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Once again, the civil rights commission leader lets her biases show

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© St. Petersburg Times,
published August 19, 2001

It may be time for new leadership on the U.S. Commission on Civil Rights. Mary Frances Berry, who has been chairwoman of the bipartisan federal investigative agency since 1993, seems to have let power go to her head.

Berry is currently trying to bury a detailed and thorough dissent to the commission's report on the voting experience for minorities in Florida during the last presidential election. She is so intent on having the public believe that Florida's election "disenfranchised" minorities that she has refused to attach the dissent by commissioners Abigail Thernstrom and Russell Redenbaugh to the report itself. Instead she dumps it into the appendix, along with dozens of other documents.

Thernstrom and Redenbaugh, the only two Republican-appointed members of the commission, vehemently disagreed with their six fellow commissioners that voting rights were violated during Florida's November 2000 election. To them, the conclusions of Allan Lichtman, hired by the commission to determine whether minority voters were discriminated against, were sloppy and overstated. They set out their objections in a 58-page dissent and attached a statistical analysis by Yale Law School economist John Lott. According to Lott's analysis, the huge disparities in ballot spoilage rates between black and non-black voters -- one of Lichtman's central findings -- were little better than guesstimates. Any disparities that actually existed were easily explained by non-racial factors such as voter error.

But rather than include the Thernstrom-Redenbaugh dissent in the report, as has been the case with every prior dissent since the commission was established in 1957, Berry refused to accept it -- and she did so on the basis of reasoning as sincere as an Elmer Gantry sermon.

Berry points to a statutory provision that prohibits the commission from using the services of voluntary or uncompensated experts. That bizarre restriction was written into law by racists in Congress to keep civil rights groups, such as the NAACP, from becoming too influential. Berry says that, because the Thernstrom-Redenbaugh dissent relied on the uncompensated work of John Lott, it was illegal.

Funny, that's not what she thought in 1988 when she signed a dissent to a commission report titled: The Economic Status of Americans of Asian Descent. Attached to Berry's dissent was a 13-page statistical critique by now-retired professor Amado Cabezas of the University of California at Berkeley, work that was apparently uncompensated by the commission. Cabezas now says he doesn't remember whether he was paid.

Neither Berry, the commission's staff director, Les Jin, nor Edward Hailes, its general counsel, returned my phone calls. A public relations firm that has been paid more than $130,000 by the commission to represent Berry did return the call, but couldn't answer any of my questions. I also received a faxed copy of a memorandum from Hailes' office, saying in effect that just because Berry may have violated the no-compensation law in the past doesn't mean future violations should be tolerated.

The dissenters make a convincing case that the legal restriction was never intended to apply to the work of individual commissioners but only to the commission itself. Otherwise, how could commissioners act as a check on the work of the staff and experts enlisted by the chairperson? "When the Commission's report is on an old and well-worn topic like busing or minority set-asides, commissioners in disagreement with the majority report can turn to existing scholarly literature," wrote Thernstrom and Redenbaugh in defense of their dissent's legality. "But that was not the case with respect to the Florida report, which posed questions (like ballot error rates) that scholars had never examined before."

This fight is clearly not over the technical legal point of uncompensated experts. Had Berry approved of the dissenters' views, she would not have dusted off this never-used and inapplicable statutory provision to thwart them. Yet, Congress wanted a diversity of opinions on the commission and prohibited any one political party from holding a majority of its seats (a provision Berry has helped the commission slip around by changing her party affiliation from Democrat to independent.)

Berry, an academic and former assistant secretary for education under President Carter, has been accused in the past of using her post in a dictatorial and repressive manner. In 1995, when I was the executive director of the American Civil Liberties Union of Florida, she used the commission's subpoena power to try to force the leaders of grass-roots anti-immigrant groups to turn over all internal documents discussing their groups' philosophy. A clear violation of the First Amendment. After the ACLU got involved, the commission backed off.

Berry also has a reputation for coming to issues with pre-set ideas. She is supposed to be chairing an impartial, fact-finding body, but her behavior at hearings often makes her appear to be a bulldog advocate for one side. When about a year ago, the commission was investigating the New York City police force and whether it was engaging in racial profiling, Berry rudely and repeatedly interrupted the testimony of Mayor Rudolph Giuliani, even as he displayed a chart showing the relatively low use of force by police in New York City compared with others. Yet, Berry had a very different persona when the Rev. Al Sharpton appeared. With him she was deferential and generous with praise. In a dissent to the commission's final report, commissioners charged that the majority offered "a one-sided portrayal of the NYPD . . . based not on evidence, but on conjecture (and) opinion."

If Berry is not going to be a fair arbiter, if she's not going to allow a full airing of controversial issues, then, sadly, the commission will have little legitimacy outside radical left-wing circles. It is ironic that, in Berry's house of civil rights, minority viewpoints are not welcome.

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