). As the Staff Report noted, lailthough the number of homicide cases in the pool that the U.S. Attorneys are choosing from is not known. ..the almost exclusive selection of minority defendants for the death penalty, and the sharp contrast between capital and non-capital prosecutions under [21 U.S.C. § 848] indicate a degree of racial bias in the imposition of the federal death penalty that exceeds even pre-Furman levels." Id. 53See Prosecution and Race at 34. 54Saldano v. Texas, No. 72-556 (Texas Ct. Cr. App. Sept. 15, 1999), at 9. Saldano v. Texas, No. 98-8119 (June 5, 2000). 5618 U.S.C. § 3553(e). Similarly, the federal sentencing guidelines require a prosecutor to certify substantial assistance before the court may depart below the applicable guideline range. United States Sentencing Guidelines, Section 5K1.1. 57 See generally Kate Stith and Steve Y. Koh, "The Politics of Sentencing Reform: The Legislative History of the Federal Sentencing Guidelines," 28 Wake Forest Law Review 223 (1993). 58Race to Incarcerate at 19-20. 59Marc Mauer, "The Crisis of the African-American Male and the Criminal Justice System," Written Testimony Before the U.S. Commission on Civil Rights, at 8 (Apr. 15-16, 1999) ("Mauer Civil Rights Commission Testimony") (citing data from the Bureau of Justice Statistics, U.S. Department of Justice). 60Christopher J. Mumola and Allen J. Beck, Bureau of Justice Statistics, U.S. Department of Justice, "Prisoners in 1996," at 11 (June 1997) ("Mumola and Beck"); Race to Incarcerate at 32.

61See Chapter II, n. 58 (citing New York Felony Study). 62New York Felony Study at 43. 63JodiT M. Brown and Patrick A. Langan, Bureau of Justice Statistics, U.S. Department of Justice, "State Court Sentencing of Convicted Felons, 1994," at 24, table 2.10 (Mar. 1998) ("Brown and Langan"). 64Brown and Langan at 21, table 2.7. 65Anti-drug efforts in America have always had a racial tint. During periods of intense intolerance, "drug use becomes associated...with the lower ranks of society, and often with ethnic and racial groups that are feared or despised by the middle class." Daniel Kagan, "How America Lost Its First Drug War," Insight, at 8 (Nov. 20, 1989). "Earlier in this century, although mainstream women were the model category of opiate users, images of Chinese opium smokers and opium dens were invoked by opponents of drug use." Michael Tonry, "Race and the War on Drugs," 1994 University of Chicago Legal Forum 25, 39 (1994). And "imagery linking Mexicans to marihuana use was prominent in the anti-marihuana movements that culminated in the Marihuana Tax Act of 1937." Id. See generally David Musto, The American Disease: Origins of Narcotic Control (Oxford University Press 1987). 66Michael Tonry, "Racial Disparities Getting Worse in U.S. Prisons and Jails," in Michael Tonry and Kathleen Hatlestad, Sentencing Reform in Overcrowded Times (Oxford University Press 1997) ("Tonry and Hatlestad").

n1 9

Citizens' Commission onCivilRights -

67 Race to Incarcerate at 152-153 (citing Mumola and Beck). 68Mauer Civil Rights Testimony at 8 (citing Bureau of Justice Statistics data). 69Id. 7° Marc Mauer and Tracy Hu ling, "One in Three Black Men Is Ensnared in the Justice System," in Tonry and Hatlestad at 246. 71 Michael Tonry, "Drug Policies Increasing Racial Disparities in U.S. Prisons," in Tonry and Hatlestad at 233, 235. 22Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System, at 82 (Cambridge University Press 1996) (citing Sam Vincent Meddis, "Is the Drug War Racist?" USA Today, July 23-25, 1993, at 2A). 23Id. (citing J.G. Miller, Duval Jail Report, filed with the U.S. District Court for the Middle District of Florida, Jacksonville, Florida, June 1993). 24Id. 28No Equal Justice at 147 (citing Christopher Davis, Richard Estes, and Vincent Schiraldi, "Three Strikes': The New Apartheid," Report of the Center for Juvenile and Criminal Justice (Mar. 1996)). 26Race to Incarcerate at 157 (citing James P. Lynch and William J. Sabol, Did Getting Tough on Crime Pay? (Urban Institute 1997)). 77 481 U.S.C. § 279 (1987) 78McCleskey v. Kemp, 481 U.S.C. § at 325 (Brennan, J., dissenting) (citing Baldus study). 79No Equal Justice at 137. 80McCleskey v. Kemp, 481 U.S.C. § at 339 (Brennan, J., dissenting). 81See Ch. II, n. 55. 82517 U.S.C. § 456 (1996). 83United States v. Armstrong, 517 U.S.C. § at 468, 470. 84No Equal Justice at 160. 85Los Angeles v. Lyons, 461 U.S.C. § 95 (1983). 86Id. at 115-116 (Marshall, J., dissenting). 87517 U.S.C. § 806 (1996). 88United States v. Botero-Ospina, 71 Federal Reporter 3d 783, 790 (10th Circuit 1995) (Seymour, C.J., dissenting) (citations omitted). For other examples of cases upholding pretextual stops, see United States v. Harvey, 16 Federal Reporter 3d 109, 113 (6th Circuit 1994) (upholding a stop in which an arresting officer testified that he had stopped the car in part because "there were three young black male occupants in an old vehicle") (Keith, J., dissenting); United States v. Roberson, 6 Federal Reporter 3d 1088, 1092 (5th Circuit 1993) (upholding a stop of a black motorist for changing lanes without signaling on an open stretch of highway). 89No Equal Justice at 145 (citing National Center on Institutions and Alternatives, Hobbling a Generation: Young African-American Males in the Criminal Justice System of America's Cities: Baltimore, Maryland (Sept. 1992)). 90Id. (citing American Bar Association, The State of Criminal Justice (Feb. 1993)). 91"Why 'Driving While Black' Matters" at 295 and n. 132. 92Race to Incarcerate at 163-165. 93See Carl Pope, "Racial Disparities in the Juvenile Justice System," in Tonry and Hatlestad at 240-244 (surveying studies of race and the juvenile justice system and concluding that studies are "far more evident in the juvenile justice system than in the adult system").

11.114. 0 Citizens' Commission onCivilRights -

94 Andrew Blum, "Jail Time by the Book: Black Youths More Likely to Get Tough Sentences than Whites, Study Shows," American Bar Association Journal, at 18 (May 1999). 95The Color of Justice at 2 (citing Donna Hamparian and Michael Leiber, Disproportionate Confinement of Minority Juveniles in Secure Facilities: 1996 National Report, at 9 (Community Research Associates 1997) ("Hamparian and Leiber")). 96Id (citing Donna Bishop and Charles Frazier, "A Study of Race and Juvenile Processing in Florida," Report Submitted to the Florida Supreme Court Racial and Ethnic Bias Study Commission (1990)). 97The Color of Justice at 3, 7. 98Kevin J. Strom, Bureau of Justice Statistics, U.S. Department of Justice, "Profile of State Prisoners under Age 18, 1985-97," at 1, 4-5 (Feb. 2000) ("Strom"). 99Jeffrey A. Butts, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, "Delinquency Cases Waived to Criminal Court, 1985-1994," at 1 (Feb. 1997) ("Butts"). 100 Strom at 7, Table 7. 101 Mara Dodge, "Regrettable Regression in the Way We Treat Young Criminals," The Washington Post, Aug. 29, 1999, at B02. 102Id. 103 Strom at 3. 104 Strom at 5, Table 5. 1°5 Carol J. DeFrances and Kevin J. Strom, Bureau of Justice Statistics, U.S. Department of Justice, "Juveniles Prosecuted in State Criminal Courts," at 5, Table 5 (Mar. 1997). 106 Butts at 2. 107 The Real War on Crime: The Report of the National Criminal Justice Commission, at 104 (Steven R. Donziger ed., 1997). 108Deborah Prothrow-Stith, Deadly Consequences (Harper Collins 1991); Bruce Wright, Black Robes, White Justice (Lyle Stuart, Inc. 1987). 109Mauer Civil Rights Commission Testimony at 2 (citing Bureau of Justice Statistics data). 110Id.(citing Marc Mauer and Tracy Huling, The Sentencing Project, "Young Black Americans and the Criminal Justice System: Five Years Later" (Oct. 1995)). 111Id. 112Id.

113Id. at 5 (citing Henry Louis Gates, Jr., "The Charmer," The New Yorker, at 116 (Apr. 29/ May 6, 1996)). 114Jamie Fellner and Marc Mauer, Human Rights Watch and The Sentencing Project, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States, at 1 (Oct. 1998) ("Disenfranchisement Laws"). 115Id.

116Felony convictions bring with them numerous other collateral consequences under state and/or federal law, such as ineligibility to serve in government jobs or hold government licenses; ineligibility to enlist in the armed forces; ineligibility for jury service; ineligibility for various kinds of professional licenses, and ineligibility for government benefits. See Office of the U.S. Pardon Attorney, "Civil Disabilities of Convicted Felons: A State-by-State Survey," at 7 (1996). Mere arrests can result in eviction from public housing. 117Mark Silk, "Solutions to Youth Crime Discussed: Black Prosecutors Look at Alternatives to Incarceration," The Atlanta Constitution, July 26, 1994, at C4 (quoting New York City Assistant District Attorney Rhonda Ferdinand).

6. 1

Citizens'Commission onCivilRights -

118Race to Incarcerate at 185. "9No Equal Justice at 5 (citing John Hagan and Ruth Peterson, "Criminal Inequality in America," in J. Hagan and R. Peterson, Crime and Inequality (Stanford University Press 1995)). 1" Id. at 170 and n. 6. In explaining this phenomenon, Standish Wills, Chair of the Chicago Conference of Black Lawyers, stated: "[B]lack people, to a great extent, don't have a lot of faith in the criminal justice system." Id. 121mT (citing Jeffrey Rosen, "One Angry Woman," The New Yorker, Feb. 28/Mar. 3, 1997, at 54, 60). 1" See, e.g., Paul Butler, "Racially Based Jury Nullification: Black Power in the Criminal Justice System," 105 Yale Law Journal 677 (1995). The reaction of minority jurors is undoubtedly further heightened by the fact that the overwhelming majority of prosecutors are white. For example, one study has shown that in the 38 states that have the death penalty, only 2% of all prosecutors are black or Hispanic, while 97.5% are white. Richard C. Dieter, Death Penalty Information Center, "The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides," at 12-14 (June 1998). 123Race to Incarcerate at 181 (citing Paul Farmer, "Cruel and Unusual: Drug-Resistant Tuberculosis as Punishment," in Sentenced to Die? The Problem of TB in Prisons in East and Central Europe and Central Asia (Vivien Stern and Rachel Jones eds., Penal Reform International 1999)). 124Id. at 182 (citing Dorothy E. Merianos, James W. Marquart, and Kelly Damphousse, "Examining HIV-Related Knowledge among Adults and Its Consequences for Institutionalized Populations," 1, 4 Corrections Management Quarterly 85 (1997)). 128Id. at 11. 126See generally Race to Incarcerate at 81-100 (discussing "the prison-crime connection"). 127See Prosecution and Race at 54-56 (advocating racial impact studies of prosecutorial practices). But until the Supreme Court departs from its holding in McCleskey that discriminatory intent is necessary to invalidate discriminatory law enforcement practices, mere evidence of racially discriminatory effect will continue to have limited utility in the fight against discriminatory law enforcement practices. Congress could effectively overrule McCleskey by passing a broad version of the Racial Justice Act that Senator Kennedy and others proposed in the early 1990s to address racial disparities in capital punishment. See generally 137 Congressional Record S. 8263; 102nd Congress 1st Session (June 20, 1991). 128Disenfranchisement Laws at 20-22.

129See Michael Massing, The Fix (Simon & Schuster 1998).

2 2 2 Citizens'Commission onCivilRights -

Chapter 15 Mixed Reviews on Lesbian and Gay Rights for Bush's First Year by Lou Chibbaro Jr.*

Introduction ing President George W. Bush's first year in office. Since taking office one year ago, this Presi- "President Bush has not only confounded dent has amassed a record on gay and AIDS his many gay detractors but has also enraged issues that is historic for his party. His ad- the far right, stood down their criticism, and ministration has made four openly gay ap- moved ahead with his inclusive agenda," said pointments, including a gay ambassador who the national gay group Log Cabin Republi- moved into the U.S. Embassy compound in cans (LCR), in a written review that un- Bucharest, Romania, with his same-sex part- abashedly gloats over the President's gay ner. rights record. A popular political operative who worked "Remember how every other gay organi- closely with gay political groups during the zation was predicting disaster for the nation Presidential campaign became White House and the beginning of an 'extremist' anti-gay counselor to the President and a high-level era?" Log Cabin states in an essay in its Janu- adviser to the Vice President, whose lesbian ary 2002 newsletter. "What a difference a daughter brought her partner to the inau- year has made." guration. But as Bush ends his first year at the The President signed a bill allowing do- nation's helm, officials with non-partisan gay mestic partners to register their relation- political groups, like the National Gay and ships in the nation's capital, ending a nine- Lesbian Task Force (NGLTF), are far less year federal policy blocking this local, Dis- complimentary in their assessment of his trict of Columbia ordinance from taking ef- record. "The President's gay appointments are on fect. The anti-gay Family Research Council re- the positive side of the balance sheet," said sponded to these and other developments by NGLTF Executive Director Lorri L. Jean. denouncing the White House for embracing "But they may be the only significant posi- a "homosexual political agenda" and "impart- tive things he's done, unless you decide to ing legitimacy to the homosexual political list the fact that he didn't do something bad cause." as a positive." Was this the first year of the Clinton Ad- ministration? To the dismay of many of the nation's anti-gay political groups, and to the surprise of a number of gay Democratic ac- *Reprinted with permission from The Washington tivists, these developments took place dur- Blade, Jan. 18, 2002.

Citizens' Commission onCivilRights -

NGTLF, for example, notes that Bush has use government meeting facilities to hold appointed a number of high-level officials events commemorating Gay Pride week. from the Republican party's socially conser- However, the White House announced last vative wing who have anti-gay records. June that Bush had discontinued a Clinton Among them is Attorney General John Ash- practice of issuing annual Presidential proc- croft, an outspoken opponent of gay rights lamations designating June as Gay Pride during his tenure as a U.S. senator from Mis- month. souri. The Human Rights Campaign (HRC), the nation's largest gay political organization, I. Gay Appointments Rile argues that while Bush says he will hire without regard to sexual orientation, he RightWing won't say whether he would sign the gay civil rights bill pending in Congress known as the Most gay activists view Bush's gay ap- Employment Non-Discrimination Act, which pointments as a positive development, al- would enact that policy into federal law. though some note that Bush hasn't appointed HRC political director Winnie Stachelberg nearly as many gays as Clinton to high and said the administration has not responded middle level administration jobs during the to HRC's request that it endorse ENDA and former President's first year in office. another bill that would give the federal gov- In June, Bush nominated gay State Depart- ernment authority to prosecute anti-gay ment official Michael Guest for the position hate crimes. Both bills have received at least of ambassador toROmania.The Senate con- some Republican support in the House and firmed Guest by a unanimous vote. Secre- Senate, and HRC claims to have a majority tary of State Colin Powell drew attention in ready to vote for their passage. the press when he recognized Guest's domes- "Many questions remain unanswered," tic partner during a swearing-in ceremony, Stachelberg said about the administration's which Powell administered. gay rights positions. Anti-gay groups were especially angry Stachelberg and officials with other gay over the Guest appointment. The Family Re- civil rights groups acknowledge that while search Council opposed the nomination on Bush has yet to make major policy advances the grounds that his sexual orientation on gay issues, he has so far chosen not to roll would be unacceptable to Romanians, but back the advances made by the Clinton Ad- government officials there have dismissed ministration. the concern, praising Guest for his experi- Bush has left in place two key executive ence and knowledge of Eastern European orders issued by President Clinton. One pro- affairs. hibits job discrimination against gay federal When asked by reporters about the gay ap- workers and the other bans government pointees, White House press secretary Ari agencies from denying security clearances Fleischer said Bush bases his appointments to an individual based solely on sexual ori- on a person's qualifications for the job. entation. Bush has ignored requests by anti- Fleischer said Bush considers a person's gay groups that he repeal the two orders. sexual orientation a private matter that has The administration has also continued to no bearing on the President's decision to allow gay federal workers' groups to meet appoint someone to a government job. in government buildings and has continued a Clinton policy of allowing these groups to

220 Citizens' Commission onCivilRights II.Anti-gay Appointments As governor, Racicot issued an executive order banning discrimination against gays working for the Montana state government While Bush angered social conservatives and backed a state hate crimes bill that in- by appointing gays to administration posts, cluded protections for gays. He is credited the opposite is also true: Gay activists rattle with helping to defeat an anti-gay bill intro- off a number of key appointments they say duced into the Montana legislature. went to people with right-wing ties who op- "The Racicot appointment is a message of pose gay rights. inclusiveness and tolerance in the Republi- The Ashcroft appointment drew strong op- can party," said HRC's Stachelberg. position from most gay political groups. Dur- Log Cabin Republicans spokesperson ing his confirmation hearing, Ashcroft, a Kevin Ivers called the Racicot appointment longtime opponent of gay rights, pledged to a turning point in the Republican party's uphold existing policies banning discrimina- handling of gay issues. Ivers noted that tion against gay federal workers. Racicot is the first RNC chairperson with a Yet in a development that surprised some solid record of support on gay issues. political observers, Ashcroft invited officials with Log Cabin Republicans to meet with him immediately after the Senate confirmed his appointment. Log Cabin officials called the III.Tacit Domestic meeting a historic development, saying Partnership Support? Ashcroft's decision to pick a gay group to be among the first civil rights oriented groups HRC joined Log Cabin in praising Bush he would invite to his office indicated for not opposing a decision by Congress to Ashcroft was moderating his views on gay remove language from the D.C. appropria- rights. tions bill that prohibited the city from imple- Other gay leaders, such as openly gay U.S. menting its domestic partners law. Political Representative Barney Frank (D-Mass.), insiders, including anti-gay groups, inter- said they did not believe Ashcroft was sin- preted Bush's action as a gesture of tacit cere in his friendly overtures to gays during support for the domestic partners program. his confirmation hearing. Gay legal groups, meanwhile, expressed On the plus side, gay activists praised only cautious' optimism over the Bush Bush for appointing a number of other top Administration's handling of a federal com- officials who have long-standing records in pensation program to assist survivors of the support of gay civil rights. Among them was victims of the September 11 terrorist at- pro-gay Republican political commentator tacks. and campaign adviser Mary Matalin, whom Joe Grabartz, an official with a New York Bush named as a White House counselor to State gay organization that has advocated for the President. Vice President Dick Cheney same-sex survivors of the terrorists attacks, also named Matalin as one of the political called the program "groundbreaking" for at advisers to the office of the Vice President. least allowing same-sex couples to apply for Bush drew praise from gay activists and victim compensation. strong criticism from anti-gay religious right groups in December, when he named former Montana Gov. Marc Racicot as the new chair of the Republican National Cominittee.

225 Citizens' Commission onCivilRights -

2001 Executive Review A look back at the actions, appointments, and decisions affecting gays during the first year of the George W. Bush Administration

January 20 April Bush nominates John Ashcroft to be U.S. attorney Secretary of Defense Donald Rumsfeld appoints general. Ashcroft, a strong opponent of gay rights openly gay business executive Stephen Herbits while serving in the U.S. Senate, promises during as temporary consultant on Pentagon civilian his confirmation hearing to comply with existing personnel matters. Rumsfeld brushes aside rules barring anti-gay discrimination against criticism from conservative groups that denounce federal workers. He pledges to allow a gay group the appointment. at the Justice Department to continue to operate and meets with Log Cabin Republicans during The U.S. Department of State retains Clinton his first week in office. Administration guidelines banning sexual orientation discrimination against gay Foreign Bush appoints Mary Matalin as White House Service employees. counselor to the President. Matalin has worked closely with gay Republicans while serving on the May 25 Bush Presidential campaign. Religious right groups criticize her for being too supportive of gay Bush nominates Timothy Tymkovich, the rights. Colorado state's attorney who argued the case for retaining an anti-gay ballot measure Amendment Bush nominates Christine Todd Whitman as head 2, for a seat on the U.S. Court of Appeals for the of U.S. Environmental Protection Agency. 10th Circuit, which has jurisdiction over Colorado Whitman brings a strong record of support on gay and other Western states. and AIDS issues as governor of New Jersey. June 2 Bush nominates Massachusetts governor and gay civil rights supporter Paul Cellucci as U.S. Bush discontinues Clinton practice of issuing a ambassador to Canada. Cellucci's support on gay Presidential gay pride proclamation in June to and AIDS issues prompt several religious right commemorate the nation's gay pride festivals. groups to oppose his ambassadorial appointment.

July II April 9 The Senate confirms Bush nominee Kay Coles Bush's first budget calls for significant increases James as director of the Office of Personnel in funds for AIDS research at the National Management. James, a 52-year-old conservative Institutes of Health, modest increases for AIDS Republican and evangelical Christian from prevention programs, and no increase for the Virginia, has ties to the anti-gay Family Research Ryan White CARE Act program, which assists Council. James angers gays in December when states and cities in treatment and social services she decides that OPM will not make same-sex programs related to AIDS. domestic partners eligible for long-term health care insurance under a new federal program. Bush appoints Scott Evertz, an openly gay Sources familiar with OPM say James was Republican and head of a private-sector AIDS concerned that adding another category could program in Wisconsin, as director of the White subject the program to legal challenge. House National AIDS Policy Office.

Citizens' Commission onCivilRights Part Two: Lesbian and Gay Rights Chapter 15

July November 30 The White House denies reports that it has cut a Secretary of Health & Human Services Tommy deal with the Salvation Army to exempt the Thompson names Patricia Funderburk Ware, a charitable group from complying with local and longtime proponent of sexual abstinence as a state gay civil rights laws in exchange for the means of curtailing AIDS, to be executive director group's support for President Bush's faith-based of the Presidential Advisory Council on HIV/ initiatives legislation. Critics charge that the AIDS. The 35-member council's chairperson and White House backed away from the deal after the members, not the executive director, set the Washington Post ran stories describing private panel's priorities and positions. Some view meetings between Salvation Army officials and Funderburk's appointment as a signal that the chief White House political adviser Carl Rove. Bush Administration may replace current members, including several openly gay members, August 22 with conservatives similar to Funderburk. Bush appoints Donald Capoccia, an openly gay December 5 real estate developer, as a member of the U.S. Commission on Fine Arts. Bush announces the appointment of former Montana Gov. Marc Racicot as chair of the September 18 Republican National Committee. Racicot supported a Montana hate crimes bill that included Michael Guest, an openly gay U.S. Foreign protections for gays and is credited with helping Service officer, begins serving as U.S. ambassador to defeat an anti-gay bill introduced in the to Romania after Bush nominated him for the post Montana legislature. Religious right groups had in June. Secretary of State Colin Powell said he was unacceptable to them at the time administers the oath of office to Guest at a State Bush considered Racicot for the U.S. attorney Department ceremony attended by Guest's general's post. domestic partner and parents. December 20 October I The Justice Department (DOD decides to allow Bush appoints Robert Reilly, a conservative who same-sex partners of victims of the September 11 called homosexuality a 'morally disordered' terrorist attacks to apply for federal victim condition in a National Review article in 1996, to compensation funds. But in a set of detailed the post of director of the Voice of America. Reilly regulations, the DOJ delegates authority to local vows to uphold anti-discrimination policies and state probate courts to decide whether pertaining to gay federal workers under his surviving same-sex partners would be eligible to charge. receive compensation, turning down a request by gay advocacy groups that an appointed federal October II master, rather than state or local probate courts, make such decisions. Bush, through his budget director, Mitch Daniels, informs Congress that he has no objection to an appropriations bill that allows Washington, D.C., to implement its domestic partners law. The appropriations bill, which Bush signed this month, lifts a nine-year-old federally imposed restriction that prevented the city from putting the domestic partners law into effect.

7 Citizens'Commission onCivilRights IV. AIDS Record The panel, which included a number of openly gay members, distanced itself from Some AIDS activists said Bush's appoint- Clinton in 1998, when it issued a vote of "no ment of Scott Evertz as director of the White confidence" against Clinton for his refusal House AIDS office was an important sym- to provide federal funds for needle exchange bolic development because it recognized the programs aimed at stopping the spread of strong interest in AIDS issues within the gay AIDS among injection drug users. Bush's community. Evertz was head of the Log secretary of Health and Human Services, Cabin Republicans of Wisconsin and an offi- Tommy Thompson, has been replacing the cial with an AIDS service agency when Bush panel's Clinton appointees as their terms tapped him for the White House post. expire. But groups such as the National Associa- "For the most part, the new administration of People With AIDS (NAPWA) called tion has continued the policies of the Clinton Bush's record on AIDS mixed, saying Bush Administration," said NAPWA's Anderson. has retained the Clinton Administration's "To many of us, that's OK, because some overall policies, which some AIDS activists people feared they would pull back from what have called adequate but not sufficient to we have now." address the AIDS epidemic. Log Cabin officials say the Bush Adminis- NAPWA Executive Director Terje Ander- tration has given Evertz the green light to son noted that Bush's first budget included work closely with a wide variety of constitu- no funding increase for the highly acclaimed encies, including gay and AIDS advocacy Ryan White CARE Act program, which as- groups, to help shape the administration's sists states and cities in providing medical policy on AIDS in the next three years. care and social services to people with HIV and AIDS. In a pattern begun with the Clinton Ad- V. "Stealth Approach"? ministration, Anderson noted, Congress added more Ryan White funds, even though Political science professor Larry Sabato of Bush did not ask for an increase. The Bush the University of Virginia, a recognized ex- budget office did not oppose the increase. pert on U.S. electoral politics, said Bush's Bush has been credited with promoting a handling of social issues, including gay rights, newly created Global AIDS Trust Fund, has been considerably more moderate dur- which is aimed at helping people with AIDS ing his first year in office than his campaign in developing countries. But the President's rhetoric would have suggested. decision to allocate only $200 million as a Sabato said Bush's decision to appoint gays "start-up" for the program has been viewed to his administration and his decision to re- by AIDS advocacy groups as inadequate. tain the Clinton gay rights executive orders Bush retained a Presidential AIDS advi- is due, in part, to a genuine desire to oppose sory panel created by Clinton, relieving fears discrimination, but most likely a sign of prag- by some AIDS activists that he would abol- matic politics. "He can count votes," said ish the panel. However, he drew criticism Sabato, who points to Bush's narrow Elec- from some of those same activists by appoint- toral College victory over Democrat Al Gore ing Patricia Funderburk Ware, a longtime and Gore's popular vote victory over Bush. proponent of sexual abstinence as a means "Andy Card [Bush's chief of staff] and Carl of curtailing AIDS, as the panel's new execu- Rove [the White House chief political advi- tive director. sor] most likely convinced him that he will

228 Citizens'Commission onCivilRights Part Two: Lesbian and Gay Rights Chapter 15

need millions of more votes in 2004 just to will ensnare innocent immigrants, including stay even with his Democratic opponent," gay immigrants, who are seeking entry into said Sabato. According to Sabato, changing the United States to find employment. demographic trends among the nation's vot- "As a community of color, we sometimes ers, including a greater prominence of im- appear Middle Eastern," Quintera said. "We migrants, favor the Democratic party. are at risk of being stopped, just because of "There just aren't many more white male how we look." votes to mine," Sabato said. "So he has to do Campbell Spencer, the national lesbian better with women, African Americans, and gay outreach director for the Democratic Latinos, and gays. He must cut into that vote National Committee, said Democratic party to stay competitive." leaders are "profoundly disappointed" in "They know they have a lot of contradic- Bush's first-year record on gay civil rights. tory elements within their big tent," said Spencer said the Democratic party was Sabato. "They want to please both sides if about to adopt a resolution calling on same- they can. But the President has already sex domestic partners to be eligible for the tipped his hand. He wants it to be known same Social Security benefits now available that he has no desire to be prejudiced against to married couples. gays or Arab Americans, or a whole host of "Were we to have a Democratic leader in other groups." the White House, the gay and lesbian com- But Chad Johnson, executive director of munity would be moving forward and build- the gay group National Stonewall Demo- ing on the incredible successes of the Clinton crats, said the administration's record on gay years," Spencer said. civil rights and AIDS is not as strong as some ButLogCabinofficialssaythe activists are making it out to be. administration's overall record on gay rights "They talk and do different things," said and AIDS is positive. Johnson. "They talk about being compassion- "We're proud to report that one year later, ate conservatives and try to put on a nice President George W. Bush has governed ex- face. But when it comes to issues of interest actly the way he promised he would," Log to our community, they are as far right as Cabin's newsletter states. "He won LCR's the religious right. They use a stealth ap- endorsement on the promise to be an inclu- proach to doing this." sive Republican President and to lead a new, Martin Ornelas Quintera, executive direc- more inclusive Republican party. And our tor of the national gay Latino group LLEGO, President has come through in his first year. said his group is concerned that the Promise made, promise kept." administration's crackdown on terrorism

Citizens'Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 16

Chapter 16 High ClassroomTurnover: How Children Get Left Behind by Chester Hartman'

Introduction while there is a modest amount of literature in the professional, academic, and technical A 1994 U.S. General Accounting Office journals, little appears in general circulation study reported that by the end of the third periodicals that speak to the wider public.10 grade one out of six children had attended Smaller schools and classrooms, better three or more schools, and that students oftrained teachers, better buildings and equip- ten changed schools more than once during ment, and other essential improvements can the school year.2 A Texas study found that have only minimal positive impact if the one of six students in the state's public classroom is something of a revolving door, schools' changed schools during the 1994-95 with high proportions of the students leav- school year.4 A National School Boards As- ing and arriving during the school year and sociation article reports, "it's not unheard from school year to school year (although a case can be made that instituting reforms of for a child to change schools six or seven such as these might serve to reduce tran- times in a single year." A Las Vegas elemen- siency). 11 tary school reported 700 transfers in or out in a single year among a total student body In locales receiving large numbers of im- of just over 900.6 A California study reported migrants, there is of course a fairly steady that approximately one-quarter of students influx of such children entering the school made unscheduled school changes three or system throughout the school year stu- more times over the course of their public dents with acculturation and language issues school career.7 While a majority of Califor- that require special attention. Beyond the nia high schools have student mobility rates special case of immigrant-receiving commu- ranging between 10 and 30%, approximately nities, to the extent the incidence of such 20% of the state's high schools have very high transiency is disproportionately higher student mobility rates more than 30%.' among certain identifiable groups in par- Not surprisingly, high mobility rates are ticular, low-income, homeless, farmworker, even more daunting when viewed over time: and minority children the already inad- Over the course of four years, overall school equate education received by such students stability can fall to under 50%.9 is grossly magnified. Research from the Uni- The extensive literature on problems with versity of Chicago's Center for School Im- the county's education system, along with provement reported that "a disproportion- the many proposed and needed reforms, has ate number of predominantly African-Ameri- paid far too little attention to the issue of can schools have low stability" and that such transiency, or high classroom turnover. And students are twice as likely as white students

230 Citizens' Commission onCivilRights Chapter 16 Part Two: Discriminatory Practices in Education

to switch schools in the middle of the year." gram."7Not all such changes are damaging An Austin study reported that "low-income, or undesirable: Families may move in order African American and Hispanic students to improve their housing or work situation; were more likely to be mobile than middle- students may change to a different school or income or White peers."3 A Minneapolis classroom in order to secure a more appro- study reported that "students of color moved priate educational environment or leave an far more often than white students" and that unsatisfactory or damaging one. A very large "1 in 4 low income students moved one or portion of such moves, however almost more times during the study. Only 1 in 10 certainly the majority, particularly for low- students who did not qualify for the free income, minority, homeless, and farmwor- lunch program moved."14 In California, "... ker students are triggered or necessitated mobility was clearly related to family income by factors that are not associated with posi- and socioeconomic status low-income stu- tive change for the family or student. dents were more mobile between the 8th and What triggers such potentially damaging 12th grades than high-income students."" moves may be categorized as either exter- In sum, there is clear need for recognition nal to or internal to the school situation and of the problem of transiency: its magnitude, environment. The former category consists incidence, causes, and results. And based on primarily of residential changes on the part that knowledge, there is concomitant need of the student's family, which in turn may be to mount a serious attack on the problem, caused by the workings of the housing sys- reducing it where possible, handling it in the tem or (less frequently) by changes in the most constructive manner where it persists. household situation, such as family breakup; The federal government, as well as state gov- the latter.refers to a range of reasons, in- ernments and most school districts, have not cluding expulsion by school authorities and dealt with this serious issue in any way com- problems or dissatisfactions on the part of mensurate with the problem. And unless the student and his/her family that lead to policies and programs are put into place to transfers. In the case of lower income, mi- deal with the fact that "schools [mainly ur- nority, homeless, and farmworker children ban schools] are actually unstable places the principal concern of this chapter where the movement of students penetrates residential changes are for the most part not the central aspect of school work the in- under the family's control or, in the case of teraction of teachers and students around farmworkers, are dictated by expected and learning,"" there will surely be millions of planned changes in employment location. children left behind. The housing-related forces that cause invol- /Students of course move from one to school untary residential changes include eviction to another when passing through the vari- or mortgage foreclosure proceedings," an- ous grade groupings elementary, middle, ticipated eviction, inability to pay rent or and high schools. Our concern is with (non- utility bills, housing code enforcement, emi- promotional) moves that occur within those nent domain actions, condominium conver- groupings. Some occur in between school sions, upgrading rehabilitation, and other years, others within a school year. While gentrification pressures. both of those changes may have deleterious To the extent such involuntary residential effects, obviously the more disruptive of the moves, as well as "push" factors from within two are within-school year changes. As a Los the school environment, cause harm to a Angeles study concluded, "Intraschool student's education, it is certainly an impor- [within school year] site transfer is espe- tant goal of public policy to reduce their in- cially damaging to the instructional pro- cidence wherever possible. A second public

231 Citizens' Commission onCivilRights policy goal is to put in place systems that, to to move a child out of his/her classroom is the extent feasible, minimize the deleteri- evident in several reports. As a general phe- ous impact of these moves. Such steps are nomenon, "families that are poor move 50% vital if we are to take seriously the right of to 100% more frequently than families that all children to an adequate education. are not poor."" The Chicago study documented that 58% of elementary school changes were related to residential moves.22 I. What the Research Shows In California, parents reported approximately 55% of high school changes were as- Regarding Academic sociated with residential moves.23 A Minne- Performance apolis study reported that of the residential moves, 80% were associated with housing High student mobility has consequences problems, such as substandard conditions, for mobile students, nonmobile students, inability to find affordable housing, problems teachers, and schools. For students, the long- with landlords, evictions, or property con- term effects of high mobility include lower demnation.24,25 But residential moves are achievement levels and slower academic sometimes made for reasons other than cop- pacing, culminating in a reduced likelihood ing with a housing issue, such as lack of trans- of high school completion. Data on how portation or availability of employment. highly mobile classrooms affect nonmobile Homelessness the ultimate housing students in those classrooms are rare, but problem is of course a major reason why in all likelihood such patterns significantly children must change schools. And since the retard curriculum pacing and decrease so- child's school is usually his or her second cial and educational attachments to fellow most important stable environment, losing students.19 Migrant farmworker children, both home and school represents a doubly who arrive and leave in relatively large num- powerful blow. It is not uncommon for home- bers, staying for just a short period, are par- less families to move several times a year, ticularly disruptive for the nonmobile stu- and as a result, homeless children may dents in these classrooms. (In Washington change schools several times. Homeless chil- State, one school segregated migrant stu- dren continually face difficulty in school: For dents from regular classrooms, holding that example, young children may lag behind in integrating them would be too disruptive to basic skills acquisition; high school age chil- the school.) For teachers, although again dren often drop out due to difficulty in accu- there are no available data, it is likely that mulating credits or schools' refusal to enroll teaching and teaching satisfaction suffer unaccompanied youth. Two prevalent edu- from the need to repeat and review lessons, cational practices that exacerbate the nega- constantly introduce new students to the tive impacts of mobility for homeless chil- class, experience the sudden departure of dren are application of residency rules and other students, and preside over a generally failure to provide transportation.26 A further less stable environment. For schools, high significant problem for such students is fail- mobility rates dearly place a strain on school ure to transfer school records, leaving the resources an example being loss of text- new teacher with inadequate information as books when departing students fail to return to the child's past preparation and current them.2° needs. A recent development is the estab- Regarding what causes this mobility, the lishment of "shelter schools," opened in primacy of housing instability as the trigger homeless shelters, a controversial, possibly

2 3 2

Citizens' Commission onCivilRights - II

illegal step with as yet unstudied implica- they leave again. Because of variations in tions for classroom transiency.27 weather, changes in crops, and the difficul- Welfare reform has had a still incompletely ties in finding work, migrant families have documented impact on residential, hence in recent years been forced to alter tradi- school, mobility.28 Employment programs tional patterns of migrancy, often traveling may necessitate a move in order to arrange to new states or even new regions of the a workable commuting pattern; and those country in search of work."32 These increas- who reach welfare support time limits may ingly fragmented migrant streams have ex- no longer be able to afford rent and utility panded to become international as well. And payments. Research on welfare reform sug- so migrant children typically change schools gests that those who leave the welfare rolls several times a year. Similar to homeless are more likely to be residentially mobile children, migrant children often face barri- than those who remain on welfare, doubt- ers to enrolling in schools; youth often have less caused in large part by employment op- difficulty accumulating academic credits and portunities that require or prompt a move. therefore face difficulty completing high Such "success" thus has costs and unintended school. The records transfer problem noted consequences. People who leave welfare are above for homeless children is even more also somewhat more likely to have trouble severe for children of migrant families, as paying rent, to be evicted, or to move their their moves generally are far more distant. children in with another family because of Since the vast majority of migrant family inability to maintain a household continu- school-age children are Latino, language and ously.29 More distant moves from one state cultural adjustment problems are prevalent. to another in response to state differences Research consistently finds that migrant in welfare policies (or scarcity of affordable children face limited educational opportu- housing) also are reported. A 50-state sur- nities, oftentimes resulting in high dropout vey indicated that welfare reform may lead rates as well as low achievement rates and to unstable family income, which in turn cre- slower academic growth.33 ates a greater likelihood that children will Foster care children often have to change experience turbulence, such as more resi- schools each time they are removed from a dential and school changes.3° A National As- home. The failure of local child protection sociation of Child Advocates presentation systems to make prompt placements adds to concluded, "evidence suggests that welfare this instability.34 Like homeless and migrant reform has increased student mobility for a children, foster care children can have diffi- small but particularly high risk population culty with transfer of records, including of students."31 health records. Additionally, children who As noted above, migrant families, largely are having difficulty negotiating the stresses located in Texas, California, and Florida, of being placed in foster care are often dis- typically move temporarily from a homebase proportionately moved to special education community to other communities within the classes as a result of behavioral problems. state or other states, following harvests and While residentially related reasons pro- crop-relatedagribusinessinmigrant duce the majority of mobility, at least among streams. As a report in the Title I Monitor the subpopulations that are the primary con- described their situation: "[The mobility of cern of this chapter, it is also important to migrant children plays havoc on the planned recognize that a considerable portion of mo- schedules of this nation's schools. These chil- bility is not associated with residential dren ping-pong from school to school, swell- changes. Among the nonresidentially related ing classrooms for often brief periods until reasons for school changes reported in the

230 6-33 Citizens' Commission onCivilRights Chicago study, 76% were motivated in whole over time, but each additional school change or part by dissatisfaction with the school, results in a cumulative academic lag. Over a trouble with peers or teachers, academic dif- period of six years, students who have moved ficulties, or school safety concerns.35 Inter- more than three times can fall a full aca- views with students in California revealed demic year behind stable students.41 A study that a majority of student-initiated high of reading achievement tests in California school changes were made in order to escape showed that students who moved three or a bad situation (social isolation, unsafe con- more times scored nearly 20 points lower ditions, etc.) rather than to seek a better situ- than students who did not move.42 And "there ation, and that school-initiated transfers is overwhelming evidence that mobility dur- were administrative decisions in response ing high school diminishes the prospects for to a disciplinary situation, poor attendance, graduation: students who changed high truancy, or poor achievement.36 schools even once were less than half as Research findings on the academic impact likely as stable students to graduate from of high student mobility show that it can high school, even controlling for other fac- have a slowing effect on basic skills acquisi- tors that influence high school completion."43 tion, which has the long-term effect of in- High school changes may disrupt credit ac- creasing the chances of school failure and cumulation and therefore affect graduation dropout. A review in the Journal of Research levels.44 Students who changed high schools and Development in Education concluded: at least twice were more than 30% less likely "[T]he educational research literature seems to graduate than students who remained in quite consistent with regard to findings that the same school throughout their high school high student transiency rates are strongly career; the graduation rate of students who and negatively associated with academic at- moved at least twice is approximately 60%.45 tainment at school."37 A carefully designed The graduation rate of migrant students is study of data from the National Health In- about 50%.46 Attendance is related to mobil- terview Survey concluded that "frequent ity and to school performance. The Minne- family relocation [school changes were not apolis study reported: "Attendance proved recorded, but the relationship between resi- to be a strong predictor of performance for dential and school relocation is obvious] (ap- students in the study, a correlation found in proximately five or six moves over the life of other local and national research....The the child [6 to 17 years old in this study] ... less students moved, the better their atten- was significantly associated with an in- dance rates. Students who did not move dur- creased risk of failing a grade and with mul- ing the course of the study had an average tiple, frequently occurring behavioral prob- attendance rate of 94%. Students with three lems [which of course are associated with or more moves dropped to an 84% average poor school performance as well]."38 For el- rate."47 Schools' failure to track students who ementary students, the negative educational leave and to transfer records promptly impacts are especially obvious. Students doubtless is one important factor affecting who are highly mobile during their elemen- attendance. Student mobility also affects stu- tary school years are much more likely to dents' engagement with schools, resulting in change schools during their high school increased incidents of misbehavior and lower years.39 In Chicago, even after controlling for participation in school activities.48 Children socio-economic status, mobile students on who move around a lot not only get a poorer average have lower student achievement educational experience, they also are sub- scores than their stable counterparts.4° With ject to social and emotional stress caused by just one move, students appear to recover

Citizens' Commission onCivilRights 234 Chapter 16 Part Two: Discriminatory Practices in Education

disruption in their relationships with class- authorized/signed into law in January 2002 mates and teachers. as the McKinney-Vento Homeless Assis- For schools, high student mobility rates tance Act, homeless children and youth have place a greater burden 'on their resources a right to equal access to the same free, ap- and budgeting. Teachers have reported that propriate, and nonsegregated public educa- student mobility can affect decisions related tion provided to other children.51 The origi- to personnel and staffing, resource utiliza- nal and reauthorized Acts impose a duty tion, school program planning, instructional upon state and local agencies to remove bar- delivery and continuity, curricular pace, and riers to enrollment, attendance, and success student evaluation.49 Student mobility can in schools. The newly reauthorized Elemen- also constrain staff time, detract from per tary and Secondary Education Act and the pupil resources, and slow school-improve- new McKinney-Vento legislation provide ment and community-building efforts.5° new strength to provisions designed to keep children who become homeless in their school of origin, for the remainder of the aca- II. Government Roles and demic year even if the child is permanently housed outside that school's boundaries (sub- Responsibilities ject of course to parents' or guardians' wishes); provide that if the homeless child The federal role in education primarily chooses to attend a school in a more conve- focuses on meeting the needs of disadvan- nient location, the school shall immediately taged students, and certainly the subgroups enroll the child even if appropriate records who are most mobile are among the most and proof of residence are unavailable, and disadvantaged their high mobility rates the school is obligated to obtain necessary adding considerably to their other disadvan- records from the child's previous school; re- taging characteristics. Despite what should quire local education agencies to provide and suffice as overwhelming evidence of the mag- pay for transportation to and from the school nitude and deleterious impact of high classof origin (and in cases where the student room mobility (only a portion of which has relocates outside the district served by that been presented here), there has been a far agency that obligation falls on the agencies too minimal role and responsibility taken by in both areas); bar (with grandfathered ex- the various levels of government to deal with ceptions in four designated counties) segre- the issue. What little there is that specifi- gation of homeless students in separate cally deals with transiency problems ap- schools or separate programs/settings pears in legislation and programs for those within schools. The newly reauthorized most obviously transient: homeless and ESEA requires states to coordinate their farmworker children. Funding states receive Title I plan and services with the McKinney- through the Elementary and Secondary Edu- Vento Act.52 cation Act does provide important support- Useful examples of state and local govern- ive educational services, but for the most ment policies and programs are as follows: part in the form of general assistance for a Illinois state law requires school districts to larger class of problems rather than that fo- share responsibility when homeless children cused specifically on problems caused by cross district lines.53 The Victoria (Texas) high mobility. Independent School District, with a heavily Pursuant to the Stewart B. McKinney Latino enrollment, has implemented, as part Homeless Assistance Act's Education for of its McKinney program, a "One Child, One Homeless Children and Youth program, re- School, One Year" policy that supports

nj 5 Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 16

homeless students' efforts to remain in their tion, and a toll-free technical assistance line. school of origin, by providing transportation Other Texas-initiated programs are Project services; creating a Family Connection pro- SMART [Summer Migrants Access Re- gram that operates after-school community sources Through Technology], a national dis- homework centers located near subsidized tance learning program, using public televi- housing developments, low-rent motels, and sion stations, cable operators, tapes, and vid- homeless shelters; operating a Parent Place eocassettes, available in nearly two dozen to check out school materials, provide states;56 ESTRELLA, "a [five-year interstate snacks, and run small computer labs; ap- initiative] program using laptop computers pointing parent liaisons who counsel highly to transform the home into a dynamic learn- mobile families; and coordinating services ing environment," designed for students for children and their families in transitional home-based in Texas;57 and the Texas Mi- living situations.54 The Houston Indepen- grant Interstate program, whose goal is "to dent School District also has a "One Child, increase the graduation rate of migrant stu- One School, One Year" policy, and its trans- dents by promoting coordination/cooperation portation department will bus homeless kids of migrant education programs that provide anywhere in the district. services to migrant students."58 A National The Migrant Education Program, funded Hotline for Migrant Families, sponsored by under Title I of the ESEA, provides supple- the U.S. Department of Education, provides mental help to support the educational needs assistance with education issues (in addition of migrant children, in recognition of the fact to assisting with health, housing, food, and that the local education agency-based struc- clothing problems).59 To deal with the in- ture of the basic Title I program did not meet creasingly salient issue of back-and-forth the needs of children who constantly are on Mexican-U.S. migration, the Binational Mi- the move from school district to school dis- grant Education Program provides a range trict. Funds are available for summer and of services. In the education area, these in- intersession programs, tutoring and coun- clude a binational teacher exchange pro- seling, and accurate credit accrual and gram, a free textbook distribution program, records transfer systems. This last-men- adult literacy programs, and binational docu- tioned issue is of particular salience, given ment transfer services.60 The recently passed that children of farmworker families move Elementary and Secondary Education Act considerable distances (often interstate). reauthorization contains significant streng- Health as well as academic records are cru- thening of existing records transfer provi- cial the former particularly important, sions, and also adds provisions tightening the given the multiple dangers of farm labor from parent involvement requirements.6' pesticides and dangerous equipment, the possibility of over-immunization, and generally poor access to health care. Texas' New III. Recommendations Generation System,55 developed by the Texas Education Agency, and supported by a con- There is a great deal that can and should sortium of state migrant education pro- be done to reduce damaging mobility and to grams, provides to subscribers Internet ac- handle mobility in the most constructive way cess to a comprehensive (but confidential) when it is unavoidable. A crucial threshold database of education and health informa- step is making policymakers in a variety of tion on more than 200,000 migrant children, areas, as well as the general public (parents school facilities where migrant children have in particular), aware of the prevalence and been enrolled, a range of general informa-

Citizens' Commission onCivilRights ,i Chapter 16 Part Two: Discriminatory Practices in Education

severity of the problem and the ways it may ity and providing necessary resources, it is inadvertently be caused or exacerbated by at the local level that changed practices are various public policies. Policy changes are needed and where effective improvements needed at all levels of government, and in can manifest themselves. School districts far more areas than just the sphere of edu- should make every effort to retain students cation. A starter list includes: who move a short distance (even if they move out of the district), at least until the end of A. Education Policies at the Federal, the school year. To the extent this requires State, and School District Level transportation assistance, this should be made available. When students do leave, The federal accountability framework health and academic records should be should provide adequate safeguards, and promptly transferred to the receiving school. enforce them strictly, to ensure that state Best practices of some local school districts and local entities protect educational rights should be widely promulgated for adoption for highly mobile students. In particular, the all over the country. As one example, the federal government should take the lead in Minneapolis Public Schools enable students improving records transfers and communi- to maintain school continuity whenever pos- cations among states and school districts, as sible, so only approximately 5% of intradis- well as between the United States and coun- trict student mobility results in school tries (notably Mexico) that regularly send changes.° Among their practices is institu- migrant workers to the United States. tion of a districtwide curriculum that en- States should mandate standardized col- sures that children who move frequently will find their new classrooms at approximately lection and reporting of school mobility data, as a vital tool in understanding the nature the same instructional point as the classroom of the problem and devising solutions. Ac- they left. The work of the Victoria Indepen- cording to a survey of state departments of dent School District described above is a education research and assessment officials model, particular for families in transitional conducted by the Harvard Graduate School housing situations. The Chicago Panel on of Education's Principals' Center, "few state School Policy has promulgated a Mobility departments of education report student Awareness Action Plan (titled "Staying Put"), mobility rates" and although "school districts designed to make educators, students, and parents aware of the damaging academic and typically report some form of student mobil- social consequences of student mobility; pro- ity rate.. .its pervasiveness is difficult to assess because equations are based on vary- mote establishment of school-based pro- ing formulae and timetables." (The Center's grams to deal with mobile students; and dis- report also notes that "national data on stu- seminate information about the Chicago pub- dent mobility is particularly scarce.")62 State lic schools' open enrollment policy as an al- leadership and a supervisory role are par- ternative to changing schools. Their bro- chure, "If You Move ... yourchildren could ticularlyimportantwithrespectto interdistrict moves, as well as ensuring that lose more than their next door neighbors," adequate attention and responsibility exist imparts basic data on the negative conse- for the time between school moves, as there quences of changing schools, outlines existing rights to avoid an unwanted transfer, and often is a several-week period when the student is attending no school at all. provides "If you do move" tips. A case study of a Los Angeles elementary While federal and state government have school with extraordinarily high (60-90%) key roles to play in mandating responsibil- annual transiency rates among its exceed-

Citizens' Commission onCivilRights ingly poor, overwhelmingly Latino student ing students from school data. It is vital that body illustrated the many ways in which all students be included in whatever ac- unavoidable transiency can be handled as countability systems are created. And of humanely as possible to create a "culture of course the concomitant obligation is to pro- caring." Included in the school's armamen- vide whatever assistance is needed to ensure tarium of approaches are a sensitive intake that mobile students do not fall behind. Ac- process; restructured classrooms to handle countability systems can employ strategies the problem of limited English proficiency; and policies, use multiple measures, create team structures to support teachers, stu- shared responsibility for students, provide dents, and parents; and strategies for pro- opportunity to learn standards, and evalu- viding individualized instruction.64 Las Ve- ate student progress over a period of years gas uses a "buddy system" to ease the ad- in order to hold schools accountable for all justment period for newcomers, pairing each students. Implementation of accountability arriving student with a long-timer.65 School systems that employ high-stakes strategies construction plans and policies should fac- without investing in opportunities to learn tor in the impact on mobility required by such will inevitably lead to unacceptable results. activities; attention should be given to alter-

natives that call for rebuilding schools in B. Housing Policies existing neighborhoods over new construction in more outlying locations.66 Local Whereas there is overwhelming evidence school board redistricting decisions, fraught that the majority of school mobility is a func- as they already are with so many consider- tion of housing mobility, the school mobility ations, focusing primarily on race and class literature has paid surprisingly little atten- concerns, should also take into account the tion to housing policy reform virtually all impact on student mobility.° And to the ex- recommendations focus on school policies. tent that issues such as school suspension But as a study using National Health Inter- policies and dropout prevention programs view Survey data concluded: "our findings .. intersect with mobility, they need to be . suggestthat residential stability may me- handled with that problem in mind, particu- diate the ill effects associated with children's larly since those issues disproportionately school lives."70 impact the same student populations who are The greatest boost to residential stability highly mobile.68 hence to school stability of course would A somewhat different aspect of school poli- come from a vast increase in the supply of cies has to do with the recent move toward decent housing affordable to all. That would accountability, embodied in the reauthorized create a situation where pressures to move Elementary and Secondary Education Act, from demand exceeding supply, =afford- which has much to offer in ensuring educa- able rent increases, gentrification, and other tional rights. Highly transient schools are destabilizing market forces would be very likely to show up poorly in performance markedly reduced. Ideally, such new and indicators and other measures by which they newly rehabilitated housing should be pro- are evaluated.69 This creates the risk that duced by socially oriented, rather than transient children may be left outside the profit-oriented, entities. A program to ac- boundaries of public accountability. In par- complish this goal will require far greater ticular, we must guard against the possibil- amounts of government subsidies than now ity that accountability systems will increase are provided, plus stronger direction of these interschool mobility by creating incentives subsidies into the below-market sector.7' to transfer students as a method of exclud-

; 38 Citizens' Commission onCivilRights Chapter 16 Part Two: Discriminatory Practices in Education

Over recent years, there has been a mas- larly, eviction actions initiated by local sive loss in the supply of low-income hous- housing authorities should take into con- ing units. Housing trends nationally reflect sideration such timing questions and in- a decreasing supply of housing that is both sofar as possible not act so as to impose affordable for and available to low-income unnecessary educational damage on fami- families, generally resulting in a sharp de- lies they feel they must remove. crease in the supply of affordable private market rentals.72 Minorities of course still Community development corporations face overt and covert discrimination on the (CDCs)" and other nonprofit sponsors/ part of the various housing gatekeepers. owners/managers of housing entities Since existing research indicates that hous- that are in the housing business not to ing instability and changes are the principal maximize profits but to provide a decent trigger for school changes, and since for residential environment at the lowest lower income, minority, homeless, and cost should take school relocation is- farmworker families such changes tend to sues into account when they feel they be largely involuntary, any substantial re- must force tenants to move. duction in the incidence of housing-related school changes necessarily involves interven- Privately owned rental housing of course tion in the housing system. That small por- is more difficult to regulate or influence; tion of the nation's housing stock that is in owners of such housing generally have little public and nonprofit ownership offers the interest in the overall welfare of their ten- most hopeful prospect for reduction in un- ant families, and in their efforts at profit desirable school changes; since such hous- maximization will take steps detrimental to ing is disproportionately occupied by those sitting tenants. What can help such tenants families who are the primary concern of this most in creating the residential stability chapter, some important gains are possible that in turn ensures school stability for their here. We recommend the following: children are local and state regulations creating something along the lines of a "right to Local public housing authorities should stay put."" Obviously, rent and "just cause" be made aware of the impact of forced eviction controls, as well as condominium displacement on children's education. conversion and demolition controls, can do Notably, the HOPE VI program, which a great deal to ensure residential stability, is demolishing tens of thousands of units and to the extent that in turn ensures school in public housing projects all over the stability, this adds to the argument that such country and displacing occupants," housing regulations benefit those being should at a minimum time its displace- harmed by the workings of the unfettered ment activities so as to avoid the neces- housing market.76 To the extent that vari- sity for children to change schools dur- ous federal, state, and local anti-discrimina- ing the school year; and family relocation tion laws help create additional stability, programs should factor in locational con- these too can assist in reducing school mo- siderations so as to minimize the prob- bility problems; and expanding the category ability that students will need to change of factors that fall under such laws will add schools. The federal Department of Hous- to such protections. Mortgage foreclosure ing and Urban Development (HUD) programs and eviction prevention programs should mandate such planning proce- in place in some localities provide an addi- dures for local housing authorities. Simi- tional source of stability, and these should be adopted widely.77

Citizens' Commission onCivilRights -

The society's interest in promoting school to be served in government regulation of stability which can and should be en- evictions.80 To the extent it can be shown that hanced via dissemination and wider under- forced displacement imposes severe educa- standing of research results showing the tional costs on those most in need of a good harm caused by instability might also lead education, laws might be passed forbidding to limited eviction protections based explic- eviction in tandem with programs provid- itly on avoiding the harm of forced moves ing short-term financial relief so that such during the school year. We already have scat- forced moves could not occur during the tered laws that forbid or postpone eviction, school year. A property owner's absolute at least temporarily, under certain circum- right to evict tenants is already constrained stances. Examples are local ordinances that in a number of other ways, at least in some disallow eviction (or utility shutoffs, which jurisdictions (e.g., when the eviction is in can effectively force people to move) when retaliation for the tenant's assertion of rights, the temperature falls below a certain level. such as having the housing code enforced). An amendment to the District of Columbia

Landlord-Tenant Act (section 2, D.C. Act 4- C. Homelessness, Welfare, Child 143, new section 501a) stipulates that "no Welfare, and Migrant Family landlord shall evict a tenant on any day when the National Weather Service predicts at 8 Policies a.m. that the temperature at the National Airport Weather Station will not exceed The few existing federal categorical pro- twenty degrees Fahrenheit within the next grams that assist educational stability and twenty-four hours." And the 1940 Soldiers' educational success for homeless and mi- and Sailors' Civil Relief Act (besides requir- grant students should be preserved and ex- ing temporary reduction in mortgage inter- panded, and of course adequately enforced. est rates, hence monthly payments) forbids Information about successful model pro- or closely regulates evictions and mortgage grams at the state and local levels should be foreclosure actions for reservists and Na- widely disseminated, and replicated all over tional Guard personnel called up for active the country. duty.78 Related ly, the Secretary of Housing In the area of welfare reform, greater and Urban Development issued a telegram awareness of and attention to the classroom in February 1977 ("Subject: Weather/Fuel turnover problem are warranted. Welfare Shortage Problems") to all HUD regional and policies that result in family relocation must area offices enunciating a policy that "no be analyzed in light of their unintended nega- persons will be evicted from HUD-owned tive consequences for education rights: If property unless you are certain that the per- intergenerational patterns of poverty and sons evicted are able to move into decent, welfare dependence are to be ended, ad- safe, sanitary and satisfactorily heated hous- equate education of children is as important ing. Absent such assurances, no occupants a consideration as are issues of parental will be evicted."79 A unanimous Massachu- employment. Timing and necessity of resi- setts Supreme Court decision upheld a Cam- dential relocation in order to meet require- bridge ordinance that gives the city discre- ments of or take advantage of opportunities tion to grant or withhold eviction permits under welfare reform programs need to take when the purchaser of a condominium wants place with full appreciation of the associated to evict the current occupant so a new pur- educational impacts. Federal and state wel- chaser can move into the unit. The court held fare administrators should receive and dis- that there was a legitimate public interest seminate materials on the issue of classroom

4 0 Citizens' Commission onCivilRights Chapter 16 Part Two: Discriminatory Practices in Education

mobility, along with recommendations for D. Needed Research policy modifications in light of such understanding. Opportunity for adding this in-tpor- Clearly, this is an area where additional tant consideration presents itself during the research is needed.82 Among the questions upcoming Temporary Assistance for Needy we have initially identified are: Families Program (TANF) reauthorization process. Among the ways in which welfare What is the impact of a highly mobile reform can reduce student mobility are: use classroom on the stable students in that of TANF dollars to avoid or postpone evic- classroom? tions and assist housing programs (including using Individual Development Accounts What is the impact of highly mobile class- designed to assist families in saving to buy a rooms on teachers? home); and using TANF funds to assist with after-school tutoring so as to minimize the What are the ways in which welfare re- negative impacts of school change.81 form impacts classroom mobility? Child welfare, in particular foster care, is another area where increased sensitivity to What are the ways in which the child wel- the problem of school/classroom mobility is fare/foster care system impacts classroom warranted. While decisions about placing mobility? children in foster homes are complex, at least one important consideration, with respect What financial costs are imposed on to location and timing, should relate to the school systems as a result of high class- impact on school stability. Wherever pos- room mobility? sible, such placements should avoid the need to change schools, especially within a school How does high mobility impact new ac- year. Again, educational materials and, as countability systems? appropriate, directives should be disseminated to government and private social work- What is the experience of private/paro- ers working in the foster care system. chial schools with classroom mobility? In the area of migrant families, the U.S. Department of Education must be far more How does the Department of Defense aggressive in ensuring that electronic inter- deal with classroom mobility in the state records transfer systems are put into schools it runs? place. The Department also needs to ensure that its financing formula acknowledges the To what degree do the leading education current geographical distribution of students reform proposals e.g., higher teacher who are appearing in many new places qualifications, smaller schools/class- rather than basing allocations on outdated rooms, improved equipment reduce demographics. Finally, the Department classroom mobility? needs to ensure, via closer enforcement, that migrant student program funds are spent so What litigation possibilitiesin the hous- as to produce educational benefits most ef- ing area as well as the education area fectively. exist to force needed change: what are the legal theories, with respect to housing policy, school policy, and other rel-

Citizens' Commission onCivilRights evant areas, that might produce desir- hope that this article will be a step in the able results? process of increasing awareness of the cen- trality of the issue of high classroom turn- A multipronged approach to addressing over and beginning to implement changes in high classroom mobility should seek to sup- housing, school, welfare, homelessness, mi- port family stability and family-school en- grant worker, and foster care policies that gagement in an integrated and comprehen- reflect the need both to reduce such damag- sive manner as well as protect educational ing turnover and to handle it in the least edu- rights by instituting shared responsibility for cationally harmful manner when it cannot mobile students among schools, school dis- be avoided. tricts, and government at all levels. It is my

4") 4 2

Citizens'Commission onCivilRights IP

Endnotes

1 Chester Hartman ([email protected]) is the President/Executive Director of the Pov- erty & Race Research Action Council in Washington, D.C. PRRAC is a national public interest organization that networks between the civil rights and anti-poverty communities, and provides support for and dissemination of social science research on the intersections of race and poverty that in turn is designed to support a planned advocacy agenda. This chapter is based largely on the June 2000 PRRAC conference, held at Howard University Law School, "High Student Mobility/Classroom Turnover: How to Address It? How to Reduce It?" The conference was supported by grants from the George Gund Foundation and the Spencer Foundation. Sandra Paik, PRRAC's former Director of Education Programs, contributed material to this chapter, and Roger Rosenthal of the Migrant Legal Action Program and Patricia Julianelle of the Na- tional Law Center on Homelessness and Poverty provided helpful consultation. U.S. General Accounting Office (GAO), Elementary School Children: Many Change Schools Frequently, Harming Their Education (Washington, D.C.: GAO 1994) (GAO/HEHS-94-45). 3 Private/parochial schools are not treated in this chapter, and there appears to be little information about classroom turnover in these systems. Also omitted from this discussion are public schools run by the Department of Defense and the Bureau of Indian Affairs; how the former in particular, where considerable school mobility is essentially built into the assignment rotation system, handles mobility would make an interesting, likely useful inquiry. For a recent general discussion of these systems, see U.S. General Accounting Office, "BIA and DOD Schools: Student Achievement and Other Characteristics Often Differ from Public Schools' (Sept. 28, 2002) (GA0-01-934). 4 "A Study of Student Mobility in Texas Schools," Statewide Texas Educational Progress Study, Report No. 3 (Austin, TX: Texas Education Agency Mar. 1997) ("Mobility in Texas Schools"). Del Stover, "Schools Grapple with High Mobility Rates," School Board News (June 13, 2000) ("Schools Grapple"). Jim Carnes, with Linda Linssen, "Musical Chairs: Booming Las Vegas Schools Struggle to Make a Place for Everyone," Teaching Tolerance, at 56-61 (Fall 1997) ("Carnes and Linssen"). 7 Russell W. Rumberger et al., The Educational Consequences of Mobility for California Students and Schools, at 23 (Berkeley, CA: Policy Analysis for California Education 1999) ("Con- sequences of Mobility"). Id. at 28. 9 David Kerbow, "Patterns of Urban Student Mobility and Local School Reform," 2 Journal of Education for Students Placed at Risk 150 (1996) ("Patterns"). 10 The only such article we have found appeared in The Progressive (Ruth Conniff, "Bounc-

240 Z 4 3 Citizens' Commission onCivilRights ing from School to School: The Housing Crisis Disrupts the Classroom," The Progressive, at 21- 25 (Nov. 1998)). Useful bibliographies of the academic literature can be found in Mobility in Texas Schools; Patterns; and Karl L. Alexander, Doris R. Entwisle and Susan L. Dauber, "Chil- dren in Motion: School Transfers and Elementary School Performance," 90 Journal of Educa- tional Research 3-12 (1996). The National Center for Homeless Education has available on its website () an annotated bibliography and article reprints. " Kerbow notes in Patterns, "Without a certain level of stability, it is unclear how school- based educational programs, no matter how innovative, could successfully develop and show long-term impact." 12David Kerbow, Pervasive Student Mobility: A Moving Target for School Improvement, at iv (Chicago: Center for School Improvement) ("Pervasive Student Mobility"); and Patterns. " Cited in Mobility in Texas Schools at 9.

14A Report from The Kids Mobility Project, at 6, 7 (Minneapolis: Family Housing Fund Mar. 1998) ("Kids Mobility Project"). " Russell W. Rumberger et al., "The Educational Consequences of Mobility for California Students and Schools," Policy Brief (Berkeley: Policy Analysis for California Education), at 2 (May 1999) ("Rumberger Policy Brief"). Rumberger and his colleagues, in a separate publication, deal with the specific issues facing Latino students; see Russell W. Rumberger et al., "The Hazards of Changing Schools for California Latino Adolescents," CPS Brief (Oct. 1998). 16 Patterns. 17 James E. Bruno and Jo Ann Isken, "Inter- and Intra-school Site Student Transiency: Practical and Theoretical Implications for Instructional Continuity," 29 Journal of Research and Development in Education 247. 18PRRAC, in conjunction with Legal Services of New York, is currently engaged in a project to assemble available eviction data magnitude, incidence, causes, results and propose a national eviction tracking database, to appear initially as a forthcoming article in Housing Policy Debate by Chester Hartman and David Robinson. 19 Rumberger Policy Brief reports that "Our statistical analysis of school test scores found that average student test scores for non-mobile students are significantly lower in high schools with high student mobility rates," a phenomenon they attribute to a "chaos" factor. 20 Bruno and Isken list other school site impacts caused by transient students, as reported by teachers: added clerical time processing paperwork and finding prior records of arriving students, additional testing and placement time, remediation needs, counseling students, teachers, and families. 21David Wood et al., "Impact of Family Relocation on Children's Growth, Development, School Function and Behavior," 270 Journal of the American Medical Association 1334-1338 (1993) ("Impact of Family Relocation"). 22Patterns. 23Consequences of Mobility at 63. 24Kids Mobility Project. 23An unusual form of residential instability was reported by an elementary school principal in Las Vegas, where "about two miles from The Strip ...there are new complexes all over the area. They all offer special 'one month free' move-in rates, so many of our families pick up and move every few months to get the deals." Carnes and Linssen at 56. Mobility in Texas Schools at 8 makes a similar observation: "Some poor families move constantly in order to take advantage of 'move-in specials' at apartment complexes in the area. The students may be at a given school for only three of four months, until they move to the next apartment with a re-

Citizens' Commission onCivilRights 244 Chapter 16 Part Two: Discriminatory Practices in Education

duced rent." 26National Law Center on Homelessness and Poverty, Separate and Unequal: A Report on Educational Barriers for Homeless Children and Youth (Jan. 2000) ("NLCHP Report"). 27See Michael Janofsky, "Debate Weighs Merits of Schools for Homeless," The New York Times, Sept. 19, 2001 ("Debate Weighs Merits"). 28See Deborah Stein, "Does Welfare Reform Create, Exacerbate or Ameliorate Student Mobility and Success?," paper prepared for Children's Defense Fund Annual Conference, Apr. 18-21, 2001 ("Does Welfare Reform Create"); "A Multi Dimensional Challenge: How Do Schools, Education Policies, Housing Policies, Child Welfare Policies, and Welfare Reform Create or Exacerbate Mobility?," paper prepared for PRRAC's June 2000 conference mentioned in note 1 ("Multi Dimensional Challenge"). 29Kristin Anderson Moore, Sharon Vandivere, and Jennifer Ehrle, "Turbulence and Child Well-Being," in Assessing the New Federalism, at 3 (Washington, D.C.: The Urban Institute June 2000) ("Moore et al."). See generally, Children's Defense Fund, Families Struggling to Make It in the Workforce: A Post Welfare Report (2000). 30Moore et al. 31Does Welfare Reform Create. 32Angela M. Branz-Spall and Roger Rosenthal, "What the Title I Migrant Education Pro- gram Needs in 2001," Title I Monitor, at 1 (Feb. 2001). 33National Association of State Directors of Migrant Education (NASDME) and National Association of Migrant Educators, "Giving Migrant Students an Opportunity to Learn" (Sunnyside, WA) (NASDMLE Report). 34"In the District [of Columbia], thousands of children have spent four to five years bouncing among foster and institutional homes before they find a permanent home"and so they are also bouncing among many schools at arbitrary times within the school year. Sari Horwitz and Scott Higham, "Record Numbers of D.C. Children Go to Foster Care," The Washington Post, Feb. 28, 2000, at Al. Should there be a return to some improved form of "children's homes," as possibly may be the case, this would have important implications for the education enterprise and the incidence of classroom turnover for these students. See Jena Hopfensperger, "Children's Homes: An Old Idea Stirs" (Minneapolis Star Tribune, Jan. 27, 2002, at B1), which notes that, according to Prof. Richard Barth of the University of North Carolina, a national expert on children in out-of-home care, "proposals to create new institutions [to remedy failures in the foster care system] are surfacing not just in Minnesota, but nationwide." 35Patterns at 154. 36Consequences of Mobility at 71-78. 37Bruno and Isken at 241. 38Impact of Family Relocation at 1337. 39Consequences of Mobility at 26. 40Patterns. 41Id. at 158-59. 42Schools Grapple. 43Rumberger Policy Brief at 3. " Consequences of Mobility at 60. 45Id. at 33. 46NASDME Report. 47See, e.g., Kids Mobility Project at 7-8. 48Consequences of Mobility at 59.

245 Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 16

49Bruno and Isken. 5° Id.

51See Debate Weighs Merits; NLCHP Report. 52Details and further relevant provisions are to be found in section 722(e) and 722(g) of the McKinney-Vento Act and section 1112(a) and 1112(b) of the new ESEA. For further details on the new McKinney-Vento and ESEA legislation, see the National Coalition for the Homeless website: . 53See Ill. Ann. Stat. ch. 105 S 45/1-15(2) (WESTLAW 2000): "[The school district of origin and school district in which the homeless child is living shall meet to apportion the responsibility and costs for providing the child with transportation to and from the school of origin. If the school districts are unable to agree, the responsibility and costs for transportation shall be shared equally." 54 See Victoria Independent School District, "KIDZ Connection: One Child, One School, One Year." , 800-365-1873 56The contact number for Project SMART is 800-292-7006. 57ESTRELLA contacts are 888-637-0555, [email protected]. 58 Information about the Texas Migrant Interstate Program isavailable from [email protected], 800-292-7006. 59The contact number for the Hotline is 800-234-8848. 60The Binational Migrant Education Program is reachable at 512-245-1365 (Frank Contreras, Director).

61Additional information on migrant education issues is available from the National Asso- ciation of State Directors of Migrant Education, , and the Migrant Legal Action Program, [email protected]. 62The Principal Advisor, Vol. 1, No. 2, at 1 (Mar. 2000). 63Kids Mobility Project. 64Lynn G. Beck, Cindy C. Kratzer, and Jo Ann Isken, "Caring for Transient Students in One Urban Elementary School," 3 Journal for a Just and Caring Education 343-369 (1997). See also Norma Frank, Sailing New Seas: Helping Students in Grades 1-4 Cope with Moving (Warminster, PA: mar*co products 1999), a detailed handbook of useful ideas for students, counselors, teachers, and administrators. 65Carnes and Linssen. 66The National Trust for Historic Preservation's "Historic Neighborhood Schools Initia- tive" deals with this issue; see Constance E. Beaumont, with Elizabeth Pianca, Historic Neigh- borhood Schools in the Age of Sprawl: Why Johnny Can't Walk to School (Nov. 2000). 67For a recent account of one such controversy in a rapidly growing Maryland county, see Nurith C. Aizenman, "Howard School Shuffle Creating a Fury," The Washington Post, Jan. 13, 2002, at Cl. One 14-year-old student cited in this account has lived in the same home since kindergarten, yet will have attended six schools in seven years if the proposed redistricting plan is approved, the combined result of boundary changes and normal progression from elementary to high school. 68See, for example, Robert C. Johnson, "Dropout Studies Target 'Pockets of Problems," Education Week, at 3 (Jan. 14, 2001); Michael A. Fletcher, "Progress on Dropout Rate Stalls," The Washington Post, Mar. 3, 2001, at Al; Emily Wax, "Rethinking Suspended Education," The Washington Post, Jan. 12, 2002, at Bl. 69Mobility in Texas Schools reports that "on average, student turnover rates among Low-

Citizens'Commission onCivilRights 446 Chapter 16 Part Two: Discriminatory Practices in Education

performing schools were twice as high as those among Exemplary schools." 70 C. Jack Tucker, Jonathan Marx, and Larry Long, "Moving On': Residential Mobility and Children's School Lives," 71 Sociology of Education 125 (1998). 71 For a detailed presentation of such a program, see Institute for Policy Studies Working Group on Housing, The Right to Housing: A Blueprint for Housing the Nation (1989). 72See National Low Income Housing Coalition, "Out of Reach 2001: America's Growing Wage-Rent Disparity" (2001); Joint Center for Housing Studies of Harvard University, "The State of the Nation's Housing 2001" (2001). 73See Michael S. FitzPatrick, "A Disaster in Every Generation: An Analysis of HOPE VI: HUD's New Big Budget Development Plan," Note, VII Georgetown Journal on Poverty Law & Policy 421-448 (2000). 74See Rick Cohen, "The Role of Community Development Corporations in Implementing a Right to Housing," in Housing: Foundation of a New Social Agenda (Rachel G. Bratt, Chester Hartman, and Michael E. Stone eds., Philadelphia: Temple University Press, forthcoming). 75 Chester Hartman, "The Right to Stay Put," in Land Reform: American Style (C. Geisler and F. Popper eds., Totowa, NJ: Rowman and Allanheld 1984); reprinted in Chester Hartman, Between Eminence and Notoriety: Four Decades of Radical Urban Planning (New Brunswick, NJ: Rutgers Center for Urban Policy Research 2002). 76For a compendium of such forms of assistance, see the handbook "Displacement: How to Fight It," by Chester Hartman, Dennis Keating, and Richard LeGates (Berkeley, CA: National Housing Law Project 1982). 77For details on such programs, see the forthcoming Housing Policy Debate article referred to in note 18. 78 "Protections for Military Renter Households Under the Soldiers' and Sailors' Relief Act," Housing Law Bulletin, at 262-263 (Nov./Dec. 2001). 79 National Housing Law Project, VII Law Project Bulletin 1 (Jan./Feb. 1977) 80Flynn v. Cambridge, 418 N.E. 2d 335 (1981). 81See Multi Dimensional Challenge. 82Under PRRAC's research/advocacy grants program, a number of projects will be commissioned to provide this needed information.

Citizens' Commission onCivilRights -

Chapter 17 Limited English Proficient Students and High-Stakes Accountability Systems by Jorge Ruiz de Velasco and Michael Fix'

Introduction Studies by the Citizens' Commission on Civil Rights (1999 and 2001), however, have In 1994 Congress required all states to shown widespread noncompliance by states implement comprehensive accountability with the 1994 law and a reluctance by both the Clinton and Bush Administrations to en- systems for schools receiving federal funds force its provisions regarding the appropri- under the Elementary and Secondary Edu- ate assessment of LEP students and consid- cation Act (ESEA). This new federal requirement responded to civil rights advocates' eration of their performance in Title I ac- concerns that schools serving large numbers countability systems.4 Moreover, most states have failed to provide the resources needed of poor, minority, and limited English profi- by schools to effectively educate LEP stu- cient (LEP) students set lower standards for dents to high standards. Yet, despite these their education and thus ratified lower ex- failures, some states have decided to use pectations for their performance.2 These their assessments to visit high-stakes con- changes in the ESEA made a dramatic break sequences on students (e.g., relying on test with past practice by requiring states to replace minimum standards for poor and aca- scores to determine student promotion and demically disadvantaged children with chal- graduation). Such uses of tests, especially lenging standards for all students. New ac- where the curriculum and instruction are not countability systems were to be based on aligned with standards, can violate both ac- state-established content standards for read- cepted professional guidelines and federal ing and math, include assessments aligned civil rights law. The bar for achievement is being raised in with those standards, and would require that states hold all students to the same perfor- every state. Yet, there is now a growing body mance standards. of evidence that the inclusion of limited-En- In 2001, Congress again reauthorized the glish speaking students into one-size-fits-all state accountability systems is proving prob- ESEA when it passed the No Child Left Be- lematic. Case study and early outcome data hind Act (NCLB).3 The NCLB mandates annual testing of every child in grades three to suggest that many schools continue to lack the capacity to help LEP students meet new eight and strengthens requirements that standards. Wide language, literacy, and skill states hold schools and districts accountable diversity among LEP students as well as con- for student performance, including, specifically, minority students, poor students, and tinuing knowledge gaps within the educa- those with limited proficiency in English. tion profession about how to best serve LEP students often leave teachers unprepared to

Citizens' Commission onCivilRights - D

Figure 1: Percent of Children Who are Children of Immigrants,Top 10 States: 1996-1999

Foreign-Born (1st Generation) El U.S. Born Children of Immigrant (2nd Generation)

40%

24% 24% 25 21% 22% 21% 22% 20% 15%

rk 7% 5% 6% 357 4%

California Arizona New York Hawaii Florida Nevada New Texas Rhode New Jersey Island Mexico

Source: Urban Institute tabulations of edited 1996-1999 March Current Population Survey (CPS) help their students meet the same standards (as the recently reauthorized ESEA does), applied to all students. These challenges are federal programs might better serve LEP increasingly complicated as the number of students by targeting federal assistance to a LEP students in U.S. schools grows and their discrete but critical set of concerns that re- families settle in communities with little ex- main unaddressed. A carefully targeted ap- perience or infrastructure to work effectively proach can draw attention to the unmet with language minority children. The prob- needs of LEP youth and build local capacity lem is perhaps most daunting in secondary to meet those needs. schools, many of which are failing to provide LEP students with language development services needed to move into mainstream I. Selected National Trends instruction. These developments have important im- To set our discussion in context, we begin plications for federal policies intended to by noting several powerful demographic support the education of LEP students. trends that bear on the nation's schools. Ac- Rather than block granting most federal LEP funds directly to states on a formula basis cording to the Census, one in five children under 18 is the child of an immigrant a

;249 Citizens' Commission onCivilRights -

Figure 2: Foreign-Born Population for Selected States and Areas

Thousands of Foreign-Born Persons 7,999 8,000 E1990 1999

6,000 5,032 New im m ig ration States 4,000 3,537 2,918 2,343 2,326 2,000 1,132 1,161

0 CA NY FL TX IL NJ Traditional All Other

Source: 1990 Census and March 1999 CPS

share that has more than tripled within a they receive from the federal government is generation and that will grow in the coming quite limited. Both challenges also confront years (Figure 3). Over half of all children in communities that have not been destinations New York City and 60% of all children in of immigrant flows in high immigrant states. Los Angeles are the children of immigrants. Our research reveals that foreign born im- Rapid growth has led to population dispersal migrant children represent a larger share in the nation as the communities with large of the total high school population (5.7%) shares of immigrant children are no longer than of the total elementary school popula- confined to a few gateway cities or states. tion (3.5%). Recently arrived foreign born For example, during the 1990s the immigrant immigrants (i.e., those in the United States population grew twice as fast (61 versus 31%) less than five years) also represent a larger in nontraditional receiving states as it did share of the secondary than elementary in the six states that receive the largest num- school populations (2.7 versus 2.0%). These bers of newcomers (Figure 2). School dis- recently arrived students, in particular, are tricts in these states are likely to have few likely to require additional language and staff who are experienced in educating im- other services. Despite the fact that recently migrant children. Moreover the impact aid arrived immigrant children represent a

250 Citizens' Commission onCivilRights -

Figure 3: Percentage of Children Who Are Children of Immigrants, By Age and Generation: 1996-1999

19.4% of All Children 15.5% of All Children Are Are Children of Immigrants U.S.-Born 22% Children of Immigrants 20%

16%

3.8% of All Children 12% Are im m ig rants 6% 3% 1 %

Birth to Ages Ages Birth to Ages Ages Birth to Ages Ages Age 4 5 to 11 12 to 18 Age 4 5 to 11 12 to 18 Age 4 5 to 11 12 to 18

Source: Urban Institute tabulations of edited 1996-1999 March CPS larger share of middle and high school than High Levels of LEP Segregation in elementary school students, LEP secondary Schools school students are less likely to be enrolled in English-as-a-Second-Language (ESL) or bilingual classes than LEP elementary One particularly troubling trend among school students (Figure 4). More recent data children in immigrant families is their seg- released by theU.S.Departmentof regation within schools. One half of limited Education's Office for Civil Rights indicates English proficient children (K-12) attend that secondary schools are having difficulty schools where a third or more of their fel- providing large numbers of LEP students low students also have difficulty speaking with any special instructional or support English (Figure 6). (By way of contrast only services tailored to meet their special lan- 2% of non-LEP students attend such guage development needs (Figure 5). One set schools.) This means that immigrant children of explanations for these disparities is that are going to schools that are not just ethni- ESEA funds flow disproportionately to el- cally and economically segregated, but also ementary schools and that secondary schools linguistically isolated. have generally been slower to respond to reform pressures than elementary schools.5

(-51

Citizens' Commission onCivilRights -

Figure 4: Bilingual/ESL Enrollment by Grade Level

Percent of LEP Students Enrolled in Bilingual or ESL Classes

Grades K-5 Grades 6-8 Grades 9-12

Source: 1993 Schools and Staffing Survey (Student Surveys)

II. LEP Students and Unfortunately for LEP students and their teachers, many states have put standards Standards-Based and high-stakes assessments in place ahead Accountability Systems of the support and teacher preparation that are prerequisite for their success. To the Many proponents of standards-based re- contrary, many state accountability systems forms envisioned that before implementing make two important assumptions about the new curriculum and student performance classroom: first, that the basic elements for standards, schools would have the support academic success (i.e., educators with appro- they need to meet new demands. At a mini- priate resources and know-how) already ex- mum, this meant an adequate supply of high- ist in the classroom;6 and second, that stu- quality textbooks, technological software, dents are ready to perform at or near the and other instructional materials that would desired performance level.7 promote learning to the new standards. With these assumptions as a point of de- Some advocates of standards-based reforms parture, student test scores become in many also assumed that pre-service and in-service states an exclusive measure of performance professional development systems would that drives rewards and penalties for stu- serve the new curriculum standards. dents and school staff. All that is theoreti-

-52 Citizens'Commission onCivilRights ..-

Figure 5: Proportion of Unserved LEP Students by State and School Type, 1998-1999

40% 35% 30% 25% BRElementary 20% E Middle 15% M High 10% 5% 0% California Texas New York National

Source: Fall 1998 Elementary & Secondary School Civil Rights Compliance Report, Office for Civil Rights, U.S. Department of Education (excludes schools where students could not be disaggregated by grade spans K-6, 7-8, 9-12, about 4.5% of schools).

cally needed for success is for administra- support to schools serving large numbers of tors, teachers, and students to be given clear LEP students.' signals about what is expected (performance

standards) and the right set of incentives (ac- A. Demographic Diversity: New countability systems and high-stakes assess- Faces, New Challenges ments) to get them to focus on production (meeting the standards). There is some emergent evidence that One of the biggest challenges schools have however applicable these assumptions are in fitting LEP students into accountability to the typical classroom, they do not hold for regimes derives from their wide diversity immigrant and other language minority stu- and needs. Data from the 2000 Census are dents and the teachers who work directly only now beginning to bring into sharp re- with them. In the sections that follow we lief a basic fact about LEP students that examine why the inclusion of LEP students teachers and administrators have known for in effective accountability systems isa chal- a while: English language learners vary con- lenge and why it will likely remain so in the siderably with respect to the number of lan- absence of better targeted state and federal guages they speak, the level of prior schooling in their native languages, the level of

250 Citizens' Commission onCivilRights ;. 5 3 Figure 6: Comparison of Schools with Limited English Proficient Students

70 61 O Non-LEP Children 60 LEP Children

50 4 8

40 32 30 30

20 20

10 7 2

Less than 1% 1 to 10% 11 to 30% 31% or More Percent LEP in Child's School

Source: Schools and Staffing Surveys (School Surveys, 1993-94)

parent education, and the nature of home Recent studies of immigrant secondary literacy practices (e.g., whether students are education programs have identified two LEP read to at home) as well as in the degree to student subpopulations as being of special which they are linguistically isolated from concern. One is the set of immigrant chil- English learning outside the classroom set- dren who arrive as teenagers. The time avail- ting. All of these factors have been found to able for these late-arriving secondary stu- bear on classroom learning and may require dents to master a new language and pass different kinds of interventions, teaching subjects required for high school graduation strategies, and curricula. Indeed, some edu- is limited. As a result, language and content cators have questioned whether the level of instruction must be offered simultaneously diversity found among LEP immigrants rather than sequentially. Our research re- might require that schools move away from veals that little is known about how best to offering one basic language development help late-arriving teens master language and program to an approach similar to special content while also meeting new state stan- education, in which schools develop an indi- dards.' vidualized education plan for each student. Another subgroup that concerns classroom Some states, including Texas, have taken teachers is the growing number of under- some steps in this direction. schooled newcomers who must overcome

'5 4 Citizens' Commission onCivilRights - ID

critical literacy gaps and the effects of in- propriate way to translate state achievement terrupted schooling in their home countries. tests into other languages and some (e.g., Il- Schools rarely collect data on the prior linois) specifically prohibit local officials schooling of immigrant students, so their from doing so." The lack of reliable content precise number in U.S. schools is not known. area assessments or information on appro- One estimate indicates that 20% of all LEP priate assessment accommodations for LEP students at the high school level and 12% of students is a challenge in all states develop- LEP students in middle schools have missed ing standards-based accountability systems. two or more years of schooling since age six.1° The basic predicament for schools is that 2. A Long-Term Shortage ofTrained underschooled LEP students most often ar- Teachers . rive with a weak foundation for learning a second language and have difficulty work- Critical shortages of language developing at age-appropriate levels in required ment and other specially trained staff place subjects even when taught in their native or special burdens on schools as they struggle primary languages." Moreover, because to meet the needs of a growing number of most ESL and bilingual education programs LEP students. Consider these data from the for secondary school youth assume some na- last national Schools and Staffing Survey: tive language literacy as a foundation for sec- only 30% of public school teachers instruct- ond-language learning, they are not de- ing limited-English students nationwide resigned to develop the basic literacy that chil- ported receiving any special training for dren would normally have acquired in el- working with these students. Moreover, 27% ementary schools.12 of all schools with bilingual/ESL staff vacancies and 33% in central city school dis- B. Continuing Low System Capacity tricts reported finding them "difficult" or "impossible" to fill.14 Another challenge to LEP student educa- The long-term shortage of new teachers tion is that even the best of schools often lack specially trained to work with LEP students the capacity to meet student needs. Here the underscores the importance of training vet- problem is not just about the need for more eran teachers to work more effectively with resources. The problem encompasses a criti- new populations of LEP immigrants. This cal need for new, and as yet undiscovered, imperative is especially strong in secondary resources. schools, where LEP students are often in mainstream subject classes for at least part I. A Lack of Reliable Assessment of their school day. Yet, training around LEP Instruments issues (e.g., language acquisition, LEP assessment, and multicultural awareness) is Chief among these capacity issues is a often focused on language development long-standing lack of reliable assessment teachers while training for mainstream sub- instruments available for testing LEP stu- ject teachers and administrators lags." dents' content knowledge (e.g., mathematics, social studies, science) in Spanish and other native languages. Although some states have produced Spanish-language versions of the state content tests (e.g., Texas), others have determined that there is no ap-

Citizens' 'Commission onCivilRights D -

C. Persistent Professional encounter difficulties in language and sub- Uncertainty over LEP ject matter learning because of limited exposure to English speakers in their home Curriculum and Instruction and peer-group settings. Such nonclassroom contact has been found to accelerate lan- While there appear to be a number of ef- guage and subject learning by exposing LEP fective strategies for helping LEP students students to novel word meanings and stan- develop basic oral English speaking and com- dard/academic discourse styles that are re- prehension skills, a review by the National warded in classroom work.2° Academy of Science (NAS) suggests that professional knowledge on how to help LEP stu- D.School Organization Issues That dents develop academic English literacy remains at an early stage of development. This Impede LEP Students in problem is particularly acute in secondary Secondary Schools schools where learning in mainstream content classes requires background knowledge The organization of work and time in the and advanced literacy skills (both linguistic typical secondary school is often incompat- and cultural) that second-language learners ible with the needs of English language may not possess.16 In the typical social sci- learners and tends to isolate them and their ence class, for example, students must be able language development teachers from the to construct arguments and discuss alterna- mainstream school program.21 These con- tive solutions to social problems in English. cerns are all the more important as LEP stu- In mathematics, students must work with dents are expected to meet the same con- English texts containing vocabulary specific tent performance standards as all other stu- to math (e.g., integer, algebraic), as well as dents in order to graduate. everyday words that have different meanings in mathematics (e.g., table, irrational). I. Organization of Secondary School Staff The predicament for many LEP students is that this level of academic English may take The organization of secondary school staff 4 to 7 years to acquire under the best of dr- into subject or functional departments (e.g., cumstances,17 while the window of time stu- English and science departments or special dents have to master the subjects required education and ESL departments) often has for graduation is limited.18 problematic consequences for LEP students The NAS study also identified continuing and their language development teachers. knowledge gaps respecting the way that stu- Organizational issues arise because prepar- dent age, intelligence, and attitudes medi- ing LEP students to participate in main- ate language learning. Much also remains stream classrooms is viewed as a special ac- unknown about the specific relationship be- tivity outside the "normal" functions of the tween the social and linguistic environments secondary school.22 of schools and the linguistic attainments of The organization of secondary schools into students.'9 Immigrant residential patterns departments based on subject matter often and ESL bilingual programming may, for leads to the exclusion of ESL/bilingual teach- example, combine to result in schools where ers from functions, such as schoolwide cur- LEP immigrant students are concentrated riculum planning and standards develop- with other language minority students. Al- ment that often occur within the regular aca- though research in this area remains thin, demic departments. This may be especially studies have found that immigrant LEPs may true in high schools where larger student

Citizens' Commission onCivilRights Chapter 17 Part Two: Discriminatory Practices in Education

enrollments and wider grade spans compel unmet when these students and their teach- greater specialization among teachers. ers confront an inflexible schedule. In one study, departmentalization was First, teen LEP students need to spend found to encourage mainstream subject more time on all tasks that require English teachers to believe that addressing the lan- language proficiency in order to master the guage development needs of their LEP stu- content required for graduation in the short dents is the responsibility of other school time available. Accomplishing this often re- staff or departments. This belief is often requires access to extended day programs, spe- inforced by the fact that school administra- cially designed summer school, and after- tors often do not support training for main- school tutoring. But such extended program- stream teachers that is specifically designed ming requires district or state-level support to help them incorporate language develop- that is frequently unavailable. ment strategies into their math, science, or Second, teachers who work closely with history classes. Core subject teachers also LEP students need to devote more time to reported that their lack of knowledge about planning and collaboration when facing LEP students' needs often led them to have greater skill diversity in their classrooms. low expectations of their performance.23 Yet the typical teaching schedule 5 classes Ensuring effective access to the full range per day, 150 students, and a single 50-minute of a school's programs (e.g., libraries, com- planning period makes it exceedingly dif- puters, counseling, and health services) re- ficult for teachers to prepare for students quires that key staff other than teachers be with special needs, give struggling students aware of LEP/immigrant student needs. Yet, individualized attention, and collaborate principals, counselors, librarians, and other with other teachers. The complex task of support staff are rarely trained to work with teaching students at differing levels of lan- LEP youth. As a result, ESL and bilingual guage and literacy development, coupled teachers often assume duties normally with the limited body of professional knowl- handled by administrative and support staff. edge about effective teaching strategies, ESL teachers in high schools are often make working in isolation an insuperable charged with conducting library orienta- challenge. Collaboration among ESL/bilin- tions, computer classes, counseling sessions, gual teachers is important because it allows and handling discipline conferences with them to learn the approaches that other parents. LEP students in such schools have teachers are taking with LEP youth. And col- fewer adults who are specifically charged laboration between language development with their education. and mainstream subject teachers is essential for teachers to develop schoolwide strat- 2. Organization of Time in Secondary egies for helping LEP students make suc- Schools cessful transitions to mainstream instruction. This collaboration requires flexible Teachers in schools with large numbers of scheduling allowing for common planning language minority students often report that periods and opportunities for team teaching the typical school schedule (50-minute time that are too often not supported in second- blocks) and calendar (180 school days) are ary schools. too discontinuous to promote the kind of sustained, interactive, and comprehensible instruction LEP secondary students need. Teachers cite two critical needs that go

Citizens' Commission onCivilRights -

E Early Warning Signs have positive effects on student outcomes,' it has also been found that students who

I. Increasing Fail and Dropout Rates in work intensely at paid jobs tend to have the Wake of Standards-Based Reform lower grades and to dropout.29 Thus, raising graduation standards (without first ensur- As states implement new performance ing that students have the time and support standards some are finding troubling signs they need to meet those standards) signifi- that reform efforts are not translating into cantly changes short-term calculations of the improved outcomes for all students. This is relative payoffs between schooling and early particularly so where states attach conse- entry to the labor market. The push to leave quences, such as promotion or graduation school before graduating is particularly a- eligibility, to performance on state assess- cute among teen LEPs, who are often farther behind than others academically. They ments. In Texas, for example, the Texas Edu- cation Agency has reported that only 20% of are also pronounced among undocumented LEP tenth graders in the state met minimum students, whose path to postsecondary edu- qualifications on all three of the exit-level cation is effectively blocked by limited ac- tests (reading, writing and math) required cess to financial aid and whose eligibility for for graduation.24 The other 80% will face higher paying jobs in the postsecondary job steep challenges as they have only 2 years market is effectively barred by law. to master the English language and content Given these circumstances, what can fed- skills required for a high school diploma. eral policymakers do to promote accountabil- These numbers are troubling because recent ity for student outcomes while creating rea- studies confirm that low performing teens sonable and positive incentives for improv- are the most likely to drop out of school ab- ing those outcomes? sent special intervention by their teachers and schools." For example, despite increases over time in the average performance of III.Potential Strategies and black and Latino children on the state as- Policy Choices The sessment, there is also evidence that high school dropout rates in Texas have increased Federal Role in Helping for black and Latino students as a result of State and Local Educators state implementation of a high-stakes exit test for tenth graders.26 Respond to the Needs of The relationship between higher standards Language Minority and dropout rates is not hard to understand. Researchers have found that early disaffec- Students tion with school programs that fail to meet their needs and subsequent poor school per- The exclusion of LEP immigrant youth formance cause students and their families from standards-based accountability sys- to look on early labor market entry as a ra- tems threatens to widen performance dif- tional alternative to continued schooling.27 ferences between LEP students and others. While some work during high school may At the same time, applying a one-size-fits- all accountability system to an LEP population in schools with low capacity to meet their needs could lead to equally undesirable consequences. These include increased

58 Citizens' Commission onCivilRights -

grade retention and drop-out rates among vices" for LEP students.31 The newly reau- language minority students and low morale thorized ESEA expands this broad capacity- among their teachers and administrators. building role by essentially block-granting The challenge is to extend accountability most OBEMLA funds directly to states on a systems to LEP students in ways that real- formula basis." istically take into account the existing ca- Our current assessment of LEP education pacity among educators at the school level. suggests that the broad capacity-building Some considerations follow: function advanced by the new administration should instead be funded through the A. Taking a Cautious Approach to ESEA's much larger Title I program (funded "High-Stakes" Consequences with at nearly the $8 billion level in FY2001). We believe the move to broaden the uses of Respect to LEP Students OBEMLA funds will serve only to further blunt the potential effectiveness of federal As noted earlier, some states (e.g., Texas leadership on a more discrete but critical set and New York) have begun to attach high- of concerns that remain persistently unad- stakes consequences (i.e., student promotion dressed at the state and local levels. The or graduation) to student outcomes as mea- small amount of OBEMLA-administered sured by performance on state-administered funds (about $310 million in FY2001)" tests. In others, teacher and/or administra- should instead be more carefully targeted to tor pay and promotion are linked to school- critical unmet needs: (1) key research issues; level test outcomes. The central question is (2) demonstration programs that might ad- whether it is appropriate to impose such vance our understanding of promising new high-stakes consequences on individual LEP curricula, assessments, and innovative ap- students and the school-level staff who teach proaches; and (3) professional development them given the capacity issues outlined ear- programs that prepare new and veteran lier in this essay." teachers to work with language minority youth. These priorities are outlined below B. Rethinking the Role of the Federal in turn. Office of Bilingual Education and Minority Language Affairs I. The Research Needs

The U.S. Department of Education's Of- a. Expanding the Collection and Effective fice of Bilingual Education and Language Use of LEP Student Data Minority Affairs (OBEMLA) has been the fed- Data-driven reformcan be the lynchpin of eral government's lead agency in develop- a sound accountability system. At the school ing policy and supporting state and local ef- level, data on how recently students have im- forts to meet LEP student needs. In the past two decades the lion's share of OBEMLA's migrated and on the level of previous edu- targeted grants have been focused on broad cation in the home country have been found capacity building efforts to help individual to be helpful to teachers, although they are schools or school districts mount compre- not often collected by schools. These data might also help school-level staff identify sub- hensive language development programs. An populations of students (e.g., underschooled examination of OBEMLA's most recent bud- newcomers) who might have literacy needs gets indicates that roughly 60% of its funds that are not squarely met by standard ESL/ go to support "general instructional ser- Bilingual programming.

4. 5 9 Citizens' lommission onCivilRights -

Currently, few states collect school-level plary schools focus on linking LEP students data on the number of LEP students who are to whole-school reforms and tend to share retained in grade (a factor that has been four overarching elements. They: (1) involve found to correlate with dropping out) nor do all school teachers, administrators, and coun- districts routinely collect and report school- selors in reform; (2) focus on bringing lan- level data on how many LEP students are guage development and mainstream subject served in support programs other than ESL/ teachers together; (3) expand the amount of Bilingual (e.g., number also served in Title I time LEP immigrants spend in direct in- or Special Education programs). This type struction in English and the core subject ar- of data would help state and district level eas; and (4) emphasize sustained, long-term educators measure local program effective- professional development for all school pro- ness and identify unmet needs. fessionals.34 Exemplary strategies that require further b.Helping States Develop Assessment demonstration and attention included: Instruments in the Core Subjects Appropriate for Use with English Language Explorations in how to implement whole Learners school reforms in ways that take the special needs of LEP students into account State policymakers are struggling with (e.g., schoolwide professional develop- how to include English language learners in ment efforts, and organizational changes accountability systems in the absence of re- including block scheduling, and extended liable, field-tested assessment instruments day/year initiatives). for measuring their mastery of math, science, and social studies content. This problem is Developing alternative courses of in- particularly acute in secondary schools. The struction for special needs populations Department of Education ought to help (including underschooled youth, and states develop assessment instruments in newcomer immigrants). various primary languages and might also develop standards for assessing English lan- Innovations in identifying gifted/talented guage learners whose content knowledge in LEP immigrants and promoting their the core subjects might be validly assessed preparation, for postsecondary education. in English with appropriate accommodation. It should also help key states study the ef- Innovations in promoting parental in- fects of their assessment systems on students volvement among language minority par- with limited English proficiency. ents.

2. Demonstration Grants Promising/ 3. Programs To Increase the Number of Exemplary Practices Teachers Who Are Prepared To Work with LEP Students The challenges presented by the organizational features of the typical secondary In the past decade, OBEMLA has placed school suggest that a narrow focus on im- increasing emphasis on teacher recruitment proving language development programs and professional development initiatives. will yield only litnited success with LEP stu- Further, and perhaps expanded, support dents. Several studies of LEP and immi- should be encouraged for: grant-serving schools indicate that exem-

6 Citizens' Commission onCivilRights D

Grants to help schools and districts train C. Ensure All Eligible LEP Students all teachers who work with LEP stu- Participate in Title I dents. These grants should also extend LEP-related training to key nonteaching staff, including counselors, administra- Roughly 60% of OBEMLA funds go to sup- tors, and technology specialists. port general LEP instructional services services that should otherwise be supported Grants to fund innovative career ladder under the larger Title I program. State and programs designed to upgrade the quali- local reliance on OBEMLA funds to support fications and skills of existing bilingual LEP instructional services has meant that classroom aides and others so they can fewer of the agency's dollars have been avail- be certified as language development able to support the research, demonstration, teachers and other instructional person- and professional development priorities out- nel serving LEP students; and lined above. One reason for this reliance on OBEMLA for general program support is Fellowships in bilingual education for that LEP students in many states and locali- graduate studies on research and teach- ties have been historically excluded from ing of LEP students. Title I services.35 Likewise, other studies by the Citizens' Commission on Civil Rights Long-term teacher shortages may re- have found that many states and school dis- quire that OBEMLA work to improve col- tricts are continuing to fall short of fully in- lege preparation programs in ESL and corporating LEP students into Title I pro- bilingual education. grams.36 Again, these findings support the need for requiring state and district Title I plans to spell out how eligible LEP students will be served with Title I funds.

:2 61 Citizens'Commission onCivilRights -

Endnotes

' This report was written, in part, with support from the Spencer Foundation and the U.S. Department of Education, Office of Educational Research and Improvement. Opinions expressed herein are those of the authors. 2 See, e.g., Citizens' Commission on Civil Rights, Title I in Midstream: The Fight to Improve Schools for Poor Kids (Washington, D.C.: Citizens' Commission on Civil Rights 1999) ("Title I in Midstream"). Public Law No. 107-110. 4 See Title I in Midstream; Citizens' Commission on Civil Rights, Closing the Deal: A Pre- liminary Report on State Compliance with Final Assessment and Accountability Requirements Under the Improving America's Schools Act of 1994 (Mar. 2001). 5 Ruiz-de-Velasco, Jorge and Michael Fix, Overlooked and Underserved: Immigrant Stu- dents in U.S. Secondary Schools, at 50-52 (Washington, D.C.: Urban Institute Press 2001), available online at: ("Overlooked and Underserved"). Although Title I contains precatory language indicating that states are obligated to ensure that poor and disadvantaged students have the resources and assistance they need to meet new standards, the Citizens' Commission for Civil Rights has previously noted that these provisions are not enforced. See Title I in Midstream. Indeed, under the current Title I framework, states are required to direct additional help and resources to schools only after the accountability system has been implemented and after schools have.demonstrated an inability to meet standards. 7 While not all students are expected to meet the standards initially, the typical performance timetable suggests an expectation that all students who initially fail can be brought within the standards within a short period of time, usually one school year. 8 These issues are treated in greater depth in Overlooked and Underserved. 9 See, e.g., Overlooked and Underserved; Terrence G. Wiley, Literacy and Language Diver- sity in the United States, at 112-114 (Washington, D.C.: Center for Applied Linguistics 1996); Improving Schooling for Language-Minority Children (Diane August and Kenji Hakuta, eds., Washington, D.C.: National Academy Press 1997) ("Improving Schooling"). 1° Howard L. Fleishman and Paul Hopstock, Descriptive Study of Services to Limited En- glish Proficient Students (Arlington, VA: Development Associates 1993). " See, e.g., Ofelia Garcia, "Educating Latino High School Students with Limited Formal Schooling," in So Much to Say: Adolescents, Bilingualism, and ESL in Secondary School (Faltis and Wolfe, eds., New York: Teachers' College Press 1999) ("Educating Latino Students"). 12 "Educating Latino Students;" see also, Betty J. Mace-Matluck et al., Through the Golden

Citizens' Commission onCivilRights -

Door: Educational Approaches for Immigrant Adolescents with Limited Schooling (Washington, D.C.: Center for Applied Linguistics 1998); Overlooked and Underserved. 13Although Illinois has issued benchmarks for predicting how results from the state's language assessment test for LEP students (the IMAGE test) might translate to scores on the grade-appropriate ISAT language arts tests, there remains little guidance on how schools can help LEP immigrants meet the state standards in the other subjects. Illinois is not alone in this regard. 14U.S. Department of Education, National Center for Education Statistics, Schools and Staffing Survey, 1993-94. 15For example, Illinois does explicitly include mainstream teachers, administrators, and special education teachers in its LEP staff development programs and keeps track of their participation. Yet, while two-thirds of mainstream teachers in schools with bilingual education programs reported participating in multicultural awareness training, only about one-third of teachers in these high LEP-serving schools reported receiving training in language acquisition or other techniques for making their courses accessible to English language learners. ISBE, Evaluation Report: Transitional Bilingual Education and Transitional Program of Instruction, Fiscal Year 2000 (ISBE Research Division Dec. 2000). 16Improving Schooling at 53-75. 17See Kenji Hakutu et al., "How Long Does It Take English Learners to Attain Proficiency?," in Policy Report 2000-1 (Santa Barbara, CA: University of California Linguistic Minority Re- search Institute 2000), available at ; see also Improving Schooling; Wayne Thomas and Virginia Collier, School Effectiveness for Lan- guage Minority Students (Fairfax, VA: George Mason University Press 1997). 18See Kris Anstrom, Academic Achievement for Secondary Language Minority Students: Standards, Measures and Promising Practices (Washington, D.C.: National Clearinghouse for Bilingual Education 1997), a report to the U.S. Department of Education, available at . 19Improving Schooling at 29-45. 20Id. at 53-75. " The issues raised in this section are treated in greater depth in Overlooked and Underserved at 55-65. 22See, e.g., Carolyn Temple Adger and Joy Kreeft Peyton, "Enhancing the Education of Immigrant Students in Secondary School: Structural Challenges and Directions," in So Much to Say: Adolescents, Bilingualism, and ESL in Secondary School (Faltis and Wolfe, eds., New York: Teachers' College Press 1999), and authorities cited therein. 23Overlooked and Underserved at 56-60. 24Data source: Texas Education Agency, Office of Bilingual Education, Test Performance Summary Report, 10th Grade Exit Level administered Feb. 2001, for Limited English Profi- cient Students, reported Apr. 2001. 25See, e.g., Melissa Roderick and Mimi Engel, "The Grasshopper and the Ant: Motivational Responses of Low-Achieving Students to High-Stakes Testing," 23 Educational Evaluation and Policy Analysis 197 (2001); Brian A. Jacob "Getting Tough? The Impact of High School Gradua- tion Exams," 23 Educational Evaluation and Policy Analysis 99 (2001). 26Walt Haney, "Revisiting the Myth of the Texas Miracle in Education: Lessons about Dropout Research and Dropout Prevention" (Jan. 13, 2001) (paper prepared for the Dropout Research: Accurate Counts and Positive Interventions Conference, Cambridge, MA). Likewise, a new study finds that stricter high school graduation requirements resulted in a 3 to 7% jump

260 6 3 Citizens' Commission onCivilRights -

in the overall dropout rate during the 1990s. The Cornell and University of Michigan economists who conducted the study suggest that, absent interventions to help students meet new standards, changes in graduation requirements may translate to between 26,000 and 65,000 more high school dropouts a year nationwide. See Dean R. Lillard and Philip P. DeCicca, "Higher Standards, More Dropouts? Evidence Within and Across Time," 20 Economics of Education Review 459 (2001). 27L.D. Steinberg, S. Fegley and S.M. Dornbusch, "Negative Impact of Part-time Work on Adolescent Adjustment: Evidence from a Longitudinal Study," 29 Developmental Psychology 171-180 (1993). 25S. Graskey, "Exploring the Effects of Childhood Family Structure on Teenage and Young Adult Labor Force Participation," 1111-96 IRP Discussion Papers (Madison, WI: Institute for Research on Poverty 1996). 29Duncan Chaplin and Jane Hannaway, "High School Employment: Meaningful Connec- tions for At-Risk Youth" (Apr. 1996) (paper presented at the Annual Meeting of the American Educational Research Association, New York). 3° See, e.g., U.S. Department of Education, The Use of Tests as Part of High-Stakes Decision- Making for Students: A Resource Guide for Educators and Policy-Makers (2000).

31See, e.g., OBEMLA's FY2001 budget, exclusive of funds earmarked for distribution under the Emergency Immigrant Education Act. Here $180 million of a $310 million budget is allocated to support instructional services. 32See H.R. 1, the "No Child Left Behind Act of 2001, Title III," reauthorizing the ESEA and signed by President Bush on January 8, 2002. 33Not inclusive of an additional $150 million in impact aid administered through the Emer- gency Immigrant Education Act to school districts with large numbers of newcomer students. These funds, though administered by OBEMLA, are not restricted for use in language development programs. 34See Overlooked and Underserved at 70-80. 35See, e.g., Michael Fix and Wendy Zimmermann, Educating Immigrant Children: Chapter I in the Changing City (Washington, D.C.: Urban Institute Press 1993). 36Citizens' Commission on Civil Rights, The Test of Our Progress, at 193-201 (Washington, D.C.: Citizens' Commission on Civil Rights 1999).

2 6 4

Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 18

Chapter 18 New Research on Special Education and Minority Students with Implications for Federal Education Policy and Enforcement by Daniel Losen' Introduction minority children who do need special education often receive low-quality services and Special education is intended to support watered-down curriculum instead of ef- and serve children with disabilities, not to fective support to help them learn. be primarily a separate place to send IDEA 1997 states that: "Greater efforts students who need help in order to learn to are needed to prevent the intensification of their full potential. In theory, eligible problems connected with mislabeling and students are to receive specialized instruc- high dropout rates among minority children tion by teachers with specific training, with disabilities."6 To the extent that min- tutoring, and extra attention from teachers, ority students are misclassified, segregated, counselors, and other professional support or inadequately served, special education, staff. While for many students with disabil- which is meant to help, can instead contri- ities this ideal has approached reality, bute to a denial of equality of opportunity, historically, many others have experienced with devastating results in communities unnecessary isolation and been confronted throughout the nation. with fear, prejudice, and stigmatization. Many education researchers believe that Furthermore, placement in special educ- multiple and systemic reforms of both ation has too often been a vehicle for special and regular education need to take segregating minority students. For example, hold on both the state and local level research shows that black students are because the concerns about overrepresent- especially likely to be overrepresented in ation and underservicing are regarded as special education and less likely to be rooted in both the regular and special mainstreamed than similarly situated white education classroom.7 Significant improvements will thus depend, in part, upon better students.2 In 1998, approximately 1.5 million minority children were identified as having coordinated, better targeted, and more mental retardation, emotional disturbance, transparent federal oversight, combined or a specific learning disability.3 Over with improvements in the collection and 876,000 of these were black or Native dissemination of disaggregated data des- American. When the Individuals with Dis- cribing the condition of regular and special abilities Education Amendments Act of 1997 education of minority children. Also con- (IDEA 1997) was passed,' Congress found sidered, therefore, are improvements to that minorities are 2.3 times more likely to Title I of the Elementary and Secondary be so labeled when compared to whites Education Act, meant to ensure that min- nationally.' And to make matters worse, ority students and students with disabilities

Citizens' Commission onCivilRights 265 I/

are given meaningful opportu-nities to meet I. Background high standards. For parents seeking direct recourse, the IDEA contains strong language and num- Historically, enforcement of IDEA re- erous requirements that, if better under- quirements has relied heavily on parents' stood by parents and more effectively imple- pursuitofadministrativecomplaints. mented by school authorities, could reduce Because the weight of enforcement has fal- minority overrepresentation significantly. len on individual litigants, many poor and Chief among these are requirements for par- minority parents, who often can't afford to ental consent for the initial special educ- shoulder the burdens involved in claiming ation evaluation,8 and parental rights to seek their delineated rights," do not reap the better services or re-evaluate their child's benefits that accrue to middle-class suburb- individualized educational plan (IEP), even anites armed with experienced lawyers. after they have consented to a placement.' In 1997, after unusual bipartisan con- Along these lines, the federal government gressional negotiations, Congress reauthor- could have a greater impact by better en- ized IDEA with added emphasis on the forcement of rules designed to ensure that requirement that all students be held to high parents receive complete information re- standards. In one new provision Congress garding the exercise of their legal rights.° required monitoring and enforcement to Better informed minority parents would be addressboththeoverrepresentationof better able to resist misdiagnosis, challenge minoritiesinidentificationforspecial inappropriate placements, or gain higher education, and their placement in overly quality special education services, as the si- restrictive educational environments. The tuation may warrant. provision.further required "the revision of In addition, the federal government can policies, procedures and practices used in do much to further systemic reform efforts. such identification and placement" to ensure It can create more resources targeted at pro- compliance.12 Despite these legislative im- viding proven-effective programs and provements, research suggests that the new supportsforminorities,economically provisions did not have much of an im- disadvantaged students, and students with mediate impact. disabilities such as the community parent New studies, presented at the Conference resource centers; and it can facilitate on Minority Issues in Special Education at working partnerships between school Harvard University, Fall 2000, highlighted districts, parents, and advocates represent- the persistence of dramatic disparities in ing poor and minority parents and their identification and placement, as well as children. important gaps in information gathering on Finally, many of the problems highlighted minority and English language learner call for focused attention through serious (ELL) students with disabilities.° The civil rights enforcement by federal agencies. research presented also examined federal Enforcement should include, if necessary, enforcement achievements and shortcom- temporary cutoffs of funding to individual ings and shed new light on problems within school districts that are unwilling to address the current system of federal oversight and gross racial disparities in identification and enforcement. Conclusions drawn from the placement. Harvard conference, combined with other sources, form the basis for the recommendations at the end of this chapter.

6 Citizens' Commission onCivilRights -

Following a congressional briefing on the reported results as objective, scientific these research findings in March of 2001, measures.'4 This faith in testing reportedly many politicians made misleading assertions drives the decisions of too many educators and misrepresentations regarding these in determining special education eligibility findings to bolster their arguments against and placement, subverting the intention of guaranteed funding of the Individuals with the IDEA.15 Disabilities Education Act. The studies de- New research by Dr. Beth Harry and scribed in this chapter lend no support what- others reveals how reliance on test scores soever to an argument that either guaran- is very often inappropriate. The special teeing or fully funding the Individuals with education eligibility evaluation process is Disabilities Education Act would exacerbate frequently regarded as a set of discrete the problems highlighted by our research, decisions based on scientific analysis and or that minority students would reap any assessment. Inreality,the evaluative benefit by limiting increases to federal spe- decisions are more subjective, with many cial education expenditures. Use of this re- interdependent variables, including school search to oppose federal special education politics, teacher perspectives on disability, funding guarantees or increases is a clear and cultural bias. Harry's new research des- distortion of the findings. In fact, one can cribes how subjectivity creeps into elements logically infer from this independent re- of the testing process. These include de- search that a substantial infusion of funds is ciding whom to test, what test to use, when needed to strengthen federal enforcement to use alternative tests, discretion in inter- to ensure proper IDEA implementation and preting student responses, and determining protection of civil rights. what weight to give results from specific tests. A host of other nontesting factors such as II.Key Education Research the quality of regular education, the classroom management skills of the referring Findings with Implications teacher, and the power imbalance between for Federal Policy the parents and the school personnel on the evaluation team are equally important, yet often go unrecognized.16 A. Research Findings Although Dr. Harry concludes that the analysis of test results provides very I. Subjectivity of Assessment Confounds important information, her qualitative "Neutral" and "Objective" research sheds considerable doubt on the Determinations of Special Education objectivity of test use in special education Eligibility decision-making because even decisions that are test driven are inescapably subjective in The IDEA 1997 Act specifically requires nature. Dr. Harry's research suggests that that the identification of students for special we must acknowledge that even the best education eligibility be based on multiple evaluations are filled with subjectivity, and measures, i.e., not just one test score, and that systemic disproportionate outcomes that the analysis must rule out the effect of reflect deeper problems, requiring deeper poverty and multicultural differences. Many systemic reforms. states and school districts still rely heavily on IQ and other tests because they regard

6 7 Citizens' Commission onCivilRights :

2. Race/Ethnicity and Gender Account for 3. Under-Servicing of Minority Students Significant Overrepresentation of Increases the Likelihood of Discipline Minority Students, Even After Problems, School Ffailure, and Dropping Accounting for the Effect of Poverty Out

Poverty and other socio-economic factors The lower quality special education that correlate highly with the incidence of minority students often receive has dire disability, but once socio-economic factors consequences. One is that they are more are accounted for, the effect of gender and vulnerable to being subjected to unneces- race remains significant." In the most pro- sarily harsh new zero-tolerance discipline found example, contrary to expectations, as policies sweeping the country. For example, factors associated with wealth and better according to new research by Osher, Wood- schooling increase, black males are at ruff, and Sims, minority students are less greater risk of being disproportionately likely than their white counterparts to labeled "mentally retarded." receivecounseling and psychological Research on national trends, and con- supports when they first exhibit signs of forming data on the state and local levels, emotional turmoil and often go without indicate that minority students are signif- adequate services once identified. According icantly more likely than similarly situated to this research, the lack of early inter- white students to be placed in restrictive vention and support helps explain why special education environments, segregated minority school-aged children are over- from their nondisabled peers.19 This per- represented in the juvenile justice system." sistent pattern has lasted for well over 20 Furthermore, in a study by Oswald, Cou- years," and holds true for most minority tinho, and Best, within three to five years of groups across nearly all disability categories. leaving high school, arrest rates for African Recent demographic studies have re- Americans with disabilities is 40% compared vealed more alarming patterns. Latino stu- with 27% for whites with disabilities." dents, who asa group often appear underrepresented in state and national 4High Stakes Accountability Can aggregated data, are increasingly likely to Contribute to Serious Problems for be overrepresented in special education as Minority Students with Disabilities their proportion of a given state's minority student body increases.21 Another study re- Although the relative benefits of high- vealed that the likelihood of mainstreaming stakes testing is a heated education reform with regular education peers, for African issue, educators on all sides of the debate American, Latino, Native American, and acknowledge problems with the way these Asian children decreases as the percentage tests are administered in many states and of eachminoritysubgroup'spopulation local school districts." The high-stakes tests increases.22 Lastly, preliminary research on referred to in this analysis employ diploma school districts in California suggests that denial or score-based retention to hold stu- English language learners who are im- dents accountable, regardless of whether they mersed in English language classrooms are have been afforded an opportunity to learn more likely to be identified for special the material tested. Unfortunately, the in- education and placed in restrictive special creasing imposition of high stakes on education classrooms than students in bilin- students poses a host of problems for gual programs." children with special needs.27 Further, the

Citizens' Commission onCivilRights detrimental impact of high stakes on disabilities remain hard to ascertain and students implicates possible violations of the their programs of instruction hard to IDEA and Title VI, as well as some state evaluate. Moreover, the existence of a high laws. number of students with disabilities who do not take the tests runs counter to two federal a .Incentives to Exclude Students from requirements: (1) Title I, which requires that Assessments students with disabilities be assessed in accordance with the state's high standards, Historically, students with disabilities and that scores for students with disabilities have been excluded from district and state- be reported in disaggregated form;32 and (2) wide assessments. The fact that there has IDEA 1997, which requires that students been so little accountability for their rate of with disabilities be included in state assess- achievement explains, in part, how special ments for both IDEA reporting and accoun- education has become synonymous in many tability purposes." places with low expectations and watered- down curriculum. One goal of standards- b. High-Stakes Tests Increase the based reform, incorporated into IDEA 97 and Likelihood of Exclusion the newly reauthorized Elementary and Secondary Education Act, is to ensure that According to research of the National Cen- the achievement rates of the overwhelming ter on Education Outcomes, adding high majority of students with disabilities are stakes to standards-based assessments ap- considered when schools are evaluated for pears to be driving much higher rates of test performance.28 exclusion than ever before.34 For example, in IDEA 1997 already requires states to Texas, where according to the NCEO 1999 reportthe number ofstudents with Report, 42% or fewer students with disabil- disabilities participatinginstate and ities participated in the Texas Assessment district assessments. Despite this require- of Academic Skills (TAAS), the number of ment, according to the National Center on special education students has blossomed Education Outcomes 1999 Report (NCEO), since high stakes were added to statewide only 23 states reported these numbers. assessments.35 NCEO used state-provided numbers of Historically, the same accountability fail- students participating in assessments, in ure applies to ELLs, and ELL students with conjunction with child count data, to disabilities. By creating even greater incen- calculate the percentage participation rates. tives to mask the low achievement of stu- For example, in Texas, fewer than 42% of dents with disabilities, some argue that high students with disabilities took a statewide stakes are undermining standards-based high-stakes achievement test in grade 10.29 reform.36 Large numbers of ELLs are not And in only five states did more than 90% tested with statewide assessments.37 The participateinstatewideassessments, scant data on ELLs suggest that those stu- regardless of stakes." Title I reporting is also dents who are tested are often not provided quite low, with numerous states failing to with the appropriate test accommodations. report student performance by race or English language learners with disabilities disability and many inappropriately exem- are even less likely to be identified, assessed, pting students with disabilities from state or given appropriate accommodations for tests.31 With test participation rates so low, testing." the achievement levels of students with

Citizens' Commission onCivilRights ;69 c .Using Tests for Invalid Purposes, or viewing state formulas. Federal formulas, Using Invalid Tests, Exacerbates which were restructured in 1997 to reduce Educational Injustice restrictive placements, carry only a small percentage of the special education funds. Whenstudents with disabilities are re- State formulas often contain no explicit res- quired to take high school diploma tests, or triction. This research is pertinent to federal tests used for grade promotion, they fail at enforcement because the U.S. Department a much higher rate than their non-disabled of Education's Office of Special Education peers. This pattern is likely even more pro- Programs (OSEP) can review state funding nounced for minority students with disabil- formulas that interfere with proper im- ities given that data show each group, plementation of the IDEA. viewed separately, is at a very high risk. Evi- dence suggests that many students deemed B. Findings on Anti-Discrimination eligible for special education are not pro- and IDEA Enforcement vided with the opportunities to learn the tested material and not provided with the I. The Legal Landscape accommodations they are entitled to legally.39 Moreover, minorities with disabilities Before IDEA 1997, the few systemic are much less likely to receive or request checks on widespread overrepresentation test accommodations than whites.4° resulted primarily from either desegregation Furthermore, to the extent that minority related litigation or compliance reviews students with disabilities are more likely to conducted by the U.S. Department of Educ- be restricted in their placement, and thereby ation's Office for Civil Rights (OCR) pur- access to the tested curriculum, they are suant to Title VI of the Civil Rights Act of more likely to be either excluded entirely 1964 (Title VI) and the Equal Protection or tested without having received adequate Clause. Legal challenges to minority over- opportunities to learn. The new education representation in special education are still law, which mandates testing at grades 3-8, most often raised in these two contexts. will likely exacerbate these problems, Where the Department of Justice (DOD is a especially in states placing the high stakes party to a desegregation action, the over- on students. representation issue falls within DOJ's jurisdiction. Because OSEP implements 5. Some State Funding Mechanisms Appear IDEA, this agency also plays a critical en- To Increase Minority forcement role. Overrepresentation in Special In addition to the anti-discrimination Education provisions of Title VI and its implementing regulations,42 there are three laws in play Where state funding is weighted to spend with regard to the problematic overrep- more money in relation to the degree of resentation and underservicing of minority disability, black students often face a youth in special education. Section 504 of the greater chance of being labeled "retarded" Rehabilitation Act of 1973 (section 504), Title and placed in restrictive programs. More- II of the Americans with Disabilities Act over, such programs receive less money per (Title II), and the IDEA provide procedural student than in states where the funding is and substantive protection for students who not weighted by severity of disability.41 The have been misclassified and/or placed in federal government is charged with re- overly restrictive settings. Section 50443 and

470 Citizens' Commission onCivilRights Title 1144 are federal anti-discrimination b.Differences Between IDEA and Section laws that prohibit discrimination based on 504 disability and are applicable in public schools. Section 504 can be assumed to cover There are important differences between Title II as well, due to parallel language and the legal requirements of 504 and IDEA interpretations of the laws.45 relevant to overrepresentation and underservicing concerns. For instance, the IDEA a. FAPE and LRE applies only to students who, because of their disability, need special education and By law, all students with disabilities are related services.55 Section 504's protections, entitled to be educated with their regular on the other hand, include all students education peers to the maximum extent covered by IDEA as well as students whose appropriate given each student's special disabilities substantially impair one or more education needs.46 This ensures exposure to major life activities.56 A student in need of the same curriculum, the same high academ- counseling outside of the classroom would ic standards, and the same opportunities for not be covered under IDEA but could be socialization.47 The shorthand version of this covered under section 504.57 Most protected concept is taken from language in the IDEA: individuals under 504 are entitled to a "free aFree Appropriate Public Education appropriate public education" in much the (FAPE)48 in the Least Restrictive Environ- same way that students with qualifying ment (LRE).49 The concept of LRE is sub- disabilities are entitled to FAPE under sumed under the definition of "appropriate" IDEA.58 in FAPE.5° If a minority student were identified as Individually, some students undoubtedly educationally mentally retarded but did not, benefit from educational settings apart from in fact, have a disability, that student would the regular classroom. Accordingly, IDEA not need special education services and have authorizes student placements based on no direct recourse under IDEA to remedy individual needs, rather than based on the harm suffered. Such a student would not disability type such as "educationally men- be entitled to a FAPE under the IDEA.59 But tally retarded." The right to an individual such a student, if harmed by the wrongful eligibility determination and subsequent placement, could be eligible for FAPE under IEP, along with the right to be educated with section 504.60 regular education peers to the "maximum At a minimum, misidentified students are extent appropriate,"" lie at the heart of the protected from discrimination that resulted FAPE and LRE provisions. from "having a record of" or being "regarded The 1997 IDEA amendments reempha- as" having a disability. The regulations, for sized the Act's 25-year-old preference that example, state that a nondisabled individual students with disabilities be taught in the is covered because, "Has a record of such an regular education classroom.52 The Act's impairment means has a history of, or has congressional findings noted that IDEA's been misclassified as having, a mental or successfulimplementation"has been physical impairment that substantially impeded by low expectations" and acknow- limits one or more major life activities."61 ledged substantial concerns about segre- Accordingly, such nondisabled students are gated classrooms53 because isolated students specifically covered under section 504's are usually worse off in comparison to definitionof"qualifiedhandicapped similarly situated mainstreamed students.54 person."62

"4:71 Citizens' Commission onCivilRights Chapter 18 Part Two: Discriminatory Practices in Education

Furthermore, OCR regards failure to district's policy or program violate the Title provide FAPE as a form of disability dis- VI regulation." First, the agency asks whe- crimination under section 504.63 OCR has ther a criterion or method of administration jurisdiction over many discrimination com- has both a negative and disparate impact on plaints that fall under section 504. The leg- a protected class.° If so, the school district islative and enforcement regime thus im- must demonstrate that the policy or practice plicates, in some situations of FAPE denial, at issue is an educational necessity. Upon two different laws and two different federal such proof, OCR explores whether there is agencies for enforcement. a less discriminatory alternative that can reasonably meet the district's "educationally 2. OCR Enforcement necessary" goals." OCR does not generally have jurisdiction a.Theory over individual IDEA cases, but it does have enforcement jurisdictionin numerous By design, the Office for Civil Rights seeks disability-related cases under section 504 to ensure voluntary compliance with federal and the ADA. In fact, disability related civil rights acts. Its investigations typically complaints account for more than half of emphasize either "different treatment" or OCR's complaint caseload.° These include "disparate impact" analysis under Title VI. all cases in which students with disabilities The critical legal issue is that under the are not legally protected by IDEA but can regulations the first requires proof of intent include FAPE-based complaints where while "disparate impact" does not. Specific- exhaustion at the state administrative level ally, the Title VI regulations describe an "ef- is either not required or has been com- fects test" prohibiting the use of "criteria or pleted." To the extent that a state fails to methods of administration which have the ef- respond to systemic complaints about either fect of subjecting individuals to discrim- the isolation of minority students with ination or have the purpose or effect of defeat- disabilities or significant inequalities in ing or substantially impairing accomplish- services caused by a district's IDEA vio- ment of the objectives of the educational lation, state inaction alone may constitute a program."64 As an enforcement agency, OCR violation of Title VI!' Moreover, the agency looks for evidence of intent that can support can explore both Title VI and section 504 leg- a different treatment analysis or bolster a al issues as they arise in the same case and disparate impact case." combine the two for investigation and an- In other words, the department's regul- alysis.' ations under Title VI allow complainants In fact, OCR has actively sought to deter and investigators to rely on statistical evi- unjustifiable dispropdrtionate identification dence of discrimination in determining non- of minority students for special education, compliance. School districts may violate often in overly restrictive settings. But OCR Title VI "disparate impact" regulations if a intervention is most likely to have a neutral school policy disproportionately meaningful impact if it also prompts a burdens a protected minority group even combination of voluntary compliance and though the district did not intend to dis- intervention by the state in similar cases. criminate. The agency responds to complaints, but the OCR conducts the following three- agency also provides guidance on law and pronged analysis, borrowed from case law, policy, including "technical assistance" to to determine whether the effects of a school potential complainants.

270 ' 72 Citizens' Commission onCivilRights . -

To further encourage compliance, the c. OCR's Enforcement Flaws in Strategy agency regularly requests data for enforce- and Implementation ment purposes.' The agency then selects

schools and school districts whose data de- i. Theoretical Disconnect pict troubling patterns for closer investigation called "compliance reviews." One obvious problem is that for school With thousands of district data to review, districts, the threat of being found "in the whole scheme to encourage compliance violation" of a law barring discrimination is on a national scale rests heavily on a much more serious than having to enter a deterrence theory. An integral part of such resolution agreement, where no acknow- a deterrence model is that the public at large ledgement of unlawful activity is required. will become aware of civil rights laws, and Only three of OCR's interventions in these can initiate political, legal, and admin- types of cases resulted in "letters of vio- istrative action on the state and local level lation" since 1994 and none in the last few where noncompliance is evident. years. Despite the punitive ring to "letter of violation," these letters are only one rung b.Practice in an incrementally adversarial range of enforcement options. For example, the Depart- As a matter of enforcement policy, OCR ment can follow a violation by withholding seeks to resolve concerns about potentially federal funds, but there is a great deal of unlawful discrimination through a "partner- discretion about when to withhold. Further, ship process" without issuing a letter of the issuance of a letter of violation does not violation against the school district.74 Con- preclude negotiated settlement and does not sequently, the agency rarely issues findings carry the same punitive stigma as a fully of violation, instead reaching negotiated litigated court decision against the school agreements with the districts. Although district. Moreover, by issuing violations, there are clear benefits to this approach, the OCR more clearly identifies unlawful pol- partnership approach may seriously under- icies and sends a straightforward compli- mine any potential deterrence effect if it is ance message to onlookers. relied upon too heavily. Faced with staggering statistics indicating ii.Information Gap that the overrepresentation of minorities is widespread, the agency has conducted 171 A more serious flaw in OCR's current compliance reviews, an average of approx- enforcement is the lack of information the imately 23 school districts each year since agency provides to school districts and the 1993.75 Although this number seems small, public at large on its enforcement efforts, before 1994, little attention was paid to this along with the absence of clear and official issue despite well-documented and deeply guidance on how states should determine disturbing evidence of a problem from the when disproportionality is significant.77 This National Academy of Sciences in 1982 and flaw is especially problematic given the other indices dating back even earlier.% agency'srelianceon deterrenceand partnerships to reach compliance. Simply put, school districts, and the public, rarely know about OCR's interventions, leaving both school officials and advocates guessing as to OCR's interpretation of its own

g_73 Citizens' Commission onCivilRights Chapter 18 Part Two: Discriminatory Practices in Education

regulations. Furthermore, despite the cre- in three ways. First, OCR's methods of ation of an interagency national task force, investigation vary substantially from case to there is no nationally linked system for case." Second, and related to the first, there reporting and recording the full text of is inconsistency in terms of the comprehen- minority special education cases within the siveness of the remedy sought by the OCR agency.78 This makes agency evaluation when districts have entered into resolution especially difficult for outsiders as well as agreements.84 Third, OCR's rigor in subse- internally. quent monitoring also appears to be weak. This last concern has been acknowledged by iii.Internal Constraints the agency, and OCR spokespersons have stated that significant changes have been OCR issubject to bureaucratic and implemented. Unfortunately, because the political pressures that limit the effec- agency is under-staffed" any shift in policy tiveness of its enforcement activities. The toward better monitoring islikely to impact of bureaucratic pressures can be seen decrease its capacity to investigate com- in a July 6, 1995, internal memorandum from plaints, conduct new compliance reviews, or former Assistant Secretary of Education provide technical assistance. Despite a Norma Cantu to all OCR staff entitled, steady stream of complaints that raise both "Minority Students and Special Educ- race and disability, data on OCR-initiated ation." This memo offers a detailed outline reviews of minority overrepresentation in of how to investigate for possible violations special education dropped considerably of Title VI and section 504.80 These combined between 1995 and 2000." approaches would, as a general rule, involve more intensive investigations and more 3. OSEP Enforcement comprehensive remedies. After introducing this prospect, however, the OCR memor- OSEPis charged with monitoring IDEA andum recommends that the "approach... implementation at the state level to ensure should be used only in selected cases" where proper enforcement by state administrative preliminary data do not permitthe authorities. OSEP reviews state plans for investigation to be narrowed." Accordingly, implementation and approves or disap- OCR has stated that when it receives proves of funding. Monitoring includes state complaints concerning minority issues in enforcement efforts with regard to local specialeducation,the agencyrarely districts. OSEP also issues detailed reports investigates beyond the specific issues of noncompliance, provides technical assis- raised by the complainant.82 OCR enforce- tance to states, and can take a range of en- ment will unlikely have a broad impact if forcement actions when states fail to com- the agency continues to take this con- ply.87 servative investigatory approach. IDEA requires extensive reporting and monitoring of its provisions by state govern- iv. InconsistenCies and Weak Monitoring ments. Similar state obligations are incurred through receiving Title I funding.88 Among The agency's lack of clarity has apparently the many IDEA provisions are those re- resulted in a high degree of enforcement quiring states to: inconsistency. A review of OCR resolution agreements, plus discussions with attorneys Monitor school districts for potential who have filed complaints with the agency, discrimination in suspensions and expul- suggests that agency enforcement is weak sions of children with disabilities;"

Citizens' Commission onCivilRights D

Establish performance goals, using Furthermore,thelateststatistical indicators such as performance on evidence, presented at Harvard's confer- assessments, dropout rates, and high ence, suggests that neither state nor federal school completion; governments have put adequate mechanisms in place for collecting and reviewing data, When the state's indicators point to or effectively intervened where data have ineffective progress for students with strongly suggested that disproportionality disabilities, the state must adjust its should be a concern. This inference is sup- improvement plan accordingly;9° and ported by the NCD report, which indicates that at least 35 states (70%) are out of Intervene by revising policies, proced- compliance with monitoring requirements ures and practices, where significant of IDEA, generally.94 racial disproportionality exists in special education identification and placement.91 b. OSEP Enforcement Options

a.Enforcement History According to Dr. Thomas Hehir, OSEP could be more effective, generally, in the way In January 2000, the federal government's itcombinesitsroleasgrantor and independent National Council on Disabil- enforcement agent.95 Dr. Hehir points out ities (NCD), charged with evaluating OSEP's that enforcement options to IDEA in 1997 effectiveness, recognized recent and sub- varied the enforcement palette of OSEP and stantial improvements but nonetheless in so doing strengthened the agency's ability issued a scathing report detailing serious to ensure compliance.% Most important, the and persistent enforcement failures over the new options enable OSEP to exercise its preceding 10 years.92 prerogative to withhold funding more often, The disability categories most prone to because of the addition of partial withhol- restrictive placements are "Emotionally ding as an option. Previously, when faced Disturbed" and "Mentally Retarded."93 with noncompliance, the agency had to Therefore, OSEP's failure to enforce LRE either withhold the entire grant to a state requirements, whereby 72% of states were or pursue actions that had no effect on the out of compliance according to the NCD flow of grant money. By employing a Report, is most disconcerting given the measured approach, OSEP can now bring potentially adverse impact on minority focused pressureonstateeducation students from widespread noncompliance. agencies (SEAs) to be more aggressive in The report also highlights OSEP's failure, their own monitoring and would rarely need in approximately 78% of all states, to ensure to recommend denying all funding out- compliance with procedural safeguards. right.97 According to Dr. Hehir, incremental These include the failures to insure that withholding would likely be more effective, schools receive informed parental consent in part, because the agency could avoid the before a child is evaluated and/or placed, high degree of confrontation and intense and that parents be provided information political backlash that threats of wholesale about their rights in a manner and language withdrawal of federal funding have triggered they can understand. The failure to provide in the past." this important legal information may Despite the availability of these new indirectly contribute to racial dispropor- options, the NCD Report states that OSEP tionality. has failed to utilize them and that "There appear to be no clear-cut, objective criteria

Citizens' Commission onCivilRights 275 -

for determining which enforcement options revealing data would be available, and ought to be applied and when to enforce in pressureto meet a more meaningful situations of substantial and persistent barometer of success would be applied. Fur- noncompliance."99 ther disaggregation of graduation rate disability data by race would help ascertain c .OSEP Enforcement and Dropouts where minority students with disabilities were receiving inadequate supports and Currently the IDEA requires that states services. examine "at a minimum" the performance of students with disabilities on statewide 4.Systemic Intervention by Justice assessments, dropout rates, and high school Department completion in determining adequate implementation.100 Research recently commis- The DOJ has been engaged in school sioned by Achieve Inc., and The Civil Rights desegregation lawsuits for over 25 years. In Project at Harvard Universitym show that some cases, an entire state may be impacted nationally the dropout problem is relatively by a court order. Present-day minority acute in 300 inner-city schools with rates overrepresentation in special education in greater than 50%, and that most of these a given school district may evidence the schools have student bodies that are more continuing impact of a prior dual system in than 90% minority. But these new studies that district (as well as a veiled continuation also showed that dropout rates are usually ofthatsystem).This argument has underreported. successfully prompted courts to modify Most important, completion rates alone desegregation orders, requiring school often distort the level of school success by districts to address racial disparities in combining those students who earn a GED special education.1°3 or alternative certificate of completion with In one recent example, Alabama District those who earn a bona fide high school Court Judge Myron Thompson consolidated diploma. Given these astonishing figures, the issue of unitary status and reviewed which likely encompass a disproportionate eleven school districts pursuant to Lee v. number of minority students with disabil- Macon County.' On August 30, 2000, the ities, OSEP should intensify efforts to District Court issued a revised consent pressure states to improve dropout rates as decree in all 11 cases addressing the state's required. The IDEA could also be improved persistent problem of minority student upon substantially through legislation that overrepresentation in special education.'" required the reporting of "graduation rates" The decrees are comprehensive, including by race with disability status. remedies for overrepresentation in the In Title I of the newly reauthorized Ele- categories of "emotionally conflicted," spe- mentary and Secondary Education Act, cific learning disability, and mental re- graduation rates, defined as the percentage tardation. Alabama, which previously had of students who graduate from secondary one of the worst track records of any state school with a regular diploma in the in terms of statistical overrepresentation of standard number of years, must be reported African Americans,'" agreed to extensive publicly and used to determine whether corrective measures, which included: aware- schools are making adequate yearly pro- ness and prereferral training; monitoring gress.102 If IDEA's existing requirements for the agreement, including yearly status evaluating implementation were made to conferences; changes to the Alabama Code conform with this graduation rate standard, including to require prereferral inter-

"76 Citizens' Commission onCivilRights vention for six weeks, in most cases, before Ill.Recommendations for a child can be referred for special education; revamping the assessment to include home Improving Federal behavior assessments and other contextual Implementation and evaluations; providing culturally sensitive psychometrics and training; funding to Enforcement Efforts for accomplish the decree's goals using a state Minority Students improvement grant; and reevaluation of all borderline MR students. A. Research-Based Policy Recommendations

5. Changes in the Legal Landscape Improvements in the quality of instruc- The Supreme Court recently ruled in tion and curriculum for minority stu- Alexander v.Sandoval that there is no dents, in both regular and special "implied right of action" to enforce the Title education, should be top priorities if the VI disparate impact regulations in court. patterns of minority overrepresentation However, JusticeStevens,dissenting, in special education are to be re- stated that it was "likely" that plaintiffs could medied.107 Perhaps the best way to mea- still enforce the disparate impact regul- sure whether quality has improved is by ations in court under a civil rights statute using graduation rates for accountability called "Section 1983." This important legal purposes under the IDEA along with test distinction means that court actions against scores reported by race and disability public schools might still be viable, despite under Title I. the Sandoval ruling. Even if court actions invoking the disparate impact regulations Until there is a sound basis to believe prove untenable, the ruling in Sandoval does that potential test takers, including not change the fact that a public school students with disabilities, have had district can be challenged on disparate meaningful opportunity to learn the impact grounds in a complaint made to OCR, tested material and receive appropriate or in an investigation initiated by the accommodations when tested, the at- agency. tachment of high student stakes such as diploma denial or grade retention should be put on hold.108 Greater support to meet the specific educational and emotional needs of minority students, through improved research, early intervention, and sustained services, is needed to stem the dangerous flow of minority school children into the juvenile justice system.109 Pursuant to the IDEA's provisions on racial disproportionality, OSEP and OCR should work together with states to gather and disseminate school and

Citizens'Commission onCivilRights 277 Chapter 18 Part Two: Discriminatory Practices in Education

district data on minority identification required to pursue multiple measures that and placement rates. address effectively the needs of minority students in both regular and special B. Enforcement Recommendations education, as measured by outcomes as well as inputs. In general, the persistent and disturbing Solving the problems of overrepresen- pattern of overrepresentation and underser- tation and underservicing of minority vicing calls for stepped up enforcement and students,therefore,willrequire a oversight activity by the federal government. comprehensive systemic approach. This Yet the important potential enforcement suggests that state and federal agents who ripple effect is severely mitigated by OCR's intervene should provide technical assis- preference for investigation and identifi- tance and supports that consider the needs cation of particular violations over more of students and teachers in regular educ- systemic ones, combined with the preference ation classrooms and not simply seek to for negotiated settlements and its failure to correct numerical disparities in special proactively disseminate those agreements education. and other information about outcomes, monitoring, and enforcement policy to the 2. Data-Driven Intervention public. To encourage more widespread compliance, OCR should aggressively dissem- Federal oversight can ensure that uniform inate information onitsenforcement and quality data on identification and place- activities and maintain an easily accessible ment by race and ethnicity, already required database documenting its activities. OSEP, for state collection and analysis by IDEA, for their part, should make better use of the are actually collected and reviewed rigor- new enforcement options, especially the ously each year. Compliance reports specific partial withholding of funds to target to these issues should be disseminated to specific compliance. Both agencies should all school districts, with guidance on best bring intensive pressure to bear on states practices for data collection and guidance for failure to monitor and intervene in the on how to address significant overrep- face of persistent and significant overrepresentation. Technical assistance should be resentation. made readily available to those districts acknowledging problematic racial dispro- I. Comprehensive Systemic Reform portionality.

Because the process of identification and C Remedies and Partnerships placementforspecialeducationis Collaboration Stimulated by fundamentally a subjective one, state and Federal Enforcement federal enforcement agents, who respond to disproportionality, should not be swayed from intervention simply because school I. Utilizing Models for Proactive districtsappear torely on so-called Measures "objective" testing and are in procedural compliance with the IDEA. Rather than Two recent settlements, brought on behalf seeking to "fix" the test or other discrete of primarily minority students in Chicago, aspects of the process, school districts with suggest that school districts and states will significant disproportionality should be be found liable if they fail to take the

Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 18

requirements under IDEA and section 504 3. Output Remedies seriously. Specifically, plaintiffs in theCorey H. case settled with the Board of Education When the government does intervene, it for Chicago and the State of Illinois (but should include incentives to improve litigated through the liability stage with the outcome measures that focus on achieve- State) won substantive improvements in ment of students with disabilities and those teacher training, scrutiny of special educ- who have been misidentified and need to be ation referrals, evaluations, and perfor- transitioned back into regular education mance goals for students with disabilities."° classrooms. Remedies must ensure that the The settlement also resulted in a multi- above-listed inputs are evaluated and million-dollar infusion of funds for measures refined.Federalenforcementagents, designed to increase access to the regular working together with state and local education classroom and curriculum. OCR authorities,cananchormeasuresof and OSEP can help states reduce minority effectiveness by using the states' own Title overrepresentation and generate more I mechanisms for determining adequate effective special education services for progress.Partiesto OCR resolution minorities by observing carefully the court- agreements and OSEP compliance agree- ordered remedies for these problems in ments can sit down together, as did the Illinois and Alabama and by helping other Parties inCorey H.,to hammer out realistic states that are out of compliance adapt the numeric goals and create multiyear plans to most effective of these measures. ensure the necessary inputs are employed and outcomes measured accurately. To this 2.Input Remedies end, education researchers should be better utilized to assist attorneys and school Enforcement agents should seek remedies officials in analyzing which inputs are most that research suggests improve both regular effective in improving regular and special and special education. These include higher- education. quality, experienced teachers, more teacher trainingin what ispopularly called 4. Remedies That Focus on Race and "classroom management," training for spe- Ethnicity cial and regular education teachers in academics; smaller class sizes and the use of The new provisions in Title I that require programs of instruction that are proven improved graduation rates,"' as well as effective; more inclusive, heterogeneous steady progress of minority groups and classrooms; teacher practica in inclusive and students with disabilities on assessments, multicultural settings; certification require- can ensure that remedies educatorsbelieve ments that reflect IDEA mandates; time for will help relieve the disproportionalities regular and special education teacher actuallydo so.Moreover, when inadequate collaboration and problem solving; more reading and math instruction is one of the pervasive and effective student supports and causes of overrepresentation in special services (and corresponding additional education (regardless of race), remedies that resources); and incentive programs to are focused on misidentified minority attract and keep talented, multilingual students can seek significant improvements special educators. in curriculum and teacher quality in those subject areas, and target classrooms serving minority students."'

7 9 Citizens'Commission onCivilRights Chapter 18 Part Two: Discriminatory Practices in Education

Additionally, useful data for monitoring useful information for evaluating and compliance by disaggregating data on improving intervention by state and local outputs by race and ethnicity along with government, and making problems easier to disability classification are needed. These identify and analyze. By suggesting en- additional data linking race and disability hanced federal oversight and enforcement data could help monitors judge the efficacy these recommendations should not be of input remedies that seek to reduce rates misconstrued as favoring heavy-handed of minority special education referrals, such federal intervention. Court orders and as teacher training in classroom manage- withholdingof fundsareabsolutely ment and multicultural education for both necessary,especially when poor and regular and special education teachers. minority students are confronted with Given the many (nonracial) compliance is- obstinate school authorities in charge of sues facing states, there is little incentive failing systems. But most public school for states to focus on racial inequities in officials respond to a combination of special education without specific pressure redirection and an infusion of supports. To from the federal government on this issue. remedy the problems described above, therefore, school administrators, teachers, IV Conclusion parents, advocates, and community leaders must receive far more concrete support in Motivation, Partnerships, Transparency, understanding their rights and respon- Informed Consent, and High Standards: sibilities, and be provided the resources to These recommendations emphasize the set and meet high standards for minority federal government's role in generating children and children with disabilities. problem-solving partnerships, providing

Citizens'Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 18

Endnotes

' This chapter is based primarily on the executive summary of The Civil Rights Project at Harvard University's (CRP) Conference on Minority Issues in Special Education (Nov. 17, 2000). The conference research papers cited in these notes are all in draft form and on file with the author. Many of the papers cited are expected to be published by the Harvard Education Publishing Group in a forthcoming book. Some portions of this chapter, not cited, were taken from Systemic Challenges: Comprehensive Legal Responses to Inappropriate and Inadequate Special Education Services for Minority Children, by Daniel J. Losen and Kevin G. Welner. The author would like to thank the Spencer Foundation for their support for the research commissioned and the conference that followed. 2 The data are less consistent for other minority groups, often indicating underrepresentation for non-black minority students. However, data from California show the percentage of every racial and ethnic subgroup that received services in a mainstreamed regular education classroom was lower than that for white students. See Tom Parrish, Disparities in the Identification, Funding and Provision of Special Education, at 25 (Table 6) ("Parrish"). See also Edward G. Fierros and James W. Conroy, An Examination of Restrictiveness in Special Education ("Examination"). These figures are all based on the Office for Civil Rights (OCR) 1998 Elementary and Secondary School Civil Rights Compliance Report Projected Values for the Nation (1999). 4 20 U.S.C. § 1400 et seq.; Individuals with Disabilities Education Act Amendments of 1997; Public Law 105-17. IDEA was originally enacted in 1975 as the "Education for All Handicapped Children Act of 1975" (Public Law 94-142). 5 20 U.S.C. § 1401 (c)(8)(C). 6 20 U.S.C. § 1401 (c)(8)(A). See, e.g., Dr. Thomas Hehir, IDEA and Disproportionality: Federal Enforcement, Strategies for Change (CRP Conference) ("Hehir"); Sharon Soltman and Donald Moore, Ending Illegal Segregation of Chicago's Students with Disabilities: Strategy, Implementation, and Implications of the Corey H. Lawsuit ("Soltman and Moore"). 8 34 C.F. R. § 300.504, 505; 20 U.S.C.§ 1414, 1415. 9 20 U.S.C. § 1414, 1415. '° See National Council on Disabilities Report, Back to School on Civil Rights: Advancing the Federal Commitment to Leave No Child Behind (Jan. 25, 2000) ("NCD Report"). " See Id. at 12. 12 20 U.S.C. § 1418.

Citizens' Commission onCivilRights 4:81 Chapter 18 Part Two: Discriminatory Practices in Education

13The preferred term, English language learner (ELL) is used instead of the term used in the law, "limited English proficient" (LEP). Both refer to students acquiring English as a second language. 14National Research Council, High Stakes Testing for Tracking, Promotion and Graduation, at 93 (National Academy Press 2000). 15See Beth Harry, Janette Kingner, Keith M. Sturges, and Robert Moore, Of Rocks and SoftPlaces:Using Qualitative MethodstoInvestigatetheProcessesthatResultin Disproportionality ("Rocks and Soft Places"); see also National Research Council, High Stakes Testing for Tracking, Promotion and Graduation, at 93 (National Academy Press 2000) ("High Stakes"). " See Rocks and Soft Places. 17See Donald P. Oswald, Martha J. Coutinho, and Al M. Best, Community and School Predictors of Over Representation of Minority Children in Special Education, slated for publication by the Harvard Education Publishing Group ("Predictors"). 18Id. See Parrish. See also Examination. 19See, e.g., U.S. Department of Education, Twentieth Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act (1998). 20See Parrish; Predictors; Examination. 21See Predictors; see also Alfredo Artiles, Robert Rueda et al., Factors Associated with English Learner Representation in Special Education: Emerging Evidence from Urban School Districts in California ("Factors Associated"). 22Examination. 23Factors Associated. 24David Osher, Darren Woodruff, and Anthony Sims, Exploring Relationships Between Inappropriate and Ineffective Special Education Services for African American Children and Youth and their Overrepresentation in the Juvenile Justice System ("Exploring Relationships"). 25See Predictors. 26jayT Heubert, "High States Testing: Opportunities and Risks for Students of Color, English- Language Learners, and Students with Disabilities" (forthcoming as a chapter in The Continuing Challenge: Moving the Youth Agenda Forward (M. Pines ed.)) Policy Issues Monograph 00-02, Sar Levitan Center for Social Policy Studies (Baltimore, MD: Johns Hopkins University Press) [on file with author] ("High Stakes"). 27See William Taylor, "Standards, Tests and Civil Rights," Education Week (Nov. 15, 2000). 2820 U.S.C. § 1412 (a)(16), (17); 20 U.S.C. § 6311(b)(3)(I), 6314 (b)(2). 29National Center on Educational Outcomes, 1999 State Special Education Outcomes: A Report on State Activities at the End of the Century (Dec. 1999), available at ("NCEO Report"). 30Id. " See Julie Miller, "Five More States Ordered to Negotiate Compliance Agreeements on Assessment," Title I Report, at 11 (July 2001). 3220 U.S.C. § 6311(b)(3)(I); 20 U.S.C. § 1412 (a)(16), (17). 33Not currently required for accountability purposes under Title I. 34NCEO Report. 35According to data available on the website of the Texas Education Agency (TEA), more than 12% of all Texas children are eligible for special education services. Based on a review of data from previous years, this percentage represents a significant increase of nearly 100,000 students between 1993-1994 and 1999-2000 - a change from 10.7% of those enrolled to 12.1%.

280 282 Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 18

Total enrollment grew during the same period by nearly 350,000 students. . 36See Scott Thompson, "The Authentic Standards Movement and Its Evil Twin," Phi Delta Kappan (2001). 37 Martha Thurlow and Kristen Liu, State and District Assessments as an Avenue to Equity and Excellence for English Language Learners with Disabilities (paper presented at CRP Conference, on file with author). 38Id. " High Stakes. Hehir. 41Parrish. 4242 U.S.C. § 2000(d)(1)-(4) (1994). 4329 U.S.C. § 794. 4442 U.S.C. § 12101 et seq. (1994). Title II of the Americans with Disabilities Act (ADA) prohibits discrimination because of a person's disability in all services, programs, and activities made available by any public entity. Id. at § 12132. 45Important differences do exist, but they are not relevant to this discussion. See, e.g., U.S. Commission on Civil Rights, III, Equal Education Opportunity Project Series 89 (1997) ("EEOP Volume III"). 4620 U.S.C. § 1412. 47See, e.g., 20 U.S.C. § 1401(8); 1414 (b-d); 34 C.F.R. § 300.26 (b)(3), 300.344(a)(2), (4)(ii), 300.347, 300.532(b), 300.533(a)(2)(ii), §300.550-554; see also Devries v. Fairfax Count School Board, 882 Federal Reporter 2d 876, 878 (4th Circuit 1989). 48 20 U.S.C. § 1412(a)(1). 4920 U.S.C. § 1412(a)(5). 5° There is some disagreement as to whether the LRE entitlement is a right wholly subsumed by FAPE or a separate right. Courts tend to seek a balance when the two are in tension. See, e.g., Oberti v. Board of Education of the Borough of Clementon School District, 995 Federal Reporter 2d 1204 (3rd Circuit 1993); Daniel R.R. v. State Board of Education, 874 Federal Reporter 2d 1036 (5th Circuit 1989). " In Oberti, the 3rd Circuit Court held that the school district has the burden of proving compliance with LRE requirement, regardless of which party brought the claim in court. See Oberti v. Board of Education of the Borough of Clementon School District, 995 Federal Reporter 2d 1204 (3rd Circuit 1993). 5220 U.S.C. § 1412(a)(5). Specifically, the law states: "[S]pecial classes, separate schooling, or other removal of children with disabilities from the regular education environment occurs only when the nature of severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 5320 U.S.C. § 1401(c)(4). 5420 U.S.C. § 1401(c)(5). 55Public Law No. 105-17, § 602(A)-(B) (1997) (eligible categories of disability are listed in the law). 56See 42 Federal Register 22, 685 (1977). 5729 U.S.C. § 705(20)(B), 794; 34 C.F.R. §104.3 (j). 5829 U.S.C. § 794. However, courts have been split with regard to legal claims based on FAPE.

Citizens'Commission onCivilRights Chapter 18 Part Two: Discriminatory Practices in Education

59Certain procedural protections would still apply, however. Moreover, IDEA requires districts to ensure the use of assessments that are neither racially nor culturally biased. 20 U.S.C. § 1414 (b)(3)(A)(i). 60Imagine a misidentified student who suffered psychological harm and was denied access to the regular education curriculum for years in an inappropriate isolated placement. In some cases these new needs may qualify thus harmed students for FAPE under the broader, non- categorical section 504 disability definition, such as "otherwise health impaired." For more information on the differences, see U.S. Commission on Civil Rights, Equal Educational Opportunity and Nondiscrimination for Students with Disabilities: Federal Enforcement of Section 504, at 98, EEOP Volume II (Sept. 1997).

61See 34 C.F.R. § 104.3(j)(2)(iii) (emphasis added). 6234 C.F.R. § 104.3(j) (1996). 63See Memorandum from Assistant Secretary of Education Norma Cantu, Minority Students and Special Education (July 6, 1995) (on file with author). See also EEOP volume III. 6434 C.F.R. § 100.3(b)(2). Title VI, section 602, "authorizes and directs" federal departments and agencies that extend federal financial assistance to particular programs or activities "to effectuate the provisions of section 2000d [section 601] ...by issuing rules, regulations, or orders of general applicability" (42 U.S.C. § 2000d-1). Similar "effects test" regulations exist with regard to discrimination on the basis of disability (section 504), 34 C.F.R. § 104.4(b)(4) and gender (Title IX) 34 C.F.R. § 106.1, et seq. These gender and disability protections may also be germane to a minority overrepresentation case under "disparate impact" legal theory. Title IX, for instance, could be violated where males are disparately impacted by a school district's referral, evaluation, and placement policy. 65Telephone Interview with Barbra Shannon, OCR Senior Attorney (May 15, 2000). 66See, e.g., Powell v. Ridge, 189 Federal Reporter 3d 387 (3d Circuit 1999); Elston v. Talladega County Board of Education, 997 Federal Reporter 2d 1394, 1407 (11th Circuit), rehearing denied, 7 Federal Reporter 3d 242 (11th Circuit 1993). 67Id. 68See, e.g., GI Forum v. Texas Education Agency, 87 Federal Supplement 2d 667 (W.D. Texas 2000). NCD Report at 48. 70See EEOP Volume III at 98-109. 71See Ceasar v. Pataki, 2000 WL 1154318, (S.D.N.Y. 2000) (upholding claim that state's failure to act in accordance with legal enforcement mandates if such inaction has disparate impact on minorities was actionable offense under Title VI regulations). 72For 2000, compliance data was collected from nearly every school district in the U.S. 73 Unlike the Title VI analysis, OCR's section 504 analysis is typically not a disparate impact analysis. In part, this is because failures to follow numerous legal procedures delineated in disability law are considered per se discrimination and are relatively easy to establish. See EEOP Series, U.S. Commission on Civil Rights. 74See U.S. Commission on Civil Rights, 1 Equal Educational Opportunity Project Series, at 209-213 (1996). 75See U.S. Department of Education, Office for Civil Rights, Enforcement and Other Activities in the Area of Over-representation of Minorities in Special Education, outline of presentation for The Conference on Minority Issues in Special Education, by Tim Blanchard, OCR National Minorities and Special Education Network Co-Facilitator (Nov. 17, 2000). During

Citizens' Commission onCivilRights this same peiiod, 1993-2000, the agency reports receiving 309 complaints "with MinSPED allegations." " See Theresa Glennon, OCR and the Misplacement of African American Students in Special Education:Conceptual,Structural,Strategicand AdministrativeBarrierstoEffective Enforcement (CRP Conference) ("Glennon"). 77Id. 78 Based on several discussions with Timothy Blanchard and Algis Tamosciunus, the co- facilitators of the OCR's "MinSPED" task force on the overrepresentation of minorities in special education.. 79 Memorandum from Norma Cantu on Minority Students and Special Education to all staff, at 19 (July 6, 1995). 8° Id. 81 Id. 82Telephone Interview with Timothy Blanchard (Sep. 25, 2000). " Glennon. 84Id.

85Id. 86See Glennon. 87 For a clear and more complete description of the IDEA enforcement scheme see NCD Report at 37 (Table 1). 88Most notable was Congress' bipartisan reauthorization and amendment of the Elementary and Secondary Education Act, calling it "The Improving America's Schools Act" (Title I of this Act is hereinafter referred to simply as Title I). The 1994 Act emphasized maximum access to regular education for all students. It required that states align their curriculum and assessment with high academic standards and test all children practicable. Most important, Title I required states report data to the public, disaggregated by race, ethnicity, and gender, and compare the achievement of students with disabilities with their nondisabled peers. 20 U.S.C. § 6301 et seq. 89See 34 C.F.R. § 300.146 (a)-(b); 20 U.S.C. § 1412(a)(22). 9° 20 U.S.C. § 1412(a)(16)(c) (1997); 34 § 300.755 (1999). 91See 20 U.S.C. § 1418(c); 34 C.F.R. § 300.755.34; C.F.R. § 300.519; 20 U.S.C. § 1415(k). This responsibility could alternatively fall to the Secretary of the Interior, "as the case may be." Id., § 1418(c)(2). 92See generally NCD Report. The report looks at more than two decades of federal monitoring and enforcement of compliance with Part B of IDEA. 93See Examination. 94NCD Report at 113. The Report goes on to say that 70% noncompliance is probably too low, based on its independent review of OSEP noncompliance determinations. Id. at 118. Hehir. 96For more information on OSEP's monitoring visit the following website: . 97Hehir. 98 20 U.S.C. § 1234(c)(a)(3) Compliance Agreement; 34 C.F.R. § 80.12 Special Conditions; 20 U.SC. § 1416, 1234(a)(1), (d) Witholding (1416 includes power to withhold funds from particular local education authorities); 20 U.S.C. § 1416 Referral to Department of Justice; 20 U.S.C. § 1234 (c)(a)(2), (e) Cease and Desist Order. NCD Report at 9,53. 100 20 U.S.C. § 1412(a)(16)(B).

Citizens' Commission onCivilRights Chapter 18 Part Two: Discriminatory Practices in Education

101IV'KTO Child Left Behind Act of 2001, Public Law No. 107-110, § 1111(b)(2)(C)(vi) ("ESEA 2001"). 102 Presented at the Harvard Graduate School of Education in Jan. 2001. 103 See, e.g., Yonkers v. Board of Education, 624 Federal Supplement 1276 (S.D.N.Y. 1985). 104 The consent decrees consist of two documents in each case: (1) an order approving the consent decree on statewide special education issues, Lee v. Phoenix Board of Education, C.A. No. 70-T-854 (M.D. Alabama 2000); and (2) the consent decree itself, Lee v. Phoenix Board of Education (M.D. Alabama 2000). 105 The decrees, taken together, apply to the entire state. 106 Jeremy D. Finn, Patterns in Special Education Placementas Revealed by the OCR Surveys (1982). 107 Rocks and Soft Places. 108 Hehir. 109 Exploring Relationships. II° Corey H. v. The Board of Education of Chicago et al., 21 IDELR 713 (N.D. Illinois 1998). See also Soltman and Moore. 111 ESEA 2001. 112 To the extent that IDEA and 504 requirerace neutral evaluation and placement, there may be a basis for seeking remedial measures that specifically redress racial overrepresentation in special education.

406

Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 19

Chapter 19 Blueprint for Gender Equity in Education by Verna L. Williams

I nt ro d u ct i o n I. NewTools for Administrative Promising to "leave no child behind," the Bush Administration has proposed a number E n fo rc em ent of initiatives designed to improve the quality of the nation's schools. Key to realizing that The Clinton Administration took several important goal but missing from the pro- important steps to enhance enforcement of posal at this writing are elements to en- Title IX of the Education Amendments of sure that sex discrimination is not a barrier 1972,1 the law that prohibits sex discrim- to educational opportunities. Far too many ination in any federally funded education young women and girls continue to encoun- program or activity: issuing model Title IX ter sexual harassment at every level of regulations that apply to the executive school, biased and misused testing for high branch agenciesthat fund education stakes decisions, or outright hostility to programs or activities and an prohibiting their entrance into areas deemed inappro- discrimination based on sex and other bases priate for them, such as math, the sciences, in any federally conducted education and technology, among others. As the new program. The Bush Administration should administration begins to implement its build upon these developments to ensure agenda for holding schools accountable for that Title IX's mandate of equal educational the education they provide to the nation's opportunity is realized. children, it should commit to addressing the persistent and damaging gender inequalities A. Title IX Regulations for Executive that preclude opportunities for so many Branch Agencies young people. The following outlines the elements that are essential for assuring that Although Title IX requires any federal the educational horizons of our boys and agency that funds education programs or girls are not limited by sex discrimination. activities to issue regulations to enforce the statute, only four agencies the Depart- ments of Education, Energy, Agriculture, and Health and Human Services had done

4,87 Citizens'Commission onCivilRights -

so until last year, almost 30 years after Title that the terms of this executive order are IX's enactment. We recommended that the carried out. Clinton Administration address this serious lapse and, in August 2000, 20 federal agencies finally issued regulations to implement II.Enforcement in Key Areas Title IX, modeled on the regulations first issued by the Department of Education in by the Department of 1975.2 Education With these new regulations, federal executive branch agencies now have the means to enforce Title IX's prohibition A. Athletics againstsexdiscrimination. The new administration should commit to ensuring Title IX enforcement has been critical to that the agencies make use of these tools in the significant advancement female athletes the myriad education programs that the have made over the almost 30 years since federal government funds. Specifically, we the statute's passage. Before Title IX, fewer renew our recommendation that the Depart- than 300,000 girls took part in interscholastic ment of Justice, through its authority to athletics; and fewer than 32,000 women coordinate enforcement of the civil rights played intercollegiate athletics. Now 2.65 laws, take strong, proactive steps to ensure million girls participate at the secondary that the agencies enforce the new regul- school level, while 163,000 take part at the ations vigorously. For example, the Depart- college level. Unfortunately, however, the ment should provide training and litigation field is far from level for too many girls and support and work with the various agencies women who seek opportunities to play to implement their plans for Title IX en- sports. For example, while women repre- forcement. sent over half of all undergraduates, they still receive only 40% of the athletic participation opportunities, 41% of the B. Executive Order No. I 3160 athletic scholarship monies, 33% of the athletic operating budgets, and 30% of the Similarly, a new executive order issued recruiting dollars. At the high school level, in June 2000 provides additional assistance while no data are maintained, anecdotal for assuring gender equity in education. evidence indicates that substantial dispar- Executive Order No. 13160 prohibits dis- ities exist. For example, the Atlanta jour- crimination based on sex, race, national nal-Constitution ran a series of articles origin, among other characteristics, in any showing that female high school athletes education program or activity the federal were relegated to muddy fields and port-a- government conducts.3 This mandate applies johns, while their male counterparts had to federally administered programs such as state-of-the-art stadiums. Not surprisingly, scholarships and fellowships that provide the Journal-Constitution's report revealed important educational opportunities for thatschooldistrictsroutinelyspent students such as the National Science significantly less on girls' sports than on boys' Foundation's scholarship program. With this athletics: one county budgeted more than new Order, the federal government now will 81% of its resources for male athletes.4 be held accountable for complying with the Several steps should be taken to address nation's anti-discrimination laws. The Bush the ongoing problems in athletics. We Administration should commit to ensuring recommend that the Office for Civil Rights

288 Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 19

(OCR) conduct targeted compliance reviews computer science exam. In associate degree to ensure that female students are getting programs, men are six times as likely to their fair share of athletic opportunities in major in engineering or science technology; educational institutions. Additionally, the in bachelor's degree programs, women Department should make sure that data receive only about one-third of the degrees concerning college and university athletics in mathematical and computer sciences. In collected pursuant to the Equity in Athletics high schools, predominantly male programs, Disclosure Act (EADA) be made available such as electrical and automotive repair, are centrally at the Department and that it be being updated with high-technology courses posted on the Internet for ease of access to and programs, while predominately female the information. Finally, Congress should programs have barely changed. Additionally, pass a law similar to the EADA that would students in predominantly female vocational apply to secondary schools to assist in iden- schools appear to have fewer opportunities tifying and remedying problems. to take advanced-level math and science classes. B. Career Education While some would claim that young women are not interested in these areas, the OCR also should focus its attention on truth is that discrimination dissuades too enforcing Title IX's mandate in career many female students from pursuing education that is, School-to-Work, voca- nontraditional areas: counseling that steers tional education, career academies, and them away from technology courses, instruc- other job training programs where in- tion that leads to different and less challen- grained patterns of sex segregation and sex ging assignments for young women in discrimination persist. Female students traditionally male programs, or sexual remain concentrated in programs that harassment from male peers who feel that prepare them for traditionally female, and women just don't belong, for example. This low-paying, jobs in fields like health care, discrimination has implications for young child care, clerical work, and the service women's future earning potential. Technical industry. And male students still dominate education programs and training for the the programs that prepare them for the high- skilled trades can mean the difference wage skilled trades jobs. Now, however, as between making a real living and just the new economy expands, and with it, the getting by. For example, the median income need for students to acquire skills in math of a chemical engineer in 1998 was over and science, these disparities have serious $64,000 in 1990, compared to that of a implications for the many female students preschool teacher, which was only $17,310. who do not pursue nontraditional areas. Access to technology programs clearly Specifically, female students are dra- translates into access to economic security matically underrepresented in courses that for young women. can open the doors to the high-tech careers OCR should conduct targeted compliance of the new economy, and, as a result, lack reviews in the many sex-segregated pro- the training necessary for jobs that lead to grams in schools across the country to economic security. In high school, young wo- identify and address the issues that preclude men are significantly less likely to take young women from pursuing educational classes in computer programming or appli- opportunities in technology, the sciences, cations. They are only 9% of the students and other areas deemed nontraditional for taking the higher level Advanced Placement them. Additionally, OCR should provide these schools with guidance as to how to

8 9 Citizens' Commission onCivilRights Chapter 19 Part Two: Discriminatory Practices in Education

ensure that nontraditional areas are not With respect to vocational education, it is hostile environments for female students. well-documented that sex-segregation is a persistent problem. The Title IX regulations C. Testing and 1979 vocational education guidelines require that when tests are used in connec- OCR should build upon efforts to ensure tion with a vocational program, they must that standardized tests are not misused in be validated as essential to that program.6 such a way as to deny students educational However, there have been few efforts to opportunities. Since testing has emerged as validate vocational tests, such as the Armed a cornerstone in education reform efforts, ServicesVocationalAptitudeBattery including the President's proposal, great (ASVAB), in the secondary school setting. care needs to be taken in order to address The ASVAB is administered to about 20% of gender differentials in test scores prevalent high school juniors and seniors throughout in so many widely used standardized tests. the United States. It is used by about 60% of Disparities have been well-documented American high schools as part of a Defense particularly regarding two categories of Department-sponsored "Career Explor- standardized tests: (1) admissions tests for ations Program," run through the Defense higher education; and (2) tests used for Manpower Data Center (DMDC). However, vocational and career education program a recent U.S. General Accounting Office selection, placement, and career counseling. (GAO) report concluded that the ASVAB With respect to post-secondary admissions posed a systemic barrier for women, who tests, female students have consistently after taking the test remain clustered in scored lower than male students. For traditional areas for their sex, such as example, the results from the 1999 SAT show health care, administration, personnel, and that the gender gap is now 43 points. The sup-ply occupations.7 Thus, the continued test score gap on the math section of the SAT use of the ASVAB in the secondary setting is particularly startling female test- is to the detriment of girls in vocational pro- takers averaged a score of 495 while male grams. test-takers averaged a score of 531. This As the use of standardized tests has begun gender gap persists within racial and ethnic to claim a major role in the education reform groups as well: on average, in 1999, African movement, little attention has been paid to American females scored 16 points less than the gender impact of these tests. The their male counterparts; Asian American challenge, then, is to ensure that increased females scored 45 points less than their male test use at all levels of education does not counterparts; and Mexican American fe- limit opportunities for particular groups of males scored 46 points less than their male students, and especially women and people counterparts.5 The implications of this per- of color, because we have not taken the time sistent and widespread gap are great, given to examine the use of these tests carefully. that it has been well-documented that the In December 2000, OCR issued The Use of SAT underpredicts academic performance Tests as Part of High-Stakes Decision-Making for female students. Therefore, the use of for Students: A Resource Guide for Educators this test for purposes such as admissions and and Policy-Makers, which provides institu- determining scholarship awards effectively tions with some guidance as to the appro- denies many female students access to priate use of testing. The Resource Guide educational opportunities. sets out important legal principles regarding the use of tests, including ensuring that a test not be the sole criterion for an educ-

ZD Citizens' Commission onCivilRights Part Two: Discriminatory Practices in Education Chapter 19

ational decision. OCR should make use of policies and procedures in place to address this Guide and the principles articulated in complaints of sexual harassment. it to ensure that female students are not disadvantaged by the misuse of standardized tests. III.Reauthorization of the D.Sexual Harassment Elementary and Secondary Education Act The Bush Administration also should build upon existing efforts to combat sexual The foregoing are just some of the steps harassmentinthenation'sschools. the Bush Administration should take to Specifically, in January 2000, the Depart- promote gender equity in educational ment of Education's Office for Civil Rights institutions. It should be added that the 2001 issued supplemental guidance on sexual ha- reauthorization of the Elementary and Se- rassment8 in light of the Supreme Court's condary Education Act (ESEA), the main decisions in Gebser v. Lago Vista Indep- federal law that addresses elementary and endent School District and Davis v. Monroe secondary education in this nation, also County Board of Education. Under those de- presents an opportunity to address these is- cisions, recipients can be liable in monetary sues. For example, the President's proposal damages for sexual harassment when an includes a provision to "enhance education appropriate school official has actual notice through technology.") While providing of sexual harassment, but responds to it with funding to states targeted for bringing deliberate indifference.9 The OCR guidance technology to the classroom is one way to explains these standards and informs bridge the growing digital divide affecting recipients of the standard that applies for low-income students, efforts are needed to administrative enforcement, which is groun- address the growing gender gap in this area ded in the Title IX regulations. Under this described above, such as requiring state standard, recipients may be found out of educational agencies to keep and send to the compliance with Title IX in cases of Department of Education data disaggregated employee-student harassment when the by race, gender, and ethnicity, concerning harassment occurs in the course of the the number of students pursuing such employee's providing aid, benefits, or courses. Similarly, the proposal relies on services to students, irrespective of whether testing of students to hold schools account- the institution had notice of the harassment. able for the education they provide. In light In cases of student-to-student harassment, of the well-known abuses of standardized recipients may be out of compliance with tests, the administration's proposal should Title IX if they knew or should have known include safeguards to ensure that the tests about the harassment but failed to take developed for the purpose of assessing prompt, remedial steps to address it. states' progress are not used to make high- OCR should take steps to ensure that stakes decisions about students. The pro- recipients across the country are aware of posal also should include sexual harassment the updated guidance, the standards that among the ills to be addressed in its efforts apply, and take proactive steps to ensure to encourage safe schools.n In this connec- that they are complying with it. For example, tion, states should gather and provide to the OCR should conduct targeted compliance Department of Education data disaggregated reviews to ensure that institutions have by race, sex, and ethnicity concerning sexual

4:91 Citizens'Commission onCivilRights harassment complaints institutions receive women to achieve, continued funding of this and how they are resolved. Finally, the program is critical to efforts to achieve proposal does not include a provision to gender equity. reauthorizethe Women's Educational Equity Act (WEEA). Established in 1975, WEEA is the only federal program that IV.Conclusion focuses specifically on increasing educational opportunity for women and girls. Much work remains to ensure that the Since its inception, WEEA projects have promise of Title IX is realized in educational been on the forefront of addressing the institutions across this country. With the myriad of barriers to education facing our new tools developed in the previous nation's daughters: sexual harassment, administration and new case law, the Bush biased standardized testing, tracking of girls into traditional low-paying careers, among Administration has an opportunity to make others.Because WEEA projects have significant inroads in making gender equity developed strategies to overcome those a reality. barriers and encouraged girls and young

290 Citizens' Commission onCivilRights Endnotes

1 20 U.S.C. § 1681-1688 et seq. 2 "Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance; Final Common Rule," 65 Federal Register 52857 (Aug. 30, 2000). "Executive Order No. 13160 of June 23, 2000," 65 Federal Register 39775 (June 27, 2000). 4 Mike Fish and David Milliron, "The Gender Gap: A Special Report," The Atlanta Jour- nal-Constitution, Dec. 12, 1999, at 1. See The College Board, 1999 Profile of College-Bound Seniors National Report. See 34 C.F.R., Part 100, App. B (IV)(K). 7 See Norman J. Rabkin, Gender Issues Trends in Occupational Distribution of Military Women, GAO/NSIAD-99-212 (Sep. 14, 1999). 8 "Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students or Third Parties," 66 Federal Register 5512 (Jan. 19, 2001). 9 Davis v. Monroe County Board of Education, 526 U.S.C. § 629, 642 (1999); Gebser v. Lago Vista Independent School District, 524 U.S.C. § 274, 290 (1998). 10 "No Child Left Behind" at 22. " Id. at 20.

A.93

Citizens' Commission onCivilRights Part Two: Digital Divide Chapter 20

Chapter 20 The Progress and Proposals for a Civil Rights Agenda in the Communications Policy Arena by Mark Lloyd'

Introduction deeply rooted considerations of civil rights advocacy. This is a report on the progress of and Communications policy encompasses a threat to civil rights principles at stake in very large field of activities that touch on the making of communications policy. It is civil rights concerns. These activities in- an honor to make such a contribution to the clude employment, ownership, the deploy- Citizens' Commission on Civil Rights bian- ment of service, federal licensing of public nual report on federal civil rights and property, privacy, access to government enforcement. It may even come as a surprise information, public participation in govern- to the reader that a contribution focused on ment rulemaking, the accountability of communications policy is included in this re- publicly supported institutions, and other port. Popular discourse (as offered, for ex- areas. This paper will not provide a compre- ample, in the pages of The New York Times) hensive look at all of the civil rights consid- does not necessarily admit that any set of erations in the communications policy arena. principles has an impact on communic- It will only provide a brief assessment of a ations, other than fairly limited views of the few key communications policy con- First Amendment, techmlogy, and the mar- siderations handled during the Clinton Ad- ket. ministration. We will focus on equal employ- Occasionally, a small community of ment opportunity and ownership, and the activists who focus on market failures and deployment and support for advanced tele- consumer protections are able to participate communications services. in the debate over communications policy. It may also be useful to note at the However, these public interest advocates beginning that these particular concerns are tend to focus on "consumer" issues (Is the the province of an independent agency, the consumer being overcharged for the service FederalCommunicationsCommission she receives? Is information about the consu- (FCC). The FCC is a relatively small admin- mer being used improperly? Does the consu- istrative agency led by five commissioners mer have access to a product?), rather than appointed by the President with the consent issues of equality and democratic account- of the Senate. Two commissioners are cho- ability. While these advocates have much in sen from the Democratic party, two are cho- common with civil rights advocates, their sen from the Republican party, and the concerns are distinct. This paper then is also Chairman is usually from the party of the an argument that the arena of communic- President. Over the past four years, the FCC ations is, and should be, informed by the has been led by its first African American

294 Citizens' Commission onCivilRights Chapter 20 Part Two: Digital Divide

Chairman, William E. Kennard, a Democrat, ority ownership in the communications and it was the first FCC with members of industry. minority groups to hold the majority of votes (three), Kennard, Gloria Tristani, and The next administration should review Michael Powell. Kennard, Tristani, and the impact of the relaxed ownership Susan Ness were the Democrats on that rules in radio on both minority own- commission. Powell and Harold Furtchgott- ership opportunities and the service to Roth were the Republicans. minority communities. It should also In 2001, the FCC was led by Michael review whether federal small business Powell. All of the other commissioners left loans are sufficient to allow underrep- at the end of their terms, or resigned. The resented groups to participate in the Powell Commission is comprised of Re- market for communications companies. publicans Kathleen Q. Abernathy, Kevin J. Martin, and Democrat Michael J. Copps. As The next administration should continue of this writing, Jonathan S. Adelstein, a its efforts to improve access to telecom- legislative assistant to Senate Majority munications service on Indian land. A Leader Tom Daschle, is the odds-on favorite yearly review should be conducted to to be selected as the second Democrat. determine whether these efforts are The FCC isfunded by an annual working. appropriation from Congress. And, perhaps as important, its charge is to establish The FCC, perhaps in concert with other regulations under authority of statute. Five federal agencies, such as the Depart- short years ago, in light of sweeping ments of Housing and Urban Devel- technological developments in the commun- opment, Health and Human Services, ications arena, there was a sweeping re- Education, Agriculture, and the Interior, vision of the 60-year-old Communications should devote more resources to inform Act. Much of what follows will examine the those eligible for Lifeline and Link Up Kennard FCC's implementation of the 1996 support. Telecommunications Act with a focus on those provisions designed to further the The E-Rate program, which subsidizes equitable deployment of telecommunications the telecommunications capability of services. schools, libraries, and rural health care In brief, I make the following proposals: centers, should be continued. The next administration, under either the The next administration should keep its Federal Communications Commission or promise to invest $400 million to create a combination of agencies, such as a task and maintain more than 2,000 commun- force comprised of the National Tele- ity technology centers in low-income communications and Information Admin- neighborhoods by 2002. istration (NTIA), Small Business Admin- istration (SBA), and the FCC, should The next administration should deter- conduct a Croson/Adarand analysis to mine with better accuracy whether determine whether there is any justifi- deployment of advanced telecommun- cation to employ race-based measures to ications services occurs in a way that advance Equal Employment Opportunity avoids poor and minority communities. regulations and efforts to increase min- Once we have better information we can deter any possible information redlining

Citizens'Commission onCivilRights by informing private decision-makers did not allow blacks to advertise on their about the true value of minority markets station. As Kay Mills writes in Changing receptive to advanced services, encour- Channels:TheCivilRightsCasethat aging state or municipal deployment in Changed Television, the actions of these underserved markets, or providing federal licensees with control over public private industry with incentives to property were as much civil rights issues as deploy in those markets. was the segregation of passengers by bus companies that traveled on interstate These actions will help to ensure that highways.' minorities and the poor will have equal After a tour of the south, Parker decided access to the public airwaves and the Na- to focus his attention on stations in the state tional Information Infrastructure. capitol of Mississippi. In Jackson, Parker joined forces with local NAACP and civil rights activists, most notably Aaron Henry I. The Past Is Not Even the and Robert L. T. Smith, to challenge two network affiliates (WLBT the NBC Past affiliate, and WJTV the ABC affiliate) and ultimately the FCC. That civil rights issues claim a place in The coalition lost their challenge to the the debate over communications policy Jackson stations' licenses at the FCC in May should not be a surprise. There is an all-too- 1965. Later that summer, the Reverend Dr. often-ignored historical relationship be- Everett C. Parker filed suit against the FCC tween the modern civil rights movement and in the U.S. Circuit Court of Appeals for the communications policy. It is arguable that District of Columbia. The Office of Commun- the starting point of the so-called public ications of the United Church of Christ interest movement related to commun- argued that the white-only programming of ications began in the early 1960s at the the stations violated the Fairness Doctrine National Arts Club in New York City, with and was not "in the public interest" of either a conversation held by three civil rights black or white viewers in Jackson, Mis- leaders: Martin Luther King, Jr., Andrew sissippi. The FCC argued that citizens did Young, and Everett Parker. not have the ri&ht under the law to challenge Dr. King wanted Parker to do something a station's license or the FCC's decision. In about the television stations in the south. 1967, the Appeals Court, in an opinion by King was particularly concerned about the Warren Burger, overruled the FCC. That practices of television stations licensed to ruling ultimately led to the loss of WLBT's serve communities in Alabama. Among the license, and perhaps more important it gave practices that concerned King and other civil all citizens a right to enforce the obligation rights leaders was the regular local termin- that federal licensees were to operate in the ation of the network signals whenever a public interest and that meant all of the program was transmitted about the "Negro public, even minority groups.' Movement." Instead of an interview with Dr. Because it recognized the civil rights of King or Thurgood Marshall, southern viewers in relationship to both the industry viewers were often entertained with a sign and the federal agency that regulates the which read: "Sorry Cable Trouble." In industry, the United Church of Christ de- addition, many stations, particularly in the cision has been characterized by one south, did not broadcast local issues of historian as the "Magna Carta for active concern to blacks, did not employ blacks, and public participation in broadcast regul-

096 Citizens'Commission onCivilRights Chapter 20 Part Two: Digital Divide

ation."4 This renewed civil rights focus on However, the FCC required more of broadcast stations led the Kerner Com- broadcasters (and cable entities) than simply mission to examine the role of media in refraining from discrimination. In order to exacerbatingtheracialtensionsthat demonstrate that a broadcast licensee had ultimately resulted in the widespread urban met its responsibility to serve in the public rioting in the late 1960s. The Kerner Com- interest, broadcasters were required to mission warned that television stations "carry out a positive continuing of specific "have not communicated to whites a feeling practices designed to ensure equal oppor- for the difficulties and frustrations of being tunity in every aspect of station employment a Negro in the United States .. .The world policy and practice."' Those provisions that television and newspapers offer to their called for an accounting of minorities and black audience is almost totally white. women employed at the stations and asked While federal regulation of all communic- the stations to compare the numbers of ations industries has always referred to the minorities and women on staff to the number necessityofbroadcasters(radioand of minorities and women in the station's television stations) and common carriers service area. The FCC also asked stations (telegraph and telephone companies) to to send job announcements to places where operate "in the public interest,"6 it was not likely candidates might be found.'° until the involvement of the civil rights The FCC rationale for requiring a report community, through protest and court of hiring statistics and outreach efforts was action, in the late 1960s and 1970s that the twofold: (1) hiring without broad outreach public had any real say about its interest. may exclude minority and women candi- Though many advances were made during dates; and (2) a licensee who discriminates this period, much was reversed in the mid- against minorities and women would not be 1980s and 1990s. The next few years may inclined to serve the needs and interests of determine whether the setbacks of the past all sectors of its community of license." 20 years will be reversed or solidified as we enter a future where communications A. Lutheran Church becomes more important than ever to our society. In 1998, the U.S. Court of Appeals ruled that the FCC's EEO reporting and outreach rules were an unconstitutional violation of II. EEO and Ownership equal protection.12 Judge Silberman considered the requirement to report on minority One direct outcome of both the Kerner hiring as a condition of the broadcast license Commission and the LICC v. FCC focus on to be a race-based government hiring the lack of service to minority communities program triggering "strict scrutiny." Noting was the establishment of equal employment Adarand v. Pena, 515 U.S.C. § 200, 226 opportunity guidelines.7 The FCC is charged (1995), Judge Silberman wrote: with regulating "interstate and foreign communications services so that they are We do not think it matters whether a available, so far as possible, to all people of government hiring program imposes hard the United States, without discrimination quotas, soft quotas, or goals. Any one of the basis of race, religion, national origin, these techniques induces an employer to or sex."8 hire with an eye toward meeting the numerical target. As such, they can and

497 Citizens' Commission onCivilRights D . D a -

surely will result in individuals being must submit their annual EEO report, but granted a preference because of their race. these reports will not be used to determine fitness to serve as a public trustee, they will Judge Silberman went on to write that even be used "only to monitor industry employ- if the Supreme Court's decision in Metro ment trends and reporting to Congress."18 Broadcasting v. FCC, 497 U.S. 547 (1990) was David Honig, who filed extensive briefs good law, that court's finding that diversity at both the Appeals Court and the FCC as was "important" was not a determination counsel for the Rainbow/PUSH Coalition, that it was "compelling." Moreover, the the NAACP, and the Minority Media and remedy (outreach and reporting on staff com- Telecommunications Council, argued, "The position) is not narrowly tailored, as there effect of this ruling is that broadcasters was noevidence"linkinglow-level understand that if you discriminate, you are employees to programming content."13 going to lose your license." He also said, In response to Lutheran Church, the FCC "These are the best recruitment rules we can froze enforcement of its EEO regulations. probably hope for." While the first statem- After the Lutheran Church decision, several ent is highly unlikely, the second is studies on employment in the broadcast undoubtedly true. industry demonstrated that minorities were The fundamental premise of the FCC in not especially well represented. In January adopting equal employment opportunity 1999, a coalition of minority organizations rules to apply to federal licensees remains also began a protest against the program sound. Local broadcasters play an important schedules of the national networks, which and unique role in community discourse. featured mainly white actors. The Center for They are given a license to a scarce portion Media and Public Affairs, Children Now, and of the public electromagnetic spectrum by the Tomas Rivera Institute provided studies the federal government. In that public space that supported the claims of underrep- they are protected by the federal government resentation.14 And a yearly study released from interference by others. They are also by the Radio-Television News Directors given special "must carry" rights over local Association,forexample,findsthat cable operations." Local broadcasters are minorities are underrepresented in tele- the most relied upon source for news, vision news staffs, and that few minorities politicaldiscussion,andemergency were in a position to determine either news information.21 In exchange for their special or news hires.15 After months of embar- status in our communities, broadcasters are, rassing headlines, and threats of boycotts in theory, required to act as public trustees, ("black-outs" and "brown-outs"),16 most of the providing free over-the-air service for the major networks announced agreements to public good of all segments of their put more minorities on the air and improve community of license. Congress, the FCC, hiring practices.' and the Supreme Court have recognized a In January 2000 the Commission issued link between broadcast employment and the modified EEO requirements for broadcast expression of views on that broadcast and cable operations. Those rules required station." But today, as was the case in the broadcasters to widely disseminate inform- mid-1960s, the gift of this scarce, protected, ation about job openings, place information powerful federal license is not tied to any detailing outreach efforts in their public file, demonstration that the licensee employs on and submit a statement of compliance with a nondiscriminatory basis. the FCC's EEO rule. In addition, broad- Moreover, weak EEO guidelines for casters with ten or more full-time employees broadcasters will undoubtedly not stop at

Citizens' Commission onCivilRights small radio stations such as the one operated vacancies to recruitment organizations by the Lutheran Church Missouri Synod. requesting such notice; (3) engage in longer- EEO rules applied to broadcasters and to term recruitment initiatives such as job fairs, cable operations alike. And in our new scholarship programs, and community digital environment, similar rules will likely information events; and (4) collect listings be extended to any party providing com- of full-time jobs identified by title, along with munications services, whether by wire or utilized recruitment sources, advertise- broadcast or satellite.23 ments, total number of interviewees for each In 2000, the FCC promulgated a new set job, the date the job was filled, and of EEO policies that required that broad- documentation of the performance of the casters and cable operators recruit broadly. required longer-term initiative. This infor- The FCC provided two options. Under mation is required to be placed in the public Option A media companies could choose file annually and will be submitted to the from a laundry list of recruitment methods, Commission midway through the license such as "job fairs...and interaction with term.28 educational and community groups." Under The problem, of course, is not the FCC Option B, they would have to keep infor- EEO rules. The problem is the application mation on the race or gender of job ap- of a law promulgated in Croson to federal plicants. The FCC made clear that the agencies in Adarand, and the specific annual employment reports would not be application of the Croson disparity standard used for "screening renewal applications" or to an industry as dynamic as commun- "assessing EEO compliance," but "only to ications. Unfortunately, the FCC has never monitor industry employment trends."24 conducted a Croson/Adarand analysis, and Fiftystatebroadcasterassociations that is the first step that needs to be taken challenged the new FCC EEO rules, and the by the new administration. court of appeals in the District of Columbia If the FCC does not have the resources to ruled that Option B was unconstitutional in conduct a full Adarand study, the next light of Adarand, because "the Commission administration should convene a task force promises to investigate any licensee that comprised of NTIA, SBA, and the FCC to reports 'few or no' applications from women conduct an analysis to determine whether or minorities" and thus broadcasters were there is any justification to employ race- "sub silentio" pressured to recruit women based measures to advance EEO regul- and minorities.25 ations, as well as efforts to increase minority In June 2001, the FCC's request for the ownership in the communications industry. entire panel of the court of appeals to review this ruling was denied.26 As a result, the B. Ownership Commission has suspended the EEO rules and forms except for the prohibitions against Some may argue that the focus on discrimination.27 employment is wrong, that instead civil In December 2001, the FCC proposed a rights advocates should be concerned about new set of EEO rules that are essentially ownership. In the late 1970s, in recognition Option A of the rules proposed in 2000. In of the lack of progress made with stricter brief summary these rules would, if adopted employment policies than those in place and approved by the court, require broad- today, the FCC ruled that minority owner- casters and cable operators to: (1) widely ship was essential to create a diverse range disseminate information concerning a job of messages over the public's airwaves. Civil vacancy; (2) provide notice of full-time job

299 Citizens' Commission onCivilRights rights leaders were at the forefront of the by a team of researchers from Santa battle for rules to promote minority owner- Clara University; ship; among those testifying before Congress in support of such rules in 1974 were Ron Study of the Broadcast Licensing Process, Brown, on behalf of the National Urban prepared by KPMG LLP Economic League, and Joseph Rauh, Jr., on behalf of Consulting Services, consisting of three the Leadership Conference on Civil Rights.29 parts: "History of the Broadcast Licen- Policies promoting minority ownership were sing Process"; "Utilization Rates, Win established by the FCC,3° and reaffirmed by Rates, and Disparity Ratios for Broad- the Supreme Court in the Metro Broad- cast Licenses Awarded by the FCC"; and casting decision of 1990." "Logistic Regression Models of the In April 1995, however, Congress (with Broadcast License Award Process for Li- Republicans finally in control) teamed up censes Awarded by the FCC"; with President Clinton (chastened by Democratic defeats'in the mid-term election) FCC Econometric Analysis of Potential to kill the most effective method for Discrimination:Utilization Ratios for increasing minority ownership, the tax Minority- and Women-Owned Companies certificate.32 With minority-owned broadcast in FCC Wireless Spectrum Auctions, licenses stuck at around three percent,33 the prepared by Ernst & Young LLP; loss of an incentive to sell to minorities makes any progress beyond that invisible Study of Access to Capital Markets and ceiling impossible. And in June 1995, in Logistic Regressions for License Awards reaction to the Supreme Court's Adarand by Auctions, prepared by Professor decision,34 the FCC rescinded rules designed William Bradford at the University of to help women and minorities participate Washington; and effectively in the spectrum auctions for PCS licenses.35 At a Department of Commerce Whose Spectrum Is It Anyway? Historical hearing on minority ownership, testimony Study of Market Entry Barriers, Discrim- about the impact of media concentration ination and Changes in Broadcast and made possible by relaxed ownership rules WirelessLicensing1950toPresent, and continuing barrierstosufficient prepared by the Ivy Planning Group financial resources suggests little progress LLC.37 will be made in increasing the number of minorityownersofcommunications These studies were preceded by "When companies.36 Being No. 1 Is Not Enough," a report on dis- In 1999 and 2000, the Kennard FCC criminatory advertising practices, issued by commissioned a series of studies under the Kofi Ofori of the Civil Rights Forum on authority of section 257 of the Telecom- Communications Policy.38 munications Act to identify and eliminate While these reports do not substitute for market entry barriers to the commun- a comprehensive Adarand study, they sug- ications industry. These studies included: gest both substantial barriers to minority participation in media ownership, and they Diversity of Programming in the Broad- suggest that minority ownership does have cast Spectrum: Is There a Link Between an impact on diversity of content, partic- Owner Race or Ethnicity and News and ularly news and public affairs. As was Public Affairs Programming?, prepared discussed in the Policy Forum on Market Entry Barriers held in December 2000,

Citizens' Commission onCivilRights 300 substantive efforts are needed to correct the many different things to many people, and lack of minority participation in the media conversely it has come to have less and less industry, particularly in light of relaxed shared meaning to all. Our focus here is on media ownership rules." the unequal access to what is now called the In January 2001, the National Telecom- National Information Infras-tructure: the munications and Information Admin- analog and digital network of telephone, istration (NTIA) released Changes, Chal- microwave, cellular, and common carrier lenges, and Charting New Courses: Minority cable operations through which all Amer- Commercial Broadcast Ownershipinthe icans are able to share information. United States, a report on minority owner- Like our small roads and many-lane ship of broadcast stations. Among other highways, this network is intimately con- things it found that minorities, taken as a nected to interstate commerce. While much whole, have made some gains since 1998. In of this network is privately owned, it is all 2000, 187 minority broadcasters owned 449 regulated and protected by various levels of full-power commercial radio and television government. And much of the research and stations, or 3.8% of the 11,865 such stations development that upgrades it (such as the licensed in the United States. However, creation of the Internet) comes courtesy of minority owners' share of the commercial taxpayer contributions.41 Thus, our relation- television market decreased in 2000. The 23 ship with this "Information Superhighway" full-power commercial television stations is not merely as consumers but as citizens. owned by minorities in 2000 represented Consumer issues of affordable rates and 1.9% of the country's 1,288 such licensed fraud are important concerns. Concerns stations.° about unequal deployment are distinct and The next administration should continue just as important. What follows are brief to review the progress of minority owner- reports on disparities in access to Internet ship, and in particular review the impact of service, access to advanced telecommunic- the relaxed ownership rules in radio on ations service, and access to basic telephone minority ownership opportunities and service; and a very brief analysis of federal service to underserved communities. It policy addressing those disparities. should also review whether federal small business loans are sufficient to allow A. Access to Internet Service underrepresented groups to participate in the market for communications companies. In October 2000, NTIA issued its fourth report on the digital divide, "Falling Through the Net." NTIA found that despite increased Ill.Separate and Unequal Internet access by all groups, significant Access gaps remain. The access rates for black households in August 2000 was 23.5%, and for Hispanics the rate was 23.6%. Asian The National Telecommunications and Americans and Pacific Islanders had access Information Administration of the Depart- rates of 56.8% and white Americans had ac- ment of Commerce (NTIA) has helped to cess rates of 46.1%. make prominent a new term for inequality Hispanics and blacks at incomes below in the new century the "digital divide." $15,000 have access rates of 5.2% and 6.4%, While the term has been useful in drawing respectively. Asian Americans at compar- attention to the ever-present fact of in- able income levels have access rates of 33.2%. equality in America, it has also come to mean

300 3 01 Citizens' Commission onCivilRights Part Two: Digital Divide Chapter 20

The overall rate for access to the Internet added). There is at least one subscriber for households with incomes below $15,000 to high-speed service in 57% of the sam- is 12.7%.42 ple small-town zip codes, but only 13% of the more sparsely populated towns B. Access to Advanced had a subscriber to high-speed service. Telecommunications Service Survey data indicate that low-income consumers are particularly vulnerable to The above figures note mere access to the not having affordable access to high- Internet, but they do not report on the speed services. Of the zip codes with the quality of that access. Anyone who uses the lowest household income, only 42% in- Internet for simple research (to assist with clude a high-speed subscriber. On the a high school homework assignment, for other hand, data show that, of zip codes example) knows there is a major difference with the highest household income, 90% between a regular dial-up telephone service include a high-speed subscriber." and a high-capacity (allowing more data), high-speed service. These advanced com- municationsservices,also known as C. Access to Basic Telephone Service broadband, are increasingly available over modified cable service, satellite, digital As important as the disparity is between wireless, fiber, and other telephone-based those who have access to the Internet, there technologies (ISDN and DSL). is a lingering disparity over basic telephone NTIA reports that 4.4% of all U.S. house- service. In 1999, NTIA reported that having holds had access to the Internet at home via a telephone varies significantly according to advanced telecommunications services, income, education level, race, age, house- while 37.7% had access via regular dial-up hold makeup, and whether you live in a rural services. There was little disparity regard- or &ban area. ing access to advanced telecom-munications Only78.7%ofthelowest-income services between racial groups (Asian Amer- households (i.e., less than $5,000 annually) icans 11.7%, whites 10.8%, blacks have telephones. If you are poor and living 9.8%, and Hispanics 8.9%) among online in a rural area, a household's chances are households. Households with incomes of approximately three out of four of owning a $75,000 or greater have access to advanced phone. At the opposite end of the spectrum, services at a rate of 13.8%, while households if a household earns more than $75,000 and with incomes under $15,000 have rates of is located in central city and urban areas, it 7.7%. Note that the low-income rates are is particularly likely (98.9%) to own phones. inflated most likely by students reporting Approximately 95.0% of all white house- income of less than $5,000 but advanced holds have phones, regardless of where they access at a rate of 99%43 live. This contrasts sharply with minority The FCC also released a report on access households, particularly those such as rural- to advanced telecommunications services in dwelling American Indians/Eskimos/Aleuts August 1999 and noted the following: (76.4%), Hispanics (84.6%), and blacks (85.4%). Those outside of large population The disparity based on race/origin is also centers, including rural customers, are affected by income level. At the highest particularly vulnerable to not being income level ($75,000 or higher), there is served by market forces alone (emphasis virtually no difference among household

301 Citizens' Commission onCivilRights 302 Chapter 20 Part Two: Digital Divide

penetration rates. At the lowest income level is another issue that is more subtle and (less than $15,000) the disparities are invisible: deployment. Both of these con- pronounced: American Indians/Eskimos/ cerns can be addressed by federal and state Aleuts (72.3%), blacks (78.1%), and Hispan- policies. ics (81.9%) have the lowest penetration rates, compared to Asians/Pacific Islanders D. Universal Service (90.9%) and whites (89.1%).45 Telephone penetration in Indian Country Universal service is, like "the public is appallingly low. The Navajo Reservation, interest" and "all men are created equal," a covering large areas of Arizona, New Mexico, flexible concept that mirrors our national and Utah, reports that 81.6% of their house- shifts (if not certain progress) over time. holds are without phone service.46 Imagine There is a debate over the origin of the a parent at home late at night faced with term,5° and there are efforts to redefine it the emergency illness of her small child, in this new digital era.51 We acknowledge afraid or too far away to run to a neighbor, this conversation only to suggest that civil and with no telephone in sight, no ability to rights considerations should inform this dial 911. This was the situation faced by one discussion. Navajo family.47 Itis a situation that Risking oversimplification in the interest confronts 5.7 million American households of clarity, universal service will be described in the information age. here asitis established in the 1996 In August 2000, the FCC released the 60th Telecommunications Act and the FCC's anniversary edition of Statistics of Com- interpretation of that Act. Section 254 of the munications Common Carriers (if you have Act allows the FCC to establish subsidies access to high speed Internet service you for an "evolving level of telecommunications might have the patience to download it "free services" at "just, reasonable, and affordable of charge"). In 1999, 94.6% of households had rates." Those subsidies are to be provided access to basic telephone service. Over 11% by "all telecommunications carriers provid- of the households in Mississippi are without ing interstate telecommunications services." telephone service, the worst telephone The Act specifically notes as beneficiaries penetration rate (88.8%) in the country. The "low-income consumers and those in rural, next worst states are President Clinton's insular, and high-cost areas." Elementary Arkansas (90.1%), Oklahoma (90.5%), and and secondary schools, libraries, and rural the nation's capital, which is in a dead heat health care providers are also to be provided with the home state of House Energy and subsidies in a program known as the E-Rate. Commerce Chair Billy Tauzin (R-Louisiana) And the goal of the Act can be understood to at 90.8%. 48 provide these beneficiaries "reasonably comparable" access to those services and to those rates provided in urban areas.52 In response to the Act, the FCC offers Unequal access to the National Infor- universal service support to: (a) telecom- mation Infrastructure affects nearly every munications carriers in rural, insular, and part of our lives today. It amplifies and high-cost areas, where telecommunications reinforces inequalities in education, health services are often more expensive to provide; care, financial services, job opportunities, (b) low-income consumers, through the and political information:* Though afford- Lifeline program (which provides monthly ability is an issue for many Americans, there reductions in service charges) and Link Up

302 Citizens' Commission onCivilRights -

program (which provides reductions in ofthe federal universal service support pro- initial connection charges); and (c) elemen- gram. The reduction applies to a single tele- tary and secondary schools, libraries, and phone line at qualifying consumers' principal rural health care providers through the so- place of residence. called "E-Rate" program. In addition to Link Up offers eligible low-income con- these subsidies, the Department of Educ- sumers: (1) a reduction in the local telephone ation is providing support to community company's charges for starting telephone technology centers that provide advanced service (the reduction is one-half of the telecommunications access to underserved telephone company's charge or $30.00, areas. whichever isless); and (2) a deferred payment plan for charges assessed for

I. Universal Service Support to Insular starting service, for which eligible consum- Areas ers do not have to pay interest. Eligible consumers are relieved of paying interest Regarding support to insular areas, the charges of up to $200 which are deferred for most significant advances have been policies a period not to exceed one year.54 to provide telecommunications services to Lifeline and Link Up programs have been Indian Country. On June 8, 2000, the FCC very effective in subsidizing telephone ser- substantially reduced the price of basic local vice for the poor; unfortunately, little effort phone service for income-eligible customers is made to let the poor know they are eligible on tribal lands; streamlined the process for for subsidized telephone service. There have receiving universal service support for been strong efforts demonstrating the companies that seek to serve tribal lands as effectiveness of outreach in increasing an eligible telecommunications carrier; and, participation in these programs, such as the created additional incentives for wireless program managed by the Public Utility Law carriers to serve tribal lands.53 These efforts Project in New York, created in cooperation should be continued and reviewed by the with the State of New York and Verizon next administration. (formerly NYNEX and Bell Atlantic).55 But there remain significant numbers of people 2.Lifeline and Link Up eligible for these subsidies who simply don't know they exist.56 The Lifeline and Link Up programs The FCC, perhaps in concert with other directly benefit eligible low-income con- federal agencies, such as the Departments sumers. The federal Lifeline program of Housing and Urban Development, Health provides between $3.50 and $7 per month to and Human Services, Education, Agricul- providers to enable them to reduce eligible ture, and the Interior, should devote more consumers' monthly charges. The amount of resources to inform those eligible for federal support will vary depending on Lifeline and Link Up support. decisions made by the state commission (such as whether to provide state support 3. The E-Rate Program and how to determine eligibility). But eligible low-income consumers in every Despite numerous attacks by conservative state, territory, and possession will receive opponents as the "Gore Tax,"57 the FCC's at least a $3.50 reduction on their telephone implementation of the so-called E-Rate bill in the form of a credit against their $3.50 program can be called a substantial success per month subscriber line charge as a result in reducing inequality of access in minority communities.55 By 1999, after the first two

3 0 4 303 Citizens' Commission onCivilRights Chapter 20 Part Two: Digital Divide

years, the E-Rate program committed $3.65 CTCs in low-income and rural neighbor- billion to over 50,000 schools and libraries. hoods across the country. As of this late date, Roughly one million public school class- those funds have not been approved by rooms were connected to modern telecom- Congress. Then-Governor George Bush munications networks. Fully 70% of 1999 promised to "invest $400 million to create funding went to schools from the lowest and maintain more than 2,000 community income areas, and portions of those funds technology centers every year." And former will reach 70% of the schools under the Vice President Al Gore set a goal of creating Bureau of Indian Affairs. In addition, the 2,000 Community Technology Centers in program connected nearly 13,000 commun- low-income neighborhoods by 2002.63 There ity libraries.59 In year three of the program, seems to be bipartisan support for CTCs $4.72 billion has been requested,6° sugges- aimed at assisting low-income communities' ting a continued role for this subsidy support access to the Internet. of schools, libraries, and rural health care

centers. This program should be continued. F. Information Redlining

E. Support for Community Subsidies are of very little help if the sub- Technology Centers sidized service is not available in your area. One result of living in a still very segregated In May 2000, Commerce Secretary Wil- society is that minorities and the poor are liam M. Daley announced the award of a subject to the perceptions held by business $100,450 contract to the Virginia Polytechnic decision-makers who don't live near them Institute in Blacksburg, Virginia, to survey about the interest in or ability of minority 100 Community Technology Centers (CTCs). or poor people to purchase "high-end" According to Daley, "The role that Commun- services. Decisions to deploy cable or fiber ity Technology Centers play in helping to networks in wealthy communities based on bridge the digital divide cannot be over- assumptions that minorities could not or stated."61 would not afford such services are not In September 2000, Education Secretary necessarily based on information but Richard Riley awarded a one-year $2 million perception. The logic of the market seems contract to support community technology to suggest that rapid deployment in centers, "especially those in lower-income wealthier neighborhoods is the most sensible and hard-to-reach rural areas." The funds way for communications companies to re- are being used to support a group of cover costs. As Santa Clara University Law Community Technology Centers, under the School Professor Al Hammond has argued, name America Connects Consortium, which in turn will provide technical assistance to [Advanced telecommunications] systems other CTCs. CTCs are at the center of efforts will first be built in communities per- to close the information technology divide ceived to possess the requisite dollars and because, unlike many schools, libraries, or demand. Many innercity and rural health care facilities, they are able to provide communities, aswell as[older] near those in economically disadvantaged areas suburbs, are not viewed as desirable mar- with after-hours ready accesstothe kets regardless of their actual consump- Internet.62 tionoftelecomandvideoservices. The Department of Education has re- (emphasisadded)64 quested additional funds to establish 1,000

304 3 0 5 Citizens' Commission onCivilRights Part Two: Digital Divide Chapter 20

The NAACP, La Raza, and other civil have turned up all sorts of silly and ugly rights groups have participated actively in stereotypes (such as "Black people don't eat the controversy generated by Ameritech's beef," and "Hispanics don't bathe as plan to deploy high-capacity wires in a frequently as non-Hispanics")." These ves-' manner that looked suspiciously like tiges of slavery and Jim Crow mark our "information redlining."65 Bell Atlantic ori- culture and warp our supposedly free ginally proposed to wire every home and market. business with fiber optic cable, but appar- Segregation not only affects the per- ently has focused on suburban areas, ception of other by isolated executives, it bypassing poorer urban communities. 66 affects entire communities. A cable company Market logic is not supported by market that does not deploy in a neighborhood reality. As Pennsylvania State University because it has a large population of Latinos Professor Jorge Schement points out: affects not only a Latino family but the schools and the health centers and the African-Americans subscribe to premium businesses in that community. As noted cable at nearly twice the rate of white earlier, concerns about electronic redlining households (45% to 26%), while Latino have been expressed since the early 1990s.71 households fall in between (35%). Twenty- One result of that expression was the two percent of HBO's subscriber base creation of section 706 of the Telecommunic- comes from African-Americanhouse- ations Act.72 holds, amounting to 42% of all African- As mentioned above, in August of 2000, the American homes. African-Americans or- FCC issued a report on the availability of der pay-per-view programs at twice the high-speed and advanced telecommun- rate of whites, with Latinos again in be- ications services in accordance with Section tween.67 706. Their national survey showed that there were 2.8 million total subscribers for these NTIA research also indicates that many of advanced services. Resulting in the con- the most disadvantaged groups, in terms of clusion that"that advanced telecom- computer and modem penetration, are the munications capability is being deployed in most likely users of online services featuring a reasonable and timely fashion overall." education and economicopportunity Those of us concerned about issues of equity programs. 68 may be disturbed about this conclusion given Professor Schement argues that American that the same report also demonstrated that ethnic groups make very different choices certain groups "are particularly vulnerable about what media services to bring into their to not receiving serviceinatimely homes based on a complex set of factors, fashion."73 The mandate of section 706 was including cultural preferences. But it is not to determine deployment of advanced ser- difficult to understand why an African vices "to all Americans." American household would choose to The first challenge is to get a clearer purchase a fix-cost premium cable service report on deployment. As former FCC Com- rather than a telephone with costs that may missioner Gloria Tristani notes: vary tremendously from month to month. But how would an executive living in a As the Report itself acknowledges, the zip gated and segregated community under- code data are of limited usefulness, be- stand this, even assuming no bias?69 Our sur- cause providers were askedtoreport veys of decision-makers in media companies whether there is at least one subscriber in a particular zip code, not the number

305 Citizens'Commission onCivilRights 306 Chapter 20 Part Two: Digital Divide

of subscribers in a particular zip code. and church burnings, housing and lending Thus, the data do not indicate the extent discrimination, inadequate education in re- to which the presence of a broadband in a segregated schools, racial profiling, under- particularzipcodeindicatesmore funded enforcement of EEO laws, and a host widespread availability. The availability of other concerns. How can this small band of data on actual numbers of subscribers possibly take on one more challenge? Why in a particular zip code or data at a more should they put something as seemingly granular geographic area would provide abstract as communications policy on a plate a better picture of the state of deployment. already overburdened? Similarly, because providers were not Imagine the world of Jackson, Mississippi requiredtodistinguishbetweenre- before Reverend Parker ventured there. The sidential and small business customers, televised pictures of attack dogs and fire the data do not provide an accurate hose sprays and police beatings that took snapshot of deploymenttoresidential place in Birmingham and Selma, and so users. In some zip codes, broadband and affected Northern viewers, went unseen in advanced services may be available to nearby Jackson. In Jackson, the images of businessusersbutunavailable,and black Americans were not those noble perhapsunaffordable, to residential marchers but happy mammies and smiling users. In addition, the available data do coon caricatures with watermelon in hand. not track service providers with fewer In Jackson, the sharecropper's son or than 250 lines installed to subscribers in daughter would not have seen the March on any state. Accordingly, there may be a sub- Washington, or heard Martin Luther King's stantial number of small providers' lines dream of their future. Imagine having no that are unreported, another piece of data recourse to thisset of circumstances. that is necessary for a more complete view Reverend Parker understood the damage of deploynzent.74 done to the spirit of a people when they have no control over their own image, when their Once we are able to determine with better voicecannotbeheard, whentheir accuracy whether deployment of advanced conscience cannot be stirred to rebel or to telecommunications services occurs in a way hope or to vote. That is why ensuring civil that avoids poor and minority communities, rights considerations applied tolocal we can propose methods to deter this red- broadcasters was so important. If it was lining. Those methods might include inform- important to fight for equal education and ing decision-makers about the true value of an equal opportunity to benefit from the minority markets receptive to advanced public road, it is important to fight for equal services, encouraging state or municipal access to avenues of speech and information deployment in underserved markets, or and equal opportunities to benefit from the providing private industry with incentives information superhighway. to deploy in those markets. Perhaps it is difficult to imagine the world of Jackson, Mississippi, before Reverend Parker. Try this: Imagine a world where the IV. One More Challenge predominant image of minority youth is televised mug shots of gangsters, either Those in and out of the government con- wanted or in handcuffs. Imagine a world cerned about civil rights have continuing where parents do not have access to a battles over affirmative action, hate crimes telephone to call to help their child. Imagine

306 307 Citizens' Commission onCivilRights a world where the poor do not have access degree that the next administration can to educational resources, or health care ensure that all Americans benefit from new resources,oremploymentresources, advances in communications technologies, because they cannot afford a telephone line, civil rights considerations of equal oppor- much less a computer. Imagine that they can tunity and democratic participation must be afford advanced services but those services an important part of their rulemaking. are deployed in a way that avoids their It is not a matter of establishing new neighborhoods. This should not be hard to rights. The Communications Act obligates imagine because this is our nation. broadcasters, and cable operators, and This is the heart of the battle, and it is telephone companies to operate in the public faced not only by black Americans but by interest, convenience, and necessity. This Latinos and Asian Americans and poor obligation creates a set of rights bestowed whites. Communications policy is funda- upon broadcast viewers and listeners, and mental and crosscutting. Information infras- cable and telephone customers. Congress tructure is as vital to health care and educ- and the Supreme Court have made it clear ation and business as sewer systems and time and again that balanced against the electricity. The communications policy de- right of corporations it is the average Amer- bate is not a debate about gadgets or even ican who enjoys the paramount right to markets. It is a debate about who gets to speak, and the right to reasonable rates, and speak and to hear, and for what price, and access to service, and to privacy. The to whom. It is a debate about the nature of challenge is not to establish a new set of our democracy. rights, but to understand and articulate and Many, including this author, consider the give teeth to the set of rights we have. The 1996 Telecommunications Act a deeply problem is as old as the nation itself: those flawed and compromised set of laws. But rights we do not protect with vigilance will within it are important opportunities to pre- slip away. serve and extend concepts of equal access and public interest responsibilities. To the

307 Citizens'Commission onCivilRights 308 Chapter 20 Part Two: Digital Divide

Endnotes

1 Mark Lloyd is the Executive Director of the Civil Rights Forum on Communications Policy, a project of the Tides Center. The Forum works to bring civil rights and community groups into the debate over our media environment by monitoring and reporting on state and federal legislative and regulatory action, and by conducting meetings and building coalitions. Previously, he worked as a communications attorney in Washington, D.C., representing both commercial and noncommercial communication companies for the firm of Dow, Lohnes & Albertson. He also has nearly 20 years of experience as a broadcast journalist, working as a reporter and producer at public and commercial radio and television stations, and at NBC and CNN. He is the recipient of several awards for his writing and reporting, including an Emmy and a Cine Golden Eagle. Mr. Lloyd is Chairman of the Board of Directors of the Independent Television Service (ITVS), an organization supported by the Corporation for Public Broadcasting to fund independent television producers. He also serves on several other national boards and advisory panels, including the Ad Council's Advisory Committee on Public Issues, the George Washington University National Task Force for Democracy Online, and the Leadership Conference on Civil Rights Education Fund. He received his Bachelor's degree from the University of Michigan and his law degree from the Georgetown University Law Center. 2 K. Mills, Civil Rights Forum on Communications Policy, Changing Channels, The Civil Rights Case that Changed Television (1998). Office of Communication of United Church of Christ v. Federal Communications Commission, 359 Federal Reporter 2d 994 (1966). 4 Documents of American Broadcasting, at 233 (F. Kahn ed., Prentice-Hall 1984). 5 Report of the National Advisory Commission on Civil Disorder, Otto Kerner, Chairman, at 210 (Bantam 1968) (Kerner Commission Report). 6 42 U.S.C. § 307. 7 Window Dressing on the Set: An Update. The last year the U.S. Commission on Civil Rights issued a report on minorities in the media was 1979. One staff person said anyone looking at TV can see the report had its desired effect so there was no need to continue the short-lived series. The fact that President Reagan came into office a year later and began an immediate attack on the Commission and its budget may also have had something to do with the Commission's lack of work in this area. 8 47 U.S.C. § 161, as amended (1997). 9 47 C.F.R. § 73.2080 (b) (1994). 10 Newhouse Broadcasting Corp., 37 Rad. Reg. 2d 141, decided Apr. 21, 1976. " In the Matter of Review of the Commission's Broadcast and Cable Equal Employment

308 309 Citizens' Commission onCivilRights I

Opportunity Rules and Policies, Report and Order, MM Docket No. 98-204, released Feb. 2, 2000. 12Lutheran Church-Missouri Synod v. Federal Communications Commission, 141 Federal Reporter 3d 344 (1998) ("Lutheran Church"). 13Lutheran Church at 355-57. 14 , , . 15 . 16 . 17 . 18Report and Order at 87-89. 19 . 20 . 21 . 22Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S.C. § 547, 583 n. 34 (1990). 23 S. Jenne 11Trigg, The Federal Communications Commission's Equal Opportunity Employment Program and the Effect of Adarand Constructors, Inc. v. Pena, 4 Comm Law Conspectus 237 (Catholic University Law School Summer 1996). 24Review of the Commission's Broadcast Equal Employment Opportunity Rules and Policies, 15 F.C.C.R. 2329, 120 (2000) (R&O). 25MD/DC/DE Broadcasters Association v. Federal Communications Commission, 236 Federal Reporter 3d 13 (2000). 26 . 27Equal Employment Opportunity Outreach Program Requirements, 16 FCC Record 2872 (2001). 28 . 29Broadcast License Renewal Act: Hearings on S. 16 et al. Before the Subcommittee on Communications of the Senate Committee on Commerce, 93rd Congress 2d Session Part 1, at 325-329, 408-411. 30Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C. 2d 979 (1978). 31Metro Broadcasting, Inc. v. Federal Communications Commission, 497 U.S.C. § 547 (1990). 32K. Ofori and M. Lloyd, "The Value of the Tax Certificate," 61 Federal Communications Law Journal 693 (1999). . 34Adarand Constructors, Inc. v. Pena, 115 Supreme Court Reporter 2097 (1995). 35Implementation of Section 309(j) of the Communications Act Competitive Bidding, Sixth Report and Order, P.P. Docket 93-253, FCC 95-301, released July 18, 1995. . 37See, generally, . 38 . 39 . 40 . 41 There is a persistent myth that the Internet is unregulated. The Internet operates over a very regulated common carrier, cable, and satellite infrastructure. See .

410 309 Citizens' Commission onCivilRights -

42, checked at 11/20/00. 43 . 44 . 45 . 46Marcia Warren et al., Native Networking: Telecommunications and Information Technology in Indian Country (Benton Foundation 1999). 47 . 48 . 49A. Hammond, "Standing at the Edge of the Digital Divide," in The State of Black America (Daniels et al. eds., National Urban League 1999). 50 . 51 . 5247 U.S.C. § 254. 53 . 54 . 55 . 56 . 57 . 58 . 59 . 60 . 61 . 62 . 63 . 64A. Hammond, "Universal Access to Infrastructure and Information," DePaul Law Review 1067, 1082-1083 (1996). 65D. Stoltzfus, "Bells Accused of Redlining Video Dialtone," The Record, May 24, 1994, at Cl. 66M. Peterson, "New Jersey Telephone Plan Neglects the Poor, Critics Say," The New York Times, Apr. 19, 1997, at A31. 67J. Schement, Thorough Americans: Minorities and the New Media (Aspen Institute 1997), availableat. 68 . 69 For recent studies on current trends and effects of segregation, see and . 70 . 71 , . 7247 U.S.C. § 706. , . 74 .

310 3 11 Citizens' Commission onCivilRights .

Chapter 21 The Adverse Consequences of a New Federal Direction by Gary D. Bass, Kay Guinane, Reece Rushing, and Ellen Taylor'

Introduction "What about laws to prevent discrimination?" There is a fundamental shift in the way "Oh, that doesn't count." Washington works that directly affects the "What about the Interstate highway you civilrights community.Itwas best took to get here?" articulated by House Majority Leader Dick "I didn't realize that was the federal Armey and is being implemented with government." precision by the Bush Administration. In a Then the final blow, "Did you know we are post-tax cut July 5, 2001, message (), Armey said, "Did we Republic- governinent." The skier could not wait to get out of that chair. ans come to Washington merely to slow the Yet President Bush has ridden the naivete growth of leviathan government? Or did we of Americans like this skier to pursue a come to shrink and re-limit it? I say we came radical agenda that makes the Reagan here to shrink and re-limit it...Restraining government [through the tax cut] was step Administration appear as though it were one. Step two is roll-back" (emphasis in liberal. This can be seen on three fronts: original). It hardly seems necessary to remind any Thedisinvestmentofthefederal sector of the public of the value of the government that results from pursuing government or of the need for federal a tax cut agenda that primarily benefits presence. Yet it was not long ago that one of the wealthy in this country and cutting us was downhill skiing on national forest back on the scope of government; land out west. Going up the chair lift, the The dismantling of regulatory protec- other person started to make conversation. tions that have taken years to develop "So where are you from?" as evidenced by the roll back of Clinton "Washington, D.C." "Oh, I'm sorry to hear that. Government Administration regulations and the hasn't done anything worthwhile or right. promotion of the faith-based initiative; We should just get rid of it." and Picking up the battle, the dialogue began. "What about Social Security?" The devolution of federal responsibilities "Oh, that doesn't count." including enforcement of laws and regulations.

Citizens'Commission onCivilRights 312 Chapter 21 Part Two: Federal Resources and Direction

These three Ds disinvestment, dismant- Federal fiscal policy is a reflection of our ling, and devolution spell trouble for the priorities as a nation as well as a statement civil rights community. about the role of government in our civil society. Conservatives have long recognized this and have launched long-term initiatives I. Disinvestment to"shrink and re-limit"theroleof government through a variety of means, Civil rights issues, including regulation, including tax cuts that limit federal and state enforcement, and programs designed to resources, the erosion of federal regulatory promote political, economic, and social powers, and continued assaults on the equality and equal access, are intrinsically efficacy and role of government. Social linked to the federal budget. The budget justice advocates, on the other hand, have who gets what resources is where the largely focused their attention on specific pedal hits the metal in determining whether issues without framing their efforts within policies actually get implemented to make a broader ideological agenda like overall civil rights a reality. It is the true measure fiscal policy or the positive role of govern- of our commitment as a nation to social ment. For instance, conservative attacks on justice. The federal budget is multifaceted, the growth of government measured in complex, highly politicized, and often dollars frequently obscure the fact that difficult to influence. Given its importance domestic discretionary spending is actually to the goal of achieving political, social, and shrinking as a percentage of the GDP. The economic equality, some understanding of fellow on the ski lift referenced in the the politics surrounding the budget is vital. introduction may be less naive than And the story that is currently unfolding is brainwashed from constant reminders of that of a steady disinvestment of federal government waste and inefficiency which resources. the media is much more apt to report, rather Three numbers may best illustrate the than reporting on the good things that historical decline of government spending. government does. In the last year of the Reagan Adminis- Conservatives have been very effective in tration, government spending was roughly framing their message and in linking up 21.2% of the Gross Domestic Product (GDP). specific issues within a broad long-term In Clinton's last year, spending had dropped ideological position. Thus, the conservative to 18.2% of the GDP. By 2006, President attack on government represents a very Bush proposes to shrink federal spending effective way to delimit social justice, since to 16.6% of the GDP the lowest per- a strong federal government is essential to centage of government spending since 1956. the policies and enforcement and support These are just the broad strokes showing necessary to achieve that ideal. It is vital that government expenditures as a whole are that supporters of social justice begin to shrinking.2 In the last year of the Reagan rehabilitate the idea of government as Administration, domestic discre-tionary necessary and important, as well as find spending was 3.5% of the GDP. At the end ways that government can be more effective of Clinton's term it was 3.3% and under for instance, by forming new partnerships President Bush's budget it would shrink to and initiatives. 3.1% in 2006, lower than at any time from The voices of ordinary citizens about what 1962, when these data became available.3 they want and expect from government are largely silent reflected only as polling

Citizens' Commission onCivilRights -

results, or, as during the last Presidential effectively use federal resources to meet our campaigns, individual examples of the need domestic priorities. for a particular policy. From our perspective, Public opinion research indicates that the the budget reflects a public means of vast majority of the American people identify achieving American ideals and values and the importance of using federal resources it presents an opportunity for strengthening to address a variety of domestic priorities community participation in shaping the role and to accomplish important goals such as our government plays in civil society. In civil rights and equal opportunity. Public other words, the federal budget is the means investment that reflects and implements our to actually accomplish our national goals values continues to have a broad popular and values. This requires a vigorous public appeal, in spite of its virtual disappearance and political debate about what our domestic from the public policy debate, and in spite priorities are, a discussion that has long of the bad rap given government by been deferred to policies of deficit conservatives. Americans recognize that our reduction and tax cuts and paying down the shared national ideals like assuring each debt. The terrible events of September 11 person the opportunity to succeed to earn seem to have prompted a long absent debate a decent wage and be able to support a family, about our national priorities and the role of own a home, raise their children in a healthy the federal government in achieving those and stimulating environment can only be goals. The September tragedy starkly realized through public policy that provides revealed the costs of disinvestment, for supports to families and communities. instance, in public health needs; the limits Environmental protection and dealing with of the private sector, especially in ensuring big issues like global warming and cleaning the safety of airline passengers; the value of up the air and water require the expertise public services we've long taken for granted and investmentoffederalresources. firefighters and police officers and emer- Addressing institutionalized racism and its gency medical technicians and "ordinary" impacts on the lives of Americans requires Americans rising to big challenges; and, with federal efforts. Policies to ensure that the economic downturn, we are also seeing differently-abled children and adults have the holes in the safety net that were less the opportunity to fulfill their potential, obvious when the economy was booming. through special education and training and The huge budget surpluses that had been accessible housing, all require federal predicted have been sharply reduced due to resources. Education and job training, scien- the passage of a huge tax cut, the economic tific and medical research and development, downturn, and the costs of rebuilding and transportation, public safety, health care, waging war. Budget deficits are certain for community economic development and the next few years, although a surplus over revitalization all require good policy and the next decade is still predicted. Tax cuts, the infusion of federal resources. proposed increases in military spending, and Furthermore, it is widely recognized that the rapidly rising cost of entitlement the United States will face new challenges programs all threaten domestic spending during the next couple of decades. A rapidly with future reductions during the next few aging population will place new demands on decades. Whether or not there are surpluses, health care and housing. Ensuring a decent "fiscal responsibility" encompasses far more quality of life for senior citizens, including than balancing the budget or reducing the increased needs for the service work debt.It includes the responsibility to involved with caring for other people, will become more pressing. We are increasingly

Citizens' Commission onCivilRights 31 4 Chapter 21 Part Two: Federal Resources and Direction

ethnically and racially diverse with more after-school and summer programs for and more people living outside a traditional children, and health care for all children who nuclear family structure, whether those are need it. We could make computer techriology same-sex partnerships, multigenerational and the literacy needed to effectively use it households, singles, or grandparents raising available to all Americans. We could address grandchildren. While we retain long- the economic and social roots that often lead standing American values about the value to or contribute to drug addiction and crime. of hard work, individual responsibility, and The list could go on and on. raisingchildrentobehealthy and Yet federal policy today is not concerned productive adults, our individual, family, with implementing big ideas. Policy is work, and community lives are changing. increasingly small and disjointed, with no Effective government programs need to be effort being made to link up small steps with designed to fit with these shifting demo- farsighted goals. The result is a lack of vision, graphics and reflect these changes in our lack of message, growing apathy about the social and work lives. role of government, and enormous oppor- Even many Americans who are reasonably tunity to fulfill the conservative agenda of well-off complain about their quality of life dismissing government. Young people from being stuck in traffic to a shortage express dissatisfaction with politics as usual of affordable and quality child and elder care and the absence of an affirmative vision for to job stress and insecurity and the difficulty the country behind which they can rally. of balancing the demands of work and home Theories of "the missing middle" point out life. People want affordable housing, safe that the national policy debate has been and liveable communities, environmental increasingly focused away from middle- protection and clean air and water, safe food, income working Americans and argue that quality education, health insurance and no great national purpose can be accom- the opportunities that allow all Americans plished without their inclusion.4 Economists to have an equal chance at achieving a good write books about the negative effects of long life. The way to ensure these benefits is work and commuting hours and job stress through federal policies and investment. In and insecurity on family and community life. spiteof concerns about government's While "visioning" efforts to develop and effectiveness, many people understand the implement shared community goals are role that the federal government must play taking place in communities across the in addressing the major challenges that lie country, there is no similar affirmative ahead. process taking place at the national level. If investment in America's people became As Robert Kuttner recently wrote in a national priority, innovative new ways of "Opposition as Opportunity," in The Amer- addressing social, economic, political, and ican Prospect, proponents of the "view that environmental problems could be developed an efficient economy and a just society and implemented. We could figure out ways require active government and politics as

to effectively address intractable problems well as a vigorous market.. .have been on like drug addiction, urban poverty and the defensive for the past quarter-century. suburban sprawl, the increase in violence . recent events, however, create new among young people, global warming and openings."5 For the civil rights community, environmentaldegradation,andthe this atmosphere creates a challenge. On the continuing entrenchment of racism and one hand, there remains the need to defend homophobia and fear of difference that limit against attacks on federal programs and us all. We could provide childcare, pre- and initiatives that increase income inequality

3 1 5

Citizens' Commission onCivilRights Part Two: Federal Resources and Direction Chapter 21

or further damage the social safety net. Yet The estate tax was very strategically if undertaken alone, this defensive action framed by conservatives as a "death tax," robs the community of the opportunities leading to visions of the Internal Revenue presented by budget surpluses for making Service descending on a grieving family to positive demands on government. It is time confiscate over half of the assets of the for civil rights advocates to pick up the deceased. In fact, the estate tax is a tax on mantle of what Robert Reich calls "big the assets that are transferred to heirs of think,"6 the advocacy of new ideas to the wealthiest Americans, and there are a strengthen the quality of life for all Amer- number of reasons why it is both a valuable icans. and a fair tax.7 Also lost on the public is the The challenge of balancing defensive and fact that the tax affects less than 2% of offensive action is made more difficult by taxpayers, who happen to be the wealthiest President Bush's initiatives. While the among us. entire $1.6 trillion Bush tax cut may be viewed as an ill-conceived drain on federal I. Concentrations of Wealth and Power resources that could be better spent, the elimination of the estate tax, which exemp- Without the estate tax, accumulated lifies problems with the larger tax cut, wealth could be passed from generation to should have raised the ire of the entire civil generation, leading to huge concentrations rights community. of wealth in the hands of a few and creating a new aristocracy. The United States was A. The Estate Tax founded on the ideal of a meritocracy and a rejection of the strictures imposed by The civil rights community had enormous European aristocracy. Throughout history stakes in the debate over repeal of the estate many political theorists and philosophers tax, since repeal of this long-standing tax have been concerned about the negative would: effects on democracy and social well-being when great inequality of private wealth and Increase concentrations of wealth and resources exists in a society. President power; Franklin D. Roosevelt supported an estate tax to avoid the "perpetuation of great and Sharply curtail charitable giving by undesirable concentrations of control in a removing a major incentive; and relativelyfewindividualsoverthe employment and welfare of many, many Reduce federal and state revenues, others."' potentially limiting funds for programs An inheritance is unearned income. It is a serving low-income and vulnerable windfall from having the right parents individuals and families. hardly a well-earned reward for individual initiative, hard work, and the entrepre- As passed, the Bush tax cut slowly modifies neurial spirit. In fact, inheritances can have and phases out the estate tax by 2010, but a negative effect on initiative and hard work. because the entire tax "sunsets" in 2011, the Andrew Carnegie, the great philanthropist, estate tax will then return as it existed felt that the "parent who leaves his son before the Bush tax cut was passed. That the enormous wealth generally deadens the estate tax is only repealed for a year ensures talents and energies of the son, and leads that this tax will again be debated during him to lead a less useful and less worthy life the next decade. than he otherwise would."9 In a curious

Citizens' Commission onCivilRights 31 6 Chapter 21 Part Two: Federal Resources and Direction

juxtaposition, the repeal of the estate tax revenue to fund programs for those low- and entitles the children of wealthy parents to middle-income families who will receive benefit from that wealth, without taxation, only minimal, if any, benefits from the tax while a single mother with small children is cut. no longer entitled to public support but is The debate about the estate tax was required to work, pay FICA taxes on each greatly enriched by the efforts of the dollar she earns, and even pay income taxes Responsible Wealth project of United for a on her earnings if she's fortunate enough to Fair Economy a group of wealthy earn a living wage. Further, the loss of individuals, many of whom, like Bill Gates, federal and state resources as a result of Sr., anticipate an estate tax liability. These repeal of the estate tax means that services wealthy individuals expressed their moral the single mother needs to keep on working, obligation to give back to society and to repay like health care and child care and access to the benefits they received from government, transportation, will be threatened with cuts. which contributed to their success. Before This reflects the focus of the entire tax cut the Responsible Wealth involvement, repeal it is a double hit on low- and middle-income of the estate tax enjoyed strong support and families. The tax cut primarily benefits those was practically a given; and it is fair to say wealthy Americans who need it least, while that the Responsible Wealth effort was at the same time reducing federal and state paramount in turning the debate around in

Charitable Deductions Claimed in Estate Tax Returns:1999

Average No. with % Claiming Charitable Size of Gross No. of Charitable Charitable Total Charitable Deduction Estate Returns Deductions Deductions Deductions Per Return

$600,000 to $1 million 49,898 6,640 13.31 $1,141,747,000 $171,950

$1 million to 40,779 $2.5 million 7,354 18.03 2,380,900,000 323,756

$2.5 million to 8,626 2,000 $5 million 23.19 1,492,748,000 746,374

$5 million to 3,050 896 29.38 1,414,928,000 1,579,161 $10 million

$10 million to 1,083 409 37.77 1,392,114,000 3,403,702 $20 million

$20 million or 577 261 45.23 6,752,878,000 25,873,096 more

Total I 103,993I 17,559I 16.18%I $14,575,316,000I $830,077

Source: IRS, Statistics of Income, unpublished data, March 26, 2001.

317 Citizens' Commission onCivilRights Part Two: Federal Resources and Direction Chapter 21

families, who are disproportionately black, Bequests by Recipient: 1995 thus ultimately making the wealth gap even wider.

Private Foundations A number of commentators pointed out 30 9% that Johnson's arguments were weak and self-serving; much of the accumulation of his Educhiledcal current wealth was accomplished through 31 6% "tax free transactions," and, absent an estate

Religious tax, much of his wealth would never be taxed, 96% making quite a windfall for his heirs.1° Johnson's arguments had nothing to do with Social Welfare Arts/Humanities 07% civil rights and everything to do with 2.7% Other preserving the privilege of the wealthy, 24 6% whatever race. The estate tax is a source of substantial federal and state revenue, as well as being an incentive for charitable giving. The Source: IRS, Statistics of Income Bulletin, Summer following sections will discuss those two 1999, Publication 1136 (9-99) benefits more fully.In terms of the redistributive aspect of the estate tax, it is important to note that when federal favor of retaining the tax. Repeal of the revenue is limited, time and again we see estate tax, which seemed to be a foregone programs for low-income and vulnerable conclusion after more than ten years of effort individuals and families being the first to by supporters of repeal, was suddenly not receive cuts. Many charitable organizations, so certain after all. including service providers like soup In response, however, Robert Johnson, the kitchens and homeless shelters, only exist billionaire founder of Black Entertainment because of charitable contributions from Television, who is also a member of Bush's wealthy individuals and foundations. The committee of Social Security privatization estate tax is a means to keep wealth and "reformers," gathered together a group of income inequality from increasing even more black business leaders and organized a rapidly than it is, both by preventing huge newspaper ad campaign demanding repeal concentrations of inherited wealth and by of the estate tax. Mr. Johnson argued that providing federal resources and an incentive unlike "very wealthy white Americans" who for charitable giving so that we can extend a support the estate tax, "[w]e as African hand up to those in need. While the estate Americans have come to our wealth on a tax may not be the most effective method different path, a different road than they for redistributing wealth and preventing the have," and that elimination of the estate tax widening gap between the very rich and the "will help close the wealth gap in this nation rest of us, especially because of the many between African American families and loopholes that allow the wealthy to avoid White families." Whether or not the payment of the tax, it does achieve some elimination of the estate tax would shrink benefit as our most progressive tax. the income gap between the very richest white families and the much smaller percentage of very rich black families, it would come at the expense of low-income

Citizens' Commission onCivilRights a - - . I

Charitable Bequests by Type of Recipient:1995

No. of Total Funds Average Bequest Type of Recipient Bequests Bequested Per Return

Private Foundations 981$3,127,984,000 $3,188,567 Educational, Medical or Scientific 7,309 3,194,230,000 437,027

Other 6,355 2,483,781,000 390,839

Arts and Humanities 932 272,800,000 292,704

Religious 8,401 970,445,000 115,515

Social Welfare 611 68,687,000 112,417

Source: IRS, Statistics of Income Bulletin, (Summer, 1999) Publication 1138 (9-99).

2. Charitable Giving more, and nearly half (46.6%) came from the super-rich estates that are worth $20 million Since there is no limit on the amount of or more. While 13% of the returns from money that an estate can contribute to estates worth between $600,000 and $1 charities and bequests to private found- millionmadeclaimsforcharitable ations are treated the same as those to deductions, 45% of the estates worth $20 public charities charitable giving is a million or more did so. The last column in powerful method of lowering estate tax the table above shows that as the size of the liability. estate grows, so does the average charitable It is very clear from tax studies that tax bequest. The smaller estates give $171,950 incentiveshelptostimulatecertain on average, whereas the wealthiest estates behavior, including charitable giving. The give an average of $25.9 millionmore than estate tax, like other taxes, proves to be an 150 times the size of the average bequest from incentive to give to charity. Estates that the smallest estates. have tax liability give between two and three So what happens to charitable giving when times as much to charity as estates without the estate taxisrepealed? Based on tax liability. For example, in 1997 taxable econometric data, most agree that repeal of estates gave to charities 2.1 times the the estate tax will have an adverse impact amount nontaxable estates did. (Those filing on charitable giving. The Treasury Depart- taxable returns gave $9.6 billion; those filing ment estimates that between $5 billion and nontaxable returns gave $4.6 billion.) $6 billion in charitable gifts will be lost each As the table demonstrates, the wealthier year when the estate tax is repealed. One the estate the greater the number of tax respected estate tax attorney says over $10 returns claiming a charitable deduction and billion per year in charitable giving will be the larger the charitable bequest. Roughly lost. The estimates of impact vary, but most two-thirds of the $14.6 billion in bequests in conclude the impact will be substantial. 1999 came from estates worth $5 million or

31 9 Citizens' Commission onCivilRights -

In a number of ways civil rights work is revenue (excepting Social Security and other supported through the power of the estate taxes that are off-budget for accounting tax; work that is being done through a variety purposes) an annual rate of 14.1% for the of nonprofit advocacy and research groups, estate and gift tax and a 7.25% pace for other educational institutions, religious congre- tax revenue. This rapid growth in the estate gations, and service providers would be and gift tax is likely to continue as the affected by repeal of the estate tax. It is transferofintergenerationalwealth difficult to be precise because there is a continues to grow. paucity of data. The Treasury Department, In FY1999, the gift and estate tax provided however, published 1995 data on charitable $27.8 billion in revenue to the federal bequests in its 1999 Statistics of Income government, which was expected to steadily Bulletin (see figure and table above). The increase to $55 billion over the next nine largest number of charitable bequests went years, according to the Joint Committee on to religious institutions (8,401), but the Taxation. The average annual revenue was largest dollar amounts went to educational, projected to be $33.7 billion, which is roughly medical, or scientific institutions and 4.6% of total discretionary spending." private foundations. While this may not seem like a huge Beyond the impact on religious insti- amount, given total revenue and outlays of tutions, civil rights organizations will be the federal government, the following chart significantly affected by a reduction in shows what programs and services could be bequests. Based on the Treasury Depart- supported by the projected annual revenue ment data, it appears that "social welfare" of $33.7. charities those tax-exempt 501(c)(3) As we are seeing, because of lower surplus organizationspromotingcivilrights, estimates due to the economic downturn, community development, social science depletion of $1.6 trillion plus of the surplus research, or government effectiveness for tax cuts, and bipartisan agreement to use would be the least affected by repeal of the theSocialSecurity surplusfordebt estate tax. However, these groups are often reduction,thereislessrevenuefor heavily dependent on private foundations spending, causing Congress to be faced with for support. Given the repeal of the estate difficult funding choices. Traditionally, cuts taxwouldadverselyaffectprivate in discretionary spending are seldom made foundations, 501(c)(3) groups would also be in military spending. Given the Bush significantly affected by repeal of the tax. It Administration's commitment to increases is estimated that roughly one-third of for defense spending, any cuts in spending foundation assets derive from the estate tax. will likely be made in domestic discretionary programs. It is not uncommon for such cuts 3.Federal and State Revenues to be made in programs with constituents who have less political clout. Usually this In addition to the adverse repercussions means human services, primarily targeted that full repeal of the estate tax will have to low-income families. Thus, in very direct on charitable bequests, the tax provides ways, the estate tax repeal can result in substantial and growing federal revenue that significant cuts in human needs programs. directlyaids funding ofcivilrights The repeal of the estate tax will mean that initiatives. Since 1996, estate and gift tax the super-rich get a tax break while the less revenues have grown at nearly double the fortunate get nothing and possibly could rate of the annual increase of other tax suffer.

Citizens'Commission onCivilRights 320 Chapter 21 Part Two: Federal Resources and Direction

up tax will have no estate tax after 2005, Potential Uses of Annual Average unless they pass separate legislation. $34 Billion Estate Tax Revenue Estimates are that states will lose between $65 billion and $100 billion in re- Program Billions venues due to the new tax law. This is coming at a time when many states are having Education of Disadvantaged Children $8.60 difficulty balancing their budgets and are Job Training 1.00 struggling with effects of the declining economy and escalating energy costs. The Youth Training/Summer Jobs 1.10 failure of the states to fight repeal of the estate tax, in spite of the fact that they stood Head Start 6.20 to lose considerable revenue, is a good Child Care Block Grant 2.00 lesson for us all. Since nearly one-third of charity revenue Runaway, Homeless Youth 0.07 comes from government support, the repeal College Work Study 1.00 of the estate tax would have a triple- whammy on charities and possibly civil Low-Income Energy Assistance (LIEHP) 1.40 rights programs. It would mean less money through charitable contributions, reduced Individuals with Disabilities Act 7.40 grants from private foundations, and less Community Health Centers 1.20 money in government support.

Substance Abuse Block Grant 1.70

Mental Health Block Grant 0.40 II.Dismantling

Community Services Block Grant 0.60 This section is divided into two parts. The Refugee Assistance 0.40 first part reviews today's attack on health, safety, and environmental protections. Where appropriate we draw implications for Total I $33.07 civil rights issues. The second part reviews the President's faith-based initiative as an Source: OMB Watch estimate, Feb. 8, 2001. example of how regulatory "reform" and legislation may come together to dismantle the federal grant-making system and the infrastructure for human service delivery. Besides the loss of federal revenue, most states have state estate or inheritance tax laws that are "piggybacked," either com- A. Bush's Regulatory Agenda pletely or in part, on the federal estate tax law. An estate's federal income tax liability The Bush Administration is currently is reduced by the amount of a state estate leading a campaign to dismantle regulatory tax credit, thus providing revenue to the protections for public health, safety, and the state without increasing the federal estate environment. There may be a temptation for tax payment. The new tax law phases out civil rights activists to ignore these attacks the state tax credit by 2005. This will have since they do not appear to directly affect considerable negative impact on state civil rights. But we caution against this. revenues as those that rely solely on a pick- Today's rollbacks create an ideological

320 Citizens' Commission onCivilRights a . . Ili I -

framework, coupled with operational rules that had been published but had not mechanisms, that could affect civil rights yet taken effect. Finally,it instructed issues in the near future. agencies not to publish any new rules, except Moreover, leaving appearances aside, in emergency situations, until political there are direct connections between these appointees were in place to approve them. attacks and the pursuit of civil rights and The new administration must now decide social justice. Consider, for example, that how to handle these pending regulations and industrial pollution is extremely high in poor proposed rules that still need to be finalized. minority communities; or that children, the For instance, at the end of the Clinton elderly, and the disabled are at heightened Administration, the Environmental Protec- risk when it comes to environmental tion Agency (EPA) proposed new require- contaminants; or that women disproportion- ments to upgrade many older power Olants ately suffer ergonomic injuries caused by and industrial facilities with new pollution repetitive motion on the job. These are control equipment. It will be up to the Bush all civil rights issues. Administration to carry this work forward The administration's initial focuson and issue final standards. Will it happen? health, safety, and the environmentmakes There have been no assurances that it will. political sense. To a large extent President Bush was elected with the backing of 2. Rolling Back of Existing Standards industry and conservatives financially and otherwise that have long identified Ever since the Card memo, the admin- regulatory "reform" as a high priority. istration has been feverishly rolling back Industry sees economic gain by reducing or health, safety, and environmental protec- eliminating federal rules.12 Conservatives tions. This has included tougher standards see "reform" as a means for rolling back the on arsenic in drinking water, ergonomic role of government, as Representative protections to protect against workplace Armey noted in the quote at the beginning injury,the Kyoto Protocol on global of this paper. warming, restrictions on hard rock mining, In pursuing this agenda, the Bush and new energy efficiency standards, just to Administration has taken a number of steps. name a few. Given the heavy emphasis on Specifically, these includes: devolution (see discussion in Part III of this paper), also expect retrenchment on various I.Abandoning Unfinished Work from the civil rights protections, such as those dealing Clinton Administration with the Americans with Disabilities Act and the Family and Medical Leave Act. In one of the very first actions of the new administration, President Bush's chief of 3. The Fox-in-the-Hen-House Approach staff, Andrew Card, issued a memorandum temporarily halting agency regulatory The Bush Administration is littered with activity effectively blocking last-minute former business lobbyists who are now in the actions by the outgoing administration." The position of regulating the very interests they memo instructed agencies to withdraw rules used to represent. This includes, for in- that were waiting to be printed in the stance, the new head of the White House Federal Register even though the rules had Office on Environmental Quality, James already been cleared by the Clinton Admin- Connaughton, who lobbied Congress on istration. It also instructed agencies to behalf of the Chemical Manufacturers extend by 60 days the implementation of Association, among others, on Superfund

Citizens' Commission onCivilRights 322 issues. The same is true with people hired substantively shaping rules protecting within the Department of Health and Hu- public health and the environment often man Services (HHS) and the Department of making them less protective at the urging Education. of affected industry even though it had no statutory authority and lacked the 4 Lax Enforcement of Health, Safety, and substantive expertiseto doso.This Environmental Standards administration appears headed back in this direction with the controversial confirm- Without regular inspections and clear ation of John Graham to head OIRA (the penalties for violations, agencies cannot nomination was opposed by 37 senators). effectively protect the public and the Graham, whose nomination was overwhelm- environment. Yet President Bush has put ingly opposed by the public interest an emphasis on "voluntary compliance" community, has a long track record of siding programs, where we must rely on the with industry in regulatory disputes as the goodwill of polluters. As an outgrowth of this former head of Harvard's Center for Risk philosophy, the administration has proposed Analysis,oncetellingtheHeritage that EPA's enforcement budget be slashed Foundation that "[e]nvironmental regul- dramatically and many responsibilities ation should be depicted as an incredible devolved to states (discussed later in the intervention in the operation of society." devolution section). In the past, enforcement During the confirmation process, senators has proven difficult to track and thus has raised possible conflict-of-interest concerns, received little attention from the public noting that Graham's center had received interestcommunity,themedia, and funding from numerous industry sources Congress. This is likely to further encourage whileproducingresearchthatwas Bush to see lax enforcement as a convenient frequently beneficial to those funders. For way to defang regulatory protections without instance, after receiving a contribution from having to pay a heavy political price. This is AT&T Wireless, the center produced re- equally true for civil rights programs. For search that argued against regulation of cell example, the Citizens' Commission on Civil phone use while driving. Rights demonstrated the difficulty in obtaining data about whether federal 6. Emphasis on Costs to Business in resources undertheElementary and Regulatory Decisions Secondary Education Act were being properly targeted to disadvantaged child- The administration has indicatedit ren.14 This problem will likely be exacerbated intendstoput greater emphasis on under the Bush Administration. monetized cost-benefit analysis in regulatory decisions (even though many governing 5. A More Aggressive Office of laws expressly state that standards must be Management and Budget set based on what's best for public health). As OIRA administrator, Graham has the All agency rules are subject to approval power to enforce such monetization, which by the Office of Management and Budget's he has long advocated. Since benefits are (OMB) Office of Information and Regulatory often difficult to put in terms of dollars and Affairs (OIRA). During the Reagan and Bush cents, monetization inevitably has the effect I Administrations, OMB used this review of deflating benefits relative to costs, which authority to routinely involve itself in are frequently overstated." Cost estimates are generally based on data supplied by

Citizens' Commission onCivilRights -

industry and do not take into account protections. In this way, the Council adaptive effects, such as technological which, unlike the agencies, did not have to advancements, that inevitably reduce costs disclose any of its dealings acted as a over time. With benefits understated and backdoor conduit for special interests costs overstated, the process will be biased seeking to stop agency action, out of public in favor of inaction. No doubt the Bush view. Upon taking office, President Clinton Administration will use such cost-benefit immediately terminated the Council on analysis to justify its failure to address public Competitiveness, but Bush's first months in health, safety, and environmental problems, office suggest some new form of White House as well as its willingness to toe the industry engagement on regulatory matters. Vice line. President Cheney, for instance, has been There are at least four problems that this very engaged on energy issues and new emphasis on cost-benefit will have for regulationsasthey applytoutility civil rights regulations. First, it is very companies. While this may not be in the form difficult to monetize the benefits derived of a formal Quayle Council, there will likely from civil rights regulations (every major be more and more substantive involvement civil rights regulation is subject to cost- by the White House in agency rulemakings. benefit analysis). For example, how much is the value of protecting one's liberties or 8. Regulatory Budgeting constitutional rights? Second, even when the value can be determined, agency methods During the Reagan Administration there for calculating benefits may not be well was discussion of a regulatory budget, that suited for the economic analysis. For is, a means for capping the number or cost example, will secondary and tertiary benefits of regulatory protections. The idea received be determined and valued? How are little support at the time, but resurfaced as qualitativefactorssuchasreducing a key component of the Republican Contract inequitiesandstrengtheningjustice with America in 1994. Under that proposal, included in the equation? Third, because agencies would be required to identify the costs are overloaded in favor of the regulated cost of all rules and lower such costs by a community, it will be harder for agencies to percentage each year. justify that the benefits outweigh the costs. TheBushAdministrationhasnot Finally,costfactorswilllikelybe embraced either of the earlier proposals. increasingly used as determinative in Instead, they have talked about working with whether an agency should proceed with a agencies during the budgeting process to rule. Given the stacked deck, this will likely include the costs of rules. This would allow make it more difficult to proceed with civil OMB to give early approval or rejection of rights protections. agency ideas. Much of this work will likely be tied to the new administration's emphasis 7. White House Interference on performance-based measures. The boxes here provide a snapshot of how The previous Bush Administration created these regulatory priorities have begun to the Council on Competitiveness headed play out in the Bush Administration. Each by Vice President Quayle to further ofthechartstracks how theBush monitor agency rulemakings. The Quayle Administration has reacted to Clinton era Council frequently injected itself into agency rules. The first section provides examples rulemaking and regulatory reviews at OMB of rules that were revoked by the Bush in a constant effort to weaken regulatory Administration within the first six months

Citizens' Commission onCivilRights Chapter 21 Part Two: Federal Resources and Direction

The Bush Regulatory Report

Safeguards Revoked in 2001

Contractor Responsibility Two days after Christmas, with no one around to object, the Bush Administration quietly revoked a Clinton-era rule that promotes greater accountability for federal contractors to make sure they comply with important public protections. Specifically, this contractor responsibility standard instructed government contracting officers to look at a bidding company's compliance with the law (including tax laws, labor laws, employment laws, environmental laws, antitrust laws, and consumer protection laws) before awarding taxpayer dollars.

Hard Rock Mining The Bush Administration announced on October 25 that it would roll back environmental and land use protections for "hard rock" mining that were put in place shortly before President Clinton left office. The new, weaker standards were published in the Federal Register on October 30 and go into effect on December 31 of this year.

Road less Rule The Bush Administration signaled on July 10 (in an Advanced Notice of Proposed Rulemaking) that it will roll back a rule completed at the end of the Clinton Administration that bans new roads and logging in millions of acres of national forests, including much of Alaska's Tongass National Forest. Just weeks earlier, the administration tipped its hand by deciding not to appeal a dubious ruling by a federal judge in Idaho halting implementation of the ban. More recently, the administration has issued several Administrative Directives that cut directly against the roadless rule. Specifically, directives issued on December 20, 2001, eliminate a Clinton Administration moratorium on road building in uninventoried roadless areas. In addition, the directives remove any roadless protection for Alaska's Tongass National Forest and eliminate a provision of the rule that required regional and local forest service officials to conduct environmental and public reviews before logging, mining, and drilling could begin in roadless areas.

Air Conditioner Efficiency On April 13, the Bush Administration announced its decision to revise and roll back standards established by the Clinton Administration for energy efficiency of air conditioners and heat pumps. The Clinton rule published in January after six years of development would have made new air conditioners 30% more energy efficient by 2006. The Bush Administration will lower that requirement to 20%. In an October 19 letter, obtained by OMB Watch, the EPA criticizes the Department of Energy (DOE) for ignoring the "strong rationale" for using the higher efficiency standard, while overstating the regulatory burden on manufacturers.

Citizens' Commission onCivilRights a. - -

Kyoto Protocol On March 27, the Bush Administration announced that it would withdraw from the Kyoto Protocol, the international agreement to curb pollution that causes global warming. Chemical Accident Threats On March 16, the Bush Administration withdrew plans initiated during the Clinton Administration to carry out legal mandates that would have eased public access to data on potential chemical fires and spills. Carbon Dioxide On March 14, the Bush Administration reversed the President's campaign pledge to regulate carbon dioxide emitted by electric power plants. Carbon dioxide released by power plants is a major threat to climate change, disrupting weather patterns and causing sea levels to rise, with unprecedented costs to the environment and human civilization. Ergonomics Protections On March 6, Congress used the Congressional Review Act, with a nod from the Bush Administration, to repeal an ergonomics rule that would have protected workers from repetitive stress injuries, such as carpal tunnel syndrome. During the ten years since then-Labor Secretary Elizabeth Dole initiated the ergonomics rulemaking, business interests and most congressional Republicans have continuously questioned the need for any ergonomics standard despite numerous studies that have demonstrated its urgency.

Safeguards in Limbo

Wetlands Protection Although the Bush Administration announced on April 16, 2001, that it will toughen protections for wetlands by requiring an Army Corps of Engineers permit for a broader range of projects that damage wetlands including mechanized land clearing, ditching, and stream straightening the Corps of Engineers issued a policy on October 31 that allows developers to offset losses of wetlands on one site by protecting wetlands, or even dry land, elsewhere. Total Maximum Daily Loads (TMDL) Program On October 18, 2001, EPA announced that a Clinton-era rule revising the TMDL Program, which requires states to identify and list waters not meeting water quality standards, will not become effective until April 2003. In the meantime, the administration is expected to make revisions to the standard. Recordkeeping for Workplace Injuries This rule, which updates Occupational Safety and Health Administration (OSHA) forms used by employers to list and detail workplace injuries and illnesses, was challenged in a lawsuit brought by the National Association of Manufacturers (NAM) early last year. The Bush Administration settled with NAM, and the rule went into effect on January 1, 2002. As part of the settlement, OSHA agreed not to cite violations within the first 120 days of the rule. OSHA is also delaying specific

Citizens' Commission onCivilRights 326 -

provisions in the rule that address recording of hearing loss and musculoskeletal disorders (ergonomics). The Bush Administration announced the delay on October 12, 2001, but said it planned to resolve those issues so that employers can begin reporting injuries for calendar year 2003. Steel Erection Safety On July 13, 2001, OSHA announced that the effective date for a rule to protect ironworkers from the dangers of steel erection work, in particular falls from great heights, was delayed six months to January 18, 2002. According to OSHA, the rule is expected to prevent 30 deaths and 1,142 injuries a year and save employers nearly $40 million annually. Snowniobiling in Yellowstone The Department of Interior announced on June 29, 2001, that it will reconsider a rule (completed at the end of the Clinton Administration) that would phase out snowmobile use in Yellowstone and Grand Teton national parks by 2004. The decision came out of a settlement agreement reached between Interior and snowmobile manufacturers, which had brought suit to stop the ban in Federal District Court in Wyoming. Medical Privacy The Bush Administration announced April 12, 2001 that it will move forward with new medical privacy standards that limit the information health care providers can divulge without a patient's consent. However, the administration also announced its intent to revise the standards, perhaps substantially, before they are fully implemented two years from now. Dioxin Report The chemical, beef, and poultry industries are fighting to further delay the release of an EPA study that shows consumption of animal fat and dairy products containing traces of dioxin can cause cancer. It is unclear whether the Bush Administration will publish it.

Safeguards Moving Forward

Arsenic On October 31, 2001, EPA Administrator Christie Whitman announced the agency's decision to keep the 10 parts per billion (ppb) standard originally promulgated by the Clinton Administration for arsenic in drinking water. Back in March, the administration announced that it would drop the Clinton-era rule, but ultimately relented after intense political pressure and overwhelming scientific evidence supporting a strong standard. Black Lung On August 9, 2001, U.S. District Court Judge Emmett G. Sullivan rejected all of the National Mining Association's (NMA) challenges to numerous provisions of new black lung rules, marking a major victory for the United Mine Workers of America (UMWA) and the Department of Labor (DOL), which defended the standards. Previously, the Bush Administration had provided support to easing or eliminating sections of the ruleswhich govern the process by which black lung victims can claim their federal disability benefitsleading Sullivan to grant a preliminary injunction against them.

3 )7 Citizens' Commission onCivilRights . 111 - -

Lead The Bush Administration approved a new rule on April 17, 2001, that will require thousands of industrial facilities to report toxic lead pollution released to air, land, and water. The new rulefinalized by EPA at the end of the Clinton Administration lowers the threshold for reporting lead discharges under the Toxics Release Inventory. Energy Conservation On April 12, 2001, the administration announced that it would proceed with two Clinton-era energy conservation rules on washing machines and hot water heaters. Washing machines are to become 22% more efficient by 2004 and 35% by 2007a standard supported by the appliance industry. Gas water heaters are to be 8% more efficient and electric water heaters 4% beginning in 2004. Salmonella in School Lunches On April 4, 2001, the Bush Agriculture Department announced its intent to eliminate salmonella testing of ground beef served in federal school lunch programs, which had been pushed by the meat industry. Less than 24 hours later, however, Agriculture Secretary Ann Veneman announced that a mistake was made by a "low-level" employee, and that the testing, which began under President Clinton, would remain in place.

of office. Many of these rules generated B. Faith-Based Initiative national news. The second section provides some examples of rules that remain in limbo As one of his first actions in the White after the first six months of office. The final House, George W. Bush established an outcome will likely be decided in court. The "Office of Faith Based and Community third section provides some examples of Initiatives," which promotes the use of rules that ran into an uncertain future in federal funds for social service programs run the Bush Administration, but ultimately by religious organizations.'6 While faith- were allowed to go forward. In some of these based organizations, such as Catholic cases, such as with medical privacy rules, Charities, have been receiving federal funds there are caveats suggesting that the rules for years, they have traditionally been may still be reviewed and weakened. separate charitable entities, distinct from The following section provides a specific their houses of worship, and required to case example of regulatory "reform" as adhere to the same standards that govern envisioned by the Bush Administration. We all charities. The Bush plan allows for direct use the faith-based initiative as an example federal funding of religious congregations' that is moving on two tracksa legislative programs. The initiative blurs the line one and through waiver of administrative between church and state, and early rules. The second approach is intended to indications are it provides preferential bypass a Congress that may choose not to treatment to religious groups. enact such legislation. The President's stated goal is to level the playing field and end "discrimination" against religious congregations in awarding

Citizens'Commission onCivilRights 3 2 8 Chapter 21 Part Two: Federal Resources and Direction

federal grants. These statements beg the President Bush's January 29 creating five question of the appropriate role of religious federalCentersforFaith-Basedand congregations in administering federally Community Initiatives." A second report is funded social service programs. As the expected to focus on recommendations for Friends Committee on National Legislation change. has pointed out, "The central issue in One bill(H.R.7)to implement the charitable choice is not, as its sponsors daim, President's agenda has passed the House of discriminationagainstallprograms Representatives but faces closer scrutiny in sponsored by religious groups. Rather, the theSenate.Sincecharitablechoice issue is the use of public funds to support legislation has bogged down in congres- programs that have a pervasive religious sional difficulties, it is not surprising that content."17 the August White House report lays the The primary component of the President's groundwork for regulatory rather than initiative is charitable choice, which refers legislativechangestoachievethe to direct government grants to religious President's faith-based agenda. "It is not congregations for the purpose of carrying Congress, but these overly restrictive out government programs. In 1996 the first Agency rules that are repressive, restrictive version was championed by then-Senator ...[They] unnecessarily and improperly John Ashcroft and passed as part of welfare limitthe participationof faith-based reform legislation. A similar provision was organizations" (page 14). included in the Substance Abuse and Mental Overall, this report provides the basis for Health Services Administration's a "regulatory reform" initiative to undo a (SAMHSA) block grants passed in 2000. In host of protections. Assuming this reform all,the 106th Congress included the follows the tenets of the legislative agenda, provision in seven bills, impacting programs we could see a system where:" on juvenile justice, mental health, father- hood and child support, and community People in need are forced to opt out of economic development. programs with religious content, placing The effects of these provisions have been an additional burden on their lives at a minimal because participation by vulnerable time; congregations has been low, and the Clinton Administration interpreted the law as Religious congregations that receive prohibiting mixing federally funded services federal funds would be allowed to audit with worship activities or proselytizing. In themselves, including self-certification of contrast,the Bush Administrationis compliancewithfederalprogram aggressively pushing for a mechanism that requirements, such as nondiscrimination; will allow mixing religious activity with federal services. Entirefederal programs could be There are both practical and constitu- dismantled and replaced by vouchers, tional problems inherent in the concept of which would make it impossible for funding congregational programs. Nonethe- providers to plan and budget and less, on August 16, 2001, the White House assumes a nonexistent "marketplace" for nudged the faith-based initiative forward many services; with release of a report, Unlevel Playing Field, on barriers faith-based and community Religiouscongregations would be organizations face in competing for federal allowed to discriminate on the basis of grants.The report was required by religious affiliation when hiring staff to provide services under federal grants;

.2 9 Citizens' Commission onCivilRights I * " -

Barriers to Participation as Identified in White House Faith-Based Report

The White House report identifies 15 barriers to participation, the first six of which are specific to faith-based organizations: 1. A pervasive suspicion about faith-based organizations. The report states that there is an "overriding perception by Federal officials that close collaboration withreligious organizations is legally suspect." 2. Faith-based organizations excluded from funding. There are some examples where religious organizations are prohibited from applying for funding. The report documents inconsistencies from program to program about who is eligible for funding. 3. Excessive restrictions on religious activities. "Federal grant programs can be inappropriately restrictive," requiring "faith-based providers to endure something akin to an organizational strip-search." The report gives an example of local pressure to remove or cover up religious art, symbols, and other items when a Head Start program islocated in a house of worship. 4. Inappropriate expansion of religious restrictions to new programs. The report argues that federal departments rely on outdated case law in making decisions about participation of religious groups. 5. Denial of faith-based organizations' established right to take religion into account in employment decisions. The report makes a legal argument that faith-based organizations that get federal funding should be permitted to discriminate on the basis of religion when hiring employees. Other types of discrimination race, color, national origin, gender should not be permitted. 6. Thwarting charitable choice: Congress' new provision for supporting faith-based organizations. The report argues that HHS and DOL have done an inadequate job in implementing Charitable Choice legislation that has previously passed. 7. The limited accessibility of federal grants information. The report states that while most agencies announce grant availability in the federal register, it is "not everyday reading for small faith based and community groups." 8. The heavy weight of regulations and other requirements. There is a "dizzying array of statutory and regulatory requirements" that grantees face. (The fact that these rules are developed to ensure accountability and safety for those receiving services is not mentioned.) 9. Requirements to meet before applying for support. Grantees must have an "extensive financial and administrative management system.' Organizations must already have an approved indirect cost rate before applying for grants, excluding many possible grantees. (This last point is factually inaccurate.) 10. The complexity of grant appolications and grant agreements. The report notes grant applications are "repetitive and overly long, stating eligibility and other requirements more than once, lifting technical language directly from the authorizing statute, and including information from the legislative history that is only marginally pertinent . .."

Citizens'Commission onCivilRights 330 Chapter 21 Part Two: Federal Resources and Direction

11. Questionable favoritism for faith-based organizations. There is an occasional bias toward faith-based organizations. In some cases, agencies have only opened grants to faith-based service providers. 12. An improper bias in favor of previous grantees. The report states that organizations that have already been awarded a grant in the past are favored in future grant applications. It points out that much of this "favoritism" exists because organizations that have already been awarded a grant are likely to know program officers and know where to find future grant announcements. 13. An inappropriate requirement to apply in collaboration with likely competitors. The report states that requiring grantees to coordinate their services "can be an important way to ensure that Federal funding achieves maximum results," but then goes on to say that coordination can also force organizations to work with competitors for the same grants. 14. Requiring formal 501(c)(3) status without statutory authority. The report implies that since there is no statutory requirement that an organization be a tax-exempt organization, there should be no need to require charitable 501(c)(3) status. It is indirectly suggested that articles of incorporation or even "demonstrating that the organization provides services in the public interest and uses its net proceeds to improve or expand such services" might be adequate.

15. Inadequate attention to faith-based and community organizations in the federal grants streamlining process. In legislation passed in 1999, Congress directed all major federal grant-making agencies to simplify and improve the grants process. The report states that insufficient outreach has been made to community and faith-based organizations in the reform process.

Even though federal funds could not be ment (HUD) was the only agency to seek spent on religious activity, worship and public comment. According to the American promotion of religious beliefs could be Civil Liberties Union (ACLU), which seamlessly woven into delivery of federal analyzed the comments HUD received, only services; and one of the 130 people filing comments expressed support for Bush's version of the No new federal resources would be made faith-based initiative. The report also failed available for housing, drug treatment, job to recognize existing data. For example, a training, childcare or other federal National Association of Community Action services. Agencies survey of community action agencies found that 40% contract with faith- The White House report is based on very based organizations to deliver services. This little data, possibly none from community- subgrant relationship with federal grantees based organizations orgrantees. The is not acknowledged in the report. Department of Housing and Urban Develop-

330 3 31 Citizens' Commission onCivilRights Part Two: Federal Resources and Direction Chapter 21

Overall, the report appears to be a solution awarded to religious congregations or other in search of a problem. It obfuscates what nonprofits. constitutes a faith-based organization. It The White House report does address appears that the White House is referring some issues that would help streamline the to religious congregations, but the report grant process, such as reducing grant does not distinguish between congregations application burdens. But it does not address and their charitable affiliates, which are the other issues that nonprofits said are already eligible for federal money. problems the slow speed of reimburse- The "data" from the White House report ment to smaller groups, grant reporting largely differ from the results of a survey of requirements, and the need for uniformity nonprofits conducted in September 2000 by and simplification in all financial reporting OMB Watch, the Advocacy Institute, the (e.g., IRS Form 990, audits, grant reports). NationalCommitteeforResponsive The report moves in the wrong direction Philanthropy, and The Union Institute." on accountability by suggestingthat Roughly 1,000 nonprofits from every state grantees need not be tax-exempt 501(c)(3) except one rated priorities for recommen- organizations. More accountability problems dations to strengthen the nonprofit sector. are raised by provisions of H.R. 7, which These nonprofits highlighted three broad would eliminate or sharply reduce audit and areas: more resources for nonprofits, accountability requirements. Government streamlining the federal grant process, and audits would be limited to government accountability. funds. (Most nonprofits face single-entity The White House report does not address audits, meaning that the audit covers all the need for more money for domestic organizational activities. This would not be programs or support to grassroots organiz- true for faith-based grantees. Only the ations to build their capacity. Nonprofit federal grant funds would be audited.) organizations regularly note that they are However, H.R. 7 also provides for annual asked to provide services in partnership "self-audits," apparently including program- with the government but have been getting matic operations as well as financial diminishing resources. A church or mosque transactions. This provision would eliminate will run out of funds for assistance just as any meaningful public accountability, or quickly as a secular nonprofit or government enforcement of requirements such as agency. Where concrete help is needed nondiscrimination against beneficiaries who an affordable apartment, money for the gas do not wish to participate in worship bill, access to health care Americans need activities. This self-audit is inconsistent with more resources. The President seems to grant managementprinciples and think that combining the limited assistance procedures and would create a special set that is available with prayer will change the of rules for faith-based organizations over reality faced by low-income families. other types of nonprofit organizations.21 The But this approach to social services denies most efficient way to create a workable reality and shirks responsibility for what accountabilitysystemistorequire should be an important priority of govern- congregationstocreatea separate ment. Government has a larger role, since organization, which could be affiliated with it is in a position to address the root causes the congregation but not part of it. It also of poverty through its domestic policies and would protect the congregation from liability spending priorities. Insufficient public for any mishaps that occur as a result of investment in low-income communities is publicly funded program activities. still insufficient, whether federal grants are

Citizens'Commission onCivilRights 332 Chapter 21 Part Two: Federal Resources and Direction

A group of faith-based organizations22 has nonprofits to establish appropriate perfor- developed a code of conduct for congre- mance measures and goals for federally gations that receive federal funds to run funded social service programs, and ensure service programs. The code requires that that evaluation factors are equally applied congregations only participate in federal to faith-based and secular nonprofits. There programs to the extent the activity is part should be no presumption that a "faith of their overall mission. It also requires factor" makes a program more effective. compliance with federal regulations, trans- The administration has placed a heavy parency with the public, protection of their emphasis on the Government Performance religious character, and financial account- and Results Act (GPRA) to emphasize ability. Coercion of beneficiaries to partici- performance-based decisions. Extending pate in religious activities is prohibited.23 GPRA requirements to federal grantees The issue of effectiveness is central to the raises at least three issues. First, who debate, although little attention has been decides what measures performance will be paid to it. Proponents of a pervasively based on? GPRA does not require stake- religious approach to social services claim holder involvement in the development of it is more effective than programs tradition- agency performance measures. Second, ally offered by government. These claims GPRA requires agencies to develop quan- rarely address the traditional role of secular tifiable performance measures; in fact, nonprofits in providing social services, but agencies must seek special permission to use assume religious groups get better results qualitative measures. In the area of social than community-based nonprofits. Presi- services, this may present enormous chal- dent Bush has stated that faith-based lenges. Third, it may mean that nonprofits programs achieve "uncommon results," but begin to provide services in a manner that there is very little evidence that either meets the quantifiable measures in order to supports or contradicts these claims. Most assure that they do not lose their grants. In of what has been offered is anecdotal. There some cases, this may mean no longer serving is a small body of research on the impact of the hardest to serve. religion on behavior, which tends to show The Bush Administration hasalso thatreligiousdevotiondeterssome emphasized relaxing programmatic stan- behaviors but not others, and that faith- dards. Charitable choice legislation, such as basedprogramsmaybebetterat under SAMSHA, allowed religious congre- rehabilitation than deterrence. However, gations to substitute "life experience" for other studies indicate that religion is no training and education in determining the more statistically significant in deterring qualifications of employees of the faith- crime or rehabilitating addicts than educ- based groups. A provision like this could be ational ability and aspiration, gender, or a disaster for drug and alcohol treatment family and community connectedness. The centers, where qualified medical supervision most that can be said about the few studies is often critical to the patient's health. For focusing on this issue is that the findings are example, in Texas, where Bush implemented inconclusive.24 many elements of charitable choice, a drug Although the administration says federal rehabilitation program approached drug programs will be judged according to their addiction as a moral failing, not a disease, effectiveness, no detail has been offered on and provided Bible reading and prayer as how this will be done, how standards will treatment. This could be deadly for a patient be developed and outcomes defined. The who is encouraged to quit a heroin addiction administrationshouldconsultwith "cold turkey" and offered prayer instead of

333 Citizens' Commission onCivilRights -..1111 - -

methadone. The provision also creates a rights, hiring discrimination, and conversion more lenient standard for congregations of entire programs to vouchers. Each is than is applied to secular nonprofits, a discussed below. preference that violates constitutional The most important stakeholders in the standards.25 debate on the President's faith-based A sad example from Texas underscores initiative are the people in need of assistance this concern. In 1997 then-Governor Bush offered through federal programs. These exempted faith-based groups from state beneficiaries are forced by circumstances or health and safety regulations. Roloff Homes, even court orders to seek help with meeting which ran a residential program for troubled basic needs, such as food, shelter, and health youth using Christian teachings, had been care. The system that offers this help should forced out of Texas years earlier after be easily accessible and equally available to complaints of physical abuse of teenage girls all who qualify. It should not further burden became public. They returned to Texas and beneficiaries with unnecessary delays or reopened as a faith-based provider in the administrative requirements. late1990s.Withinthreeyearstwo Charitable choice failsto meet this employees were arrested for physical abuse standard by placing the burden on program that landed one teenage boy in the hospital. beneficiaries to object to placement in a A June 21, 2001, Washington Post story religious program, participation in worship reports that a jury convicted the employee activities, or being subjected to proselytizing. in charge of unlawful restraint.26 The Texas This burden makes charitable choice far legislaturerecentlyallowedthelaw from neutral, by creating a Catch-22 for our exempting youth homes from health and most vulnerable households. People in need safety standards to expire. of service usually do not have the option of There is concern that unless specifically objecting to a particular service provider addressed, congregations could be immune and starting over. They face real and from federal safety regulations, such as immediate crises, and cannot afford to risk OSHA requirements or Food and Drug having the lights turned off or delaying Administration (FDA) rules. This could put medical treatment in order to seek a secular the federal government in the position of alternative. The opt-out approach places an funding daycare centers with unsafe affirmative burden on exercise of their electrical systems or soup kitchens without religious freedom. It is not realistic or fair adequate sanitation facilities, endangering to expect beneficiaries to speak up and the recipients of the services as well as object to religious activities when they are employees. H.R. 7 may address this with a vulnerable and seeking help. provision that says religious organizations Usually a household must go through a providing federal services "shall be subject screening process conducted by a service tothesameregulations asother provider to qualify for assistance. During nongovernmental organizations...for the this process allapplicants should be use of such funds and performance of such informed of the religious nature of any programs." However, the Bush Adminis- service offered by the provider, and given tration's regulatory "reform" initiative may information about secular alternatives, undo some of the programmatic standards. whether they ask for it or not. Once While each of the above concerns are civil beneficiaries begin participationina rights issues, three other aspects of the program, they should not be required to faith-based initiative raise specific civil participate in worship activities, either rights issues. These include beneficiary actively or passively. As a practical matter

Citizens' Commission onCivilRights 334 Chapter 21 Part Two:Federal Resources and Direction

it would be difficult, if not impossible, for program with religious content if they wish federal agenciesto monitor religious to share in the religious activity. While granteesforcompliancewiththis vouchers create an appearance of choice by requirement,ortoenforceit.Self- providingfederaldollarsdirectlyto certification of compliance, as called for in program beneficiaries, the net result is the H.R. 7, is insufficient to protect the religious same asdirectly funding pervasively freedom of beneficiaries. religious services. Pressuretoparticipate inreligious The voucher concept assumes there is a worship is the inevitable outcome of mixing social service marketplace, and that service government services with religious activity. providers can afford to front the money for But that is what the administration wants federal programs in the hope that people will to allow, and it is the only reason to promote come with their vouchers, and that vouchers charitable choice legislation. will be swiftly paid by federal agencies. None Under the Bush Administration's proof these assumptions bears up to reality. posal, congregations would be permitted to Social service agencies are more often than discriminate on the basis of religious belief not in short supply. While there may be a or affiliation in hiring for positions funded limited market for day care or affordable with federal grants. However, provisions in housing, there is no market for many the bill reauthorizing the Elementary and services, such as heating assistance or Secondary Education Act allowing private homeless shelters. groups to provide supplemental educational Vouchers also destroy a provider's ability services do not permit discrimination in to plan and budget effectively, since there employment. H.R. 7 also allows this practice, is no way of knowing how many clients may despitechangesthateliminated a come through the door. Resources that are congregation's ability to base hiring de- needed for services would have to be spent cisions on religious practices. Section 702 of on advertising. Only the largest agencies the Civil Rights Act of 1964 permits con- could participate, because the small, grass- gregations to base hiring decisions on roots groups the President says he wants to religious factors (for example, a Jewish involve could never afford to hire staff, lease temple does not have to consider hiring a office space, or purchase equipment and Methodist to be its rabbi). However, the supplies without knowing whether or not intent of this exemption from civil rights they would ever be reimbursed. laws is to respect the character of religious The federal government would abdicate activities. Since federal programs are not responsibility for ensuring an adequate supposed to include religious activity, the infrastructure for administering federal rationale for the exemption does not extend programs if it left this issue up to a non- to staff hired to implement public programs. existent marketplace. What would happen This provision was included in the original if no providers were able to offer services in charitable choice legislation in the welfare a particular city? In addition, a voucher reform and is currently the subject of system creates new administrative head- litigation. aches, since qualifications for providers Proponents of charitable choice have must be established and a process for sought to solve the many constitutional approval of agencies and expenses would be problems and contradictions inherent in the necessary for accountability purposes. In the plan by proposing social service vouchers. end, vouchers create more headaches than The theory is that people in need will be able they avoid. to shop for services, and only choose a

3 3 3 Citizens' Commission onCivilRights - I - - - . II -

Despite claims that the goal of charitable Beginning with the Contract with America choice is to achieve neutrality in awarding in 1994, Congress has aggressively pushed grants and level the playing field for to "devolve" more and more responsibility congregations, the rhetoric and follow-up to the states. While giving states more activity to the President's faith-based responsibility in certain areas may not initiative clearly demonstrate a desire to always be a bad thing, this push has been redirectfederalgrantstoreligious deeply ideological, with devolution seen as congregations whenever possible. Secular an end in itself. In some cases, the Clinton nonprofits, including those allied with Administration resisted this new states' denominations or interfaith providers, are rights movement, and in others, it relented, relegated to the status of "other" groups. as in the case of welfare reform. They might be surprised (or offended) to Now with Bush in office, the devolution hear themselves described by the President crusaders think they have a more steady as "good people of no faith at all."27 The ally, which could be an ominous sign for civil White House report, linlevel Playing Field, rights protections. In particular, it will be unfairly criticizes nonprofits that currently important to watch the actions of the Bush receive federal grants: "there is a striking Administration in the following areas: disjunction between the service organ-

izations that federal grant funds predom- A. Judicial Appointments inantly support, and the organizations that actually provide most of the critical social Since the mid-1990s, the Supreme Court services." 28 (through a series of 5 to 4 votes) has been Any preference shown toward religious flirting with a radical notion of federalism congregations in grant activities, from that seems to have us headed back to the outreach to potential applicants and tech- Articles of Confederation leaving the nical assistance with completing grant federal government fewer and fewer powers applications to the awarding of grants, to protect civil rights. For instance, last year would violate even the most flexible of stan- the Court ruled in separate cases that state dards for separation of church and state. It government employees were constitutional- is one thing to declare religious groups ly prohibited from suing states in federal should not be excluded, but another alto- court under the Age Discrimination in gether to actively favor them in the process, Employment Act and the Americans with thereby truly creating an unlevel playing Disabilities Act. Also last year, the Court field. struck down the Violence Against Women Actwhich creates a civil rights remedy for victims of sexual violence again citing III.Devolution states' rights principles. This makes future judicial appointments Going all the way back to the Civil War and not just those to the Supreme Court and extending through the days of Jim Crow, extremely important. Ominously, Presi- "states' rights" has served as the battle cry dent Bush has said he would model his for those hostile to civil rights. Today, the judicial choices after Clarence Thomas and "states' rights" mantra is frequently thrown Antonin Scalia, the two most aggressive around by our leaders, including President proponents of the states' rights agenda on Bush, with no apparent connection to civil the Supreme Court. rights. Yet the connection remains.

Citizens' Commission onCivilRights t '1336 Chapter 21 Part Two: Federal Resources and Direction

B. Federalism Initiatives With this broad opposition, the legislation ultimately died. Currently, the Bush Administration is in Yet throughout the battle, the Clinton the process of drafting a new executive order Administration continued to negotiate with on federalism that would seek to defer NGA and NCSL on yet another federalism regulatory authority to states. The first executive order more to their liking, which federalism executive order (E.O. 12612) was it also hoped would undermine the push for issued by President Reagan on October legislation. The result was E.O. 13132 put 26,1987, mandating that agencies conduct a into effect on August 4, 1999 which, while federalism assessment for rules sent to OMB not pleasing conservatives, did assuage the for review. That order was kept in place organizations representing state and local until May 14, 1998, when President Clinton governments. These organizations, including issued his own version, Executive Order No. NGA and NCSL, sent a letter to President 13083. Clinton on August 3, 1999, thanking him for Even though the Reagan executive order "consulting extensively with us" prior to the had gone largely unenforced for years (even issuance of the new executive order. They in the Reagan and Bush Administrations), also said, "The executive order construc- Clinton's action intended to make fede- tively responds to the concerns we raised ralism relevant drew fire from the during the consultations and provides to National Governors' Association (NGA) and federal agencies strengthened guidance on theNationalConference of State the importance of federalism and state and Legislatures (NCSL), as well as conservative local government authority. We welcome groups, none of which had ever raised a peep your commitment to implement and enforce about the lack of enforcement of the Reagan this executive order." order. Specifically, the order directs federal The Heritage Foundation and the Free agencies to: Congress Foundation, for instance, claimed that the President was not only attempting Closely examine statutory authority to enhance the strength of the federal supporting any action that would limit government but attempting to "legitimize all the policymaking discretion of state and the abuses of power promulgated by a gaggle local governments and carefully assess of federal agencies since the time of FDR."29 the necessity for such action; Or, as the Heritage Foundation said, "President Clinton's new executive order on Construe federal statutes to preempt federalism is a serious affront to the state law only where the exercise of state federalist framework established in the U.S. authority directly conflicts with the Constitution."" exercise of federal authority under the This created momentum for legislation in federal statutes or there is other clear Congress to codify principles of the Reagan evidence to conclude that Congress executive order." This effort, however, was intendedthe agencytohave the opposed by the Clinton Administration, the authority to preempt state law; public interest community, and perhaps surprising to some, the business community, Not submit legislation that would which does not want to have to comply with directly regulate the states in ways that 50 different standards in 50 different states. would interfere with functions essential to the states' separate existence; and

337 Citizens' Commission onCivilRights -.ID- -

Not attach to federal grants conditions prevent a race to the bottom. Moreover, one that are not reasonably related to the state may be adversely affected by pollution purpose of the grant. from a neighboring state yet powerless to change the situation. This again necessitates Conservatives, however, have been federal intervention. stewing over the inadequacies of the Clinton There are also other very legitimate executive order. Accordingly, the Bush reasons to establish uniform, national Administrationquicklyestablisheda standards. Common methods of measure- Federalism Task Force under the leadership ment across states are often needed to of a top White House aide, John Bridge land. adequately assess government performance, The Task Force has decided that it will which has been one of the key lessons in recommend a new federalism to replace the implementing the Government Performance Clinton version, and that it should be and Results Act a stated priority of the completed some time in the fall of 2001. administration. Indeed, the administration The new executive order reportedly at least seems to recognize this in the instructs federal agencies to "refrain, to the context of its education bill, which seeks maximum extent, from establishing uniform, new national testing. national standards for programs and when Any federalism executive order should possible defer to the States to establish recognize these legitimate and necessary standards"32 a philosophy the Sept. 2 reasons for the federal government to set Washington Post reports will be overseen by strong national standards. States deserve to a new executive branch entity, suggesting be at the table and have their concerns the administration's commitment to enforce heard, but true federalism demands national such principles. leadership. Of course, it will almost always be "possible" to defer to states. And in some C. Budgetary Allocations cases, where states set stronger standards than the federal government, it will be Devolution advocates have been strong preferable. However, on many occasions it proponents of block grants to states funds will not be appropriate. The first respon- that are provided with very few strings sibility of the federal government should not attached and minimal oversight. In the past, be to protect the discretion of states, as the this has given way to abuses, with states above quote implies, but rather to serve the shifting funds from one area, such as health broad interests of the American people. In care or education, to another, such as road the case of worker health and safety, construction. environmental and consumer protections, or Bush has expressed sympathy for block civil rights, this frequently means setting grants, often saying the federal government strong national standards. "States' rights" should just "get out of the way." Yet the should not be an excuse for the federal federal government has a responsibility to government to abdicate its responsibility in taxpayers to make sure that money is spent these areas. in the intended way. And again, Bush's It should also be pointed out that national rhetoric assumes there is no legitimate need standards can help protect the interests of to set national priorities. states. Some states may want stronger Budgetary decisions to devolve respon- health and safety standards but fear losing sibility to states also frequently impact the business to other states with more relaxed quality of federal regulatory protections. For standards. National leadership can help

Citizens'Commission onCivilRights 338 Chapter 21 Part Two: Federal Resources and Direction

instance, the adminis-tration's budget state or local government. For example, proposed cutting EPA's enforcement staff-by federal grant rules, which carry non- 8%, or 270 positions, while providing $25 discrimination requirements, are not in millionin new grantstostatesfor effect for block grant funds. The states must enforcement activities." This move came develop their own rules, if they choose to. despite recent evidence that many states do When it comes to devolving program not adequately enforce environmental responsibilities to the states, will the federal protections. According to an Aug. 22 report government articulate the standards by from EPA's inspector general, states are which the programs are to be judged and doing a poor job of monitoring and punishing require the states to track those standards? water polluters, and nearly 40% of the This is part of the current debate about nation's waters are not meeting standards educational reform and will likely be a part set for them. Moreover, at least six states of most future federal debate. failed to report numerous serious violations Third, even if there are standards and of the Clean Air Act, according to a 1998 resources to enforce federal intentions, how audit by the EPA inspector general. willinformationbecollectedand Such a move to devolve enforcement may disseminated? Congress has asked federal have a significant impact on the ability of agencies to reduce information collections the federal government to hold state and by 5% per year under the Paperwork local governments accountable. Some in the Reduction Act. While that requirement has civil rights community have already begun been unenforceable, the law is up for tracking enforcement issues. However, this reauthorization. Conservatives, along with will become even more difficult yet even industry, are ramping up to make that an more imperative as resources are enforceable requirement. Evenifthe devolved to states and localities. The requirement of 5% reduction were not there, difficulty will involve several factors. the devolution model suggests granting First, will states and localities be given major powers to the intergovernmental the resources that are needed to implement "partner." Does this mean that 50 states enforcement initiatives? Many states have might have 50 different ways of collecting complained about unfunded mandates, and information that may be necessary? The many of those complaints have been answer to this question has enormous legitimate. Thefederalgovernment impact. For example, let's assume there is mandates a requirement but leaves it to the an effort to track employment states to implement without the money to discrimination by company. If each state properly do so. Many of these mandates are collects the information it raises in a slightly strongly supported by the civil rights different manner it will be impossible to community. To the extent that any of these create a nationalperspective on requirements are devolved to the states, it employment discrimination or possibly even will become an issue of whether the states compare companies that reside in different can afford to properly implement the states.Moreover,thedevolutionof requirement. information collection could also impair the Second, will states and localities be given public's right-to-know, which has accelerated the criteria by which to enforce matters? in the age of the Internet. Generally, when the federal government block grants resources or devolves programmatic responsibilities, there has been an effort to grant full responsibility to the

3 3 9 Citizens' Commission onCivilRights -

D. Civil Society Tocqueville was impressed by the role of civic associations and considered them as Today it is often difficult to discern the key to making democracy work. "Americans difference between the devolution of of all ages, all stations in life, and all types responsibility from federal to state and local ofdispositionareforeverforming governments and the shifting of federal tasks associations," he wrote. "There are not only to the nonprofit voluntary sector. Both are commercial and industrial associations in ideological objectives fostered by con- which all take part, but others of a thousand servatives and effectively manifested in the types religious, moral, serious, futile, very Bush 2000 Presidential campaign. general and very limited, immensely large The civil society debate was stirred by and very minute. . ..Nothing, in my view, Robert Putnam's 1995 thesis that "social deserves more attention than the intellectual capital" in America is declining, and, as he and moral associations in America."36 More put, we are "bowling alone."34 Putnam noted recent observers, such as John Gardner and that: Brian O'Connell, have made the same point, adding that nonprofit involvement in public Voter participation has declined rapidly policy is critical to the healthy functioning since the 1960s (nearly 25% drop in voter of democracy, making it possible for the turnout); voice of all Americans to be heard.37 Conservatives have built on this, arguing Participation in town halls, and public that to reinvent America we must downsize or school meetings, dropped by one-third the federal government and allow greater from 1973 to 1993; and local citizen control, possibly through nonprofit organizations a return to the There have been equal or greater good old days of what Tocqueville saw. Theda declines in responses to questions about Skocpol criticizes this mindset by providing attending political rallies or speeches, some historical context to the "Tocqueville serving on a committee of some local romanticism,"asshecallsit."The organization, or working for a political Tocqueville direct democracy model assumes party. that voluntary groups were created on their own at the local level to associate to get According to Putnam, "By almost every things done outside of government or as an measure, Americans' direct engagement in alternative to government.39 According to politics and government has fallen steadily Skocpol, this is not an accurate picture: and sharply over the last generation, despite "[R]esearch on America in the early 1800s the fact that average levels of education shows that religious and political factors the best individual-level predictor of political also stimulated the growth of voluntary participation haverisensharply groups. . . . In addition, the American throughoutthisperiod." Many have Revolution, and the subsequent organization effectively rebutted the Putnam thesis, of competitive national and state elections noting that his measures of participation are under the Constitution of 1789, triggered the inadequate.35 However, conservatives have founding of newspapers and the formation noted that Putnam's data suggest that of local and translocal voluntary associations America has lost the spirit that Alexis de mush faster and more extensively than just Tocqueville saw when he visited the United nascent town formation can explain." States in the early part of the 19th century. After recounting a number of historical factors, she concludes, "so Tocqueville

Citizens'Commission onCivilRights 3 4 0 romanticists are wrong to assume that Administration. On the one hand, the spontaneous social association is primary administration wants to devolve federal while government and politics are deriv- responsibility and on the other it wants to ative. On the contrary, U.S. civic associations downsize government as Representative wereencouragedbytheAmerican Dick Armey stated at the beginning of this Revolution, the Civil War, the New Deal, and article. Talking about the valuable role of World Wars I and II; and until recently they nonprofits, whether faith-based or other- were fostered by the institutional patterns wise, comes with no new resources and of U.S. federalism, legislatures, competitive generally with the notion of dumping federal elections, and locally rooted political responsibilities on the private sector. The parties." She warns that conservatives are mantra is local control. All of this is what using the Putnam literature to invigorate a we classify under our description of de- new sense of local, nongovermnental control volution much of it overlapping with the that is not based on historical accuracy. first two parts of this paper. This academic perspective may help to frame the language and policies of the Bush

340 Citizens' Commission onCivilRights Part Two:Federal Resources and Direction Chapter 21

Endnotes

1 All are employees of OMB Watch in Washington, D.C. Cate Paskoff also contributed to this article. 2 A doser look reveals that nonmilitary spending drops from 15.4% to 15.2% to 14% of GDP. If you then look at the percentages for all domestic and international discretionary spending (excluding military spending), which encompasses almost all of government's activities except for mandatory programs like Social Security, the decrease is even more startling. 3 All figures from the Historical Tables volume of the Budget of the United States Govern- ment, Fiscal Year 2002. 4 Theda Skocpol, The Missing Middle: Working Families and the Future of American Social Policy, A Century Foundation Book (New York: W.W. Norton 2000). Robert Kuttner, "Opposition as Opportunity," 11 The American Prospect (2000). Robert B. Reich, "On Thinking Bigger," 11 The American Prospect (1999). 7 The estate tax currently only impacts those estates valued at over $675,000. That "exemption" would have increased to $1 million in 2006. Under the new tax law, prior to full repeal, the exemption will increase to $3.5 million. While estate tax rates can be as high as 55%, the actual effective tax rate is much lower. The new tax law (P.L. 107-16) reduces marginal rates to 45% before full repeal. Message to Congress by Franklin D. Roosevelt, in H.R. Rep. No. 1681, 74th Congress, 1st Session at 2 (June 19, 1935), qtd. in James R. Repetti, "Democracy, Taxes, and Wealth," 76 New York University Law Review 825-873 (2001). 9 Andrew Carnegie, The Gospel of Wealth and Other Timely Essays (Cambridge, MA: Belknap Press of Harvard University Press 1962). 10 Reactions came from the academic community as well as syndicated colunmists and jour- nalists. See New York University Professor Dalton Conley's Apr. 5, 2001, article, "How to Widen the Black-White Wealth Gap," in the online magazine Salon.com at or journalist Jonathan Chait, "Painted Black," The New Republic Online (Aug. 16, 2001) at and Michael Kinsley, "Dead Wrong," Slate (Apr. 5, 2001) at . " Full and immediate repeal of the tax was estimated by the Joint Committee on Taxation (JCT) to cost more than $660 billion over the next ten years. JCT estimated that the repeal plan that was finally signed into law on June 7, 2001, which modifies exemption levels and tax rates with one year of full repeal, will cost $138 billion over the next ten years more than half of which will be lost in 2011, after the first full year of repeal. Source: Joint Conimittee on Taxa-

Citizens' Commission onCivilRights 342 Chapter 21 Part Two: Federal Resources and Direction

tion, Estimated Budget Effects of the Conference Agreement for H.R. 1836 (JCX-51-01), May 26, 2001, . 12There is irony here since it has been industry that has argued for national standards when it sees multiple or redundant standards being developed in the 50 states. See the history of hazard communications in the workplace, for example. " Memorandum from Andrew Card, "Regulatory Review Plan" (Jan. 20, 2001). OMB Direc- tor Mitchell Daniels issued a memo to agencies on Jan. 26, 2001, that provided additional details on implementing the Card memo. 14Citizens' Commission on Civil Rights, Title I in Midstream: The Fight to Improve Schools for Poor Kids (Washington, D.C.: Citizens' Commission on Civil Rights 1999). 15See, e.g., Eban Goodstein and Hart Hodges, "Polluted Data: Overestimating Environ- mental Costs," The American Prospect, at 64 (Nov./Dec. 1997); Office of Technology Assessment, Gauging Control Technologies and Regulatory Impacts in Occupational Safety and Health: An Appraisal of OSHA's Analytical Approach (1995). 16On January 29, 2001, President Bush issued two executive orders. One created an Office on Faith-Based and Community Initiatives within the White House. The other created faith- based centers at the Departments of Justice, Labor, Education, Health and Human Services, and Housing and Urban Development. 17 FCNL Perspectives, No. 4 (Feb. 2001). 18Each departmental faith-based center was to submit a report to the White House Office of Faith-Based and Community Initiatives, headed by John DiIulio, who announced his resig- nation a day after the report was released. The report from each center was to include an analysis of barriers to the "full participation of faith-based and other community organizations in the delivery of social services," a summary of technical assistance provided by the department to help in preparation of grant applications, and annual performance indicators and mea- surable objectives for departmental action. The report is to be released annually. 19The legislative agenda is articulated in H.R. 7, as passed by the House of Representa- tives. 20 Advocacy Institute, National Committee for Responsive Philanthropy, OMB Watch, and The Union Institute, Nonprofit Agenda: Recommendations to President George W. Bush to Strengthen the Nonprofit Sector (Jan. 22, 2001). Available at . 2' See: (a) cost principles such as OMB Circular A-122, "Cost Principles for Non-Profit Or- ganizations"; (b) administrative requirements such as OMB Circulars A-102, "Grants and Coop- erative Agreements with State and Local Governments," and A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations"; and (c) audit requirements such as OMB Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations," which was issued to implement the Single Entity Audit Act. 22"A Code of Conduct," The Christian Century, at 2000 (July 5, 2000), WL 9857739. 23Id. 24For a summary of this research see Lewis D. Solomon and Matthew J. Vlissides, Jr., The Progressive Policy Institute, In God We Trust? Assessing the Potential of Faith-Based Social Services (Feb. 2001), at . 25It violates constitutional standards because it gives a preference that is not related to maintaining church-state separation. In this way it is different from exemptions such as allow-

343 Citizens' Commission onCivilRights Part Two: Federal Resources and Direction Chapter 21

ing congregations not to file IRS annual tax forms (e.g., Form 990). 26Hanna Rosin, "Faith-Based Youth Homes"Lesson'; Texas Backs Away from Unregu- lated Programs After Abuse Charges," The Washington Post, June 21, 2001, at A3. 27Forward to Rallying the Armies of Compassion. 28Unlevel Playing Field at 7.

29Jon E. Dougherty, "The New Federalism," USA Journal Online (1998). Available at . 3° Executive Memorandum No. 536 from Adam D. Thierer, The Heritage Foundation, "Presi- dent Clinton's Sellout of Federalism" (June 25, 1998).

31The legislation (S. 1214 and H.R. 2245 of the 106th Congress) contained two main parts. First, it required agencies to conduct federalism assessments for their regulatory proposals which unlike the previous executive orders would be judicially reviewable and could be challenged in court. Second, it sought to override years of court doctrine on preemption. Where Congress or an agency intended to preempt state or local law, the legislation required that there be a specific statement of preemption within the bill or rule. Where no such statement appears, state and local laws would have presumed authority. This part of the legislation raised serious judicial concerns and was strenuously opposed by the Clinton Justice Department. 32This was reported in the Bureau of National Affairs' Daily Report for Executives on Aug. 2, 2001. 33Funding was restored by the Senate, but the Bush proposal survived in the House. The issue must now be resolved in conference committee. 34Robert D. Putnam, "Bowling Alone: America's Declining Social Capital," 6 Journal of Democracy 68 (1995). 35See for example, Michael Schudson, "What If Civic Life Didn't Die??" 7 American Pros- pect (1996). This article is part of a series called "Unsolved Mysteries: The Tocqueville Files."

36Alexis de Tocqueville, Democracy in America, at 513-17 (J.P. Mater ed., Garden City, NY: Anchor Books 1969). 37See, for example, Brian O'Connell, The Foundation Center, People Power: Service, Advo- cacy, Empowerment (New York 1994). In an article summarizing existing research about nonprofit advocacy, Elizabeth Reid argues that nonprofits "offer citizens many choices for participation and action. Nonprofits are places in civil society where people associate with each other and join mutual action, including political action, to address their concerns and interests." See Elizabeth J. Reid, "Nonprofit Advocacy and Political Participation," Nonprofit Organizations and Government: The Challenge of Civil Society conference paper, Urban Institute (June 9, 1998). Theda Skocpol, "Unravelling from Above," 7 The American Prospect (1996).

39Peter Dobkin Hall provides historical context for the assertion why the Tocquevillian model has been used by conservatives who believe in less government. His main point is historically those who wanted to roll back government believed the alternative was the growth of voluntary associations. "Initially, the traditionalists or Federalists, as they came to be known favored strong government and advocated the delegation of state power to groups of re- spectable individuals for public purposes. By the 1790s these purposes included eleemosynary ones such as the establishment of schools, colleges, and hospitals, as well as such commercial enterprises as banks, bridges, canals, and turnpikes. The dissenters, who came to be known as the Democratic Republicans, favored minimal government and looked to individuals and unin- corporated voluntary associations to perform the basic tasks of production and social pallia- tion" (at 7).

344 Citizens' Commission onCivilRights About the Authors

About the Authors

Co-Editors specializing in litigation and other forms of advocacy on behalf of low-income and minor- Dianne M. Piché is Executive Director of ity children. He began his legal career in the Citizens' Commission on Civil Rights. A 1954working for Thurgood Marshall and the civil rights lawyer, writer and advocate, she NAACP Legal Defense and Education Fund. has specialized in legislation and litigation In the1960she served as General Counsel to promote educational equity. Prior to as- and later as staff director of the U.S. Com- suming her current position, Ms. Piché di- mission on Civil Rights, where he directed rected the Conunission's Title I Monitoring major investigations and research studies Project, which examined the impact of edu- that contributed to the civil rights laws en- cation reforms on disadvantaged children acted in the1960s.In1970,he founded the and documented widespread violations of Center for National Policy Review, a civil federal requirements to protect poor and rights research and advocacy organization minority students. As a litigator, she has rep- funded by private foundations that he di- resented plaintiff school children in deseg- rected for16years. Mr. Taylor has long been regation cases in St. Louis, Fort Wayne, and a leader of the Leadership Conference on elsewhere. Ms. Piché has written and lec- Civil Rights and currently serves as Vice tured on subjects including education re- Chairman. He was also a founder and now form, school finance, affirmative action, and serves as the Acting Chair of the Citizens' school desegregation and has taught a gradu- Commission on Civil Rights. ate course in education law at the Univer- Robin A. Reed is the Project Coordinator sity of Maryland. She has been an advisor to for the Citizens' Commission on Civil Rights, congressional committees and to education where she works on the Commission's pub- and advocacy groups. Ms. Piché has also lications and information technology. She is served as a national organizer and as a graduate of American University. Maryland's state director for the National Abortion and Reproductive Rights Action League. William L. Taylor is a lawyer, teacher, and writer in the fields of civil rights and education. He practices law in Washington, D.C.,

345 Citizens'Commission onCivilRights I About the Authors

Working Papers ticed for three years in the litigation department of Paul, Weiss, Rifkind, Wharton & Garrison in New York City. In 1978, Boger The Federal Courts joined the staff of the NAACP Legal Defense and Educational Fund, where he litigated Chapter 3 capital punishment cases for a decade, be- Federal Judicial Nominations and Confir- coming director of the fund's Capital Pun- mations During the Last Two Years of the ishment Project. In 1987, he became direc- Clinton Administration tor of a new poverty and justice program at Elliot Mincberg is Vice President, General LDF established to enlarge the legal rights Counsel, and Legal and Education Policy Di- of the minority poor. He joined the faculty rector of People for the American Way Foun- of the School of Law at the University of dation, a constitutional and civil liberties North Carolina at Chapel Hill M 1990, where organization in Washington, D.C. Prior to he is now a professor of law and Deputy Di- joining the organization, Mr. Mincberg was rector of the UNC Center for Civil Rights. a partner in the Washington, D.C., law firm Boger is chair of the Poverty and Race Re- of Hogan & Hartson, where he specialized search Action Council. He teaches civil pro- in education, civil rights, and constitutional cedure, constitutional law, education law, litigation. racial discrimination, and poverty law. Chapter 4 Chapter 6 Recent Supreme Court Decisions Affecting Diversity in Higher Education: A Continuing Congress' Ability to Redress Employment Agenda Discrimination Arthur L. Coleman, counsel with Nixon Michael H. Gottesman is a professor of law Peabody LLP in Washington, D.C., served at Georgetown University Law Center. Much as Deputy Assistant Secretary in the U.S. of his scholarship focuses on issues of con- Department of Education Office for Civil stitutional law, especially the Constitution's Rights during the Clinton Administration, allocation of power between the federal gov- where he led the Department's outreach and ernment and the states. He represented the technical assistance efforts related to affir- plaintiffs, Patricia Garrett and Milton Ash, mative action. He is the author of the Col- in University of Alabama-Birmingham v. lege Board's recent publication, Diversity in Garrett, decided Feb. 21, 2001. Higher Education: A Strategic Policy and Planning Manual (2001). Segregation in Education Segregation in Housing Chapter 5 The New Legal Attack on Educational Chapter 7 Diversity in America's Elementary and Urban Fragmentation as a Barrier to Secondary Schools Equal Opportunity John Charles Boger A.B., 1968, Duke john a. powell is the Marvin J. Sonosky University; M.Div., 1971, Yale Divinity Chair in Law and Public Policy at the School; J.D., 1974, The University of North University of Minnesota Law School; Carolina at Chapel Hill. After completing law Executive Director, Institute on Race and school, he clerked with the New York Su- Poverty. preme Court Appellate Division and prac-

346 346 Citizens' Commission onCivilRights About the Authors

Kathleen M. Graham is a Minneapolis- PrincetonUniversity and New York based lawyer and international consultant University School of Law. on issues of access, equity, and justice. Chapter 10 Chapter 8 Voting Rights Federal Fair Housing Enforcement at a Armand Derfner was born in Paris, Crossroads: The Clinton Legacy and the France, June 12, 1938. Now in private Challenges Ahead practice in the Charleston, S.C., firm of John P. Relman is Director of the Fair Derfner and Wilborn. Graduated from Housing Project at the Washington Lawyers' Princeton, A.B., 1960, Yale, LL.B., 1963. Committee for Civil Rights and Urban Clerked for Hon. David Bazelon (1963-1964). Affairs.Mr.Relmanhasextensive Worked forcivil rights organizations experience as plaintiff's counsel in housing including Lawyers Constitutional Defense and lending discrimination cases. Author of Committee (Jackson, Mississippi, 1967- the West Group's Housing Discrimination 1970), Lawyers Committee for Civil Rights Practice Manual, Mr. Relman has written Under Law (Washington, D.C., 1981-1982). and lectured extensively on fair housing and VisitingProfessorof Law, American fair lending law and practice. Since 1988, University (1982-1983). Testified frequently Mr. Relman has served on the adjunct faculty before Congress on voting issues, and argued of the Washington College of Law at numerous voting rights cases in the Supreme American University. Court and other federal and state courts.

Political Participation Affirmative Action and Employment Chapter 9 Chapter 11 The Current Civil Rights Challenge for the Affirmative Action in Public Contracting: Growing Latino Community: Inclusion and The Final Years of the Clinton Administra- Participation in Political Life tion Marisa J. Demeo is the Regional Counsel Georgina Verdugo is the former Executive of the Mexican American Legal Defense and Director of Americans for a Fair Chance. She Educational Fund (MALDEF), a national previously served as regional counsel of the nonprofit organization that protects and Mexican American Legal Defense and Edu- promotes the civil rights of Latinos living in cational Fund (MALDEF). the United States. Ms. Demeo develops policy positions for MALDEF and performs Chapter 12 legislative advocacy on the national level for Equal Employment Opportunity: EEOC and Latinocivilrightsintheareasof OFCCP immigration, education, political access, Nancy Kreiter is Research Director of employment, access to public funds, and Women Employed Institute, a Chicago-based criminal justice. Before coming to MALDEF, organization that aims to expand employ- Ms. Demeo was a trial attorney in the Civil ment opportunities for women and reduce Rights Division of the U.S. Department of female poverty through extensive research, Justice, where she enforced federal civil analysis, advocacy, direct service, and pub- rightslawsrelatedtoemployment lic education. She is a leading authority on discrimination against state and local both contract compliance as a tool for the governments. Ms. Demeo is a graduate of achievement of equal employment opportu-

Citizens' Commission onCivilRights 347 About the Authors

nity and discrimination charge processing Lesbian and Gay Rights and policy implementation by the Equal Employment Opportunity Commission. Chapter 15 Mixed Reviews on Lesbian and Gay Rights for Bush's First Year Criminal Justice Lou Chibbaro, Jr., is a news reporter for The Washington Blade, a weekly newspaper Chapter 13 that covers issues of interest to the gay Federal Action to Confront Hate Violence in community. Chibbaro reports on gay civil the Bush Administration: A Firm rights and AIDS related issues that emerge Foundation on Which to Build or a Struggle from Congress, the White House, and federal to Maintain the Status Quo? agencies and departments. He also reports Michael Lieberman has been the Washing- on local and national elections, including ton Counsel for the Anti-Defamation League U.S. Presidential elections. He has observed since January 1989. He has written widely the Bush Administration's actions and about the impact of hate crimes and has been positions on gay and AIDS issues as the actively involved in efforts to secure passage Blade's White House correspondent. of a number of federal and state hate crime statutes. Mr. Lieberman has participated in seminars and workshops on response to Discriminatory Practices in Education violent bigotry and has served on Advisory Boards for hate crime projects funded by the Chapter 16 Department of Justice, the Department of High Classroom Turnover: How Children Education, and the Department of Housing Get Left Behind and Urban Development. Chester Hartman ([email protected]) is the President/Executive Director of the Pov- Chapter 14 erty and Race Research Action Council in Racial Disparities in the American Washington, D.C. PRRAC is a national pub- Criminal Justice System lic interest organization that networks be- Ronald Weich isa partner inthe tween the civil rights and anti-poverty com- Washington, D.C., law firm of Zuckerman munities, and provides support for and dis- Spaeder LLP. He previously served as an semination of social science research on the Assistant District Attorney in New York intersections of race and poverty that in turn County, Special Counsel totheU.S. is designed to support a planned advocacy Sentencing Commission, and Chief Counsel agenda. This chapter is based largely on the to Senator Edward M. Kennedy on the U.S. June 2000 PRRAC conference, held at Senate Judiciary Committee. Howard University Law School, "High Stu- CarlosAnguloisanassociateat dent Mobility/Classroom Turnover: How to Zuckerman Spaeder LLP. He previously Address It? How to Reduce It?" The confer- served in the Department of Justice and as ence was supported by grants from the Counsel to Senators Paul Simon and Paul George Gund Foundation and the Spencer Sarbanes. Foundation. Roger Rosenthal of the Migrant Legal Action Program and Patricia Julianelle of the National Law Center on Homelessness and Poverty provided helpful consultation.

3 48 348 Citizens' Commission onCivilRights About the Authors

Chapter 17 discrimination. She was lead counsel in Limited English Proficient Students and Davis v. Monroe County Board of Education, High-Stakes Accountability Systems in which the U.S. Supreme Court held that Jorge Ruiz de Velasco is a Senior Research Title IX requires schools to address student- Associate in the Education Policy Center at to-student sexual harassment, and has writ- The Urban Institute. He is also a lawyer and ten extensively about sex discrimination in served as a staff attorney in the Office for educational institutions. Civil Rights, U.S. Department of Education, from 1987 to 1991. Michael Fix is a lawyer and Principal Re- Digital Divide search Associate at The Urban Institute, where he directs the Immigration Studies Chapter 20 Program. The Progress and Proposals for a Civil Rights Agenda in the Communications Chapter 18 Policy Arena New Research on Special Education and Mark Lloyd is the Executive Director of Minority Students with Implications for the Civil Rights Forum on Communications Federal Education Policy and Enforcement Policy, a nonprofit, nonpartisan project he Daniel J. Losen is a Legal and Research co-founded to bring civil rights principles Associate with The Civil Rights Project at and advocacy to the communications policy Harvard University (CRP). He was the debate. Previously, Mr. Lloyd worked as Principal Investigator for CRP's Conference General Counsel to the Benton Foundation, on Minority Issues in Special Education and and as a communications attorney at Dow, is editing a compilation of the independent Lohnes and Albertson in Washington, D.C., research presented at the conference, now representing both commercial and noncom- slated for publication by The Harvard mercial companies. He also has nearly 20 Education Publishing Group. He recently co- years of experience as a print and broadcast authored a chapter, The Role of Law in journalist, including work as a reporter and Policing Abusive Disciplinary Practices: Why producer at NBC and CNN. School Discipline is a Civil Rights Issue, with Mr. Lloyd has served as board member of Harvard Law Professor Christopher Ed ley, dozens of national and local organizations, Jr., for the book, "Zero Tolerance: Resisting including the Center for Democracy and the Drive For Punishment in Our Schools," Technology, OMB Watch, Iona Senior published by The New Press this fall. Services,theIndependentTelevision Upon graduating law school, Mr. Losen Service, and the Leadership Conference practiced education law for economically Education Fund. He has also served as a disadvantaged students as a legal services consultant to the Clinton White House, the advocate. Before becoming a lawyer, Mr. John D. and Catherine T. MacArthur Losen taught in public schools for nearly 10 Foundation, the Open Society Institute, and years. the Smithsonian Institution. He received his undergraduate degree from the University of Michigan and his law degree from the Chapter 19 Georgetown University Law Center. Blueprint for Gender Equity in Education Verna L. Williams is an assistant professor at University of Cincinnati College of Law, where she teaches family law and sex

349 Citizens' Commission onCivilRights 4 9 Federal Resources and Direction Sensible Safeguards, a coalition of public interest groups housed at OMB Watch Chapter 21 concerned about federal health, safety, and The Adverse Consequences of a New Fed- environmental protections. eral Direction Ellen Taylor is a Senior Policy Analyst Gary D. Bass, Ph.D., is the founder and with OMB Watch. She works on tracking ExecutiveDirectorofOMB Watch federal budget issues and working with (). For the fourth year nonprofit groups to encourage greater in a row he has been identified by The Non- understanding of and participation in the profit Times as one of the 50 most influen- budget process, especially as it impacts low- tial people in the nonprofit sector. incomeandvulnerablepeopleand Kay Guinane is an attorney at OMB Watch communities. She also coordinates the Social and manages the organization's Community Investment Initiative, an effort to involve Education Center, which deals with a range state and local organizations in making of nonprofit sector issues. She is a national recommendations about federal budget expert on nonprofit advocacy issues. priorities and encouraging public officials to Reece Rushing is a Senior Policy Analyst make domestic investment a policy and at OMB Watch covering federal regulatory budget priority. issues. He is also coordinator of Citizens for

3 5 0 350 Citizens' Commission onCivilRights U.S. Department of Education Office of Educational Research and Improvement (OERI) National Library of Education (NLE) Educational Resources Information Center (ERIC)

N4 ICE

0 JUCTION ASIS

This document is covered by a signed "Reproduction Release (Blanket),form (on file within the ERIC system), encompassing all or classes of documents from its source organization and, therefore, does not require a "Specific Document" Release form.

This document is Federally-funded, or carries itsown permission to reproduce, or is otherwise in the public domain and, therefore,may be reproduced by ERIC without a signed Reproduction Release form (either "Specific Document" or "Blanket").

EFF-089 (9/97)