On the eve of election 2004, Chief Justice Rehnquist’s illness and reports from two independent commissions beg a version of the Reagan question: “Is civil rights better off than it was four years ago?”
By Paul Igasaki, IMDiversity.com Featured EEO Columnist
October 25, 2004 – Shortly after the 2000 Presidential election, I spoke to a group of skeptical civil rights professionals about the prospects for the next four years. While acknowledging my own political affiliations, I urged them – many fearing a civil rights “winter” – to keep open minds about President Bush’s ultimate civil rights record. It was wishful thinking, but I tend to be an optimist. Civil rights had become a political football – witness the partisan witch hunt on Bill Lann Lee for his support of affirmative action. More can always be accomplished when a bipartisan consensus on basic civil rights progress can be established. Opposition will always be there, as it will to any change, but so long as there is real cooperation across party lines the atmosphere is more promising and less divisive.
I asked them not to assume the worst based on party. Civil rights should not be a partisan matter and, historically, it has not been the exclusive domain of either party. George Bush did not take a stand on affirmative action before the election. His rhetoric was vague, but positive, including a promise to be a “uniter, not a divider.” I was also uncertain, but I was hopeful and urged the audience to give George Bush a chance to show us that he was indeed a “uniter.” Coming from the White House, even modest civil rights leadership sets a tone and a model for the nation.
Four years later, we can now consider President Bush’s record. Have we come together? Have our division been healed, our rights protected and advanced? A number of assessments of the Bush administration’s record on civil rights have been issued. Most notable has been the bipartisan U.S. Commission on Civil Rights, which has strongly criticized him for “neither [exhibiting] leadership on pressing civil rights issues, not tak[ing] actions that matched his words.” The Citizens Committee on Civil Rights has rendered similar judgments from outside the government. Their words are of interest and I encourage you to read their conclusions.
One need only listen to this year’s partisan rhetoric, including in the area of civil rights, to answer these questions. While not strictly the President’s fault, it shows how much more divided we have become, something that hardly seemed possible back in 2000. And it is on the President’s desk where, as Harry Truman used to say, that the buck must stop.
Civil rights and civil liberties have clearly not been a priority of the Bush administration. But the President has not only allowed civil rights to flounder through inattention; he has in some ways been actively opposed to important longstanding corrective policies. Since the last election, President Bush has come out against affirmative action on the basis of gender or race, positing “racially neutral” alternatives. The affirmative action battle continues to rage across the nation. The U.S. Supreme Court upheld diversity in education as a valid goal for which affirmative action could be taken, though that decision was a narrow one. State initiatives or legislation on affirmative action continue to be explored. The aggressive advocacy of the federal government is still necessary to maintain programs that address the unfinished business of equality in employment, education and contracting.
“Racially neutral” alternatives usually involve geographic or family income and resource factors. Both are useful areas in which greater diversity might be desirable. But they do not address the issue of the effects of historic racial, ethnic and gender discrimination. Where its effects remain, additional efforts are necessary to overcome problems ranging from representation at all levels to the “glass ceiling” at the management level. Presidential leadership is necessary to defend these important programs and take them out of the political debate.
Enforcing our laws against discrimination is an important obligation of the government and the President. Discrimination remains a serious American problem. Racial and ethnic harassment in the workplace is on the rise. Workers with disabilities still face enormous barriers to getting jobs, and employers are struggling with both the ADA and complicated court decisions. As the baby boom enters senior status, companies seek to save money in a tough economy by reducing the number of costlier older workers, raising situations where the age discrimination law might apply. We still don’t have a federal law against discriminating against workers merely because of their sexual orientation.
To their credit, many of the top Bush administration civil rights appointees are moderates who have undertaken some important initiatives. EEOC Chair Cari Dominguez, for example, started her term by pursuing a suit against Morgan Stanley for gender bias. In this environment, however, rather than providing the federal civil rights enforcement agencies with important tools, ranging from badly needed funding to new laws, the mushrooming federal deficit has reduced funds in some years or given small increases in others.
At the EEOC, the administration is now proposing a private contract for taking cases over the phone that will weaken the quality of investigations, bring back the massive case backlog that the Clinton administration had eliminated, and make the process even more difficult for claimants with disabilities or for whom English is not their first language. Hate crimes remain a serious problem. We need a new federal law that will provide local officials with the resources they need to prosecute these cases and make sexual orientation a category of the law. President Bush opposes it.
While the time is overdue for a federal anti-discrimination law for sexual orientation consistent with other protections against discrimination, little progress has been made in Congress or the White House. Both parties have responded only negatively to the state courts that have stood up for the marital rights of gay and lesbian couples. But the President has taken it a step further, using the opportunity to call for an amendment that would enshrine this ban in the United States Constitution. Some have suggested that the danger of passage is slim, making the purpose all the more political and all the more divisive. The nation has been moving slowly towards tolerance in this area and this debate has set us back, references to Vice President Cheney’s daughter notwithstanding. The rights of gay and lesbian Americans have not been served by politicians of either party, but the President has led us away from civil rights for all.
We learned this week of Chief Justice Rehnquist’s thyroid cancer. The Supreme Court remains an enormously important civil rights venue. On one matter after another, decisions are made by the narrowest of margins. One seat could change everything — on affirmative action, abortion rights and a number of other important concerns. President Bush has named judges at a number of levels with weak civil rights records. His model for a Supreme Court nominee was Justice Clarence Thomas, whose ideology is far from moderate. What then would be the impact of President Bush naming one or more justices that alter the current ideological balance of the court? The effect will be felt long after the President elected this year has left office.
In the time following September 11, 2001, backlash against Arab and Muslim Americans as well others who were seen as resembling them, such as Sikhs and other South Asians, was severe. While the hate crimes reduced over time, discrimination continued and with the War on Iraq, it remains a serious problem. Initial statements from the administration were positive. President Bush visited an American mosque and urged tolerance. Soon, however, under the leadership of the White House and Attorney General Ashcroft, actions demonstrated a different course. Ethnic and religious profiling seemed the basis for extensive interviews and detentions. The Patriot Act included some reasonable security measures, but allowed significant violations of privacy without warrants or judicial oversight. Civil immigration law was used to target many without reason to believe any connection to terrorist activity. The right to a lawyer was withheld for some who should have been allowed representation and the confidentiality of the lawyer-client relationship breached. Overlooking the rule of law at a time that the world needs to see the strength of the American system weakens us, and the denial of civil rights has not made us more secure.
Civil rights are just one of the issues before the American people in an election year. But, in my mind, it is one of the most uniquely American issues that says a lot about our identity as a nation and as a people. We are a country without one ethnicity, language or religion. Our history and our culture change with every new American. That is why the rights and responsibilities that bind us together are so very important, for without them we cease to be the United States of America. As a Japanese American, I know that despite these protections, our future, our property and our freedom, ultimately our very place as Americans can be lost or threatened because the fears of the moment seem more important than the dream that created this country more than two centuries ago. When the nation is challenged we are all required to work together for the common good, but it must truly be a common good.
The bottom line is this: We are more divided as a nation than at any time in my lifetime, including during the Vietnam War. Far from uniting us, as many of us had hoped, President Bush and his team have exploited sensitive issues of civil and human rights for political gain. The politicization of civil rights started a number of years back and has been due to both political parties. But in this year, politics has overwhelmed considerations of fundamental rights and, ultimately, that must be the President’s responsibility.
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