Background: In 1957, Congress created the U.S. Commission on Civil Rights (the Commission). An independent, ostensibly bipartisan federal agency, the Commission investigates and reports on allegations of discrimination against protected groups, recommends enforcement policies and proposes new laws to vindicate civil rights, and advocates for means to improve, in its view, the enforcement of federal civil rights laws.

To this end, Congress mandated that the Commission establish Advisory Committees in every state and the District of Columbia. Serving as the Commission’s “eyes and ears on the ground,” the Advisory Committees investigate, analyze, and then advise the Commission on civil rights matters within their states. Topics have included voting rights, education funding, criminal justice issues, and police practices. By vote, a majority of the Advisory Committee selects a purported civil rights inquiry within their state, and then holds fact-finding hearings, receives testimony, debates the evidence—or lack thereof—and issues a final report to the Commission. The report is also distributed to state and local policymakers, the media, and the public with the aim of influencing civil rights policies and law in the Advisory Committee’s jurisdiction.

The Commission appoints members of the public to serve on the Advisory Committee for a term of four years. While it seeks members from a broad cross-section of backgrounds, the Commission prefers individuals with a demonstrated interest in civil rights law and policy. The New York Advisory Committee has been described by Commission staff as “very active,” in part because of the intensity of disagreement among the Advisory Committee’s majority and the handful of dissident members, who privilege the Constitution, the Declaration of Independence, and America’s colorblind principles over the progressive ideological views that appear to have captured most of the Advisory Committee’s membership.

 

The Report: In March of 2022, the New York Advisory Committee to the U.S. Commission on Civil Rights released its report, “Racial Discrimination and Eviction Policies and Enforcement in New York,” following an investigation that comprised taking the testimony of evicted tenants, academics, advocates, lawyers, and policymakers. Based upon this largely one-sided testimony, a majority of the Advisory Committee concluded that evictions in New York disproportionately affected minorities and, to the exclusion of other credible explanatory factors, attributed that disparity to systemic racism, poor housing conditions, redlining decades past, and even racial segregation in the Jim Crow South. To address these perceived harms, the report calls for, among other items, identifying housing as a “human right,” enforcing fair housing laws through racial equity analysis, making eviction proceedings even more costly for landlords, establishing a right to counsel for tenants in housing court, and abolishing crime-free ordinances that allow landlords to evict tenants who commit crimes.

Appointed in June 2020, Craig Trainor is a member of the New York Advisory Committee. He objected to the report in its entirety because, in his view, it is ideologically biased, lacking evidentiary support for its sweeping conclusions and unreasonable proposals, and is largely informed by identarian interests that stand in direct conflict with the colorblind Constitution, its principles, and the American Founding. Indeed, he voted that the Committee not release the report at all. Having lost that vote, he authored a dissenting opinion to share his view of the report’s shortcomings, as well as the philosophical and moral corruption in today’s civil rights discourse and activism:

As Justice Antonin Scalia explained in the context of judicial opinions, what is important is “the reasons they give, not the results they announce,” because “[a]n opinion that gets the reasons wrong gets everything wrong, and that is worth a dissent.” In my view, the Committee’s report is premised upon a progressive ideology far removed from the what the architects of the civil rights movement intended and what the Constitution tolerates.

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[T]he moral, legal, and political rationale behind the colorblind Constitution remains as relevant and necessary today as when Justice Harlan first promulgated it, particularly as we witness a deeply divided America at war with itself over profoundly divisive and needlessly provocative political experiments, such as the 1619 Project, equity over equality, legitimizing racially fueled rioting, and the toxic pedagogy of critical race theory. To double down, as the report does, on the racializing of yet another major facet of American life is at once misguided and reckless and will contribute to the hardening of regressive racial attitudes that were mainstreamed in the aftermath of the tragic death of George Floyd on May 25, 2020. I cannot be complicit in such an enterprise.

Read the full dissent beginning at page 190 of the report.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at info@fedsoc.org.