Quietly but ominously, the Clinton administration has set its civil rights policies on a radical course permeated by race-consciousness, brazenly breaking candidate Bill Clinton's "new Democrat" assurances that he would pursue a politics of moderation and healing.
Clinton in his first two-and-a-half years has done nothing, absolutely nothing, to find common ground on race issues. Instead he has given over the entire federal civil rights apparatus to ideologues who pursue race-based policies in areas touching the lives of every American.
Above it all, Clinton presides with benign indifference, reigning in the civil rights officials only when their more extreme mischief provokes public outrage. Otherwise they are left to pursue their own agendas, which they do with partisan zeal. Twelve years of "neglect" and "active hostility to civil rights progress," proclaims Justice Department civil rights chief Deval Patrick, "can be summed up in one word: Republicans."
But for ordinary Americans of all colors, these policies are unwelcome. For the nation's already simmering race relations, the administration's policies are incendiary. And they leave tragically unaddressed serious problems that are fomenting severe class divisions in our society.
Substance Over Symbolism
During the 1992 campaign, Bill Clinton sought to recapture Democrats alienated by the party's support for race preferences and other social welfare programs. Clinton talked tough about welfare and middle class virtues. He responded to one critic: "If trying to restore the middle class in this country is a code word for racism, we are in deep trouble. We might as well fold our tent and go home."
For the most part, Clinton's rhetoric was soothing and conciliatory on race issues: "America needs to restore the old spirit of partnership, of optimism, of renewed dedication to common efforts," he declared. But it was Clinton's high-profile attack on Sister Soulijah for her provocation of violence against whites that made believers among mainstream Democrats that Clinton would not be a hostage to extremists on race issues.
After the election, Clinton righteously rebuffed demands for more appointments of women and minorities to his cabinet, denouncing his critics as "bean counters" who were "playing quota games." And when his first nominee for assistant attorney general for civil rights, former NAACP Legal Defense Fund lawyer Lani Guinier, was assailed for her radical views, Clinton withdrew the nomination.
All this gave genuine new Democrats cause for optimism. Clinton's withdrawal of the Guinier nomination, proclaimed Will Marshall, president of the centrist Progressive Policy Institute, "reaffirms the stance he took during the campaign, which was unwavering support for civil rights . . ., but not support for quotas, group rights, or special preferences."
But it turned out Guinier was no aberration, for Clinton's appointees to virtually every civil rights post bear the same activist pedigrees. The list reads like a roll call of establishment civil rights groups. Deval Patrick worked with Guinier at the NAACP Legal Defense Fund (LDF). Patrick plucked Kerry Scanlon from LDFs ranks for one deputy position, and for another chose Isabelle Pinzler, director of the American Civil Liberties Union's Women's Rights Project.
At the Equal Employment Opportunity Commission (EEOC), Clinton appointed as chairman former Air Force counsel Gilbert Casellas, who previously worked for the Puerto Rican Legal Defense and Education Fund. The other two new commissioners are Paul lgasaki, who served as executive director of the Asian Law Caucus; and Paul Miller, formerly litigation director for the Western Law Center for Disability Rights. The commission's legal counsel, Ellen Vargyas, toiled in the litigation vineyards for the National Women's Law Center.
At the Department of Education, Clinton named as assistant secretary for civil rights Norma Cantu, regional counsel for the Mexican-American Legal Defense and Education Fund. Roberta Achtenberg, assistant secretary for fair housing and equal opportunity at the Department of Housing and Urban Development (HUD), worked as executive director of the National Center for Lesbian Rights. And Clinton elevated as chairperson of the U.S. Commission on Civil Rights long-time commissioner Mary Frances Berry, who came to national attention in 1985 when she opined that "civil rights laws were not passed to give civil rights to all Americans," but only to "disfavored groups" such as "blacks, Hispanics, and -women."
These appointments mark an historical milestone: for the first time, an entire area of federal policy -- in this case civil rights -- has been handed over wholesale to a special interest lobby. They're operating out of new offices, but advancing the same agendas -- with the federal government's mighty civil rights arsenal now at their disposal.
Bean-Counting as Art Form
Notwithstanding Clinton's railings against "bean- counters" and "quota games," the command from the top is clear and unequivocal: absolute ethnic and gender parity in political appointments.
Ironically, the bean-counting has stymied civil rights law enforcement by delaying key appointments while the perfect mix was found. Limiting serious consideration of attorney general candidates to women left the Justice Department rudderless for months until finally third-choice Janet Reno was nominated. The Civil Rights Division was without a chief for more than a year as the administration searched for a black candidate rather than elevate one of the white career deputies.
But the most perverse display of bean-counting involved the EEOC, where the Clinton administration left the chairmanship vacant for 21 months as it searched for a nominee who, as the Washington Post described it, was "not just Hispanic," but specifically of "Puerto Rican descent." This "caricature of equal employment opportunity policy," the Post editorialized, comes "perilously close to institutionalizing some of the very distinctions as to ethnicity, race, gender and all the rest" that the commission is supposed to combat. Meanwhile, as Ronald Brownstein of the Los Angeles Times reported, the delay "left the agency foundering as it struggles to dig out from a massive backlog of more than 80,000 pending discrimination complaints."
Having survived the bean count, chairman Casellas now presides over an agency that is weighing such lofty questions as whether infertility, obesity, and nicotine addiction qualify for protection under the Americans with Disabilities Act. But even more pressing is a command from the Hill that Casellas purge from the agency anyone who deviates from the new political correctness. In an October 6, 1994 letter, Sen. Paul Simon reminded Casellas about
the agreement you made to me during your confirmation hearing. I had asked that as the new Chairman, you send to me a letter within six months regarding those in the agency who do not believe in the mission of the EEOC ... [who] should be transferred to the Pentagon or someplace else.
If the purge victims turn out to be white males, they may find their problems only beginning at the Pentagon. On August 10, 1994, Undersecretary of Defense Edwin Dorn issued a memorandum implementing Secretary William J. Perry's call for "vigorous action" to increase the number of "women, minorities and persons with disabilities ... among the Department's civilian managers." Remarking that "[p]rogress in this area comes one job at a time," Dom directed that
I need to be consulted whenever you are confronting the possibility that any excepted position, or any career position at GS-15 level and higher, is likely to be filled by a candidate who will not enhance ... diversity.
If this mechanism failed, Dorn warned, "we will need to employ a more formal approach involving goals, timetables and controls on hiring decisions."
Dorn's message was none too subtle. "As a white male, I can kiss my future goodbye," complained one GS-14 Defense Department employee to the Washington Post. "I am keeping Dorn's memo handy [in case] for some unexpected reason I do apply for advancement. It should serve as excellent prima facie evidence of discrimination due to race."
The administration's bean-counting obsession is so transcendent that hardly a personnel decision is made without considering "diversity" consequences. Perhaps most revealing was the memorandum recently reprinted in Washington Monthly from Roger Kennedy, National Park Service director, to some subordinates:
Surely, we must be able to find a use for a Swahili- speaking person who has Peace Corps experience, is a cum laude in English from Harvard and has a biological background in data manipulation.... Unfortunately, Mr. Trevor is white, which is too bad.
But "diversity" within the federal government isn't just about numbers, it's about rightthinking. In January 1994, HUD established "cultural diversity" performance standards for managers and supervisors, evaluating them on such criteria as "speak[ing] favorably about minorities, women, persons with disabilities and others of diverse backgrounds"; "participat[ing] as an active member of minority, feminist or other cultural organizations"; and "participat[ing] in EEO and Cultural Diversity activities outside of HUD."
HUD's directives were condemned by the Senior Executive Association as violations of freedom of speech and association. "While the law requires that employees not discriminate for or against anyone on the basis of race, color, religion, sex, [or] national origin," the association wrote HUD's Achtenberg, "it does not, in fact, require that career executives become advocates for particular groups and adopt their agendas." An apt complaint, but not one likely to sway those who see no difference between enforcing the law and advancing an agenda.
Justice's Pursuit of Preferences
Far more significant than the quota regime installed within the federal government are the social engineering policies imposed upon the rest of us in the guise of civil rights.
Though civil rights policy is diffused among many agencies, the fulcrum is the Justice Department's Civil Rights Division, where Deval Patrick rapidly is shedding any pretense of impartial law enforcement in favor of unbridled ideological activism.
Both Patrick and Attorney General Janet Reno projected moderate images on race issues at their confirmation hearings. Reno assured Senator Hank Brown (R-CO) that "Quotas shouldn't be used anywhere, sir."
Patrick was even more demure. A racial quota, meaning "a particular number which is both a ceiling and a floor," is "against the law," responded Patrick to a query from Sen. Strom Thurmond. But even "affirmative action," which is "something different from that" -- namely, "goals and timetables" that "starts with recruitment and training" -- "has to be reserved for limited circumstances, and has to be flexible," Patrick testified. "And I understand that to be the law of the land and part of the responsibility of the division in abiding the law of the land, sir."
Patrick's fidelity to the law lasted less than five months. The vehicle Patrick chose to signal a new direction was United States v. Board of Education of Piscataway, a New Jersey reverse discrimination case the Justice Department won on behalf of white schoolteacher Sharon Taxman, who was fired during a reduction-in-force in order to retain a black teacher with equal seniority. The school board previously resolved such matters with a coin flip, but this time decided by race in order to preserve "diversity." The case was brought by the Bush administration, but prosecuted by the Reno Justice Department before Patrick's arrival.
Federal courts have allowed the limited use of race only to remedy an employer's past discrimination or gross statistical disparities. In this case, neither justification was availing since the school board had an exemplary record of minority hiring. Judge Maryann Trump Barry refused to accept the board's "diversity" rationale since it would allow "boundless" race preferences -- precisely what advocates of "affirmative action" desire -- and she struck down Piscataway's blatant act of discrimination.
But this victory Patrick and company could not abide. At first, they inclined toward merely sitting out the appeal, forcing Ms. Taxman to defend the decision alone in the Third Circuit Court of Appeals. But Patrick's deputy, Kerry Scanlon, pressed for a bolder approach: switch sides altogether.
Scanlon prevailed, and Patrick himself signed the motion to realign the United States with the party it had just successfully prosecuted for violating the Civil Rights Act of 1964. Patrick thumbed his nose at a long series of Supreme Court decisions, declaring in his motion that the trial court applied "an unduly narrow interpretation of the permissible bases for -affirmative action."
Patrick and Scanlon miscalculated the public response and soon were backpedaling. Patrick declared at a news conference that the case was "unique and narrow," since it involved "two teachers who were equally qualified and identical in seniority." But still he defended the underlying logic, insisting that "the concept of faculty diversity does not favor one race over another." But no matter how narrow the facts of this case, if Patrick succeeds in introducing the concept of "diversity" as a justification for racial preferences, it will remove any meaningful limits on government's power to engage in reverse discrimination.
Patrick can implement much of his agenda without filing a single lawsuit. When the Justice Department knocks at a door and threatens to unleash its vast litigation arsenal, rational people often turn compliant. Hence Patrick and others who possess civil rights law enforcement authority are not ultimately bounded so much by what a court might approve, but only to what a school board or employer or elected official might "voluntarily" agree.
The latest episode involves Fullerton, California, on whose doors Patrick knocked recently, bearing a charge of employment discrimination in one hand and an invitation to surrender in the other. If Fullerton acquiesces, it will have to submit to quota hiring for its police and fire departments and a host of other race-conscious mandates, even as it is laying off employees. If it refuses, it will have to bear massive costs to defend itself: nearby Torrance already has spent over one million dollars in 21 months of litigation against a similar Justice Department lawsuit. Either way, the city loses.
The mayor, Julie Sa, insists the city is guilty of no wrongdoing, and is aware of no individual claims of discrimination. Rep. Edward Royce (R-CA) on March 10 asked Attorney General Janet Reno on March 10 to explain the charges against Fullerton, but to date has received no reply.
The Justice Department wants the city to produce a 44.3 percent minority applicant pool, including 9.1 percent blacks, in a city whose minority population is 37 percent minority and 1.9 percent black. Its statistical analysis seems to draw more from the Los Angeles metropolitan area, which is more heavily minority than Fullerton, rather than from Orange County, which has fewer. Fullerton is in Orange County, about 22 miles from the City of Los Angeles.
Patrick demands that the city sign a consent decree obligating it to actively recruit in minority-targeted media and other outlets designed to increase minority hiring. Failure to achieve racial parity will trigger Justice Department scrutiny. The city must also hire on a priority basis to minorities who applied (or felt discouraged from applying) for entry-level police and fire positions since 1985, and to pay back pay and benefits. The decree is similar to others secured by Patrick with Hialeah, Florida and Macon County, Georgia. Regardless of whether actual discrimination has occurred, Patrick has made it clear he will deploy his law enforcement arsenal to achieve racially proportionate outcomes.
Chevy Chase Savings & Loan learned this last August 22, when Reno and Patrick announced a consent decree the financial institution signed to avoid prosecution for lending discrimination. The Justice Department produced no evidence that Chevy Chase discriminated in loan approvals. Rather, it charged the savings & loan had insufficient branch offices in certain minority census tracts, which in Reno's and Patrick's eyes amounted to illegally "shunning" a "community."
Under the unprecedented settlement, Chevy Chase agreed not only to open new branches, but to adopt hiring quotas, approve loans for blacks at below-market rates, provide grants to cover down payments, and advertise in minority- owned media outlets, including "at least 960 column inches" of advertisements in black-targeted newspapers.
As Cornell law professor Jonathan Macey charges, 'The government's willingness to proceed with litigation in the absence of evidence of discrimination" is 'scandalous in a nation that purports to be governed by a rule of law." Instead of prosecuting banks that actually discriminate -- or dealing with underlying problems that discourage banks from opening offices in low-income areas -- Patrick seems determined to pursue high-profile cases that more resemble naked extortion than civil rights law enforcement.
Rather than fight overwhelming odds, the Mortgage Banking Association, the nation's largest mortgage lending association, engaged in pre-emptive capitulation. Roberta Achtenberg announced in September an agreement with the association that calls upon members to bolster minority lending, advertise in minority media outlets, and "encourage development of a workforce that reflects the cultural, racial and ethnic diversity of the lenders' market."
Meanwhile, new Clinton regulations will make Patrick's job easier by demanding racial identification from applicants for consumer or business loans under $1 million. And in case the federal civil rights arsenal is inadequate to the task, Patrick and deputy Scanlon are urging private- sector lawyers to take up litigation. "You can make money on fair housing cases," Scanlon recently told a lawyer group.
In the area of voting rights, too, Patrick is also committed to racial line-drawing. Condemning the Supreme Court's recent Shaw v. Reno decision striking down racially gerrymandered election districts as "alternately naive and venal," Patrick has organized a seven-member swat team within the Civil Rights Division to defend against "every single challenge" to such districts. The Justice Department's extensive resources supplement a half-million dollar grant awarded by the Carnegie Foundation to the lawyers' Committee for Civil Rights for the same purpose earlier this year. This year, the Justice Department has filed Supreme Court briefs defending blatant racial gerrymandering in congressional districts in Louisiana and Georgia, even as courts have subjected the Department to criticism for coercing states to engage in racial line- drawing.
Patrick's voting rights campaign bodes especially depressing societal consequences. Grounded on the premise that racial groups have different interests and can be represented only be members of the same race, it will render racial division a self-fulfilling prophecy by constructing a system of electoral apartheid.
Companies subject to heavy federal regulation are easy prey to social engineering schemes, perhaps none so susceptible as those who depend on Federal Communications Commission (FCC) licenses for their existence. In January 1994, the FCC issued new rules imposing heavy fines on broadcasters for failure to meet explicit quotas for hiring minorities and women.
And in what the New York Times called the "biggest affirmative-action program in decades," the FCC voted to set aside half of 2,000 licenses for wireless "personal communi- cations services" (such as portable phones and pagers) for firms owned by minorities and women, and to provide licenses for such companies at up to 60 percent below market value. One analyst valued the benefits at a half billion dollars.
Like all set-asides, the FCC program is welfare for the wealthy. They are also prime for abuse: as the Times reports, the 50 percent minority ownership threshold means that "a company could still qualify for the full range of preferences even if huge corporate investors acquired 75 percent of the equity and 49.9 percent of the voting stock." Moreover, the program cannot possibly satisfy constitutional requirements: since the licenses involve new communications technologies, by definition there can be no "past discrimination" to justify racial or gender preferences of any sort.
But constitutional constraints are no impediment to the Clinton administration. In 1993, HUD launched a Fair Housing Act investigation against three Berkeley residents for opposing a planned homeless shelter in their neighborhood, threatening each with fines up to $100,000 and a year in jail if they did not turn over all their records, including lists of their coalition's members. HUD subsequently disclosed similar investigations around the country, aimed at suppressing what Heather MacDonald, writing in the Wall Street Journal, described as "textbook examples of petitioning the government for a redress of grievances."
After widespread publicity, HUD's Achtenberg backed down, conceding that the "Berkeley citizens' acted within their First Amendment, free-speech rights." She pledged that "every attempt is being made to ensure that HUD's inquiries ... do not have a chilling effect on political activity or the exercise of free speech." But, warned Achtenberg, 'We can anticipate more cases of this kind."
The Education Department's Norma Cantu was similarly red-faced when it was disclosed that her Office of Civil Rights was investigating Ohio's high school proficiency examinations -- even after a federal court ruled the tests were not racially biased. "The 2.6 percent of graduating seniors who failed the exam -- about one-third of whom were black - were offered a 10-hour summer remediation course and another chance to pass. But the racially disproportionate results were intolerable to Cantu, who backed down only when challenged by Rep. Bill Goodling (R-PA) and 14 other members of Congress.
The Department has persisted, however, in its support for race-exclusive college scholarships. Reversing a Bush administration policy emphasizing disadvantage over race, Education Secretary Richard Riley last January embraced race-based scholarships, calling them "a valuable tool for providing equal opportunity and for enhancing a diverse educational environment."
Zero-Sum Civil Rights
The major effect of embracing race rather than disadvantage in college scholarships conferring benefits to the offspring of Marion Barry and Jesse Jackson rather than the children of Anacostia -- seems to have escaped the Clinton administration. But the policy exemplifies Clinton's approach to civil rights: redistributing benefits and opportunities on the basis of race, rather than engaging in any meaningful effort to develop common-ground solutions to the problems facing society's most disadvantaged members.
Such race-based policies are enormously divisive yet have done little to stem the widening gap between mainstream Americans and the growing underclass. And while the Clinton administration pursues racial entitlements, it has resisted fiercely efforts to empower low-income people such as school choice, tenant management of public housing, and repeal of the Davis-Bacon Act, a racist law enacted in 1931 that prevents many low-skilled workers from entering the construction trades.
The courts consistently have rejected the race- conscious aspects of the Clinton administration's civil rights agenda. In three cases this Term, the U.S. Supreme Court repudiated the administration's positions in desegregation, set-asides, and racial gerrymandering. These and other court decisions repeatedly emphasize that race- based remedies must be limited to the most extraordinary circumstances. Both public policy and judicial precedents make clear that a new approach is necessary.
A forward-looking approach to civil rights policies should be based upon two key factors:
(1) "Affirmative action" resonates little among most disadvantaged minorities. Few low-income people have ever benefited, or are in a position to benefit, from most affirmative action or set-aside programs, which concentrate their benefits on individuals with substantial skills or connections.
(2) Americans of all colors still share common values and aspirations. Low-income people want the same things as other Americans: safe neighborhoods; decent schools; opportunities to own a home, pursue work or business opportunities, and seek a better future.
These two basic factors provide the antidote to Clinton on civil rights: a strong renunciation of divisive racial preferences coupled with progressive policies to empower disadvantaged individuals to earn a share of the American Dream. Legislation to empower low-income parents with school choice, as Representatives J.C. Watts, Dave Weldon, and Steve Gunderson have proposed, along with welfare reform legislation that removes economic disincentives to work and family formation, are good places to start.
The time has come to enact a new civil rights bill, curbing the federal government's power to discriminate once and for all. Effective civil rights law enforcement does not require racial preferences. Indeed, racial preferences attack the symptoms rather than the causes of the problems afflicting the truly disadvantaged. Any "review" of affirmative action policies that leaves discriminatory practices intact will do nothing to bring Americans closer together or to solve serious social problems. I encourage this Committee to hold the Clinton Administration accountable for its broken promises on civil rights, and to move forward with legislation that will fulfil the promise of equal rights for all Americans.
Civil Rights Talking Points
þ America's moral claim is staked in its doctrinal commitment to civil rights. Congress should take a bold, principled stand on civil rights, based on the original civil rights vision of equal opportunity and individual freedom.
þ Congress should pass a civil rights bill removing government from the business of racial discrimination, once and for all.
þ Race-based affirmative action, as an exception to the principle of nondiscrimination, was supposed to be narrowly-drawn and temporary. Thirty years later, racial preferences permeate the American landscape.
þ The Congressional Research Service, in a report for Sen. Dole, identified 160 race and gender preference programs at the federal level. Most are the product of executive orders and federal regulations, not statutes. The civil rights bill would forbid such preferences.
þ Two of the largest preference programs are:
o the Office of Federal Contract Compliance Programs (OFCCP), established not by statute but by Executive Order 11246, which requires all public contractors to adopt "goals and timetables"; and
o section 8(a) of the Small Business Act, creating benefits supposedly for socially and economically disadvantaged individuals, but administered as a set- aside program for companies owned by minorities and women.
þ The bill would not require any modification of existing civil rights laws. To the contrary, existing civil rights laws were designed to prohibit discrimination of all sorts. The civil rights bill would fulfil that intent.
þ Likewise, the U.S. Supreme Court has approved racial preferences only where necessary, temporary, and narrowly tailored to redress specific past discrimination. The federal programs do not satisfy this exacting constitutional standard.
"Affirmative action" is not the same thing as the antidiscrimination laws. Those laws will remain on the books and should be strictly enforced.
Public opinion polls show large majorities (over 70 percent) of men and women oppose racial preferences, including a large percentage of minorities (usually close to 50 percent). At the same time, a majority favors "affirmative action."
Affirmative action does not have to mean discrimination. Many current programs (such as 8(a)) purport to provide assistance to individuals who are "socially and economically disadvantaged," but instead are administered to employ race and gender preferences. After the civil rights bill is adopted, such assistance must be targeted to the truly disadvantaged, without discrimination on the basis of race and gender.
þ The bill also makes an explicit exception for nondiscriminatory affirmative outreach and recruitment efforts.
þ The bill does not affect the ability of private entities to engage in affirmative action efforts that comply with the Civil Rights Act of 1964.
þ Current affirmative action is "trickle-down civil rights": benefits conferred on the members of the designated groups who have the greatest skills and resources, in the name of those who are outside the economic mainstream.
þ The Clinton administration has violated its own injunction against "bean-counters" and "quota games." It has relentlessly supported race-based policies in employment, voting, contract set-asides, and other areas of public policy. The courts have rejected the administration's civil rights arguments in virtually every major case.
þ The administration's review of preference programs is illusory. The problem is not "abuses" in such programs; it is that such programs, by their very nature, discriminate on the basis of race and gender. Government's power to confer benefits and opportunities on the basis of race and gender must be curbed, once and for all.
þ The tools of the 1960s are inadequate to the civil rights challenges of the '90s. Preference programs divide Americans on the basis of race, but do little to remedy the real problems separating people from basic opportunities.
þ In addition to strict enforcement of antidiscrimination laws, we should remove barriers that prevent the disadvantaged from controlling their destinies, such as:
enterprise zones and repeal of regulatory barriers to economic opportunities, including the Davis-Bacon Act;
school choice for low-income inner-city families;
meaningful welfare reform that removes disincentives to productive livelihoods;
tenant management and ownership of public housing; and
making the streets safe.
Prepared by Clint Bolick, Institute for Justice.