The Bush administration and civil rights: Lessons Learned

October 28, 2008Duke Law News

Oct. 28, 2008 — A civil rights expert offered Duke Law students a critique of the Bush Administration’s civil rights record on Oct. 22, decrying undue politicization at the Department of Justice, but finding some encouraging trends as well.

Goodwin Liu, law professor at the University of California-Berkeley and co-director of its Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity, a multidisciplinary think tank on civil rights law and policy, focused his analysis on racial equality issues and the Civil Rights Division of the Department of Justice (DOJ). The lecture was the third in the “Lessons Learned” lecture series co-sponsored by the Program in Public Law and the Duke Journal of Constitutional Law & Public Policy.

Politicization at DOJ affects civil rights enforcement
Liu said he chose to look at the administration’s civil rights legacy through the lens of DOJ’s Civil Rights Division because of its role as the civil rights enforcement machinery of the federal government.

“For five decades it has had a very venerable role,” Liu said. “The division established a legacy of federal leadership in promoting fair opportunity and equal citizenship for all Americans.”

Liu differentiated between the right of any presidential administration to “set priorities and shape enforcement” at DOJ, and the undue politicization that, he said, affected the Civil Rights Division during the Bush administration.

“In our constitutional system, executive discretion in interpreting and enforcing duly enacted laws, while very broad, is conditioned to a large extent upon technical competence and political accountability,” Liu said. “The delegation of law enforcement discretion is not an authorization to act on political whim. It instead assumes a degree of evenhandedness rooted in professional expertise and institutional tradition as well as the operation of checks and balances that subject important priorities to public scrutiny.”

Liu cited numerous instances of the political staff at DOJ overriding recommendations made by career staff, contrary to DOJ’s practice historically.

“The Bush administration has not only shifted enforcement priorities, but has done so in the context of a highly politicized and largely unaccountable decisional structure,” he said. “As a result, the division has taken positions antithetical to the interests of minority groups where the applicable law or available evidence counseled otherwise.”

The highly publicized politicization of DOJ’s hiring practices also affected the Civil Rights Division, Liu said, leading to “hiring of attorneys with strong conservative credentials but little experience with civil rights.”

Liu recommended better insulating career staff from politics, enhancing transparency in decision making, and pushing important decisions up the agency hierarchy in order to foster accountability, but cautioned against codifying or proceduralizing these protections for fear of “creating undue obstacles to presidential leadership and innovation.”

Avoiding politicization at DOJ, and specifically in the Civil Rights Division, is an important task, Liu said.

Affirmative action, No Child Left Behind, and Hurricane Katrina
Addressing specifics of George W. Bush’s civil rights legacy, Liu discussed his cabinet appointments, his involvement in the Supreme Court’s 2003 decisions on two cases involving affirmative action at the University of Michigan, the No Child Left Behind educational initiative, and the response to Hurricane Katrina.

Liu said that he believed the appointment of minorities to high-level cabinet posts was an encouraging trend. He was more ambivalent about the president’s treatment of the University of Michigan Supreme Court cases. Bush’s “perhaps unprecedented” decision to address the issue on national television and his administration’s amicus briefs couldn’t be viewed purely as a bone thrown to legal conservatives, for whom disassembling affirmative action was “one of the legal holy grails,” Liu said.

The president rejected affirmative action, calling it divisive and unfair, but Solicitor General Ted Olson’s amicus briefs “actually affirmed diversity as a compelling interest” for institutions of higher education, Liu said.

“By declining to urge a categorical prohibition on the use of race, President Bush disappointed conservatives who have long insisted that anything short of blanket rule will invite universities to engage in more and more creative forms of affirmative action, so it must have been particularly galling to those conservatives that the Supreme Court, in upholding educational diversity as a compelling interest, directly quoted part of the administration’s brief,” he opined.

Liu said that No Child Left Behind (NCLB) was essentially a civil rights statute because it marked “the first time that narrowing the achievement gap is a codified national policy goal.” NCLB calls for race-specific data, which keeps averages at schools with a mix of races and income levels from masking disparities, and also requires that achievement gaps be addressed whether or not there is a finding of discriminatory intent. “These are no small thing in light of general fatigue with race in legal doctrine and in our public culture,” Liu said.

However, NCLB’s data-collection methods don’t yield much new information in schools and school districts where most children are disadvantaged minorities, and “the policy levers are woefully mismatched to the scale and severity of the challenges,” he said.

Hurricane Katrina was a missed opportunity for the Bush administration to address civil rights broadly, and capitalize on the “cleavages of race and class” exposed by the storm.

“It is not often that a nation is forced to confront its shortcomings so prominently and pointedly,” Liu said. “The media images of Katrina, and who could forget them, left us with nowhere to hide. We could not shift our gaze elsewhere. In that moment of rapt attention and, dare I say, empathy, there was opportunity to unite the nation behind a new agenda to attack poverty and racial inequality, there was a window n which a leader could have stood up and said ‘This is not right.’ But the moment passed and so did the opportunity.”

Pamela Karlan, professor of public interest law at Stanford University, will address the Bush administration’s voting rights record in the next “Lessons Learned” lunchtime lecture in room 3041 on Friday, Oct. 31.
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