Ira Glasser, Executive Director American Civil Liberties Union 132 West 43rd Street New Yo
Ira Glasser, Executive Director
American Civil Liberties Union
132 West 43rd Street
New York, New York 10036
December 14, 1992
The Honorable William J. Clinton
President-elect of the United States
Presidential Transition Office
1120 Vermont Avenue, N.W.
Washington, DC 20270
Dear President-elect Clinton:
Since 1980, civil liberties have been under a state of siege.
Although every administration since the founding of the Republic has
occasionally exceeded the limits imposed by the Bill of Rights, and some
administrations have been decidedly unfriendly to civil liberties, it is
fair to say that no administration was ever as systematically hostile to
as broad a range of rights as were the last three.
During these years, no right seemed safe from assault by the
highest government officials. Censorship was encouraged; press
restrictions were imposed; a crusade was launched to breach the wall that
separates church and state and protects religious freedom. Remedies for
racial injustice were blocked, and racial fears and resentments were
fanned. Hostility toward equality for women has been palpable and
unrelieved; the rights of gay men and lesbians have been belittled; the
rights of aliens and refugees have been both ignored and resisted.
Procedural rights were attacked -- the Miranda warning, the
Exclusionary Rule and the ancient writ of habeas corpus -- as fundamental
fairness itself became unfashionable. Through the brutal use of RICO laws
and other forfeiture statutes, property was seized and disposed of
without due process and before a trial; Fourth Amendment rights were
dismantled; the war on drugs became a war on the Constitution, and one
Supreme Court Justice began to speak of a "drug exception" to the Bill of
The right to privacy and personal autonomy -- a fundamental
constitutional right -- became a major target in an effort to reshape the
judiciary. Access to justice itself was denied, especially to the poor.
Medicaid funding was withheld from poor women to prevent them from
exercising their reproductive freedom, and legal services funding was
withheld from poor people so they could not sue to vindicate their rights.
The Constitution became more of a class-based document, accessible only to
those who could afford it.
These are only some of the rights that came under government
assault during the past 12 years.
Beyond the substantive rights themselves, the infrastructure of
enforcement was dismantled and disabled: the Civil Rights Division of the
Department of Justice became an antagonist of civil rights, and the Legal
Services Corporation Board became an antagonist of legal services.
Agencies designed to enforce rights led the charge to deny rights.
Consequently, there is much damage to repair as you prepare to
take office. The attached Blueprint For Action details our view of what
must be done, why it must be done and how to do it. It addresses a
variety of issues in five basic areas: First Amendment Rights, Equality,
Due Process, Privacy and an area entitled, "Liberty and Justice For All,"
which advocates the extension of traditional rights to people who have
been too long denied them.
The Blueprint is not a complete vision of what the American Civil
Liberties Union wants the world to look like. Rather, it is an agenda for
restoring rights, a set of goals that we believe are reasonable and
possible to attain. The Blueprint reflects a vision of liberty and
justice that we believe is the highest form of American patriotism:
devotion to the principles of the Bill of Rights, a commitment to
tolerance and respect for diversity.
We look forward, as always, to a nation committed to freedom of
thought and conscience, fairness, equality and what John Stuart Mill once
called "personal sovereignty." We look forward to a society where it is
easy to be free and safe to be different.
With sincere best wishes,
AMERICAN CIVIL LIBERTIES UNION
RESTORING CIVIL LIBERTIES:
A BLUEPRINT FOR ACTION
FOR THE CLINTON ADMINISTRATION
This publication was prepared by the Legal Department, the Public
Education Department and the National Washington Office of the American
Civil Liberties Union.
American Civil Liberties Union
132 West 43rd Street
New York, NY 10036
122 Maryland Ave., NE
Washington, DC 20002
Kenneth B. Clark
Chair, National Advisory Council
The American Civil Liberties Union is a nationwide, nonpartisan
organization of nearly 300,000 members dedicated to preserving and
defending the principles set forth in the Bill of Rights.
Copies of this publication are available for $5.00 each.
Prepaid orders should be sent to:
ACLU, Dept. L
P.O. Box 794
Medford, New York 11763
Copyright 1992 American Civil Liberties Union. All rights reserved.
TABLE OF CONTENTS
FIRST AMENDMENT RIGHTS
Pornography Victims Compensation Act
Sexually Oriented Expression
The Gag Rule
Decency Rules in Broadcasting and Cable TV
Collegiate Free Speech Protection Act
The National Endowment for the Arts
The Hatch Act
Ban on Federal Employee Honoraria
The Establishment Clause
Child Care Regulations
Electoral Free Speech
Freedom of Information Act
Restrictions on the Press and Others in Publishing Government Information
Intelligence Oversight, Accountability and the Independent Counsel
The Mission of the Intelligence Agencies
Draft Registration and Conscientious Objection
Americans' Right to Travel Abroad
Ideological Visa Denials
CIVIL RIGHTS ENFORCEMENT
The Civil Rights Act of 1991
Test Score Norming
Caps on Damages
Americans With Disabilities Act
Equity in Testing and Evaluation
Equity in Financing
Transfer of Decision-making Authority
Section 2 Enforcement
Section 2 Compliance
National Voter Registration Act
Statehood for the District of Columbia
Economic and Pay Equity
Military Combat Exclusion
Sexual Harassment in the Military
Drug Dependent Women
Family and Medical Leave and Child Care
LESBIAN and GAY RIGHTS
The Military Ban
Indian Civil Rights Act
American Indian Religious Freedom Act
ACCESS TO JUSTICE
Funding of Legal Services
Rule 11 Reform
CRIME and CRIMINAL JUSTICE
Imprisonment as a Crime Control Mechanism
The Exclusionary Rule
Mandatory Minimum Sentencing
Coerced Confessions/Fifth Amendment
The "War on Drugs"
Militarization of Drug Law Enforcement
Centers for Disease Control AIDS Prevention Programs
Mandatory Federal HIV Testing
HIV-Infected Health Care Workers
Medical and Insurance Records
Criminal History Records
Privacy Act of 1974
Public Funding of Abortion Services
Freedom of Choice Act
International Reproductive Freedom
The Gag Rule
RU 486, Contraception and Fetal Research
LIBERTY AND JUSTICE FOR ALL
Private Alienage Discrimination
Detention of Juvenile Aliens
Abuse in Immigration Law Enforcement
Aliens' First Amendment Rights
Maintenance of Family Ties
Civil Rights of Institutionalized Persons Act
Prison Overcrowding and Human Rights Violations
Adoption Assistance & Child Welfare Act: Enforcement
Adoption Assistance & Child Welfare Act: Compliance
Electronic Surveillance of Private Sector Employees
Labor Law Reform
INTERNATIONAL HUMAN RIGHTS
International Human Rights Conformity Act
Ratification of Treaties
Abduction of Foreign Nationals
Many of these issues encompass a number of fundamental civil liberties
principles and could have appeared under several headings. The text
indicates that by cross-references, where appropriate.
The First Amendment's guarantee of freedom of speech is admired
throughout the world. It is a guarantee, however, that can never be taken
for granted. In a society that is becoming increasingly diverse, the
pressures on the First Amendment are intensifying. The temptation faced
by people in high places to give into those pressures for short-term
political gain is always a powerful one. Government officials must resist
that temptation if our nation is to remain faithful to its fundamental
Unfortunately, for the last 12 years our federal government has
sacrificed First Amendment principles in the face of political pressure.
Too often, the government used its control over the funds allocated to the
arts and research to censor and restrict expression about important issues
that happen to be controversial. Moreover, the federal government has
used its authority over the communications media to regulate speech that
allegedly "offends" some people, whether the expressive material consists
of sexually oriented matter or advertisements of disfavored commercial
products. Restrictions were imposed that narrowed, rather than expanded,
the free flow of information in the marketplace of ideas.
The exercise of First Amendment rights often produces raucous
debate. That debate can be disturbing and disquieting. Yet, government
should not use its enormous funding power to manipulate public debate, and
it cannot resolve controversy by suppressing controversial speech.
Society will not become more tolerant if government itself is intolerant
of criticism. As Justice Brandeis said more than a half-century ago, the
answer under our Constitution must always be more speech, not enforced
Federal Communications Commission
Department of Justice
National Endowment for the Arts
Free Speech > PORNOGRAPHY VICTIMS COMPENSATION ACT
Legislation before Congress will likely be proposed again to permit the
victims of sexual assaults to sue the producers, distributors and
exhibitors of sexually explicit material--books, films, recordings--on the
ground that such material inspired the assailants to commit their crimes.
If enacted, the legislation would violate the First Amendment.
Concerns about sexual violence have prompted misguided legislative efforts
to impose civil liability on the publishers, exhibitors and distributors
of sexually explicit materials. Thus, in June 1992, the Senate Judiciary
Committee approved the so-called Pornography Victims Compensation Act
(PVCA) by a vote of 7-6. No further action was taken, but the issue is
likely to be revived when the new Congress convenes.
Although the bill went through numerous revisions during the last
legislative session, its fundamental premises remain unchanged. For the
first time in American history, producers, distributors and exhibitors of
sexually explicit material would be liable in damages for any sexual
assault allegedly inspired by printed, visual or audio material.
This approach to the very serious problem of sexual violence represents
both bad policy and bad law. There is no reliable evidence that words and
images can cause sexual violence, as both the Meese Commission and the
Senate Judiciary Committee conceded in their respective reports on this
subject. See The Attorney General's Commission on Pornography, Final
Report at 337 (1986); S.Rep. No.102-372, Pornography Victims Compensation
Act of 1992, at 6-7 (Aug. 12, 1992).
Moreover, the PVCA would undeniably discourage the free and open
discussion of sexual themes in books, movies, records and plays. The
principle of third-party liability embodied in the proposed legislation
has the added potential to suppress a wide range of expressive material --
from news reports to murder mysteries to the Bible itself -- that a jury
might conclude inspired an actual crime. Imposing third-party liability
on any of these expressive materials violates the First Amendment.
Finally, by focusing on words and images, the bill distracts public
attention and resources away from more serious efforts to tackle the
problem of sexual violence that plagues our society.
It is no answer to say that the bill is limited to commercial obscenity
and child pornography (as it was in its final version but not in the
initial draft). Judgments about obscenity are so inherently subjective
that many producers and distributors of First Amendment material will
simply cease addressing sexual themes rather than risking large damage
awards and the substantial expenses of even successfully defended
litigation. A reduction in speech, not a reduction in sex crimes, would
be the result of the PVCA, a result that is inconsistent with both common
sense and the First Amendment.
Oppose the Pornography Victims Compensation Act or any similar
Free Speech > SEXUALLY ORIENTED EXPRESSION
The Child Exploitation and Obscenity Section of the Department of Justice
pursues prosecutions that have the purpose and effect of suppressing
constitutionally protected, sexually oriented expression.
The Bush Administration mounted a campaign to suppress sexually oriented
expression, using a variety of constitutionally questionable prosecution
strategies. The intellectual genesis of the campaign is generally traced
to the widely discredited Meese Commission. See The Attorney General's
Commission on Pornography, Final Report (1986). The Justice Department
created a special unit, originally called the National Obscenity
Enforcement Unit and subsequently renamed the Child Exploitation and
Obscenity Section, that initiated simultaneous prosecutions against
distribution companies in multiple jurisdictions. The prosecutions were
aimed at pressuring the targeted companies to stop distributing sexually
oriented materials, in exchange for a cessation of investigations or
dismissal of criminal charges.
The Section targeted speech that is clearly protected under the First
Amendment. Indeed, the Section's definition of sexually oriented
materials, according to documents obtained in litigation, was so broad as
to include publications such as Playboy magazine and The Joy of Sex. By
1992, three federal courts had condemned the unit's multiple prosecution
approach as unconstitutional. See United States v. P.H.E., Inc., 965 F.2d
848 (10th Cir. 1992); PHE, Inc. v. Dept. of Justice, 743 F. Supp. 15
(D.D.C. 1990); Freedberg v. Dept. of Justice, 703 F. Supp. 107 (D.D.C.
The Justice Department's activities were troubling for several
interrelated reasons. First, the Section diverted significant federal
resources from clear law enforcement priorities. Second, the Section's
constitutionally questionable assault on erotic books, magazines, and
films was particularly inappropriate given the acknowledged vagueness of
obscenity laws. Finally, the Section clearly flouted the Supreme Court's
continuing reminders that toleration of sexual candor in art and
literature should be primarily determined by local communities, based on
local standards. In its zeal to impose moral and religious conformity on
a diverse American population, the Bush Administration ignored the
longstanding principle that discussion of and information about sex are
matters of public importance, and are generally entitled to full
1) Abolish the Justice Department's Child Exploitation and Obscenity
2) Redirect Justice Department resources toward fighting sex
discrimination, sexual harassment and violence against women and children.
Free Speech > THE GAG RULE
Contrary to the position taken by the Bush Administration, the Supreme
Court's decision in Rust v. Sullivan does not establish a broad principle
that permits the government to dictate the content of speech in any
program receiving federal aid. Therefore, the government should not
condition federal assistance upon adherence to any "gag rule."
Government largesse, distributed by grant or contract, should not be used
to buy peoples' silence or deny their free speech rights. In Rust v.
Sullivan, 111 S.Ct. 1759 (1991), the Supreme Court upheld the Bush
Administration's "gag rule" prohibiting any discussion of abortion in
family planning clinics that receive federal funds. The Administration
quickly took the position in Congress and the courts that Rust established
a broad principle permitting the government to dictate the content and
viewpoint o f speech in any program receiving federal assistance. Thus,
in Board of Trustees of the Leland Stanford Junior University v. Sullivan,
733 F. Supp. 472 (D.D.C. 1991), the Justice Department argued
unsuccessfully that medical research grants could be conditioned on a
requirement that scientists not discuss their research findings with
students, colleagues, or others unless they receive prior permission from
the government. In Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 278
(S.D.N.Y. 1992), the Department argued unsuccessfully that Rust permitted
censorship of AIDS education materials. In Finley v. National Endowment
for the Arts, No. CV 90-5236, slip op. (C.D.Cal. June 9, 1992), the
argument was stretched to include content restrictions on grants to
artists and arts institutions, but the court rejected it. In Bullfrog
Films, Inc. v. Wick, 847 F.2d 502 (9th Cir. 1988), the administration
tried to reopen a pre-Rust judgment that struck down content and
viewpoint-based discrimination in the awarding of customs benefits for
documentary films. The effort failed. Legislation has been proposed
attaching content restrictions to public broadcasting and other areas of
expressive activity that receive government funds.
Given the extent of government involvement in almost every aspect of
public life -- through funding, other benefits and tax deductions --
extending the Rust approach to classic free speech forums, such as
universities, libraries, research and the arts, simply because they
receive government assistance would be devastating to First Amendment
1) Oppose legislation that conditions any government grant or benefit on
restricting the content or viewpoint of speech.
2) Direct the Department of Justice to abandon its efforts to extend Rust
v. Sullivan to other areas affecting free expression.
3) By Executive Order, prohibit federal agencies from imposing content
restrictions on free speech in programs that they assist or regulate.
Free Speech > DECENCY RULES IN BROADCASTING AND CABLE TV
The federal legislation recently passed to regulate radio and television
broadcasting and cable contain provisions that would, if applied broadly,
have a censorship effect. Vague, content-based restrictions on
broadcasting and cable impinge on the First Amendment rights of artists,
producers and viewers.
Cable television programming is a form of expression and is, therefore,
entitled to First Amendment protection. Nevertheless, various federal
statutes restrict the content of cable television programming, thereby
narrowing the free and diverse marketplace of ideas. The Federal
Communications Commission is currently drafting rules to implement
Congress' latest effort to mandate "decency" in cable TV and broadcasting.
In the area of broadcasting, Congress passed a new law in 1992, the Public
Telecommunications Act, shrinking the "safe harbor" period when so-called
indecent programming may be broadcast to the hours of midnight to 6 a.m.
In addition, Congress passed the Cable Television Consumer Protection and
Competition Act of 1992, which imposes a variety of content restrictions
on both leased access and public-access cable programming.
This latter statute, for the first time, authorizes cable operators to ban
material from leased access that they believe is "patently offensive," and
requires the FCC to promulgate regulations that segregate and restrict
access to "indecent" leased access programming. The new cable law also
directs the FCC to restrict the content of public, educational and
governmental access programming. The statutory language is both broad and
vague, banning any material that contains "sexually explicit conduct, or .
. . soliciting or promoting unlawful conduct."
The new cable restrictions are particularly troubling because the leased
and public-access provisions of the original law were intended to enhance
an important new medium of communication, whose virtually unlimited
channel capacity would make possible a public electronic "soapbox."
The FCC can significantly minimize the censorship effect of the vague new
"indecency" and "promoting unlawful conduct" provisions by construing them
narrowly in the course of its rule-making. Similarly, the Commission can
enhance free expression in the broadcast spectrum through narrow
construction of the congressional "indecency" restriction, and by careful
fact-finding in regard to the presence of unsupervised children among
1) Urge the FCC to promulgate regulations that are sensitive to the values
of free expression, and that construe legislative restrictions on the
broadcast and cable media narrowly.
2) Support legislation that would dispense with vague, content-based
restrictions on broadcast and cable.
Free Speech > COLLEGIATE FREE SPEECH PROTECTION ACT
The "hate speech codes" promulgated by public and private institutions of
higher education in response to racial, religious, ethnic and sexual
tensions on campus violate principles of academic freedom and free speech.
While students attending public institutions enjoy the protection of the
First Amendment, those attending private schools do not.
In response to racial, religious, ethnic and sexual tensions on college
campuses, many universities have enacted speech codes that prohibit or
punish expressions that offend minorities and women, and that contradict
our society's professed interest in equality. The problems that verbal
expressions of hate and bigotry symptomize, and that campus speech codes
purport to address, are real problems that institutions of higher
education must address. But those institutions should never sacrifice
First Amendment principles to do so. Students are done a severe
disservice when they are taught that certain speech is so harmful that we
can throw out a cherished and important liberty.
Instead of suppressing speech, school administrators should speak out
loudly and clearly against expressions of racist, sexist, homophobic and
other bias, and react promptly and firmly to acts of discriminatory
harassment; create forums and workshops to raise awareness and promote
dialogue on issues of race, sex and sexual orientation; intensify their
efforts to recruit members of racial minorities on student, faculty and
administrative levels, and reform curricula to reflect the racial and
social diversity of peoples that have contributed to human knowledge and
society, in the United States and throughout the world.
Campus speech codes have been used to punish both serious instances of
harassment that may be constitutionally subject to punitive responses, and
speech that is protected against government suppression by the First
Amendment. As arms of the government, state institutions of higher
learning are subject to First Amendment constraints, and speech codes
instituted by these universities have been struck down in federal court
when challenged. See e.g., Iota Xi Chapter of Sigma Chi Fraternity v.
George Mason University, 773 F. Supp. 792 (E.D. Va. 1991); UWM Post, Inc.
v. Board of Regents of the University of Wisconsin System, No. 90-C-328,
slip op. (E.D. Wis. Mar. 29, 1990); and Doe v. University of Michigan, 721
F. Supp. 852 (E.D. Mich. 1989).
Because the First Amendment does not apply to private colleges and
universities, and because the sanctioning of words or ideas jeopardizes
academic freedom, federal legislation is needed to provide speech
protection at private institutions that receive federal funding. The
proposed Collegiate Speech Protection Act, introduced as H.R. 1380 in the
last Congress by Representative Henry Hyde (R-IL), appropriately addresses
this issue by granting students at schools that receive federal funds a
private right of action to vindicate their free speech rights. The rights
the Act protects at these private campuses are coextensive with those
guaranteed by the First Amendment.
Support the Collegiate Free Speech Protection Act.
Free Speech > COMMERCIAL SPEECH
Recent government attempts to restrict commercial speech by prohibiting
the advertising of unpopular services and products, such as abortion
services, cigarettes and alcoholic beverages, violate the First Amendment.
Government bans based solely on content are not constitutionally
The Constitution broadly protects free speech, and the commercial nature
of expression should not provide an excuse for infringement merely because
the government disdains the message. Although commercial speech does not
enjoy the degree of protection enjoyed by non-commercial speech, the
remaining free speech guarantee is, nevertheless, substantial. Too often
this somewhat lesser level of protection is used to justify restrictions
aimed at disdained, but legal, products. Suppressing speech that pertains
to such products cannot substitute for suppressing products that may be
Attempted restrictions often come up in the form of bans or burdens on the
advertising or promotion of such products as cigarettes and alcohol, or
such services as abortion. These restrictions violate the First
Amendment. Advertising and sales talk convey ideas that are fully
entitled to constitutional protection. As the Supreme Court has
recognized, a "consumer's interest in the free flow of commercial
information . . . may be as keen, if not keener by far, than his interest
in the day's most urgent political debate." Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 763 (1976).
During the last Congress, various attempts were made, inter alia, to
prohibit the advertising of abortion-related services, reduce the
business-expense deductibility of advertising expenses associated with
tobacco products, bar the use of certain culturally significant names on
product brands and augment Federal Trade Commission authority to regulate
advertising that was not misleading or fraudulent, but "unfair." All of
these policies, statutory and regulatory, are questionable under the First
Amendment and should not be pursued further. The regulation of commercial
speech solely because government disdains the product being promoted
cannot be justified under the Constitution.
Send a clear message to the relevant regulatory agencies and the Congress
that commercial speech is entitled to First Amendment protection.
Free Speech > THE NATIONAL ENDOWMENT FOR THE ARTS
The politicization of the National Endowment for the Arts has led to
content-based grantmaking decisions that have little to do with artistic
merit. NEA and Congressional attacks on controversial artists and their
work have created a chilling effect on artistic expression throughout the
The National Endowment for the Arts was founded by Congress in 1965 for
the purpose of fostering "free inquiry and expression," and instructed to
insure that "conformity for its own sake is not . . . encouraged." 111
Cong. Rec. 13,108. The overriding standard was to be "artistic and
humanistic excellence." 111 Cong. Rec. 13,100. For almost 25 years, the
NEA functioned as an independent agency, fulfilling its mandate and
funding a wide range of artistic works. During that time, NEA grant
recipients included such artists as Erica Jong, Richard Serra and Martha
In 1989, several members of Congress, joined by private pressure groups,
launched an attack on the NEA, claiming that it had given grants to
artists whose work was "anti-Christian" and "pornographic." Over the
ensuing months, works of art that depicted women's anger over male
dominance and homosexual and heterosexual practices and lifestyles were
denounced and ridiculed by members of Congress during debates over NEA
budget appropriations. Certain members of Congress demanded information
about NEA-funded artists whose work explored political and sexual issues.
By 1990, the agency had begun to bow to the pressure, rejecting grants to
artists of demonstrated merit if their work had been, or was likely to
become, the target of sensationalist publicity. Meanwhile, in 1989 and
1990 Congress passed two unprecedented content-based restrictions on NEA
funding, both of which were subsequently struck down as unconstitutional
by federal courts. Bella Lewitzky Dance Foundation v. Frohnmayer, 754
F.Supp. 774 (C.D.Cal. 1991); Finley v. NEA, No. CV 90-5236 (June 9, 1992).
The NEA has capitulated to Congressional and private pressure and rejected
grants to artists out of fear that those artists' work would become the
target of sensationalist publicity. These content-based decisions, in
turn, have had a chilling effect on artists throughout the country who
understand that they must conform their artistic expression to the NEAs
ideological standards in order to receive funding. Indeed, in the spring
of 1992, the acting chair of the NEA testified before a Congressional
subcommittee that the Endowment would no longer fund "sexually explicit"
The recent actions of the NEA are antithetical to its founding principle:
the encouragement of free inquiry and expression.
1) Reaffirm a commitment to keep the National Endowment for the Arts
independent of politics.
2) Oppose any efforts to impose content restrictions on the grantmaking
process, whether by legislation or administrative regulation.
Free Speech > THE HATCH ACT
Hatch Act restrictions, which amount to a categorical ban on political
speech and association, unnecessarily thwart millions of federal employees
in the exercise of their basic First Amendment rights.
The Hatch Act, 5 U.S.C. Secs. 7321-27, was passed in 1939 in response to
reports of abuse by federal employees during the 1936 and 1938 election
campaigns. It has been amended many times since that date, but its basic
purpose remains the same: to promote efficiency and integrity in
government by denying federal employees the right to participate fully in
the political process.
The Act was intended to free the worker of the 1930s from threats and
coercion by superiors, but today it is nothing more than a political
muzzle on the voices of workers and is no longer -- if it ever was --
needed. Many substantial changes have been made in the makeup of the
federal labor force, and in the system of reporting and dealing with
abuse. We now have a Merit Systems Protection Board that protects nearly
80 percent of federal workers, and both civil and criminal penalties exist
to punish coercion, threats and intimidation in the federal workplace.
The Hatch Act not only regulates speech, it prohibits core political
speech by federal employees. Currently, federal employees are not
allowed, among other prohibitions, to solicit contributions for, or
endorse candidates for partisan elections; to run for office in partisan
elections, or to speak at political conventions or distribute campaign
material in partisan elections. Moreover, these restrictions apply to
elections at all levels of government, without regard to whether the
federal employee has u sed (or could use) his or her official authority or
influence to affect the outcome of an election, or to coerce a
subordinate. Whatever the federal government's interest in preventing
political coercion in the public work force, the Hatch Act restrictions go
too far: they are a categorical ban on speech.
Legislation to reform the Hatch Act was passed by the 101st Congress and
vetoed by President Bush. The veto was overridden in the House, but fell
short by two votes in the Senate. Similar legislation was introduced in
the 102d Congress (S. 914, H.R. 20) and reported out of the Senate
Governmental Affairs Committee. The bill retains safeguards against
coercion and abuse of office, but restores to federal civilian employees
their right -- with certain prohibitions -- to take an active part in
political campaigns. Hatch Act Reform Amendments of 1992, Report of the
Comm. on Governmental Affairs, U.S. Senate (May 5, 1992). The prohibition
against running for partisan political office remains.
Support prompt enactment of the Hatch Act Reform Amendments.
Free Speech > BAN ON FEDERAL EMPLOYEE HONORARIA
Under current law, federal employees are prohibited from accepting
honoraria or other compensation for speeches, articles and appearances,
even if such activities are completely unrelated to the their jobs. This
prohibition directly impinges on the First Amendment rights of federal
The Ethics Reform Act of 1989, Pub. L. 101-194, 103 Stat. 1716, 1760-63
(November 30, 1989), makes it unlawful for members of Congress and federal
employees to receive honoraria (payments of money or anything of value)
for speeches, articles or appearances, whether or not those activities are
in any way job-related. Substantial civil penalties are provided for
violation of the honoraria law. 5 U.S.C. app. Sections 501, 504 (a).
It is clear from the legislative history of the law that Congress was
concerned with the actual and perceived impropriety caused by the
longstanding practice whereby members of Congress received honoraria from
parties who had potential interests in legislation. See e.g., 135 Cong.
Rec. H8746, H8747 (daily ed. Nov. 17, 1989). The legislative record is
devoid of any evidence either that similar abuse occurred in the federal
workforce or that Congress intended to reach the off-the-job First
Amendment activities of federal workers.
Whatever Congress' intent, the new law has had the effect of directly
impinging on the First Amendment rights of federal employees. Individuals
who write articles that are totally unrelated to their federal jobs -- on
gardening, history or the arts -- or who give lectures on religion or
modern dance, may no longer be compensated for their work. Regulations
promulgated under the law have further chilled expressive activities by
adding a confusing layer of content-based rules and exceptions. 56 Fed.
Reg. 1721, 1725-6.
Bills were introduced in the 102d Congress to narrow the honoraria ban for
federal employees to apply only to cases where either the subject matter
of the article, appearance or speech is related to official duties or
status, or where the source of the honoraria has an interest that may be
substantially affected by the performance of an individual's official
duties. (H.R. 325, S. 242). A similar bill passed the Senate in the
101st Congress. The House of Representatives passed H.R. 325 in 1991, but
the Senate bill failed to reach the floor.
During this period, a number of federal employees and unions filed suit
charging, inter alia, that the honoraria law directly burdened speech, did
not further a substantial government interest, was overbroad and was
unconstitutionally vague. See e.g., National Treasury Employees Union v.
United States, 788 F. Supp. 4 (D.D.C. 1992). On March 19, 1992, the law
was struck down on constitutional grounds. See id. However, the District
Court stayed the decision pending appeal, leaving federal workers to
suffer additional constitutional injury in the interim. The United States
appealed and argument was heard in the D.C. Circuit on November 6, 1992.
1) Support legislation to modify the ban on honoraria for federal
2) Reconsider the government's legal position in National Treasury
Employees Union v. United States.
AIDS: Centers for Disease Control AIDS Prevention Program
CAMPAIGN REFORM: Campaign Financing
CAMPAIGN REFORM: Electoral Free Speech
IMMIGRANTS' RIGHTS: First Amendment Rights of Aliens
NATIONAL SECURITY: Classification System
NATIONAL SECURITY: Freedom of Information Act
NATIONAL SECURITY: Restrictions on the Press and Others in Publishing
NATIONAL SECURITY: Ideological Visa Denials
PRIVACY: Telephone Technology
REPRODUCTIVE FREEDOM: The Gag Rule
WORKERS RIGHTS: Electronic Surveillance
The First Amendment's protection of religious freedom retains
vital significance for our time. Its prohibition against governmental
interference with the "free exercise" of religion prohibits government
from interfering with, or burdening, a person's religious practices except
in the most extraordinary circumstances. The requirement that there be no
"establishment" of religion means that the government is forbidden to take
any action that directly or indirectly enhances any or all religions.
In recent years, the Supreme Court has become less hospitable to
claims of religious liberty and has seriously eroded free exercise rights
in a series of decisions. It is even more essential, therefore, that the
political branches assume an added obligation to preserve the heritage of
religious freedom embodied in the Bill of Rights.
The First Amendment's guiding principles are familiar,
notwithstanding the fact that the Supreme Court's recognition of them is
* First, the government may not interfere with the free exercise of
religion except for the most compelling reasons.
* Second, the wall of separation between church and state must remain
intact, so that those who do not belong to the majority religion are not
branded or made to feel as outsiders in their own communities.
The wisdom of the Framers was in recognizing that adherence to
both of these principles will go a long way toward ensuring that this
country does not suffer the sectarian strife that has plagued so many
Department of Health and Human Services
Department of Justice
Religious Freedom > THE ESTABLISHMENT CLAUSE
The Bush Administration took the legal position that proof of government
coercion is required in order to find a violation of the First Amendment's
Establishment Clause. This is a radical departure from Supreme Court
precedent and would, if adopted by the Court, lead to the establishment of
The Establishment Clause prohibits the government from passing laws "which
aid one religion, aid all religions, or prefer one religion over another."
Everson v. Board of Education, 330 U.S. 1, 15 (1947). For nearly 50
years, the Supreme Court and constitutional scholars have also generally
agreed that "[t]he Establishment Clause, unlike the Free Exercise Clause,
does not depend upon any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official religion
whether those laws operate directly to coerce nonobserving individuals or
not." Engel v. Vitale, 370 U.S. 421, 430 (1962).
These fundamental principles, which have largely fulfilled the goal of the
Framers to separate religion and government for their mutual benefit, are
now very much in jeopardy. In particular, the Justice Department has
spearheaded an effort to reverse a half-century of Establishment Clause
law by insisting that government is free to support religion so long as it
avoids the more blatant forms of coercion. See, e.g., Brief of the United
States as Amicus Curiae at 15-19, Lee v. Weisman, 60 U.S.L.W. 4723 (June
Until recently, this position had been repeatedly, consistently and
properly rejected by the Supreme Court. E.g., School District of Abington
Township v. Schempp, 374 U.S. 203, 224-25 (1963); Committee for Public
Education v. Nyquist, 413 U.S. 756, 786 (1973); Wallace v. Jaffree, 472
U.S. 38, 60 n.51 (1985); County of Allegheny v. ACLU of Greater
Pittsburgh, 492 U.S. 573, 627-28 (1989) (O'Connor, J., concurring).
However, last year's decision in Lee v. Weisman, 60 U.S.L.W. 4723 (June
24, 1992), has raised new concerns that the Court may be poised to adopt a
coercion test under the Establishment Clause.
The effort to justify an establishment of religion that is not accompanied
by coercion (however broadly or loosely that term is defined) is
fundamentally misconceived for a variety of reasons. As a matter of
constitutional history, it is clear that the Framers of the Constitution
were concerned about any government endorsement of religion, whether
coercive or not. See generally Laycock, "Nonpreferential" Aid to
Religion: A False Claim About Original Intent," 27 Wm. & Mary L.Rev. 875
(1986). As a matter of constitutional logic, a coercion test would strip
the Establishment Clause of any independent meaning since the government
is already barred from coercing religious practices by the Free Exercise
Clause. See, Employment Division v. Smith, 494 U.S. 872 (1990). And as a
matter of constitutional value, a coercion test would seriously breach the
wall of separation between church and state that has largely insulated our
country from the religious strife that has plagued so many other
Direct the Justice Department to develop litigation policy that repudiates
the coercion test and reaffirms prevailing Establishment Clause
Religious Freedom > FREE EXERCISE
The First Amendment right to religious liberty is a fundamental right that
deserves the utmost protection from majoritarian intolerance. Today, as
the result of a 1990 Supreme Court ruling, the free exercise of religion
receives minimal judicial protection.
Religious freedom is one of the founding principles of this nation, and its
protection as a constitutional right deserves vigorous support. In
Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court
dramatically departed from earlier precedent and held that an individual's
religious beliefs do not relieve that person from compliance with an
otherwise valid and neutral law of general applicability. The result was
at odds with three decades of constitutional jurisprudence and gave
government broad authority over religious beliefs and practices. In so
ruling, the Court abandoned the compelling-interest justification that it
has required whenever government encroaches on constitutionally protected
fundamental rights. Religious freedom now receives minimal judicial
protection and is, instead, largely dependent on the tolerance and
sensitivity of political majorities.
In a wide variety of cases applying the Smith precedent, religious
claimants have lost where previously they would have won. Thus, among
other instances denying free exercise rights, autopsies have been
performed on Jews and Hmongs over their sincere religious objections, a
church has been excluded from an area zoned for commercial and industrial
use and landmarking boards have denied churches permission to make changes
in their buildings.
During the last Congress, 193 Representatives and 27 Senators co-sponsored
the Religious Freedom Restoration Act (RFRA), a bill that provides
statutory protection for religious freedom equal to the pre-Smith
constitutional standard. Under RFRA, government may not burden the free
exercise of religion absent a compelling state interest that is
effectuated in the least restrictive manner. That standard has proven to
be a workable test for striking a proper balance between religious liberty
and competing governmental interests. In October 1992, the House
Judiciary Committee approved RFRA, but the bill did not reach the House
floor before the session ended. Nevertheless, it received wide bipartisan
support, as well as the endorsement of a diverse group of religious and
civil liberties organizations. Enactment of RFRA would do more to promote
religious liberty than any legislative measure since the First Congress
proposed what became the First Amendment.
Support quick passage of the Religious Freedom Restoration Act.
Religious Freedom > CHILD CARE REGULATIONS
The Department of Health and Human Services has promulgated regulations
that permit tax dollars allocated by Congress for child care services to
be used for religious purposes. These regulations violate the First
Amendment's Establishment Clause.
The Establishment Clause stands as an absolute bar to government funding
of religious activities, but new child care regulations violate both the
Constitution and the underlying statute by permitting child care vouchers
to be spent for religious purposes. In 1990, Congress enacted the Child
Care and Development Block Grant Act to increase the availability,
affordability and quality of child care. The Act created a block grant
program to encourage states to develop contractual relationships with
private child care providers, and to develop a certificate program through
which qualifying parents could pay for child care services at the
providers of their choice with government-issued vouchers. The Act
contains a religious nondiscrimination requirement for eligible providers,
42 U.S.C. Section 9858l, and a provision prohibiting the support of
religious activities, 42 U.S.C. Section 9858k. The latter provision is
unequivocal, prohibiting the use of the financial assistance authorized by
the Act from being expended "for any sectarian purpose or activity --
including sectarian worship or instruction," 42 U.S.C. Section 9858k(a).
The requirement applies equally to assistance channeled through parental
choice, through government grant or through contract.
Disregarding this clear mandate, the Department of Health and Human
Services promulgated regulations on August 4, 1992 that mandate the
opposite result. The new regulations state that parental choice
certificates, "[m]ay be expended by providers for any sectarian purpose or
activity which is part of the child care services, including sectarian
worship or instruction." 45 C.F.R. Section 98.30(c)(4); 57 Fed. Reg.
34,419 (Aug. 4, 1992). The Department's regulation violates both the
authorizing statute and the Establishment Clause. Moreover, by
establishing that religious worship and instruction are within the scope
of activities that may be supported by government funds, the regulations
effectively undermine the Act's religious non-discrimination provision.
It is relatively easy for a sectarian child care provider to demonstrate
that it does not turn away individuals of another religion, while making
the setting undesirable for them by insisting on participation in
denominational worship services and religious education, all with the
apparent approval of the state because of the regulation's permissive
The regulations must be changed to comply with constitutional and
1) Abolish the Department of Health and Human Service's current regulatory
2) Promulgate new regulations that:
a. forbid the use of government child care funds to support
sectarian activities, and
b. assure that any sectarian activities are sufficiently
segregated from the child care services as to avoid a constitutionally
impermissible link between government and religion.
NATIVE AMERICANS: American Indian Religious Freedom Act
Participation in the political process consists of much more than
the franchise. It is built upon expression. Indeed, democratic
self-government cannot exist without freedom of speech. Justice Louis
Brandeis wrote in 1927: "freedom to think as you will and speak as you
think are means indispensable to the discovery and spread of political
truth." Whitney v. California, 274 U.S. 357, 375 (1927). For these
reasons, it is critical that government not curtail speech but, instead,
see its role as enhancing expressive opportunities to participate in the
nation's political discourse.
To accomplish this goal, meaningful campaign finance reform must
bring more people into the process by providing the financial means
without holding down the politically expressive activities of others
through the imposition of contribution or spending limits. Moreover,
electoral laws must recognize the substantial political free speech rights
of nonprofit, ideological organizations without undue restriction.
Federal Election Commission
Campaign Reform > CAMPAIGN FINANCING
Campaign finance reform can be an important step toward increasing access
to the political system for newcomers and challengers. Public financing
does not, however, give the government the right to restrict political
speech and association. The constitutionally appropriate method is to
expand, rather than limit, the resources available for political advocacy.
Political speech is a critical form of expression in our democracy.
Consistent with constitutional principles, campaign reform laws should be
aimed at increasing political discourse, rather than limiting it. The
current system of private campaign financing causes disparities in the
ability of different groups, individuals and candidates to communicate
their views on politics and government.
Congressional efforts to reform the current system should not restrict
political speech by imposing contribution and expenditure caps. Instead,
public financing should be authorized in order to expand political
participation and understanding. Such an exercise of power by Congress
has been upheld by the Supreme Court as a constitutional exercise of
authority "to reduce the deleterious influence of large contributions on
our political process, to facilitate communication by candidates with the
electorate, and to free candidates from the rigors of fundraising."
Buckley v. Valeo, 424 U.S. 1, 91 (1976).
Public financing, however, should not be used as a device to give the
government a restrictive power over political speech and association.
Limitations on either contributions or expenditures made for the purpose
of advocating causes or supporting candidates in the public forum impinge
directly on freedom of speech and association. Contribution limitations
are constitutionally troubling and burden lesser known candidates, as well
as those with views that do not immediately generate popular support. For
those candidates, wealthy backers, unrestricted by contribution
limitations, may be the only means of reaching enough people to win
elections or influence public policy. Moreover, expenditure limitations,
as Buckley recognized, "necessarily reduce[s] the quantity of expression
by restricting the number of issues discussed, the depth of their
exploration and the size of the audience reached. This is because
virtually every means of communicating in today's mass society requires
the expenditure of money." Id. at 19.
In our view, the imposition of contribution and expenditure caps in return
for partial public financing, as proposed by Congress last year, amounts
to an unconstitutional condition on freedom of speech. In essence, it
amounts to government buying an agreement from candidates that they will
not speak as freely and frequently as they otherwise might, and that the
candidates will also impose additional limits on the expressions of
support they will accept from others.
1) Support Congressional efforts to begin public financing of
Congressional primaries and general elections for all legally qualified
2) Oppose the use of financing as a means of imposing contribution and/or
Campaign Reform > ELECTORAL FREE SPEECH
In ruling that political speech lies at the core of the First Amendment,
the Supreme Court has decided that the government may not restrict the
ability of nonprofit corporations to spend money on federal election
campaigns. But in its attempt to implement the Supreme Court's ruling,
the Federal Election Commission has issued regulations that seriously
undermine the First Amendment principles set forth by the Court.
In FEC v. Massachusetts Citizens for Life ("MCFL"), 479 U.S. 239, 259
(1986), the Supreme Court ruled that the provisions of the Federal
Election Campaign Act that prohibit corporations and labor unions from
making expenditures "in connection with" federal elections cannot
constitutionally be applied to nonprofit corporations "formed to
disseminate political ideas, not to amass capital." On July 29, 1992, the
Federal Election Commission published a set of proposed regulations, 57
Fed. Reg. 33,548, ostensibly designed to implement the holding of MCFL.
In fact, the proposed regulations would seriously undermine the First
Amendment principles set forth in MCFL in several significant ways.
First, the initial premise underlying the MCFL decision is that political
speech lies at "the core of the First Amendment," 479 U.S. at 251, and
that any restrictions on political speech must be narrowly drawn to serve
a compelling state interest. Id. at 256. The Court then held that "the
concerns underlying the regulation of corporate political activity are
simply absent with regard to" nonprofit organizations like MCFL. Id. at
263. In its proposed regulations, the FEC has suggested a rule that would
prohibit any nonprofit organization that receives any corporate or labor
support, no matter how minimal, from making any expenditures "in
connection with" a federal election. See 57 Fed. Reg. at 33,567. That
approach cannot be reconciled with MCFL. Cf. FEC v. National Organization
for Women, 713 F. Supp. 428, 430-31 (D.D.C. 1989).
Second, the MCFL decision reiterated that any restriction on corporate
expenditures must be limited to "express advocacy" to distinguish the
discussion of issues from "exhortations" to vote for specific candidates.
479 U.S. at 248-49; see also Buckley v. Valeo, 424 U.S. 1, 44 (1976).
Once again, the proposed FEC regulations blur this constitutionally
compelled distinction by expanding the definition of "express advocacy" to
include support for "a clearly identified group of candidates." 57 Fed.
Reg. at 33,560. Among other things, this language would arguably prevent
a pro-choice group from expressing its generalized support for pro-choice
candidates, or a women's group from urging the election of more women.
This attempt to dilute the "express advocacy" rule has likewise been
rejected by the lower courts. Faucher v. FEC, 928 F.2d 468 (1st Cir.
1991), cert. denied, 112 S. Ct. 79 (1991).
Third, the proposed regulations would require the FEC to play the sort of
censorship role that it has too often and too enthusiastically played in
the past. For example, alternative versions of the proposed rules either
limit or prohibit an organization's ability to issue press releases
announcing support for a particular candidate. 57 Fed. Reg. at 33,565.
Under either version, these rules are inconsistent with the free
marketplace of ideas.
Urge the Federal Election Commission to either withdraw or reconsider its
proposed regulations on corporate and labor expenditures "in connection
with" federal elections that have been published at 57 Fed. Reg. 33,548
FREE SPEECH: The Hatch Act
The United States victory in the Cold War abroad represents the
triumph of the ideals of democracy and individual liberty, which have been
most perfectly expressed to date in the United States Constitution.
During the Cold War, however, the government frequently restricted
civil liberties in the name of national security, arguing that
restrictions were necessary to meet the threat of a monolithic Communist
conspiracy. While the worst abuses of McCarthyism are behind us, many
Cold War restrictions on individual liberty and democratic processes
remain. For example, Americans' freedom to travel abroad is still
restricted in the name of national security. There is still an enormous
legal and bureaucratic structure of government secrecy that covers
millions of documents and millions of government employees.
The tumultuous political changes that have taken place in the
world over the last five years require a reassessment of the necessity and
the constitutionality of the present secrecy system that justifies
restrictions on the First Amendment, due process, privacy and other rights
of citizens in the name of "national security." A systematic review
should be undertaken to catalogue and evaluate those restrictions.
It is time to end the Cold War at home by eliminating restrictions
on individual liberty, and by restructuring the government secrecy system
that now permits the government to operate undemocratically, in secret and
without individual accountability.
Central Intelligence Agency
Department of Defense
Department of Energy
Department of Justice
Department of State
Department of Treasury
General Services Administration
National Security Council
Selective Service Administration
National Security > CLASSIFICATION SYSTEM
The present classification system for national security information,
instead of working to protect truly sensitive material, works largely to
shield Executive Branch officials and activities from public scrutiny.
The present classification system has burgeoned out of control. Last
year, seven million new records were classified, and most classified
documents -- perhaps as many as 90 percent -- do not meet the standards
for classification in the first place or have long ago ceased to pose a
threat to the national security. See Preliminary Joint Staff Study on the
Protection of National Security Secrets, House Judiciary Subcomm. on Civil
and Constitutional Rights and House Post Office and Civil Services
Subcomm. on Civil Service (Oct. 25, 1985). Documents are often marked
classified to protect politically embarrassing information, to hide
government misconduct, to manipulate public opinion or to impede
The widespread practice of overclassifying documents undermines democratic
decision-making and distorts history. Moreover, "when everything is
classified, then nothing is classified, and the system becomes one to be
disregarded by the cynical or the careless, and to be manipulated by those
intent on self-protection or self-promotion. . . .." New York Times Co.
v. United States, 403 U.S. 713, 729 (1971) (Stewart, J., concurring).
The current Executive Order #12356 on National Security Information (47
Fed. Reg. 14874, April 2, 1982) swept away reforms intended to enhance the
public's right to know government information. Among other things, it
lowered the minimum standard for classification, required that all doubts
be resolved in favor of secrecy and discarded the requirement that
potential harm to national security, in the release of information, be
balanced against the public interest.
1) Repeal Executive Order #12356 on National Security Information and
replace it with a new order that fundamentally reforms the classification
system to significantly restrict the amount of classified information.
2) Direct an inter-agency committee to draft a new order, with an early
a. provides maximum protection to the most vital national security
secrets (e.g., weapons technology, ongoing diplomatic negotiations, plans
for military operations), and maximum disclosure of all policy-related
information that would assist Congress in carrying out its constitutional
b. subjects all other national security information to a standard
requiring that harm to national security be substantial and identifiable,
and that in each case it be balanced against the public interest of
release, with a presumption in favor of releas e;
c. requires all documents to be marked with a date or event for
release, and all documents to be automatically declassified after a
limited period of time.
3) Establish a declassification program that gives special emphasis to
historically valuable records related to the Cold War.
4) Appoint a "Cold War Commission" that includes prominent historians from
outside the government to supervise the review and expedite
declassification of documents to ensure that United States Cold War
records are made available, along with records from other countries, to
further historical understanding of the Cold War.
National Security > FREEDOM OF INFORMATION ACT
Under the Reagan and Bush Administrations, the letter and spirit of the
Freedom of Information Act -- to ensure maximum and prompt disclosure of
government information to the public -- have been seriously undermined.
The Freedom of Information Act (FOIA) requires all government agencies to
release all records unless they fall within one of the specific statutory
exemptions. 5 U.S.C. Section 552 et seq. The statute incorporates the
presumption that government information should be made public and that it
should be done quickly, within ten days of a request. Even when
information falls within one of the statutory exemptions, the agency still
has the option to disclose such information unless it is private
information about an individual, protected from disclosure by the Privacy
Act, or its release is prohibited by a specific statute.
Executive Branch agencies, however, have essentially reversed the basic
FOIA presumptions of government openness and disclosure. Most agencies
take months, if not years, to respond to requests even when the
information is of vital public interest. Such delays permit political
manipulation of the process: e.g., the expedition of requests for personal
information on President-elect Clinton that, is in any event, protected
from disclosure by the Privacy Act, while refusing to release before the
election information about the illegal searches of passport files
conducted by the State Department. In addition, the Executive Branch has
also resisted complying with other open government laws, specifically, the
Government in the Sunshine Act, 5 U.S.C. Section 552b, and the Federal
Advisory Committee Act (FACA), 5 U.S.C. App. II.
FOIA should not, however, be extended to the Congress. See William
Safire, New York Times, 10/29/92, at A27. The constitutional role of
Congress differs from that of the Executive Branch; Congress, by its
nature, acts more openly. The effect of extending the FOIA to Congress
would be to make less, not more, information publicly available. See
Cong. Rec., Nov. 21, 1991, H-10810 (statement of Cong. Bob Wise).
1) By Executive Order, affirm the importance of the Freedom of Information
Act and the other open government statutes, such as the Federal Advisory
Committee Act and the Government in the Sunshine Act.
2) Require all agencies to maximize disclosure to the greatest extent
possible and to develop procedures to respond as quickly as possible to
3) Review current Executive Branch policies, regulations and litigation
positions and revise them to achieve these goals. This review should
include revision, in particular, of current Justice Department and Office
of Management and Budget guidelines. For example, the Justice Department
should be directed not to defend FOIA withholdings unless "disclosure [is]
demonstrably harmful, even if the documents fall within the exemption in
the Act." See, May 5, 1977 letter of Attorney General Griffin Bell to
Heads of all Federal Departments and Agencies.
4) Order all federal agencies not to withhold documents on the grounds
that they disclose intelligence sources and methods, unless they also meet
the new requirements for classification.
5) Direct that information may not be withheld to protect law enforcement
sources except when the source is, in fact, a confidential one and is
6) Support legislation amending the Freedom of Information Act to ensure
greater openness and more timely processing.
National Security > SECURITY CLEARANCES
The security clearance system is based on outmoded Cold War presumptions
and authorizes extremely intrusive and unconstitutional invasions of the
privacy rights of government and defense contractor employees.
Millions of government and defense contractor employees require security
clearances, even though they rarely, if ever, handle truly sensitive
information. These employees are subjected to unnecessary and intrusive
invasions of their privacy, such as having to reveal intimate details
unrelated to their job duties, see, e.g., National Agency Questionnaire,
Department of Defense Form 398-2 revised March, 1992, asking for details
of all counseling for any purpose, and in some cases having to submit to
drug testing and polygraphs.
The current security clearance process continues to reflect outdated Cold
War presumptions, and unnecessarily concentrates resources on intrusive
preclearance background investigations. These investigations are aimed at
revealing subjective personal factors that have no relevance to whether a
person is likely to disclose classified information. Homosexuals continue
to be singled out as high security risks. See High Tech Gays v. Defense
Industrial Security Clearance Office, 895 F.2d 563 (9th Cir.), reh'g
denied, 909 F.2d 375 (9th Cir. 1990).
The denial or revocation of clearance damages reputations and usually
results in loss of employment. See Standards and Due Process Procedures
for Granting, Denying and Revoking Security Clearances, Joint Hearings
before the Subcomm. on Civil Service of the Comm. on Post Office Civil
Service and the Subcomm. on Civil and Constitutional Rights of the Comm.
on the Judiciary, U.S. House of Representatives, 101st Cong., 1st and 2d
sess. (Oct. 5, Nov. 2, 16, 1989; Feb. 28, Mar. 8, 1990). Yet government
employees whose clearances are denied or revoked are afforded little, or
often no, due process rights to contest the decision. Government
contractor employees receive somewhat better, but still inadequate, due
process protections. See Executive Order 10865, "Safeguarding Classified
Information Within Industry," 25 Fed. Reg. 1583, Feb. 20, 1960. Lack of
due process increases the risk that the clearance determination may be
used to harass whistleblowers or discriminate against disfavored groups.
The unnecessarily large number of people with clearances, and the
unnecessarily broad investigation process, means that resources are spread
too thin to permit a truly focused and effective counter-intelligence
1) Revamp the security clearance system to reduce the number of positions
requiring clearances; to prohibit discrimination against gay men and
lesbians in making clearance determinations, and to limit background
investigations to factors that are demonstrably related to government
employment or the security of information. For many jobs, the decision to
hire should automatically entitle that person to a clearance.
2) Replace Executive Orders 10450 and 10862 with a new order that provides
full due process protections for all persons whose clearances are denied
or revoked. This process should include a meaningful hearing before a
neutral decision maker, representation by counsel, an opportunity to
cross examine witnesses and judicial review for abuse of discretion.
3) Rescind Executive Order #12564, which mandates drug testing in each
agency. Drug testing of cleared employees should be allowed only with a
warrant based on probable cause and individualized suspicion. See,
Skinner v. Railway Labor Executives' Assn, 489 U.S. 602, 635 (1989)
(dissenting opinion of Justice Marshall); National Treasury Employees
Union v. Von Raab, 489 U.S. 656, 680 (1989) (dissenting opinion of Justice
4) End the use of polygraphs on cleared government employees. In the
interim, limit use of polygraphs to investigations of specific charges
against a specific individual.
National Security > RESTRICTIONS ON THE PRESS AND OTHERS IN PUBLISHING
Unconstitutionally and without authorization from Congress, the Reagan and
Bush Administrations have criminalized and otherwise penalized the
disclosure of government information to the media. The Executive Branch
has improperly required employees to submit their writings for
prepublication review after they leave the government, for the rest of
their lives. It has sought prior restraints against the publication of
government information. Recent administrations have imposed
unconstitutional restrictions on media coverage of several wars.
Previous administrations have imposed unconstitutional and unauthorized
restrictions on government officials, the press, and others in publishing
Prosecution of disclosures of government information. Congress
has consistently refused to enact an "Official Secrets Act" to criminalize
the release of non-public government information. Any such law would, in
any event, run afoul of the First Amendment. See Edgar & Schmidt, The
Espionage Statutes and Publication of Defense Information, 73 Colum. L.
Rev. 929, 940-41 (1973). Congress has, however, criminalized the release
of certain narrow categories of information, taking into account the
public interest in knowing such information, as well as the harm from
disclosure. In general, such statutes criminalize only release by
government employees, not subsequent publication by others. See, e.g.,
Atomic Energy Act, 42 U.S.C. Sections 2274, 2277; Intelligence Identities
Protection Act of 1982, 50 U.S.C. Section 421.
Nevertheless, the Reagan and Bush administrations have improperly used the
general theft and espionage statutes to prosecute individuals who leaked
or received government information, as if those statutes constituted an
official secrets act. See Statement of John C. Keeney, Deputy Assistant
Attorney General, House Comm. on the Judiciary, Aug. 2, 1989. The general
theft of government property statute, 18 U.S.C. Section 641, was intended
to apply to tangible goods, not to disclosures of information. The
espionage statute, 18 U.S.C. Section 793, was specifically aimed at
classic espionage -- the covert transmission of information to foreign
agents with the knowledge that the United States would be harmed thereby.
The Reagan Justice Department first prosecuted Samuel Morison for leaking
a classified photograph of a Russian aircraft carrier to a publishing
house. United States v. Morison, 844 F.2d 1057 (4th Cir.), cert. denied,
488 U.S. 908 (1988). The Justice Department has since expanded its use of
section 641 to prosecute not only government officials but also those who
receive the information; and it has applied the statute to even
unclassified information. Such prosecutions pose a serious threat to the
First Amendment rights of citizens and the news media. Current Justice
Department interpretation of these statutes would authorize criminal
prosecution of a newspaper reporter who receives a leaked document.
Pre-publication review. The government may properly discharge
Executive Branch employees who publicly disclose classified information in
violation of their agreement not to do so. However, some Executive Branch
agencies now also require employees to submit their writings for
prepublication review after they leave government employment -- for the
rest of their lives. The government enforces such requirements by seizing
the proceeds of any non-cleared publication, even when such publication
contains no classified information. See Snepp v. United States, 444 U.S.
507 (1980). Such censorship violates the First Amendment.
Prior restraints. The Executive Branch has also sought prior
restraints against the publication of government information, even when
that information would not cause immediate and direct irreparable harm to
the country, but rather is information important to public debate about
fundamental policy matters. New York Times Co. v. United States, 403 U.S.
713 (1971) (Pentagon Papers case); United States v. Marchetti, 466 F.2d
1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972); United States v. The
Progressive, Inc., 467 F. Supp. 990 (W.D. Wis.), appeal dismissed, 610
F.2d 819 (7th Cir. 1979).
Media restrictions during wartime. During the invasions of
Grenada and Panama, and during the Persian Gulf War, the Defense
Department imposed unconstitutional restrictions on press coverage of
those military actions, including restricting media access to members of
an officially designated press pool and requiring reporters to submit to
prepublication review by military censors. The Nation Magazine v. U.S.
Department of Defense, 762 F. Supp. 1558 (S.D.N.Y. 1991).
1) Direct the Justice Department to immediately cease prosecuting leaks of
government information under the general government theft and espionage
statutes until its policy can be thoroughly reviewed and revised.
2) Cease requiring lifetime prepublication review of writings by
3) Disavow the use of prior restraints against publication of government
4) Suspend current Defense Department rules regarding press coverage of
combat, and review whether such rules are necessary.
National Security > INTELLIGENCE OVERSIGHT ACCOUNTABILITY AND THE
During the Reagan/Bush Administrations, a series of scandals demonstrated
how secret intelligence agencies can and do abuse their power. Having
intelligence agencies carry out foreign policy initiatives in secret is
consistent with open and democratic government only if accompanied by
independent oversight and individual accountability of agency officials.
Before the 1976 revelations of the Senate Church Committee about illegal
and unconstitutional intelligence activities, the nation's intelligence
agencies were accountable only to the President and his advisors.
Congressional oversight was ad hoc at best, with intelligence agencies
often reporting only to the chair of the relevant committee. Prosecutions
of intelligence agency officials for criminal conduct were unknown.
In the late 1970s, Congress established the House and Senate Intelligence
Committees with primary and comprehensive oversight responsibilities for
the entire intelligence community. Because the intelligence agencies are
not subject to the normal public scrutiny that other agencies face, the
Intelligence Committees must serve as surrogates for the public.
The ability of these two committees to perform this vital function is,
however, dependent upon the Executive Branch acting in good faith by
providing them with required information. However, Intelligence officials
have frequently concealed, obfuscated and sometimes even intentionally
deceived their Congressional overseers in order to avoid revealing
controversial activities. Notwithstanding the prosecution of Richard
Helms and the Iran-Contra defendants, some agency officials still do not
understand that lying to Congress is a crime. And, there are no specific
criminal laws penalizing violations of the restrictions and procedures
that govern intelligence activities.
Intelligence agencies are sometimes able to prevent prosecutions of agency
officials simply by refusing to release classified information. See
United States v. Fernandez, 913 F.2d 148 (4th Cir. 1990); Second Interim
Report to Congress by Independent Counsel for Iran/Contra Matters, at
37-38 (Dec. 11, 1989). Given these problems and the conflict of interest
inherent in the Justice Department investigating executive officials
suspected of lying to Congress, a mechanism for the appointment of
Independent Counsel is a necessary part of oversight and an important
remedy against intelligence abuses. However, the law authorizing their
appointment expired on December 15, 1992.
1) Inform the intelligence agencies that the President will not tolerate
deception of Congress, and that intentional deception will be criminally
prosecuted. Provide that in certain circumstances witnesses may refuse to
answer questions, but that all answers must be truthful. Direct the
Director of Central Intelligence to be forthcoming with the intelligence
committees and not wait for them to ask questions.
2) Urge Congress to reauthorize the Independent Counsel statute on a
permanent basis, and consider appointing a permanent special prosecutor
for intelligence matters within the Justice Department.
3) Support the strengthening of intelligence oversight laws, and study the
need for additional criminal sanctions for their violation, as well as the
need for new procedures to deal with situations in which the Independent
Counsel and the Attorney General differ on the need to disclose
classified information. See the Second Interim Report to Congress by
Independent Counsel for Iran/Contra Matters, at 53-60.
National Security > THE MISSION OF THE INTELLIGENCE AGENCIES
Now that the Cold War has ended, the Executive Branch should search for
ways to cut back on the nation's massive and inherently undemocratic
secrecy system. Instead, however, the intelligence agencies have launched
a campaign to enlarge their mandates to cover non-national security
matters, such as the global economy.
The Director of Central Intelligence, Robert Gates, has testified that
"[p]olicymakers identified new requirements relating to, among other
things, environmental, natural resource and health issues, indicating that
the Intelligence Community has a wider range of customers than ever with
interests that extend beyond traditional national security concerns."
(Congressional testimony, Apr. 1, 1992.) While the government has a
legitimate interest in collecting and analyzing information on these
important issues, assigning the task to the intelligence agencies -- which
operate under the cloak of almost complete secrecy -- would make
government information more inaccessible to the public and more government
policy formulated and implemented in secret, without public debate. With
the Cold War over, the intelligence community should be examining ways to
dismantle the secrecy system, not looking for ways to make new policy
areas secret and unaccountable.
1) Refrain from asking the intelligence community to collect and analyze
information on issues not within the traditional definition of national
security: military defense and diplomatic relations.
2) Study how to collect global information and analyze it in a manner
consistent with open and democratic government.
National Security > WAR POWERS
Central to the structure of our government is the constitutional provision
that only Congress can declare war and authorize offensive uses of force.
Yet Presidents Reagan and Bush read this provision out of the
Recent Presidents have asserted that they have unilateral constitutional
authority as Commander in Chief to use military force any time they deem
fit, even in defiance of Congressional opposition. President Bush
recently reiterated that he "didn't have to get permission from some old
goat in the United States Congress to kick Saddam Hussein out of Kuwait,"
and his advisors have asserted that Bush would have gone to war against
Iraq even if Congress had voted against it.
A central tenet of the Constitution's checks and balances scheme was to
ensure that no single person or branch could take the country into war.
Accordingly, the Constitution states that only Congress can declare war or
grant letters of marque and reprisal, United States Constitution art. I,
Section 8, cl. 11, while it makes the President Commander in Chief of the
armed forces. Art. II, Section 2.
This distribution of power means that the President cannot initiate use of
the military force at his command without the prior consent of Congress.
The only exceptions are to "repel sudden attacks" on the United States and
its forces, and possibly for the limited purpose of rescuing or protecting
U.S. persons unlawfully held abroad. Historically, presidents who took
military action without Congressional authorization did so knowing they
were in violation of the Constitution.
The War Powers Resolution was passed in 1973, over Nixon's veto, as a
modest, though flawed, attempt to restore the constitutional check by
establishing procedures for effectuating the war-making powers of both
branches. 50 U.S.C. Section 1541. Since then, only President Carter
declared that he would abide by its terms. Presidents Reagan and Bush
repeatedly violated the Resolution.
During the Persian Gulf War, the constitutional balance was somewhat
restored. The Congress recognized that it must accept its constitutional
responsibility and decide whether the United States should use force
against Iraq. Just prior to its vote supporting the use of force against
Iraq, the House of Representatives voted overwhelmingly, 302-131, in
support of a resolution asserting that "the Constitution vests all power
to declare war in the Congress ...Any offensive action taken against Iraq
must be explicitly approved by the Congress of the United States before
such action may be initiated." H.Con.Res. 32 (102nd Cong., 1st sess.,
Jan. 12, 1991).
Such Congressional authorization is not only constitutionally required,
but also politically essential for any military endeavor. Without
Congressional and popular support for the war effort from the beginning,
the President cannot present a unified national front abroad and risks
major political divisiveness and upheaval at home.
1) Affirm the principles of the Declare War Clause of the Constitution and
the War Powers Resolution, which stipulate that the President will not
commit armed forces into hostile situations without the explicit consent
2) Support revision of the War Powers Resolution to establish effective
procedures for ensuring Congressional authorization of all uses of force.
3) Affirm that the Executive Branch will provide all necessary information
to Congress in connection with such decisions.
National Security > COVERT ACTION
Covert action has been used increasingly by the Executive Branch as a
means to conduct foreign policy initiatives without the knowledge or
support of Congress, and even to circumvent specific Congressional
restrictions as happened in Iran-Contra. Covert action has also led to
numerous instances of lying by government officials. This practice is
antithetical to a democratic form of government.
At the beginning of the Cold War, the United States adopted covert action
as a foreign policy instrument in direct response to similar Soviet
activities. Policymakers argued that we had to "destroy our enemies by
more clever, more sophisticated and more effective methods than those used
against us. It may become necessary that the American people will be made
acquainted with, understand and support this fundamentally repugnant
philosophy." Senate Church Committee Report, No. 94-755, Bk. I, at 9.
Americans have become all too familiar with this "repugnant philosophy"
through covert action failures and subsequent illegal coverups. The
Reagan Administration came to rely on covert action more as a convenient
means of avoiding domestic political opposition to controversial foreign
policy initiatives than as a necessary means to achieve stated policy
objectives. This point was most tellingly revealed when Robert McFarlane
testified, at the Iran-Contra hearings, that the President and his
advisors "turned to covert action [in Nicaragua] because they thought they
could not get Congressional support for overt activities."
Moreover, the Nicaragua operation, as well as others in the 1980s,
demonstrated that there is no such thing as a truly "covert" paramilitary
action. Such actions involving the use of force are covert in name only;
they are well known to the foreign countries involved, remaining secret,
if at all, only from the Congress and the American public. Other forms of
covert action are also now carried out publicly, e.g., the National
Endowment for Democracy openly works to aid foreign opposition groups and
influence foreign elections.
1) Conduct a comprehensive historical review and net assessment of covert
actions in the post-Cold War era. Specifically consider whether they
should continue at all. See The Need to Know: Report of the Twentieth
Century Fund Task Force on Covert Action and American Democracy (1992),
2) Announce substantive limitations on the use of covert action, including
bans on assassinations, subversions of democratic governments and
elections, and support for police or other internal security forces that
violate human rights.
3) Affirm that no covert paramilitary action will be undertaken without
prior Congressional notice and authorization, with an exception only if
time is of the essence -- and then Congress must be notified within 48
4) Support legislation codifying these substantive and procedural
National Security > DRAFT REGISTRATION AND CONSCIENTIOUS OBJECTION
Many draft-age Americans are currently deemed lawbreakers because, for
reasons of conscience, they have refused to register for the draft.
Because there is now no means for young men to register their intention to
seek conscientious objector status, many are forced to forego registration
and face lifelong penalties, including denial of enrollment at some state
universities, loss of educational financial aid and ineligibility for
certain kinds of federal employment. See, e.g., 50 U.S.C. app. Section
462(f) (the "Solomon amendment"). Moreover, military conscription
violates the constitutional rights to free association, freedom from
involuntary servitude and privacy. Because compulsory registration is
inextricably bound to military conscription, the constitutional arguments
against the draft are equally applicable to the registration process.
With the end of the Cold War, the nation has begun a process of downsizing
its military. The rapid mobilization of the overwhelming military force
the United States placed in the Persian Gulf in 1990 and 1991 demonstrated
the irrelevance of the draft, and confirmed the military's contention that
an all-volunteer army was superior to one that consisted of reluctant
1) Revoke Proclamation No. 4771 (July 2, 1980, 45 Fed. Reg. 45247, 94
Stat. 3775), which provides for the current registration system. This can
be done by proclamation. See Proclamation No. 4360 (March 29, 1975, 40
Fed. Reg. 14567, 89 Stat. 1255) (President Ford revoking registration and
draft requirements from Vietnam War.)
2) Seek no funding for the Selective Service System, including the draft
3) Support legislation that repeals the Military Selective Service Act, 50
U.S.C. app. Sections 451 et seq.
4) Urge Congress to restore the rights of those who were penalized for
failing to register for reasons of conscience.
National Security > AMERICANS' RIGHT TO TRAVEL ABROAD
Previous administrations declared parts of the world off-limits to
Americans purely for foreign policy reasons, not because of any danger.
These restrictions have impeded the free exchange of information and ideas
between Americans and foreigners in a variety of ways.
The right to travel. The right of Americans to travel abroad,
free of government restrictions, is critical to our ability to participate
fully in the debate on foreign policy and international security matters.
See Kent v. Dulles, 357 U.S. 116 (1958). Recent world events demonstrate
that exposure to Americans and our ideas were also powerful factors in the
demise of communism. Nevertheless, throughout the Cold War, the Executive
Branch continually restricted this right in the name of national security
-- for example, declaring entire countries off-limits.
In 1978, Congress amended the Passport Act to limit area restrictions to
situations in which the safety of American travelers is threatened. 22
U.S.C. Section 211(a). However, since 1982, the Executive Branch has used
the economic embargo laws effectively to ban travel by Americans, thereby
circumventing these statutory limitations. Current Treasury Department
regulations under the Trading With the Enemy Act (TWEA), 50 U.S.C. app.
Section 5, and the International Emergency Economic Powers Act ("IEEPA")
(50 U.S.C. Sections 1701-1706), treat personal travel-related expenditures
as economic transactions prohibited or restricted under comprehensive
trade embargoes. See, e.g., Cuban Assets Control Regulations, 31 C.F.R.
515. The Carter Administration had exempted personal travel expenses from
the general embargoes then in effect against Cuba, North Korea, Cambodia
and Vietnam, but the Reagan Administration reimposed the ban on travel to
Cuba in 1982. The Supreme Court upheld this use of the embargo authority,
despite the Court's acknowledgement that it infringes upon the
constitutionally protected right to travel. Regan v. Wald, 468 U.S. 222
The Right to Exchange Information. In 1988, Congress passed the
Berman Amendment to the Omnibus Trade Act, prohibiting government
restrictions on trade in informational materials. 50 U.S.C. app. Section
5(b)(1); 50 U.S.C. Section 1702(a)(1)(B). This law reflected the growing
consensus among policymakers and the public that foreign policy objectives
must be pursued without infringing upon the First Amendment rights of
Americans. Nevertheless, Treasury regulations under the embargo laws
continue to infringe rights protected by the First Amendment. For
example, they ban the import or export of paintings between the U.S. and
certain embargoed countries, as well as telecommunications transmissions.
The embargo authority is also used to prohibit the establishment of
permanent news bureaus in embargoed countries.
1) Amend the Treasury Department's Foreign Assets Control Regulations to
exempt from trade restrictions: all individual and group travel; exchanges
of information; scientific, educational, religious and cultural exchanges,
and the opening of permanent news bureaus with embargoed countries.
2) Support legislation to permanently prohibit such restrictions under the
trade embargo statutes. Such legislation has been introduced in the last
three Congresses and enjoyed bipartisan support.
3) Suspend enforcement of 50 U.S.C. Section 3504 to the extent that it
bans importation of "subversive" publications.
4) Urge Congress to adopt legislation repealing that provision.
National Security > IDEOLOGICAL VISA DENIALS
Despite the end of the Cold War and Congressional repeal of all
ideological exclusions for temporary visitors, the State Department
continues to bar foreigners who hold controversial views from traveling
here to speak to Americans.
One of the most infamous measures of the Cold War era was the
McCarran-Walter Act, a law that bars Communists and others holding
controversial political views from temporarily visiting the United States.
8 U.S.C. Section 1182. Under this law, U.S. audiences have been deprived
of their First Amendment right to hear the views of controversial visitors
invited to address the political topics of the day. For example, a
Presidential proclamation issued in 1985 pursuant to this law still bars
most Cubans from being admitted to this country. Proclamation Suspending
Entry as Nonimmigrants by Officers or Employees of the Government of Cuba
or the Community Party of Cuba, October 8, 1985. Even after the law was
amended to restrict the exclusion of visitors on the basis of Communist
affiliation, the State Department continued to exclude people with
controversial views on the ground that their mere entry would cause harm
to U.S. foreign policy.
In 1990, Congress finally repealed all of the McCarran-Walter Act's
ideological exclusions for temporary visitors. Immigration Act of 1990,
P.L. No. 101-649, Title VI (November 29, 1990). At the same time, the law
gives the Executive the authority to exclude visitors on the ground that
their mere entry would harm U.S. foreign policy. The asserted harm may be
based on beliefs, statements or associations if the Secretary of State
personally determines that the foreign policy interest is "compelling."
Congress also replaced the ideological exclusions provisions with a
provision for excluding persons who engage in terrorist activity.
However, the Executive Branch is now misconstruing that provision to cover
individuals who support the political goals of organizations labeled
terrorist, even though those individuals have never engaged in any
terrorist activities themselves. This misinterpretation resurrects
ideological tests for coming here to speak.
1) Reject the use of visa determinations to make foreign policy
2) Limit exclusions of visitors to instances where the visitor's proposed
activities in the United States -- other than speech -- would cause
3) Purge the Justice Department's "alien look-out list" (NAILS) of all
names listed on the basis of the person's beliefs or associations.
National Security > GOVERNMENT SURVEILLANCE
The federal government continues to investigate and keep records on the
First Amendment activities of Americans, even in the absence of any
evidence that they are engaged in unlawful activities.
With the beginning of the Cold War and the advent of McCarthyism, the
government investigated vast numbers of people whose political views it
suspected of being "subversive." Watergate-era revelations confirmed that
such government investigations, which violated the First and Fourth
Amendments, had continued into the 1970s and encompassed the civil rights
and anti-war movements. These activities included the use of secret
informers to spy on political organizations, surveillance, harassment,
disruption and illegal break-ins by the FBI as part of its infamous
COINTELPRO operations. They also included the creation of large numbers
of secret government files on political opponents and other Americans,
that recorded lawful political beliefs and activities.
The temptation by government officials to utilize the investigative powers
of the FBI, CIA and other intelligence and law enforcement agencies
against perceived "hostile" domestic political opponents remains great.
Such activities are now governed by Executive Order and Attorney General
guidelines, but that has not solved the problem. For example, Executive
Order #12333 (46 Fed. Reg. 59,941, Dec. 4, 1981) authorizes secret,
warrantless searches of Americans' houses and papers, solely upon the
Attorney General's approval. Abuses still occur -- including, for example,
the photographing of anti-Persian Gulf War demonstrators by the General
Few statutory restrictions exist to prevent a resurgence of the worst
abuses, as the Reagan Administration scuttled nearly completed efforts by
Congress and President Carter to enact a comprehensive statutory FBI
charter. While the Privacy Act prohibits the collection, maintenance or
use of information on individuals' First Amendment activities except when
relevant for law enforcement purposes, 5 U.S.C. Section 552a(e)(7),
agencies violate this provision by continuing to keep and disseminate such
information even when it is not relevant or necessary to any law
enforcement purpose. Moreover, obtaining judicial remedies for such
violations and other abuses has proved difficult. See, e.g., Alliance to
End Repression v. City of Chicago, 742 F.2d 1007 (7th Cir. 1984) (en
1) Study the continued need for such government investigations, given the
end of the Cold War.
2) Rescind Executive Order #12333. Issue a new order that applies to
government agents acting both within and outside the United States, and
a. restricts all government agencies from investigating Americans
without a reasonable suspicion of criminal activity;
b. prohibits Fourth Amendment searches without proper notice,
without a warrant and without probable cause and individualized suspicion
of criminal activity;
c. requires a warrant for the use of informers in the
investigation of groups.
3) Strengthen administrative controls over national security
investigations conducted by the FBI, and over CIA investigations of
Americans abroad, e.g., the Attorney General Guidelines and the Justice
Department Office of Intelligence Policy and Review and make those
4) Support legislation that codifies restrictions on the investigative
powers of the government, and ensures protection of First and Fourth
5) Review the issue of the existence of government files on Americans'
First Amendment activities, adopt measures to notify individuals who have
such files and measures to expunge or seal such files at the option of the
individual. Adopt procedures to ensure compliance with the requirements
of the Privacy Act regarding information on First Amendment activities.
6) Affirm the right of independent judicial review of claims that
government investigations have violated constitutional rights and, to that
end, carefully review the litigation positions taken by the government in
DRUG POLICY: Militarization of Drug Law Enforcement
IMMIGRANTS' RIGHTS: HIV Exclusions
IMMIGRANTS' RIGHTS: First Amendment Rights of Aliens
INTERNATIONAL HUMAN RIGHTS: Covenant on Civil and Political Rights
INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties
INTERNATIONAL HUMAN RIGHTS: Abduction of Foreign Nationals
LESBIAN AND GAY RIGHTS: Security Clearance
LESBIAN AND GAY RIGHTS: Military Ban
CIVIL RIGHTS ENFORCEMENT
The Clinton Administration must renew this nation's commitment to
achieving equality of opportunity for all Americans, without regard to
race, national origin, religion or gender. That goal, while not
explicitly disavowed, was severely dishonored during the last 12 years.
The Los Angeles uprising that followed in the wake of the Rodney King
verdict provided sad testimony to the fact that the goal of equality is
now more distant and elusive than at any point since the civil rights
movement began. The President must provide immediate moral leadership in
this critical area.
We can achieve authentic and tangible progress, but the Clinton
Administration must begin by rebuilding the entire civil rights
infrastructure of the federal government. We no longer even have
effective mechanisms to measure the magnitude of our nation's problem in
this area. Important institutions, such as the United States Commission
on Civil Rights, were effectively undermined, although not dismantled,
during the Reagan/Bush Administrations. Serious attention must be paid to
each of the areas in which minorities and women suffer the daily injury of
discrimination: employment, education, housing, health care and voting
We need a clear statement that the nation is committed to
providing equality of rights and opportunities, and a recognition that
historically disadvantaged groups deserve their share of the American
dream. Each workplace, school and neighborhood should be reflective of
the great diversity in this country, and a good place to start is with the
Department of Education
Department of Health and Human Services
Department of Housing and Urban Development
Department of Justice
Department of Labor
Equal Employment Opportunity Commission
Federal Housing Authority
United States Commission on Civil Rights
Civil Rights Enforcement > THE CIVIL RIGHTS ACT OF 1991
The Civil Rights Act of 1991, a significant weapon in the nation's fight
against inequality, has been severely undermined by the Bush
Administration's unduly restrictive interpretation of some of its key
President Bush signed the Civil Rights Act of 1991 on November 21 of that
year. The Act was intended to reverse a number of Supreme Court decisions
that had undermined meaningful civil rights enforcement by narrowly
interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section
2000e et seq., and the Civil Rights Act of 1868, 42 U.S.C. Sections
1981-1982. The Civil Rights Act of 1991 also closed certain gaps that had
existed in civil rights coverage, e.g., the provision of damages and the
availability of jury trials in cases of intentional gender discrimination
in employment. The 1991 Act, inter alia, effectively overrules portions
of Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989), which had
significantly increased the burdens of proof and the liability standards
that a victim of discrimination must prove.
This important civil rights victory was jeopardized, however, by White
House directives to federal agencies charged with enforcement that took
unduly constricted--and inaccurate--views of the Act. The President's
directive touched on almost every aspect of the newly enacted statute.
Two of the most egregious aspects of the Administration's approach
concerned the question of the Act's applicability to pending litigation
("retroactivity") and to construction of the statute's "disparate impact"
1. Applicability to Pending Lawsuits. As a civil rights statute,
the 1991 Act should be construed liberally to apply, at a minimum, to all
cases pending at the time of its enactment. By contrast, the Bush
Administration adopted the narrowest possible interpretation of the
statute's reach and ordered all federal agencies with enforcement powers
to act on that view.
A number of federal circuit courts have examined the issue of the 1991
Act's retroactivity, and have ruled on the question of its applicability
to cases seeking to enforce 42 U.S.C. Section 1981 or damages to redress
intentional sex discrimination in employment. With the exception of the
Ninth Circuit, Davis v. City and County of San Francisco, No. 91-15113
(9th Cir. Oct. 6, 1992), they have all refused to apply the Act to pending
cases, e.g., Johnson v. Uncle Ben's, 965 F.2d 1363 (5th Cir. 1992); Vogel
v. City of Cincinnati, 959 F.2d 594 (6th Cir.), cert. denied, 1135 S. Ct.
86 (1992); Mozee v. American Commercial Marine Service Co., 963 F.2d 929
(7th Cir. 1991), cert. denied, 113 S. Ct. 207 (1992); Fray v. Omaha World
Herald Co., 960 F.2d 1370 (8th Cir. 1992); Gersman v. Group Health Ass'n,
975 F.2d 886 (1992).
These decisions ignore the very strong arguments in favor of the
retroactive effect of certain of the Act's provisions, especially relating
to disparate impact analysis, to damages and to the applicability of
Section 1981 to certain discriminatory employment practices. Congress
clearly stated that only two sections of the 1991 Act were not to be
applied retroactively-- the section granting extraterritorial jurisdiction
to Title VII, and a narrow provision of the "disparate impact" section
that exempts the Wards Cove Company from the Act's coverage. Basic rules
of statutory construction dictate that the balance of the Act is intended
to be retroactive and, at a minimum, applied to cases based on pre-Act
violations, but filed after enactment. Failure to apply many of the Act's
provisions will lead to confusion and anomalous and inconsistent results
and will frustrate the purpose of the Act.
2. "Disparate Impact" Provisions. The Bush Administration's
directive similarly took a cramped and inaccurate view of the Act's
"disparate impact" provisions. The outcome of this seemingly technical
dispute is fundamentally important to ensuring meaningful equal employment
opportunity to minorities and women.
The new law returns to the defendant the burden of proving that a
challenged employment practice that has a disparate adverse impact on the
basis of race, sex, national origin or religion is "job related for the
position in question and required by business necessity." The provision
of the Act dealing with business necessity requires the employer to prove
that the challenged practice is both job-related for the position in
question and consistent with business necessity. The Act permits a
claimant to show the disparate impact caused by an employer's
decision-making process as a whole where s/he can show that the various
elements of the process are "not capable of separation for analysis." The
Act states that its purpose is to codify the concepts of "business
necessity" and "job related" enunciated in Griggs v. Duke Power Co., 401
U.S. 424 (1971) and its progeny up to Wards Cove. The Bush Administration
took the implausible position that the Act does not reverse Wards Cove.
1) Rescind and reverse the Bush Administration's directive to federal
agencies concerning the interpretation of the Civil Rights Act of 1991.
2) By Executive Order, make clear, at a minimum, that:
a. the Civil Rights Act of 1991 applies to all cases pending as of
the Act's enactment;
b. perpetrators of discrimination must meet a stringent standard
of business necessity to justify employment practices that have a
disproportionately adverse effect on minorities and women.
Civil Rights Enforcement > TEST SCORE NORMING
Despite the promise of equal opportunity, women, minorities and other
historically disadvantaged groups remain disproportionately excluded from
many types of jobs for which they are, in fact, fully qualified by the
operation of so-called pencil and paper tests.
Many qualified women and minorities continue to be barred from jobs and
promotions because of the disproportionately adverse impact of paper and
pencil employment tests. Many tests, particularly multiple choice tests,
measure different groups differently. The continued use of these tests
effectively erects an insurmountable paper barrier to many jobs and
promotions where such tests are required. Contrary to popular belief, a
finding of disparate impact, standing alone, does not preclude the use of
such a test.
The National Academy of Sciences recently found that the General Aptitude
Test Battery (the "GATBy") is unfair to African Americans, i.e., black
people with lower scores perform many jobs better than whites with higher
scores. Yet the GATBy is routinely used by the United States Employment
Service (unemployment offices) to refer people to jobs. To adjust for the
problem, the Labor Department has been using lower cut-off scores for
The Civil Rights Act of 1991 prohibits the users of tests from adjusting
scores or using different cut-off scores on the basis of race, sex,
national origin or religion. Unfortunately, however, the Act contains no
concomitant requirement that an employment test be both valid and fair.
As a result, tests like the GATBy can continue to be used, despite their
exclusionary effect on qualified minority applicants, without score
norming. Such a result is radically at odds with the principle of equal
1) Review all paper and pencil tests currently used by federal agencies to
ensure that they are valid and do not disproportionately exclude qualified
women and minorities.
2) Support amendments to Title VII and, in the interim, urge the Equal
Employment Opportunity Commission to issue guidelines that make clear that
employment tests must be fair and valid, and in cases where they are not
fair, valid score norming is permissible.
Civil Rights Enforcement > CAPS ON DAMAGES
Legislation is needed to ensure that women and people with disabilities
can obtain meaningful damages when they prove intentional discrimination
The availability of damage awards in employment discrimination cases is a
powerful deterrent to continued violation of our nation's civil rights
laws. Until recently, however, employers found guilty of intentional sex
discrimination, in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. Section 2000e, were subject only to back pay and injunctive
remedies. Although Section 1981 of the Civil Rights Act of 1964 allows
for an award of damages in cases of discrimination on the basis of race
and national origin, it does not apply to discrimination on the basis of
sex. The Civil Rights Act of 1991 partially corrects that problem by
enacting Section 1981A, which grants women the right to sue for damages in
cases of intentional sex discrimination in employment. Section 1981A,
however, includes caps on the amount of damages available. The new law
also allows for damages to redress intentional violations of the Americans
with Disabilities Act (ADA), but these damages are also subject to a cap.
By contrast, Section 1981 places no such caps in discrimination cases
affecting race or ethnicity.
Support the Equal Remedies Act.
Civil Rights Enforcement > TITLE VI
Under the Bush Administration, federal agencies failed to enforce Title VI
of the Civil Rights Act of 1964 to ensure that the Act protects the right
of minorities to equal opportunity in programs that receive federal funds.
Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d,
provides that no person shall be discriminated against on the basis of
race, color or national origin under any program or activity receiving
federal financial assistance. Title VI applies to education institutions,
state and local governments, private corporations and entities that they
establish. The statute is enforced in suits by the Attorney General and
private parties bringing lawsuits directly against the recipients of
federal funds, and by administrative proceedings by federal agencies for
termination of funding or other relief. Every federal department and
agency empowered to extend financial assistance through a grant, loan or
contract is required to enforce the nondiscrimination provisions of Title
Unfortunately, during the last 12 years, Title VI enforcement has been
largely ineffective because the various federal agencies have not taken
their roles as monitors of the statute's anti-discrimination requirements
seriously. Federal agencies have argued that they lacked authority to end
discrimination in their areas of regulatory expertise. They have also
resisted civil rights goals. One federal court, for example, strongly
criticized the Department of Housing and Urban Development for having an
attitude of "amiable apartheid" in funding racially segregated public
housing, and for failing to take steps to end discrimination in the
distribution of federal housing funds. Young v. Pierce, 628 F. Supp.
1037, 1056 (E.D. Tex. 1985).
Rather than taking a leadership role in helping to eradicate racial
discrimination, the federal government, instead, contributed to this
longstanding and divisive problem.
1) Direct the Attorney General to implement Title VI's prohibition on
discrimination in federally assisted programs and activities.
2) Direct the Attorney General to require all recipients of federal
financial assistance to collect and report demographic data about program
beneficiaries to ensure that federal funds are not being expended in a way
that disproportionately disadvantages minorities.
Civil Rights Enforcement > HOUSING DISCRIMINATION
The Bush Administration failed to take seriously the need to end racial
discrimination in residential housing. As a result, residential
segregation continues to divide the nation.
The Fair Housing Amendment Act of 1988 (FHAA), which became effective on
March 12, 1989, represented a major civil rights victory that strengthened
federal housing discrimination law in several important respects. The
FHAA was designed primarily to correct problems in enforcement and
coverage under Title VIII of the Civil Rights Act of 1968, 42 U.S.C.
Sections 3601-3619 (commonly known as the Fair Housing Act), and
significantly increased the power of the Department of Housing and Urban
Development to enforce fair housing rights.
1. Redlining. A major discriminatory practice that contributes to
residential segregation is the phenomenon of "redlining," a practice by
which financial institutions discriminate against a homebuyer or homeowner
on the basis of the racial composition of the neighborhood in which the
home is located. The federal government has itself been a major
perpetuator of redlining. As far back as the New Deal, the Federal
Housing Authority "redlined black neighborhoods and refused to insure
mortgages within them." Michael B. Katz, In the Shadow of the Poorhouse:
A Social History of Welfare in America 244 (1986). Fair housing
regulations promulgated by HUD now make clear that the Act prohibits
redlining, see 24 C.F.R. Section 100.70(b)-(d), and federal courts have
found statutory violations where redlining was undertaken by banks and
savings and loans, Harrison v. Otto Heinzeroth Mortg. Co., 430 F. Supp.
893 (N.D. Ohio 1977); Laufman v. Oakley Building & Loan Co., 408 F. Supp.
489 (S.D. Ohio 1976); see Cartwright v. American Sav. & Loan Ass'n, 880
F.2d 912 (7th Cir. 1989); Southend Neighborhood Improvement Assn. v.
County of St. Clair, 743 F.2d 1207 (7th Cir. 1984); insurance companies,
see NAACP v. American Family Mutual Insurance Co., No. 91-1176 (7th Cir.
October 20, 1992); McDiarmid v. Economy Fire & Cas. Co., 604 F. Supp. 105
(S.D. Ohio 1984); Dunn v. Midwestern Indemnity Mid-American Fire &
Casualty Co., 472 F. Supp. 1106 (S.D. Ohio 1979); and real estate
appraisers, see United States v. American Institute of Real Estate
Appraisers, 442 F. Supp. 1072 (N.D. Ill. 1977).
Nevertheless, redlining persists and contributes to the severe problem of
racial segregation in our communities. Redlining in the home mortgage
area is especially serious. A Federal Reserve Board study -- compiled
from evidence submitted by banks pursuant to the 1990 Home Mortgage
Disclosure Act and released in October 1991 -- found the mortgage
application denial rate to be much higher for African Americans and
Latinos than for whites and Asians, even accounting for income
disparities. For the highest income applicant groups, denial rates
nationally were 21.4 percent for African Americans, 15.8 percent for
Latinos, 11.2 percent for Asians and 8.5 percent for whites.
Insurance redlining has equally pernicious effects. As the 1968
President's National Advisory Panel on Insurance concluded more than
twenty years ago: "Insurance is essential to revitalize our cities.
Insurance is a cornerstone of credit. Without insurance, banks and other
financial institutions will not -- and cannot -- make loans."
2. Public Housing Segregation. Another discriminatory practice
that adversely affects housing opportunities for poor minorities is the
segregation that remains in our nation's public housing. When first
developed, many housing projects were subject to explicit racially
segregated admission policies. Long after de jure discrimination became
constitutionally impermissible, patterns of racial segregation continued
to be perpetuated by tenant-assignment practices and site-selection rules.
In some cities, safety and conditions also vary considerably in public
housing, depending on the race of the tenants. The federal government has
a statutory obligation to ensure that federally financed housing does not
contribute to the disease of racism that infects our country.
Segregation also taints other forms of federally subsidized housing. In
1988, Congress passed legislation that would allow indigent tenants to use
federal rent subsidies anywhere in a state, rather than just in the
jurisdiction issuing the certificate. See 42 U.S.C. Section 1437f(r)
(1992). HUD has never developed regulations to effectuate this important
anti-segregation measure. As a result, many African American and Latino
tenants remain isolated in racially segregated communities because their
federal rent subsidies are not welcome in white communities.
1) Direct the Justice Department to adopt a policy of vigorous enforcement
of the Fair Housing Act to end residential discrimination on the basis of
race. Affirmative litigation should be undertaken to ensure that public
agencies and private insurers do not engage in redlining or other
discriminatory practices that result in racial segregation.
2) Direct the Department of Housing and Urban Development (HUD) and the
Federal Housing Authority to require participants in their programs to
keep and report data showing the racial and ethnic characteristics of
3) Direct HUD to issue regulations for the 1988 portability statute that
gives Section 8 Certificate and Voucher holders the right to use their
subsidies anywhere in the state.
Civil Rights Enforcement > MINORITY SET-ASIDES
Set-aside programs for minority based enterprises should be supported as
an important remedial option in federal efforts to increase minority
participation in certain industries.
Affirmative action programs are indispensable if the nation is to fulfill
the promise of equality contained in the Fourteenth Amendment. Among the
more potent remedial options that the government possesses are minority
set-aside programs, which are intended to increase minority participation
in industries from which they have been historically excluded because of
discriminatory barriers. Nevertheless, In City of Richmond v. J.A. Croson
Co., 109 S. Ct. 706 (1989), the Supreme Court invalidated Richmond's
construction contract set-aside program for minority business enterprises
("MBEs"). The Richmond program set aside 30 percent of the total dollar
amount of city contracts for minority subcontractors, requiring general
contractors to subcontract to MBEs. The Court, applying the highest form
of equal protection review, strict scrutiny, struck down Richmond's MBE
set-aside program because the city had no evidence of "identified"
discrimination in the market in question and the program was not narrowly
tailored to the goal of remedying identified discrimination.
Despite Croson, Congress retains power to create minority set-aside
programs to redress discrimination as part of its enforcement authority
under Section 5 of the Fourteenth Amendment. In Fullilove v. Klutznick,
448 U.S. 448 (1980), the Court upheld minority set-aside programs
established by Congress to enforce the dictates of the Fourteenth
Amendment. Under Fullilove, Congress has the power to define situations
that threaten principles of equality, and to adopt prophylactic measures
Support legislation, based on Section 5 of the Fourteenth Amendment, to
establish minority set-aside programs that are narrowly tailored to meet
identified patterns of discrimination in important areas of economic life.
Civil Rights Enforcement > AMERICANS WITH DISABILITIES ACT
People with disabilities have long experienced discrimination in all
aspects of their lives. Congress passed the Americans with Disabilities
Act in 1990 to address this problem. The challenge now is to make the
promise of that law a reality for the millions of Americans it is intended
The Americans with Disabilities Act (ADA) protects people with
disabilities from discrimination in employment, state and local government
programs, public transportation and public accommodations (privately-owned
entities that offer goods and services). It provides for enforcement by
various agencies within the federal government, including the Equal
Employment Opportunity Commission (EEOC) and the Department of Justice,
and allows private parties to bring suit.
Congress mandated a delayed and staggered phase-in period for the
effective dates of the ADA's provisions, reasoning that those bound by the
statute should have time to educate themselves about the law and take
steps to comply. At this time, the statute is almost completely
phased-in. Complaints are being filed with federal agencies and being
received by members of the private bar. However, given the revolutionary
nature of the ADA's protections and attorneys' concomitant lack of
experience with ADA cases, much education still needs to be done to make
the private bar effective in enforcing the law. Moreover, in addition to
the novelty of the legal issues, attorneys are faced with new scientific
and technical questions related to disabilities and their accommodation in
the workplace and elsewhere. Similarly, the responsible government
agencies are just beginning to tackle the task of enforcement.
The Department of Justice has set up a new section within the office of
Civil Rights to specialize in ADA enforcement. In the EEOC, however, no
permanent office for ADA enforcement has been established, nor has a
permanent director of enforcement been appointed. In both departments,
the staffs assigned to ADA matters are inadequate in size.
Elaborate regulations have been issued by the appropriate federal agencies
that for the most part improve understanding of and compliance with the
ADA. In one particular area -- the effect of the ADA on insurance
coverage, particularly employers' health benefit plans --additional
regulatory guidance is warranted.
1) Establish a permanent office of ADA enforcement within the EEOC.
2) Increase the staff assigned to ADA enforcement in both the Department
of Justice and the EEOC.
3) Provide technical assistance and education programs to advocates for
4) Instruct the EEOC to issue regulations clarifying the fact that the ADA
prohibits disease-based discrimination in medical benefits plans.
Civil Rights Enforcement > HEALTH CARE
Past administrations have not fulfilled their obligation to ensure that
health care programs that receive federal funds do not discriminate on the
basis of race.
Health care in the United States is separate and unequal, characterized by
stark racial differences that are a matter of life and death. African
Americans have twice the infant mortality rate of whites and a life
expectancy that is six years shorter. Council on Ethical and Judicial
Affairs, "Black-White Disparities in Health Care," 263 Journal of the
American Medical Association 2344 (May 2, 1990). These disparities, the
result of patterns of discrimination that persist in our country's system
of health care delivery, are exacerbated by the mounting costs of health
care, which disproportionately burden the poor.
Over the last 12 years, the Department of Health and Human Services (HHS)
and its Office of Civil Rights failed to take seriously their obligations
under Title VI of the Civil Rights Act of 1964, to ensure that health care
programs that receive federal financial assistance do not, by intent or
effect, discriminate against African Americans. Discriminatory practices
went unstopped: patient dumping, exclusion from nursing homes and wrongful
denials of disability claims are merely examples. Nor did HHS even
attempt to develop a national policy that would afford access to health
care without regard to race or ethnicity.
Existing health care legislation also has a detrimental impact on
minorities. The Employee Retirement and Income Security Act of 1974
(ERISA), 29 U.S.C. Sections 1001-1242, for example, regulates employee
benefit plans and preempts any state law that seeks to regulate employers
who self-insure their employees. ERISA does not, however, contain
anti-discrimination language. At a minimum, the distribution of health
care provided by federal legislation must not have a disproportionately
adverse impact on minorities and historically disadvantaged groups.
1) Direct HHS to review all programs that receive federal financial
assistance and Medicaid and collect and report demographic data about
program beneficiaries to ensure that federal funds are not being spent in
a way that disproportionately disadvantages minorities.
2) Direct HHS to develop health policy that ensures African Americans and
other minorities access to the health care they need in order to overcome
the adverse effects of discriminatory exclusion.
ACCESS TO JUSTICE: Attorney's Fees
ACCESS TO JUSTICE: Rule 11 Reform
CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Enforcement
CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Compliance
EDUCATION: Equity in Testing and Education
EDUCATION: Equity in Financing
EDUCATION: Race-Exclusive Scholarships
IMMIGRANTS' RIGHTS: HIV Exclusion
IMMIGRANTS' RIGHTS: Employer Sanctions
IMMIGRANTS' RIGHTS: Private Alienage Discrimination
LESBIAN AND GAY RIGHTS: Discrimination
NATIVE AMERICANS: Indian Civil Rights Act
PRISONERS' RIGHTS: Civil Rights of Institutionalized Persons Act
VOTING RIGHTS: Transfer of Decisionmaking Authority
VOTING RIGHTS: Section 7 Enforcement
VOTING RIGHTS: Section 7 Compliance
WOMEN'S RIGHTS: Economic and Pay Equity
WOMEN'S RIGHTS: Educational Equity
WOMEN'S RIGHTS: Health Equity
WOMEN'S RIGHTS: Military Combat-Exclusion
WOMEN'S RIGHTS: Sexual Harassment in the Military
WOMEN'S RIGHTS: Drug Dependent Women
The constitutional issues of educational adequacy and equity are
among the most important that the Clinton Administration will consider.
As the Supreme Court explained in its landmark decision, Brown v. Board of
Education, 347 U.S. 483, 493 (1954), "it is doubtful that any child may
reasonably be expected to succeed in life if he is denied the opportunity
for education." Forty years after Brown, however, the promise of equal
educational opportunity remains an empty promise for millions of children.
The Clinton Administration must make clear that improvement of our
nation's education system implicates fundamental issues of civil rights
and civil liberties. The Administration must strike a decisive blow
against the segregation and resegregation that taint our public school
system. The Administration must take affirmative steps to end the "savage
inequalities" that affect the quality of education provided in public
schools. Finally, the Administration must ensure that programs of public
school "choice" conform to accepted principles of the separation between
church and state, and that they not disadvantage the children who are left
behind in schools considered less desirable by more affluent or informed
The Clinton Administration must work to remove barriers that
prevent minorities, women and others from securing access to higher
education. Minority scholarships must be retained and expanded. The
Administration must also urge the Department of Education to undertake
vigorous enforcement of the anti-discrimination requirements of Titles VI
and IX and their regulations. The Department of Education should use its
regulatory power to encourage the development of admission and assessment
standards for elementary, secondary and higher education programs that
reflect cultural, ethnic, racial and ethnic diversity and that do not have
a disproportionately adverse impact on minorities and females.
Department of Education
Department of Justice
Education > EQUITY IN TESTING AND EVALUATION
The standardized tests used to evaluate elementary and secondary school
students across the country operate to deny females and minorities
important educational opportunities. The Office of Civil Rights of the
Department of Education has been derelict in enforcing the protective
testing and evaluation requirements of the Civil Rights Act of 1964.
The National Commission on Testing and Public Policy estimates that each
year elementary and secondary school students take 127 million separate
standardized tests, at a direct cost of between $90 million and $127
million annually. National Commission on Testing and Public Policy, From
Gatekeeper to Gateway: Transforming Testing in America, 15,17 (1990).
However, it has long been understood that standardized tests, although
often regarded as an impartial method of evaluating student aptitude and
achievement, in fact operate to deny people of color and women many
important educational opportunities. For various reasons, including built
in cultural biases and inferior schooling, such tests disadvantage
minorities and women in their pursuit of scholarships and admission to
competitive educational programs. When used as prerequisites for students
to qualify for further education or diplomas or for entrance into various
occupational fields, they have created significant barriers for these
groups. Reliance on such tests has resulted in substantial
over-representation of minorities in special education programs that stunt
their educational attainment.
The issue of bias in educational testing has been addressed by a number of
courts. Applying principles developed under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. Section 2000e, these courts have held that
educational tests that have the effect of discriminating on the basis of
race and/or national origin, and that are not shown by the test user to be
required by "educational necessity," i.e., to bear a demonstrable
relationship to classroom education, are in violation of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. Section 2000d -- which prohibits
discrimination on the basis race, national origin and religion in all
programs receiving federal financial assistance, see e.g., Georgia State
Conference of Branches of NAACP v. Georgia, 775 F.2d 1403 (11th Cir.
1985); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); United States v.
LULAC, 793 F.2d 636 (5th Cir. 1986); Debra P. v. Turlington, 730 F.2d 1405
(11th Cir. 1984). The same standard has been applied under Title IX of
the Education Amendments of 1972, 20 U.S.C. Section 1681, to a test having
the effect of discriminating on the basis of gender. Sharif v. New York
State Education Department, 709 F.Supp. 345 (S.D.N.Y. 1989).
As in the case of other areas of enforcement of these laws, the Office of
Civil Rights of the Department of Education has been derelict in its
implementation of the testing and evaluation requirements of Title VI and
Title IX. The continued uncritical use of such tests is having a
devastating impact on the educational opportunities of minorities and
women. Moreover, due to understandable anguish over the manifest
shortcomings of our educational system, many observers have advocated a
more stringent testing apparatus, including a so-called "national test."
Such a test, particularly if not accompanied by real reforms in the public
school system, would not change anything, but would likely serve to
stigmatize minorities and women and create barriers to their advancement.
1) Instruct the Department of Education's Office of Civil Rights to
aggressively enforce Title VI and Title IX of the Civil Rights Act of 1964
to ensure that minorities, women and other historically disadvantaged
groups are not denied equal educational opportunity because of
discriminatory testing procedures.
2) Encourage the development of evaluation methods that do not
discriminate on the basis of race, national origin or sex.
Education > EQUITY IN FINANCING
Great disparities exist in the financing of elementary and secondary
schools across the country. This results in unequal educational
opportunity, especially for minority and poor students, denying them equal
protection under the federal and state constitutions.
Equal educational opportunity must be the building block that underlies
federal educational policy. The current decentralized system of financing
American elementary and secondary education results in wide variations in
educational spending from state to state, district to district and even
school to school. These financing disparities result in unequal
educational opportunity. Moreover, inequitable systems of school finance
inflict disproportionate harm on minority and economically disadvantaged
students. Lack of adequate funding affects a school system's preschool
child development programs; class size; counseling and parental
involvement programs; that school system's ability to attract and retain
experienced faculty; its curricular offerings, physical plant and a
variety of learning resources -- all of which have been shown to have a
direct correlation with educational performance.
Although the Supreme Court rejected an equal-protection challenge to
school financing schemes in San Antonio Independent School District v.
Rodriquez, 411 U.S. 1 (1973), financing disparities undermine educational
opportunities with severe ramifications for the country's democratic
future. Moreover, state courts have upheld claims that school financing
disparities deny equal protection and the right to education under state
constitutions. See e.g., Abbott v. Burke, 575 A.2d 359 (N.J. 1990); Rose
v. Council for Better Education, Inc., 790 S.W.2d 186 (Ky. 1989); Edgewood
Indep. School Dist. v. Kirby, 777 S.W.2d 391 (1989); Pauley v. Kelly, 255
S.E.2d 859 (W.Va. 1979); Horton v. Meskill, 376 A.2d 359 (Conn. 1977); and
Serrano v. Priest, 487 P.2d 1241 (1971). Additional cases are now
It is appropriate for the federal government to play a role in promoting
educational equity. Traditionally, the federal government has taken
responsibility in education to assure that economically disadvantaged
students receive additional assistance and to end discrimination. Both of
these customary functions are implicated by funding inequities. With
school districts already strapped for resources, the situation can only
get worse without federal intervention.
Use the leverage of grants-in-aid programs to require that states equalize
educational spending among their districts and schools to ensure adequate
education for all school children.
Education > "CHOICE" VOUCHERS
The use of vouchers to subsidize the cost of education at private and
parochial schools would have the effect of benefiting religion and of
resegregating the nation's public schools, as well as raising church-state
and equality concerns.
In response to general dissatisfaction with the nation's public schools,
the Bush Administration and many others have promoted the concept of
"education choice," whereby parents would receive vouchers to assist them
in paying tuition at any school they choose -- public, private or
The supposed evenhandedness of this proposal is illusory. Public schools
do not generally charge tuition and would not qualify for, or benefit
from, voucher payments under most proposals. The overwhelming number of
private schools -- 83 percent -- are religiously sponsored. Thus, the
voucher system that has been proposed would amount to a form of aid to
parochial schools and raise serious constitutional problems.
The Supreme Court has never directly addressed the Establishment Clause
problems presented by a voucher program that includes parochial schools.
But the Supreme Court has also never wavered from its view that the
Establishment Clause forbids the state from providing financial support
for sectarian education. See e.g., Grand Rapids School District v. Ball,
473 U.S. 373, 393-94 (1985). Because parochial schools do not and cannot
separate their educational purpose from their religious mission, the
expenditure of tax dollars for general educational purposes at a sectarian
school violates this constitutional prohibition. In Mueller v. Allen, 463
U.S. 388 (1983), the Court did reject a facial challenge to a Minnesota
statute permitting certain educational expenses to be taken as tax
deductions, whether incurred in public or private school. However, the
Court has twice struck down a program of tuition grants and tax benefits
to the parents of children attending religious schools. Committee for
Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973);
Sloan v. Lemon, 413 U.S. 825 (1973).
In our view, the constitutional inquiry should not turn on whether "the
aid was formally given to parents [or] to the religious schools . . ."
Grand Rapids, 473 U.S. at 394. Rather, we think the critical inquiry is
whether the aid provides "direct and substantial advancement of the
sectarian enterprise." Wolman v. Walter, 433 U.S. 229, 250 (1977). It is
well settled, after all, that "[a]id may have that effect even though it
takes the form of aid to students or parents." Witters v. Washington
Department of Services for the Blind, 474 U.S. 481, 487 (1986). Judged by
this standard, the use of vouchers to subsidize the cost of sectarian
education is constitutionally flawed and should be rejected.
Other constitutionally sensitive issues are implicated by vouchers that
may be spent at non-religious private schools, most of which charge
tuition that is several times the per student cost of education at a
public school. Thus, it is unrealistic to believe that government
vouchers will enable most public school students to choose a private
school. Moreover, a recent federal study found that 63 percent of
non-religious private schools enroll no African American students, and 80
percent no Latinos. Since private schools are free to choose their
students, choice plans are likely to relegate children from poor families
in poor neighborhoods -- especially those most at-risk -- to society's
worst schools, while providing a windfall to families that can already
afford to send their children to the country's most exclusive private
schools. "Choice" also creates a real potential for resegregating public
school systems that have been successfully desegregated by siphoning off
whites and the more affluent.
Oppose legislative proposals to subsidize the cost of parochial and
private school education through publicly funded vouchers.
Education > RACE-EXCLUSIVE SCHOLARSHIPS
The Bush Administration's unduly restrictive policy with respect to
race-exclusive scholarships and financial aid for minorities perpetuates
the underrepresentation of minorities on campuses throughout the country
and frustrates the legitimate government purpose of campus diversity.
For decades, the doors to many of our nation's colleges and universities
were closed to minority students. Although formal state enforcement of
segregation has been abandoned in the past 30 years, the legacy of
institutional racism remains evident today. Minorities remain
significantly underrepresented on numerous college campuses and face
disproportionately difficult challenges in achieving educational success.
Although they represent only an insignificant portion of total financial
aid, scholarships that specifically target minority students have been
extremely effective tools for recruiting minority students to our nation's
universities and sending a message that they are welcome. The federal
government has long been the largest provider of race-based financial aid,
but numerous public and private universities and foundations have also
employed minority scholarships as a resource to promote campus diversity
and/or to remedy the effects of past discrimination.
Despite the long history of federal support for minority scholarships, the
Bush Administration, in an effort to appease conservative ideologues,
initially declared such scholarship programs to be in violation of Title
VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d, and the Equal
Protection clause of the Fourteenth Amendment. The ensuing uproar led the
Secretary of Education to call for a policy reexamination. 56 Fed. Reg.
24,383 (1991). The result of this reexamination was proposed "policy
guidance" from the Department of Education that permitted some
race-exclusive scholarships, subject to numerous restrictions. 56 Fed.
Reg. 64,548 (1991).
The Bush Administration policy is unduly restrictive in at least three
respects. First, it permits race-exclusive scholarships as a remedy for
past discrimination only where there exists an official "finding of past
discrimination" by a court, legislature, or administrative agency. 56
Fed. Reg. at 64,549. Such a requirement creates a severe disincentive
against voluntary corrective actions by colleges and universities that may
have discriminated in the past. See Wygant v. Jackson Bd. of Educ., 476
U.S. 267, 290 (1986) (O'Connor, J., concurring). Second, the policy
guidance permits such remedial scholarships only where the scholarships
themselves are "necessary to overcome past discrimination," 56 Fed. Reg.
at 64,549 (emphasis added), an impossibly high standard. Finally, while
permitting scholarship programs that take race into account as a weighing
factor for promoting diversity, the Bush policy prohibits colleges and
universities from utilizing race-exclusive scholarships for this purpose.
Id. at 64,548. Neither the legal requirements of the Constitution and
civil rights laws nor logic supports this distinction. Promoting campus
diversity is a legitimate government purpose and justifies race-exclusive
scholarships that further that end.
Withdraw the Bush Education Department's proposed policy guidance, and
reinstate policy that permits race-exclusive scholarships, where
appropriate, to further the goals of remedying past discrimination or
promoting campus diversity -- so long as the scholarship programs do not
unduly limit the access of majority students to financial aid.
AIDS: Centers for Disease Control AIDS Prevention Program
FREE SPEECH: Collegiate Free Speech Protection Act
WOMEN'S RIGHTS: Educational Equity
The right to vote "is of the essence of a democratic society."
Reynolds v. Sims, 377 U.S. 533, 555 (1964). During the last 12 years,
however, the federal government failed to protect the right to vote and
opposed legislation that would have strengthened the Voting Rights Act of
In 1982, for example, Attorney General William French Smith took
the position that Section 2 of the Voting Rights Act should not be amended
to prohibit voting rights practices that "result" in discrimination, a
provision seen as necessary to achieve meaningful minority political
participation. Despite the Reagan Administration's opposition, the
amendment passed by overwhelming majorities in both houses. When amended
Section 2 was first before the Supreme Court in Thornburgh v. Gingles, 478
U.S. 30 (1986), the Solicitor General argued that a Section 2 claim should
be foreclosed by token or minimal minority electoral success. The Court
rejected this argument, which would have greatly diminished the
effectiveness of the 1982 amendment.
President Bush continued the assault on equal voting rights when
he vetoed the National Voter Registration Act on July 2, 1992. The Act,
designed to bolster the depressed levels of voter registration and voting
in the United States, had been passed in both houses of Congress by
substantial majorities and would have allowed eligible voters to register
for federal elections by mail when they applied for a drivers' licenses
and at state and federal agencies.
The Clinton Administration should dedicate itself to full and
effective enforcement of the Voting Rights Act on behalf of those
specially protected by the statute -- African Americans, Native Americans,
Asian Americans, Native Alaskans and those of Spanish heritage. And it
should immediately support passage of a national voter registration act to
encourage as inclusive a franchise as possible.
Department of Justice
Voting Rights > TRANSFER OF DECISION-MAKING AUTHORITY
The Supreme Court has interpreted the Voting Rights Act of 1965 to provide
no protection against voting changes that transfer decision-making
authority among elected officials.
Prior to the decision in Presley v. Etowah County Commission, 112 S.Ct.
820 (1992), the transfer of decision-making authority from one official,
or set of officials, to another was held to be a change in voting that
required preclearance under Section 5 of the Voting Rights Act, 42 U.S.C.
Section 1973c. See, e.g., Blanding v. Du Bose, 454 U.S. 395 (1982) (state
law transferring powers of county governance from state to county
officials "required preclearance under Section 5 of the Voting Rights
Act"); Hardy v. Wallace, 603 F. Supp. 174 (N.D.Ala. 1985) (statute
transferring the power to appoint members of a county racing commission
from the local legislative delegation to the governor was a change subject
to Section 5); Robinson v. Alabama State Department of Education, 652 F.
Supp. 484 (M.D.Ala. 1987) (transfer of authority from a board of education
whose members were elected countywide to one whose members were appointed
by the city council was required to be precleared under Section 5). The
decisions in these cases were said to be controlled by Allen v. State
Board of Elections, 393 U.S. 544, 566-67 (1969), which held that Section 5
was to be given "the broadest possible scope" to reach any change in
voting, no matter how minor.
In Presley, the decision-making authority of individual county
commissioners was substantially curtailed and transferred to the
commission as a whole. This occurred after an African American was
elected to the commission, following the implementation of a consent
decree in a case that challenged the preexisting method of elections as
being racially discriminatory. A majority of the Court held that the
change in question affected only the allocation of power among
governmental officials, and was not a change "with respect to voting,"
subject to Section 5. As the dissent pointed out, however, to exempt such
changes from preclearance allows jurisdictions to transfer the authority
of black elected officials to other officials controlled by the majority,
and thus undermines the remedial purposes of the Act.
The discriminatory transfer of decision-making authority will likely
increase as a result of the Presley decision. Covered jurisdictions can
be expected to try to do indirectly what they could not do directly: deny
or abridge the power of the minority vote. To allow minorities the right
to vote, yet deny them the equal right to govern, is to betray the broad
vision of political equality contained in the Voting Rights Act.
Initiate and support legislation to return the Voting Rights Act to the
state of the law that existed prior to the Supreme Court's decision in
Voting Rights > SECTION 2 ENFORCEMENT
The Reagan and Bush Administrations seriously neglected their duty to
enforce Section 2 of the Voting Rights Act.
The Attorney General has the primary duty of enforcing the Voting Rights
Act. During the past 12 years, however, the Department of Justice has
seriously neglected the important responsibility of enforcing the Act
through affirmative litigation, where it must exercise initiative in
instituting challenges to discriminatory voting practices.
Between 1978 and 1989, the United States was a party in only 200 of the
2,419 voting rights cases filed in federal court. See annual Reports of
the Director of the Administrative Office of the United States Courts,
Table C-2, U.S. District Court, civil cases commenced, by basis of
jurisdiction and nature of suit, June 30, 1978-June 30, 1989. The United
States was named as a defendant in 84 of these suits involving Section 5
preclearance and bail-out, and the Attorney General was, thus, required to
defend them. Of the remaining 2,335, the United States was a plaintiff in
only 116, or five percent, including cases filed initially by private
parties and in which the United States was a plaintiff-intervenor.
Private parties brought the remaining 95 percent of the cases. As is
apparent, the minority and civil rights communities have borne a
disproportionate burden of modern voting rights enforcement.
When the Attorney General fails to discharge the duty to enforce the
Voting Rights Act, that failure not only allows the denial of protected
rights in particular cases to go unredressed, but it also sends a message
that the enforcement of equality in voting is not a priority of the
administration and, thereby, encourages further violation of voting
Direct the Attorney General to pursue a vigorous program of affirmative
litigation to enforce Section 2 and the other provisions of the Voting
Rights Act, as they apply to African Americans and to language minorities
(i.e., Native Americans, Asian Americans, Native Alaskans and those of
Spanish heritage) who were covered by amendments to the Act in 1975.
Voting Rights > SECTION 2 COMPLIANCE
The Attorney General, who has the primary duty of enforcing the Voting
Rights Act of 1965, has failed to make clear that submitting jurisdictions
have the burden of proving compliance with Section 2 of the Act, which
prohibits voting practices which "results" in discrimination.
Our nation's quest for equality must ensure that minorities are not barred
from the franchise by practices that disproportionately burden their right
to vote. In 1982, Congress amended Section 2 of the Voting Rights Act, 42
U.S.C. Section 1973, in response to the decision in Mobile v. Bolden, 446
U.S. 55 (1980), to provide that voting practices are unlawful if they
"result" in discrimination, without regard to whether they were adopted or
are being maintained with a racially discriminatory purpose. The results
standard is essentially a racial-fairness standard and was intended to
cure the anomaly created by Beer v. United States, 425 U.S. 130 (1976),
that voting changes were lawful under Section 5 even if they produced
discriminatory results, so long as they were not purposefully
discriminatory or were not retrogressive. Congress indicated in the
legislative history that the results standard was to apply to Section 5
preclearance. Subsequently, on January 6, 1987, the Attorney General
issued implementing regulations authorizing a Section 5 objection "to
prevent a clear violation of amended Section 2." 28 C.F.R. Section 51.55
(b)(1). In practice, the Attorney General has frequently objected to
submissions under Section 5 that violated Section 2 (as well as other
provisions of the Act).
The Attorney General's regulations need to be amended to clarify two matters:
First, the regulations fail to provide that a submitting jurisdiction has
the burden of showing compliance with Section 2. Congress allocated the
burden of proof in Section 5 preclearance to "shift the advantage of time
and inertia from the perpetrators of the evil [of discrimination in
voting] to its victims." South Carolina v. Katzenbach, 383 U.S. 301, 328
Second, the evidentiary standard under Section 5 is the usual one of a
"preponderance" and not "clear and convincing evidence." City of Port
Arthur, Tex. v. United States, 517 F. Supp. 987, 1011 (D.D.C. 1981),
aff'd, 459 U.S. 159 (1982). If the Attorney General is unable to
determine whether or not a proposed voting change has a discriminatory
result, an objection should be entered. There is no warrant for lowering
the standard for preclearance established by Congress and the courts by
requiring clear and convincing evidence of a violation of Section 2.
Direct the Attorney General to amend regulations governing the
administration of Section 5 of the Voting Rights Act to provide that
submitting jurisdictions, and not the Attorney General or affected
minorities, have the burden of proving compliance with Section 2.
Voting Rights > NATIONAL VOTER REGISTRATION ACT
Legislation is needed to provide convenient and accessible voter
registration for all American citizens.
Literacy tests and poll taxes historically excluded minorities and the
poor from the franchise. Although these barriers no longer exist, the
right to vote remains meaningless if the right to register and to stay
registered is limited. To make registration more accessible to all,
national voter registration is needed to break down the inconvenient and
cumbersome procedures that exist in many states.
The National Voter Registration Act (Motor Voter Bill) would allow
eligible voters to register for federal elections by mail, when applying
for a driver's license and at the offices of state and federal agencies.
Since an estimated 91 percent of the adult population has either a
driver's license or photo ID card, automatic voter registration when
individuals apply for, renew or change their address on such licenses is
likely to pick up the largest number of unregistered voters. Since people
with disabilities and the unemployed and poor are less likely to drive,
designated agencies providing services to these people will also have
voter registration services. States that have adopted these measures have
dramatically increased political participation.
On May 20, 1992 the Senate passed the National Voter Registration Act by a
vote of 61-38. On June 16, 1992 the House passed the bill by a vote of
268-153. On July 2, 1992 President Bush vetoed the bill, on the pretext
that it would impose significant costs on the states and promote fraud.
On September 22, 1992 the Senate failed to override President Bush's veto
of the proposed legislation by a vote of 62-38.
The concerns President Bush stated in his veto message are groundless.
States that have adopted these methods have dramatically increased
political participation while saving substantial funds. Furthermore, the
bill includes postal rate reductions to offset the costs of
implementation. Although states that already use the methods of the Motor
Voter bill report no problems with fraud, the bill also has provisions
that address such concerns. The legislation strengthens federal penalties
for fraud while leaving in place state procedures responsive to local
conditions. Finally, this legislation provides uniform ways for removing
from the rolls those who have moved or died or are ineligible to vote for
other reasons, without removing those who have not voted recently.
Support the National Voter Registration Act.
Voting Rights > STATEHOOD FOR THE DISTRICT OF COLUMBIA
The District of Columbia, with its more than 600,000 residents, meets the
historical Congressional test for statehood and should be admitted to the
United States as the 51st state.
The U.S. stands alone among 115 nations that have elected national
legislatures in denying representation to residents of its capital. This
means that the District's 600,000 residents, many of whom are persons of
color, are denied any meaningful voice in the nation's political affairs.
Moreover, the District of Columbia is the only entity subject to United
States jurisdiction that is taxed without having a voting representative
in Congress. Puerto Rico, Guam, the Virgin Islands and American Samoa,
all U.S. territories, pay no federal income taxes. District residents,
however, are not only taxed but pay more in federal taxes than eight
states, and more per capita than 48 of the 50 states -- a billion dollars
in taxes -- to the federal treasury. The New Columbia Statehood Act,
which would allow for the admission of the State of New Columbia into the
Union, would terminate Congress' power to overturn, amend or repeal all
District-passed legislation and budgets and grant Congressional voting
representation to over 600,000 District residents.
There is no constitutional impediment to granting statehood to residents
of the District of Columbia, and a constitutional amendment is not a
prerequisite. All that has been required for the admission of other
states into the Union is a simple majority of both Houses of Congress and
the President's signature. The Constitution requires that Congress
exercise exclusive control over a federal seat of government that does not
exceed 100 square miles. No minimum size is specified. Congress can and
has in the past reduced the size of the District without an amendment.
The constitutionally-mandated federal seat of government would be
preserved by maintaining the District of Columbia as the "National Capital
Service Area," comprised of key federal buildings, agencies and monuments,
with the remaining territory admitted into the Union as the state of New
The District meets the historical three-part Congressional test for
statehood: District residents have expressed, through a democratic
process, their desire to be a state; they have agreed to accept the
republican form of government practiced in the United States, and there
are clearly sufficient people and wealth to support a state. The District
of Columbia, with a population of 639,000, has nearly as many or more
people than six states, each of which has two senators.
Finally, representation in Maryland through retrocession is not a viable
alternative. District citizens have voted for statehood, not
retrocession. Moreover, the Maryland state legislature would also have to
approve. A recent survey reflected that only seven of the 189 Maryland
legislators were willing to have the District ceded back to their state.
Thus, it is apparent that citizens of the District, as well as of
Maryland, overwhelmingly reject retrocession.
Statehood for the District of Columbia is the only option that will give
D.C. residents the full bundle of rights enjoyed by all other U.S.
citizens. The citizens of the District of Columbia seek no more than
citizens in any other state -- the right to self determination, full and
equal voting representation in Congress and local legislative, budgetary
and judicial autonomy.
Support the New Columbia Statehood Act.
CAMPAIGN REFORM: Campaign Financing
CAMPAIGN REFORM: Electoral Free Speech
PRISONERS' RIGHTS: Voting Rights
In the late 20th century, women in the United States are still
second-class citizens in virtually all aspects of economic and public
life. To end this second-class status, and to reach the ultimate goal of
complete elimination of all barriers to women's full economic, social and
political equality, requires our society's total commitment and
Not all of the areas in which women encounter bias and sexism are
within the control of the federal government, but many of the areas of
economic discrimination are. All forms of employment discrimination
against women must be eliminated, including pervasive wage discrimination,
widespread occupational segregation, the "glass ceiling" on advancement,
discrimination on the basis of pregnancy and childbearing capacity,
rampant sexual harassment and all other forms of discrimination against
women in the workplace.
All forms of discrimination against girls and young women in
education must be eradicated at all levels. Women, especially poor women,
must have equal access to affordable housing, food, health care,
education, job training, child care, child support enforcement and other
United States Commission on Civil Rights
Department of Defense
Department of Education
Equal Employment Opportunity Commission
Department of Health and Human Services
Department of Justice
Department of Labor
Women's Rights: > ECONOMIC AND PAY EQUITY
All forms of discrimination against girls and young women in education
must be eradicated at all levels. Women, especially poor women, must have
equal access to affordable housing, food, health care, education, job
training, child care, child support enforcement and other essential
services. Women are subjected to widespread occupational segregation that
excludes them from higher paying, traditionally male occupations.
The problem of sex-based wage discrimination has long been recognized as a
major obstacle to the full economic equality of women. Simply requiring
"equal pay for equal work" has never been sufficient (even when there is
adequate enforcement of that standard) because the most pernicious form of
wage discrimination occurs when women are paid unequal wages for jobs of
equal value to the employer. This has been a major factor contributing to
the "feminization of poverty." Because of entrenched occupational
segregation, women are often concentrated in jobs involving skill, effort
and responsibility equal to, or greater than, that required in jobs in
which men tend to predominate. For example, in one suburb of Washington
D.C., liquor clerks with two years experience and a high school diploma
(nearly all male) were paid more than county school teachers with a
Bachelor's degree and two years experience (more than two-thirds female).
See Americans for Democratic Action, Breaching the Next Barricade: Pay
Equity for Women.
During the last 12 years this problem has been largely ignored. Although
existing civil rights laws could tackle much of this destructive form of
discrimination, women have found the federal courts to be unreceptive to
their claims. In addition, even the most modest proposals for new
legislation (e.g., a bill that would set up a comparable worth study of
jobs in the federal government) have languished.
Meanwhile, women and minorities continue to suffer disproportionately from
the general economic distress in the country. Despite some gains in the
1980s (based largely on a decline in the earning power of men), women
still earn an average of 72 cents to the dollar earned by men. Women
continue to be subjected to widespread occupational segregation that keeps
them out of high-paying, traditionally male occupations. Because women
are often employed in part-time or temporary jobs, they also lack
benefits, such as pensions and health insurance. Older women suffer the
loss of pension security when long time marriages end, leaving former
homemakers and low-wage earning women without means of support.
Throughout the Reagan/Bush years, a number of legislative initiatives to
deal with these and other economic justice issues were proposed. Many
fell under the general rubric of the Women's Economic Equity Act, which
encompassed a wide variety of bills proposing corrective solutions.
Examples include: the Pay Equity Technical Assistance Act (H.R. 386), the
Non-Traditional Employment for Women Act (H.R. 906), and the Women in
Apprenticeship and Non-Traditional Occupations Act (H.R. 3475) to address
the problem of sex discrimination in blue collar, predominately male
occupations; the Part-time and Temporary Workers Protection Act, which
would amend ERISA to lower the number of hours an employee must work each
year to qualify for a pension, and provide health benefits on a pro rata
basis to part-time workers, and the Earnings Sharing Act (H.R. 52), the
Former Military Spouses Act, and the Federal Employees Former Spouses Act
(H.R. 108), which would help to protect the pension rights of older women.
Support legislation on behalf of women that would ensure wage
comparability, pension security, meaningful access to health benefits,
protection for part-time workers and education and training to ensure
women's access to traditional male occupations.
Women's Rights > EDUCATIONAL EQUITY
Federal laws designed to protect women and girls from discrimination on
the basis of sex in any educational program that receives federal funds
are not being enforced. Studies continue to show that women and girls are
systematically denied equal educational opportunity.
Title IX of the Education Amendments of 1972, 20 U.S.C. Sections 1681 et
seq.,prohibits discrimination on the basis of sex in any educational
program receiving federal funds. Regulations promulgated pursuant to
Title IX are at 34 C.F.R. Sections 106 et seq. Other areas covered by the
law and regulations include prohibitions against: discrimination on the
basis of pregnancy and marital status; discrimination in the provision of
health benefits, and the use of selection and evaluations criteria, such
as tests, that have a disproportionately adverse effect on the basis of
sex, and that do not validly predict success in the educational program in
question. Title IX has also been construed to prohibit sexual harassment.
The Office of Civil Rights (OCR) of the Department of Education is charged
with the enforcement of these provisions. Under the Reagan and Bush
Administrations, however, enforcement was, at best, lax and more often
virtually non-existent. Moreover, the backlog on sex discrimination
complaints is huge. It has been impossible to get claims processed in a
timely fashion, and it is difficult even to learn the status of pending
claims. Since few complainants have the financial means to pursue their
claims in court, this non-feasance effectively bars them from any
effective remedy for discrimination.
Meanwhile, a 1987 survey of schools across the country revealed that 75
percent of the schools violated Title IX in some manner in their treatment
of pregnant and parenting students. Nash and Dunkle, The Need for a
Warming Trend 3 (May 1989). As repeatedly documented in many studies, the
economic and social effect of this sort of discrimination, and the failure
of our schools to deal with this issue in a realistic way, are
devastating. See, e.g., National Collaboration for Youth, Making the
Grade: A Report Card on American Youth-Participant's Workbook II-65
(1989); Alan Guttmacher Institute, Teenage Pregnancy: The Problem That
Hasn't Gone Away (1981); and Marx, et al., Childcare for the Children of
Adolescent Parents: Findings from a National Survey and Case Studies 3
(Working Paper No. 184, Wellesley College Center for Research on Women,
1) Direct OCR to undertake vigorous enforcement of Title IX.
2) Support legislation that provides increased services to pregnant and
childbearing teens, to ensure their equal access to education.
Women's Rights > HEALTH EQUITY
Patterns of sex discrimination persist in our nation's health care
delivery system, from the exclusion of women from important clinical drug
trials, to their underrepresentation in preventive health care programs.
America's health care system is failing to meet the needs of women. For
example, a 1990 General Accounting Office study documented that women are
frequently excluded from clinical drug trials. As a result of this
exclusion, women suffer double discrimination: They are denied access to
beneficial, if experimental, drugs, and drugs may be approved and marketed
without reliable data on their effects on women.
Women also face discrimination in access to some health care services and
preventive health care programs. This is a particular problem for poor
women and women of color, who, for example, lack access to breast cancer
diagnostic tools. As a result, poor women and African-American women die
from breast cancer disproportionately because their disease is often
diagnosed too late for effective treatment. Another example involves the
lack of research and regulatory attention to the occupational health
diseases and injuries that women experience, including but not limited to
reproductive disorders in the lead industries, cardiovascular conditions
in office workers and musculoskeletal injuries in many female-intensive
The Congressional Caucus for Women's Issues has advocated passage of a
series of legislative proposals collectively referred to as the Women's
Health Equity Act. This legislation is an important step toward
addressing gender-related issues in research and delivery of health care
and preventive services. It is vital, however, that this and other
legislation be developed and implemented without incorporating stereotypes
about the supposed physical vulnerability of women, and without
exaggerating the biological differences between the sexes, lest in the
process of protecting women's health we create new grounds for
discrimination against women.
1) Instruct the Secretary of the Department of Health and Human Services
to authorize Medicare reimbursements for mammograms on a yearly basis,
rather than the every-other-year entitlement now in effect.
2) Support the Women's Health Equity Act.
3) Enforce more vigorously than past administrations the Occupational
Safety and Health Act, the Toxic Substances Control Act and other existing
federal health laws on behalf of women.
Women's Rights > MILITARY COMBAT EXCLUSION
The Pentagon continues to resist allowing women to serve in combat roles,
despite women's solid performances during wartime. This policy guarantees
that women will never break through the ceiling that limits their
advancement in the military.
Since the end of the draft and the advent of an all-volunteer military,
the numbers and importance of women in the armed forces have grown. The
percentage of members of the armed services who are women went from two
percent in the early 1970s to approximately 11 percent today. Women
played an extremely important role in the Gulf War, where they flew planes
into enemy territory, commanded units of men, ferried troops into the
combat zone and carried supplies to them, and fired weapons defensively.
In 1991, in recognition of the vital role played by women pilots and based
on a study done by the Air Force, Congress concluded that women make
excellent combat pilots and, therefore, repealed 10 U.S.C. Section 8549
and the aircraft section of 10 U.S.C. Section 6015, the last legal
restriction on women in combat aircraft. The only remaining legal
restriction on women in combat is the combat ship sections of 10 U.S.C.
Section 6015. The Pentagon, however, has refused to implement the lifting
of the aircraft and other combat exclusions and continues a policy of not
assigning women to combat positions.
Nevertheless, because they are officially barred from combat positions,
women continue to be second-class citizens in the military. As a result
of the combat exclusion, approximately half of all military occupations
are closed to women, and there are severe limitations on the number of
women who may enlist or be admitted to ROTC programs (which include
lucrative scholarships) and to the service academies. The combat
exclusion greatly limits promotional opportunities for women.
1) Direct the Pentagon to implement the repeal of the aircraft combat
2) Submit legislation to overturn the remainder of 10 U.S.C. Section 6015,
which bars Navy and Marine women from serving on combat ships.
3) Direct the Pentagon to institute gender-neutral, performance-based
standards for all positions so that anyone meeting such requirements is
eligible for the position in question, regardless of gender.
4) Eliminate quotas on the number of women permitted to enlist and the
number of women admitted to the service academies.
Women's Rights > SEXUAL HARASSMENT IN THE MILITARY
The problem of sexual harassment against women in the military is
extremely serious, but existing remedies are inadequate. For women to
have full and equal opportunity in the military, and throughout society,
this problem must be confronted.
Sexual harassment is pervasive in our society. An egregious example is
the extensive and severe problem of sexual harassment in the military,
which has been well documented and widely reported. The Tailhook incident
represents only the tip of the iceberg. For example, a 1987 Study Group
on Women in the Navy found that over half of the 1,400 women interviewed
said they had been subjected to sexual harassment while in the Navy, but
that most of them were hesitant to report it because they lacked
confidence in the grievance process. Similarly, a 1990 study by the
Defense Manpower Data Center of over 20,000 members of the military found
that two out of every three women interviewed said they had been sexually
harassed in the prior year, but that less than 40 percent believed the
grievance procedures would be effective. Worse still, a total of 71
percent believed the process would be detrimental.
The avenues that now exist for redress of this problem are inadequate.
The courts that have ruled on the issue have held that neither Title VII,
42 U.S.C. Section 2000e, see Johnson v. Alexander, 572 F.2d 1219 (8th Cir.
1978), cert. denied, 439 U.S. 986 (1978); Gonzalez v. Dept. of the Army,
718 F.2d 926 (9th Cir. 1983); but see Hill v. Berkman, 635 F. Supp. 1228 (
E.D.N.Y. 1986), nor the Federal Tort Claims Act applies to uniformed
members of the armed services, Feres v. United States, 340 U.S. 135
(1950), and claims directly under the Constitution have been limited to
the point of non-existence. See Rostker v. Goldberg, 453 U.S. 57 (1981);
Chappell v. Wallace, 462 U.S. 296 (1983).
Although the Department of Defense has internal regulations that define
sexual harassment almost identically to the definition used by the Equal
Employment Opportunities Commission, victims of military sexual harassment
(like victims of race discrimination) are required to go through the chain
of command. Service women frequently are not familiar with the procedures
they are required to follow and have no way to learn about them.
Retaliation is common. No outside agency investigates, no written record
or formal findings are required, the commanding officer almost always has
the final decisionmaking authority, and the process may be halted along
1) Direct the Defense Department to provide military women the same rights
as civilian women to combat sexual harassment. This means the development
of a system of independent investigation, fact-finding and a
decisionmaking process with a written record, standard procedures and
protection from retaliation.
2) Support legislation that provides judicial review and damages in cases
of military sexual harassment.
Women's Rights > DRUG DEPENDENT WOMEN
The problem of drug dependency among women of childbearing capacity has
attracted the attention of overzealous prosecutors, who have filed
criminal charges and taken other punitive actions against them. Such
prosecutions are counterproductive and violate basic due process rights.
Public health officials are in virtually unanimous agreement that the most
effective way to cope with drug use during pregnancy is by ensuring that
women at risk have access to drug treatment centers, prenatal care, good
nutrition and a variety of supplemental support services. Yet, many
district attorneys and child protective services have adopted a punitive,
coercive approach that is not only ineffective in preventing harm, but may
actually undermine pursuit of that goal. In the last several years,
approximately 160 women have been prosecuted in 24 states under a variety
of statutes whose legislative intent is to deter drug trafficking or other
willful, criminal conduct. Prosecutors have brought these charges on the
theory that ingesting drugs while pregnant constitutes a "delivery" or
"assault with a deadly weapon" or "criminal child abuse" through the
umbilical cord. In addition, many states have sought to remove children
from the custody of their mothers (or, in some cases, to terminate the
mother's parental rights), based solely on a positive drug test without a
full inquiry into parental fitness.
These criminal prosecutions violate the basic due process right of "fair
notice." They also violate the fundamental right to privacy in that they
penalize a drug dependent woman's pregnancy, and not simply her drug use.
Additionally, the automatic revocation of child custody and termination of
parental rights, without a full inquiry into parental fitness, violate the
fundamental right to maintain family integrity.
The punitive response places women in a "Catch-22" situation since women
who seek help for their addiction during pregnancy often cannot get it.
See Opening Statement of Representative George Miller, Chairperson,
Testimony Before House Select Committee on Children, Youth and Families
(April 27, 1989). A 1988 survey of drug abuse treatment programs in New
York City found that 54 percent refuse to take pregnant women; 67 percent
deny treatment to pregnant addicts on Medicaid, and 87 percent deny
treatment to pregnant women on Medicaid who are addicted to crack. See
Chavkin, W., M.D., Testimony Before House Select Committee on Children,
Youth and Families (April 27, 1989).
Moreover, rehabilitation programs are frequently based on male experience
with addiction and recovery, which does not account for the underlying
reasons for substance abuse among many women. In addition, the lack of
child care, as research by the National Institute for Drug Abuse confirms,
"effectively precludes the participation of women in drug treatment." See
Chavkin, "Help, Don't Jail, Addicted Mothers," N.Y. Times, July 18, 1989.
1) Direct the Secretary of Health and Human Services to issue regulations
guaranteeing the effectiveness of the recently enacted Alcohol, Drug Abuse
and Mental Health Administration Reorganization Act. These regulations
should clarify that the focus of the Act is primary, coordinated-care
services, including outreach, identification of women at risk, education,
family planning and related health care services. The regulations should
explicitly prohibit states receiving federal monies from:
a. discriminating against women in the provision of drug
b. mandating the reporting of positive drug tests to criminal law
c. removing infants from their mothers or terminating mothers'
parental rights without a full evaluation of parenting abilities.
2) Support the Medicaid Family Care Act, which would amend the current
Medicaid exclusion of residential drug treatment for pregnant women.
Women's Rights > FAMILY AND MEDICAL LEAVE AND CHILD CARE
The failure to guarantee family and medical leave and government supported
child care has created enormous hardships for workers, especially women,
undermining family integrity and economic productivity.
The United States is the only advanced industrialized country that does
not provide parental and medical leave benefits to workers. This lack of
job security causes immense hardships to workers, who must balance their
family responsibilities with the demands of their jobs. It presents
particularly difficult obstacles to women workers, who continue to bear
the primary burden of caring for other family members.
The federal Family and Medical Leave Act has been introduced repeatedly in
Congress but has never been enacted. The current version provides unpaid
leave for up to 12 weeks per year for childbirth, adoption or the serious
illness of an employee or immediate family member. Only businesses with
50 or more employees are covered by the act, and the highest paid 10
percent of the work force may be exempted.
In the 102nd Congress, both Houses passed the Act, but the President
vetoed the bill on September 22, 1992. The Senate overrode the veto on
September 24, 1992, but the House failed to override.
The swift passage of federal family and medical leave legislation is
essential. Studies show that workers lose billions of dollars in earnings
every year due to the lack of guaranteed leave policies, and many
employees have no job-guaranteed medical leave at all. This lack of job
security puts workers in the untenable position of having to choose
between their family responsibilities and their livelihood.
In addition, millions of working parents must locate quality, affordable
child care that provides a safe, nurturing environment for their children
while they are at work. Government support for child care is critical to
ensure that all parents can afford appropriate care for their children,
and to sustain and strengthen our current network of child care providers.
One of the most important mechanisms for federal support is through
appropriations for the Child Care and Development Block Grant, which was
incorporated into the Omnibus Reconciliation Act of 1990, Public Law
101-508. However, appropriations under this act for 1994 must be
1) Revise and support the recently vetoed Family and Medical Leave Act, so
* covers employers with 15 or more employees;
* includes highly paid workers in its coverage.
2) Upon passage of the FMLA, urge the Commission on Leave, established
pursuant to the Act, to study and evaluate paid as well as unpaid leave
3) Support significantly increased appropriations for the Childcare and
Development Block Grant.
CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Enforcement
CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act: Compliance
RELIGIOUS FREEDOM: Child Care Regulations
PRISONERS' RIGHTS: Medical Care
PRISONERS' RIGHTS: Maintenance of Family Ties
REPRODUCTIVE FREEDOM: Public Funding of Abortion Services
REPRODUCTIVE FREEDOM: Freedom of Choice Act
REPRODUCTIVE FREEDOM: International Reproductive Freedom
REPRODUCTIVE FREEDOM: The Gag Rule
REPRODUCTIVE FREEDOM: RU 486, Contraception and Fetal Research
LESBIAN AND GAY RIGHTS
Lesbian and gay Americans still face widespread prejudice and lack
the most basic civil rights. The discrimination lesbians and gay men
confront is irrational because it is unrelated to their abilities to
perform and contribute to society. President-elect Clinton's demonstrated
concern for these issues provides an opportunity to reverse a history of
discrimination against gay people. But meaningful change will require a
commitment to principle in the face of strong political opposition.
Prejudice against lesbians and gay men is shockingly explicit and
virulent. Not only is this discrimination not currently redressed by
federal law, it is often sanctioned by the government itself. For
example, the federal government openly denies lesbians and gay men the
opportunity to serve their country in the military, effectively denies
employment to gay people in the Federal Bureau of Investigation and the
Central Intelligence Agency and places burdens on gay applicants for
security clearances. Even more basic, the United States still maintains a
federal sodomy law.
The Clinton Administration has the opportunity to provide positive
federal leadership on gay issues for the first time in American history.
Until lesbians and gay men are afforded equal rights in our society, the
Bill of Rights will remain an unfulfilled promise for millions of our
Central Intelligence Agency
Department of Defense
Department of Health and Human Services
Department of Justice
Department of State
Federal Bureau of Investigation
Gay Rights > DISCRIMINATION
Lesbians and gay men are discriminated against in employment, housing and
public accommodations and have no recourse under federal law. This
violates the core principle of the Fifth and Fourteenth Amendments that
every citizen has the right to due process and equal protection.
Every year, thousands of Americans are denied job opportunities and access
to housing and public accommodations because they are gay or lesbian, or
because they are perceived as such. Discrimination on the basis of sexual
orientation is pervasive in the public and private sectors. Companies
still openly fire lesbian and gay employees, many states maintain policies
prohibiting gay people from serving in certain positions and the federal
government maintains discriminatory employment policies in agencies like
the CIA, FBI and foreign service, as well as in the military.
Lesbians and gay men who suffer such discrimination currently have no
recourse under federal law. Although seven states and more than 100
municipalities have adopted civil rights legislation that protects gay
people from discrimination in employment, housing, public accommodations,
public facilities and government programs, this patchwork of state and
local laws does not adequately address the problem. In most locales in 43
states, it remains perfectly legal to refuse to hire, or to fire, an
individual solely on the basis of sexual orientation.
Federal constitutional challenges to governmental discrimination against
lesbians and gay men have not been successful. See, e.g., Padula v.
Webster, 822 F.2d 97 (D.C. Cir. 1987) (FBI); USIA v. Krc, 905 F.2d 389
(D.C. Cir. 1990), on remand, 1991 U.S. Dist. LEXIS 11447 (D.D.C. 1991)
(foreign service); High Tech Gays v. Defense Indus. Sec. Clearance Office,
895 F.2d 563 (9th Cir. 1990) (upholding policy of subjecting lesbians and
gay men to heightened screening in applications for security clearances);
Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir. 1989) (military), cert. denied
494 U.S. 1004 (1990); Woodward v. United States, 871 F.2d 1068 (Fed. Cir.
1989) (military), cert. denied, 494 U.S. 1003 (1990); Dronenburg v. Zech,
741 F.2d 1388 (D.C. Cir. 1984) (military), reh'g denied, 746 F.2d 1579
(D.C. Cir. 1984); Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir.
1984) (military). Cf. Dubbs v. CIA, 866 F.2d 1114 (9th Cir. 1989).
Federal law must be expanded to reflect fully the basic premise, grounded
in the Fifth and Fourteenth Amendments, that individuals should be treated
as individuals and not prejudged on the basis of their membership or
perceived membership in a certain group. Sexual orientation does not
determine an individual's ability to contribute to society, nor does it
determine an individual's needs. Thus, discriminatory treatment of gay
men and lesbians cannot in any way be justified. All people, regardless
of their sexual orientation, are entitled to the same rights, liberties,
freedom from harassment and freedom from discrimination.
1) By Executive Order, prohibit all federal agencies and federally
assisted programs, contractors and agents from practicing discrimination
based on sexual orientation.
2) Support legislation -- a federal gay rights bill -- that will amend all
federal civil rights statutes to prohibit discrimination based on sexual
orientation in employment, housing, public accommodations, public
facilities and federally assisted programs, and to provide remedies and
recourse for the targets of such discriminatory practices.
Gay Rights > SECURITY CLEARANCE
Lesbians and gay men are subjected to a lengthier and more complex
security clearance process than are heterosexuals, solely because of their
The federal government continues to single out lesbians and gay men as
high security risks, even though no evidence exists that sexual
orientation is somehow relevant to one's trustworthiness in handling
classified information. Official discrimination is primarily effectuated
through a policy that puts lesbians and gay men through a more rigorous
security clearance review process. The length of time required by the
extended process often means that the gay person loses his or her
employment opportunities. Despite the lack of connection between sexual
orientation and security risk, the government's policy has been upheld by
the federal courts. See High Tech Gays v. Defense Indus. Sec. Clearance
Office, 895 F.2d 563 (9th Cir. 1990).
There is some evidence that the federal government is loosening its policy
with respect to lesbian/gay security clearances. For example, in settling
a case in 1991, the CIA agreed that homosexual status would not be
considered in making security clearance determinations, and that
homosexual conduct would be treated in the same manner as heterosexual
conduct. See Settlement Agreement and Stipulation of Dismissal, Dubbs v.
Cent. Intelligence Agency, 866 F.2d 1114 (9th Cir. 1989) (No. C-85-4379
EFL) (filed June 17, 1991).
Despite the CIA's position in the Dubbs case, some agencies continue to
treat gay persons differently as a matter of policy, while in other
agencies, gay men and lesbians are still harassed and subjected to
intrusive, irrelevant questioning about intimate details of their lives
during the background investigations.
1) By Executive Order, ban all discrimination against lesbians and gay men
in making security clearance determinations, and require federal agencies
to treat homosexual conduct in the same manner as heterosexual conduct.
2) Direct federal agencies to review their procedures for conducting
background investigations in order to eliminate harassment and
discrimination on the basis of sexual orientation in the conduct of those
3) Review and evaluate the litigation positions now being taken by the
government in cases involving harassment or discrimination on the basis of
sexual orientation, in light of the new policy of non-discrimination.
Gay Rights > THE MILITARY BAN
The Department of Defense's policy of prohibiting lesbians and gay men
from serving in the military is discriminatory, costly and
Since World War II, the Department of Defense (DOD) has maintained a
prohibition against lesbians and gay men serving in the military. See
Department of Defense Directives 1332.14 and 1332.30. The military
enforces this policy more or less stringently, depending on its need for
soldiers. During the Vietnam and Persian Gulf wars, for example, the
policy was not strictly enforced. The current version of the policy was
adopted following the election of Ronald Reagan in 1981 and was meant to
strengthen the ban and its enforceability. The currently stated rationale
for the policy -- that the presence of lesbians and gay men in the
military would undermine morale and discipline -- closely parallels the
military's justification for its policy of racial segregation prior to
1948. The military maintains an ever-expanding administrative apparatus
for managing homosexual personnel. Nearly 1,500 lesbians and gay men, who
are often identified through systematic "witch hunts," are drummed out of
the military each year. The anti-gay policy also promotes biased
application of the military's sodomy law, 10 U.S.C. Section 925, art. 125.
This law, which on its face applies equally to heterosexual sexual
activity, is used to jail gay men and lesbians for engaging in conduct for
which heterosexuals are rarely prosecuted.
The ban on lesbians and gay men in the military should be reversed
* The military's regulation is blatantly discriminatory in that it
judges lesbians and gay men based on prejudice rather than on ability.
The policy perpetuates the myth that lesbians and gay men never serve in
the military and/or are not good soldiers, even though the military's own
studies reveal the opposite: Two reports initiated by the DOD and the
Services examined the suitability of lesbians and gay men to be in the
military and to receive security clearances. Both studies reached
favorable conclusions and present convincing cases, from within the
system, against the military's policy. See Defense Personnel Security
Research and Education Center, Nonconforming Sexual Orientations and
Military Suitability, December 1988; Defense Personnel Security Research
and Education Center, Preservice Adjustment of Homosexual and Heterosexual
Military Accessions: Implications for Security Clearance Suitability,
* The policy is costly. In June 1992, the General Accounting Office
(GAO) released a report on the exclusion policy that estimates that the
costs of recruiting and training troops to replace discharged gay soldiers
amounted to $28,226 for each enlisted individual, and $120,772 for each
officer. Using these figures, the GAO estimated that lesbian/gay
discharges would cost the military approximately $27 million in 1990 alone
-- and that figure does not include the costs of investigations and
discharge. Defense Force Management: DOD's Policy on Homosexuality,
(GAO\NS\AD - 92-985) (June 1992).
* The American public does not support the ban. According to a 1991
national poll conducted by Penn & Schoen Associates, Inc. and cited in the
GAO report, 81 percent of Americans believed that homosexuals should not
be discharged from military service solely because of their sexual
Several federal appellate courts have upheld the policy against various
constitutional challenges. See Ben-Shalom v. Marsh, 881 F.2d 454 (7th
Cir. 1989), cert. denied 494 U.S. 1004 (1990); Woodward v. United States,
871 F.2d 1068 (Fed. Cir. 1989), cert. denied, 494 U.S. 1003 (1990);
Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984); Rich v. Secretary of
the Army, 735 F.2d 1220 (10th Cir. 1984). However, the Ninth Circuit
Court of Appeals recently overturned a district court decision that
granted the government's motion to dismiss a challenge to the policy.
Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1992), cert. denied, 1992 U.S.
Lexis 7704 (1992). The court remanded the case to the district court for
further development of the rational relationship between the policy and a
legitimate governmental interest. Despite a cert. petition filed by the
government, the Supreme Court has refused to review this decision.
1) By Executive Order, rescind DOD Directives 1332.14 and 1332.30, and
guarantee equality of treatment and opportunity for all persons in the
armed services without regard to sexual orientation. The Executive Order
should guarantee that the armed services will not discriminate in
recruitment, assignment, promotion or retention practices on the basis of
sexual orientation. A mechanism should be established to redress harms
visited by the extant policy on current and former servicemembers.
2) Direct the Attorney General to convene all relevant agencies to review
-- with the objective of eliminating, revising and/or recommending reform
or repeal of -- all policies, rules, regulations (including the Uniform
Code of Military Justice), forms and practices that by their nature
explicitly, or as applied, exclude or otherwise discriminate against gay
men and lesbians in recruitment, training, deployment, promotion and the
acquisition of security clearances.
3) Establish an enforcement mechanism that will educate and train the
military to ensure equal opportunity for lesbians and gay men, and that
will provide grievance procedures and remedies for future violations of
Gay Rights > GOVERNMENT PUBLICATIONS
Under previous administrations, the federal government actively censored
scientific information and research about Americans' sexual desires and
Up-to-date information on sexuality is critical in confronting at least
two national crises: the AIDS crisis and the epidemic of suicide among
lesbian and gay youth. These two sources of premature, unnecessary death
demand federal efforts to gain more information about sexuality, and to
use that information to aid HIV and suicide prevention programs.
To the contrary, the Reagan and Bush Administrations actively suppressed
sexuality-related information, obstructing the country's ability to fight
sexually transmitted diseases and reinforcing homophobic attitudes. In
particular, conscious federal efforts to silence researchers and pretend
that no problem exists have led government agencies at all levels to
ignore the exceptionally high suicide rate among lesbian and gay youth.
Two important, planned sexuality surveys were dropped by the Bush
Administration. One, the American Teenage Study, specifically sought a
better understanding of teenagers' sexuality. The second, the Survey of
Health and AIDS Risk Prevention (SHARP), sought information about the
sexual practices of adults in this age of AIDS. The scientific branches
of the federal government have been calling for such a study since at
least 1986, when the Institute of Medicine in Confronting AIDS called for
"a more detailed, representative, and contemporary evaluation of sexual
behavior analogous to the Kinsey Report." No large-scale sexuality survey
has been undertaken in this country since the Kinsey investigation in
In addition, in 1989 the Department of Health and Human Services Task
Force on Youth Suicide delayed publication of a four-volume report.
Several of the published papers in the report emphasized the large number
of lesbian and gay youth who resort to suicide. Paul Gibson, for example,
concludes in his study that lesbian and gay teenagers "may comprise up to
30 percent of completed youth suicides annually." Gibson, "Gay Male and
Lesbian Youth Suicide," in Report of the Secretary's Task Force on Youth
Suicide 3-110 (1989). Gibson's recommendations include the proposal that
youth service agencies and schools take steps to provide acceptance and
support for these lesbian and gay youth, who are at great risk of despair
and death. See Id. at 3-133 to 3-137. HHS delayed publication from
January until August 1989. Once the report was finally released,
Secretary Louis Sullivan quickly disassociated himself from the data and
recommendations relating to the great risk of suicide among lesbian and
gay young people. President Bush did the same. Only a small number of
copies of the report were printed. HHS has now allowed this important
compendium of information on youth suicide, particularly among lesbian and
gay youth, to go out of print.
A similar, but even more blatant, effort at suppressing information took
place in the editing of the Office of Technology Assessment's recent
several-volume report on adolescent health issues. Several references to
lesbian and gay youth were deleted from that report. The avoidance of the
phrase "lesbian and gay youth" also permeates the federal grant-making
process. Agencies that help lesbian and gay youth have learned that they
should instead refer to "sexual identity issues" if they wish to gain
1) Direct the Department of Health and Human Services to reprint the
four-volume study on youth suicide for distribution to agencies and
schools that serve teenagers.
2) Develop policy to ensure that federal grant applicants are encouraged
to serve the needs of lesbian and gay youth.
3) Undertake the two planned government-sponsored sexuality surveys that
were abandoned by the previous administration.
AIDS: Centers for Disease Control AIDS Prevention Programs
NATIONAL SECURITY: Security Clearances
Native American peoples occupy a unique position in American
society. The federal government has consistently given assurances that it
will guarantee the survival of Native Americans, their land base and their
tribal groups. This principle of respect was recently affirmed by the
Supreme Court in Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian
Tribe, 112 L. Ed. 2d 1112, 1119 (1991), which declared that "Indian tribes
are 'domestic dependent nations,' which exercise inherent sovereign
authority over their members and territories."
The Clinton Administration must renew the national commitment to
defend tribal sovereignty, and to support the inherent right of Native
American tribes to exercise tribal sovereignty by preserving the
government-to-government relationships that exist between the United
States and the Native American nations. At the same time, the
Administration should support legislation that enhances the ability of
tribal governments to protect individual civil rights under the Indian
Civil Rights Amendment.
U.S. Commission on Civil Rights
Native Americans > INDIAN CIVIL RIGHTS ACT
The Indian Civil Rights Act of 1968, 25 U.S.C. Sections 1301-1303, which
affords tribal governments most of the protections in the Bill of Rights,
has not been effective in securing rights and preventing civil rights
The Supreme Court has held that the Indian Civil Rights Act (ICRA)
requires only that a tribe provide a tribal forum for the vindication of
rights under the Act. Federal court review of tribal civil rights
decisions is limited to a petition for writ of habeas corpus, relief that
is available only to incarcerated persons.
Some tribal members, however, have complained of abuses by their tribal
governments that cannot be redressed in federal court, absent
incarceration, under the ICRA. Allegations include denial of the right to
vote, denial of the right to seek public office, arbitrary dismissal from
public employment, loss of tribal housing, election irregularities,
confiscation of private land, religious discrimination and denials of due
process and equal protection.
The U.S. Commission on Civil Rights recently held extensive hearings on
the enforcement of the ICRA in the tribal courts. See The Indian Civil
Rights Act, A Report of the United States Commission on Civil Rights (June
1991). The study found that when Congress passed the Act, it did not
fully take into account the practical problems in applying its provisions
to the many broad and diverse tribal governments within the United States.
The Commission also found that the Act required many procedural
protections without providing adequate funding for their implementation.
Currently, two different approaches are competing to resolve the
inadequacies of the Indian Civil Rights Act. The first approach seeks to
maintain tribal sovereignty by focusing on tribal court funding and the
strengthening of tribal forums. This view contends that Congress should
not take any further steps to extend the reach of federal government
interference unless absolutely necessary. The U.S. Commission on Civil
Rights recommended this approach in its report, advising that prior to
considering such an imposition, Congress should afford tribal forums the
opportunity to operate with adequate resources, training, funding and
guidance, which the federal government has not provided since the
inception of the ICRA. This is also the approach favored by almost all
tribal governments and tribal judges. The second approach favors a direct
right of appeal to a federal court from judgments of tribal courts for
actions arising under the ICRA.
1) Assist tribal governments in their development and promote recognition
of their sovereignty.
2) Support legislation that enables the protection of tribal rights
without diminishing the protection of individual rights, and that provides
adequate resources, training, funding and guidance to tribal governments
Native Americans > AMERICAN INDIAN RELIGIOUS FREEDOM ACT
Recent Supreme Court decisions have substantially weakened Native
Americans' religious liberty.
Government suppression of traditional religions practiced by Native
Americans is longstanding. In 1978, Congress enacted the American Indian
Religious Freedom Act (AIRFA) in an effort to reverse this historic,
deplorable treatment. However, since AIRFA was enacted as "policy" law,
it contains no specific protections or enforcement mechanisms, and courts
have been unable or unwilling to utilize it as a means of protecting the
integrity of Native American religions.
Most recently, the Supreme Court ruled, in essence, that the First
Amendment will not protect traditional Native religions. In Lyng v.
Northwest Indian Cemetery Association, 485 U.S. 439 (1988), the Court
denied protection of a religious site on public land, and in Employment
Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990), the
Court denied protection of a Native American Church practitioner fired
from his job for engaging in the sacramental use of peyote.
In the 103rd Congress, amendments to AIRFA will be introduced that will
seek to reverse the detrimental effects of the Lyng and Smith decisions on
Native American religious practice and put teeth into AIRFA. The
first, protect the areas considered sacred by traditional Native American
religious practitioners. Native Americans often attach religious
significance to particular natural sites, such as high mountain peaks or
secluded valleys. Native American sacred sites are often located on
public land, since the federal government often created reservations
without regard to the locations of sacred sites. In Lyng, the Forest
Service proposed to build a timber-access road in California through an
area where Native American religious practitioners conducted ceremonies
that were crucial to their religious beliefs and practices. Although the
lower courts had found that the road was of only marginal use, and that
other alternatives were available, the Supreme Court held that the First
Amendment's free exercise balancing test did not apply to the government's
use of the land;
second, extend First Amendment protection to Native American practitioners
who may use peyote as part of their worship. Peyote is a cactus with
psychedelic properties that is grown in northern Mexico and southern
Texas, and it has been used by Native Americans for thousands of years.
In 1965, the Drug Abuse Control Act added peyote to its list of controlled
substances with an exemption granted for bona fide religious use. 21
C.F.R. 1307.31. However, this federal exemption does not bind the states
and, under the Smith decision, states are free to ban peyote use.
Although 27 states have laws that protect the use of peyote as a
sacrament, those laws are inconsistent with each other. Amendment of
AIRFA is essential to the current D.E.A. regulation and would make it
uniformly applicable throughout the country;
third, protect the rights of incarcerated Native Americans who are denied
access to traditional religious practices. These prisoners lack the
freedom to worship according to their religious traditions on a basis
comparable to that afforded prisoners of other, more widely known
finally, afford Native medical people or traditional healers easier access
to eagle feathers. Many Native American religions consider the use of
eagle parts and feathers to be fundamental to the integrity and sacredness
of their ceremonies, and some have compared eagle feathers to the cross in
Christianity. However, the religious use of eagle parts and feathers has
been curtailed by federal efforts to protect the eagle as an endangered
Although the Religious Freedom Restoration Act (H.R. 2797) seeks to
reverse the Smith decision by restoring the standard for resolving
conflicts between governmental authority and the free exercise of
religion, it does not address the unique, historical problems faced by
Native American religions. There remains a need for separate legislation
to protect free religious exercise for Native peoples.
Support the amendments to the American Indian Religious Freedom Act.
REPRODUCTIVE FREEDOM: Public Funding of Abortion Services
ACCESS TO JUSTICE
Historically, the federal courts have served as the great bulwark
of liberty against private and public wrongs. This was especially true
for persons who lacked effective political power, such as the poor, women
and members of minority groups. For the historically disadvantaged, the
federal courts were the principal protector of their rights and liberties
against the excesses of the other branches of government and the states.
During the past 12 years, however, the Reagan and Bush
Administrations severely undermined the historic mission of the federal
courts by burdening access to justice and diminishing federal rights.
Funding cutbacks at the Legal Services Corporation and in indigent defense
made it more difficult for the poor to obtain government-funded legal
counsel and vindicate their rights in court; court-imposed limitations on
attorney fee awards under civil rights and other fee shifting statutes
reduced the number of attorneys available to undertake complex federal
litigation. Even where attorneys could be located, procedural and
jurisdictional restrictions, urged upon the courts by the Justice
Department, severely limited the relief that the victims of constitutional
wrongs could obtain in court. and recent Supreme Court rulings concerning
habeas corpus gutted the effectiveness of the "Great Writ" as a tool for
protecting state defendants' constitutional rights.
The Clinton Administration must renew our nation's commitment to
constitutional rights, and restore the federal courts to their historic
mission as defenders of civil rights and civil liberties. It must
establish a tone of respect for constitutional rights. And it must
endorse legislation to repeal the past administrations' procedural and
substantive roadblocks that bar litigants from vindicating federal rights
in federal courts.
Department of Justice
Legal Services Corporation
Public Defender Service
Access To Justice > ATTORNEYS' FEES
Recent Supreme Court decisions have unduly restricted plaintiffs' ability
to collect attorney and expert witness fees in civil rights and
environmental protection cases, thus deterring private citizens from
bringing lawsuits to enforce federal laws.
Congress has provided that courts may award reasonable attorneys' fees to
prevailing plaintiffs in civil rights and certain public interest suits.
Such suits can be extremely costly and time-consuming to litigate, and
parties will not undertake them (or will be unable to find counsel to
represent them) unless they can be assured that their expenses will be
recovered when a lawsuit is successful. The possibility of a fee and cost
award encourages attorneys to take on such suits, and ensures that
successful plaintiffs will be made whole. Recent Supreme Court rulings,
however, have undermined the effectiveness of federal fee statutes in
encouraging civil suits by private citizens.
Congress's intention in enacting fee statutes was to ensure that the
likely cost of a lawsuit would not deter plaintiffs from bringing
meritorious suits to enforce federal laws. However, two recent Supreme
Court decisions have unduly restricted the meaning of a "reasonable
attorney's fee" in federal fee-shifting statutes and, thus, undermined the
effectiveness of fee awards in promoting civil rights and environmental
Expert Costs. First, in West Virginia University Hospital v. Casey, 499
U.S. , 113 L. Ed. 2d 68 (1991), the Supreme Court ruled that a
"reasonable attorney's fee" did not include fees paid for services
rendered by expert witnesses in civil rights lawsuits. Many civil rights
plaintiffs simply cannot prove their cases without the use of expert
witnesses. For example, the ACLU Southern Regional Office has brought
many successful vote dilution cases under Section 2 of the Voting Rights
Act; none of these cases could have been won without the use of experts.
By restricting the ability of civil rights plaintiffs to employ expert
witnesses, the Casey decision undermines civil rights.
Contingency Multipliers. Second, in City of Burlington v. Dague, 505 U.S.
, 120 L. Ed. 2d 449 (1992), the Supreme Court ruled that a statutory
attorney's fee award could not be enhanced to take account of the risk the
attorney had accepted that the lawsuit might be unsuccessful. Such
"contingency multipliers" had previously been permitted in most of the
appeal courts. In the market for attorney services, contingency is a
well-recognized factor. Since attorneys accepting fees on contingency
only receive payment if they win, they must charge more than attorneys who
are assured of payment. By prohibiting contingency multipliers, the Dague
decision undermines the congressional purpose in fee-shifting. Attorneys
will be discouraged from pursuing cases that are less than certain winners
and thus enforcement of the underlying statutes will be seriously
Urge Congress to amend 42 U.S.C. Section 1988, and similar fee-shifting
statutes to permit both recovery of expert fees and contingency
multipliers, in order to ensure effective private enforcement of federal
civil rights and environmental laws.
Access To Justice > FUNDING OF LEGAL SERVICES
The effectiveness of the Legal Services Corporation (LSC) in delivering
legal services to the poor has been greatly hampered by inadequate federal
funding and by numerous and inappropriate restrictions on the activities
of LSC-funded organizations.
Since 1974, the LSC has been the principal source of non-criminal legal
services for poor people in the U.S. It serves approximately 1.4 million
people annually. However, for the past 12 years, the LSC has been
hampered by administrations that were unremittingly hostile to its
mission. At current funding levels, it is estimated that 80 to 85 percent
of the legal needs of the poor go unmet.
In addition to the shortage of funds, legal services attorneys are
hindered in their ability to provide effective representation by numerous
restrictions on the kinds of cases they can undertake. Provisions of the
L.S.C. Act, 42 U.S.C. Section 2996 et seq., bar legal services
organizations receiving LSC funds from engaging in certain activities on
behalf of poor clients. The restrictions include:
Substantive limitations. Legal services organizations cannot use LSC or
private funds to seek to procure a nontherapeutic abortion or to compel
individuals or institutions to provide or assist in abortions; they cannot
use LSC funds to participate in any litigation with respect to abortion.
42 U.S.C. Section 2996f(b)(8). They cannot provide representation in
school desegregation litigation. Id., (b)(9). They cannot provide legal
assistance in cases involving selective service, id., (b)(10), or election
redistricting, 45 C.F.R. Section 1632.
Limitations on methods of representation. Legal services attorneys are,
for the most part, limited to bringing traditional litigation on behalf of
individual clients. They cannot organize clients into effective advocacy
groups, such as tenant organizations. 42 U.S.C. Section 2996f(b)(7).
They cannot conduct or support training programs for the purpose of
advocating particular public policies or encouraging political activities.
Id., (b)(6). Legal services attorneys cannot assist their clients with
voter registration or engage in legislative advocacy on their behalf.
All of these restrictions interfere with the ability of dedicated legal
services attorneys to serve the needs of their clients. The poor remain
politically powerless in this country. Only in the courts can their
interests be protected; thus, the poor must have meaningful access to the
1) Restore funding for the Legal Services Corporation to adequate levels.
2) Appoint LSC Board members who are committed to meaningful access to
justice and legal services for the poor.
3) Support legislation and urge regulatory changes to remove restrictions
on the ability of LSC-funded organizations to meet the legal needs of
their impoverished clients, as those clients' legal situations warrant.
Access To Justice > RULE 11 REFORM
Rule 11 of the Federal Rules of Civil Procedure authorizes monetary
sanctions against attorneys for acting in bad faith. A 1983 amendment to
the Rule that alters the standards for sanctioning attorneys has had a
chilling effect on public interest lawyers.
Rule 11 of the Federal Rules of Civil Procedure governs the conduct of
attorneys and parties in civil litigation in federal court. It provides
monetary sanctions for the submission of papers to court that are not well
grounded in fact, not legally warranted, or interposed for an improper
purpose. In 1983, Rule 11 was amended to change the standards for
sanctioning attorney conduct from bad faith to a new, supposedly
"objective" standard. Application of that standard by the federal courts
has had a chilling effect on vigorous advocacy by public interest lawyers.
Since 1983, defendants have frequently employed Rule 11 as a weapon
against civil rights and civil liberties lawyers. Creative and aggressive
plaintiffs' lawyers, who have vigorously defended constitutional rights
and liberties, have been held personally liable for large monetary
sanctions under the rule. Indeed, the same legal arguments held to be
sanctionable in one case have been found to be meritorious in separate
actions before different judges. Recognizing the problems with Rule 11,
the Judicial Conference of the United States has proposed substantial
amendments to Rule 11 as part of a larger revision of the Federal Rules of
Civil Procedure. While far from perfect, the revised Rule 11 would
substantially reduce the use of monetary sanctions in civil rights and
civil liberties litigation. It would also reduce the use of Rule 11
motions as a litigation tactic by creating a "safe harbor" period, in
which non-meritorious claims might be withdrawn without penalty.
The proposed amendments are currently before the Supreme Court and will
likely be presented to Congress sometime next year. Once approved by the
Court, the proposed amendments will automatically take effect unless
rejected by both houses of Congress and by the President.
Support the Judicial Conference's proposed amendment to Rule 11 and oppose
any legislative effort to weaken reforms of the Rule.
Access To Justice > INDIGENT DEFENSE
Although criminal defendants have a constitutional right to legal counsel,
the federal government does not adequately fund indigent defense. This
problem has become particularly acute since the the "war on drugs"
occasioned a huge increase in drug prosecutions.
In the landmark case of Gideon v. Wainwright, 372 U.S. 335 (1963), the
Supreme Court held that the Constitution guarantees indigent defendants
the right to counsel in criminal cases. Thirty years later, the promise
of Gideon remains unfulfilled for many indigent defendants. The federal
government's support for prosecution has increased dramatically over the
last decade when compared to the increase in funding for defense. Direct
federal expenditures for prosecution increased 284.2 percent between 1979
and 1988. There was but a 60.3 percent increase for public defense over
the same period. U.S. Department of Justice Statistics, Justice
Expenditure and Employment, 1988. During this period, however, largely
because of the recession, the indigency rate in criminal cases has grown
while budgets for defense have remained flat.
Moreover, the Department of Justice has continually opposed indigent
defense funding and encouraged spending the money on police and
prosecutors. Under the federal Anti-Drug Abuse Act, the Bureau of Justice
Assistance distributes $400 million to state and local governments through
both a formula block grant program and a discretionary grant program.
Although Congress revised the Act to indicate specifically that indigent
defense is one area in which the money may be used, in FFY 1991 only $12
million was allotted among all the states and local governments for
indigent defense in this federal program.
There must be "adequate and balanced" funding under all federal programs
to meet police, prosecution and defense functions. Much of the fiscal
control for indigent defense in federal court, however, remains in the
judiciary through the Judicial Conference of the United States and
individual judges. Judicial representation of indigents occurs, if at
all, through appointment of unpaid counsel. It is no more appropriate for
the judiciary to control indigent defense funding than for the judiciary
to control prosecution funding.
1) Support adequate and balanced funding of indigent defense and remove
exclusive judicial control over indigent defense funding.
2) Urge the promulgation of a regulation requiring that indigent defense
representatives serve on the state agencies that decide how federal money
Access To Justice > HABEAS CORPUS
In a series of decisions during the past decade, the Supreme Court has
severely eroded meaningful access to the federal courts for state death
row inmates, thus undermining the letter and spirit of the historic writ
of habeas corpus.
Ever since the Magna Carta, the writ of habeas corpus has stood as the
highest safeguard of personal liberty. Access to the writ is guaranteed
by the Constitution (Art. 1 Section 9). Congress enacted the federal
habeas corpus statute (28 U.S.C. Sections 2241-2254) shortly after the
Civil War to ensure that state, as well as federal, courts do not deprive
persons charged with crimes of the rights they are guaranteed by the Bill
of Rights and the Fourteenth Amendment. The vigorous federal oversight
that habeas is intended to provide not only protects the integrity of our
constitutional guarantees, but also encourages state courts to pay close
attention to federal constitutional standards.
Habeas corpus has been particularly critical to the fair administration of
justice in capital cases. Capital trials in many parts of the country
remain permeated with racial bias, and are often conducted with little
regard for constitutional standards and without competent legal
representation. In the last decade, federal courts have found harmful
constitutional errors in nearly 40 percent of the capital cases reviewed.
See Habeas Corpus Issues, 1991, before the Subcomm. on Civil and
Constitutional Rights, Comm. on the Judiciary, 102d Cong., 1st sess. 1991
(Statement of John J. Curtin, Jr., President of the American Bar
Since 1980, the Reagan and Bush Administrations have sought to place
severe limitations on access to federal habeas corpus for death row
inmates. Claiming that most capital appeals are without merit, both
administrations have repeatedly urged the Supreme Court to interpret the
habeas statute to require extraordinary deference to state proceedings.
See e.g., Wright v. West 60 U.S.L.W. 4639 (June 19, 1992); Withrow v.
Williams 94 F.2d 284 (6th Cir. 1991), cert. granted 60 U.S.L.W. 3716
(April 20, 1992). In addition, both have asked Congress to enact
legislation that would require federal courts to defer to state court
decisions on the meaning of the Constitution, as long as the state courts
use "full and fair" procedures. See, H.R. 1400, 102d Cong., 1st sess.,
137 Cong. Rec. H1669, (daily ed. March 12, 1991). According to the
American Bar Association and other experts, that would mean that the
federal courts would have to turn away plainly meritorious constitutional
claims. Federal courts would no longer be able to ensure that prisoners'
rights are protected at all. Habeas corpus would not be reformed; it
would be repealed. See, e.g., Yackle, "The Reagan Administration's Habeas
Corpus Proposals," 68 Iowa L. Rev. 609 (1983).
The past administrations' Draconian approach to habeas reform was rejected
by Congress and by the Court. See Wright v. West. Nevertheless, the
Court has drastically curtailed access to the federal courts during the
past decade in a series of cases interpreting the doctrines of procedural
default, see, e.g., Coleman v. Thompson 59 U.S.L.W. 4789 (June 24, 1991),
and retroactivity, Teague v. Lane, 489 U.S. 288 (1989). These procedural
doctrines have erected new barriers to federal habeas review, and have
made such cases far more complex to litigate, more burdensome on the
federal courts and far less fair. It is now becoming commonplace for
capital defendants to be put to death without any meaningful federal
judicial review of their constitutional claims, even when those defendants
claim actual innocence. See Coleman v. Thompson.
There is no question that the processing of capital cases is in need of
reform. But the past administrations' approach to the problem exalts
speed over fair review. It fails altogether to address the root cause of
the problem -- the crisis of competent counsel on death row -- and
perpetuates the procedural complexity created by the Supreme Court's
decisions that prevent habeas courts from considering the merits of a
For the past 12 years, habeas corpus reform has been treated as a crime
issue. It is not: It is an issue that goes to the heart of the fair
administration of justice. Habeas reform should be considered free of the
political rhetoric and partisanship that mark the consideration of crime
bills in Congress.
1) Support true habeas corpus reform that:
a. assures capital defendants at least one full opportunity to
litigate constitutional claims on the merits in federal court;
b. requires states to provide properly trained and compensated
counsel from trial through post-conviction proceedings;
c. provides for substantial reform of the doctrines of procedural
default and retroactivity to simplify the process and assure that the
system not only works more efficiently, but also that federal review is
d. provides a mandatory stay of execution through the first round
of federal habeas review.
2) Review the litigation positions the government has taken before the
Supreme Court in habeas cases, with particular attention to death penalty
cases. Urge the Department of Justice to advocate strenuously on behalf
of a reinvigorated writ, in keeping with its historic mission.
CHILDREN'S RIGHTS: Adoption Assistance and Child Welfare Act:
CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991
CIVIL RIGHTS ENFORCEMENT: Caps on Damages
DRUG POLICY: The War on Drugs
DRUG POLICY: Civil Forfeiture
CRIME AND CRIMINAL JUSTICE
For more than two decades, the United States has experienced
extraordinarily high levels of violence and crime. Our crime rate far
exceeds that of any other industrialized nation. According to the United
Nations, the U.S. homicide rate is more than 14 times that of the United
Kingdom, four times that of Canada and eight times that of France. The
American Bar Association estimates that more than 30 million serious
crimes are committed in our country every year.
Understandably, the American public has responded to the high
crime rate with fear, and with demands for effective public safety
measures. But rather than confront the complex problem of crime with
rational policies and the necessary resources, many politicians discovered
that it is expedient and inexpensive to scapegoat the Constitution and the
Bill of Rights. Instead of dealing with the conditions of poverty that
prompt many young people in our inner cities to commit property crimes,
they attack the Exclusionary Rule and the Miranda warnings. Instead of
investing in crime prevention measures like education, decent housing and
job training, they invest in prison construction -- one of the fastest
growing industries in the country.
These policies have not reduced the crime rate. Instead, they
have fostered a criminal justice system that is pervaded with racism and
class bias, from arrest to imprisonment, and a rate of incarceration that
surpasses every other country in the world. The typical inmate in a U.S.
jail or prison is minority, male, young and uneducated. Over 40 percent
of inmates are functionally illiterate, and one-third were unemployed when
arrested. More than half had annual incomes of less than $10,000, and
more than 60 percent of female prisoners were on welfare at the time of
We cannot afford to continue these failed policies. The Clinton
Administration must commit itself to a serious re-examination of the
nation's criminal justice policies that both looks at the underlying
integral causes of crime and violence in our society and recognizes the
importance of preserving every individual's civil rights and liberties.
Department of Justice
United States Sentencing Commission
Crime/Criminal Justice > IMPRISONMENT AS A CRIME CONTROL MECHANISM
The federal government's longstanding reliance on incarceration as a crime
control strategy is unsupported by research or experience. It has led to
the doubling of the nation's prison population in the last decade, without
any measurable impact on the crime rate.
In the United States today, more than 1,300,000 men, women and juveniles
live behind bars in more than 5,000 separate lock-ups, jails and prisons.
The U.S. now has the world's highest per capita incarceration rate, which
has grown continuously during the past 12 years and is now four to 10
times greater than that of any Western European country, and three to five
times greater than that of any Eastern European country. Yet our rate of
imprisonment has had no measurable impact on our crime rate, which
continues to soar.
People of color are disproportionately represented in our jails and
prisons. Although African Americans constitute only 12 percent of the
population, almost half of all prisoners are black. Indeed, the rate of
incarceration of black men in the U.S. is almost five times higher than in
South Africa. M. Mauer, "Americans Behind Bars: A Comparison of
International Rates of Incarceration," The Sentencing Project (1991). One
out of every four black men and one out of every ten Latino men, between
the ages of 20 and 29, are in prison or jail or on probation or parole,
compared to one out of every 16 white men in the same age group. M.
Mauer., "Young Black Men and the Criminal Justice System: A Growing
National Problem," The Sentencing Project (1990).
We pay a high price for our inordinate reliance on incarceration, both
socially and fiscally. The imprisonment of such great numbers of young
minority men, most for nonviolent offenses, has been a major factor in the
feminization of poverty in our inner cities. And the annual cost of
incarceration now exceeds $20 billion -- approximately $30,000 a year per
prisoner. The huge increase in the prison population over the last decade
has also led to severe overcrowding in federal and state prisons and
jails. As of January 1992, prison systems in 40 states and the District
of Columbia were under court orders to reduce conditions of overcrowding
that were found to be unconstitutional.
Develop a rational and fiscally responsible criminal justice policy that:
a. recognizes the limitations of incarceration as a crime control
b. expands the use of alternatives to incarceration for
non-violent offenders, and
c. reserves scarce prison space for violent offenders.
Crime/Criminal Justice > THE EXCLUSIONARY RULE
The Exclusionary Rule of the Fourth Amendment, which is designed to deter
the police from executing unconstitutional searches and seizures, has been
repeatedly attacked by past administrations and significantly weakened by
recent Court decisions.
The Fourth Amendment protects the right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches
and seizures. The Exclusionary Rule gives the Fourth Amendment teeth. By
excluding from trial any evidence seized in violation of the Fourth
Amendment, police are deterred from acting in an unconstitutional manner.
In recent years, however, numerous government officials have attacked the
Exclusionary Rule as a mere "technicality" that allows hordes of guilty
criminals to go free. In fact, studies show that the rule rarely has an
adverse effect on the outcome of a criminal case. For example, in a 1979
study by the General Accounting Office, it was revealed that only
four-tenths of one percent of the cases rejected for prosecution were
rejected because of Fourth Amendment problems. Report by the Comptroller
General of the United States, U.S. General Accounting Office, Impact of
the Exclusionary Rule on Federal Criminal Prosecutions 14 (1979). And
many respected police officials believe that the Exclusionary Rule has had
the salutary effect of professionalizing the police and encouraging
respect for individual rights. See "Criminal Justice in Crisis," American
Bar Association (1988).
In 1984, the Supreme Court significantly weakened the Exclusionary Rule by
holding that evidence is admissible even if seized with an invalid search
warrant, so long as the police acted in "good faith." United States v.
Leon, 468 U.S. 897 (1984); Massachusetts v. Sheppard, 468 U.S. 981 (1984).
The Reagan/Bush Administrations proposed legislation that would have
expanded the "good faith exception" to the Exclusionary Rule to include
evidence gathered during a warrantless search. These proposals were
rejected by Congress but are likely to be proposed anew.
Extending the "good faith exception" to warrantless searches would have a
devastating effect on the deterrence of police misconduct and would, in
fact, provide an incentive for police to circumvent the warrant process
altogether. The Fourth Amendment, for all practical purposes, would be
reduced to a paper tiger that would, in the words of the late Justice
Robert Jackson, "leave the people's homes secure only in the discretion of
police officers." Johnson v. United States, 333 U.S. 10, 14 (1948).
1) Oppose any attempts in Congress to expand the "good faith exception" to
the Exclusionary Rule.
2) Instruct the Department of Justice to adopt a litigation position that
strengthens the Fourth Amendment.
Crime/Criminal Justice > MANDATORY MINIMUM SENTENCING
Mandatory minimum sentencing laws prevent judges from considering
mitigating factors and result in unreasonably harsh penalties. These laws
have contributed to the explosion of our prison population, but they have
not led to a reduction in our crime rate.
Since 1984, Congress has enacted a series of mandatory minimum sentencing
laws, removing from the judiciary the discretion it has traditionally had
under our system of criminal justice. Approximately 100 mandatory
sentencing provisions are now housed within 60 federal statutes. Under
these statutes, federal judges are compelled to mete out harsh prison
sentences without regard to any mitigating circumstances.
Mandatory minimum sentences raise serious civil liberties concerns.
Because judges are compelled to disregard mitigating factors when imposing
sentence, mandatory minimum provisions often force trial courts to impose
sentences that may be disproportionate to the crime. For example, an
offender convicted of possession of five grams of "crack," must be
sentenced to five years in prison even if it is a first offense and
irrespective of the offender's age, prospects for rehabilitation or role
in the commission of the crime.
Although mandatory minimums were originally designed to eliminate
sentencing disparities for similar crimes, they have not accomplished that
purpose. In 1991, the U.S. Sentencing Commission completed a study of the
effects of mandatory minimum sentencing laws. The Commission found that
discriminatory racial disparities persisted, with minority offenders
receiving harsher sentences than their white counterparts in spite of the
mandatory minimums. United States Sentencing Commission Special Report to
Congress, Mandatory Minimum Penalties in the Federal Criminal Justice
System at 1 (August 22, 1991).
The greatest and most consistent opposition to mandatory minimum
sentencing laws has come from federal jurists. The United States Judicial
Conference, in addition to all 12 Circuit Courts of Appeal, have passed
resolutions opposing the concept of mandatory minimums.
1) Support the repeal of federal mandatory minimum sentencing laws, so
that sentencing discretion is restored to the federal judiciary.
2) Support the Sentencing Uniformity Act of 1992 (H.R. 6079), introduced
by Ed Jenkins (D-GA) and Don Edwards (D-CA).
Crime/Criminal Justice > COERCED CONFESSIONS / FIFTH AMENDMENT
The Supreme Court has discarded the special rules that have long applied
to the admissibility of coerced confessions in criminal trials, thus
eroding the Fifth Amendment right against self-incrimination.
In 1991, the Supreme Court, in Arizona v. Fulminante, 111 S. Ct. 1246
(1991), reversed longstanding precedent that the admission into evidence
of a coerced confession could never be held harmless error. The Fifth
Amendment's guarantee of the right against self-incrimination, as with the
right not to be deprived of counsel or tried before a biased judge, is
central to a fair trial. The admission of a coerced confession distorts a
trial's truth- seeking function and undermines its structural integrity.
In Fulminante, the Court held that coerced confessions should now be
treated like any other trial error; thus, it extended to involuntary
confessions the harmless error rule outlined in Chapman v. California, 386
U.S. 18 (1967). A coerced confession, however, is fundamentally different
from other types of erroneously admitted evidence to which the rule has
been applied. "The defendant's own confession is probably the most
probative and damaging evidence that can be admitted against him ... [T]he
admissions of a defendant come from the actor himself, the most
knowledgeable and unimpeachable source of information about his past
conduct." Bruton v. United States, 391 U.S. 123, 139-140 (1968) (White,
J., dissenting). Recognizing the distinct nature of confessions, the
Court had long rejected application of the harmless error doctrine to
coerced confessions, even if independent corroborating evidence existed to
support the conviction and even when a second confession by the defendant
had been properly admitted into evidence.
The abandonment of this long-standing precedent has disturbed one of the
fundamental tenets of our criminal justice system.
Introduce legislation that amends the federal criminal code by restoring
pre-Fulminante law, as follows:
1. Section 3501 of Title 18, United States Code, should be amended
by adding at the end of subsection (a), "The erroneous admission into
evidence of an involuntary confession subject to exclusion under this
section shall not be subject to consideration as harmless error," and by
adding to the end of subsection (f), "The law of the United States does
not require the disregarding as harmless error of the erroneous admission
of evidence in a proceeding in any court under circumstances in which
admission of the evidence would not be subject to consideration as
harmless error in a court of the United States pursuant to subsection (a)
of this section."
2. Rule 52 of the Federal Rules of Criminal Procedure should be
amended by adding at the end of subsection (a), "This subsection shall not
apply to a confession involuntarily given, as determined under section
3501 of Title 18, United States Code."
Crime/Criminal Justice > PREVENTIVE DETENTION
Detention before trial is repugnant to the Constitution and abrogates the
presumption of innocence upon which our system of criminal justice is
The Eighth Amendment guarantees the right to reasonable bail except in
cases of murder, a capital offense. The practice of incarcerating the
accused before trial tramples on one of this country's most fundamental
rights: the right to be presumed innocent until proven guilty. The
presumption of innocence means that judges, in deciding on bail, may not
consider the issue of guilt, but only whether a defendant might flee the
jurisdiction if released. The purpose of bail is not to punish, but to
guarantee a defendant's presence at trial.
The Bail Reform Act of 1984, 18 U.S.C. Sections 3141-56, was enacted by
Congress to give judicial officers the authority to detain an arrestee
"preventively" without bail, upon determination that no release conditions
"will reasonably assure the appearance of the person as required and the
safety of any other person and the community." 18 U.S.C. Section 3143(c).
In United States v. Salerno, 481 U.S. 739, 746 (1987), the Supreme Court
upheld the facial constitutionality of the Bail Reform Act, ruling that
substantive due process is not violated because pretrial detention is
regulatory, not penal. The Court rejected the argument that the Act
authorized impermissible punishment before trial.
Pretrial detention was first among the 24 "crime-fighting" recommendations
for state and local law enforcement agencies issued by Attorney General
William Barr in July 1992. In his report, Barr stated that a "critical
step" in legal reform during the 1980s was the ability to keep "dangerous
defendants" in jail before trial. Combating Violent Crime: 24
Recommendations to Strengthen Criminal Justice, U.S. Department of Justice
at 1 (July 28, 1992). The assumptions upon which pretrial detention are
based, however, are faulty. The vast majority of criminal defendants do
not commit further serious crimes while free on bail. U.S. Department of
Justice, Bureau of Justice Statistics, Pretrial Release of Felony
Defendants, 1988 (1991). Moreover, it is impossible to predict accurately
which defendants will commit new crimes and which will not. Ennis and
Litwack, "Psychiatry and the Presumption of Expertise: Flipping Coins in
the Courtroom," 62 Cal. L.R. 693 (1974).
Instruct the Department of Justice to:
a. reverse its practice of expanding the types of cases where
preventive detention is sought;
b. exclude "dangerousness" as a criterion for detention before
c. limit preventive detention to cases where no condition or
combination of conditions would reasonably assure the defendant's presence
in future court proceedings.
Crime/Criminal Justice > CAPITAL PUNISHMENT
Capital punishment exacts enormous social, moral and financial costs from
U.S. society. But there is no convincing evidence that the death penalty
deters the commission of murder.
For the past 12 years, the death penalty has taken on an exaggerated
importance in the public debate over crime and punishment. But its
prominence bears no relationship to its utility as a crime-fighting
measure. Indeed, there is no credible evidence that the death penalty has
any impact on reducing violent crime or homicide. Nevertheless, 38
jurisdictions, including the U.S. military and the federal government,
have death penalty statutes. There are currently 2,600 people on death
row nationwide, including one person who is under sentence of death under
the federal Anti-Drug Abuse Act of 1988.
The federal government's support for the death penalty must be re-examined
in light of the following facts:
Death penalty states, as a group, do not have lower rates of
criminal homicide than non-death penalty states. During the 1980s, death
penalty states averaged an annual rate of 7.5 criminal homicides per
100,000 of the population, while states without the death penalty averaged
a rate of 7.4. Hugo Bedau, The Case Against the Death Penalty, Capital
Punishment Project of the ACLU (reprinted 1992). Despite the fact that
Texas has the largest death row in the country, and Houston alone has
executed 10 percent of all of the people executed in the U.S. since 1976,
the murder rate in three major Texas cities, including Houston, is so high
as to rank those cities among the nation's top 25 cities for murder.
Death Penalty Information Center, Millions Misspent: What Politicians
Don't Say About the High Cost of the Death Penalty, (October 1992).
The death penalty has increased the costs of state and local
criminal justice systems without a commensurate increase in public safety.
In California, capital trials are six times more expensive than other
murder trials. The Death Penalty Information Center, Millions Misspent:
What Politicians Don't Say About the High Costs of the Death Penalty
(October 1992). In Texas, a single death penalty case costs the taxpayers
an average of $2.3 million -- three times the cost of imprisoning someone
in a single cell at the highest security level for 40 years. Id. In an
era of limited resources, death penalty states find themselves choosing
between expensive death penalty trials and executions in a handful of
cases, and other vital law enforcement programs.
American juries continue to apply the death penalty in a racially
discriminatory manner. Although there has been some improvement in the
extent to which race plays a role in capital punishment in the years since
the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972) (in
which the Court invalidated virtually every death penalty statute in the
country), strong evidence exists that in some jurisdictions, and for some
crimes, the defendant's race is still a determining factor -- especially
if the victim is white. According to a survey by the General Accounting
Office, studies show "a pattern of evidence indicating racial disparities
in the charging, sentencing and imposition of the death penalty..." In 82
percent of the studies reviewed by the GAO, the race of victim was found
to strongly influence the likelihood of being charged with a capital
murder and of receiving the death penalty. Death Penalty Sentencing:
Research Indicates Pattern of Racial Disparities, U.S. Government
Accounting Office Report to Senate and House Committees on the Judiciary
(GAO\GGD-90-57) (February 1990).
[Note: The case can be made that the U.S. is alone among Western nations
in its retention of the death penalty for ordinary crimes because of its
unique history of slavery and its legacy. Under slavery, the Slave Codes
that regulated all aspects of slave life in the South sanctioned extreme
physical punishment and the ultimate punishment, death, as the primary
method of controlling the population held in bondage -- a population that
was perceived to be forever "alien" and inferior. After Emancipation,
official and mob lynchings were used to terrorize the newly freed slaves,
keeping them in virtual bondage. The racial bias that historically has
marked the imposition of the death penalty remains entrenched in our
society and continues to inform the general public's orientation towards
crime and punishment and continues to influence the shape of public
The execution of innocent defendants is a significant and
unacceptable risk. Although the American system of criminal justice has
many safeguards to prevent gross miscarriages of justice, it is not
infallible. There are hundreds of cases in which persons have been
falsely accused and convicted. Since 1900, there have been on average
more than four cases per year in which people have been put to death for
murders they did not commit. Radelet, Bedau and Putnam, In Spite of
Innocence, Northeastern University Press (1992). As the use of the death
penalty expands, so does the risk of mistaken executions.
1) Support legislation that repeals the death penalty at the federal
level. Provide leadership in urging states to repeal existing death
2) Appoint a national commission on crime and capital punishment to study
the effect of the death penalty, if any, on the incidence of homicide.
Support legislation imposing a moratorium on federal death sentences and
executions pending the commission's report.
3) Support legislation to provide a meaningful remedy for the
impermissible influence of race in capital cases and to insure that no
person is executed as a result of racial discrimination.
Crime/Criminal Justice > POLICE ABUSE
The federal government must shoulder its burden in protecting all people's
civil right to be free from abusive treatment by law enforcement
During the past 12 years, the federal government has virtually ignored the
nationwide problem of police abuse. Nowhere was this failure more evident
than in Los Angeles, California. A widespread pattern of police abuse by
officers of both the Los Angeles Police Department (LAPD) and the Los
Angeles Sheriff's Department (LASD) was well known to the Department of
Justice long before the beating of Rodney King. Over a six-year period,
from 1984 to 1990, the LASD ranked second, and the LAPD 11th, in police
abuse complaints received by the Department. Yet, during that period, the
Department of Justice brought only three prosecutions against police
officers in Los Angeles County.
The Department's lack of zeal was apparent elsewhere as well. In 1990, of
the 7,960 complaints of civil rights violations filed with the FBI and the
Justice Department, only 3,050 cases were investigated and only 63 were
prosecuted. In 1991, the year of the Rodney King beating, charges were
filed in only 68 cases.
Moreover, the Department of Justice failed to support reform legislation
that would make it easier to vindicate valid claims of police abuse. Laws
enacted during the Reconstruction Era give the Justice Department
authority to prosecute local law enforcement officers for federal criminal
civil rights violations. 18 U.S.C. Sections 241 and 242. However, the
Supreme Court's decision in Screws v. United States, 325 U.S. 91, 103-104
(1945), which requires that the accused officer acted with specific intent
to deprive the victim of a constitutional right, has made it difficult to
bring successful federal civil rights cases against individual police
Although 42 U.S.C. Section 1983 provides for civil remedies for victims of
police abuse, recent Supreme Court decisions under Section 1983 have
become so restrictive that legislative reform is essential to ensure that
private civil rights damages are effective in achieving the goals of
victim compensation and police accountability. Under current law, for
example, the federal government cannot bring a civil suit on behalf of a
victim of police misconduct. In most cases, the victim must sue the
individual officer, who is usually judgment proof, rather than his or her
government employer. Moreover, the victim may lose the suit if the jury
finds that the officer acted "in good faith," even if the jury believes
the conduct to have been illegal.
During the Carter Administration, the Justice Department sued the City of
Philadelphia, seeking injunctive relief to halt a pattern and practice of
police misconduct in that city. But the United States Court of Appeals
for the Third Circuit ruled that Congress had not authorized such pattern
and practice suits by the Justice Department. United States v.
Philadelphia, 644 F.2d 187 (3d Cir. 1980). Then, in Los Angeles v. Lyons,
461 U.S. 95 (1983), the Supreme Court held that individual victims of
police misconduct lacked legal standing to bring such lawsuits.
1) Instruct the Department of Justice to vigorously prosecute abusive
police officers under existing federal civil rights laws and to collect
data from federal, state and local law enforcement agencies about
complaints of excessive force.
2) Support legislation that:
a. gives the Justice Department clear statutory authority to bring
a civil action for obtaining appropriate equitable and declaratory relief
to eliminate a pattern or practice of police misconduct;
b. gives private parties standing to challenge a pattern or
practice of police abuse in civil actions;
c. makes state and local governments liable for acts of abuse by
police officers, and gives the Justice Department authority to sue on
behalf of the injured party;
d. makes law enforcement officers criminally liable whenever they
act under color of law to subject any person to force exceeding that which
is reasonably necessary to carry out a law enforcement duty, and
e. requires police departments that receive federal funds to:
establish an early warning system for identifying police officers who have
received an excessive number of complaints of misconduct; provide
training, counseling and, where appropriate, disciplinary action for those
officers; establish a clear policy prohibiting the use of unreasonable and
unnecessary physical force, and set up a formal procedure for
investigating citizens' complaints.
ACCESS TO JUSTICE: Indigent Defense
ACCESS TO JUSTICE: Habeas Corpus
DRUG POLICY: The War on Drugs
DRUG POLICY: Militarization of Drug Law Enforcement
DRUG POLICY: Post-Conviction Sanctions
DRUG POLICY: Civil Forfeiture
DRUG POLICY: Medical Marijuana
INFORMATION PRIVACY: Criminal History Records
INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties
INTERNATIONAL HUMAN RIGHTS: Abduction of Foreign Nationals
PRISONERS' RIGHTS: Medical Care
PRISONERS' RIGHTS: Maintenance of Family Ties
PRISONERS' RIGHTS: Grievance Resolution
PRISONERS' RIGHTS: Voting Rights
PRISONERS' RIGHTS: International Standards
PRISONERS' RIGHTS: Civil Rights of Institutionalized Persons Act
PRISONERS' RIGHTS: Monitoring Overcrowding and Human Rights Violations
WOMEN'S RIGHTS: Drug Dependent Women
For the past 75 years, local, state and federal governments in the
United States, with virtually no exceptions, have pursued a policy of
criminal prohibition with respect to certain (though not all)
mind-altering drugs. Despite the fact that this policy has failed either
to curb drug trafficking or to reduce the crime associated with it, our
policy makers have never seriously reconsidered its underlying premises.
Instead, they have called for more of the same: more vigorous law
enforcement and harsher and harsher laws, despite the persistent failure
of such laws to achieve lasting remedial results. Apparently widespread
public acceptance of this approach has enabled the government to remain
largely above criticism and, at the same time, to accumulate tremendous
and sometimes unconstitutional powers.
The 1980s saw both the rapid deterioration of living conditions in
America's inner cities and the emergence of the twin epidemics of crack
and AIDS. The federal government's primary response was to favor law
enforcement strategies over treatment, prevention, education and research.
The "war on drugs" quickly became a war on people, and a war on the Bill
of Rights. Hundreds of thousands of non-violent drug abusers have been
imprisoned. The AIDS virus has been allowed to run rampant through the
population of drug-users, their sexual partners and their offspring. And
fundamental civil liberties have been scapegoated and eroded.
The war on drugs has caused enormous human suffering, while doing
little or nothing to curb the nation's appetite for drugs. The Clinton
Administration must reexamine drug control strategy and implement policies
that genuinely reduce, rather than magnify, the harms caused by drug
Department of Justice
Drug Enforcement Administration
Food and Drug Administration
National Commission on AIDS
Office of National Drug Control Policy
Drug Policy: > THE "WAR ON DRUGS"
The National Drug Control Strategy, popularly known as the war on drugs,
has failed to reduce the importation of contraband into the U.S., and it
has failed to reduce Americans' demand for illegal drugs. Instead, it has
led to the erosion of basic civil liberties and the diversion of federal
resources needed for drug treatment, education and prevention.
The first contemporary war on drugs, declared by President Nixon in 1969,
devoted almost two-thirds of its total budget to treatment, prevention and
education. Presidents Ford and Carter continued to proclaim "demand
reduction" as the primary focus of national drug policy. But President
Reagan precipitously shifted 80 percent of the federal funds allocated to
the drug war over to law enforcement -- supply reduction -- reflecting his
Administration's view that drug abuse was not an illness, but primarily a
law enforcement problem.
This funding pattern continued under the Bush Administration, which spent
$12 billion on the drug war. More than 70 percent of that went to law
One of the Bush Administration's major responses to the drug problem in
the inner cities is "Operation Weed and Seed," an essentially paramilitary
operation aimed at drug trafficking. This initiative has been opposed in
the targeted cities by citizens who see its law enforcement thrust as
being at odds with the need for treatment and jobs.
Over-reliance on law enforcement has had disastrous consequences for the
nation, including the following:
A gridlocked criminal justice system. The sheer volume of drug arrests
(1.2 million per year today, compared to 200,000 in 1968 when drug use was
much higher) is overwhelming our police, our prosecutors, our defense bar,
our courts and our jails and prisons.
The world's highest incarceration rate. The United States, with more than
one million people behind bars, now imprisons more people per capita than
any other country, including South Africa.
The diversion of funds from drug prevention programs. Most law
enforcement officials today believe that adequately funded social
programs, including economic opportunity programs, are the best crime
prevention methods we have.
The explosion of HIV-infection among intravenous drug users, their sexual
partners and their children. Possession of hypodermic syringes continues
to be a criminal offense in many jurisdictions, especially those with a
high percentage of intravenous drug users. But the federal government has
ignored even its own National Commission on AIDS, which in 1991
recommended removing legal barriers to the purchase and possession of
The destruction of basic civil liberties. We now have what some
constitutional scholars call "the drug exception to the Bill of Rights."
Random, suspicionless drug testing, the militarization of domestic drug
law enforcement, heightened surveillance through wiretapping and other
techniques, passage of vaguely worded loitering laws and curfews,
forfeiture of people's homes and assets, excessive and mandatory prison
terms -- all of these practices and more have eroded the constitutional
rights of all Americans.
A growing consensus of experts, including many law enforcement officials,
agrees that a cease-fire must be declared in the war on drugs, and that
drug policy must be reformed. Several weeks after the brutal 1991 beating
of Rodney King in Los Angeles, 12 big city police chiefs issued a position
paper on "The Policing Crisis in America." They wrote: "We reject
metaphors such as 'war on drugs' and 'war on crime' that imply violence."
They also recognized that the crime and violence associated with drugs is
the inevitable "aftermath of years of urban neglect . . . and of a lost
generation wandering the streets without employment or hope of a better
future." They are right.
1) Declare an immediate cease-fire in the war on drugs and redirect
federal resources towards drug treatment, prevention and education.
2) Develop and implement a national drug policy that reflects the fact
that drug abuse is principally a public health problem, not a criminal
3) Implement the recommendation of the National Commission on AIDS that
legal barriers to the purchase and possession of sterile hypodermic
syringes be removed.
Drug Policy > MILITARIZATION OF DRUG LAW ENFORCEMENT
During the past twelve years, the military has assumed an increasingly
prominent role in domestic drug law enforcement. This development
threatens our nation's historic separation between military and civilian
affairs, and jeopardizes basic civil liberties.
In 1878, Congress passed the Posse Comitatus Act, 18 U.S.C. Section 1385,
forbidding the armed forces from engaging in civilian law enforcement.
During its first 100 years, the law remained intact, reflecting what Chief
Justice Warren Burger referred to as "a traditional and strong resistance
of Americans to any military intrusion into civilian affairs." Laird v.
Tatum, 408 U.S. 1,14 (1972).
In 1981, Congress passed amendments to the Posse Comitatus Act, allowing
the military to provide law enforcement with intelligence information,
lend military equipment to law enforcement authorities and train, and
provide technical assistance for, civilian drug enforcement. 10 U.S.C.
Sections 371 et seq. Several years later, Congress continued this trend
by passing the Defense Drug Interdiction Assistance Act of 1986, which
authorized even greater use of military resources. Public Law No. 99-570,
These developments have led to the increasing militarization of drug
enforcement, to the detriment of fundamental civil liberties. While most
of the military's effort is directed at defending the nation's coasts and
borders against drug smuggling, the National Guard and the Army have
participated in domestic drug enforcement as well. According to the
Department of Defense, the National Guard conducted a total of 5,815
domestic marijuana eradication missions in all 54 states and territories
in 1991. ("Annual Report to the President and the Congress, Part III,
Defense Components, Counterdrug Program," February 1992).
The experience of residents of Humboldt County, California during the
summer of 1990 demonstrates the inherent dangers of using the military for
domestic law enforcement. For two weeks in August of that year, a
contingent of 200 active-duty military troops participated in a marijuana
eradication campaign called Operation Green Sweep. During that time, the
military conducted relentless helicopter surveillance over residents'
homes and fields, set up military roadblocks, conducted unwarranted
interrogations and detentions and frightened law-abiding people --
including children -- with displays of excessive force and weaponry. See
Complaint for Injunctive Relief and Damages, Drug Policy Foundation v.
Bennett, No. C-90-2278 (D.C.N.CA. filed Aug. 9, 1990).
Whereas civilian law enforcement agents are trained to abide by limits
placed upon them by the Constitution and the Bill of Rights, the military
is trained to wage war. One has only to look at the histories of those
countries around the world where the military has played a major role in
domestic law enforcement to see the extent to which basic civil liberties
are imperiled by such an arrangement.
1) Urge repeal of the 1981 amendments to the Posse Comitatus Act and the
Defense Drug Interdiction Assistance Act.
2) Restore the clear separation between military and civilian law
Drug Policy > POST-CONVICTION SANCTIONS
The imposition of "civil" fines, and the suspension of certain federal
benefits for persons convicted of relatively minor drug offenses violates
On November 18, 1988, at a time when the country was in the grip of an
unprecedented drug scare, Congress enacted the Anti-Drug Abuse Act of
1988. The Act imposes, inter alia, post-conviction sanctions on minor
drug offenders over and above the criminal penalties authorized by law.
Indeed, as with many laws enacted during the war on drugs, the Act singles
out drug offenders, many of them drug addicts, for special retribution.
The provision entitled "Denial of Federal Benefits to Drug Traffickers and
Possessers," 21 U.S.C. Section 862, allows judges, after passing sentence
on an offender convicted of drug distribution or possession in either
state or federal court, to mete out an additional penalty: the suspension
of eligibility for federal benefits. While the law exempts veteran's
benefits and needs-based benefits, such as welfare, disability, public
housing and Social Security, it covers a wide range of federal benefit
programs. Benefits that are subject to suspension include: federally
insured student loans; education grants issued by the Department of
Education; loans and grants issued by the Small Business Administration;
federally insured mortgages, and grants made by the National Endowments
for the Arts and the Humanities.
The other provision, "Civil Penalty for Possession of Small Amounts of
Certain Controlled Substances," 21 U.S.C. Section 844a(a)-(g), establishes
a system of civil fines of up to $10,000, imposed administratively under
the authority of the attorney general. This law explicitly targets
non-violent drug users convicted of possession of such small amounts of a
controlled substance that the drugs are presumptively for personal use
only. The individual offender must request an administrative hearing if
he or she wants to challenge the imposition of the fine.
The penalty under federal criminal law for a first offense of simple
possession of a controlled substance is substantial: one year in prison
and a minimum $1,000 fine, see 21 U.S.C. Section 844(a). A hefty civil
fine plus the loss of federal benefits amounts to overkill. While couched
in "civil" terms, these measures are an end run around the procedural
rights to which criminal defendants are entitled under the Constitution.
They subject relatively minor drug offenders to post-conviction sanctions
not suffered by rapists and murderers. And they fuel the vicious cycle of
economic hardship, limited opportunity and alienation that cause some
people to turn to drugs in the first place.
Support the repeal of 21 U.S.C. Sections 844a and 862 of the Anti-Drug
Abuse Act of 1988.
Drug Policy > CIVIL FORFEITURE
The increasing use of civil forfeiture in the war on drugs endangers our
constitutional rights to be free from unwarranted and disproportionate
punishment. The fact that law enforcement agencies can keep the assets
and property they seize encourages official abuse and corruption.
Although civil forfeiture has existed throughout this country's history,
it became increasingly popular with prosecutors after 1984, when Congress
passed a law authorizing federal officials to seize any property used in
any manner to facilitate the drug trade, or that was purchased with drug
money. See 21 U.S.C. Section 881 (1984). Since that time, civil
forfeiture has been used to seize all manner of personal and real
property, from family homes to lawn equipment. See 21 U.S.C. Section
881(a). Civil forfeiture operates on the legal fiction that property can
be guilty of wrongdoing. Absent a statutory exception, even the innocence
or acquittal of the property owner is no bar to confiscation of the
offending property. Criminal forfeiture, on the other hand, is only
possible upon the conviction of the property owner. See 18 U.S.C. Section
Civil forfeiture has become a nightmare for thousands of ordinary people
who have minor brushes with the law, or who are completely innocent of
wrongdoing. The ease with which law enforcement authorities are able to
secure forfeitures, and the zeal with which they pursue them, endangers
our constitutional right to be free from unwarranted or disproportionate
Civil forfeiture has been especially attractive to law enforcement
agencies because very little in the way of proof or connection to actual
wrongdoing is required for success. At present, authorities must simply
satisfy a requirement of probable cause that the property was used in an
illicit activity, or was purchased with funds from illicit activity, in
order to seize it. See 21 U.S.C. Section 881(b). No criminal arrest or
conviction is necessary to subject property to forfeiture. Indeed, the
government never has to prove that any crime was actually committed. See
United States v. Property Identified as 3120 Banneker Drive, 691 F. Supp.
497 (D.D.C. 1988).
Once property has been seized, there is a rebuttable presumption in favor
of the seizing agency. An owner can only overcome this presumption by
proving that s/he had no knowledge of the illicit activity and/or did not
consent to that activity. This burden of proof is often impossible to
satisfy. Because civil forfeiture requires such a low level of proof, it
is frequently used by authorities to penalize people where the state
cannot sustain a criminal conviction. Often, the amounts of the
forfeitures far exceed the criminal fines that would be assessed if a
criminal proceeding were initiated. And while civil forfeiture is
sustained as constitutional because it is characterized as civil rather
than criminal, its effects are clearly penal -- but without the safeguards
governing criminal trials.
Civil forfeiture stands outside the doctrines of due process and criminal
procedure. It is an arcane legal doctrine that exists merely on the
strength of its historic pedigree and its fiscal advantage to law
enforcement agencies. The loss of one's car or family home for possession
of microscopic quantities of drugs is disproportionate to the crime
alleged. And even if we the people believe that such punishments are
warranted for crimes of such little magnitude, the accused should still
have the right to a presumption of innocence.
1) Support the reform of civil forfeiture law and practice to require:
a) that the property subject to forfeiture be substantially
connected to the illicit conduct, and that the connection be proven by
clear and convincing evidence;
b) proportionality between the value of property seized and the
culpability of the actor;
c) a lengthening of the deadline for filing challenges to a
d) the right to a jury trial.
2) Support HR 2774, introduced by Rep. John Conyers (D-MI), which seeks to
minimize the mismanagement of confiscated property by the Department of
Justice by channeling 50 percent of the seized funds to treatment,
prevention and community-based crime prevention programs.
Drug Policy > MEDICAL MARIJUANA
Marijuana is known to be an effective therapeutic agent for the treatment
of various medical conditions; yet physicians are currently not permitted
to prescribe the drug. This forces people with certain medical conditions
to obtain marijuana illegally and face the possibility of arrest,
prosecution and imprisonment.
The Drug Enforcement Administration (DEA) has refused to reschedule
cannabis, under the U.S. Controlled Substances Act, from Schedule I (high
abuse potential; no currently accepted medical use) to Schedule II
(prescriptions allowed), in spite of clear evidence that marijuana has
accepted medical uses and can be used safely under medical supervision.
That was the finding of Honorable Francis L. Young, Chief Administrative
Law Judge of the DEA. In September 1988, Judge Young ruled that:
"The evidence in the record clearly shows that marijuana has been accepted
as capable of relieving the distress of great numbers of very ill people,
and doing so with safety under medical supervision. It would be
unreasonable, arbitrary and capricious for DEA to continue to stand
between those sufferers and the benefit of this substance in light of the
evidence in this record." In the Matter of the Marijuana Rescheduling
Petition, Docket # 86-22, U.S. Department of Justice, Drug Enforcement
Administration, Sept. 6, 1988.
On December 29, 1989, John Lawn, the Administrator of the DEA, refused to
adopt the recommendations of his chief administrative law judge and
announced that cannabis would remain a Schedule I drug. 54 Fed. Reg.
53,767. The case is still in litigation.
The DEA's refusal to reclassify marijuana flies in the face of both the
actual experience of desperately ill patients, and prevailing medical
opinion. A recent survey of 1,000 cancer specialists found that 44
percent had recommended the illegal use of marijuana to control the
vomiting associated with chemotherapy. Forty-eight percent of the doctors
said they would prescribe marijuana in smokable form to some of their
patients if it were legal. Annals of Internal Medicine, (May 1991).
1) Direct the DEA to implement the recommendation of the Chief
Administrative Law Judge of the Drug Enforcement Administration:
Reclassify marijuana from Schedule I to Schedule II of the Controlled
2) Direct the Food and Drug Administration to issue a rule making
marijuana available by prescription.
3) Support research on the potential medicinal uses of marijuana.
ACCESS TO JUSTICE: Indigent Defense
CRIME AND CRIMINAL JUSTICE: Imprisonment as Crime Control Mechanism
CRIME AND CRIMINAL JUSTICE: Exclusionary Rule
CRIME AND CRIMINAL JUSTICE: Mandatory Minimum Sentencing
CRIME AND CRIMINAL JUSTICE: Preventive Detention
CRIME AND CRIMINAL JUSTICE: Capital Punishment
CRIME AND CRIMINAL JUSTICE: Police Abuse
INFORMATION PRIVACY: Criminal History Records
PRISONERS' RIGHTS: Medical Care
WORKERS' RIGHTS: Drug Testing
Few issues offer President-elect Clinton a better opportunity to
reverse the policies of the Reagan/Bush era than HIV disease, the final
stage of which is AIDS. The 12 years of Reagan/Bush have been -- indeed,
some would say, have caused -- the 12 years of the AIDS epidemic in this
country. Many attribute those administrations' lack of commitment in the
face of a national health emergency to prejudice against the groups
hardest hit by the epidemic: men who have sex with men, and intravenous
drug users, many of whom are poor people from racial minority groups.
The primary goal of the Clinton Administration should be to
confront HIV disease as a public health crisis, not a moral issue. The
federal government must guarantee that its policies, generally -- and
funding decisions, especially -- are not clouded by discriminatory
attitudes towards the groups affected.
In the short term, the Clinton Administration can quickly
dismantle many of the programs developed in the past 12 years for
political reasons that have no public health rationale. These include,
for example, removing HIV disease from the list of conditions barring
entry into the United States, and ending the mandatory HIV-testing
programs now administered by various federal agencies.
In general, the Adminstration should carefully review and finally
begin to implement the recommendations of the National Commission on AIDS
and other public health authorities. The time for further study of the
HIV epidemic is over. The opportunity to pursue sound public health
policy is at hand and it must be seized.
The Centers for Disease Control
Department of Defense
Department of Health and Human Services
Department of State
Immigration and Naturalization Service
The National Commission on AIDS
AIDS > CENTERS FOR DISEASE CONTROL AIDS PREVENTION PROGRAMS
The Centers for Disease Control (CDC) have long placed restrictions on the
use of federal funds provided to states, municipalities and
community-based organizations for AIDS prevention work. These
restrictions have hampered AIDS prevention efforts and wasted scarce
federal funds that should have been devoted to real education.
Since HIV is a disease that is sexually transmissible, discussion of it
may provoke controversy and even be offensive to some. Treatment and
prevention require full and frank discussion of high risk behavior that
can lead to infection. Nevertheless, the CDC, which distributes federal
funds for AIDS prevention work, has imposed morality-based content
prohibitions and required that grantees set up a special "program review
panel" to screen every piece of educational material slated for production
with CDC funds. From 1986 until a federal court ruled such a standard
unconstitutional, the CDC's grant restrictions required that no materials
be funded if "offensive" to a majority of those outside the audience
targeted for the material. See 51 Fed. Reg. 3431 (Jan. 27, 1986); 57 Fed.
Reg. 10794 (Mar. 30, 1992). This imprecise standard led to the creation
of bland materials that did not effectively educate those at greatest
In May 1992, a federal judge in New York ruled that the CDC's grant
restrictions both exceeded the agency's authority and were
unconstitutionally vague. Gay Men's Health Crisis v. Sullivan, 792 F.
Supp. 278 (S.D. N.Y. 1992). The government did not appeal that decision
but, instead, adopted "interim" restrictions that maintain the program
review panels and ask them to enforce an "obscenity" standard.
"Requirements for Content of AIDS-Related Written Materials, Pictorials,
Audiovisuals, Questionnaires, Survey Instruments, and Educational Sessions
in Centers for Disease Control Assistance Programs," 57 Fed. Reg. 26742
(June 15, 1992)(interim revisions). The obscenity standard is as
unconstitutionally vague and unenforceable as the restrictions that the
court struck down.
The House Committee on Government Operations recently concluded that:
"[I]n the issuance of the new obscenity standard and the other new content
restrictions, and in the continued requirement of program review panels,
CDC has once again stymied the war on AIDS, defying logic, reason and
science. The committee believes that if the goal of AIDS education is to
modify behavior, the content of materials developed must treat the
behaviors in question as clearly and directly as possible, in language and
graphics that will be understood by the persons to whom they are
House Committee on Government Operations, The Politics of AIDS Prevention:
Science Takes a Time Out, H.R. Rep. No. 1047, 102d Cong., 2d sess. 20
(Oct. 8, 1992).
Removing the politically based restrictions on CDC funding for AIDS
education, and freeing up local AIDS educators, must be priorities.
In addition to its grant restrictions, the CDC has failed to perform its
own educational functions wisely. According to the House Committee report
cited above, CDC decided to withhold an updated Surgeon General's Report
on AIDS until after the 1992 election. It has also refused to mention or
show condoms in its AIDS prevention advertisements. This sort of
censorship impedes the education of Americans about how they must change
their behaviors to lessen the risk of contracting AIDS.
1) Direct the Secretary of Health and Human Services to order the CDC to
rescind the "Requirements for Content of AIDS-Related Written Materials,
Pictorials, Audiovisuals, Questionnaires, Survey Instruments, and
Educational Sessions in Centers for Disease Control Assistance Programs,"
and eliminate the requirement of program review panels.
2) Provide leadership in the nation's AIDS prevention effort and direct
the development of a massive, well-funded public health campaign to raise
public awareness about practices that help stop the spread of HIV disease.
AIDS > MANDATORY FEDERAL HIV TESTING
The government has excluded, restricted or expelled people who test
positive for HIV in at least four settings over which it exercises
complete control: the military, the Foreign Service, the Job Corps and
immigration. This policy is discriminatory and does not serve public
Public health experts oppose mandatory testing for HIV infection and AIDS.
Nevertheless, the federal government mandates HIV testing in a number of
important areas. The military tests all volunteers and recruits and
rejects all HIV-infected individuals, regardless of their current health
or competence to serve. Department of Defense Directive 1332.18. The
military also tests all of its current employees, including civilian
personnel. While the military does not automatically discharge
HIV-infected individuals, it does restrict their assignment opportunities.
Moreover, despite Department of Defense regulations forbidding
discriminatory treatment, 32 C.F.R. Sections 58 et seq., military
personnel found to be HIV-infected have been placed in segregated barracks
and reassigned to demeaning menial labor. Legal challenges to these
policies have been ineffective. See, e.g., Plowman v. Dept. of the Army,
698 F.Supp. 627 (E.D. Va. 1988); Doe v. Garrett, 903 F.2d 1455 (11th Cir.
1990), cert. denied, 903 F.2d 1455 (1991).
Like the military, the Job Corps tests all entrants and those found to be
HIV-infected are subjected to demeaning and invasive interviews. Only
those individuals whose conduct meets an unspecified standard are
admitted, subject to further tests at any time. See Job Corps Bulletin
86-58 (Dec. 19, 1986); Job Corps Bulletin 89-03 (July 24, 1989).
The State Department bars all current Foreign Service officers who test
positive for HIV from posting overseas. Candidates for the Foreign
Service and the Peace Corps who test positive for HIV are rejected
outright. See U.S. Department of State, Department Notice: AIDS Testing
(Nov. 22, 1986); U.S. Peace Corps, Medical Information for Applicants
(Nov. 1, 1990). These policies were unsuccessfully challenged by the
Foreign Service officers' union in Local 1812, American Fed'n of Gov't
Employees v. Dept. of State, 662 F. Supp. 50 (D.D.C. 1987).
Finally, the Immigration and Naturalization Service denies admission to
the United States to all prospective immigrants who test positive for HIV,
regardless of their current health or insurance status. Prospective
tourists who are HIV-infected must apply for a waiver in order to enter
the country; tourists who fail to do so have been threatened with
imprisonment and expulsion. See 8 C.F.R. Section 245a.3; 42 C.F.R.
Sections 34.2 et seq.
Mandatory testing runs counter to current epidemiological thinking about
HIV and AIDS, and it has encountered widespread criticism from public
health officials, both inside and outside the federal government. Public
health experts believe that mandatory testing, far from identifying
individuals with HIV, tends to drive the disease underground, particularly
when individuals perceive that those with HIV are subject to segregation
and discrimination. Public health officials nationwide have long
advocated a program of education and free, anonymous testing as the best
strategy for combatting the AIDS crisis.
Individuals who test positive for HIV usually do not develop symptoms that
would hamper job performance for years following infection. A total ban
on HIV-infected personnel, as in the Peace Corps, foreign service
positions and military recruiting, is too broad and excludes large numbers
of individuals who are competent in every way to carry out their duties.
HIV-infected individuals, like all persons with disabilities, deserve an
individualized assessment of their ability to perform.
1) By Executive Order, prohibit mandatory HIV testing by the military,
Foreign Service, Peace Corps and Job Corps, or for admission to the United
States, and require that these services develop plans for the integration
of individuals with HIV, or other disabilities, into their areas.
2) Instruct all federal agencies that their employment practices must be
consistent with principles of disability law (no discrimination absent a
significant risk of infection, individualized assessment of an applicant's
capabilities and reasonable accommodation of the needs of the disabled).
AIDS > HIV-INFECTED HEALTH CARE WORKERS
A highly publicized announcement by the Centers for Disease Control, that
a Florida dentist was believed to have infected a patient with HIV through
routine dental work, caused public hysteria and led to the CDC's adoption
of flawed guidelines that discriminate against HIV-positive health care
In July 1991, the Centers for Disease Control issued guidelines for the
control of bloodborne pathogens in the health care setting. CDC,
Recommendations for Preventing Transmission of Human Immunodeficiency
Virus and Hepatitis-B Virus to Patients During Exposure-Prone Invasive
Procedures, 40 Morbidity & Mortality Weekly Rep. RR-8 (July 12, 1991).
The CDC guidelines reject mandatory testing for all health care workers in
favor of voluntary testing, and also state that health care workers who do
not perform "exposure-prone" invasive procedures should not be restricted
in their practices. However, the CDC guidelines suggest that health care
workers who perform "exposure-prone invasive procedures" halt their
practice unless they have consulted with an "expert review panel" and
informed their patients of their condition.
In a July 1992 letter, the CDC added a requirement that "expert review
panels" evaluating HIV- and Hepatitis-B virus-infected workers conduct an
"individualized assessment," focusing not only on the procedures used, but
the worker's technique and skill level. Congress enacted an amendment to
the Department of Health and Human Service's 1992 appropriations bill
requiring each state to develop guidelines "equivalent" to the CDC
guidelines or risk losing their federal funding.
The CDC's recommendations raise serious civil liberties questions.
Federal laws that protect people with disabilities from discrimination
prohibit exclusion from employment absent a significant risk of infection.
See EEOC regulations to the Americans with Disabilities Act, 56 Fed. Reg.
35,745 (1991). Here, the risk appears to be miniscule. The CDC proposal
also violates the principle that risk must be measured objectively. An
objective approach would require placing the risk of HIV transmission in
context and perspective by comparing it with other comparable risks -- an
approach not undertaken by the CDC. Finally, the law requires that
safety-driven policies may not be applied in a selective and
discriminatory manner. A risk related to one kind of disability may not
be singled out for elimination if other comparable risks are completely
The CDC's regulations are an overreaction to what appears to be a unique
case of doctor-to-patient transmission. Few data have been offered by the
CDC to support the restrictions. Rather, this is an example of
public-health policymaking driven by public emotion rather than by
Furthermore, the CDC's restrictions lead to a host of national sacrifices
that are not justified by the virtually nonexistent risk involved. These
include the loss of qualified health care professionals, the loss of the
social resources invested in their training and the likelihood of an
increasing reluctance by noninfected health care workers to treat HIV
patients for fear of HIV infection and loss of livelihood.
Finally, the CDC has failed to clearly set forth a list of specific
invasive procedures that should be considered "exposure-prone." Public
health groups that have examined the issue have been unwilling to develop
such a list because of insufficient data establishing a real risk of
exposure during invasive procedures.
Direct the Centers for Disease Control to develop new guidelines on the
transmission of bloodborne pathogens in the health care setting --
guidelines that focus specifically on infection control procedures and not
on the serostatus of providers or on some vague notion of what procedures
are "exposure prone." The goal of regulatory action in this area should
be to police compliance with infection control procedures, not to ferret
out all HIV- or HBV-infected individuals.
CIVIL RIGHTS ENFORCEMENT: Health Care
CIVIL RIGHTS ENFORCEMENT: Americans With Disabilities Act
DRUG POLICY: The War on Drugs
DRUG POLICY: Medical Marijuana
FREE SPEECH: Extending the Gag Rule
GAY RIGHTS: Discrimination
IMMIGRANTS' RIGHTS: HIV Exclusions
IMMIGRANTS' RIGHTS: Haitian Refugees
INFORMATION PRIVACY: Medical and Insurance Records
PRISONERS' RIGHTS: Medical Care
People care deeply about their privacy and their ability to
control personal information. Crucial to one's sense of self and autonomy
is the right to maintain some decisionmaking power over what information
to divulge, to whom and for what purpose. For this reason, the demand for
federal legislation to protect sensitive personal information is
The need for such legislation has become more and more critical as
new forms of information technology have made peoples' privacy more
vulnerable. The new technologies have fostered not only more intrusive
data collection, but also growing demands for personal information that
can be stored, exchanged and manipulated with split-second speed. At the
same time, however, new technologies can also be used to protect privacy
by enhancing security in electronic information systems.
In the past 20 years, Congress has made progress in regulating
government and private use of personal information by enacting federal
information privacy legislation. Most of the existing laws incorporate
the central Fair Information Practice principle articulated in a 1973
government report, Records, Computers and the Rights of Citizens, which
states that "information collected for one purpose may not be used for a
different purpose without the individual's consent."
The Clinton Administration must continue to develop and implement
policies that recognize and respect the right of information privacy.
Federal Bureau of Investigation
Federal Trade Commission
National Academy of Science
Information Privacy > CREDIT REPORTING
Existing laws do not adequately regulate, and impose limits on, the credit
reporting industry. As a result, individuals have no control over the
collection, storing and sharing of highly personal information.
In 1970, Congress passed the Fair Credit Reporting Act (FCRA), 15 U.S.C.
Section 1681 to regulate the credit reporting industry. However, inherent
weaknesses in the law, coupled with an expansion in industry practices,
have resulted in a loss of consumer control over detailed, sensitive
information. Most people are not even aware of how the credit reporting
industry operates, what information is collected, how it is used and to
whom it is available. Yet increasingly, information from credit reports
is used to make decisions that affect critical areas of peoples' lives,
such as employment, insurance, credit and housing. The credit reporting
industry, as it services the burgeoning demand for personal information,
is operating without comprehensive, strong government regulation or
* Under the current FCRA, it is extremely difficult for people to get a
copy of their credit report unless they have already been denied credit.
* The law fails to provide a workable mechanism for people to correct and
update information in their reports, 30 to 40 percent of which is
inaccurate, outdated or incomplete.
* The industry regularly sells personal information without an
individual's knowledge or consent, and the law's remedies and enforcement
provisions are weak and ineffective.
New legislation is needed to strengthen protections in the credit
reporting area. Although bills were proposed during the 101st and 102nd
Congress, they did not find their way into law. (Fair Credit Reporting
Act of 1970: Hearings before the Subcomm. on Consumer and Regulatory
Affairs of the Senate Comm. on Banking, Housing and Urban Affairs, 102d
Cong., 1st sess. at 312 (Comm. Print 1991); Fair Credit Reporting Act of
1970: Hearings on H.R. 4213, H.R. 4122 and H.R. 3740 before the Subcomm.
on Consumer Affairs and Coinage of the House Comm. on Banking, Finance and
Urban Affairs, 101st Cong., 2d sess. at 25 (Comm. Print 1990); Fair Credit
Reporting Act of 1970: Hearings before the Subcomm. on Consumer Affairs
and Coinage of the House Comm. on Banking, Finance and Urban Affairs,
101st Cong., 1st sess. at #83 (Comm. Print 1989).
Support legislation to strengthen and update the Fair Credit Reporting
Act. The Act must:
a. give people the right to a free copy of their credit report
b. require stringent procedures for accuracy of information
collected and disclosed by credit reporting companies;
c. impose an obligation on credit grantors to report accurate
d. require credit reporting companies to provide notice and get
individual consent prior to disclosing information from their files, and
e. broaden the oversight and enforcement authority of the Federal
Information Privacy > MEDICAL AND INSURANCE RECORDS
Current federal law does not protect the confidentiality of personal
medical and insurance records.
The absence of legislation designed to protect individual medical and
insurance records is the most glaring gap in federal privacy law. A
person's medical record contains a tremendous amount of detailed,
sensitive information, all of which may be maintained by both the medical
care provider and the insurer. With the recent efforts to computerize and
link health care services, there is a staggering potential for privacy
intrusions and confidentiality breaches through unauthorized access to,
and disclosure of, personal records.
Clearly, legislation is needed that creates a statutory right to privacy
in medical and insurance records, so that people can have greater control
over the collection, use and disclosure of personal information. Both the
National Academy of Science's Institute of Medicine and the Congressional
Office of Technology Assessment are in the process of examining the
privacy, confidentiality and security threats posed by the creation of
health data networks.
Support legislation that creates statutory privacy protections for medical
and insurance records and other personally identifiable health records.
Such legislation should:
a. create an individual right of access to personal information;
b. impose limits on the collection and disclosure of personal
health records by others;
c. require the implementation of security measures for
computerized health networks, and
d. establish sanctions for violations of the law.
Information Privacy > CRIMINAL HISTORY RECORDS
The Federal Bureau of Investigation's recent decision to release old
arrest records to non-law enforcement requesters, such as employers and
licensing boards, is both an invasion of privacy and discriminatory.
On September 6, 1990, the FBI eliminated the "one-year rule," a regulation
that prohibited the Bureau from releasing to non-law enforcement
requesters (employers, licensing boards) arrest records that were over
one-year-old, and that lacked dispositions. 28 C.F.R. Section 20.33(a)(3).
The FBI's recent decision to disseminate "naked" arrest records is a
drastic step in the wrong direction, at a time when the Bureau and state
criminal history record repositories are focusing on improving the quality
of information in their systems. The decision is a mistake for these
First, the release of arrest records without dispositions for employment
and licensing purposes will result in discrimination against minorities.
Racial minorities are arrested four times more frequently than
non-minorities, and half of those arrests do not result in conviction.
Second, many employers will treat an applicant's arrest record as proof
that the applicant committed a crime. Given the high probability that
most employers will not distinguish between an arrest and a conviction,
the release of a naked arrest record violates the principle that one is
innocent until proven guilty. Arrest records have no place in the non-law
enforcement community and should be irrelevant in determining employment
Third, the poor data quality of criminal history records is
well-documented. Nearly half of the arrest records held by the FBI lack
dispositions. The "One-Year Rule," Hearings before the Subcomm. on Civil
and Constitutional Rights of the House Comm. on the Judiciary, 100th
Cong., 2d sess. at 44 (Comm. Print 1987). The FBI's decision to release
incomplete records removes any incentive for the Bureau to improve data
quality by requiring the states to submit dispositions. Rather, the
release of arrest records unfairly places on individuals the burden of
tracking down dispositions in local courthouses and overcoming the stigma
associated with having an arrest record -- and in most instances, people
are unaware that the FBI's records may be incomplete. It is far easier
and more just for the FBI to perform the task of completing information
about disposition prior to dissemination of records.
1) By Executive Order, restrict the FBI from disseminating arrest records
without dispositions to the non-law enforcement community.
2) Direct the FBI to establish a mandatory system of disposition reporting
by state and local criminal justice agencies.
Information Privacy > TELEPHONE TECHNOLOGY
New telephone technology, including cordless telephones and caller
identification services, substantially implicate privacy rights.
The use of cordless telephones is increasingly prevalent in the United
States. Projections are that 60 percent of American households will have
them by the end of the decade. Most people expect that their
conversations on cordless telephones are protected from interception. But
in 1986, when Congress passed the Electronic Communications Privacy Act
(ECPA) (updating the 1968 wiretap law to protect new forms of
telecommunications), cordless telephones were explicitly exempted. This
was because at that time the technology operated on a low, radio-based
frequency that was so easy to intercept that a prohibition against
interception would have been difficult to enforce.
Today, however, new technological developments have made cordless
telephone communications more secure. The Senate Privacy and Technology
Task Force has, therefore, proposed amending ECPA to include protection
for cordless phone communications. See Leahy, Final Report of Privacy and
Technology Task Force at 8 (May 28, 1991).
Another form of telephone technology that poses a threat to civil
liberties is Caller Identification, a device that automatically reveals,
on the receiving end of a telephone, the number from which a person is
calling. If offered unrestricted, Caller ID may be illegal under ECPA.
ECPA provides that "no person may install or use a pen register or trap
and trace device" without first obtaining a court order. 18 U.S.C. Section
3121. The law defines a trap and trace device as one that "captures the
originating electronic or other impulses which identify the originating
number of an instrument or device from which a wire or electronic
communication was transmitted." 18 U.S.C. Section 3127(4). There is
general agreement that Caller ID is a trap and trace device. Indeed,
legislation is apparently needed to make Caller ID legal under the current
Legislation is needed not only to legalize Caller ID, but to regulate it
so that individuals are able to block the display of their number on the
receiving end. Without a blocking mechanism, people will no longer be
able to decide when and to whom to give their telephone numbers, even when
they are calling commercial entities or government agencies. Blocking
would insure the fairest balance between the competing privacy interests
of both parties to a telephone call. Model legislation requiring
telephone companies to offer blocking wherever Caller ID is available is
widely supported by a range of industries, trade associations, law
enforcement officials, domestic violence coalitions and consumer and civil
1) Support amendment of the Electronic Communications Privacy Act of 1986
to prohibit the intentional interception of communications carried on
2) Support legislation to require that, wherever Caller ID technology is
offered, people have the ability to block the display of their numbers on
the receiving end.
Information Privacy > PRIVACY ACT OF 1974
The Privacy Act of 1974 imposes limits on the government's collection and
use of personal information and gives individuals certain rights to
control, access and correct personal information held by the government.
However, weaknesses and gaps in the law undermine its effectiveness.
Congress passed the Privacy Act of 1974, 5 U.S.C. Section 552(a), in the
wake of Watergate to create a right of privacy where personal information
collected and maintained by federal agencies is concerned. With certain
exceptions, the Act was intended to prohibit government agencies from
taking information that was collected for one purpose and disclosing it
for a different purpose without the individual's consent.
Under the Act, citizens have a right of access to their records and the
opportunity to amend their records if they are not accurate, timely or
complete. The Act also limits the use of the Social Security Number for
identification purposes, but Congress has overridden this limitation in
numerous laws. Individuals may sue for injunctive relief only in very
limited cases, and damages are only available if one can prove that harm
occurred as a result of willful or intentional violation of the law.
Despite Congressional good intentions, the Act in practice has fallen far
short of its original goals. Its potential impact has been watered down,
due in part to flaws in the Act itself, administrative interpretation and
lack of enforcement. The basic principles of the Act have failed to limit
significantly the government's inter-agency use of personal information.
Support legislation to amend the Privacy Act of 1974 that:
a. tightens the Act's disclosure standards;
b. includes a prohibition on the creation of a national
identification card, and
c. strengthens the Act's civil and criminal penalties provisions,
which need to be increased and broadened.
AIDS: Mandatory Federal HIV Testing
GAY RIGHTS: Security Clearances
NATIONAL SECURITY: Freedom of Information Act
NATIONAL SECURITY: Security Clearances
NATIONAL SECURITY: Government Surveillance
WORKERS' RIGHTS: Electronic Surveillance
The right of reproductive choice is a fundamental civil liberty.
A woman's decision whether to bear a child affects her health and her body
and shapes the course of her life. Every subsequent decision of
consequence that she makes will depend in some way on whether she
continues or ends a pregnancy. Her loss of control over this decision
threatens not only her plans for her life, but her hopes of achieving full
and equal citizenship in American society.
The overarching goal of a renewed national commitment to
reproductive freedom must be to guarantee all women the right to decide,
without interference from the government, when and whether to have
children. Efforts to achieve this goal must focus especially on poor
women and young women -- those who are most hurt by the unrelenting
attacks on reproductive rights over the past two decades. Women who rely
on publicly funded programs or public facilities for their health care
must have the same choices regarding pregnancy as more affluent women.
Teenagers, most of whom voluntarily turn to their parents when faced with
an unwanted pregnancy, must not be forced by law to confront their parents
unwillingly or to go to court as a precondition to getting an abortion.
The federal government must also lift the information black-outs
and biases that now encumber federally financed sex education and family
planning programs, and must fully fund such programs to help stem the
epidemics of unintended pregnancy and sexually transmitted disease in this
country. Scientific research into new and promising contraceptives,
abortifacients and other reproductive health technologies must no longer
be held hostage to an anti-choice political agenda. Swift government
action is necessary to undo the harms wrought by prior administrations;
sustained, affirmative government action is necessary to enable women to
make and implement informed decisions about reproduction, uncoerced by the
government and reliant on their own consciences.
Agency for International Development
Department of Health and Human Services
Food and Drug Administration
National Institute of Child Health and Human Development
National Institutes of Health
Reproductive Freedom > PUBLIC FUNDING OF ABORTION SERVICES
Since taking office, the Reagan and Bush Administrations have mercilessly
combed through federal programs to find and eliminate all public funding
for abortion. Their actions have left the most vulnerable of American
women unable to gain access to basic reproductive health care.
The exclusion of abortion services from the Medicaid program (which serves
approximately 22 million women) was accomplished in 1976 by the Hyde
Amendment. In Harris v. McRae, 448 U.S. 297 (1980), the Supreme Court
upheld this discriminatory funding of services related to childbirth but
not those related to abortion. Through executive action and amendments to
various federal appropriations bills, funding of abortion has effectively
been cut off for several other groups -- that is, an additional 22 million
women who depend on federal programs for their medical care.
Because Medicaid-funded abortions accounted for approximately 33 percent
of all abortions prior to 1976, cutting off this funding source was a high
priority for the right-to-life movement. With the passage of the Hyde
Amendment, the indigent are ineligible for federal money except when the
abortion is necessary to save the life of the pregnant woman.
Native Americans are similarly restricted because of constraints on Indian
Health Services facilities (codified at 25 U.S.C 1676; 42 CFR Chapter 1
Section 36.51-57), which are prohibited from performing abortions except
in cases of life-endangerment, even if the procedure is paid for by
private money. These federally-funded facilities provide health care to
nearly 100,000 Native Americans living on or near reservations. Because
of the disproportionately high rate of poverty among this population, as
well as the remote location of many reservations, it is unlikely that
Native American women seeking abortions have any realistic alternative to
Indian Health Services.
Peace Corps volunteers and women in federal prisons are also unable to
obtain federally-funded abortion services except, in the case of a prison
inmate, where her life is in danger or the pregnancy was the result of
rape (28 CFR 551; Section 551.23). As for Peace Corps volunteers, there
is no exception whatsoever to the funding ban, which is contained in the
Peace Corps appropriation legislation, H.R. 5368.
Federal employees and their dependents insured by the Federal Employee
Health Benefits Program are not covered for abortion except when the
pregnancy endangers the life of the woman.
Military personnel and their dependents are insured under the Civilian
Health and Medical Program of the Uniformed Services (CHAMPUS). The
funding ban for this program is codified at 10 U.S.C. Section 1093.
Pursuant to a 1991 regulation, abortions are paid for only when the life
of the woman would be endangered if the fetus were carried to term. Even
cases where childbirth would result in extreme mental health consequences,
e.g., "threatened suicide," are explicitly excluded under the regulation,
32 CFR Chapter 1 Section 199.4 (e) (2). Moreover, pursuant to a
"Memorandum for Secretaries of the Military Departments" from William
Mayer, M.D., Assistant Secretary of Defense for Health Affairs, dated June
21, 1988, military hospitals are prohibited from performing even
privately-financed abortions, further impeding access to abortion services
for women in or associated with the military. This prohibition, of
course, may be lifted by the new President without Congressional action.
Finally, through amendments to its annual appropriation from Congress, the
District of Columbia has been prohibited from spending its own tax dollars
to finance abortions for indigent women. (H.R. 6056, signed October 5,
1992 as P.L. 102-382, is the latest of these bills.)
1) Support the Reproductive Health Equity Act (RHEA), which would
eliminate all of the inequities outlined above. RHEA provides that
federally-funded care, assistance or benefits for services related to
abortion shall be provided in the same manner as other pregnancy-related
health care services.
2) Alternatively, press for the restoration of full federal funding for
abortion by clearly stating that the President will sign only
appropriations bills that contain no funding bans. Each of the funding
bans that has been attached to appropriations bills -- for military
personnel and their dependents, District of Columbia residents, federal
prisoners, federal employees, Medicaid recipients and Peace Corp
volunteers -- may be reversed simply by deleting the restrictive language
from the next fiscal year's appropriations legislation. (While the Indian
Health Service ban is codified in permanent law, it is cross-referenced to
the Medicaid appropriation and, therefore, will automatically be rescinded
when the Medicaid funding ban is removed. The funding ban for military
personnel, however, must be reversed by an affirmative act of Congress.)
Reproductive Freedom > FREEDOM OF CHOICE ACT
Nearly 20 years after the Supreme Court held that women have a right to
abortion, this basic right has been eroded and chipped away by a series of
decisions from the high court. The erosion of the right to privacy has
resulted in state laws that will force some women to resort to dangerous,
The Supreme Court ruled in Roe v. Wade, 410 U.S. 113 (1973), that the
United States Constitution prohibits states from restricting the right of
a woman to choose to terminate a pregnancy prior to viability. The Court
also held that after viability, a state may not prohibit abortion unless
it is necessary to protect the woman's life or health. In recognizing a
fundamental right to choose abortion, the Court stated that laws or
regulations that interfere with that decision must be justified by a
compelling government interest. With Roe as precedent, and applying this
strict standard, over a period of almost 20 years the Court proceeded to
strike down many (but not all) state restrictions on abortion.
Last term, in Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992), the
Court abandoned the strict scrutiny test articulated in Roe and adopted a
much less rigorous standard. Under this new test, the Court held that the
Constitution does not forbid a state to regulate or restrict a woman's
right to choose unless the law creates an "undue burden" that presents a
"substantial obstacle" to her right to terminate her pregnancy. Thus, the
right to choose has been substantially stripped of protection from
restrictive governmental regulation.
Applying the standard articulated in Casey, the Court upheld several
Pennsylvania restrictions, including a mandatory 24-hour waiting period,
detailed reporting requirements and the provision of state-mandated
anti-choice materials to patients. The Court struck down only the
Pennsylvania statute's husband notification requirement, which it found
would act as a bar to abortion in some cases.
State laws that severely restrict access to abortion, such as those upheld
in Casey, will force some women to resort to dangerous, late abortions.
These barriers will be particularly difficult to surmount for low-income
women, teenagers and women from rural areas.
The Freedom of Choice Act codifies Roe v. Wade and forbids states to
restrict a woman's right to choose an abortion unless such restriction
could survive strict scrutiny. The House Judiciary Committee approved an
amended bill, H.R. 25, 102nd Congress, 2nd sess. (1992), on June 30, 1992,
while the Senate Labor Committee approved a companion bill on July 1,
1992. (The bill approved by the Senate and House committees fails to
protect women from state legislation that requires parental consent or
notification for minors' abortions. The Senate bill permits states to cut
off public funding of abortion.) Nonetheless, the legislation failed to
reach the floor of either house in the 102nd Congress.
Support Congressional efforts to pass the Freedom of Choice Act without
Reproductive Freedom > INTERNATIONAL REPRODUCTIVE FREEDOM
The Reagan and Bush Administrations have adopted policies that block
organizations from receiving United States family planning money if the
agencies provide abortion services or information for overseas programs.
These policies have blocked women in developing nations from receiving
vital primary and preventive reproductive health care and information.
At an August 1984 United Nations Conference on Population, the Reagan
Administration announced a revision in its interpretation of the Foreign
Assistance Act, 22 U.S.C. Section 2151b (FAA). Under the Reagan
directive, commonly called the "Mexico City Policy," private domestic and
foreign family planning organizations providing family planning services
in the developing world are ineligible for U.S. family planning funds if
they provide abortion services or information, even if such services are
funded by other means. (The FAA already contained prohibitions on the use
of federal foreign aid funds for the performance of abortion, the
promotion of abortions as a family planning method and research on
abortion with funds obtained from the United States.)
This policy forces private family planning organizations, based in the
United States and overseas, to choose between accepting U.S. funds for
desperately needed family planning services or obeying the laws and
medical ethics of the foreign countries where the services are provided.
If these organizations refuse U.S. funds, they cannot maintain their
family planning programs. Thus, the rates of unintended pregnancy,
abortion and sexually transmitted disease increase in the countries they
serve. If these organizations accept U.S. funds, they cannot provide
abortion services, counseling, referral or information overseas; thus,
their patients are left without the resources they need to make and
effectuate informed decisions regarding their health.
In addition to the Mexico City Policy, in 1985 the federal government
withdrew funding for the United Nations Fund for Population Activities
(UNFPA). UNFPA is the largest multi-national organization that provides
family planning and population assistance. It provides services in 141
developing countries and, until 1985, the U.S. contributed nearly 30
percent of its budget.
As a result of the Mexico City Policy and of the withdrawal of U.S.
support for UNFPA, women in developing nations have lost access to vital
primary and preventive reproductive health care and information.
Congressional efforts to overturn these policies have so far not
succeeded. In June 1992, the House approved the fiscal 1993 Foreign
Operations appropriation bill, H.R. 5368, 102d Cong., 2nd sess. (1992),
that funded $20 million for UNFPA. The Senate version, approved in
September 1992, included both the UNFPA funding and repeal of the Mexico
City Policy. Neither survived the House-Senate conference.
1) Rescind the Mexico City Policy.
2) Direct the Agency for International Development to restore full funding
to the United Nations Fund for Population Activities.
3) Urge Congress to include appropriate language in Foreign Operations
authorization and appropriations bills to abolish the Mexico City Policy
and provide sufficient funds to the UNFPA.
Reproductive Freedom > THE GAG RULE
As part of its extreme anti-choice policy, the Reagan Administration
issued regulations that, in essence, gagged doctors and other staff at
clinics that receive Title X funding by forbidding them to discuss
abortion with their patients. This rule -- successfully defended by the
Bush Administration before the Supreme Court -- violates the First
Amendment rights of doctors and other clinic staff, and keeps vital
information from women.
Title X of the Public Health Service Act, 42 U.S.C. Sections 300-300a-41,
was enacted in 1970. It authorizes project grants to public and private
nonprofit organizations that provide family planning services, with
priority given to low-income patients. No abortions may be performed with
Title X funds.
On February 2, 1988, the Department of Health and Human Services (HHS)
issued final regulations prohibiting staff in clinic projects funded with
Title X money from discussing abortion as an option for a pregnant
patient. Title X project staff are also forbidden to refer a woman to an
abortion clinic. In May 1991, the Supreme Court upheld the regulations in
a 5-4 opinion in Rust v. Sullivan, 111 S.Ct. 1759 (1991).
These regulations prevent low-income pregnant women from receiving
necessary and complete health care information about all possible medical
options available to them. The regulations are inconsistent with
Congress' intent that patients served by the program receive non-directive
counseling and all information needed to help them make an informed choice
between parenting, adoption and abortion. The regulations also mandate
viewpoint-based suppression of speech, and conflict with the professional
ethics and guidelines of major medical organizations, 21 of which have
called for abolition of the gag rule.
On November 5, 1991, President Bush issued a memorandum to HHS Secretary
Louis Sullivan, ostensibly allowing only physicians to counsel Title X
patients about abortions in some limited circumstances, a policy change
that was subsequently formalized in a March 20, 1992 memorandum. However,
this change has had little practical effect because nurses, social workers
and other trained counselors provide most information given to patients,
with doctors rarely acting as counselors in Title X clinics.
In May 1992, the United States District Court for the District of
Columbia, ruling in National Family and Reproductive Health Association v.
Sullivan, No. 92-2177, decided May 28, 1992, enjoined the newly-issued
policy on physician counseling on the ground that it was promulgated in
violation of the Administrative Procedure Act. The United States Court of
Appeals for the D.C. Circuit granted a stay of the order pending outcome
of the appeal, and HHS began to implement the regulations on October 1,
On November 3, 1992, however, the Court of Appeals affirmed the district
court decision and enjoined the physician counseling guideline. (No.
92-5252) The practical effect of that ruling is to forestall
implementation of the entire gag-rule regulation until the physician
counseling policy is properly promulgated. In the meantime, legislative
efforts to overturn the gag rule have thus far been unsuccessful.
Reauthorization of the Title X family planning program should be a
legislative priority. Title X has been at the core of our national family
planning efforts for more than 20 years. It is a critical component of
our effort to cope with the current epidemic of adolescent pregnancies and
sexually transmitted diseases. Title X programs provide preventive health
care to approximately five million low-income women and teenagers in
approximately 4,000 free-standing and hospital-based clinics. However,
the program has been unauthorized since 1985 and, accordingly, has
suffered in the appropriations process. Title X funding (after adjusting
for inflation) has actually declined by 58 percent since 1981.
1) Abolish the gag rule by directing the Department of Health and Human
Services to take the necessary steps to rescind 42 CFR 59.2 -59.10.
2) Support legislation to reauthorize the Title X Family Planning Program
and urge rescission of the gag rule as part of that bill.
Reproductive Freedom > RU 486, CONTRACEPTION AND FETAL RESEARCH
In the past 12 years, the Reagan and Bush Administrations, acceding to
pressure from anti-choice zealots, have severely limited access to new and
promising drugs and research in the fields related to reproductive health.
These actions have fundamentally undermined a woman's right to choose.
Women's reproductive health care is in crisis. High rates of unintended
pregnancies, declining contraceptive options, high incidences of breast
cancer and high rates of maternal and infant mortality, as well as an
epidemic of sexually transmitted diseases, all threaten the health and
well-being of American women.
One of the most promising new reproductive health drugs, RU 486, when used
appropriately, has fewer risks for many women seeking to terminate a
pregnancy than does surgical abortion (which itself has fewer risks than
carrying a pregnancy to term). RU 486 is also thought to be a promising
post-coital contraceptive for treating victims of sexual assault or women
who experience contraceptive failure, A. Glasier, et al., "Mifepristone
(RU486) Compared With High Dose Estrogen and Progestogen For Emergency
Postcoital Contraception," 327 J.A.M.A. 1041 (1992). The drug may also
prove to be effective in treating breast cancer, brain tumors, glaucoma
and Cushings Syndrome. Klitsch, RU 486: The Science and the Politics,
Alan Guttmacher Institute (1989).
Unfortunately, RU 486 is not available to most Americans. The Food and
Drug Administration has imposed an import alert on the drug, effectively
banning it from importation into this country for personal use.
Roussel-Uclaf, the manufacturer of RU 486, has not initiated an approval
process for the drug because it fears anti-choice boycotts and legal
Contraceptive research and development has also been stymied in recent
years. Although contraceptive failure contributes to 43 percent of all
unintended pregnancies in the United States, "Contraceptive Failure Rate
Found Higher Than Thought," Washington Post Health Magazine 5 (July 25,
1989), funds available for contraceptive research have been slashed by 50
percent since 1980. National Commission on America Without Roe, "Facing A
Future Without Choice" 38 (1992). In this period, only one new
contraceptive for women (Norplant) has reached the American market, and no
new contraceptives have been developed for men.
The ban on federal funding for most fetal tissue research has had
deleterious effects on research relating to Alzheimer's disease,
Parkinson's disease, diabetes and other serious illnesses. This ban has
been in effect since March 1988 despite recommendations to lift it from
such groups as the American Medical Association and an advisory panel of
the National Institutes of Health. During recent consideration of the
reauthorization bill for the National Institutes of Health, an effort was
made to lift President Bush's ban on research that uses fetal tissue from
sources other than miscarriages or ectopic pregnancies. This measure
failed when anti-choice Republicans lobbied heavily against it.
1) Lift the FDA import alert on RU 486 and encourage its manufacturer,
Roussel-Uclaf, to seek FDA approval for its use as an abortifacient and a
2) Increase federal funding for contraceptive research and for the
National Institute of Child Health and Human Development.
3) Support legislation, such as the proposed "Contraceptive and
Infertility Research Centers Act," H.R. 1161, 102d Cong., 1st sess.
(1991), that would authorize the establishment of university-based
4) Lift the Bush Administration ban on fetal tissue research and allow
funding for research using tissue derived from abortion procedures.
CIVIL RIGHTS ENFORCEMENT: Health Care
PRISONERS' RIGHTS: Health Care
WOMEN'S RIGHTS: Educational Equity
WOMEN'S RIGHTS: Health Equity
WOMEN'S RIGHTS: Drug Dependent Women
A new outlook on immigrant and refugee matters must be developed
by the Clinton Administration -- an outlook that values the integration of
newcomers into our society. Above all, the federal government must set a
new tone in the nation that fosters recognition of the unique and rich
contributions of all immigrants to our national life. At the same time,
the government must repudiate efforts to blame non-citizens for our
nation's ills, and combat the divisive anti-alien sentiment that is
growing in our country.
The federal government can and should vigorously enforce existing
civil rights laws to secure equal treatment for immigrants. In addition,
it must aggressively enforce existing health, safety and labor laws on
behalf of aliens who are in the workforce. Failure to implement these
statutory protections over the last decade has created strong incentives
for private employers to exploit a highly vulnerable group that is
contributing to the economic growth of our nation.
Steps should be taken to reform the Immigration Service so that
its law enforcement function (particularly the Border Patrol) is separated
from its service and adjudication role. Similarly, the government should
work to bring procedural fairness into deportation and exclusion
proceedings, which, at a minimum, should be subject to the provisions of
the Administrative Procedure Act. Immigration judges should be elevated
to full ALJ status. Likewise, a system must be established to provide
free representation to indigent aliens threatened with deportation.
Finally, all Salvadoran and Guatemalan refugees who registered
under the statutory Temporary Protected Status program or the related
settlement of American Baptist Churches v. Thornburgh, 760 F. Supp. 796
(N.D. Cal. 1991), should be granted legal resident status in order to
eliminate an enormous backlog in the asylum system, and to remedy the
improper denial of their asylum claims.
Department of Health and Human Services
Department of Justice
Department of Labor
Immigration and Naturalization Service
Public Health Service
United States Customs Service
Immigrants' Rights > HIV EXCLUSION
The Public Health Service's list of "dangerous contagious diseases" for
which aliens can be excluded from the United States includes
HIV-infection. This flies in the face of the consensus that has emerged
among medical experts, including Health and Human Services Secretary Louis
Sullivan, that the exclusion serves no public health purpose.
In June 1987, Congress passed the Helms Amendment, directing that
HIV-infection be added to the list of "dangerous contagious diseases" for
which aliens may be excluded from the United States. Sec. 518, Pub. L.
No. 100-71, 101 Stat. 391. Responding in part to this mandate, in August
1987 the Public Health Service (PHS) promulgated a new rule adding
HIV-infection to the exclusion list. 52 Fed. Reg. 32,540 (1987). The new
rule became effective December 1, 1987.
Since that time, despite subsequent statutory and regulatory changes that
should have led to elimination of the HIV exclusion, all applicants for
"immigrant" visas (i.e., legal permanent resident status) have been
subject to mandatory HIV testing as part of their required medical
examination. If they test positive, their applications are automatically
denied, unless they qualify for a "waiver" of the HIV exclusion. Many of
the individuals who are denied legal status have lived in the United
States for many years and were exposed to the HIV virus here.
The HIV exclusion also applies to "nonimmigrants" (i.e., aliens visiting
the United States temporarily, such as students). Non-immigrants are not
required to undergo mandatory HIV testing. However, if HIV positive, they
must apply for a "waiver" of the exclusion in order to temporarily enter
the United States. If no waiver is obtained, and they are suspected of
being HIV positive, they can be refused entry or detained by INS and
forced to submit to an HIV test.
The HIV exclusion rule has been an international embarrassment for the
United States and has drawn sharp criticism from the public health
community, including the World Health Organization. Experts agree that
the exclusion serves no public health purpose and only fuels
discrimination and hostility against people with AIDS. See e.g., American
Public Health Association, Comments on Interim Rule "Medical Examination
of Aliens" (56 Fed. Reg. 25,000). The exclusion has been used to justify
the Bush Administration's discriminatory policy of detaining HIV positive
Haitian refugees in camps at the U.S. Naval base at Guantanamo, Cuba.
In November 1990, Congress directed the Secretary of Health and Human
Services to promulgate a new list of "communicable diseases of public
health significance." Pub. L. No. 101-649, codified at 8 U.S.C. Section
1182(a)(1)(A)(i). The new exclusion list was to be based solely on
"epidemiological principles and medical standards" and limited to those
diseases "for which admission of such aliens would pose a public health
risk to the United States." H. R. Rep. No. 101-955, 101st Cong. 2d sess.
(1990). Responding to its new mandate, HHS Secretary Louis Sullivan
proposed regulations in January 1991 to remove HIV-infection from the list
of excludable diseases. 56 Fed. Reg. 2484 (Jan. 23, 1991). Sullivan
cited the consensus among major medical and public health authorities that
there was no medical basis for the exclusion. Under pressure, however,
HHS instead promulgated an "interim rule" that continues the HIV
exclusion. 56 Fed. Reg. 25,000-25,001 (May 31, 1991).
1) Direct HHS to immediately adopt the regulation proposed by HHS
Secretary Sullivan in January 1991, removing HIV-infection from the list
of excludable diseases.
2) Direct the Public Health Service to issued revised technical
instructions to designated civil surgeons reflecting that HIV-infection is
no longer an excludable condition, and that applicants for immigrant
status are no longer subject to mandatory testing for HIV.
3) Direct INS to parole all Haitian refugees detained on Guantanamo
because of their HIV status, and permit them to enter the United States to
pursue their applications for political asylum.
Immigrants' Rights > EMPLOYER SANCTIONS
The employer sanctions provision of the Immigration Reform and Control Act
of 1986 (IRCA) penalizes employers for knowingly hiring unauthorized
aliens. Although the Act contains anti-discrimination provisions, the
employer sanctions have led to widespread discrimination based on national
origin and citizenship status.
On November 6, 1986, Congress enacted the Immigration Reform and Control
Act of 1986 (IRCA), Pub. L. # 99-603, a major amendment of the Immigration
and Nationality Act (INA). IRCA's most controversial provision was the
adoption of "employer sanctions," which require employers to verify the
work eligibility of all job applicants and new employees, and which
establishes civil and criminal penalties for employers who knowingly hire
The employer sanctions proposal was opposed by the business community as
an undue burden, as well as by a broad coalition of civil rights groups on
the ground that it would cause widespread discrimination against anyone
perceived by an employer to be "foreign," including U.S. citizens of
ethnic origin and legal aliens authorized to work. In response to these
concerns, Congress added an anti-discrimination provision to IRCA, 8
U.S.C. Section 1324b, which outlaws discrimination on the basis of
citizenship status and national origin, and instituted a speedy
Congress also mandated that the General Accounting Office prepare three
annual reports to determine whether employer sanctions were causing
discrimination, and to review the implementation and enforcement of
sanctions. 8 U.S.C. Section 1324a(j). At the time IRCA was enacted,
Congress included a provision for the repeal of sanctions if the final GAO
report found a widespread pattern of discrimination. 8 U.S.C. Section
Just as Congress had feared, and despite the anti-discrimination
provisions, employer sanctions have caused widespread discrimination on
the basis of national origin and citizenship. The GAO, in its third
report published in 1990, found that almost 20 percent of U.S. employers
initiated discriminatory hiring practices as a result of IRCA.
Immigration Reform: Employer Sanctions and the Question of Discrimination
7 (GAO/GGD-90-62 March 1990). Moreover, aggressive enforcement of the
anti-discrimination provisions of IRCA has been hindered by inadequate
funding, and by the Reagan Administration's limiting interpretation that
IRCA's anti-discrimination regulations, 28 C.F.R. Section 44.200(a)(1),
unlike Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e,
require proof of discriminatory intent. See President's "Remarks on
Signing S. 1200 Into Law," 22 Weekly Comp. Pres. Doc. 1534-35 (Nov. 6,
1986). The Reagan Administration's legal argument was based on an
interpretation of Title VII that has been directly rejected by two federal
courts. See Colby v. J.C. Penney Co., Inc., 811 F.2d 1119 (7th Cir. 1987)
(Posner, J.); Wambheim v. J.C. Penney Co., Inc., 705 F.2d 1492 (9th Cir.
1983), cert. denied, 467 U.S. 1255 (1984). Compare 42 U.S.C. Section
2000e-2(a)(1)(1992) with Section 2000e-2(a)(2) (1992).
Congress explicitly specified that nothing in IRCA "shall be construed to
authorize, directly or indirectly, the issuance or use of national
identification cards or the establishment of a national identification
card." 8 U.S.C. Section 1324a(c). IRCA also provided that documents
other than Social Security cards could, in different combinations, satisfy
the provision's requirements on identity and employment eligibility
verification. 8 U.S.C. Section 1324a(b).
Proponents of sanctions have sought to ignore the discriminatory effect of
the law and have, instead, blamed the problems caused by employer
sanctions on the work eligibility verification system, under which a job
applicant can use a wide range of documents to prove identity and work
eligibility. As a result, several proposals have been made to modify the
verification system. One of those, put forth in a report currently being
prepared by the Senate Subcommittee on Immigration and Refugee Affairs,
proposes the designation of the Social Security card as the sole document
for identity and employment verification and comes perilously close to
calling for the establishment of a national identification card. The
report also recommends requiring state motor vehicle departments to verify
Social Security numbers with the Social Security Administration (SSA)
before issuing a driver's license and recommends sharing databases.
These proposals, which are based on the mistaken assumption that Social
Security numbers are reliable identifiers, raise additional civil
liberties concerns. The proposals will themselves discriminate against
low-income persons; they will be prohibitively expensive to implement;
they place no controls on the use or access to linked databases, and they
could lead to the use of inappropriate identifiers in contexts other than
1) Endorse legislation, such as the Kennedy-Hatch Employer Sanctions
Repeal Act of 1991, to repeal employer sanctions.
2) Support amendments to regulations implementing Section 274B that will
prohibit disparate impact discrimination and will clarify that the same
standards of proof apply under Section 274B as under Title VII.
3) Oppose efforts to create a de facto national identity card, and efforts
to expand the use of Social Security numbers.
Immigrants' Rights > PRIVATE ALIENAGE DISCRIMINATION
Widespread discrimination against aliens in a variety of contexts, both
public and private, makes it increasingly urgent for the Clinton
Administration to undertake aggressive enforcement of existing civil
Although the United States of America was founded and built by immigrants,
the foreign born continue to face discrimination on a daily basis. Many
localities are conditioning important benefits that are needed for
everyday life, like a driver's license, on proof of citizenship, while
private entities, such as insurance companies and credit institutions, are
withholding important services from aliens.
One of the most important legal vehicles available for protecting
non-citizens is 42 U.S.C. Section 1981, a Reconstruction era statute that,
among other things, grants all persons the same right to make contracts as
that possessed by white citizens. Section 1981 has long been held to
prohibit private and public racial discrimination, as well as public
discrimination against aliens. The Civil Rights Act of 1991 reaffirms
that Section 1981 applies to private discrimination. District courts have
divided on whether Section 1981 outlaws private alienage discrimination,
and the Fourth Circuit is now considering the issue.
Section 1981 could provide a powerful weapon against private alienage
discrimination in employment, housing, admission to private schools,
credit approval and insurance coverage. In many instances Section 1981
provides the only available relief; in others it provides remedies that
are not afforded elsewhere. The importance of protecting aliens from
private discrimination under Section 1981 is underscored by recent
increases in employment-related discrimination against aliens as a result
of Congressional passage of employer sanctions in the Immigration Reform
and Control Act of 1986.
The devastation suffered by immigrant populations in the wake of the Los
Angeles riots and Hurricane Andrew also illustrates the need to ensure
that these populations have access to insurance and other financial
services. Otherwise, immigrants' ability to become self-sufficient and to
assimilate into our society, both economically and socially, is
threatened. In an era when many immigrants to the United States are
minorities, private alienage discrimination may mask racial and ethnic
1) Urge the Department of Justice to develop a litigation position that
applies Section 1981 to private alienage discrimination, and urge Justice
to advocate this position before the courts of appeal and, if necessary,
the Supreme Court.
2) Enforce federal civil rights prohibitions against private alienage
Immigrants' Rights > DETENTION OF JUVENILE ALIENS
Under current Immigration and Naturalization Service (INS) policy,
children suspected of being in the country illegally can be indefinitely
held in detention centers, frequently for as long as a year, even if they
pose no danger to the community and no risk of absconding. This is true
even in cases where responsible adults or groups are willing to assume
Pursuant to 8 U.S.C. Section 1952, the Immigration and Naturalization
Service (INS) each year arrests thousands of children suspected of being
in the country illegally and places them in deportation proceedings.
Pending the outcome of the proceedings, which often last years, the INS
detains those children who present either a danger to the community or a
risk of absconding. Detention under such circumstances is not
The issue in need of immediate attention concerns the detention of
presumptively innocent children, who present neither a risk of flight nor
a danger to the community. Prior to 1984, the longstanding policy of INS
was to release such children. In the absence of a close blood relative,
INS would release the child to an otherwise responsible adult or group
willing to assume custody and ensure the child's presence at deportation
hearings. The INS policy of releasing children to a responsible adult or
group was consistent with prevailing child welfare doctrine, which
requires that children be placed in an institutional setting only as a
last resort, and that they generally be housed in a manner least
restrictive of their liberty. See e.g., 42 U.S.C. Sections 627, 671 et
seq.; 18 U.S.C. Section 5034; 42 U.S.C. Section 5631; U.S. Dept. of Health
Education and Welfare, Model Acts for Family Courts and State-Local
Children's Programs (1974).
Under the current INS policy, adopted in the Western Region in 1984 and
nationally in 1988, a child may now be released only to one of the
following listed individuals: a parent, legal guardian or adult brother,
sister, aunt, uncle or grandparent. 8 C.F.R. Section 242.24(b). If one
of the listed individuals is not available, INS automatically and
indefinitely detains the child regardless of whether a responsible adult
or group is willing to assume custody (e.g., church group, godparent,
cousin, family friend, foster home). The one exception is where "unusual
and compelling circumstances" exist, but INS has applied this provision in
only a handful of cases and only then where the child had a medical
problem. 8 C.F.R. Section 242.24(b)(4).
The result of the Reagan Administration's policy change was that children,
primarily 13-17 years in age, languished in detention centers for periods
up to a year, even though they had been found guilty of no crime, posed no
danger to the community, no risk of absconding and had a responsible adult
or group willing to care for them in a non-institutional setting pending a
final decision on their deportability. The policy was challenged
successfully in federal district court in Los Angeles on the ground that
it violated the children's fundamental interest in liberty under the Due
Process Clause of the Fourteenth Amendment. The Ninth Circuit Court of
Appeals affirmed. Flores v. Meese, 942 F.2d 1352 (9th Cir. 1991) (en
banc). The Supreme Court granted review and heard oral argument October
13, 1992. See id., cert. granted sub nom. Barr v. Flores, 112 S. Ct. 1261
1) Support legislation that repeals 8 C.F.R. Section 242.24(b) to the
extent that it requires the automatic detention of children without regard
to the availability of non-institutional placements.
2) Seek the dismissal of the government's appeal in Barr v. Flores as moot
on the basis of the anticipated change in regulations if the Supreme Court
has not ruled by the time the regulation is amended.
Immigrants' Rights > INS DETENTION
The dramatic increase in Immigration and Naturalization Service detention
over the past decade, which is the result of a regulation promulgated in
1982, is unnecessary and interferes with the ability of aliens to pursue
their legal rights.
Immigration and Naturalization Service (INS) detention grew dramatically
during the Reagan and Bush Administrations, with the INS detention budget
jumping from $15.7 million in 1981 to over $149 million in 1990. See
Immigration Control: Immigration Policies Affect INS Detention Efforts 12
(GAO/GGD-92-85 June 1992); American Civil Liberties Union, Detention of
Undocumented Aliens 5 (October 1990). In part, this growth was due to a
policy decision in the early 1980s to detain all aliens who arrive in the
United States without documents, regardless of whether they pose a danger
or are likely to abscond. See 47 Fed. Reg. 46,494 (1982). In addition,
unnecessarily high bonds make it impossible for many aliens to obtain
release from detention.
In addition to being costly, detention interferes with aliens' ability to
exercise their legal rights. Many INS detainees are eligible for relief
from deportation, e.g., they are refugees from persecution or are
long-time legal, permanent residents of the United States eligible for
numerous forms of discretionary relief. However, because indigent aliens
have no right to appointed counsel in deportation proceedings, detained
aliens are often unable to obtain the relief to which they are statutorily
1) Repeal the 1982 Reagan Administration regulation mandating detention of
virtually all excludable aliens, and apply the same policy as is
applicable to deportable aliens -- requiring detention of those who are
likely to abscond or are a threat to the community. Re Patel, 15 I&N Dec.
666 (B.I.A. 1976).
2) Explore alternatives to detention that would ensure detainees'
appearance at hearings without prejudicing their ability to pursue their
legal claims. Appropriate policies include lower bonds, as well as other
forms of supervised release similar to those employed in the federal and
state criminal justice systems. Such release programs would provide a
substantial cost saving to the INS while enabling detainees to better
exercise their legal rights.
3) Encourage the development of legal services programs for detained
aliens, particularly applicants for asylum and longtime legal permanent
residents with close family ties to the United States. Congress'
prohibition on the Legal Services Corporation's use of federal funds to
provide representation to most aliens should be repealed. Legislation
should be enacted that would entitle all detained aliens to representation
at government expense.
Immigrants' Rights > ABUSE IN IMMIGRATION LAW ENFORCEMENT
Independent investigations of Immigration and Naturalization Service (INS)
border agents report widespread agent abuse of immigrants, including
beatings, sexual abuse and racially biased verbal abuse. The federal
government has not taken adequate steps to establish rules and procedures
concerning the use of force.
In 1977, a Justice Department audit found major defects in INS complaint
procedures that prevented fair and thorough investigations of complaints
filed against Border Patrol officers. U.S. Dept. of Justice, Office of
Professional Responsibility, "1977 Annual Report to the Attorney General,"
pp. 9-10. Three years later, a U.S. Commission on Civil Rights report
found continued deficiencies, "that prevent an adequate response to public
complaints of officer misconduct." U.S. Commission on Civil Rights, "The
Tarnished Golden Door: Civil Rights Issues in Immigration," September
1980, p. 118.
Some of these problems stem from the dual role of the INS as a law
enforcement and service agency. Many of the victims of INS abuse are
immigrants or have family members who are immigrants. They fear that
lodging complaints against the INS may jeopardize their immigration status
or trigger retaliatory action.
Reports of INS misconduct have increased substantially in recent years as
a result of expanded authority given to INS enforcement agents. In 1986,
the Immigration Reform and Control Act (IRCA) doubled the number of Border
Patrol officers. That same year, the Anti-Drug Abuse Act of 1986 gave INS
officers the power to arrest drug smugglers and the responsibility of
The enforcement authority of INS agents was expanded again in 1990 with
enactment of the Immigration Act of 1990 (IMMACT 90). Section 503 of the
Act permits specified INS officers and employees to carry firearms, and
gives them broad criminal arrest powers. Recognizing the concerns about
INS misconduct, however, Congress specifically conditioned this enhanced
authority on the issuance of INS regulations regarding (1) use of force;
(2) standards for enforcement activities; (3) the certification of
training of officers and (4) an expedited complaint process. Pub. L. No.
101-649, 101 Stat. See 8 U.S.C. Section 1357(a).
The draft regulations just issued by INS fail to adequately address
Congressional concerns. See 57 Fed. Reg. 47,011 (October 14, 1992). For
example, the regulations lack guidelines for minimizing the use of force,
despite a September 1991 Justice Department audit that criticized INS for
its firearms policy and subsequent INS assurances that these issues would
be addressed in the forthcoming regulations. With regard to a complaint
process, the only change in the draft regulations is to refer complaints
"promptly for investigation" under an "expedited internal review process."
Meanwhile, major reports released in 1992 by the American Friends Service
Committee and Human Rights Watch document what the latter describes as
"appalling" findings that "beatings, rough physical treatment and racially
motivated verbal abuse are routine," and that "unjustified shootings,
torture and sexual abuse occur."
1) Direct INS to withdraw the proposed rules implementing Section 503 of
IMMACT 90, and solicit public input in drafting new rules that address
Congress' concern with curtailing INS abuse. These rules should:
a. set strict limitations on the use of force, particularly deadly
b. adopt stricter enforcement standards consistent with INS
employees' expanded criminal arrest authority;
c. require that INS employees receive training in these standards,
d. establish, to the extent possible, a meaningful internal review
process that addresses the critical importance of outreach and intake
procedures, protection against retaliation and confidentiality.
2) Appoint to key positions in the INS and Customs Service individuals who
are committed to ensuring that the human rights of undocumented migrants
and U.S. citizens are fully respected as the United States enforces its
3) Support legislation that establishes an independent Immigration
Enforcement Review Commission to receive and investigate complaints of
misconduct filed against the Border Patrol, U.S. Customs Service and any
other federal officers designated to enforce immigration laws. The
Commission should have:
a. subpoena power and sufficient investigatory staff to ensure
thorough investigations of complaints;
b. the authority to recommend disciplinary action against officers
responsible for abusive conduct and policy changes regarding immigration
law enforcement practices;
c. the authority to establish community outreach task forces for
improving the working relationship between immigration officials and local
community organizations, and to ensure that victims of misconduct are
informed of their right to file complaints.
4) Separate the law enforcement and service branches of INS, as
recommended most recently in the July 1990 Report of the Commission for
the Study of International Migration and Cooperative Economic Development.
As long as these branches are linked, victims of INS abuse will be fearful
that lodging complaints will jeopardize their immigration status or result
in retaliatory action.
Immigrants' Rights > INDEFINITE DETENTION
Nearly 2,000 Cubans who came to the United States in 1980 remain in
indefinite Immigration and Naturalization Service (INS) detention, in
violation of basic notions of due process.
In 1980, some 125,000 Cubans came to the United States from the Cuban port
of Mariel. Those suspected of having criminal records in Cuba were held
in custody upon their arrival. Eventually, most were released into U.S.
society, but some only after spending years detained indefinitely in
maximum security prisons even though they had committed no crime in this
Today, 12 years after the "Freedom Flotilla," over 1,800 Cubans remain in
indefinite detention under the legal fiction that they were never
"admitted" into the U.S. and are, therefore, "excludable" aliens. About
2,500 more are currently serving sentences in federal, state and local
prisons, after which they too will be detained indefinitely by INS. Many
came to the U.S. in 1980 as children and have spent most of their lives in
In recent years, the Justice Department implemented a number of reforms to
improve conditions in the detention program. However, there still is no
fair procedure to determine when detainees should be released after they
have completed their criminal sentences.
Arbitrary, prolonged detention of aliens violates customary international
law. The detention criteria in exclusion and deportation proceedings
ought to be the same, with provision of the same due process protections
that all persons within the jurisdiction of the United States are entitled
1) Direct INS to implement a fair review system under which Cuban
detainees are promptly released from detention unless it is shown, in a
hearing before a neutral decision-maker, that the detainee constitutes a
serious threat to the community.
2) Direct INS to provide legal representation at detention hearings,
intensive counseling and treatment services and annual detention hearings
to those whose detention is upheld.
3) Support legislation to end the distinction between deportable and
excludable aliens, under which aliens who are physically in the United
States but have not been formally admitted into the country are subject to
exclusion and have no due process rights.
Immigrants' Rights > HAITIAN REFUGEES
President Bush's "Kennebunkport Order," which returns to Haiti all
Haitians fleeing by sea without benefit of an investigation into their
eligibility for refugee status, is illegal. Also unlawful is the
continued detention of HIV-positive Haitians at the U.S. Naval base at
Guantanamo Bay, Cuba.
The Bush Administration's policy toward Haitian refugees requires
immediate reversal on two counts. Both aspects have been declared illegal
by the Second Circuit Court of Appeals, but because of the procedural
posture of the legal challenges, both policies continue.
First: On May 24, 1992, President Bush issued Executive Order No.
12,807 (known as the "Kennebunkport Order"), which altered the 11-year-old
Haitian interdiction program in several ways. Most crucially, it allowed
the Coast Guard to cordon off the country of Haiti, intercept all those
who attempt to flee that country by sea and return them summarily to the
Haitian military authorities without any effort whatsoever to identify
genuine political refugees.
The Bush Administration itself acknowledged that prior to the
Kennebunkport Order, fully 30 percent or more of all Haitians interdicted
were deemed to have a credible claim for asylum in this country. Thus,
every day that the current interdiction continues, at least one out of
every three refugees turned over by the U.S. to Haitian authorities is
most likely in danger of political persecution or death.
The Second Circuit Court of Appeals has found the Kennebunkport Order to
be without legal authority, as it violates the plain language of INA
Section 243(h) and 8 U.S.C. Section 1253(h). Haitian Centers Council Inc.
v. McNary, 969 F.2d 1350 (2d Cir. 1992). However, the Supreme Court
stayed the court of appeals' injunction pending disposition of the case on
the merits. Oral argument before the Supreme Court will probably be heard
the week of February 22, 1993.
Second: Before issuing the Kennebunkport Order, the Bush
Administration followed the 11-year-old practice of "screening" Haitians
interdicted on the high seas to determine, after an individual assessment,
whether a person had a credible fear of persecution if returned to Haiti.
In February 1992, however, the Administration altered this longstanding
policy, and began conducting de facto asylum hearings for certain
screened-in refugees on the U.S. Naval base at Guantanamo Bay, Cuba,
solely because those refugees allegedly tested positive for the HIV virus.
More than 280 Haitians, many of whom have now been there for almost a full
year, are being held at Guantanamo, despite the fact that the Bush
Administration has the necessary legal authority to allow them to come
into the U.S. as asylees until the situation in Haiti stabilizes.
1) Rescind Executive Order No. 12,807 (Kennebunkport Order).
2) Direct the Solicitor General to decline to defend the Kennebunkport
Order before the Supreme Court in Haitian Centers Council Inc. v. McNary,
cert. granted 113 S. Ct. 52 (Oct. 5, 1992).
3) Direct the Attorney General to:
a. Parole all Guantanamo detainees into the U.S. pursuant to 8
U.S.C. Section 1182(d)(5) so that they may complete their applications for
b. Grant asylum under 8 U.S.C. Section 1158 to the 115 Haitian
refugees currently detained at Guantanamo who have already established
their status as bona fide refugees;
c. Grant temporary protected status to all Haitians in the U.S.
who have fled Haiti since the coup on September 30, 1991.
Immigrants' Rights > AMNESTY
By adopting overly restrictive policies and practices, the Immigration and
Naturalization Service (INS) has frustrated the goals of the two amnesty
programs created by the Immigration Reform and Control Act of 1986. As a
result, tens of thousands of eligible aliens have been denied the right to
participate and secure legal status.
The Immigration Reform and Control Act of 1986 (IRCA), Pub. L. No. 99-603,
created two amnesty programs that provided a one-time opportunity for
thousands of aliens residing illegally in the United States to acquire
legal residency. See 8 U.S.C. Sections 1160(a), 1255a. The first amnesty
program permitted any alien who had resided in the United States
"continuously and unlawfully" since January 1, 1982 to acquire legalized
status. 8 U.S.C. Section 1255a. The second program granted legalized
status to "special agricultural workers" (SAWs) if they had resided in the
United States and had performed at least 90 days of qualifying
agricultural work during the 12-month period prior to May 1, 1986. 8
U.S.C. Section 1160(a). The Act also required the Attorney General to
establish a 12-month application period in which eligible aliens could
apply. 8 U.S.C. Section 1255(a)a.
Reflecting Congress' intent to confer legalized status on all eligible
applicants, IRCA further directed that the Attorney General "shall"
legalize all aliens who meet the eligibility standards.
The goals of the amnesty programs were twofold. First, "in recognition
that a large segment of the shadow population played a useful and
constructive role in the American economy but continued to reside in
perpetual fear, the Reform Act [IRCA] established two broad amnesty
programs to allow existing undocumented aliens to emerge from the shadows"
and obtain legalized status. McNary v. Haitian Refugee Center, 111 S. Ct.
888, 890 (1991). Second, Congress believed that by legalizing those
undocumented aliens already within the country, INS would be free to
concentrate its limited resources on controlling the borders. Id. at 890
& n.4 (discussing H.R. Rep. No. 99-682, pt.1, p.49 (1986)). Thus,
Congress intended both to bestow a benefit on deserving individuals and to
make progress on enforcement. Accordingly, Congress directed that the
"legalization program . . . be implemented in a liberal and generous
fashion . . . to ensure true resolution of the problem." H.R. Rep. No.
682 at 72 (1986).
INS has severely frustrated IRCA's objectives by its implementation of
both programs. With regard to the SAW program, INS adopted policies and
practices that resulted in thousands of deserving aliens being denied
their statutory right to legalized status. The policies were successfully
challenged on a class-wide basis in federal district courts throughout the
country, and INS ultimately conceded the invalidity of many of the
policies (but only after receiving unfavorable decisions in the district
courts.) Rather than reprocess applications under the revised policies,
however, INS took the position on appeal that the federal district courts
had lacked jurisdiction under IRCA to entertain the suits. The Supreme
Court rejected INS' jurisdictional argument, leaving in place district
court judgments around the country that required INS to process SAW
applications under revised regulations. McNary v. Haitian Refugee Center,
111 S. Ct. 888 (1991).
An almost identical scenario is now occurring with regard to IRCA's other
amnesty program, which covers aliens who have resided in the country
continuously since 1982. INS promulgated overly restrictive implementing
regulations that denied thousands of eligible individuals legalized
status. INS now concedes the regulations were unlawful and has adopted
revised regulations. INS has, nevertheless, refused to consider thousands
of applications from individuals eligible under the new standards on the
grounds that the district court challenges were jurisdictionally defective
and applications are now untimely. The jurisdictional and "timeliness"
issues are presently pending before the Supreme Court. Barr v. Catholic
Social Services 112 S. Ct. 2990 (1992). The case is scheduled to be
argued some time after January 1, 1993. The government filed a petition
for certiorari on September 9, 1992 on similar issues in Perales v.
Thornburgh, 967 F.2d 798 (2d Cir.), cert. pending No. 92-451 (1992), in
which the Second Circuit also rejected the government's jurisdictional and
The jurisdictional argument is, in all material respects, identical to the
argument previously raised by INS in the SAW context and soundly rejected
by a 7-2 vote in the Supreme Court. McNary v. Haitian Refugee Center
(Scalia and Rehnquist, dissenting). The "timeliness" question is equally
meritless and at odds with Congress' intent to provide eligible aliens
with the full 12-month period to apply under proper legal standards. Not
surprisingly, the lower courts have rejected INS' position and ordered it
to reopen the application process for a short period in order to permit
statutorily eligible aliens to apply. See e.g., Catholic Social Services
v. Thornburgh, 956 F.2d 914 (9th Cir. 1992) cert. granted sub nom. Barr v.
Catholic Social Services, Inc., 112 S.Ct. 2990 (1992); Perales v.
Thornburgh, 967 F.2d 798 (2d Cir.), cert. pending No. 92-451 (1992).
1) Revise regulations to require INS to accept applications from eligible
2) Seek to dismiss the government's appeal of Barr v. Catholic Social
Services, Inc. in the Supreme Court and withdraw its cert. petition in
Perales v. Thornburgh.
Immigrants' Rights > ALIENS' FIRST AMENDMENT RIGHTS
The Justice Department's current interpretation of a 1990 immigration
statute penalizes foreign nationals residing in the United States for
speech and activities that are protected by the First Amendment.
It is well-settled that foreign nationals residing in the United States
are guaranteed the freedoms of speech and association enshrined in the
First Amendment to the Constitution. In Bridges v. Wixon, a case in which
the U.S. sought to deport labor activist Harry Bridges for being a member
of the Communist Party, the Supreme Court succinctly ruled that "[f]reedom
of speech and press is accorded aliens residing in this country." 326 U.S.
135, 143 (1945). The Justice Department, however, is attempting to
circumscribe this right, in the first case to be brought under the
Immigration Act of 1990, Pub. L. No. 101-649, 104 stat. 4978 (codified at
8 U.S.C. Section 1182).
In Matter of Hamide and Shehadeh, Nos. A19 262 560 and A30 660 528, the
Immigration and Naturalization Service (INS) has taken the position that
under the new law, any alien, including a permanent resident, is
deportable if he or she supports an organization deemed to be "terrorist,"
even if that support was directed wholly towards lawful ends. This is an
extraordinarily broad interpretation of a provision that renders
deportable "[a]ny alien who has engaged, is engaged, or at any time after
entry engages in any terrorist activity." 8 U.S.C. Section 1251 (a)(4)(B).
The INS asserts that it need not allege or prove that Hamide and Shehadeh
have supported any terrorist act, but that supporting a "terrorist
organization without more" is a deportable offense.
The INS position is contrary to the Supreme Court's ruling that "the
government has the burden of establishing a knowing affiliation with an
organization possessing unlawful aims, and a specific intent to further
those aims." Healy v. James, 408 U.S. 169, 186 (1972). Indeed, the
government is taking the same approach repudiated in the Bridges case.
This dangerously expansive interpretation would mean that any foreign
national who raised funds for the ANC, the Kurdish rebels or the
Nicaraguan Contras, even for humanitarian aid, is at risk of deportation.
It would mean that foreigners living in this country do not enjoy the same
basic freedoms as citizens. Indeed, an INS spokesman, commenting on the
case, queried: "A noncitizen in the United States -- does he have that
full range of privileges and rights?" Los Angeles Daily News, October 27,
1992, at 4. The answer must be an unequivocal, "Yes!"
1) Direct the Department of Justice and the Immigration and Naturalization
Service to interpret the terrorist activity provisions of the 1990
Immigration Act in a manner consistent with legislative intent and
2) Review the Hamide case and, if there is no such evidence of support for
terrorist activity, drop the charges against the defendants.
CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991
CIVIL RIGHTS ENFORCEMENT: Test Score Norming
CIVIL RIGHTS ENFORCEMENT: Title VI
CIVIL RIGHTS ENFORCEMENT: Housing Discrimination
CIVIL RIGHTS ENFORCEMENT: Minority Set Asides
INTERNATIONAL HUMAN RIGHTS: Covenant on Civil and Political Rights
INTERNATIONAL HUMAN RIGHTS: Ratification of Treaties
NATIONAL SECURITY: Ideological Visa Denials
PRISONERS' RIGHTS: International Standards
During the Reagan/Bush years, the nation's prison population grew,
jumping from 369,930 state and federal prisoners in 1981 to 855,958 in
1992. During the 1980s, the United States overtook the Republic of South
Africa and the former Soviet Union as having the highest per capita
incarceration rate in the world. Overcrowding plagues nearly every prison
system in the country. That includes the federal system, which, by the
end of 1991, was operating at 150 percent over capacity. Prison
overcrowding exacts terrible costs, human as well as financial. These
include a greatly heightened risk of major prison disturbances and a
threat to public health posed by epidemics -- such as multi-drug resistant
tuberculosis -- that are easily spread in overcrowded prisons.
Furthermore, there is a disproportionate number of minorities,
particularly African Americans and Latinos, in prisons, raising serious
questions of racial bias in the criminal justice system.
During the same period, mounting evidence demonstrated that high
incarceration rates do not lead to diminished crime rates. Most recently,
the National Research Council found that while the number of prisoners
increased from 240,000 in 1975 to 604,000 in 1989, the number of serious
violent crimes per year stayed constant at about 2.9 million per year.
Studies also show that non-incarcerative, "intermediate" sanctions, such
as community service programs and intensive probation, are just as
effective in rehabilitating non-violent offenders as is imprisonment.
Despite the gravity of these problems, the federal government has
failed to take the lead in combatting overcrowding. In fact, the
Department of Justice has done just the opposite. In 1992, Attorney
General William Barr announced that the Department would assist those
states that wished to challenge court orders limiting overcrowding in
their prisons. This is a dangerous and counterproductive policy.
The Clinton Administration must recognize the inherent limitations
of incarceration as a crime control strategy, make certain that federal
prisons are humane institutions that comport with constitutional and
international human rights standards and invest in "intermediate
sanctions" for non-violent offenders.
Department of Justice
Federal Bureau of Prisons
United States Civil Rights Commission
Prisoners' Rights > MEDICAL CARE
The Federal Bureau of Prisons (FBOP) is failing to provide adequate
medical and mental health care to the more than 77,000 inmates in its
Medical staffing in the FBOP is deficient in both numbers and
qualifications. In 1989, for example, 3 out of 13 staff physicians at the
Bureau's Springfield medical facility were not board certified. To
compensate for staff shortages, the facility employed mentally ill
prisoners as ward attendants. Mental health staffing is also inadequate.
Medical records often fail to accompany prisoners when they are
transferred, making it difficult to treat them when they reach the new
facility. The FBOPs medical transport system subjects severely ill
patients to long and arduous bus journeys, often lasting weeks, that
sometimes result in death or serious aggravation of health problems.
The FBOP is failing to provide adequate AIDS education and proper
treatment to HIV-positive prisoners. The Bureau has transferred some
prisoners with AIDS to the Marion Penitentiary, a maximum security
facility with a highly controlled and stressful environment that has been
shown to have a detrimental effect on the health of HIV-positive
Tuberculosis is perhaps the most pressing correctional health concern
today. Tuberculosis is an airborne disease that thrives in the poorly
ventilated, overcrowded conditions characteristic of most prisons. The
disease threatens prisoners and staff, and can be spread from institution
to institution as prisoners are transferred, and to the communities to
which prisoners and staff return.
Direct the Federal Bureau of Prisons to institute medical care reforms to
bring the prison system into compliance with nationally recognized
correctional health care standards. The reforms should include:
a. hiring adequate numbers of fully trained medical and mental
health staff and barring unlicensed health care providers;
b. implementing tuberculosis control measures recommended by the
Centers for Disease Control;
c. providing adequate staff and services to meet the special
health needs of women prisoners;
d. providing adequate AIDS treatment and education;
e. providing adequate staff and services to meet the special
health needs of older prisoners;
f. keeping adequate medical records and ensuring that prisoners'
records accompany them upon transfer.
Prisoners' Rights > MAINTENANCE OF FAMILY TIES
The Federal Bureau of Prisons is failing to encourage the maintenance of
strong family ties, which are needed for prisoners' successful
The maintenance of family ties during imprisonment positively correlates
with successful post-release adjustment. But correctional policies and
practices erect barriers to the development of family-focused programs.
Staff mistreatment of visitors, remote prison locations, inflexible
visiting schedules and other factors combine to deter family members from
visiting incarcerated loved ones. One result is that the children of
prisoners, particularly women prisoners, often become wards of the state
and are placed in foster care or other institutional settings. These
policies and practices violate the right to family integrity.
Family services and programs may provide an effective approach to the
problem of recidivism. The $20 billion that it costs the United States to
incarcerate its prisoners does not include the cost to the system of
foster care and public assistance for the children of these prisoners; it
also does not include the cost that society will have to bear in the
virtual destruction of families. Services promoting family unity are
relatively inexpensive compared to the cost of reimprisonment. The United
States lags behind most European and Latin American countries on the issue
of family visits.
Successful model programs exist in various parts of the country that seek
to strengthen the families of prisoners as a way of deterring future
criminal activity. The Mother-Infant Care Program in San Francisco, the
Family Reunion Program for incarcerated fathers in the New York State
system and the Bedford Hills, New York Infant Program could all be
replicated at the federal level.
The Family Unity Demonstration Project Act, H.R. 2726, was introduced in
the first session of the 102nd Congress, authorizing the National
Institute of Corrections to create a competitive grant program for the
establishment of five family-unity demonstration projects in the states
and one at the federal level. To date there has been no action on H.R.
1) Increase funding for the development of family-unity type demonstration
2) Support the Family Unity Demonstration Project Act, H.R. 2726.
Prisoners Rights > GRIEVANCE RESOLUTION
The Federal Bureau of Prisons needs to implement a fair and efficient
grievance procedure for prison inmates.
Federal prisoners face significant barriers in making known their
legitimate grievances about prison conditions. The FBOP has established a
three-tier internal grievance mechanism called the Administrative Remedy
Procedure (ARP), 28 C.F.R. Section 542-10 et seq., for federal prisoners
who have complaints about conditions, abuse and treatment by prison staff.
The goals include reducing prisoner-staff conflict, demonstrating to
prisoners that the government intends to deal fairly with them and
reducing the enormous flow of federal prisoner pro se petitions into the
The ARP has significant weaknesses, however. Most ARP programs have no
clear fact-finding process, and statements secured from prison personnel
are not given under oath or seriously questioned. The Supreme Court noted
in a recent decision that the filing deadlines for the FBOP grievance
procedure "are a likely trap for the inexperienced and unwary inmate,
ordinarily indigent and unrepresented by counsel." McCarthy v. Madigan,
112 S.Ct. 1081, 1090 (1992).
Support legislation that would establish an effective prisoner grievance
system that provides, at a minimum, an impartial, outside review process.
Prisoners' Rights > VOTING RIGHTS
Prisoners in all but six states do not have the right to vote, and
ex-prisoners are effectively disenfranchised because of the cumbersome
process they must go through to regain their right to vote. This violates
prisoners' rights to equal protection and to petition their government.
In 1974, the Supreme Court permitted California to deny convicted felons
the right to vote. The case made the right to vote wholly dependent on
each state's laws. As a result, a federal prisoner's right to vote is
determined by the laws of the state in which the federal prison is
located. State laws vary widely. Many state laws that restrict the
franchise raise serious civil liberties issues. In Hunter v. Underwood,
471 U.S. 222 (1985), the Supreme Court ruled unconstitutional a provision
of the Alabama Constitution that disenfranchised convicted criminals
because it had been enacted with the intent of discriminating against
African Americans. In Tate v. Collins, 496 F. Supp. 205 (W.D. Tenn.
1980), a district court upheld the right of Tennessee state prisoners to
vote if they had not been convicted of "infamous crimes" and ordered that
prisoners be permitted to obtain absentee ballots.
In addition, because of a confusing patchwork of state laws, many
ex-offenders also find it difficult, if not impossible, to regain access
to the ballot once they are released. Some are required to go through a
cumbersome and sometimes expensive procedure in order to regain the right
Prisoners and ex-prisoners should not be punished two-fold by losing their
right to vote. A clear and reasonable nationwide standard is needed on
restoration of voting rights.
Support legislation that would restore the right to vote for convicted
felons and ex-offenders.
Prisoners' Rights > INTERNATIONAL STANDARDS
The Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment establishes an international standard for the
treatment of prisoners. However, the reservations and understandings
imposed by the United States upon its ratification of the Convention
greatly limit the Convention's effectiveness.
In 1990, the United States ratified the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment with several
reservations and understandings. These reservations and understandings,
now part of the treaty and law of the United States, severely limit the
ability of American courts to use international law as a standard against
which to measure violations of human rights.
For example, Article 16 provides that we are obligated under the treaty to
prevent cruel and inhuman or degrading treatment or punishment only to the
extent that such treatment is prohibited by the United States
Constitution. In effect, the Senate has said that the treaty does not
provide any additional limitations other than those already provided under
domestic law. In ratifying the Convention, the United States also
attached an "understanding" that torture was to be defined more narrowly
than by the United Nations and that the Convention does not prohibit the
death penalty. In addition, the United States attached an "understanding"
of a higher standard in the policy of non-refoulment (prohibiting the
deportation of aliens to countries where it is likely they will be subject
to torture) than the treaty requires. Moreover, none of the Convention's
substantive provisions are self-executing and, therefore, are ineffective
until Congress formulates implementing legislation, which it has not done.
Finally, the Senate has stated that its advice and consent are subject to
a proviso requiring the President to notify all signatories to the
Convention that the United States is not required to take any action
prohibited by the United States Constitution. The proviso makes our
obligations very uncertain, leaving other parties to guess what provisions
the United States will respect.
Support legislation to remove the proviso, understandings and reservations
and to make the Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment self-executing.
Prisoners' Rights > CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT
The Department of Justice has refused to enforce the Civil Rights of
Institutionalized Persons Act (CRIPA) on behalf of prisoners.
In 1980, Congress enacted the Civil Rights of Institutionalized Persons
Act, 42 U.S.C. Section 1997 (CRIPA), and charged the Department of Justice
with the duty of protecting the rights of those who are helpless to
protect themselves -- institutionalized mental patients, mentally retarded
persons, juveniles and prisoners. At the time CRIPA was enacted, the
Department of Justice told Congress that it expected to file seven to ten
lawsuits per year under the Act.
During the Reagan/Bush years, the Civil Rights Division of the Department
of Justice adopted a policy of refusing to enforce CRIPA. When William
Bradford Reynolds was appointed Assistant Attorney General for Civil
Rights, enforcement of CRIPA came to a halt. In the first four years of
CRIPA, the Department filed only two actions to enforce the Act.
In addition, in CRIPA cases and in other cases involving the rights of
institutionalized persons, the Department of Justice, although enrolled in
the cases as a plaintiff, has routinely sided with the defendant.
Recently, Attorney General Barr set forth this position as the
Department's formal policy when he ordered Department of Justice lawyers
to side with state governments in motions to end federal court decrees
that set limits on prison overcrowding. Indeed, the Department of Justice
refused to withdraw the policy even after the Supreme Court, in Rufo v.
Inmates of Suffolk County Jail, 112 S. Ct. 748 (1992), rejected the legal
argument that in large part underlay the policy. This policy on the part
of the Department of Justice frustrates Congress' intention that in
appropriate cases the Department advocate on behalf of the most helpless
members of our society -- the institutionalized.
1) Rescind the Department of Justice's policy of supporting state
governments' attempts to overturn court orders that limit prison
2) Instruct the Department of Justice to vigorously enforce CRIPA on
behalf of prisoners.
Prisoners' Rights > PRISON OVERCROWDING AND HUMAN RIGHTS VIOLATIONS
Severe overcrowding throughout state and federal corrections systems has
resulted in many institutions operating substantially above their design
capacity. There is currently no mechanism for monitoring and reporting
this and other human rights violations in U.S. jails and prisons.
Jail and prison conditions and practices vary greatly in different cities
and states, as well as in the Federal Bureau of Prisons (FBOP). But
virtually all suffer from serious overcrowding. Overcrowding wreaks havoc
on an institution's ability to manage its population effectively, and it
greatly increases the probability of harm to both staff and prisoners.
Overcrowding creates dangerous fire hazards, increases violence,
overwhelms medical services and diminishes programming services that are
essential to the maintenance of order in an institution. A number of
prisoner rebellions that have led to significant injury and death are
directly linked to conditions caused by crowding, such as the 1971 Attica
rebellion, the 1980 New Mexico disturbance and the 1989 Camp Hill
(Pennsylvania) violence. As of January 1992, there were 40 states (plus
the District of Columbia) and more than 150 jurisdictions with large jail
populations (i.e., 100 inmates or more) in which courts had found that
overcrowding and other conditions in prisons and jails violate the
The dramatic growth in drug felony convictions has caused overcrowding in
the federal system to increase to 150 percent of rated capacity. The
number of drug offenders serving time in federal prisons has more than
doubled in the past few years, and such prisoners now account for more
than half of the federal prison population.
The Bureau is coming under increasing pressure from Capitol Hill to
"double-bunk" -- that is, put two prisoners in each cell. In fact, in
practice the FBOP has double-bunked detainees and some prisoners for many
In addition to the serious deterioration in jail and prison conditions
caused by overcrowding, there are well-documented cases of serious human
rights abuses. For example, earlier this year the Supreme Court decided a
case involving a state prisoner in Louisiana who had been beaten by prison
officers while he was shackled hand and foot. Hudson v. McMillian, 112
S.Ct. 995 (1992). As a general rule, however, there are no official
agencies that monitor human rights violations in U.S. jails and prisons.
1) By Executive Order, forbid the use of "double-bunking" and the housing
of prisoners in excess of the design capacity of any Federal Bureau of
2) Appoint new members to the United States Civil Rights Commission and
direct the Commission to develop mechanisms to monitor human rights
violations in jails and prisons.
CRIME AND CRIMINAL JUSTICE: Imprisonment as a Crime Control Mechanism
CRIME AND CRIMINAL JUSTICE: Preventive Detention
DRUG POLICY: The War on Drugs
More than 400,000 children are currently in government foster care
custody. The removal of these children from their homes constitutes an
extreme example of government intervention into the lives of children and
their families. Although the removal of some children from their parents
may be necessary to protect children from abuse and neglect, state foster
care systems are often so grossly mismanaged that they inflict serious and
irreparable injury on the helpless children entrusted to their care. In
the District of Columbia, for example, thousands of reports of abuse or
neglect have gone uninvestigated; children are crammed into overcrowded
and unlicensed foster homes; workers, who have no training and little
supervision, carry caseloads of hundreds of children, and children remain
in government custody for an average of five years.
Recognizing the terrible problems plaguing foster care systems
around the country, Congress enacted in 1980 the Adoption Assistance and
Child Welfare Act, Pub. L. No. 96-272 (codified as amended at 42 U.S.C.
Sections 620-627, 670-679a). That statute amended the Social Security Act
by mandating that states provide specified services to children in
government foster care custody as a condition of the states' receipt of
substantial federal funding for their foster-care systems. (In FY 1993,
states will receive nearly $3 billion under the Act.) The statute sought
to reduce the number of children entering foster care by providing
services so they could either be returned home or adopted, to shorten the
period of time that those children who did enter foster care remained
there, and to improve the conditions of foster care.
In the early 1980s, the number of children in foster care declined
substantially, largely as a result of reforms spawned by the statute.
However, with the substantial cutback of aid to states and cities in the
mid- and late-1980s, children started flooding back into foster care, and
many systems now are at the brink of collapse.
Department of Health and Human Services
Childrens' Rights > ADOPTION ASSISTANCE & CHILD WELFARE ACT:ENFORCEMENT
For more than a decade, children in foster care had the right to file
private lawsuits to enforce provisions of the federal Adoption Assistance
and Child Welfare Act of 1980. But this year, at the urging of the Bush
Administration, the U.S. Supreme Court called into question most of the
Act's enforcement provisions. And the Bush Administration later vetoed a
Congressional attempt to clarify the law and overturn the Court's
In the ten years following enactment of the Adoption Assistance and Child
Welfare Act of 1980, children's advocates prosecuted lawsuits around the
country against states, municipalities, and counties in which foster care
problems were particularly acute. Though foster care reform litigation
had taken place prior to 1980, the Adoption Assistance Act created
significantly greater entitlements for children and gave advocates much
broader means by which to accomplish necessary reforms.
During the 1980s, courts around the country uniformly concluded that
children were entitled to sue to enforce the Act's provisions. Lynch v.
Dukakis, 719 F.2d 504 (1st Cir. 1983); L.J. v. Massinga, 838 F.2d 118 (4th
Cir. 1988), cert. denied, 488 U.S. 1018 (1989); Yvonne L. v. New Mexico
Department of Human Services, 959 F.2d 883 (10th Cir. 1992); Winston v.
Children and Youth Services, 948 F.2d 1380 (3d Cir. 1991), cert. denied,
112 S.Ct. 2303 (1992); Timmy S. v. Stumbo, 916 F.2d 312 (6th Cir. 1990);
Del A. v. Edwards, 855 F.2d 1148 (5th Cir. 1988), appeal dismissed, 867
F.2d 842 (5th Cir. 1989); LaShawn A. v. Dixon, 762 F. Supp. 959 (D.D.C.
1991). By 1990, the law was well settled in this area, and foster care
reform lawsuits turned largely upon the facts of particular cases.
In 1992, however, the U.S. Supreme Court undermined all foster care reform
litigation when it ruled that a particular provision of the Adoption
Assistance Act was not privately enforceable by children. Though the
holding of the Court's decision in Suter v. Artist M, 112 S.Ct. 1360
(1992), was narrow, the language of the opinion is so broad in some places
as to suggest that all of the statute -- as well as all of the Social
Security Act and all of the Medicaid Act -- has been rendered
unenforceable. Relying on this language, several lower courts recently
have dismissed entire lawsuits.
1) Use the Department of Health and Human Services' regulatory power to
reverse the Supreme Court's interpretation in the Suter decision, and to
restore the enforceability of the specific provision of the statute at
issue in Suter.
2) Alternatively, support legislation to counter the Court's decision in
Suter. Whichever course is chosen, it is essential that the Clinton
Administration move quickly to reverse the impact of Suter and to restore
the law to its prior state so as to assure that children are able secure
the protections of the Adoption Assistance and Child Welfare Act.
Childrens' Rights > ADOPTION ASSISTANCE AND CHILD WELFARE ACT: COMPLIANCE
Although the federal Adoption Assistance and Child Welfare Act of 1980
contains broad policy directions, it does not identify or mandate the
services that states must provide for children. This lack of specificity
has left states with such broad discretion that the Act's mandates are
Like many statutes, the Adoption Assistance and Child Welfare Act
specifies broad mandates. One example: The statute requires states to
provide "proper care" to children and to provide services to children to
permit them to return home if appropriate. However, the statute does not
identify or further define the mandated services, and there are no
accompanying regulations relating to the provision of services to
children, leaving the states with such broad discretion that the statute's
mandates are seriously diluted. Children's advocates have been hampered
by the federal government's failure to promulgate appropriate regulations
under the statute. Indeed, the Supreme Court concluded in Suter v. Artist
M. that one of the statute's key provisions was unenforceable because,
given its lack of regulatory definition, it was too vague for enforcement.
Not only has the lack of regulation circumscribed the efforts of
children's advocates, but it has also limited the ability of the
Department of Health and Human Services (HHS) to monitor state compliance
with the statute. Field office personnel have noted that the lack of
regulatory detail vastly undermines their ability to review and correct
state foster care programs. Given the huge sums of federal dollars going
to state foster care programs, it is essential that the federal government
be able to ensure that the states are providing the services mandated by
the Adoption Assistance Act.
With the input of children's advocates, draft and urge adoption of
appropriate regulations under the Adoption Assistance and Child Welfare
EDUCATION: Equity in Financing
IMMIGRANTS' RIGHTS: Detention of Juvenile Aliens
PRISONERS' RIGHTS: Maintenance of Family Ties
WOMEN'S RIGHTS: Family and Medical Leave and Child Care
New laws must be created to protect civil liberties in the world
of work. The Bill of Rights protects individuals from violations of their
civil liberties by the government. But it offers no protection in the
private workplace, even though violations of civil liberties by employers
far outnumber those committed by the government.
American freedoms are just as important in the world of work as
they are in public life. It is just as wrong for a person to be fired by
an employer for her or his political beliefs as it is to be punished by
Among the abuses committed against the employed by their employers
are secret monitoring of telephone calls and electronic mail; retaliation
against those who speak up on workplace safety issues; dictating how
employees conduct their private lives; forcing employees to answer
questions about their sex lives and religious beliefs on psychological
tests, and firing employees for union activity.
The nation's failure to protect rights in the workplace not only
makes us less free, it also makes us poorer. In an era when we need the
full energy and creativity of all people at work, most Americans
consciously give less than their best because they believe their companies
do not respect them or their rights. It is no accident that those nations
that have laws protecting the rights of employees, such as Germany, Sweden
and Japan, are the world's most successful trade competitors.
Department of Defense
Department of Energy
Department of Health and Human Services
Department of Labor
Department of Transportation
National Labor Relations Board
Workers' Rights > UNJUST DISMISSALS
Non-unionized, private sector workers, who make up the majority of workers
in the United States, have virtually no protection from arbitrary and
unfair terminations. Private sector employees lack the procedural
protection granted to their counterparts in the public sector.
Most Americans are shocked to learn that the Bill of Rights does not
protect them at work. Although the workplace must be free of
discrimination on the basis of race, sex, disability and age, the basic
rights of free speech, privacy and due process protect only against
government action. Eighty percent of the workforce that is not in union
or government jobs can be fired for any reason or for no reason at all.
They can be subjected to intrusive and degrading tests and searches that
are unrelated to the work they were hired to perform. And they can be
fired for activities conducted in the privacy of their own homes.
Non-unionized, private workers are still subject to the
"employment-at-will" rule, a 19th century common law doctrine that allows
employers to fire employees for any reason, whether for just cause or no
cause. As a result of this arcane doctrine, an estimated 150,000 American
workers are unjustly dismissed each year. Workers will continue to suffer
unless federal legislation is enacted to remedy their plight.
Support federal legislation that establishes a just cause standard for
employee dismissals, and that prohibits discrimination based on employees'
outside legal activities.
Workers' Rights > ELECTRONIC SURVEILLANCE OF PRIVATE SECTOR EMPLOYEES
Electronic surveillance has become increasingly common in the American
workplace, and much of the surveillance has nothing to do with job
performance or with any other legitimate employer concern. Monitoring by
telephone, computer and video represents a serious invasion of employees'
Recent advances in electronic technology in the workplace have stripped
many Americans of any semblance of privacy on the job. Employers now
routinely: listen to employees' telephone calls without telling either the
employee or the other party to the conversation; secretly read employees'
computer screens and bypass passwords to monitor electronic mail, and
install hidden microphones and video cameras. The Congressional Office of
Technology Assessment estimates that at least four million Americans are
routinely subjected to these practices. U.S. Congress, Office of
Technology Assessment, The Electronic Supervisor (1987).
Current law provides little protection for workplace privacy. The Omnibus
Crime Control and Safe Streets Act of 1968, as amended by the Electronic
Communications Privacy Act of 1986, 18 U.S.C. Sections 2510-3126,
prohibits employers from deliberately monitoring personal communications
engaged in by their employees on the job. The Act does not apply this
prohibition, however, if the communication is business related, and it
does not require an employer to give prior notice of a monitoring
Employees should not have to leave their right to privacy on the doorstep
when they enter their workplaces. A University of Wisconsin study found
that monitored workers suffer significantly higher levels of psychological
and physical problems than those in the same industry who are not
monitored. Smith, Sainfort, Rogers and LeGrande, Electronic Performance
Monitoring and Job Stress in Telecommunications Jobs, Univ. of
Wisconsin-Madison, Department of Industrial Engineering (October 1990).
Unrestrained surveillance has turned many offices into electronic
For several terms, Congress has been considering legislation that would
strike a reasonable balance between an employer's right to workplace
information and employees' right to privacy. The Privacy for Consumers
and Workers Act (H.R. 1218/S. 3238) preserves the employers' right to
collect information about employees' work performance through electronic
monitoring, but it requires employers to notify employees about the nature
of the monitoring and when it will take place. This bill was reported out
of the House Education and Labor Committee in 1992.
Support the Privacy for Consumers and Workers Act.
Workers' Rights > DRUG TESTING
Suspicionless drug testing of workers, including those who do not occupy
safety-sensitive positions, has become routine in many industries.
Urinalysis, which cannot measure job performance and is often unreliable,
invades the privacy rights of hundreds of thousands of innocent employees
One casualty of the war on drugs has been the privacy rights of American
workers. The Department of Defense, for example, requires defense
contractors to establish a drug testing program for employees in sensitive
positions, and the Department of Energy requires drug testing of employees
with access to nuclear sites. Executive Order 12564, issued on September
15, 1986, requires random urinalysis drug testing for a wide variety of
In 1991, Congress passed the Omnibus Transportation Employee Testing Act
of 1991, 45 U.S.C. Section 431; 49 U.S.C. app. Sections 1434, 1618a, 2717,
which mandates urinalysis drug testing and alcohol testing for
safety-sensitive workers in industries subject to the Federal Aviation
Act, the Federal Railroad Safety Act, the Commercial Motor Vehicle Safety
Act and the Urban Mass Transportation Act. The Omnibus Act covers both
public and private sector employees. Every court that has considered the
matter has ruled that urinalysis is a search and seizure under the Fourth
Amendment. Nevertheless, such testing has survived constitutional
challenge for employees whose positions have a direct impact on public
safety or involve access to sensitive government documents. Skinner v.
Railway Labor Executives' Ass'n, 489 U.S. 602 (1989); National Treasury
Employees Union v. Von Raab, 489 U.S. 656 (1989). The federal
government's action has given a green light to private employers, who now
routinely impose intrusive drug testing on employees even in non-safety
Drug tests are not only intrusive, they are also unreliable. Urinalysis
is not a work-related test because it cannot detect actual impairment or
intoxication, but merely the inactive residue of substances ingested at
some time in the past. Severe accuracy problems also attend urinalysis
testing. The vast majority of laboratories have not been certified by the
National Institute on Drug Abuse or any other government agency. Many of
these labs have poorly trained personnel, inadequate quality standards and
substandard equipment. Because of these deficiencies, many innocent
people have lost their jobs.
Passage of the Clinical Laboratory Improvements Act of 1988, 42 U.S.C.
Section 263, was meant to address these deficiencies by subjecting all
labs that conduct clinical tests to strict quality standards. Regulations
issued by the Department of Health and Human Services (HHS) initially
included workplace drug testing within the Act's coverage. However, HHS,
under protest, issued a temporary exemption for workplace testing before
the regulations took effect in September 1992. The result is that American
employees have no protection against loss of civil liberties and loss of
employment because of shoddy lab work.
Public safety would be protected far better if employees in
safety-sensitive positions were tested for their ability to do the job.
Such impairment testing is well established in the private sector, and has
demonstrated its ability to protect the public without invading the
private lives of employees. (Lewis L. Maltby, Put Performance to the
Test, American Management Association, July, 1990).
1) Revise Executive Order #12564, and Department of Defense and Department
of Energy regulations, to provide for direct testing of impairment instead
of urinalysis for all safety-sensitive positions.
2) Urge Congress to amend the Omnibus Transportation Employee Testing Act
to require the use of impairment tests instead of urine tests.
3) Reissue the original regulations promulgated by HSS under the Clinical
Laboratory Improvements Act.
Workers' Rights > LABOR LAW REFORM
Structural weaknesses in the National Labor Relations Act have the effect
of denying workers the right to engage in collective action without fear
The rights of employees to organize and bargain collectively are important
civil liberties. They are aspects of freedom of association. The
National Labor Relations Act (NLRA), 29 U.S.C. Sections 151-69, promises
all Americans the right to join with their fellow employees to negotiate
with their employer for better wages and working conditions. It prohibits
employers from interfering with employees' attempts to organize, or from
retaliating against employees who exercise their rights under the statute.
The NLRA, however, contains serious structural weaknesses. These have
been exploited by employers in recent years to deny employees the
protections promised by the Act. For example, the Act makes it an unfair
labor practice for an employer to fire an employee because he or she is
trying to organize a union. If an employer violates the law in this
manner, however, the employee has no right to take the employer to court.
The Act restricts the remedy to an administrative procedure before the
NLRB. Moreover, this administrative remedy is limited to reinstatement
with backpay. Reinstatement does not occur until long after the
organizing drive is over, and backpay is reduced by interim earnings to an
average of about $2,000. Thus, an employer can effectively defeat an
organizing effort by firing the leaders and write off the minimal
penalties as the cost of doing business. Many employers are taking this
approach. In 1985, 10,905 employees were discharged in retaliation for
union activity, an average of almost three firings per union election.
This enforcement system not only fails to protect the right to organize,
but also provides a lower standard of protection than that afforded other
civil rights. The Civil Rights Act of 1991, for example, allows victims
of other civil rights violations to sue for compensatory and punitive
damages, preliminary and permanent injunctions and attorneys' fees. But
the civil right to organize now receives second class enforcement.
The law also fails to protect the right to strike. The Supreme Court has
allowed employers to use termination as a weapon against economic
strikers. An employer, of course, has the right to resist a strike
through legitimate means. This includes keeping the company operating by
having supervisors do bargaining unit work, using subcontractors or hiring
temporary replacements. These techniques have proven to be sufficient to
keep a facility operating during a strike. The Supreme Court, however, in
Mackay Radio and Tel. Co. v. NLRB, 304 U.S. 333 (1938), allowed employers
to "permanently replace" economic strikers. This extreme measure is not
needed to protect employers' legitimate interests; it is, in effect, a
license to break a strike by taking away the strikers' jobs. Many
employers have taken advantage of this option. The General Accounting
Office has estimated that 17 percent of all employers involved in economic
strikes have retaliated in this way.
To make matters worse, many employees are denied even these inadequate
protections. In NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974), the
Supreme Court held that all managers, even middle managers with no
individual bargaining power and no voice in setting company policy, are
not "employees" under the NLRA and do not qualify for any of its
Congress attempted to correct one of these injustices last term through
the Striker Replacement Act (H.R. 5/S. 55). The Act passed the House, but
the Senate killed the bill when cloture was defeated, 59 to 41.
1) Support the comprehensive reform of all federal labor laws to ensure
that employees actually receive the rights and benefits that Congress
2) Support the Striker Replacement Act.
AIDS: Mandatory Federal HIV Testing
AIDS: HIV-Infected Health Care Workers
CIVIL RIGHTS ENFORCEMENT: The Civil Rights Act of 1991
CIVIL RIGHTS ENFORCEMENT: Test Score Norming
CIVIL RIGHTS ENFORCEMENT: Caps on Damages
FREE SPEECH: The Hatch Act
FREE SPEECH: Ban on Federal Employee Honoraria
GAY RIGHTS: Security Clearances
IMMIGRANTS' RIGHTS: Employer Sanctions
NATIONAL SECURITY: Security Clearances
WOMEN'S RIGHTS: Economic and Pay Equity
WOMEN'S RIGHTS: Family and Medical Leave and Child Care
INTERNATIONAL HUMAN RIGHTS
United States' support for international human rights legitimizes
and strengthens the values of civil liberties and civil rights here and
throughout the world. In the last 12 years, however, the U.S. government
has withheld full support for the development of international law and
institutions that are designed to protect human rights around the world,
and it has attempted to limit the application of international human
rights standards in the United States.
Without the active involvement and support of the United States,
the international system of human rights protection will never achieve
maximum effectiveness in preventing human rights abuses. Nor will the
United States be able to be as effective as it could be in promoting human
rights unless it accepts the application of international human rights
standards in this country.
It is in the long term interest of the people of the United States
that our government accept and apply international standards in the
conduct of domestic and foreign policy.
Department of Justice
Department of State
United States Mission to the United Nations
International Law > INTERNATIONAL HUMAN RIGHTS CONFORMITY ACT
In September 1992, the United States ratified the International Covenant
on Civil and Political Rights, subject to a number of important
reservations. Further action is needed to bring our nation into
compliance with the human rights goals set out in the Covenant.
The International Covenant on Civil and Political Rights was formulated in
the aftermath of World War II. The Covenant was inspired by the United
Nations charter, which placed special emphasis on "universal respect for,
and observance of, human rights and fundamental freedom for all." Drawing
heavily on the United States' Bill of Rights, the Covenant was adopted by
the United Nations in 1966. Today, over 100 nations have become party to
the Covenant. President Carter signed the Covenant in 1977, but the
United States did not take any more action on it until more than a decade
On April 2, 1992, the United States Senate consented to ratification of
the Covenant, subject to a series of reservations and exceptions that
limit U.S. obligations under the Covenant to the existing requirements of
U.S. law. In its report on the matter, the Senate Committee on Foreign
Relations recognized the need to consider changes in U.S. law, yet
recommended that it was more appropriate to conform the disparities
between U.S. law and the Covenant through the customary legislative
process, which requires the participation and assent of the House of
Representatives, as opposed to lawmaking by treaty which rests in the
province of the Senate alone. See S. Rep. No. 23, 102d Cong., 2d sess.
The International Human Rights Conformity Act, which will be introduced in
the 103rd Congress, responds to the call for further Congressional action
in compliance with the Covenant. Specifically, the Act would prohibit the
execution of juvenile offenders and pregnant women; adopt international
standards of retroactive imposition of lighter penalties; afford
compensation for unlawful arrest and for convictions resulting from the
prosecutions by federal and state authorities and require the segregation
of juvenile from adult offenders and of the convicted from the accused.
The proposed legislation does not purport to address all aspects of U.S.
law protecting civil and political rights, nor correct every respect in
which U.S. law fails to conform to international standards of human
rights. However, this Act, in addition to providing greater human rights
protection for Americans, would signal to the world that the United States
recognizes the applicability of international human rights standards to
itself. Thus, adherence to the Covenant, by way of the International
Human Rights Conformity Act, would enhance the United States' ability to
shape and protect standards of human rights worldwide.
Support the International Human Rights Conformity Act and seek its early
International Law > RATIFICATION OF TREATIES
The United States has failed to ratify or sign numerous international
human rights treaties. The absence of our imprimatur renders the treaties
less effective and deprives the American people of important human rights
During the Bush Administration the Senate consented to the ratification of
the Convention Against Torture and Other Forms of Cruel, Inhuman and
Degrading Treatment. The ratification process will be complete after
Congress passes implementing legislation. In September 1992 the United
States ratified the International Covenant on Civil and Political Rights.
Both treaties were accepted subject to a long list of reservations,
declarations and understandings which limit the acceptance of these
international obligations, especially where they provide for broader
rights than existing U.S. law.
Four other significant international human rights treaties have been
pending in the Senate for more than a decade without action. They are:
the International Covenant on Economic, Social and Cultural Rights; the
American Convention on Human Rights; the Convention on the Elimination of
All Forms of Racial Discrimination, and the Convention on the Elimination
of All Forms of Discrimination Against Women. The last comprehensive
hearings on international human rights treaties took place in November
1979 in the Senate Foreign Relations Committee. Neither the Reagan nor
Bush Administrations sought the ratification of these four treaties.
Finally, the United States has yet to sign the Convention on the Rights of
the Child. This Convention was promulgated by the U.N. General Assembly
in December 1990. Nor has the United States signed the Optional Protocol
to the International Covenant on Civil and Political Rights providing for
the right of individual petition.
These treaties create the institutional and substantive framework of the
international system for the protection of human rights that has come into
being since World War II. It has taken the United States decades to reach
the point of tentatively accepting the Covenant on Civil and Political
Rights and then only with a package of limitations that undermine our
commitment to international human rights standards. While some
reservations, declarations or understandings may be required, there is no
justification for the limitations that have accompanied the ratification
of the Convention Against Torture and the Covenant on Civil and Political
Full United States participation in these treaties is essential to their
effectiveness. These treaties embody human rights standards that should
be available to protect all persons in the United States. These standards
should be enforceable by the courts and should govern the conduct of the
1) Seek the removal of many of the reservations, declarations and
understandings now attached to the Senate's consent to the ratification of
the International Covenant on Civil and Political Rights and sign the
Optional Protocol providing for the right of individual petition.
2) Seek removal of the reservations, declarations and understandings
attached to the Convention Against Torture and Other Forms of Cruel,
Inhuman and Degrading Treatment or Punishment, and urge the Senate to give
its consent to the ratification of that Convention and the other
international human rights treaties now pending before it.
3) Sign the Convention on the Rights of the Child and transmit it to the
Senate for its Consent.
International Law > ABDUCTION OF FOREIGN NATIONALS
The Bush Administration engaged in the kidnapping of foreign nationals
outside the United States in violation of international law and
extradition treaties, and took the position that the Bill of Rights does
not apply to extraterritorial arrests, searches and seizures.
In 1989, then Deputy Attorney General William Barr authored a secret legal
opinion asserting that the Federal Bureau of Investigation could legally
arrest fugitives overseas without the permission of the host country.
This was followed by the kidnapping of two Mexican citizens who were then
handed over to U.S. agents and put on trial here for a crime committed in
Mexico. The Mexican government filed formal diplomatic protests regarding
the incidents involving its nationals, asserting that the abductions
violated the extradition treaty between the two countries and demanding
their repatriation. In 1992, the Supreme Court upheld the legality of
these abductions. United States v. Alvarez-Machain, 60 U.S.L.W. 4523
Instead of affirming the importance of fundamental constitutional
constraints, the Bush Administration instead took the position that the
Fourth Amendment does not apply to searches and seizures by U.S. agents
overseas. In 1990, the Supreme Court agreed, holding that the Fourth
Amendment does not apply to searches and seizures by U.S. agents of a
non-resident alien's property located outside the United States, even
though the alien was in the United States facing U.S. criminal charges at
the time of the search. United States v. Verdugo-Urquidez, 494 U.S. 259
The Alvarez decision was met with shock and incredulity both within the
United States and abroad. According to the State Department, "[m]any
[foreign] governments have expressed outrage that the United States
believes it has the right to decide unilaterally" to enter their territory
and abduct one of their nationals." Numerous countries have voiced
objections, including Argentina, Bolivia, Brazil, Chile, Paraguay,
Uruguay, Colombia, Jamaica, and Canada.
1) Rescind the Barr legal opinion that authorizes international
2) Issue an Executive Order that: first, bars all U.S. government agencies
from participating in or authorizing abductions of foreign nationals
abroad, without the prior authorization of the President and the express
consent of the host government; second, requires agents of the U.S.
government who exercise law enforcement powers abroad to conduct arrests,
searches and seizures in accordance with all restrictions imposed by the
Constitution and laws of the United States; and, third, requires that
persons arrested or searched be afforded all protections guaranteed by the
Constitution, including the right to counsel, Miranda warnings and Fourth
Amendment restrictions on searches and seizures.
3) Support legislation prohibiting the prosecution of any person brought
before United States courts in violation of this prohibition on
IMMIGRANTS' RIGHTS: Haitian Refugees
IMMIGRANTS' RIGHTS: HIV Exclusion
NATIONAL SECURITY: Ideological Visa Denials
NATIONAL SECURITY: Americans' Right to Travel Abroad
PRISONERS' RIGHTS: International Standards
PRISONERS' RIGHTS: Monitoring Overcrowding and Human Rights Violations
REPRODUCTIVE FREEDOM: International Reproductive Freedom
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