Civil Rights Wronged

“The accusations—90 percent of them—fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’” This utterly false and misleading statement was made to The New York Times by President Donald Trump’s acting assistant secretary of the Education Department’s Office for Civil Rights, Candice Jackson, the woman responsible for overseeing enforcement of the federal law requiring schools to act promptly and effectively to address sexual assault.

Jackson’s statement is one of many signs that civil rights and women’s rights in the U.S. are under attack, not just in Congress and state legislatures, but behind the scenes in the executive branch agencies tasked with enforcing civil rights laws. The breadth of this attack is dramatic and alarming, occurring in the departments of Justice, Labor, Education, Housing, and Health and Human Services, as well as the Environmental Protection Agency. The president has strong influence over this vast federal bureaucracy through political appointments and budgets. While headlines focus on Congress’ attempt to repeal Obamacare or the latest Supreme Court decisions, much of the damage being done to civil rights is occurring at these executive branch agencies.

Rights are only as good as the mechanisms for their enforcement. At the administrative level of the executive branch and in the lower trial courts, rights on paper become rights in fact. Federal government agencies issue regulations and guidelines interpreting civil rights laws, determine procedures for their enforcement, conduct investigations and, ideally, resolve cases. It is through these agencies that Trump is pursuing a governmentwide effort to weaken the enforcement mechanisms for civil rights and women’s rights in the U.S.

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How is he doing it? For starters, Trump instituted a hiring freeze and has proposed budget cuts that would impose staffing reductions on federal agencies tasked with enforcing civil rights in employment, education, housing, health, voting rights and police practices. Though the budget he sent to Congress was dead on arrival, it does indicate where his administration is headed. Each of these cuts would squeeze civil rights enforcement offices across the country. These “are jaw-dropping proposals and they are wildly disrespectful of the long-standing consensus that we have had from Congress and across the nation that there needs to be a meaningful federal backstop to protect and enforce civil rights,” says Catherine Lhamon, formerly the assistant secretary for civil rights at the Education Department and current chair of the U.S. Commission on Civil Rights, whose mission is “to inform the development of national civil rights policy and enhance enforcement of federal civil rights laws.”

In addition to slashing budgets, Trump is appointing agency heads who appear to have no civil rights background. Nor do they believe in the missions of the agencies they lead. Some are openly hostile to civil rights and are obstructing enforcement of civil rights laws, like Attorney General Jeff Sessions at the Department of Justice (DOJ) and Betsy DeVos at the Department of Education.

And in February, Trump signed an executive order calling for “regulatory reform.” In response, Trump appointees at agencies regulating health, education, housing and the environment issued invitations to the public to submit suggestions for repeal, replacement or modification of regulations. The Education Department has already rescinded guidelines protecting transgender students in schools and is likely to oppose protecting gay, lesbian and bisexual students from discrimination under Title IX.

Under the Obama administration, the Education Department started to investigate sexual assault cases on college campuses more systematically, but DeVos and Jackson have abandoned that approach, which Lhamon describes as an “appalling turn away from meaningful civil rights enforcement” and a “colossal mistake.” Vanita Gupta, president of the Leadership Conference on Civil and Human Rights and former head of the Justice Department’s Civil Rights Division under President Barack Obama, adds, “We are deeply concerned that the Department of Education’s Office for Civil Rights has also been discouraging investigators looking into complaints of discrimination from asking whether the discrimination is actually systemic or whether it was an isolated experience.”

Jackson’s comment that 90 percent of sexual assault accusations are untrue “plays into the worst rape culture myths about women,” says civil rights lawyer Debra Katz . In fact, false reporting is extremely rare. Katz predicts that Jackson and DeVos will make it much more difficult for sexual assault survivors to bring claims to university hearing boards and to the Education Department. She notes this leaves only the courts, which are costly, slow and burdensome. All told, these changes would discourage reporting and decrease incentives for schools to diligently address sexual assault—creating a “real danger on college campuses,” Katz says.

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For those in the workforce, Trump’s budget cuts threaten the gains made in fighting sex and race discrimination in employment in both federal contracts and private-sector employment under President Obama. Trump has proposed significant cuts to the budgets of the Department of Labor and the Office of Federal Contract Compliance Programs (OFCCP), which enforces the mandate that federal contractors maintain a fair and diverse workplace for their employees. In Obama’s last year as president, the OFCCP adopted tough new rules against pay disparities, sex stereotyping, sexual harassment and pregnancy discrimination. It also set a 7 percent aspirational hiring goal for people with disabilities. Patricia Shiu, who led the agency under Obama, says she is “very concerned about the future of this agency.”

Trump’s proposed budget also nearly eliminates the Labor Department’s Women’s Bureau, which works to create parity for women in the labor force. “We fear that they will turn strategic resources toward the fallacy of ‘reverse discrimination,’” says Judy Conti of the National Employment Law Project. There is precedent for this—the Bush administration brought race discrimination cases on behalf of white people and religious discrimination cases on behalf of Christians. She further notes the Trump administration may also use federal agency resources to defend people who discriminate against women or LGBT people by claiming religious belief.

In late July, the DOJ filed a brief in a federal appeals court case, arguing that Title VII of the Civil Rights Act of 1964 does not protect against workplace discrimination on the basis of sexual orientation, and reports indicate that Sessions intends to halt affirmative action in college admissions. “Nobody would be surprised if these agencies which are supposed to promote and protect diversity and equality…are used at least to some extent as tools of preserving white supremacy,” Conti says. Particularly white straight male dominance. The disregard for civil rights extends even to voting rights. Under Obama, the DOJ strongly supported the NAACP’s challenge to Texas’ draconian voter ID law, which threatened to disenfranchise as many as 600,000 voters, most of them black and Latinx Texans. But earlier this year, the DOJ abandoned its support for the case, despite a trial court’s finding that the law was intentionally discriminatory.

“Not only has the Department of Justice stepped away from its role of prosecuting civil rights claims, most recently the Department of Justice actually stepped in to block our ability to get a remedy for intentional discrimination,” says Janai Nelson, associate director of the NAACP Legal Defense and Educational Fund. “It’s one thing to be passive and inactive in the pursuit of civil rights; it’s an entirely other thing when your government becomes a hostile and active tool in the denial of those civil rights.”

The Justice Department is also obstructing efforts to address police violence. In April, Attorney General Sessions attempted to delay a consent decree between the Baltimore Police and the Department of Justice. This came after the death of Freddie Gray while in police custody and in response to a highly critical 2016 DOJ report that uncovered widespread unconstitutional and discriminatory practices at the Baltimore Police Department. “The duty to uphold the ideals of our democracy,” Nelson says, “has now fallen to civil rights groups who do not have the same resources as the Department of Justice and are nonetheless holding the responsibility to ensure that our democracy is not compromised by a new wave of discriminatory laws.”

In addition to deprioritizing police violence, Sessions has reversed Obama-era policies to reduce federal reliance on private prisons. The attorney general is “trying to take us back to 1980s policies of mass incarceration that have been discredited by evidence from both the right and the left,” says former DOJ official Gupta.

This piece appears in the Fall 2017 issue of Ms. Subscribe today to read more of our feminist reporting.

 

Trump wants to eliminate the EPA’s environmental justice program tasked with addressing the disproportionate burden of environmental toxins on communities of color, low-income people and indigenous communities. His proposed budget entirely eliminates federal support for the Legal Services Corporation, which provides civil legal aid to low-income citizens and helps women with child custody disputes, housing discrimination and domestic violence. The impact of these policy reversals on communities will be “widespread and deeply felt,” Gupta says.

At the Department of Health and Human Services (HHS), Trump has appointed leading abstinence-education advocate Valerie Huber, former president of Ascend, as chief of staff for the Office of the Assistant Secretary for Health, along with two prominent anti-abortion activists: Charmaine Yoest as assistant secretary of public affairs and Teresa Manning, who has previously worked for the National Right to Life and the Family Research Council, as deputy assistant secretary for population affairs. Shockingly, Manning herself told NPR in 2003 that “contraception doesn’t work.”

In May, Trump directed HHS Secretary Tom Price to issue regulations creating a broad religious exemption from the Obama-era regulations requiring health insurance companies to cover contraception for women without copays. In July, HHS sent early termination notices to Teen Pregnancy Prevention Program grantees, unilaterally axing $213 million for programs that support teen access to sexual health information and health care to reduce sexually transmitted diseases and unplanned pregnancies.

These attacks on women’s access to reproductive health care and information will result in increased maternal and infant mortality and morbidity rates, increased rates of sexually transmitted infections and increased unwanted pregnancies, says Eleanor Smeal, president of the Feminist Majority Foundation and publisher of Ms. For young women, she says, “This will cut off their chances for education and job advancement, and essentially confine them to more poverty.” The Trump administration is “actively taking away protections that help the most vulnerable people amongst us,” adds Randi Weingarten of the American Federation of Teachers. “[It’s a] triple whammy against regular folks.” Women, people of color, disabled people, immigrants, poor and working-class people, children—all will suffer.

Weingarten points to proposed cuts in Medicaid funding that helps special needs children join traditional classrooms and the disinvestment in public education through school vouchers. Vouchers treat public education as a commodity to be traded on the market for profit as opposed to “a public good foundational to our democracy” that should be available to everyone, says Weingarten. Additionally, Trump and DeVos’ support for privatizing the public schools through vouchers will accelerate both race and gender segregation in public schools and charter schools, which opens the door further to unequal resources and sex stereotyping. “In 2020, minorities will be the majority of children in our country,” says the Legal Defense Fund’s Nelson. “[W]e must invest in the well-being, livelihood, education and the welfare of people of color if we want this nation to sustain itself as a leading democracy.”

At the college level, Trump and DeVos want to make education less affordable by decreasing protections for student borrowers and cutting programs that exchange public service for loan forgiveness. And DeVos’ failure to address the student debt crisis disproportionately harms women, who hold nearly two-thirds of all student debt in this country.

 

 

Trump’s open hostility to civil rights discourages reporting of violations to the federal agencies. For example, “immigrant workers are terrified to go to the federal Department of Labor to report unsafe working conditions or unpaid wages because they are pretty sure if they do, [Immigration and Customs Enforcement] is going to get a phone call and they are going to be arrested and deported,” says Conti of the National Employment Law Project. She emphasized the importance of this to all workers: “If we allow employers to always undercut the market and undercut the legal system by hiring and abusing undocumented workers then there’s no incentive to hire people who are documented or citizens and pay them fair wages and give them safe working conditions… If you want to protect the American worker, you have to protect the immigrant worker first.”

When executive branch agencies fail to do their jobs, individuals can file lawsuits in the courts, but this can be costly and time-consuming. And this last bastion of civil rights enforcement is also under threat from the Trump regime. The refusal of Senate Republicans to confirm President Obama’s appointment of Merrick Garland to the Supreme Court and the slowdown on approval of his judicial nominations to the federal courts has left more than 100 vacancies for these lifetime positions, giving Trump a broad opportunity to shape the federal courts for decades to come. Trump’s Supreme Court appointment, Neil Gorsuch, has a record of hostility to civil rights and access to justice. With the abandonment of the Senate filibuster rule for both Supreme Court and lower court federal judicial appointments we are likely to see a significant rightward turn in the federal judiciary.

“This administration has turned its back on the progress this country has been making toward civil rights advancement, and its effect is being felt most acutely by the most vulnerable, namely women and girls, the elderly, the disabled and those seeking citizen status,” says Nelson. The refusal to enforce the country’s civil rights laws will cost women their jobs, their education, their health and their safety.

And why does the administration have such hostility to civil rights? “This is fundamentally about making money,” Smeal says. Business interests want access to public funds for their enterprises, whether it’s profit-making charter schools, privately owned prisons or government corporate contracts to build roads or fight wars. And they want public money with no strings attached, meaning no costly requirements to pay a fair wage, maintain a diverse workplace or meet the needs of disabled students.

By attacking workplace equality, unions, educational equity and reproductive health care, the Trump administration increases the number of vulnerable and pliant workers, which is very profitable to business. “They want to say the lack of access to abortion and birth control is a moral question but it’s a money question for them—they are keeping a cheap labor pool,” Smeal says. Their refusal to expand legal immigration, despite a clear need for workers by U.S. businesses, makes the problem worse by increasing the number of undocumented workers.

When corporations don’t pay a living wage, workers need government programs like Medicaid and food stamps to make ends meet. These programs support corporate profits, yet the wealthy condemn the poor as irresponsible and dependent for relying on these programs and call for cuts. “It’s not good enough that they are cheating people out of their money,” Smeal says, “but they want to feel morally superior about it.”

The gutting of labor and environmental regulations, the erosion of public education and voting restrictions reflect the Republican Party’s contempt for democracy, equal opportunity—and even the rule of law. These policies allow a wealthy minority inordinate political control, exemption from the law and access to public resources for private gain, contrary to the interests of the common good.

How do we resist the rollback of civil rights enforcement? Pay attention, speak up and hold government officials accountable, urge many activists. “These aren’t nameless, faceless people,” Conti says. “A lot of policy and law that touches the lives of people on a day-to-day basis is made in the agencies and the courts, and people should be paying attention.”

Smeal warns against distractions by the media feeding frenzy on Trump’s latest tweets. She suggests people use Twitter, Facebook and other social media to counter Trump’s monopolizing of the headlines and expose his administration’s “massive attack on civil rights…women’s rights and disability rights.” She also urges people to join groups, get active, go to rallies and marches and talk to their representatives.

Gaylynn Burroughs, Feminist Majority Foundation’s policy director, calls for regulatory engagement— which can include signing up for agencies’ email and text alerts, submitting comments on proposed rule changes and contacting agency heads about budget decisions and agency priorities. Lhamon encourages people to contact the U.S. Commission on Civil Rights, a bipartisan agency funded by Congress and tasked with advising the president and the legislature on matters of civil rights. Led by Lhamon, it is conducting a two-year investigation into federal civil rights enforcement under Trump.

“Our only hope is for people to come together and organize and fight strategically,” Conti says. “People can’t throw up their hands and say it’s hopeless, because they have tremendous power to stop really bad things from happening and they need to exercise that power. It could be a long four years, and people need to steel themselves to fight for the entirety of it.”

baker_130Carrie Baker is Associate Professor and Director of the Program for the Study of Women and Gender at Smith College.

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Comments

  1. Thank you so much for writing this, Carrie. It’s been a few years since I was in your class, but you continue to educate me on the things that matter.

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