Several dozen advocacy organizations have recently promoted a high-profile proposal to “fix” the U.S. Commission on Civil Rights. Their goal is to change the name of the commission to “The U.S. Commission on Civil and Human Rights” and to authorize the new commission to monitor U.S. compliance with international human rights treaties. At the same time, the current commissioners would be terminated, and the President would be authorized to appoint a new slate subject only to senate confirmation. The primary advocate of this plan is none other than former commission chair Mary Frances Berry, who developed the concept in her 2009 book, And Justice for All: The United States Commission on Civil Rights and the Continuing Struggle for Freedom in America. Popular with Democratic congressional staff, the Berry plan has been actively promoted by a large coalition led by the American Civil Liberties Union, the Leadership Conference on Civil and Human Rights, the American Constitution Society, and a new group formed precisely to advance this proposal, the “Campaign for a New Domestic Human Rights Agenda".
Established by President Dwight David Eisenhower under the Civil Rights Act of 1957, the Commission is an independent, bi-partisan fact-ﬁ nding agency. Charged with investigating a wide range of discriminatory conduct, but given no enforcement powers, the agency has long functioned as a research institution or think tank, issuing reports and railing from the bully pulpit.
During its ﬁ rst quarter century, the Commission probed racial and ethnic bigotry in the United States, laying the groundwork for landmark legislation such as the Civil Rights Act of 1964, the Fair Housing Act, and the Voting Rights Act. All along, powerful ﬁ gures have tried to derail its investigations, which have often provoked strong outcry among those charged with bias. For example, John and Robert Kennedy connived to obstruct the commission from undertaking ﬁ eld hearings in Mississippi during the early 1960’s for fear that this would alienate or embarrass Southern Democrats in Congress. Th e Commission’s courageous work during this period earned it the title of “conscience of the nation on civil rights.”
For much of its second quarter century, the Commission’s record was much spottier. During this period, marked by Commissioner Mary Frances Berry’s long tenure, the Commission was known instead as a “Mickey Mouse agency” and as “Little Hanoi on the Potomac.” Berry gained notoriety for her support for Maoist educational and Soviet social policy, as well as her insistence that civil rights laws do not apply to white men. Late in Ms. Berry’s tenure, the General Accounting Oﬃ ce reported that the Commission was “an agency in disarray” lacking even “basic management controls.” Berry fought and lost a legal battle to prevent one of President George W. Bush’s appointees from being seated to the Commission. When her last term expired, Berry initially threatened to stay on longer, disputing the executive and judicial branches’ interpretation of the period of commissioner terms.
In December 2004, conservatives were appointed to a majority of the Commission’s seats (including Dr. Berry’s former seat) as well as to the oﬃ ce of Staﬀ Director. In 2007, Th e Wall Street Journal lauded the agency, stating that it “deserves a medal for good governance” after achieving back-to-back clean ﬁ nancial audits. At the same time, the Commission refocused its agenda on a wide range of topics important to conservative civil rights advocates, such as “religious freedom, school choice, Title IX reform, voter fraud, the impact of economic regulation on minority employment, and the impact of illegal immigration on black employment.” Th e Commission has also addressed, during this period, various other topics not generally associated with the conservative civil rights agenda, such as the misdiagnosis of racial minorities for special education, discrimination against Native Americans in border towns, and the eﬀ ectiveness of historically black colleges and universities.
More controversially, perhaps, the Commission also issued a series of important reports during this period which challenge an array of assumptions concerning the governmental application of racial preferences, e.g., that racial diversity produces demonstrable educational beneﬁ ts; that preferences actually help black students; that the American Bar Association’s diversity standards comply with federal law; that the Akaka Bill on native Hawaiian sovereignty does not amount to racial balkanization; that the Justice Department increases re-segregation when it releases Southern school districts from desegregation orders; that federal agencies comply with their constitutional obligation to seriously consider race-neutral alternatives before resorting to preferences in government contracts; and that the temporary provisions of the Voting Rights Act of 1965 are as necessary today as when they were ﬁ rst enacted.
As two conservative Commissioners observed, the Commission’s new agenda asks this question of racially preferential governmental policies: “Should the principle of non-discrimination be temporarily sacrificed in the hope that such a sacriﬁ ce will, in the long run, help us become the society of equal opportunity that we all aspire to?”Th at is to say, the Commission has challenged the underpinnings of federal aﬃ rmative action policy at its roots and in many of its branches.
Most recently, the Commission has repeatedly prodded the Justice Department to explain why it dismissed its complaint against the New Black Panther Party and three of its members after a Philadelphia federal judge entered default judgments against the Black Panthers. In this case, the Black Panthers were videotaped holding nightsticks and hurling racial epithets and threats at voters during the last presidential election. The Commission’s persistent requests, backed by subpoenas, have clearly hit a nerve, as the Obama Justice Department has refused to comply with the Commission’s subpoenas despite a statutory obligation to cooperate. In another important example, the Commission’s conservative members sent a public letter to President Obama and the congressional leadership detailing the racially discriminatory aspects of the Senate health care bill.
In light of this history, there are logical political reasons why change would be sought. The Commission’s last authorization expired on September 30, 1996. Since then, the Commission has only survived as a creature of annual appropriations and inertia. Th is fact provides the opening for the agency’s congressional critics to “ﬁ x” it during the course of reauthorization legislation.
Mary Frances Berry’s idea is that “the commission could be converted into a human rights commission devoted to the idea that all people have a right to be treated fairly because of their humanity, as suggested by former commission chair and Notre Dame president Father Th eodore Hesburgh during his tenure.” To the extent that the “ﬁ x” would substantively change the Commission (apart from authorizing President Obama to wipe out the current conservative commissioners), it is by providing that the new Commission “could also monitor U.S. compliance with the international human rights covenants to which we are a party and encourage adoption of those we have not approved.”
Berry proposes this fix in her 2009 history of the Commission, And Justice for All: Th e United States Commission on Civil Rights and the Continuing Struggle for Freedom in America, and in various subsequent pieces. Given Berry’s controversial tenure at the Commission, it is not surprising that the critical reception of her treatise has not been entirely kind. As Samuel G. Freedman observed in his New York Times book review, Ms. Berry “may have been the wrong person” to provide a dispassionate account of the Commission’s history. Yet part of her book that has received traction has been her suggestion to replace the current Civil Rights Commission with a new U.S. Commission on Human and Civil Rights.
Th e Leadership Conference Report, which echoes Dr. Berry’s proposal, argues that “changing the commission’s name to reﬂ ect the human rights dimension of its work would make more explicit its obligation to examine U.S. compliance with these international treaties as part of its existing mandate to examine compliance with civil rights laws.” The Leadership Conference adds that “a United States Commission on Civil and Human Rights could help bolster the United States’ leadership role in protecting human rights around the world.”