Deeply Partisan Federal Bureaucrats Selectively Enforce The Laws, Eliminating Equal Justice For All

James SherkMarch 30, 2022

“Woke” policies inspired by critical race theory (CRT) are now widespread in government and the private sector. New York state recently prioritized non-whites for access to scarce coronavirus antibodies. Vermont similarly prioritized minorities for Covid-19 vaccinations. At the same time, major corporations like Walmart and AT&T instruct white employees that “White people, you are the problem,” and that they should experience “guilt and shame” as part of their “anti-racist development.“

In theory, federal civil rights agencies should be stopping such abuses, as many CRT-inspired policies violate civil rights laws. CRT teaches that whites are racist and privileged oppressors and minorities are oppressed victims. To fix this oppression, CRT calls for “anti-racism” or “equity” — meaning racially discriminating against individuals to equalize racial group outcomes.

The Civil Rights Act broadly outlaws racial discrimination and harassment. Whether racist segregationists or woke activists discriminate does not matter. With narrow exceptions, the government and employers must treat Americans of all races equally.

Several state attorneys general have already issued opinions finding CRT-inspired policies illegal. And conservative litigators have enjoyed notable success suing over them.

Civil Service Overwhelmingly Leftist

But federal civil rights enforcement agencies have done little to combat “antiracist” discrimination. The civil service system lets unelected bureaucrats decide which laws get enforced. Career federal employees necessarily handle routine enforcement. These agencies’ employees are overwhelmingly left-wing ideologues.

For example, the Department of Justice (DOJ) inspector general found in 2013 that the resumes of all but one career employee hired in a component of DOJ’s Civil Rights Division indicated liberal political views. These left-wing career staff will not enforce laws they dislike — including at the DOJ Civil Rights Division, as I’ve documented.

DOJ discovered Yale University was heavily discriminating against Asian-American applicants. Ironically, Asian-Americans — who once experienced widespread racist discrimination — are often the biggest losers from modern “antiracist” discrimination. President Donald J. Trump’s political appointees looked at the evidence and sued Yale for discrimination.

Few Lawyers Step Up

The political appointees then asked Civil Rights Division career staff to help with the lawsuit. They flatly refused. The division has an entire section dedicated to combatting educational discrimination. Not one career lawyer would participate. Career staff knew that winning would undermine affirmative action programs in higher education — programs they supported. Political appointees ultimately had to borrow career employees from less ideological DOJ components like the U.S. Attorney’s Office in Connecticut to pursue the case.

Political appointees reported Civil Rights Division career staff typically approached their jobs this way — only working on cases they agreed with. For example, federal law says nurses cannot be forced to participate in abortions. The division’s career lawyers refused to enforce these conscience protections. And only one career lawyer would work on religious liberty cases arising in the Covid-19 pandemic.

Moreover, political appointees cannot simply fire intransigent employees. Civil service protections make removing career staff prohibitively difficult. Agency dismissal procedures typically take between 5 and 12 months, followed by appeals that can last years. Mass firings are not realistic. Absent major civil service reforms, federal civil rights agencies will remain filled with liberal career lawyers who effectively cannot be fired.

These career lawyers will not widely enforce protections against CRT-inspired discrimination or harassment. They embrace CRT. They do not want to combat “antiracist” discrimination.

Laws Unenforced

This means laws that career staff oppose can go largely unenforced. Less than 4,000 political appointees supervise 2.2 million federal career employees. There are not nearly enough political appointees to handle routine enforcement.

This is a real threat to democracy. Three-quarters of Americans believe employers and schools should not discriminate based on race — even to promote diversity. Critical race theory itself is widely unpopular. Voters’ representatives passed laws prohibiting all racial discrimination. But the career employees who enforce those laws embrace a vision of “antiracist” discrimination. So they selectively enforce civil rights protections for only some Americans. Their intransigence effectively cancels Americans’ ballots by blocking policies their elected officials voted for.

This was not the original vision for the civil service. The reformers who ended the spoils system recognized that removal protections would “seal up incompetency, negligence, [and] insubordination.” So they reformed hiring to prohibit patronage. But they deliberately kept removals at-will. They never dreamed of empowering career employees to set policy. Not until the 1960s did federal employees get general removal appeals.

To protect democracy, the civil service should return to at-will employment. As the selective enforcement of civil rights laws shows, elections matter little if bureaucrats decide which laws they enforce.

James Sherk is the Director of the Center for American Freedom at the America First Policy Institute. He previously served as a Special Assistant to the President in the Domestic Policy Council at the White House during the Donald J. Trump Administration.