Reviewing The Test of Our Progress: The Clinton Record on Civil Rights: A Summary of the Citizens' Commission on Civil Rights Report

By Barry E. Lee

Vol. 21, No. 2, 1999, pp. 12-18

Thirty-one years since the Kerner Commission observed that "our nation is moving toward two societies, one black, one white-separate and unequal," comes an updated warning by the bipartisan Citizens' Commission on Civil Rights in its 1999 report The Test of Our Progress: The Clinton Record on Civil Rights. "No one can deny," the Citizens' Commission observes "that much progress has been made since the Kerner Commission made its dire predictions. But . . . it is clear that many in our nation remain untouched by the civil rights laws and the access to service and opportunities that would make them full participants in society."

Race remains a major determinant in American life, and complicating the picture even more than in the late 1960s, is the reality that the disparities are no longer between blacks and whites, but also involve Asian Americans, Latinos, and Native Americans.

When Bill Clinton became president in 1992, advocates of civil rights waited hopefully as he promised to assemble a cabinet that "looked like America." After twelve years in which the Reagan and Bush administrations alienated minorities from public policy- making through their stacking of federal courts with conservative appointees and encouraging a climate of racial intolerance-civil rights advocates welcomed Clinton's recognition of America's diversity.

What has seven years of the Clinton Administration accomplished in terms of civil rights? The Citizens' Commission's recently released study, The Test of Our Progress, is an evaluatuion of Clinton's civil rights record.

The Citizens' Commission was founded in 1981 after President Reagan removed the late Arthur S. Fleming as chairman of the U.S. Commission on Civil Rights. Fleming, along with a colleague from the Commission, William L. Taylor, created the Citizens' Commission on Civil Rights. Bipartisan in nature, the Commission is composed of seventeen members, chosen from the ranks of government, business, or other arenas where civil rights were a high priority. New members are chosen by the current members and there are no term limits.

Published in 1999, The Test of Our Progress is a two-part study. Part one is a report on the response of the Clinton Administration and Congress to civil rights challenges and a series of recommendations. The second part is composed of working papers by authors considered knowledgeable by the Commission in particular areas of civil rights.

Many of the authors are lawyers, public policy experts, or advocates otherwise engaged in civil rights issues, including Todd A. Cox, a voting rights and school desegregation litigator with the NAACP Legal Defense and Educational Fund, and Nancy Krieter who is research director of the Chicago-based organization Women Employed Institute, an agency focused on female employment issues and poverty among women. The Test of Our Progress was co-edited by Corrine M. Yu, director and general counsel of the Commission, and by William L. Taylor, who is the vice chair.

Below are short summaries from the report of the Clinton record in the areas of justice administration (judicial nominations and confirmations), enforcement of voting rights, equal employment opportunity, affirmative action, educational equity, and the effectiveness of the U.S. Civil Rights Commission. Portions of the summaries that are in italics reflect my viewpoint.

Justice Administration

By the beginning of Clinton's second term, the nominations and confirmations of federal judges became the scene of intense partisan fights, resulting in a trickle of confirmations and a backlog of delayed court cases. Not


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only did the Senate refuse to consider some nominees, but the Administration was also slow to nominate candidates for the federal bench. According to Elliott Mincberg and Tracy Hahn-Burkett, authors of the working paper "Judicial Nominations and Confirmations During the First Half of the Second Clinton Administration," President Clinton initially sought to "increase diversity on the federal bench, particularly in light of the extremely low numbers of women and minorities appointed by Presidents Reagan and Bush." But the politicization of the process prompted Clinton to surface an additional criterion: the nomination of "centrist" candidates who would not likely produce controversy during confirmation.

By late 1997, Clinton pledged to make the nomination and active support of candidates for the bench a priority. However, in the face of partisan opposition to progressive nominees, the President failed to mount a vigorous advocacy on behalf of his nominees. Mincberg and Hahn-Burkett suggest that the result of such timidity is the "erosion of the principle of judicial independence and the consequent degradation of the quality of justice delivered to the citizens of America."

U.S. Commission on Civil Rights

One of the primary tools available to the Executive Branch to monitor the application of civil rights laws is the U. S. Commission on Civil Rights. Although the Commission does not advocate, litigate, mediate, or enforce laws, it possesses special investigative powers including the power to hold hearings and issue subpoenas. While the Commission shaped the national civil rights agenda during the 1960s and 1970s, it floundered under Reagan whose appointees mismanaged and neglected the agency's mission. These setbacks led to an erosion of public confidence in the agency and stagnation in its funding; adjusted for inflation, the Commissions budget declined 58 percent since 1980.

Despite the Civil Rights Commission's inadequate funding, Michael J. Kelleher and Michael L. Walker, in their assessment entitled "The Performance of the U.S. Civil Rights Commission," concluded that, "the Commission has continued to meet its statutory responsibility for monitoring and evaluating federal civil rights enforcement through its issuance of reports," which are used by the President, Congress, the courts, governmental agencies, interest groups, and private citizens. As evidence, Kelleher and Walker noted that the Commissions' 1996 report, Federal Title VI Enforcement to Ensure Nondiscrimination in Federal Assisted Programs, was instrumental in the reorganization of the U.S. Department of Agriculture's civil rights operations. It was the Title VI report which spotlighted the Department's discrimination against Black farmers. Similarly, the Commission's 1996 report prompted the U.S. Department of Justice to become more proactive in its enforcement of Title VI; the Department allocated more resources for enforcement activities and developed a public service announcement to inform the public of its rights under Title VI.

In 1999, the Commission has ambitious plans. One major project involves a comprehensive study to measure discrimination in the United States. The results of such a project will, according to Kelleher and Walker, "provide a stronger factual basis for conducting a national dialogue on civil rights and for developing federal, state, and local civil rights policies."

The second major initiative planned for 1999 centers on a study of affirmative action in which the Commission hopes to: 1) determine the nature of the controversy surrounding affirmative action; 2) assess the positive and negative impacts of affirmative action, and; 3) measure the effect of efforts to eliminate affirmative action programs.

•While there are benefits to be reaped from both studies and Kelleher and Walker treat the proposals as a positive development, dangers lurk behind the latter study. The most flawed aspect of the proposed study is its inference that there are "negative impacts" associated with affirmative action. Given the successful assault on affirmative action in California and Washington state, and the evolving initiative drive in Florida, such rhetoric can be used to the advantage of affirmative action opponents. The Commission's language appears to line up with President Clinton's "mend it, don't end it" approach to assaults on affirmative action.

Despite the Commission's dubious proposal to study affirmative action, its role in matters of civil rights is even more important in today's conservative climate. Kelleher and Walker contend that the White House must establish a strong connection with the Commission if it is to retake a leading role in civil rights policy. They urge the President to "entrust the Commission with responsibility for civil rights initiatives, including the analysis of discrimination in America or the 'unyielding problems' of poverty and race." He must also publicly praise the Commission's accomplishments and push for additional funding when warranted.

If President Clinton is to be remembered as being true to his pledge to honor the nation's diversity and be responsive to the needs of minority communities, the U. S. Commission on Civil Rights must be a central component. Much work is required to restore the Commission's credibility.

Affirmative Action

•Perhaps one of the most volatile, divisive, and politically partisan issues in recent years is the subject of affirmative action. It is in this arena where African Americans in particular looked the most to test Clinton's intent on civil


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rights and where the White House has been most effective.

Under Clinton's tenure, according to Sarah C. von der Lippe who examined the issue for the Citizen's Commission on Civil Rights, there have been four major affirmative action battles; the Canady Bill which unsuccessfully attempted to end federal affirmative action; the battle over Bill Lann Lee's nomination as Assistant Attorney General for Civil Rights; the effort by conservatives to end the Department of Transportation's Disadvantaged Business Enterprise (DBE) Program; and Republican attempts to halt affirmative action in higher education.

Although the demise of the Canady Bill--also known as H.R. 1909 and the Civil Rights Act of 1997--was largely due to the fear by Republicans of being labeled as racially insensitive, its failure can also be attributed to stiff opposition by civil rights groups, most congressional Democrats and moderate Republicans, and mostly importantly the White House. As a result, H.R. 1909 was tabled in the House Judiciary Committee by a thirteen to four vote.

Of the four major affirmative action battles, President Clinton was most steadfast in his support for Bill Lann Lee, former director of the NAACP Legal Defense Fund and a vocal supporter of affirmative action. When the Senate Judiciary Committee refused to approve Lee's nomination because of his support of affirmative action, Clinton took the unusual step of appointing him Acting-Assistant Attorney General for Civil Rights. Appointing Lee to "acting" tenure signaled Clinton's willingness to stand firmly behind a high profile and controversial nominee, something he was criticized for not doing with previous nominees such as Lani Guinier (nominee for Sssistant Attorney General for Civil Rights) and Dr. Henry W. Foster, Jr. (nominee for Surgeon General).

Von der Lippe gives Clinton high marks for his unrelenting stand on Lee's appointment, calling the move "the right thing to do" and "defiant" in the face of partisan opposition. According to her, "The move did more than install Lee into the position he deserved; it served notice that the President would not be bullied on affirmative action. The President's commitment to remain strong in his support of affirmative action sent a signal to conservatives that ending affirmative action would not happen easily."

While von der Lippe gives Clinton high marks for his support of Lee, she is noticeably uncritical of his politically strategic defense of affirmative action, mainly his "mend it, don't end it" approach. Such a strategy implies precisely what many affirmative action opponents contend - that the abuses affirmative action lead to "reverse" discrimination toward white males. The "mend it, don't end it" approach is designed to appease the opponents by saying affirmative action is flawed but it works. The problem with that strategy is that it not only minimizes the tremendous success record of affirmative action, but it also attempts to appeal to opponents who wish to destroy rather than "improve" affirmative action. Very little if anything could be gained from pandering to the opponents on the right.

Perhaps the quietist challenge to affirmative action was Senator Mitch McConnell's (R-KY) failed attempt to end the DBE Program, a provision that provides that at least 10 percent of federal transportation contracts be granted to small and disadvantaged business, the majority of which are controlled by women and minorities.

Because the DBE program was implicated in the Adarand v. Pena litigation and was targeted by the Associated General Contractors (AGC), a well-financed trade association of construction firms with extensive lobbying experience, it attracted the attention of a key affirmative action opponent in the U.S. Senate, Senator McConnell. The Senator, supported by Ward Connerly, the AGC, and other affirmative action foes, mounted an effort to end the DBE program by attaching an amendment to a highway and transit infrastructure bill known as TE-21.

The assault on the DBE program failed because of a highly coordinated and intense lobbying effort by civil rights advocates, women and minority business leaders, a bi-partisan array of affirmative action supporters in the House and Senate, and, most importantly, the Clinton administration. Secretary of Transportation Rodney Slater made it clear in a letter to Senate Majority and Minority leaders, according to von der Lippe, that he "would find it difficult to recommend ISTEA (the predecessor legislation to TEA-21) reauthorization legislation to the President for signature that did not include the DBE program." Secretary Slater's adamant support was bolstered by Attorney General Janet Reno's constitutional support for the program and by the White House's coordination of Congressional lobbying.

Not long after the DBE saga, a new threat to affirmative action emerged. Congressman Frank Riggs (R-CA) offered an amendment to a House education bill modeled after California's Proposition 209 to end affirmative action in public colleges and universities. Like the DBE debate, the Riggs amendment attracted a broad coalition of opposition including educational groups, congressional leaders-the Congressional Black Caucus, the Women's Caucus, and the Hispanic Caucus-a variety of pro-affirmative action forces, and the Clinton White House. As a result Congress defeated the amendment 249 to 171.

• On the whole, von der Lippe rightly contends that "the story of affirmative action in the 105th Congress makes it clear that who occupies the White House matters." Without a concerted effort by key cabinet members and a well-coordinated lobbying effort by the White House, the outcome might have been different. Obviously the next election cycle will have high stakes. A Congress dominated by Republicans combined with a Republican president could spell trouble for


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affirmative action.

• Less compelling is von der Lippe's assertion that because of the recent victories at the national level, "affirmative action proponents face a threat of complacency and over-confidence." Such a development seems unlikely given the continued threat posed by deceptively-named anti-affirmative action groups such as the American Civil Rights Coalition, chaired by Ward Connerly. If anything, affirmative action proponents fear that opponents will have new tactics (see "Anti-Affirmative Action: Chasing the Intiative" on page 3) and that conservative legislators are biding their time for the political opportunity to launch future attacks.

Educational Opportunity

As the posturing over affirmative action revealed, education is a key battleground for conservatives. Not only is higher education a major concern, but control of public schools has emerged as a major point of contention. Dennis Parker, in his summary entitled "The Clinton Administration's Record on Equal Education Opportunity in Elementary and Secondary Education," notes that the challenge facing the administration was the development of an aggressive agenda to further educational equity in the Civil Rights Division's Educational Opportunities Section, which falls under the supervision of the Acting Assistant Attorney General of Civil Rights, Bill Lann Lee.

While Congress stalled Lee's appointment, Clinton named Thomas Perez as Deputy Assistant over the Educational Opportunities Section with a mandate to increase the Section's outreach efforts and make it more assertive in the enforcement of civil rights.

Under Clinton's tenure, the Section grappled with the perennial issue of school desegregation. Although a number of school districts remain under court-mandated desegregation orders, Indianapolis, Indiana, had its order terminated in 1998 and St. Louis, Missouri is currently negotiating termination of its order.

In the case of Indianapolis, children from the city were bused to suburban schools. When a district court denied the city's effort to end the busing, the Seventh Circuit reversed and remanded the order on the basis that the arrangement was never meant to be permanent. Consequently, the Justice Department and the city negotiated an agreement to end the busing of some 5,500 African-American students, one grade per year. Additionally, the agreement contained a commitment to assist low-income and minority families in finding suburban housing, an effort to soften the segregated housing that would be exacerbated by returning the students to Indianapolis.

The Indianapolis agreement was harshly criticized in some quarters, according to Parker. Gary Orfield, a professor of Education and Social Policy at Harvard University and an expert on desegregation, concluded that the Justice Department unnecessarily compromised a strong case. Hired by one of the townships seeking to continue the busing program, Orfield, according to Parker's summary, argued that "housing measures should complement, rather than replace, the existing programs, and that the plan would relegate Indianapolis' students to an 'extremely inferior' school system."

In St. Louis there is also concern about the long-term effects of ending desegregation where, like Indianapolis, students are sent to suburban schools. How the Justice Department handles this case "will have a profound effect on the future of desegregated schools in the country," Parker concludes.

Unlike the desegregation cases, the Justice Department has been more cautious in its handling of cases involving public school programs-such as magnet schools-that consider race in making admissions decisions. Although the courts have indicated moderate acceptance of the notion of promoting educational diversity as a compelling interest, the Justice Department has not taken an active role in such cases. Instead, it has only submitted amicus curiae, or friend of the court briefs, recognizing diversity as a compelling interest.

• Even though Parker's article concedes that such a strategy is "not the most aggressive position possible," a more critical assessment is needed. The posture assumed here by the Justice Department infers indifference to the issue and contradicts Clinton's firm stand on affirmative action in higher education. Equally as important, the pale responses seem to be a proverbial "throwing in the towel" on race-


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conscious admissions policies at the elementary and secondary levels. Such a development raises questions about the Clinton Administration's commitment to affirmative action as it affects public schooling.

Voting Rights

Judging from Parker's assessment of the Clinton record on equal educational opportunity in public schools, the Justice Department plays a key role in the President's overall civil rights strategy. Nowhere is this more apparent than in the area of voting rights. It was under Clinton's watch that the more serious threat to minority voting rights appeared-Shaw v. Reno-in which the Supreme Court muted the creation of congressional districts favoring minorities. According to Todd A. Cox in his article "Enforcing Voting Rights in the Clinton Administration as We Approach the New Millenium," the role of the Administration will be crucial to the fate of minority voting rights and "minority electoral gains will either be protected or suffer severely as we near the next century and the next redistricting cycle."

In the current political climate, Cox sees three threats to minority voting rights that must be addressed by the Clinton Administration. The first is enforcement of Section 2 of the Voting Rights Act following the Shaw decision. Although a number of minority districts have been invalidated because of the Shaw case, the Supreme Court has not voided the Voting Rights Act. Still standing is the notion of a compelling justification for creating majority-minority districts to remedy voting rights discrimination.

The Justice Department assumed the role of defendant in many of the numerous redistricting cases that were spawned by Shaw. The Justice Department's defendant status has helped define the limits of the Shaw ruling. In Lawyer v. Department of Justice the Supreme Court upheld the constitutionality of a state senate district in Florida, signaling room for race-conscious redistricting at the state and local level. Cox believes that the presence of the Justice Department in such cases is invaluable because it promotes "the successful settlement of cases and redrawing of districts that still provide minorities an equal opportunity to elect candidates of choice."

While the Justice Department is an active defendant in Section 2 cases, Cox feels it must be more aggressive in filing Section 2 lawsuits where discrimination can be documented. "It is critical for courts and jurisdictions alike to understand that Section 2 compliance is still required and that the Department will hold jurisdictions accountable for any discrimination against minority voters during the next redistricting process," concludes Cox.

The second threat to minority voting rights involves Section 5 of the Voting Rights Act. Covered jurisdictions must receive preclearance from the Justice Department before altering any voting standards or procedures. Presently, the Justice Department needs to redefine its enforcement of section 5 standards in the wake of the Supreme Court's ruling in Bossier Parish v. Reno which let stand a circuit court ruling that circumstantial evidence of discriminatory intent may not be considered in a Section 5 proceeding if the same evidence would be used in a Section 2 proceeding.

Cox urges the Justice Department to make clear that it will still prosecute Section 2 cases even if they do not violate Section 5. He also warns the Department not to overreact to Supreme Court rulings by charging section 5 procedures in such a way as to unnecessarily weaken enforcement.

The final threat to minority voting rights involves the National Voter Registration Act (NVRA). Because the NVRA was so successful at registering poor and minority voters, congressional conservatives attempted to attach measures requiring proof of identity and citizenship, structures that would disproportionally affect poor and minority voters. Moreover, legislation was introduced to repeal the mail-in provision of the NVRA which would undermine its effectiveness.

According to Cox, the Justice Department's role is to discourage jurisdictions from employing discriminatory or intimidating electoral practices and to aggressively prosecute those who act in this manner; to monitor areas with histories of discrimination and intimidation; and to proactively discourage illegal electoral procedures by lowering its threshold for interventions.

Cox acknowledges that while the Justice Department is vigilant in its enforcement of NVRA voter registration requirements at drivers' license bureaus, he mildly chides the Department for its "much less systematic" enforcement of these provisions at public assistance and disability benefits offices in many states.

• Cox's assessment of voting rights enforcement makes it clear that the Voting Rights Act and the NVRA anchor the protection of minority voting rights. These measures have little meaning without the Justice Department's leading role as compliance officer. What is missing here is any way to judge whether or not the Justice Department has the capacity to meet its enforcement obligations. This is particularly relevant in the case of the NVRA where state agencies have responsibilities for enacting its provisions and local jurisdictions have been the culprits of discriminatory and intimidating practices.

The EEOC and the OFCPP

The effectiveness of the Clinton Administration's policies regarding civil rights cannot be judge without exploring issues of employment opportunities. The Equal Employment Opportunity Commission (EEOC) is responsible


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for enforcement of fair employment laws and the Office of Federal Contract Compliance Programs (OFCPP) ensures that federal standards are met by those with government contracts.

Over the years, according to Nancy Kreiter's article entitled "Equal Employment Opportunity: EEOC and OFCCP," the EEOC lost its viability and effectiveness. It fell to the Clinton Administration to reinvigorate the Commission. Consequently, by late 1994, the EEOC chair, Gilbert Casellas (who left in 1997) had in place a new leadership team.

One of the measures enacted to revamp the agency was the implementation of a new priority charge handling system, a system that prioritizes charges most likely to have merit. Although this new system halved the agency's backlog of cases, there were unforeseen consequences. Rather than resolving issues of discrimination, the backlog of cases was sharply reduced by declaring the charges too weak to warrant further investigation.

Kreiter concludes that the most troubling aspect of the EEOC is its poor record in obtaining remedies for victims of discrimination. The settlement rate has plummeted from a high of 32 percent in 1980 to its current low of just 8 percent. Likewise, its no-cause finding rate-in which the agency concluded there was no cause for a finding of discrimination-reached an all-time high of 61 percent, a significant jump from its 1980 rate of 28.5 percent.

From a litigation standpoint, the agency also improved. Not only did the EEOC more than double the number of cases filed over the last two years, it also took a hard, public line against egregious employment discrimination in several high-profile cases. The EEOC was strategic in producing precedent-setting judgements against Texaco ($176 million), Publix Supermarkets ($81.5 million), and Mitsubishi ($3.4 million).

In spite of these highly-publicized successful settlements, Kreiter notes that the EEOC was criticized by civil rights advocates for not engaging more aggressively in class-action litigation. Although in recent years the agency increased its proportion of such suits to 30 percent of all suits filed, that level is far below the two-third's ratio of 1980.

The Office of Federal Contract Compliance Programs (OFCPP) has an equally important role in protecting workers from discrimination. According to Kreiter, nearly one-quarter of American workers fall under the agency's jurisdiction. Like the EEOC, the OFCCP was revamped to better monitor and enforce compliance with federal regulations. Not only were procedures amended to make the regulatory process more effective, but Reagan-era initiatives that hampered the agency's work-the National Self-Monitoring System and the Standard Affirmative Actions Format which allowed employers to mask localized discrimination by providing national employment data-were terminated.

Besides policy improvements, the OFCCP also improved its enforcement capacity in some areas. In 1997, the agency trained its investigators on systematic discrimination, a practice abandoned since the Reagan Administration. In addition, the agency dramatically increased the number of compliance reviews conducted per year, resulting in an increased number of complaints filed and the debarment of eight firms by the Clinton Administration. (This number equals the total for both the Reagan and Bush years combined, but is less than one-third of the total for the Carter Administration.)

Because the effectiveness of the EEOC and the OFCCP was undermined by the Reagan and Bush Administrations, both agencies needed major overhauls in policy and enforcement procedures.

Conclusion

• The inauguration of the Clinton Administration created a great deal of hope for civil rights advocates. President Clinton's promise to assemble an administration that reflected America's diversity seemed a welcome change from the regressive Reagan and Bush years.

• After seven years under Clinton, it is evident that civil rights is an endangered species. The Test of Our Progress makes it clear that civil rights are under assault. The working papers highlighted here demonstrate that pockets of opposition to civil rights are emerging in nearly every measurable segment of our society-the workplace, the schoolhouse, the courts, and the polls.

Part of the problem faced by the Clinton Administration is that Presidents Reagan and Bush crippled many of the agencies-such as the U.S. Civil Rights Commission and the EEOC-created to promote civil rights. They also stacked the federal courts with right-wing appointees who later helped undermine previous decades of civil rights progress.

Added to the quagmire is the reality of partisan politics. Republican legislators in both houses of Congress block Clinton appointees, especially those labeled "liberal" and those who were not white males. They also attempted to underfund federal agencies with a civil rights mission.

Unfortunately, the President responded with the nomination of non-controversial centrist candidates, a strategy that threatens to undermine judicial independence and erode the quality of justice.

In other areas, the Clinton Administration also acted inconsistently. While the U.S. Commission on Civil Rights produced useful reports, its proposed affirmative action study could give fodder to opponents.

At the same time that the Administration defeated


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several challenges to affirmative action and stood firmly behind Bill Lann Lee, it raised serious questions with its "mend it, don't end it" approach to affirmative action. Even more troubling was the Justice Department's capitulation in the Indianapolis desegregation case. Such strategies prompt doubts about the Administration's commitment to affirmative action.

The bitter-sweet performance in affirmative action is complimented by the Justice Department's less than aggressive approach to section 2 and section 5 compliance and its enforcement of NVRA provisions at state public assistance offices.

With systemic employment discrimination still pervasive, the EEOC and the OFCCP improved its policy and enforcement standards, but failed to give adequate remedy to most victims of discrimination. The agencies must recover from years of apparent intentional neglect under Reagan and Bush.

The Clinton record on civil rights is a mixture of strong, principled advocacy, lukewarm cheerleading, and weak, misguided capitulation to conservative political pressure. Yet, President Clinton represents a refreshing relief to the anti-civil rights tone of the Reagan and Bush years, but has failed to measure up to Carter's record. As the 2000 presidential election brings the possibility of Governor George W. Bush's "compassionate conservatism" to the White House, the future of national civil rights protections are very much in question.

Barry E. Lee is a program assistant in communications at the Southern Regional Council and a graduate student in history at Georgia State University in Atlanta.