Mr. Chairman and Members of the Committee:
I appreciate the invitation of this Committee to submit written testimony concerning the nomination of John Ashcroft to be Attorney General of the United States. I have been a civil rights lawyer for 45 years, beginning as a staff attorney for Thurgood Marshall at the NAACP Legal Defense and Education Fund in 1954 and later serving as General Counsel and then Staff Director at the U.S. Commission on Civil Rights in the 1960s.
While I currently serve as Vice Chair of the Leadership Conference on Civil Rights and Acting Chair of the Citizens= Commission on Civil Rights, my testimony today is solely on my own behalf. I am lead counsel for a class of African American parents and children in a major school case in St. Louis. I have served in that capacity for more than 20 years and for much of that time John Ashcroft was a lawyer and defendant in that case, first as Missouri State Attorney General and later as Governor.
I have thought seriously since Mr. Ashcroft=s nomination about whether his conduct in the St. Louis case was simply that of a lawyer vigorously defending the interests of the State or whether some of his actions went over the line of strong advocacy and reflect on his qualifications to serve as Attorney General of the United States. My conclusion is that the latter is the case. I believe that in his tenure as State Attorney General, Mr. Ashcroft used the court system to delay and obstruct the implementation of a desegregation settlement that was agreed to by all major parties except the State. In doing so, Mr. Ashcroft sought to prevent measures that were a major step toward racial reconciliation in an area where there had been much conflict, and to thwart a remedy that ultimately proved to be a very important vehicle for educational progress. Worse yet, Mr. Ashcroft sought to exploit fears and misconceptions about desegregation as a means of gaining higher political office, thereby deepening racial divisions in the St. Louis area. Taken together, I believe that these actions raise the most serious questions about whether Mr. Ashcroft is prepared to serve all the people as Attorney General and to enforce the civil rights laws fairly and impartially. I realize these are serious charges, but I am prepared to document them.
The Liddell Case C 1978-1984
The St. Louis school case (Liddell) began in the 1970s with a suit designed to desegregate the city schools. The federal courts ultimately found that both the State and the city school board were responsible for maintaining school segregation for many years following the Supreme Court's landmark decision in Brown v. Board of Education, 347 U.S.483 (1954), and that they acted in violation of the constitutional rights of the plaintiff school children. Liddell v. Missouri, 731 F.2d 1284, 1302-03 (8th Cir.) (en banc), cert. denied, 469 U.S. 816 (1984). Indeed, the District Court held that the State had previously “mandated school segregation” and that it “never took any effective steps to dismantle the dual system it had previously compelled.” Therefore, the court concluded that the State was a Aprimary constitutional wrongdoer with respect to the segregated conditions in the St. Louis schools.@ Liddell v. Board of Education, 491 F. Supp. 351, 357, 359-60, aff’d 667 F.2d 643 (8th cir.), cert. denied 454 U.S. 1081 (1981). As was his prerogative, Attorney General Ashcroft took appeals to the Eighth Circuit and the Supreme Court and lost.
Mr. Ashcroft’s opposition did not stop there. I became involved in the case in the fall of 1980 when I filed an amended complaint on behalf of the plaintiff class and the NAACP seeking to extend the relief to 22 suburban school districts in St. Louis County that had also contributed to segregation. The City Board of Education filed a similar amended complaint. In part, these complaints were a response to a suggestion by the Court of Appeals that the City Board and the State seek the cooperation of suburban districts to develop a voluntary, cooperative plan in which students could choose to transfer between districts to enhance desegregation. When the District Court entered this suggestion as an order to explore the possibilities of interdistrict cooperation, the City Board and the suburbs promptly began to discuss a voluntary plan. But Mr. Ashcroft immediately announced that he would appeal even the provision calling only for a planning process. Mr. Ashcroft asked the Court of Appeals to delay the order while the appeal was being heard. He lost in the Court of Appeals and unsuccessfully sought a stay in the Supreme Court. It was also reported in 1980 by a court-appointed expert that State education officials appeared prepared to help develop a voluntary plan but that they were Aforbidden to do anything@ because the Attorney General “was running the show” and it was “a legal issue.” (Deposition of court-appointed expert Gary Orfield at 128-134.) The St. Louis Post Dispatch concluded that Mr. Ashcroft=s actions Anearly wrecked A the initial city-suburban meeting efforts. (June 20, 1980.)
These tactics continued through 1981 with the State failing to comply with Court orders for the submission of plans and filing numerous motions for delay in the Court of Appeals. In March of 1981, the District judge issued a blistering order threatening to hold the state in contempt if it failed to submit a voluntary plan in 60 days. Citing the State's “continual delay and failure to comply,” the Court said that it could only conclude that “the state has, as a matter of deliberate policy, decided to defy the authority of this Court” St. Louis Post-Dispatch, March 5, 1981. These matters are discussed in more detail in Appendix 1 to my testimony, an account prepared by lawyers at People for the American Way and reviewed by me for accuracy.
Another incident that occurred in 1981 is also telling. In July 1981, the Court appointed Susan Uchitelle, an employee of the Missouri Department of Education, as interim director of the coordinating committee devising a voluntary plan. The State objected strenuously to Ms. Uchitelle=s appointment and filed formal objections with the Court on July 9, 1981, which were later rejected. Contemporaneously, the State sought to exercise pressure on Ms. Uchitelle to resign from this assignment. A contemporaneous log kept by Ms. Uchitelle reveals that a state education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job she would have to resign her state job and, if she did, that she “would never receive another appointment or job from them.” This is, in my judgment, evidence of a gross threat of retaliation by Mr. Ashcroft against a dedicated state employee who only sought to aid the Court and the parties in carrying out a voluntary remedial plan. (See Appendix 2 to my testimony.)
Fortunately, Ms. Uchitelle did not bow to these threats and continued to serve for many years as the coordinator of the voluntary plan, although the State continued to level criticism at her.
Late in 1982, the Court brought the parties together under the supervision of a court-appointed mediator to explore the possibilities of settlement. I believed that we had a strong case, with evidence that included proof that the State and suburban school districts had maintained segregation by busing black children living in suburban areas into the city to avoid desegregation of suburban schools. But my colleagues and I actively sought settlement, realizing the value of prompt relief and avoidance of many years of contentious litigation. The 22 suburban districts agreed on the value of a settlement as well, and many showed real courage in doing so because they faced the fears and opposition of many of their constituents. And so, after tough negotiations, we reached an agreement that allowed volunteering African American students from the city to enroll in any of the 22 districts until the black enrollment of the district reached 25% and volunteering white students in the 22 districts to enroll in city magnet schools. The agreement also provided for improvements in the educational program in the low performing city schools that would continue to remain racially isolated.
All of the parties agreed to the settlement except the State of Missouri. (Under the Reagan Administration, the Justice Department, which was an intervening party, took no position at that point although it was later persuaded by Mr. Ashcroft’s repeated visits to Washington to join in his appeal). The Assistant Attorney General who represented the State in the negotiations had taken a positive approach but Mr. Ashcroft=s decision was to oppose the settlement. Mr. Ashcroft opposed all aspects of the settlement in the District Court and then appealed the decision to the Court of Appeals which, sitting en banc, rejected his positions almost in their entirety. Liddell, supra, 731 F.2d 1294. Then, in 1984 he unsuccessfully sought review in the Supreme Court. It is important to note, that Mr. Ashcroft opposed not only desegregation but the portions of the agreement calling for improvements in black schools, consistent with the Supreme Court’s unanimous decision in Milliken v. Bradley, 433 U.S. 267 (1978). In an undated press release, issued at the time he was petitioning the Supreme Court, Ashcroft said “the requirements for widespread improvements throughout the city school system... are simply a shopping list compiled by the plaintiffs and the City Board.”
Even after his appeals had been rejected. Mr. Ashcroft continued to obstruct implementation of the settlement. His tactics led the District judge to conclude at the end of 1984:
AIf it were not for the State of Missouri and its feckless appeals, perhaps none of us would be here at this time. Further litigation to compel the State to meet its responsibilities was unquestionably necessary. The compromise settlement was made possible through the cooperation of all parties but the State, which, through opposition and repeated appeals, has delayed implementation of a remedial plan designed to remove the last remaining vestiges of school segregation for which the State, through its Constitution and statutes, remains responsible. It has continued to litigate what the other parties sought to settle, thereby increasing litigation costs for which it now seeks to avoid responsibility.@ Order H(3550) at 17, 25. December 28,1984. Relevant portions of the Order are attached as Exhibit 3 to my testimony.
This, as previously indicated, was hardly the first time the Court found it necessary to rebuke the State and its Attorney General. Earlier the Court had found that Athe State has, as a matter of deliberate policy, decided to defy the authority of [this] Court” and that the State had resorted to Aextraordinary machinations” in an effort to resist dismantling the dual system. Order H(11) 81 at 6.
The 1984 Gubernatorial Campaign
In 1984, as he was fighting the voluntary settlement tooth and nail in the courts, Mr. Ashcroft was running in the Republican primary for governor. He was pitted against Gene McNary, the County Executive of St. Louis County, who was also an adamant opponent of desegregation. Toward the end of a close campaign in which the candidates sought to outdo each other in their opposition to desegregation, Mr. Ashcroft ran a television ad, dubbed the McFlip-Flop commercial, in which he accused McNary of being soft on desegregation for having said some time earlier that he would not object to the desegregation plan if all of the suburban school districts accepted it.
That commercial was Agiven a major part of the credit for Mr. Ashcroft=s convincing victory." St. Louis Post-Dispatch, August 12, 1984, p.1B. Whatever its effectiveness, the ad and other statements by Mr. Ashcroft were calculated to inflame the passions of people who feared or resisted desegregation. In the words of the St. Louis Post Dispatch, Mr. Ashcroft and his opponent were Aexploiting and encouraging the worst racist sentiments that exist in the state.@ March 11, 1984. See also Exhibit 1. In his December 28, 1984 Order Judge Hungate, responding to State charges about the work of one group of plaintiffs, said “with equal validity, one might argue that counsel for the State voluntarily rode Liddell=s bus to political prominence.” H(3554) 84 at 16.
Liddell: 1985-1992
In the years that John Ashcroft served as governor, the State continued its slash and burn tactics in court. In 1989 and 1990, Judge Steven Limbaugh, who had succeeded Judge Hungate and who ordinarily was very mild in his manner and language, was moved to make the following statements:
“It appears to this Court that the extremely antagonistic nature of recent filings indicates that the counsel for the State is ignoring the real objectives of this case C a better education for city students, to personally embark on a litigious pursuit of righteousness.” Order L (3039) 90 at 3.
The State=s litigation tactics were only serving Ato waste the Court=s time and taxpayers= money." Id. at 4.
The State had resorted to Afactual inaccuracies, statistical distortions and insipid remarks regarding the Court=s handling of this case.@ Order L (2311) 89 at 2.
Judge Limbaugh warned the State to “desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing.” He added that the State in recent years has even resorted to Aveiled threats@ towards the Court in its effort to thwart implementation of the remedy. Id. at 3-4.
I, of course, have no way of knowing the extent of Mr. Ashcroft=s personal participation in the actions that roused the Court=s ire. I do know that they represented a continuation of his policies as Attorney General and that he did nothing to repudiate them as Governor.
In 1995, Governor Mel Carnahan who was then the most prominent defendant in the case, offered this comment on the history of the litigation:
“The reason Missouri has been unsuccessful in ending the desegregation cases is that the State has never made a credible attempt to address the concerns of the Federal courts. The state has always forcefully and consistently objected to Plaintiffs= demands. However, it has not offered potential solutions to the desegregation problem...” St. Louis Post Dispatch, March 26, 1995 at 3B.
Liddell: The Aftermath
In 1991, the State began filing a series of motions seeking a declaration of unitary status and a cessation of its financial obligations. That issue came to trial in 1996. At the trial it became clear that many of the aspects of the remedy had been very successful. For example, it was revealed that African American students (the great majority of them poor) who attended schools in the suburban districts graduated high school and went on to college at rates far in excess of students in St. Louis who had very high dropout rates, and also in excess of African American students in urban districts around the nation In addition, the State=s own expert, David Armor, praised the academic progress that had been made in city magnet schools.
After the trial Judge George Gunn appointed William Danforth, recently retired chancellor of Washington University in St. Louis to be settlement coordinator. Dr. Danforth, who had done his own investigation of the effectiveness of the remedy, concluded that the best solution would be to find a way to continue the remedy by replacing court-ordered funds with a legislative appropriation, thus enabling the court to withdraw from active supervision of the case. I worked with Dr. Danforth to lobby the Missouri legislature, and with Governor Carnahan=s active assistance, we were able to secure bipartisan action by the legislature to appropriate funds sufficient for the remedy to continue into the indefinite future. This time, the Attorney General agreed to a new settlement based on the legislature's action. In 1999, the citizens of St. Louis did their part by agreeing to a tax increase to help finance the settlement. A majority of voters in every ward, black and white, voted for the increase.
The actions of the State legislature and the citizens of St. Louis are quite remarkable, perhaps as remarkable as the 1983 settlement agreement.
When one looks back on the twenty-year history of the case , it becomes apparent that this was not a partisan matter. Many Republicans as well as Democrats understood the wrong that had to be righted and the need to find ways to provide equal educational opportunity for African American students. Dr. William Danforth made a great contribution and former Senator John Danforth supported the settlement at various stages of the litigation. Judge Steven Limbaugh and Judge George Gunn, both Republican appointees of President Reagan, moved the remedy forward in the face of continuing opposition from the State. In contrast, John Ashcroft fought every aspect of the remedy in the ways I have described and never offered to the courts any alternative program to advance educational progress and improve race relations. Nor in the years he has been senator, has Mr. Ashcroft ever publicly reconsidered his positions or offered any support to the widely acclaimed 1999 agreement.
Conclusion
After reviewing the actions of John Ashcroft in the St. Louis case, I have concluded that they are strongly reminiscent of the actions of public officials during the era of massive resistance in the 1950s and 60s in the South. That is a period I witnessed as a civil rights lawyer and later as General Counsel and Staff Director of the U.S. Civil Rights Commission and most officials North and South now agree that it was a shameful period in American history. In some ways I think that the actions of John Ashcroft in massively resisting a remedy in the St. Louis case and using race issues for political advantage were worse. By 1980, there could be no credible claim that school desegregation was the product of imperial federal courts. The Civil Rights Act of 1964 had made equal opportunity and desegregation national policy and the era of obstruction and resistance had largely passed.
Nor, as I have mentioned, has John Ashcroft ever by word or deed provided any evidence that his views about these matters of equal opportunity have changed. To the contrary, in his recent embrace of racially extremist groups there is evidence of the continuity of his views.
Mr. Chairman I state the obvious when I say that it is not easy for me or for members of the Senate to seek action that will thwart the hopes and ambitions of a person for high office. But that is a necessary product of our constitutional system of Aadvise and consent.@
During my long career in civil rights I have been privileged to witness a great deal of progress in the status of African Americans and other historically discriminated-against people. Unfortunately, however there are constant reminders that race is still the problem that plagues the American conscience. Decisions about how and whether we will address continuing problems of discrimination are made in many ways – including the nomination of people to the offices charged with making civil rights policy and enforcing civil rights laws. Today, the rights of millions of Americans to be free of hate crimes, not to be racially profiled, to better educational opportunity, to housing choice, and to equal opportunity in the workplace are at stake. Given his extensive record, there is no basis for believing that these rights would be effectively protected during his tenure as Attorney General. I do not think that confirmation-day conversions or pledges to enforce the law can counter the long history of opposition to civil rights that has been documented. I fear that installation of John Ashcroft as Attorney General would send a message of racial divisiveness throughout the nation, would jeopardize the rights of citizens and would set us back years in our continuing quest for equality of opportunity for all.
William L. Taylor, Esq.