THE EROSION OF RIGHTS Declining Civil Rights Enforcement Under the Bush Administration William L. Taylor, Dianne M. Piché, Crystal Rosario, and Joseph D. Rich, Editors Report of the Citizens’ Commission on Civil Rights with the assistance of the Center for American Progress 2007 THE EROSION OF RIGHTS Declining Civil Rights Enforcement Under the Bush Administration William L. Taylor, Dianne M. Piché, Crystal Rosario, and Joseph D. Rich, Editors Report of the Citizens’ Commission on Civil Rights with the assistance of the Center for American Progress 2007 THE EROSION OF RIGHTS ii FOREwORD This study has two parts. Part One consists of the report and recommendations of the members of the Commission and the Center for American Progress. Part Two is a series of working papers prepared by leading civil rights and public interest experts. Several of these authors contributed to earlier works of the Commission. While the Commission sought out and publishes these papers in order to advance public knowledge and understanding of a broad cross-section of civil rights issues, the views expressed in each paper represent those of the author/s and not necessarily of the Commission, the Center for American Progress, or any of their individual members. iii THE EROSION OF RIGHTS iv TABLE OF CONTENTS EXECUTIVE SUMMARY . 1 PART One—Findings & Recommendations of the Citizens’ Commission on Civil Rights and the Center for American Progress CHAPTER 1 THE EROSION OF RIGHTS AND RECOmmENDATIONS . 4 PART TWo—Working Papers CHAPTER 2 DEPARtmENT OF JUSTICE, CIVIL RIGHTS DIVISION . .12 The Attack on Professionalism in the Civil Rights Division . .13 By Joseph Rich The Criminal Section . .18 By Seth Rosenthal The Employment Litigation Section . .26 By Richard S . Ugelow The Voting Section . .32 By Joe Rich, Mark Posner, and Bob Kengle CHAPTER 3 RESHAPING THE COURTS . 49 President Bush’s Nominations to the U .S . Supreme Court . .50 By Elliot M . Mincberg and Judith E . Schaeffer The Bush Administration’s Assault on the Lower Courts . 57 By Adam Shah CHAPTER 4 THE StRUGGLE FOR ImmIGRATION REFORM . 70 By Shaheena Ahmad Simons CHAPTER 5 POLICIES TO HElp ENGLISH LANGUAGE LEARNERS . 79 By Peter Zamora CHAPTER 6 CIVIL RIGHTS AND COmmUNICATION POLICY—2006 . 86 By Mark Lloyd CHAPTER 7 NEW DIREctIONS FOR U.S. HOUSING POLICY: THE UNMET POTENTIAL OF TWO LARGE PROGRAMS . .97 By Philip Tegeler EDITOR AND AUTHOR BIOGRAPHIES . .103 ACKNOWLEDGEMENTS . .106 MEMBERS OF THE COMMISSION . .107 v THE EROSION OF RIGHTS vi EXECUTIVE SUmmARY The erosion of civil rights across our nation over the past discrimination in employment practices in the private six years is the result of willful neglect and calculated de- sector and in local and state governments focuses today sign. The Bush administration continues to use the courts on “reverse discrimination” rather than clear patterns and and the judicial appointment process to narrow civil rights practices of discrimination against African Americans and protections and repeal remedies for legal redress while other racial minorities. Similarly, Joseph Rich and two of allowing the traditional tools of the executive branch for his former Civil Rights Division colleagues, Robert Ken- civil rights enforcement to wither and die. The resulting gle and Mark Posner, examine how the Bush administra- inequality of opportunity, deteriorating civil liberties, and tion has allowed “partisan political concerns to influence rising religious and racial discrimination are sad commen- its decision-making” on enforcement of the Voting Rights taries on the priorities of the current administration. Act, which cuts to the core of our democratic principles and is so critical to equality in our country. This new report by the Citizens’ Commission on Civil Rights and the Center For American Progress catalogues To correct these miscarriages of civil rights enforcement, why this is happening and how Congress can take action to the report recommends that Congress establish a Select remedy the situation. The 10 essays in this report encapsu- Committee of the House and Senate for civil rights. The late the administration’s failure to enforce civil rights, pro- new Select Committee would: tect civil liberties and confront long-standing and emerging threats to our nation’s shining virtue: equality of opportu- • Review the implementation of federal civil rights laws. nity. The authors of the report, many of them veterans of civil rights enforcement and advocacy, detail the methods • Conduct oversight hearings and investigations into the employed by the administration to carry out these serious enforcement of civil rights laws. civil rights policy reversals and offer concrete solutions to slow the deterioration of our nation’s civil rights and restore • Implement any needed changes to ensure better civil our promise as the land of equal opportunity. rights enforcement. The first section of the report, written by five former se- In addition, the report calls for Congress to enact a key nior officials in the Department of Justice’s Civil Rights change to Title VI of the Civil Rights Act of 1964 and Division, reveals exactly how civil rights enforcement by the No Child Left Behind Act of 2002: enable people the executive branch has fallen in to a dangerous state to bring civil suits in federal courts to redress violations of disrepair—on the eve of the division’s historic 50-year of their civil rights. Only then can citizens count on anniversary. Joseph Rich, 38-year veteran of the division the Justice Department and the courts to act to protect until his retirement in 2005, exposes the attacks upon civil rights. the professionalism of the division by political appoin- tees amid pointed lack of oversight by Congress into Fixing what ails the Civil Rights Division is an impor- these transgressions. tant step that must be taken, but disarray and desuetude at the Department of Justice is not the only reason the Seth Rosenthal, a 10-year veteran of the division, then ex- administration has failed to protect our civil rights. amines the shift in emphasis away from classic civil rights Elliott Mincberg and Judith Schaeffer, the former legal enforcement toward action against “human trafficking,” a director and associate legal director for the People for laudable goal, but one previously tackled by other divi- the American Way, and Adam Shah at Media Matters sions within the Justice Department. for America, examine the administration’s success at appointing conservative “activist” judges to the Supreme Richard Ugelow, who retired from the Civil Rights Divi- Court and lower courts—with the express aim of legislat- sion four years ago, explains how civil rights action against ing conservative dogma from the bench. THE EROSION OF RIGHTS The remedy? The president and the Senate must ensure His solutions are forthright: The Federal Communica- that all judicial nominees to the federal bench have a dem- tions Commission must enact race-conscious measures onstrated commitment to equal justice under law. With- to advance equal employment opportunity and increase out judges fully committed to civil rights and liberties our minority ownership in the communications industry. And nation risks losing its distinctive character as a country the government must support the widespread provision that offers opportunity to all and protects all against the of communications access points all across the country: in excesses of the powerful. rural areas and the inner city, on Indian land and in hospi- tals, libraries and schools in every community. These same characteristics of the American way of life are in jeopardy in other legal arenas. Shaheena Ahmad Equal opportunity in housing, which is examined in the Simons, formerly of the Mexican American Legal Defense last chapter of our report, is perhaps the most important and Education Fund says the struggle for immigration civil rights arena in that it determines access to educa- reform in our country is complicated by the gap between tion, jobs, and other crucial services. Yet, it poses the most those conservatives who want draconian enforcement of formidable barriers to equality. Philip Tegeler, Executive U.S. deportation laws and those who want cheap immi- Director of the Poverty and Race Research Action Council, grant labor. The upshot, says Simons, has been no reform explains why equal opportunity housing programs at the at all. The goal of reform should be a positive one: the Department of Housing and Urban Development and the enactment of a defined path to citizenship for millions of Department of the Treasury are not helping families move undocumented immigrants in our society. from higher-poverty segregated neighborhoods to less segregated areas. Simon’s colleague at the Mexican American Legal Defense and Education Fund, regional counsel Peter Zamora, tack- Tegeler notes that all the legal and policy provisions to les the shortcomings of states, local agencies and the feder- make these programs effective reside in the hands of ex- al government in implementing the guarantees of the No ecutive branch officials at these two agencies. They must Child Left Behind Act that English language learners will only be employed to help low-income families enjoy the be fully included in educational opportunities. By 2025, housing mobility that middle- and higher-income fami- Zamora notes, 25 percent of the U.S. school population lies take for granted in America. He recommends that will be English language learners. The Bush administra- Public Housing