Make Discrimination Legal Again?

This train doesn't stop there anymore.

Speeding NYC Subway Train with American Flag [Photo credit: Hisham Ibrahim/Getty Images]

Last week’s “Big Voice Wednesday” featured The Daily’s “The Case of Kristie Metcalfe,” an important example of how the Department of Justice’s Civil Rights Division is abdicating its responsibility to enforce our civil rights laws by withdrawing, without justification, a lawsuit involving blatant racial discrimination filed under the Biden administration. Sadly, Ms. Metcalfe’s case is not the only one. It’s part of a larger pattern of diminishing civil rights enforcement by the Division, which I noted in an earlier post, Grieving the Crown Jewel.

The Division has abandoned at least 55 cases to date; withdrawn from consent decrees involving excessive use of police force and environmental justice; terminated investigations — or, in the shooting of Renee Good, failed even to initiate one — into alleged civil rights violations; dismantled the Community Relations Service, which specialized in de-escalating crises between communities and law enforcement; and, rescinded the disparate impact regulations promulgated to enforce Title VI of the Civil Rights Act of 1964 without giving the public notice and an opportunity to comment as is typically required by law.

Combined with the many Executive Orders issued from the White House targeting Diversity, Equity, and Inclusion initiatives, as well as high-level officials’ remarks espousing the “great [white] replacement theory” (Vice President J.D. Vance) or, slightly more subtly, “civilizational erasure” (Marco Rubio), it’s clear this administration and the Republican party are perpetrating a full-scale, governmental assault on civil rights protections for minorities, particularly persons of color, by falsely asserting that white people, and white men, especially, have been unfairly treated. The implication is that minorities haven’t gotten employment or other opportunities based on merit, but because of “woke” preferences.

Lest you wonder why I am including the entire Republican party and not just the current administration, it’s because the Republican party on the whole has been targeting civil rights laws, particularly the Voting Rights Act, as well as stoking fear, racism, and extremism, for decades. The Republican party’s efforts to diminish civil rights enforcement was confirmed by DOJ’s Assistant Attorney General and head of the Civil Rights Division, Harmeet Dhillon, in her remarks to the Federalist Society last May. Dhillon acknowledged that Republican administrations in the past have tried to “slow things down,” an approach she deemed insufficient, instead calling for a “paradigm shift”:

Under President’s Trump’s leadership, we have a generational opportunity for a reformation within civil rights, one that reflects the will of all the American people. The usual approach under Republican administrations, many of you will be familiar with this, has been towards what some would call the color revolution wing of the DOJ. [It’s] been to sort of just try to slow things down . . .. There really hasn’t been a focus on turning the train around and driving it in the opposite direction. And that’s my vision of the DOJ civil rights [Division]. * * * We don’t just slow down the woke. We take up the cause to achieve the Pres - the Executive branch’s goals. This is the opportunity where we can ensure that our nation’s civil rights laws benefit all Americans, not just a select few.

[If you want to listen to the remarks yourself, the pertinent section runs from the 6:00 minute mark to the 8:00 minute mark.]

Per usual with this administration, none of these claims is supported by the facts. Recent Pew research showed that almost 3/4 (70%) of white Americans surveyed believe that Black people face “some” to “a lot” of discrimination in general and about 2/3 (65%) of them believe that of Latino and Asian Americans. Less than half (43%) of white people surveyed believe that white people face the same level of general discrimination. According to sociologist Fred Pincus, “[i]n other words, white Americans believe that people of color, as a group, face more discrimination than white people do. People of color agree — and so do Americans overall.” As Pincus points out, there is good reason for Americans to believe this — it’s backed up by the hard data. White Americans still earn significantly more overall than Black and Latino Americans, including when controlling for education, and Black and Latino Americans have significantly higher rates of unemployment than white Americans.

The facts, however, haven’t stopped this administration from consistently perpetuating the myth that white Americans are somehow disadvantaged. Among Republicans, it’s working, with an uptick in Republicans who believe white people are higher victims of discrimination than persons of color. To further bolster the illusion of “reverse discrimination” against whites, the chair of the Equal Employment Opportunity Commission (EEOC) took to Twitter to invite white men, specifically, to file sex and race-based discrimination complaints, even though they already do, albeit at much lower rates than females and persons of color because such discrimination against them is, statistically, a rarity.

I suspect the Trump-controlled EEOC, though, will miraculously find that discrimination has occurred for those white men answering the call to file complaints — regardless of whether there’s merit (to be clear, if there is merit then recourse is justified) — just as the EEOC, HHS, and DOJ’s Civil Rights Division continue investigating companies and universities that still retain DEI policies. The investigations are largely a farce to intimidate the companies and institutions, and to stoke fear and anger in order to further divide Americans. Yesterday, we learned through an inadvertent blunder by Dhillon’s office that the Division’s latest racial discrimination investigation is into Ohio State University’s College of Medicine.

The attempts by the administration, spearheaded by the Civil Rights Division, to make discrimination against anyone but white men acceptable is not inevitable. There are many pushing back against and exposing these efforts to eliminate the hard-fought gains of minority groups in this country. Early on, former DOJ attorneys across multiple divisions, followed by former Civil Rights Division attorneys, issued warning letters to the public. Also, Justice Connection, headed by former DOJ attorney Stacey Young, who was this week’s guest for Big Voice Wednesday, is doing important work to educate the public and to support former DOJ attorneys.

Additionally, a new project was launched that’s spearheaded by former Civil Rights Division career attorneys and staff, called Red Line for Civil Rights. It’s another useful tool available to inform the public and document the damage being done to our civil rights. It tracks the DOJ’s rapid rollback and politicization of civil rights enforcement and summarizes the DOJ’s previous work and positions in comparison to the current DOJ’s stances across multiple subject areas: Criminal Enforcement, Disability, Education, Employment, Housing and Government Services, LGBTQI+, Policing, Reproductive Healthcare, and Voting. It lists those cases withdrawn that represent a meaningful shift in the DOJ’s approach to civil rights enforcement.

And it doesn’t stop there. The Civil Rights Act of 1964, the Voting Rights Act of 1965 (at least for now), the Fair Housing Act of 1968, the Americans with Disabilities Act, and others, as well as state civil rights laws, are still the law, despite the federal government’s abandonment and attempted distortions of them. States and civil society organizations like the ACLU, Democracy Forward, and others, are picking up some of the slack, as well as successfully pushing back against discriminatory actions by the federal government (see, for example, a multi-state effort led by the New York Attorney General’s office successfully challenging an HHS declaration against gender-affirming care). And, in most instances, individuals can still bring private lawsuits, which is what Kristie Metcalfe is doing now.

I’m not naive. Losing the power of the Civil Rights Division as an enforcer of civil rights is a big blow, though there is still some good “typical” civil rights enforcement being done there. And I’m well aware of our nation’s dark and troubled history of “othering” minority groups, especially racial minorities, and that we’ve never fully rectified it. We have yet to achieve full equality and inclusion for all Americans and there are still way too many Americans so steeped in their own fear, insecurity, arrogance, or ignorance that they maintain bigoted views.

But we have made significant, if not linear, progress. I refuse to believe that the struggles and social movements for human rights borne by Black Americans, women, persons with disabilities, and LGBTQ+ persons have been in vain. Let’s make sure this administration and their supporters find out that, despite the many flaws and barriers we still need to overcome in achieving equality for all, we refuse to allow discrimination to become legal again. We must show them that we will not allow “the train” of civil rights for everyone, especially minority groups, to be driven in the opposite direction — to where, back to Jim Crow? This train can’t and won’t stop there anymore.*

One step at a time,

Ronda

*If you’re a big fan of Sir Elton John’s music like I am, you’ll love his song “This Train Don’t Stop There Anymore” from his album Songs From The West Coast.

The music video featuring Justin Timberlake is pretty cool, too.