When political leaders face urgent problems and a polarized public, a commission that honestly gathers facts and encourages a consensus is needed. Yet at a time when Americans are struggling to address torture, hate crimes, marriage inequality, police misconduct and racial profiling, the U.S. Commission on Civil Rights is either silent or on the wrong side of every major human rights issue.
The U.S. Commission on Civil Rights serves no useful purpose. Chairman Gerald Reynolds, a black man, publicly stated that he did not know of any discrimination problems. And the commission has ignored its responsibility to conduct field investigations before making findings and recommendations, while their recent activity reads more like a list of civil rights abuses than the work of a civil rights watchdog. The commission chose to ignore the disparate treatment of flooding victims after Hurricane Katrina and recommended abolition of the Clinton policy that saved minority contracting by the federal government. They announced that few if any benefits accrued to minority children from racial diversity in K-12 education just before the Supreme Court 2007 decision ending voluntary desegregation in Seattle and Louisville.
The commission asked the American Bar Association to abandon demands for racial, ethnic and sexual diversity among law school students after the Supreme Court upheld the University of Michigan Law School’s affirmative action admissions policy.
The commission had the audacity to oppose re-authorization of the landmark Voting Rights Act even though the commission’s 1965 recommendations formed the details of the law. They recently expressed opposition to legislation outlawing hate crimes. The commission consistently casts blame on the disadvantaged without positive recommendations addressing current needs or problems.
A courageous U.S. Commission on Civil Rights, founded in 1957, held hearings and investigations in local communities and worked with Martin Luther King Jr. and other leaders to achieve federal civil rights legislation. Today, again, we need a commission that will, as Eisenhower stated, “put the facts on top of the table,” in the struggle to achieve liberty and justice for all. Succeeding commissioners insisted that presidents enforce the laws, and they held investigations that led to the Age Discrimination and Americans with Disabilities Acts.
The structure Congress enacted in the Reagan years makes it impossible for a change in direction within the next four years. However, the need for solutions is as urgent now as during the civil rights movement. We need a new commission.
Recession policy solutions require analysis of how African Americans are affected. Since 2004, by every measure the overall social and economic condition of ordinary African Americans has not improved. In the worst economic downturn since the Great Depression, they have substantially worsened in the last two years. There is a growing salary gap between black and white college graduates and an increase in the overall unemployment rate among African Americans. Job bias complaints increased at the EEOC with African Americans making up more than one-third of the complainants. There are questions about whether minority firms receive any public works contracts funded by stimulus money. Unless we address discrimination and equal access, African Americans will be left behind when the crisis recedes.
We are also faced with a hostile majority on the Supreme Court. Even with President Obama’s selection of Judge Sonia Sotomayor to replace Justice David Souter, the numbers don’t make a difference. A March decision emasculated Section 2 of the Voting Rights Act. The Supreme Court, in a 5-4 decision, ruled that ensuring districts are drawn in a way to maximize black and Latino candidates’ chances is legal only where they are over 50 percent of the population. The number of black elected officials is expected to decline.
We are about to witness a decision on Section 5, the preclearance provision that prevents recalcitrant states from making laws that suppress the black vote. A decision in the New Haven firefighters’ case is likely to further undermine affirmative action.
Congress and the president should convert the present commission into a bipartisan independent Human Rights Commission armed with subpoena power and devoted to the idea that people have a right to be treated fairly because of their humanity. The commission should make clear the connection between race, sex, disability, age, national origin, sexual orientation and religious discrimination, poverty and civil liberties concerns. The commission could also add policy toward undocumented immigrants and conflict over same-sex marriage and the “Don’t Ask, Don’t Tell” policy to its agenda.
A Human Rights Commission could also monitor the United States’ compliance with the international human rights covenants to which we are a party. Darfur and the existence and the extent of torture should be forcefully addressed.
We need independent-minded commissioners, with a structure designed to protect their independence. We need the Senate confirmation process to be re-established, so people can see who is being nominated and make objections. Such a commission could use the Obama presidency as a time to move forward on human rights rather than stagnate.
Mary Frances Berry is the Geraldine R. Segal Professor of American Social Thought and professor of history at the University of Pennsylvania where she teaches history of American law.