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Learning from Lani

  • Deborah Goldberg
Published: March 22, 1999

The Nation
March 22, 1999

Learning from Lani
By Deborah Goldberg

Right-wingers are dusting off the smear campaign successfully mounted against Lani Guinier for a renewed assault on Bill Lann Lee, Acting Assistant Attorney General for Civil Rights. Leaders of the attack are not even bothering to invent new slogans. Critics are now calling Lee the “quota king.”

Lee has been leading the Civil Rights Division since December 1997. President Clinton appointed Lee when the Senate Judiciary Committee made it clear that it would hold up Lee’s nomination for the position. On February 16, Committee Chair Orrin Hatch challenged the legality of Lee’s continuing appointment and called for a “confirmable” candidate (read: one with no experience or commitment to civil rights).

Fortunately, the President does not appear anxious to reenact the Guinier debacle. Instead of letting Lee twist slowly in the wind, while vicious distortions of his record get ever greater media play, the White House has announced that President Clinton is expected to re-nominate Lee soon. But the President has not vigorously defended Lee’s civil rights policy. And the media has yet to explain what is really going on.

The attack on Lee is being spearheaded by Roger Clegg and Clint Bolick. According to Bolick’s bio on the right-wing Institute for Justice website, he is “credited with crafting the opposition” to both Guinier and Lee. Bolick and Clegg are back now with a report on Lee’s performance over the past year, portraying his measured and reasoned civil rights enforcement as a “narrow race-conscious agenda.”

The critique rests in part on Department of Justice efforts to enforce the Voting Rights Act of 1965, a federal law passed to end discrimination in elections. The law requires jurisdictions that had a history of such discrimination to submit proposed voting changes to the Department for pre-clearance. The Civil Rights Division, which handles pre-clearance requests, may grant approval only if the change will not make members of a racial or language minority group worse off than before. The federal government can thus protect hard-won progress toward political equality from laws that would set the clock back on voting rights.

Of course, Lee’s critics want to set the clock back on voting rights. In their view, every positive effort to address discrimination against minorities is unfair to whites, every action to ensure racial justice is a “preference” or a “quota.” Civil rights laws should be enforced only to protect the privileges historically enjoyed by whites.

Lee’s opponents therefore complain about a recent Department of Justice decision not to approve a requested change in the voting method used for New York City community school board elections. New York had been using a method called “choice voting,” under which voters ranked candidates for the nine at-large seats in their district, and the vote-counting process allowed a candidate to be elected with only 10% of the vote. As a result, African American, Latino, and Asian American communities throughout the City achieved meaningful representation on the school boards, even in districts where they remain far from a majority. In fact, choice voting is the only system under which New York City’s Asian Americans have ever been able to elect a legislative representative.

New York’s proposed new method called limited voting would give each voter the option of voting for up to four candidates. Even under the best of circumstances, limited voting would at least triple the percentage of votes required to ensure a candidate’s election. So, in districts where a racial or language minority represents, say, 20% of the voting age population, choice voting would allow the minority community to elect approximately two members (out of nine), while limited voting could eliminate minority representation altogether.

That threat was of more than theoretical interest in New York City. African Americans represent less than 30% of the voting age population in 13 school board districts, Latinos in four, and Asian Americans in all seven of the districts where they now have a representative. Based on demographics alone, almost a third of the boards could turn completely white under limited voting. Even the New York City Board of Education admitted that limited voting would cause a loss of minority representation.

Because of this regressive potential, the Justice Department could not lawfully approve limited voting for Manhattan, Brooklyn, and the Bronx the three boroughs that need such pre-clearance because they failed the tests set by the Voting Rights Act. (Queens and Staten Island, which passed the federal test, could institute the new system without Justice Department approval. But limited voting is likely to undermine minority representation even more in those boroughs.)

The right-wing attack on this decision is thus wildly off the mark. The Civil Rights Division, under Lee’s leadership, did what the Voting Rights Act required: the Division rejected a voting change that would make members of a racial or language minority worse off than before.

The attack on Lee for the manifestly correct decision in the New York City school board matter is emblematic of his critics’ general approach. His detractors will unhesitatingly distort the facts and misstate the law in their campaign to hound Lee out of office. (Sound familiar?) Those concerned about civil rights must just as unhesitatingly correct the record and debunk the slogans as they did only too little and too late for Lani Guinier.

Deborah Goldberg is a senior attorney in the Democracy Program at the Brennan Center for Justice at NYU School of Law.