The Future of Civil Rights
posted by Danielle Citron
As U.S. News and World Report highlights, civil rights advocates now find themselves in the exciting position of suggesting policy changes to an incoming administration whose Commander in Chief really understands civil rights issues. James Rucker, executive director of ColorOfChange.com, an online community devoted to black politics, notes: “Now we’re moving from hypothetical mode to people saying we have to figure out what our agenda is so we can present it to President Obama.” To be sure, meaningful equality for members of traditionally disadvantaged groups will require policy changes. But it also can, and should, be pursued by enforcing existing law, something the prior Administration had difficulty doing. As Professor Helen Norton testified before Congress last year, the Bush Administration had an appalling record in its enforcement of civil rights laws, including those involving employment discrimination, as compared to previous administrations. And the Obama Administration will undoubtedly reverse that course: at the head of the EEOC transition team is Helen Norton, who served as the Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice during the Clinton Administration, where she managed the Civil Rights Division’s Title VII enforcement efforts. Her most recent testimony before the U.S. House of Representatives Committee on Education and Labor Subcommittee on Health, Employment, Labor, and Pensions at a hearing concerning workplace discrimination demonstrates how exciting her appointment as head of the transition team for the EEOC is.
November 30, 2008 at 9:22 am
Posted in: Civil Rights, Constitutional Law
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Responses (11)
Brett Bellmore - November 30, 2008 at 12:05 pm
“an incoming administration whose Commander in Chief really understands civil rights issues.”
You’re joking, right? Judging by Obama’s remarks post-Heller, to the effect that local communities should be able to opt out of basic, explicit civil liberties, I’d say his comprehension is quite limited. Unless you’re using ‘civil rights’ in an ironic, “Whatever the ACLU feels like calling a civil right” sense.
Orin Kerr - November 30, 2008 at 8:08 pm
Brett,
I don’t think Professor Citron is joking, but I take your point to be that the meaning of terms like “civil rights” can be highly contingent on the politics of the speaker. I assume Professor Citron has in mind an audience of readers who are progressive/left who will be enthusiastic about the replacement of conservatives leading the Civil Rights division with others who are progressive/left.
Just Wondering... - November 30, 2008 at 10:02 pm
What exactly did the conservatives leading the civil rights division accomplish over the past 8 years?
Orin Kerr - November 30, 2008 at 11:27 pm
Just Wondering,
I don’t follow the Civil Rights Division, but it has a website with press releases and speeches discussing the division’s work and recent cases. You might start here: http://www.usdoj.gov/crt/pressindex.php
Here are the press release titles from the last month, FWIW:
11-20-08 Men Charged with Conspiracy to Threaten and Kill African-Americans
11-19-08 Justice Department Sues Alabama for Failure to Protect Voting Rights of Overseas Citizens
11-19-08 Former Memphis Police Officer Indicted on Civil Rights Charges
11-18-08 Member of Aryan Brotherhood Indicted for Bias-motivated Assault with Intent to Murder
11-14-08 Justice Department Seeks to Intervene in Suit to Enforce Rights of Military and Overseas Voters in Virginia
11-14-08 Justice Department Lawsuit Seeks to Restore Employment Rights of North Carolina Army Reservist
11-13-08 Justice Department Resolves Lawsuit Alleging Race Discrimination at Roseville, Michigan Apartment Complex
11-11-08 Fact Sheet: Department of Justice Efforts to Protect the Rights of Servicemembers and Veterans
11-7-08 Justice Department Sues Evansville, Indiana Retirement Home for Discriminating Against Persons with Disabilities
11-5-08 Justice Department Files Fair Housing Lawsuit in South Dakota
11-3-08 Two Men Plead Guilty to Burning Islamic Center in Tennessee
Again, though, I don’t follow the civil rights division; I can’t really speak to how the work of the division has changed for better or for worse in recent Administrations.
Brett Bellmore - December 1, 2008 at 7:20 am
“but I take your point to be that the meaning of terms like “civil rights” can be highly contingent on the politics of the speaker.”
That’s true, so long as you’ve cut “civil rights” free of “what’s actually written in the Constitution”, and both liberals AND conservatives do that to some extent.
But my larger point was that Obama has explicitly expressed support for the notion that a right can be guaranteed by the Bill of Rights, and yet whether it’s respected is STILL up to local governments. How certain are you that he restricts that view of civil rights to just the ones liberals disdain?
Orin Kerr - December 1, 2008 at 10:46 am
Brett,
I don’t understand your comment. Did Obama suggest that he doesn’t believe in the Warren Court’s “incorporation” doctrine as it applies to the Second Amendment — and is your view that “incorporation” is “actually written in the Constitution” (and if so, where)? Or are you making a different point?
Maryland Conservatarian - December 1, 2008 at 4:43 pm
The comments of Prof. Norton before Congress last year were really just a rant about how many more cases the previous administration had brought under Title VII as compared with this one and was no doubt inspired by the academy’s disagreement with DOJ’s approach to Ledbetter. Not brought forth however was the number of cases she thought should have been brought but weren’t. Besides, her testimony smacked of self-promotion as the previous adminstration’s DOJ that she was so effusive about included her….and isn’t the YouTube graphic misleading? Wasn’t she at Maryland when she went before Congress?
Danielle Citron - December 1, 2008 at 5:00 pm
Thanks for this vigorous discussion, all. As is always true for Prof. Kerr, his comments are on the mark and astute.
And, Maryland Conservatarian,although I vigorously disagree about your characterization of Prof. Norton’s testimony two years ago, I can clear up one thing. The You Tube testimony was not the one to which I referred when Prof. Norton talked about the insufficient enforcement of Title VII by the Bush Administration when she was indeed at Visiting Assistant Professor at Maryland. Rather, she gave the You Tube testimony about proposed legislation amending Title VII this past March 2008, when she was an Associate Professor at Colorado Law. Here is her written testimony accompanying that hearing: http://edlabor.house.gov/testimony/2008-02-12-HelenNorton.pdf.
AYY - December 1, 2008 at 11:46 pm
I have to wonder what the point of this post was other than to have a shout out for Helen Norton. Sure we’ll have changes in the new administration, and Helen Norton might be a player in making those changes. But what we’re really dying to know is what these changes are likely to be, what effect they are going to have, and whether there might be the slightest possible danger that federal agencies might overreach. These points were not substantially discussed in the post.
As for the question about how the present administration’s civil rights enforcement differs from the prior administration’s, that’s easy: Just ask Elian Gonzales’s relatives. Or ask the Berkeley residents who the Clinton era HUD went after, when they complained about a halfway housing project being located in their neighborhood. Or ask the people who had to draw up the checks that EEOC had to write for sanctions that were imposed during the Clinton years.
Danielle Citron - December 2, 2008 at 2:54 pm
I raised the issue for several reasons. First, so often commentators look at calls for change as necessarily involving the need for new policy, be it at the administrative or legislative level. I wanted to dispel that assumption. Second, it is important to note that agencies’ enforcement decisions play an important policy role, one that is not subject to review when it involves the decision not to act. An agency’s decision not to pursue cases is committed to an agency’s decision without the possibility of judicial review. And it is those decisions that can have a great impact on policy. Third, as someone committed to the protection of vulnerable people in their ability to work and thus the enforcement of Title VII, Section 1981, among other civil rights laws (you can see my work “Cyber Civil Rights,” Prof. Norton’s appointment at the head of the transition team is exciting.
Frank - December 4, 2008 at 6:50 pm
I wholeheartedly concur with Danielle–and on the basis of this column I think Reagan appointee Doug Kmiec might, too
http://writ.news.findlaw.com/commentary/20081203_kmiec.html
“One cannot help concluding that those tending the final months of the Bush Justice Department didn’t think Fitzgerald was worth its time. That is wrong as a matter of justice and for all the specific reasons suggested above, but it is also ironic. The supposition that this was just a gender case of ideological interest to progressives missed the amicus pleading of the conservative Pacific Legal Foundation (PLF), which sought to support both Title IX and constitutional remedy because, through the PLF’s conservative lens, the athletic improvements for women and girls have come via federal regulations that discriminate against males. Whether or not one can credit that claim in the final weeks of all-male NCAA football dominating the networks, I leave to the reader to determine, but no doubt PLF, like the parties and the Court, would not have minded an assist from the Solicitor General. But then, perhaps there is justice for an administration that has made ideology its touchstone on virtually everything, from dismissing its own U.S. Attorneys to the laws it signed but reserved the right not to enforce, that an ideological stereotype (that this was just a women’s rights case) may have blinded it from an ideological opportunity to turn Title IX on its head.”
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