Reviving Civil Rights Enforcement ... It's About Time!
Thursday, September 10, 2009
- Asian Pacific American Legal Center
Under the nation’s first African American President and U.S. Attorney General, a much welcomed reinvigoration of our federal government’s commitment to civil rights is underway. As a civil rights advocate, I applaud the DOJ’s refocusing on civil rights and urge that the DOJ’s Civil Rights division, which was established in 1957 during the era of massive civil rights changes, reprioritize its original mission of fighting racial discrimination.
In the mid-1900s, as racial discrimination was dismantled in education, voting, housing, employment, and even marriage, the federal government and the U.S. Department of Justice stood for equality and justice. But over the past four decades, and particularly during the most recent eight years, the terms “federal government” and “DOJ” have stopped being synonymous with advancing equality or justice as the DOJ shifted its priorities and reigned in its civil rights prosecutions. In that time, the DOJ’s Civil Rights division shifted from being at the vanguard of championing the rights of the most vulnerable in our society and taking on those who perpetuate systemic discrimination to focusing on issues like freedom of religion that do not clearly benefit vulnerable populations, or human trafficking which targets individual actors instead of institutions. The DOJ’s own Bureau of Justice Statistics released a 2008 report showing that the number of civil rights cases brought by the department dropped by 21% from 2000 to 2006.
As Attorney General Eric Holder steps up his leadership and commitment to revitalizing civil rights, Asian Pacific Americans have an unprecedented opportunity to help support and shape the future direction of American civil rights. In the coming weeks and months, APAs should engage in this “revivial”– and we should also insert our unique voices and experiences into the debate. Among the top priorities should be:
- Confirming the nominee for the Assistant Attorney General for Civil Rights – Tom Perez, currently the Maryland Secretary of Labor and a former DOJ civil rights lawyer as well as former special counsel to the late Senator Edward Kennedy, was nominated months ago but has yet to be confirmed by Congress. For Attorney General Holder to truly renew DOJ’s civil rights enforcement, he needs his chief civil rights lawyer in place. Members of Congress need to prioritize Tom Perez’s confirmation and as constituents, we should urge our Congressional representatives and Senators to prioritize his confirmation.
- Increasing capacity of both the DOJ and federal agencies to protect civil rights – Since taking office, the President has committed to adding resources to the DOJ for civil rights enforcement – this is heartening to hear as decades of funding cuts in civil rights enforcement have left both the DOJ and federal agencies with limited capacity to meet a revitalized enforcement agenda. In addition, federal agencies charged with enforcing civil rights laws must also refocus their missions and receive adequate resources to recommit to civil rights. For example, the U.S. Department of Health & Human Services’ Office of Civil Rights was charged starting in 2003 with enforcing the Health Insurance Portability and Accountability Act of 1996 (HIPAA) in addition to enforcing race, national origin and disability-based discrimination. As a result, privacy complaints now dominate most of the HHS OCR offices. Ensuring that federal agencies – as well as the DOJ – reprioritize civil rights enforcement is critical. As the recent federal stimulus packages pump billions of dollars into the American economy, these federal agencies will touch more “average” Americans than the DOJ, through their enforcement of non-discrimination in federally-funded programs in education, employment, housing, health care, etc.
- Expanding federal civil rights to be more inclusive of changing demographics – The civil rights movement of the 1960s opened up immigration from Asia and Latin America and the changing demographics have reshaped ideas of civil rights and racial justice. As the federal government recommits to civil rights, we must ensure that civil rights protections for immigrants and limited English speakers are enforced and expanded. For example, Title VI of the Civil Rights Act of 1964 protects those who are limited English speaking – this has a profound impact in places such as hospital emergency rooms, which must provide interpreters to limited English speaking patients so they can communicate with doctors and hospital staff. As a community, APAs are more than 2/3 foreign-born and a majority is limited English speaking, so the enforcement of Title VI is particularly critical to the APA community. In July, the DOJ hosted a Title VI enforcement conference in Washington, D.C., to celebrate the 45th anniversary of the Civil Rights Act. Shockingly, it was only the second time that the DOJ has held such a convening since the Act’s passage. While DOJ and federal agencies are responsible for enforcing Title VI, we as the APA community must hold them accountable. Furthemore, APAs should also advocate for the inclusion of other communities at the margins of federal civil rights enforcement – for example, APAs should support legislation that allows federal recognition of marriage equality or adds gender, sexual orientation and disability to federal hate crimes laws. APAs are inextricably linked to other communities and social justice fights, and losing the war on one front affects the battles along all of the others.
- Removing barriers to private litigation of civil rights claims – Although a rejuvenated (and better funded) civil rights arm of the federal government is critical to reviving civil rights in the U.S., there is one important tool that lies outside of the DOJ and federal agencies. In 2001, the U.S. Supreme Court ruled in Alexander v. Sandoval that private parties cannot bring lawsuits alleging “disparate impact “ discrimination – meaning claims that are discriminatory in impact but neutral on its face. After Sandoval, only the federal government can enforce such claims. Private lawsuits, even those brought by public interest groups, can only be brought on the basis of intentional discrimination. In this day and age, government and corporate policies are not usually so overt and apparent. Sandoval must be corrected because even with additional resources, the DOJ and federal agencies cannot be the only option for challenging policies and practices with discriminatory impact.
Karin Wang is Vice-President of Programs at the Asian Pacific American Legal Center (www.apalc.org). For a longer comment on the Obama Administration’s opportunities for revitalizing civil rights, see “Re-envisioning Civil Rights” by Karin Wang and Vincent Eng, originally published as part of the Applied Research Center’s “The Compact for Racial Justice” in November 2008: www.arc.org/content/view/594/1/#compactcontents