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Incivility at the Commission on Civil Rights

There she goes again: Mary Berry is up to her old tricks.

11:00 PM, Nov 21, 2002 • By BETH HENARY
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EARLIER THIS WEEK, four commissioners of the United States Commission on Civil Rights vehemently objected to a draft of a report made public by their own agency. The commissioners, Abigail Thernstrom, Jennifer Braceras, Peter Kirsanow, and Russell Redenbaugh, said they were not consulted in the writing process and that they disagreed with the report's findings. The document, "Beyond Percentage Plans: The Challenge of Equal Opportunity in Higher Education," was produced by commission staff and is available at

On Monday, a Supreme Court ruling forced commission chairwoman Mary Frances Berry to seat Bush appointee Kirsanow. Kirsanow, a conservative, was nominated to replace a Clinton appointee serving an abbreviated term. So now the commission is deadlocked 4-4 between liberals and Republicans (Berry considers herself independent). Though this ideological split would appear to hamper Berry's race-baiting agenda, she has organized the office to be able to continue the fight. Berry has made a practice of relying on her appointed staff to perform commission functions, such as publishing reports, and she works to restrict other commissioners from contacting the staff, thereby preserving her fiefdom.

In a memo sent to The Daily Standard, commissioner Abigail Thernstrom wrote for the other three commissioners that "we had no idea the staff was working on the topic; it was written without input from us; it went up on the Commission website before we received copies; the Commission is not voting on the report and we are barred from writing a dissent."

Berry's ideological opponents on the commission accuse her of expanding staff power at the expense of commissioners' authority. On July 10, 2001, commissioners received a memo from the staff director stating that "it is neither envisioned nor proper for individual commissioners to research or write reports," despite the fact that appointees are selected because of their expertise in civil rights.

Coming from Mary Berry's U.S. Commission on Civil Rights, this fiasco is unsurprising. Berry, a Carter appointee who was promoted to the chairmanship by Bill Clinton, had the commission declare that former Florida secretary of state Katherine Harris kept African Americans from voting in the 2000 election (despite Thernstrom and Redenbaugh's objections). And as David Tell reported in the pages of The Weekly Standard, she told White House counsel Al Gonzales it would take armed federal marshals to remove the commissioner Kirsanow was replacing.

The commissioners who are dissenting publicly (though they are unable to respond officially) are all Republicans. President George W. Bush appointed Braceras and Kirsanow in 2001, and Thernstrom and Redenbaugh are congressional appointees. Sources confirm that the report did indeed appear on the commission's website November 14, the day before a scheduled commission meeting. And a cover letter that accompanied drafts sent to commissioners earlier in the month stated that the staff was not asking for commission approval. Thernstrom and company insist that though the draft report was not from the commissioners, their names are associated with any work done in the name of the agency.

The report, "Beyond Percentage Plans," examines public college admissions in Texas, California, and Florida, where affirmative action has been disallowed--through court order, referendum, and executive order, respectively. Each of these states has replaced affirmative action with a plan that allows a given percentage of top high school graduates automatic admission to a state university (specific rules vary from state to state).

The report's pro-affirmative action agenda is clear: After demonstrating that minority representation at some of these states' best state universities has declined slightly, it concludes, "Percentage plans will only have a positive effect if affirmative action and other supplemental recruitment, admissions, and academic support programs remain in place." It goes on to discourage the use of traditional aptitude tests like the SAT and expresses support for more "holistic" approaches to evaluation.

The draft report is also riddled with misrepresentations of fact. The fact that Asians, who are overrepresented on many of the best campuses, are minorities who contribute to campus diversity is downplayed. Perhaps more seriously, the report asserts that the Supreme Court in the 1978 Bakke decision "buttressed affirmative action in admissions policies by establishing that race could be one factor considered in admissions decisions for the purpose of promoting diversity," although only one justice held this position.