Strategies of civil rights groups lag election results

Original Reporting | By Mike Alberti |

November 16, 2010 — The Republican takeover of the House in the midterm elections has left civil rights groups with little doubt that the federal legislative environment is going to be more hostile to the initiatives these organizations have traditionally advanced. Nevertheless, few of the country’s largest and most influential civil rights groups appear to have concrete plans to adapt to the new environment, except to the extent of either going on the defensive or shifting from federal legislative to federal administrative efforts.

Given the composition of the newly-elected Congress, said Korstad, “I can’t imagine any kind of expansion of civil rights in any kind of meaningful way.”

Specifically, most groups said that they had not planned to shift their proactive efforts to expand civil rights protections toward state and local arenas, though many acknowledge that opportunities for passing progressive legislation do exist in a variety of jurisdictions.

According to Robert Korstad, professor of Public Policy and History at Duke University’s Sanford School of Public Policy, that approach might be misguided.

“I think a lot of the action in the coming years, particularly given the gridlock at the federal level, is going to be back in the states,” he said.

Michael Macleod-Ball, the Washington Legislative Chief of Staff for the American Civil Liberties Union (ACLU), said, “there have been [conservative] gains starting at the local level going back a couple of decades, and I think that those on the other side of the ideological agenda have not been as efficient in making the case at the state and local level.”

“If you look at the American trend from Reagan on,” Macleod-Ball continued, “there’s been a vigorous effort on the part of those who are opposed to a lot of our issues to empower themselves first at the local level. I think that progressives have generally been pretty good about being competitive at the federal level,” but suggested that they had not been as vigilant on the state and local level.


Going on the defensive

The most widely cited reason to continue with a federal focus was the perceived need to go on the defensive.

Tanya Clay House, director of Public Policy for the Lawyer’s Committee for Civil Rights Under Law, said that the organization’s plans are still being decided, but many organizations are harking back to the Bush years in thinking about how to move forward. “There was a lot of opposition to a proactive civil rights agenda,” she said. “What we were doing was playing defense. We already have a pretty good understanding as to what we should be expecting.”

Terry O’Neill, President of the National Organization for Women (NOW), echoed that statement, saying, “It’s not rocket science, we’re going to be attacked, we need to defend.”


Still hoping on the federal level

Raul Gonzalez, director of Legislative Affairs for the National Council of La Raza, said that, “Our shift isn’t going to be major. We’re going to still try to work with the new Congress just like we did with the old Congress.”

Other groups said that they, too, have not yet given up hope for advancing federal progressive legislation in the new Congress.

“I don’t think we should assume that there aren’t ways to find bipartisan majorities to move fundamental civil rights issues, although it remains to be seen what those are,” said Margery F. Baker, executive vice-president for Policy and Program for People for the American Way.

Macleod-Ball of the ACLU cited education reform and patent reform as two areas where his organization was hoping for success in the new Congress.

Lisa Jacobs, the vice-president for Government Relations at Legal Momentum, a women’s advocacy group, cited the renewal of the Violence Against Women Act as an issue where there was broad consensus across the aisle.

State and local civil rights laws sometimes provide more protection than federal enactments

From the point of view of civil rights organizations, an obvious limitation to state and local civil rights efforts is that many people live in relatively conservative jursidictions where it would be futile to expect to go beyond federal protections. Neverthless, there are numerous illustrations of anti-discrimination protections that are stronger at the state or local level than on the federal level.

  • Many state and local civil rights laws provide protection against employment discrimination based on sexual orientation, marital status, arrest record, or criminal conviction, protections not available federally.
  • Housing discrimination based on age and lawful source of income is prohibited by the laws of some states and localities, but is not prohibited by the federal Fair Housing Act.
  • Emotional distress and punitive damages are limited in gender- or disability-based employment discrimination cases brought under Title VII or the ADA, both federal enactments. Some states and localities, in constrast, provide for uncapped damages of both types.
  • Millions of employers with fewer than 15 employees are not covered under federal anti-discrimination law, but are covered under state and local laws.
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