The majority of the U.S. Commission on Civil Rights issued a statement last week expressing concern over the Trump Administration’s efficacy and priorities related to Civil Rights.

They wrote in part:

The Commission, by majority vote, expresses concern with the Administration’s proposed budget cuts to and planned staff losses in numerous programs and civil rights offices across the federal government that enforce our nation’s federal civil rights laws. Along with changing programmatic priorities, these proposed cuts would result in a dangerous reduction of civil rights enforcement across the country, leaving communities of color, LGBT people, older people, people with disabilities, and other marginalized groups exposed to greater risk of discrimination.

The Commission unanimously approved a comprehensive two-year assessment of federal civil rights enforcement, which will conclude in Fiscal Year 2019. The review will examine the degree to which current budgets and staffing levels allow civil rights offices to perform their statutory and regulatory functions, the management practices in place in the offices and whether these practices are sufficient to meet the volume of civil rights issues within the offices’ jurisdiction, and the efficacy of recent resolution efforts from the offices.

The Commission is an independent agency whose eight members are appointed by the President and Congress who can name four each. The President can determine who the chairman and vice chair are. No more than four members are to belong to the same political party. Here is how “bipartisan” the commission currently is, it consists of four Democrats, three independents, and one Republican.

They serve six-year terms with no Senate confirmation and the President can only remove them for “neglect of duty or malfeasance in office.”

Two commissioners, Gail Heriot and Peter Kirsanow, disagreed with the majority opinion and this week released a statement explaining why.

Six members of the U.S. Commission on Civil Rights voted to adopt a statement condemning President Trump’s proposed budget cuts to various civil rights agencies. We dissented from that decision and from the exaggerated rhetoric contained in it.

Contrary to the impression one would get from reading the statement adopted by the majority, the Administration’s proposal modestly increases funding for Department of Justice’s Civil Rights Division. What is really remarkable is not the Trump Administration’s proposal, but rather the fact that despite the Supreme Court’s decision in Shelby County v. Holder (2013), which significantly reduced the Civil Rights Division’s workload, the Obama Administration repeatedly expanded its budget.

Similarly, the statement adopted by the majority expresses concern with budget reductions for the Department of Education’s Office for Civil Rights. But the proposed budget cut is only 1.57%. This is after OCR received an unusually large (7%) budget increase in Fiscal Year 2016. In our opinion that 2016 increase was unjustified. OCR has been exceeding its authority for many years now. We would have cut its budget by a larger amount than the Trump Administration chose.

The majority statement also accuses Education Secretary Betsy DeVos of having “repeated[ly] refus[ed] in Congressional testimony and other public statements to commit that the Department would enforce civil rights laws.” This is over the top. Secretary DeVos never declined to commit to enforcing “civil rights laws.” She interprets those laws differently from our colleagues. She could have made that more clear in her testimony before the Subcommittee Labor, Health and Human Services, and Education of the House Committee on Appropriations if Rep. Katherine Clark (D-MA) had not repeatedly badgered and interrupted her.

The majority statement goes on at length, but we will deal with just one more example: It complains that the Department of Labor’s Office of Federal Contract Compliance Programs is slated to have substantial staff reductions in connection with the planned transfer to the Equal Employment Opportunity Commission. But the whole point of the restructuring is to increase efficiency. The OFCCP and the EEOC deal with similar issues. While we do not necessarily endorse the transfer of functions, we note that avoiding waste in government spending is in everyone’s interest.

Heirlot is one of the three independent Commissioners. Kirsanow is the lone Republican. They are both congressional appointees. In addition to their argument, I would like to point out that the Commission expresses concern about LGBT rights. This expectation goes beyond the scope of their mandate as the Civil Rights Act does not include sexual orientation or gender identity as protected classes.

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