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June 2012
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Racism required that EEOC receive strong hand, but abuses can occur



President Obama and others have called for a conversation on race in America. Here is a thought.

If you are an American, the place to begin a discussion about race is to clearly acknowledge how bad the American version of racism was and why. The short answer is slavery and the fact that it was based almost entirely on race. It took almost a century and a civil war for the new nation to eliminate slavery itself. Then another century of apartheid before we even began the job of removing that very strong American racism. To succeed in that endeavor would also take very strong measures.

How strong would the measures have to be? Well, our rights and privileges as Americans are among the things that we hold most dear. We guard them jealously. However, by the sixties we were so committed to eliminating racism that we gave up some of those rights by separating the battle against racism from the criminal justice system when we created the EEOC.

Consequently, although an accusation of racism within an institution is at least as serious as many crimes, the accused does not have many of those basic rights that are part of the criminal procedures specified in the Constitution. This is so that a victim of racism can be heard even against an entire institution. A formal complaint that brings the entire process into motion can be made by a single individual. That is one edge of that sword. There is no preliminary review by an expert (a parallel of an indictment by a grand jury) to determine if the evidence meets even a modicum of credibility. The process is conducted in secret by someone who chooses whom to call to testify and whom to leave out. The invitation to testify may go to far more adversaries than friends of the accused. Negative evidence may be presented against the accused by someone who had a disagreement with him at any time in the past. The accused will receive a copy of and be allowed to respond to the original complaint. However, there is no right to confront witnesses (or even the accuser), there is no right to cross examine witnesses (or even the accuser), and there is no right to call witnesses in his defense. The structure also forbids any retaliation against someone who makes a claim. Because our racism has been so powerful, I think the inclusion of each of these provisions is at least arguably justified. Why do I list them here? Because they are part of the evidence of how committed our country became 50 years ago to ridding ourselves of the scourge of racism. A measure of the success of this program is the fact that being labeled a racist is now one of the worst things that can happen to a person in this society.

I believe that in the overwhelming majority of racism cases, the accuser has some basis for his belief. In what follows I am not talking about that person, even if his claim was rejected because there was not quite sufficient evidence for his belief. I am talking about the person who, with no evidence at all, exploits the structure that was built to protect him from racism and turns that structure into a political weapon.

The process is there for a lofty purpose, but it can be abused. The other edge of that sword is that a formal complaint - charging racism - which brings the entire process into motion can be made on the whim of a single individual. A malicious person can use the structure to attack someone he considers to be an enemy. A paranoid person could use the structure to go after someone he thought looked at him wrong one day. But the possibility of abuse doesn't require an assumption of malice or paranoia on the part of the accuser. Perhaps X and Y had a disagreement and Y is mad at X and Y can't tell the difference between someone who disagrees with him and someone who is a racist. Y can take a few hours and throw together a complaint that can cause his target substantial amounts of agony, lost work time and expense. Suppose the Equal Opportunity Officer determines that, in each and every one of the accuser's claims, there is no basis for a charge of racism? What happens then? Nothing. No matter how frivolous the claims, no matter how mean the motives, one can file the complaint and do it in full confidence that when the process is over, no one will call him to account. The structure does not include consequences for filing false charges. The filer has a license to smear. Surely there is a modification of this system that would maintain the basic protections needed for minorities and give the EEOC officer the authority to deal with inappropriate attacks. Perhaps his options should include a "summary dismissal"analogous to a judge's dismissal of a frivolous lawsuit. That option could be of great value to the country itself because it is not just the target that suffers. Frivolous complaints weaken the public's confidence in the EEOC and its procedures and undermine our nation's vital struggle to put racism behind us.

Wayne C. Bell is Murray State University professor emeritus of mathematics, 1976-2008.

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