U.S. Commission on Civil Rights

Who Is Enforcing Civil Rights in Arkansas: Is There a Need for a State Civil Rights Agency?

Chapter 2

Review of the Arkansas Civil Rights Act of 1993

According to an article in the Arkansas Law Review and Bar Association Journal, Inc., the Arkansas Legislature, after almost 30 years of avoiding issues that the rest of the country had already addressed, enacted its first modern civil rights act.[1] The law covered discrimination based on race, religion, national origin, gender, and disability.[2]

The Arkansas Civil Rights Act of 1993 states in part:

(a) The right of an otherwise qualified person to be free from discrimination because of race, religion, ancestry or national origin, gender, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:

1.  The right to obtain and hold employment without discrimination;

2. The right to the full enjoyment of any of the accommodations, advantages, facilities, or privileges or any place of public resort, accommodation, assemblage, or amusement;

3. The right to engage in property transactions without discrimination;

4. The right to engage in credit and other contractual transactions without discrimination; and

5. The right to vote and participate fully in the political process.

(b) Any person who is injured by an intentional act of discrimination in violation of subdivisions (a)(2) (5) of this section shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover compensatory and punitive damages, and, in the discretion of the court, to recover the cost of litigation and reasonable attorneys fees. . . . The opportunity to obtain housing and other real estate without discrimination because of religion, race, color, national origin, sex, disability, or familial status, as prohibited by this chapter, is recognized and declared to be a civil right. . . .[3]

During the 1995 legislative session, a new section covering housing discrimination was added to the law.[4] Yet, five years after the statute was enacted, litigants have filed very few cases under the new law. However, it does not mean that it is always preferable to file under state law because the state act also leaves several significant areas uncovered.[5]

The Arkansas Civil Rights Act of 1993 provides some civil rights protections, but the law is not substantially equivalent to federal civil rights laws, and procedures, remedies, and judicial review of actions are not equivalent to those under federal guidelines.[6] Major areas of civil rights protections not covered include age discrimination in employment and housing. The act also lacks an enforcement mechanism.[7]

According to officials of the U.S. Equal Employment Opportunity Commission (EEOC), Little Rock Area Office, the Arkansas Act does not conform to the age discrimination under EEOC's jurisdiction because it does not prohibit age discrimination.[8] The Arkansas Act that defines disability does not cover alcoholism. The act exempts religious entities from the employment aspects of the law, and the section of the Arkansas law that defines employee does not conform to EEOC s standards because it excludes individuals employed by their parents, spouses, or children, and individuals employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.[9]

The U.S. Department of Housing and Urban Development (HUD) administers federal housing programs. HUD's Office of Fair Housing and Equal Opportunity administers fair housing laws and regulations prohibiting discrimination in public and private housing and in HUD-assisted housing and community development programs on the basis of race, color, religion, sex, national origin, handicap, or familial status. The governing law is the Civil Rights Act of 1968, as amended by the Fair Housing Amendments of 1988. The Arkansas Act also does not meet the requirements set forth under the laws and regulations enforced by HUD prohibiting age discrimination in housing, and it fails to have an enforcement mechanism.[10]

According to Judge Wendell L. Griffen of the Arkansas Court of Appeals, the Arkansas Act is not enforced by any state agency with civil rights responsibilities.[11]

Claude Rogers said effective civil rights legislation should at a minimum do the following:

• provide rights and remedies substantially equivalent to federal guidelines such as prohibiting discrimination based on race or color, national origin, religion, sex, disability, age, marital status, and familial status;

• prohibit discrimination in the areas of employment, housing, and public accommodations;

• provide enforcement powers and judicial review of the agency's actions;

• provide outreach and education services to the general public;

• provide specific authority to localities to investigate and enforce civil rights protection locally; and allow state agencies to accept grants and enter into cooperative agreements with other state, local, and federal agencies.[12]

Mr. Rogers said some states have been progressive in their lawmaking by including discriminatory practices based on income, height and weight, and sexual orientation.[13]

In its review of the Arkansas Civil Rights Act, concerns were expressed to the Advisory Committee that the act is not substantially equivalent to federal laws. The Committee also heard of other areas of concern that limited aggrieved citizens ability to pursue their rights, such as costs for legal counsel, which adversely affect low-income persons, and the lack of available attorneys who will accept civil rights cases.[14]

Summary of Views Regarding an Arkansas Civil Rights Enforcement Agency

Most persons interviewed and participants who spoke or submitted written information for the fact-finding meeting either supported state civil rights legislation and a state enforcement agency or opposed them. There was not much gray area on this point.[15] Some agreed, however, that based on the current political climate, attempts to increase civil rights protections in Arkansas most likely would be unsuccessful. This is evident by the defeat of comprehensive state hate crime laws proposed in 1999 by the Legislature and the defeat of other efforts to safeguard the human rights of citizens. For example, state employers came together and effectively weakened workers compensation laws; the state failed to establish landlord and tenant rights laws; an administrative law judge was removed because her rulings appeared to be favorable toward plaintiffs interests; a law creating the Arkansas Women's Commission was repealed, which would have helped improve the education and economic status of women; a bill failed to pass the Legislature that would have repealed part of a law that allows the state to check for citizenship before issuing a driver's license, thereby potentially subjecting immigrants with noticeable accents or Spanish-sounding names to discriminatory treatment; and the city of Little Rock failed to get state legislation passed allowing local municipalities the authority to adopt their own fair housing ordinances.[16]

Although Governor Mike Huckabee has publicly renounced the practice of discrimination and said his administration is inclusive, a number of persons and representatives of organizations such as ACORN, the state NAACP, and Catholic Immigration Services believe the current administration has been generally inactive and dispassionate on civil rights issues.[17] They cited the controversy surrounding the upheaval at the state's Youth Services Department that raised allegations of racial discrimination in the firing of black administrators, the confrontation between ACORN and the governor at the Arkansas Civil Rights Conference in April 1998, and the lack of accessible state properties for mobility-impaired persons.[18]

In the minds of some community representatives, the administration has not gone beyond the acknowledgment that civil rights problems exist, and it has failed to implement the changes needed. The questions then become, What has the administration done to make its vision of civil rights a reality? What are the different views and pros and cons of establishing substantially equivalent civil rights legislation and a state human rights agency?

Joe Franklin, who spoke on behalf of the governor, stated:

Last September Governor Mike Huckabee, along with President Clinton and Little Rock Mayor Jim Daly, participated in the 40th anniversary of the integration of Little Rock Central High School. That day the three of them symbolically held open the doors for nine African American students who had been shut out of that school 40 years earlier. Governor Huckabee said in his speech that day: Essentially, it is not just a skin problem; it is a sin problem, because we in Arkansas have wandered around in ambiguity with all kinds of explanations and justifications. I think today we come to say once and for all that what happened 40 years ago was simply wrong. It was evil, and we renounce it. [19]

Phillip Kaplan, Kaplan, Brewer & Maxey

Phillip Kaplan, an attorney with the law firm Kaplan, Brewer & Maxey, P.A., has served as legal counsel for plaintiffs in civil rights cases. He strongly opposes expanding current legislation to enforce the state's civil rights laws.[20] According to Mr. Kaplan, in those states with deferral agencies to the EEOC, there has always been a coalition of political forces that enabled such legislation to pass. He said this environment does not exist in Arkansas. Usually there is a large labor constituency or women's groups that have been able to mobilize and garner the legislative impetus needed to pass civil rights legislation. He believes there is enough legislation on the books to adequately address civil and human rights issues. He contended that more legislation will only arouse hostility. Moreover, with the exception of employment discrimination, he said, there are very few housing or public accommodations discrimination complaints filed in Arkansas.[21] He told the Advisory Committee: 

There are very few lawsuits filed. Most of these things are either mediated or handled at an administrative level at HUD. . . . The same is true with public accommodations. For example, we know that Sears is not treating somebody who is a customer badly on account of race, sexual preference, or gender. That kind of thing with major department stores just doesn t happen.[22]

Mr. Kaplan said that there are other legal and technical factors involved in proving discrimination cases and that plaintiffs would be best served by using federal civil rights laws rather than state laws. He noted that a plaintiff's burden of proof in employment cases is rigorous. Therefore, attorneys are exceedingly selective about the employment civil rights cases they will handle; and some do not take them at all. Relatively few cases are decided for the plaintiff at trial.[23] Moreover, Mr. Kaplan observed that bringing a claim of discrimination at the state level provides no legal advantage or relevant precedent because state judges look to federal law for guidance on civil rights cases.[24] Instead of new legislation, Mr. Kaplan said:

My feeling is, quite frankly, there's enough law now. The Arkansas civil rights statute, while it is not self-effectuating, is a very broad and comprehensive statute. And if only it were universally loved and adopted, it would make a difference, but I think that there are many places where it could be, I suppose, more effectively enforced and where education might make a difference, where having some discussion in the nature of dialogue on race, that the President has tried to develop, might have some considerable impact. I just don't think that additional legislation is going to have that much impact, because the laws as they exist now are sufficient, if enforced, or if adopted in one's heart.

Litigating these things isn't ultimately going to be whatever is going to bring about the change. You can't have enough lawsuits to change what is in people s hearts. You just have to change their minds and hearts in order to change the way they react toward people that are different from them, and we ve come a long way.[25]

James W. Moore, Friday, Eldridge & Clark

James W. Moore, an attorney in Little Rock, exclusively represents employers in their defense against employment discrimination charges. He serves on the board of directors of the Arkansas State Chamber of Commerce and the United States Chamber of Commerce.[26] He opposes legislation for a state civil rights enforcement agency. A state agency, he said, would be just another unnecessary layer of bureaucracy added to existing federal and state enforcement procedures that are available to persons alleging discrimination.[27] Mr. Moore said if legal costs are a concern, plaintiffs may also file an employment discrimination complaint in federal court for a state cause of action based on the Arkansas Act without delay.[28] Mr. Moore summed up the Arkansas Chamber of Commerce's position:

In our view we do not feel that there is such a need. The Arkansas business community, which is comprised mostly of employers of less than 100 employees, believes that we do not need another civil rights enforcement authority to protect the employees from workplace discrimination.

Now, let me point out that such a state agency would be in addition to the existing employee rights law enforcement authority of the EEOC, which we all know, the OFCCP, the NLRB, OSHA, HUD, the U.S. Department of Justice, the U.S. Department of Labor, the Arkansas Civil Rights Act of 1993, the Arkansas Department of Labor, and a very skilled and sizable aggressive Civil Rights Bar, which represents plaintiffs here in Arkansas, which is a relatively small state from a population standpoint. . . .

More agencies to complain to simply means more litigation, and more litigation creates the need for more attorneys and more litigation expense. While lawyers have prospered over the last 30 years with the expansion of civil rights legislation, this is hardly a rationale for another agency in an area of law which is already saturated with legislation and regulatory agencies.[29]

Mr. Moore believes outreach and educational programs for employers are the best approaches to preventing and reducing discrimination in the workplace.[30]

Bill Lewellen, State Senator, Mariana, Arkansas

Senator Bill Lewellen has been on the forefront calling for statewide civil rights legislation. He provided significant leadership in moving Arkansas civil rights legislation to its passage in 1993.[31] The governor's Task Force on Civil Rights, formed in 1991 by then-Governor Bill Clinton, was sponsored in the Senate by Senator Lewellen.[32] He described the political climate of the early 1990s as being one in which most Arkansans did not believe it was necessary to have a state civil rights bill.[33] He said a law was passed mainly for appearance only when state officials found out Arkansas was one of several states without a statewide civil rights law. According to Senator Lewellen, the Legislature's intent was to get a civil rights law passed, but one that was not enforceable.[34]

Consequently, a law was passed that was not substantially equivalent to federal antidiscrimination laws and had many limitations in rights, remedies, and guarantees that should have been covered. Senator Lewellen said because of these limitations, it is still better to go to the federal courts than file under state law. The limitations in the monetary remedies in all employment discrimination cases even under federal law are one of the reasons many attorneys will not take on these cases. He said if an attorney represents a person who is unable to pay attorney's fees, the maximum amount of reimbursement by the state is not enough to cover legal fees.[35]

Senator Lewellen also complained about state officials and the media's failure to adequately inform the public about Arkansas civil rights laws. He said:

The overall intent was never to have a civil rights bill that was going to be enforceable or usable in this state, and I think as you can see from the result of it, and when you hear people talk about how often they use the civil rights bill in court, or how often it's brought up or what you see, generally when you pass legislation that you hear Ms. Simmons say when they do things, they've got brochures going out, they've got pamphlets out, they've got things noticed in county offices and what have you.

Many times we pass legislation that we're proud of and we pass out brochures. We send things out. We do public service announcements, etc. No such occurrences have occurred to notify the public that Arkansas even has a civil rights bill. So at this point probably 99 percent of the citizens of this state are still not aware that the civil rights bill was ever passed or what the laws are in regard to it.[36]

Senator Lewellen stressed that efforts must continue to get an effective statewide civil rights law that has all the rights, remedies, and guarantees that citizens of other states have. He contended that without enforcement there will never be compliance. Reconciliation will not work, he said, because if there is no fear or incentives to comply, people will continue to discriminate. Senator Lewellen believes a state enforcement agency could do a better job of investigating than the EEOC.[37] He further pointed out:

Because poor people do not have the resources to prove discrimination and are the most vulnerable, they should also have a place in Arkansas where they can go to help enforce their rights.[38]

Senator Lewellen also noted that if a human rights agency is established, it should be autonomous and independent from political influence, and provided appropriate resources.[39]

Dan Pless, Director, Arkansas Fair Housing Council

Dan Pless is the director of one of only two local agencies in the state to receive federal grants to investigate complaints of housing discrimination.[40] With the exception of the central cities of Little Rock, Pine Bluff, and areas in Lake Village, his agency, the Arkansas Fair Housing Council, investigates complaints in all areas of the state, with only four investigators. The council s funding comes from HUD and the U.S. Departments of Justice and Agriculture.[41]

Mr. Pless told the Advisory Committee that during the years 1996 97, the council investigated 63 housing complaints. In 1997 98, the council investigated 111 complaints. For these years, 134 (77 percent) of the complaints were based on race and national origin; 17 (8 percent) were based on disability status; 14 (8.1 percent) on family status; and six (3.4 percent) were unsubstantiated.[42]

In previous years, the council provided educational programs and outreach activities through the Fair Housing Initiatives Program, but it had to discontinue these services because of its heavy caseload.[43]

Mr. Pless said that the council does not even begin to scratch the surface of what is needed to adequately assist citizens in seeking redress for their housing complaints. He said:

My belief is that there's a serious fair housing problem in Arkansas, and that there's a tremendous amount of discrimination against people for all of the reasons in the protected classes. We have the rather odd distinction of being one of the few fair housing councils that has had occasion to file complaints on religious discrimination, which is fairly rare in the world anymore and it's rare for the Arkansas Fair Housing Council but we still get complaints about people who are being discriminated against because of their religion.

We're seeing a tremendous amount of complaints in northwest Arkansas and in western Arkansas because of the increase in the number of Hispanics. Western Arkansas, northwestern Arkansas, traditionally have been predominantly white areas of the state. And they didn't particularly adjust well to having African Americans there, and they're doing even less well with adjusting to having Hispanics in the area.[44]

Mr. Pless told the Advisory Committee he supports efforts to establish a state civil rights enforcement agency. However, he noted that political forces are quite strong in opposing such an agency. Mr. Pless said that if an agency is created, its level of effectiveness would depend upon its level of independence.[45]

Jamie Jamison, director, U.S. Department of Housing and Urban Development, Southwest Office of Fair Housing and Equal Opportunity

According to information provided by HUD, as of September 1998, the Southwest office had 183 open investigations. Of these, 70 percent were considered to be over age. There is a continuous backlog of over-age cases due to shortage of resources, agency reorganization, and an introduction of new technology that requires staff retraining.[46]

From 1996 to August 1998 HUD accepted 188 complaints from Arkansas, with the bulk coming from Pulaski County (59), Calhoun (31), Washington (10), Garland (9), and Jefferson (9).[47] The types of complaints received most often concerned discrimination based on race or disability; and familial status involving discriminatory terms, conditions, services, privileges and/or facilities related to the sale of residential property or rental property. Of the 188 complaints filed, 79 (42 percent) were on the basis of race.[48]

HUD officials said they would support a state civil rights agency to assist in the enforcement of equal housing laws in Arkansas. This would help in reducing 70 percent of the over-age cases in the regional office.[49]

Kay Klugh, Area Director, U.S. Equal Employment Opportunity Commission

The Little Rock Area Office of the EEOC is responsible for investigating employment discrimination charges filed in Arkansas.[50] The district office, located in Memphis, Tennessee, has jurisdiction over the states of Arkansas and Tennessee. The Little Rock Area Office has a staff of 31 employees, including an area director, two supervisory investigators, one charge receipt supervisor, one alternative dispute resolution coordinator, one administrative law judge, two attorneys, 15 investigators (one of whom is fluent in Spanish), one computer assistant, one personal assistant for the alternative dispute resolution coordinator, one investigative support assistant, one program assistant, one secretary, and three office automation clerks.[51]

As of October 1, 1999, the area office had 558 charges pending in its inventory. The average age of these charges was 309 days.[52]

In 1995, EEOC adopted new national enforcement procedures to address the growing backlog of cases to include investigation and enforcement, conciliation, technical assistance, and public education.[53] According to Kay Klugh, there has been a 70.6 percent decrease in the pending inventory of the office since the new charge procedures were established. All employment complaints are now classified into three categories. Category A charges are charges that appear more likely that discrimination has occurred than not and receive first priority. Category B are charges where further evidence is required to determine whether it is more likely than not that a violation has occurred and will be investigated as resources permit. Category C are charges subject to possible dismissal.[54]

Ms. Klugh said these new standards provide field personnel flexible procedures for processing charges and substantial decision-making authority in the field offices, including discretion to decide the amount of resources to be used for each charge and permitting settlement in appropriate cases.[55]

An analysis of charges filed with the Little Rock Area Office starting October 1, 1996, through June 1998 indicates that 4,220 charges were filed, with approximately 44 percent filed on the basis of race. Another 25.8 percent were filed on the basis of sex, 21.3 percent were filed under the Americans with Disabilities Act (ADA), and 16.6 percent contained retaliation charges.[56]

An analysis of cause findings determinations over the same period shows that approximately 47 percent of these were issued on ADA charges, 35 percent were issued on sex discrimination cases, 27 percent on sexual harassment cases, and 12 percent were on race cases.[57]

Ms. Klugh reported that some of the priority issues for investigation by EEOC are the hiring and advancement of African Americans and women by employers; discriminatory downsizing on the basis of race, sex, and age; sexual harassment; reasonable accommodations for people with disabilities; discrimination against individuals with terminal illnesses; and retaliation cases.[58]

EEOC also established alternative dispute resolution (ADR) procedures in Arkansas in January 1997, which are offered in about half of Category B cases. According to EEOC, ADR is a means for resolving disputes in the workplace free from the costs of investigation, extended litigation, and appeals. ADR provides the following advantages:

• mediation rather than arbitration;

• voluntary participation by all parties;

• neutral mediation by someone other than an EEOC employee;

• fairness of process;

• strict confidentiality regarding mediation process and content; and

• enforceable agreements.[59]

Because the district office did not receive a favorable response to ADR from some employers, the agency is reviewing its procedures and talking to employers as to why they do not want to participate. When Ms. Klugh was asked why employers were reluctant to participate in ADR, she said:

[S]ome employers in the state have their own internal ADR program and if it didn t work the first time, they're not willing to go and try it again. A lot of the employers do not believe that they have discriminated, so they're not willing to try to go through an ADR program to work out the problem. Some of the others have told us that ADR is just a way for EEOC to make them pay out money.[60]

An ADR program for Category B charges has now been established in the state. The current coordinator of that program for Arkansas was hired in February of 1999 and began to mediate cases in late May of 1999. From June through September, he successfully mediated 22 of the 32 cases assigned to him for mediation, for a successful mediation rate of 68.8 percent. The Arkansas program also provided 94 cases for mediation by outside mediators during this same period.[61]

Ms. Klugh said the agency has targeted some outreach efforts in areas with large concentrations of Hispanics and will be hiring an employee who is fluent in Spanish.[62]

In response to a concern as to what happens when a complaint is filed with her office, Ms. Klugh described the process as follows:

Let me go into a little bit more detail then on how we process cases. A person comes into the office to be counseled or calls or writes a letter, somebody is going to speak with him initially.

They will be given, first off, a fact sheet that explains what the process is. The person also will explain to them what is going to happen. If the investigator at the initial stage of the investigation can determine that there's nothing we can do for this person, we try to tell them immediately, and those are the cases we will dismiss within 10 days.

And each of these persons is still given their right to sue should they choose to do that. All of the other cases, the cases where we think that discrimination has occurred, these cases will be immediately assigned for investigation. That does not mean that they will get immediate investigation, because we have 10 people.

Okay. Right now we have nine. So we have nine people to serve the entire state of Arkansas. That includes taking that charge when it comes in the door, so that really leaves about three days a week for the investigator to investigate charges.

Then Category A charges are fairly quickly investigated. Oftentimes in these cases where we think the statutes have been violated, we don't even ask for information from the employer. We will immediately schedule an on-site or we will ask that the employer give us the information within a very short time period, so that we can try to resolve the situation as quickly as possible.

In those cases where we just don't know whether or not discrimination has occurred, we ask the employer to respond within 30 days. Oftentimes they do, oftentimes they don t, and that causes another problem. However, once that response comes into the office currently, me and my two supervisors and the ADR coordinator will review that information. We review that case file again, and we reprioritize at that point.

At that point, there are very few of our charges that will remain in the holding tank. If the charge is to remain in the holding tank, we do send the individual a letter telling them that. We also tell them in that letter that they can provide any other information they may have that will help us to recategorize that charge.

Only the charges that are going to be remaining in that holding tank should be in a situation where the charging party won't know what's happening, other than its being on hold. In the other situations where the charge is being actively investigated or being dismissed, that person is going to be contacted immediately, either by phone or by letter. I know that our district prefers that we contact people by phone. I prefer sending out that information in writing, so there's no misunderstanding of what our evidence shows.

That person is at that point given time to recontact the investigator or provide any additional information that will change our decision, and that happens in every case. We don't dismiss a case without that person being told either initially when he comes in or through written correspondence or telephone contact before the charge goes out. And it may involve a period of time simply because of the number of charges we're getting and the size of the staff we have.[63]

Ms. Klugh stated she could not officially say whether a state agency is needed to investigate employment discrimination complaints in Arkansas, but she said any assistance to resolve such complaints would be useful.[64]

Bob Balhorn, Executive Vice President, Arkansas Realtors Association

The Arkansas Realtors Association has a membership of more than 5,000 people and approximately 38 local Realtors boards throughout Arkansas.[65]

The Realtors Association has actively supported fair housing initiatives and worked closely with HUD and the Real Estate Association to support fair housing efforts. Bob Balhorn said the Realtors Association had subscribed to fair housing efforts for almost 20 years. It had also worked with other community and government agencies involved in housing issues, such as the city of Little Rock, the Arkansas Fair Housing Council, and ACORN.[66]

On November 5, 1997, HUD's Program Operations and Compliance Center of the Fair Housing Division in Little Rock, the Arkansas Realtors Association, and the Mortgage Bankers Association of Arkansas signed the Fair Lending Best Practices Agreement and the Fair Housing Resolution Partnership Agreement. Both agreements addressed goals and objectives the Realtors Association would carry out to provide equal housing opportunity to all home seekers.[67]

Bob Balhorn cited other efforts that the Realtors Association has made to support fair housing initiatives such as ensuring that all real estate contracts include a fair housing and equal opportunity statement affirming the association s policy. To help promote understanding between landlords and tenants in Arkansas, the Realtors Association developed a landlord-tenant handbook. This handbook aids both tenants and landlords in understanding housing laws and their rights and responsibilities.[68] Other efforts have included seminars and extensive equal opportunity training for staff and members. Each local Realtors board has in place an equal opportunity committee. Procedures have been developed to address housing complaints through the Professional Standards Committee, which has authority to discipline members (fine, suspend, dismiss) who violate established Realtor standards and fair housing mandates. Mr. Balhorn said the Realtors Association is also willing to hear grievances from the public about fair housing.[69]

Mr. Balhorn said the Realtors Association supports the Arkansas Civil Rights Act and initiatives to add enforcement authority to the law, but does not support efforts by the city of Little Rock to push legislation allowing municipalities to set up individual fair housing agencies. It believes a statewide agency would be more uniform, cost efficient, and effective than independent local governments.[70]

Since the Advisory Committee meeting, the Arkansas Realtors Association has monitored the legislative actions regarding a municipal fair housing bill that if passed would allow local governments in Arkansas the authority to establish fair housing commissions. The Realtors Association has been in the forefront in opposing the bill, which was defeated in 1999. However, the association supported legislation that called for a study of the usefulness of a statewide fair housing agency. Mr. Balhorn said:

We wholeheartedly support S.R. 11 and plan to lead the charge for an Arkansas Fair Housing Commission.[71]

Mr. Balhorn suggested that if such an agency were established that its primary focus should be on education and outreach, and that its policies and procedures should comply with federal regulations. He further said complaints should be handled expeditiously and clear distinctions should be made between investigative and adjudicating functions. The proposed agency must provide due process provisions; the right to appeal to the court system; and provide an impartial hearing panel to adjudicate cases, rather than an administrative judge.[72]

According to Mr. Balhorn, the Arkansas Fair Housing Task Force continues to meet and is in the process of finalizing some broad parameters for a fair housing law to be introduced in the 2001 session of the Arkansas General Assembly.[73]

Wendell L. Griffen, Judge, Arkansas Court of Appeals

Judge Griffen serves on the Arkansas Court of Appeals. He believes a state enforcement agency is needed, but questioned whether the state would be courageous enough to establish a creditable and effective program.[74] He said:

I speak because of my concern for the administration of justice. My views are I should say my own. They should not be considered as the views of my court or necessarily the view of my congregation.

I first begin with what I consider a fundamental premise. Arkansas needs a civil rights agency, a civil rights enforcement agency. Despite the appearance of a number of civil rights offices in a few state agencies, there . . . has never been in Arkansas a single state agency with statewide enforcement, investigatory, or compliance responsibilities and powers to handle allegations of discrimination in education, employment, public accommodation, or commercial activity.

 Although there are agencies to regulate a number of things ranging from economic development, education, health, cemeteries, water well construction, and pollution, Arkansas has never seen fit to create, fund, staff, and concern itself with any governmental entity that addresses and enforces the age-old issue of inequality.

Intellectual honesty compels us to acknowledge that reality and to admit that it is at the very least remarkable. It is no accident that Arkansas lacks a civil rights enforcement agency. Like other jurisdictions, our state has historically viewed justice from the perspective of persons who are white and male.

Those are the very persons who are least likely to complain about historical practices, traditions, and mores that are unjust, because they have been historically the beneficiaries rather than the victims of discrimination.

We should not be surprised, therefore, that a state that made it unlawful for teachers to hold membership in the NAACP, a state that paid white teachers a different and higher income from that paid African American teachers, and then that used the Arkansas State Police to investigate the NAACP, and persons suspected of involvement with it, has no state agency to investigate civil rights complaints and reports of discrimination.[75]

Judge Griffen characterized Arkansas's civil rights background as weak. He said:

This is a poignant example of the way that we seem to view civil rights in Arkansas. We prefer not to think about civil rights at all, but if we must, we don't desire anything that is effective.

Yet Arkansas is certainly in need of a civil rights agency, after all federal lawsuits against the Arkansas State Police, the Arkansas State Hospital, the Arkansas Department of Corrections, and other state agencies have been won in federal court in Arkansas by Arkansans, who were treated unfairly because of their race, gender, age, disability, religion, or national origin.

Perhaps our state might have even been spared the expenses and the embarrassment that came from the ill-fated creation-science bill legislation in the 1980s had there been some state agency that served as a clearinghouse for information about the potential civil rights effect of a law that required the teaching of creation science in public schools.

I suspect that Arkansas will continue to resist creating a civil rights agency, will continue to resist funding one, and will continue to resist staffing one. Of course, there is the time-honored notion that we really don t need such an agency, because we treat people fairly. If that notion were true, the Arkansas State Hospital would not still be defending a federal race discrimination lawsuit that was first filed two decades ago.

There will always be those who insist that a civil rights agency will simply encourage people to raise unwarranted allegations of discrimination so that they can obtain leverage that they don't deserve.

Then we can expect opposition from businesses and business leaders who already consider the federal civil rights agencies to be unnecessary and intrusive. And we must never forget that there still is in Arkansas and elsewhere a strain of political leadership and a block of citizens who are opposed to civil rights efforts because they reveal entrenched policies and practices in our institutions that promote racism, sexism, and other unjust treatment to people because of their age, disability, religion, or national origin.

Nevertheless, I continue to maintain that Arkansas needs a civil rights enforcement agency. Just as our people need local help in the areas of health, education, criminal justice, pollution control, and economic development, we need local help in the area of civil rights monitoring, investigation, and enforcement. Just as the Arkansas Department of Labor regulates labor practices, investigates allegations of unsafe and unfair labor conditions, and enforces labor standards, Arkansas needs an office of civil rights that can investigate allegations of discrimination, regulate compliance with state and federal civil rights laws and regulations, and enforce civil rights standards.

The issue and the question that I hope this body will put to the political leadership of this state, as well as the business leadership of this state and the people of this state, is whether we have the decency, the courage, and the political will to create, fund, and staff an agency to do this necessary work.[76]

Judge Griffen said that in 1979, then-Governor Bill Clinton recommended that the state create a civil rights agency. Legislation was passed to set up the agency, and a director was named. Although the office did not have enforcement authority, it was authorized to receive complaints of discrimination. The agency, however, never got off the ground because the Legislature did not appropriate operating funds. According to Judge Griffen, the primary opposition to civil rights enforcement is from business leaders who consider the federal civil rights agencies to be unnecessary and intrusive. Further, there is a strain of political leadership in Arkansas opposed to civil rights efforts.[77] Judge Griffen is pessimistic and believes institutions in Arkansas will continue to resist civil rights compliance.[78]

Bill Cain, General Counsel, Disability Rights Center

The Disability Rights Center, formally called Advocacy Services, is a federally funded agency authorized to advocate for and protect the civil rights of persons with disabilities. The center's main focus is advocacy, information and referral, education, and training.[79]

According to the center's annual report, each year it receives hundreds of complaints of discrimination. However, complaints are accepted based on a system of priorities established each year. For 1997 98 the center's civil rights priorities were employment, voting rights, physical and program accessibility to state and local government services, and abuse/neglect of people with disabilities.[80]

Officials of the center said they would support legislation to create an administrative agency for civil rights enforcement. They noted, however, that they will not support legislation that is too wieldy and impractical.[81] Bill Cain advised that setting up a separate enforcement agency would be too expensive and it would not have a chance of passing in the Legislature because it would scare people to death. He stated:

This legislation is another layer. It's going to ferment litigation, and I don t know why you want to take a civil rights case to a state court . . . As a lawyer I want a federal forum always . . . You have the laws already in place.[82]

Barry Vuletich, Consumer Affairs, Arkansas Rehabilitation Services

Barry Vuletich serves as staff liaison to the governor's Commission on Persons with Disabilities.[83] He believes that it would be good to have a state-level agency responsible for addressing civil rights problems. He stressed, however, that his position does not necessarily reflect the position of the governor's office.[84] Although he does not keep records on the number of complaints he receives, he estimated that he receives at least 200 calls yearly from persons alleging some form of discrimination related to employment, fair housing, access to county facilities, denial of services, and questions about service animals for people with disabilities.[85] He usually refers callers to a federal agency, the Disability Rights Center, or advises them to seek an attorney.[86] Mr. Vuletich believes much discrimination goes unreported because people are discouraged when they know their only option is to go to the federal government or when they do not have the financial resources to hire an attorney.[87]

Mr. Vuletich said the argument against creating a state enforcement agency is always that there is too much government in the lives of people, but he maintains that such an agency would provide a local presence and possibly ensure speedy resolution of cases.[88] Mr. Vuletich summed up his position:

Seventy percent of persons with severe disabilities are unemployed in Arkansas or underemployed. Only 33 percent of persons with disabilities go to restaurants at least once a week, compared to 60 percent of nondisabled people. Only one of five adults, that's 20 percent, adults with disabilities 18 and over, have not graduated from high school, compared with only one in 10 of those with disabilities. This indicates to me discrimination is going on. . . . I honestly believe that if we had an office of civil rights at the state level, this would provide an opportunity for people to have a voice and additional resources to turn to.[89]

Oliver Dillingham, Program Manager, Equity Assistance Center, Arkansas Department of Education

Oliver Dillingham, who provides technical assistance to school districts to assist them in complying with civil rights laws, said that there is a great need for an Arkansas enforcement and compliance agency.[90] In his work with school districts, he hears about many overt acts of discrimination, particularly as they relate to disabled students. In addition to enforcement, there is a need for members of the public to be aware of their civil rights and understand the complaint process by which their grievances can be heard.[91]

The U.S. Department of Education's Office for Civil Rights regional office in Dallas is swamped with complaints of discrimination. In 1996, he said there were 4,828 complaints alleging discrimination.[92] Mr. Dillingham is convinced that twice as many persons have not filed who should have done so. He said that every day he receives phone calls from citizens complaining of acts of discrimination who do not know where to file their complaints.[93]

Cathy Collins, Director, Little Rock Racial and Cultural Diversity Commission

The Racial and Cultural Diversity Commission is responsible for promoting racial and cultural harmony in Little Rock through outreach, education, and training. Members of the commission are also interested in civil rights issues at the state and local levels.[94]

According to Cathy Collins, Mayor Jim Dailey in his State of the City Address expressed his desire that the city of Little Rock adopt a fair housing ordinance substantially equivalent to the Federal Fair Housing Act. He charged the commission with the work of developing the ordinance.[95] Although the commission spent considerable time collecting information and collaborating with HUD and other interested public and private community organizations, several roadblocks impeded the process. Arkansas statutory and constitutional arrangement became a barrier because a municipal ordinance cannot exceed the requirements of a state law. Since the fair housing section of the Arkansas Act lacks key elements of a substantially equivalent law, Little Rock and other local municipalities are constitutionally prohibited from enacting a stronger law. Further complicating things, Arkansas retains a bicameral court system in which circuit and chancery courts split jurisdiction based upon the nature of the cases. This system forms a somewhat irregular fit with the requirements of substantial equivalency.[96] Despite these difficulties, Ms. Collins said the commission was able to find solutions to overcome roadblocks by drafting language incorporating the bicameral court system into the requirements of substantial equivalency.[97]

Ms. Collins is convinced that the state's failure to have substantially equivalent laws denies citizens of Arkansas benefits that would improve housing conditions, provide speedy resolution of fair housing complaints, and provide meaningful partnerships between government and community organizations.[98]

Ms. Collins stressed that citizens of Arkansas need to be educated and have access to information about civil rights issues. She believes the presence of a state enforcement body may help in this effort. Ms. Collins said that from a symbolic standpoint it is important for the state to make a statement to the citizens of Arkansas and the rest of the nation that Arkansas is committed to furthering human rights and it will do this by establishing an agency to ensure these rights.[99]

In March 1999, legislation that would have enabled local governments to enact fair housing ordinances independent of the state failed in the House. The Arkansas Realtors Association opposed the legislation because it believed a statewide agency rather than individual municipalities would simplify the handling of housing discrimination complaints and provide more efficient administration of such complaints. Ms. Collins said the city will continue its efforts to obtain passage of this legislation.[100]

Mitch Kline, Director, Arkansas Community Organization for Reform (ACORN)

ACORN is a not-for-profit community organization that advocates for and serves more than 3,000 disadvantaged low- to moderate-income families throughout Arkansas. ACORN receives funding from the Fair Housing Initiatives Program of the U.S. Department of Housing and Urban Development to investigate fair housing complaints and provide education.[101] It also receives some funding from the city and the county to address housing issues in Little Rock.[102]

Mitch Kline believes there is a need for an enforcement agency; however, he said, the state should not be the body responsible for overseeing civil rights enforcement because state government has serious discrimination problems within many of its agencies.[103] He said some of the major areas of discrimination in state and local governments are limited employment opportunities, underrepresentation of minorities in leadership positions, and failure to ensure voting rights.[104]

Rita Sklar, American Civil Liberties Union of Arkansas

The ACLU of Arkansas is a private, nonprofit, nonpartisan agency committed to advocating for and defending the civil liberties of individuals in Arkansas.[105] According to Rita Sklar, her agency receives thousands of complaints each year from Arkansans who believe their civil rights have been violated. She identified a full range of civil rights issues that people request assistance on, such as employment, education, housing, police abuse, and religious discrimination. She said ACLU is unable to handle the vast majority of these complaints because the complaints do not fall within its jurisdiction, nor does it have the staff or resources to handle the complaints.[106]

Ms. Sklar supports legislation for a state human rights agency:

An agency that receives and investigates complaints of discrimination could do much to ameliorate the situation. We are a small organization with limited resources and cannot possibly handle all the complaints we receive. Furthermore, very often there is simply no straightforward legal solution to the problem, since it has more to do with people's intolerance and lack of exposure to different cultures and environments . . . A black man in a small town in the Delta feels he has nowhere to turn when he is continually harassed by the local sheriff; nor does the father of racially mixed children in mostly white northwest Arkansas, or the mother of a gay boy beat up by classmates in a high school. The presence of a government body dedicated to these issues could not only help fix the problem, but symbolically say this behavior is not tolerated by our laws and government.[107]

Ms. Sklar pointed out that the lack of available attorneys to provide legal counsel is another reason why a state enforcement agency is needed. In the area of employment discrimination, the ACLU refers most of these complaints to private civil rights attorneys. Whether or not an individual gets help will depend on whether he or she is able to find an attorney close by or an attorney with the time, ability, and inclination to litigate civil rights cases on a contingency basis. There are even fewer attorneys willing to investigate allegations of police abuse or jail conditions, and they are unequally distributed throughout the state. In Arkansas access to justice depends not only on education and income level, but also on geography and ability to travel.[108]

Judy Matsuoka, Director, Women's Project

The Women's Project advocates on behalf of women's rights in the areas of sexual harassment, sexual orientation, and domestic violence. Although it does not investigate complaints of discrimination, it does hold community-organizing events and provide information and referral.[109]

According to Judy Matsuoka, despite the fact that the agency does not accept complaints of discrimination, it still receives many inquiries for assistance. Calls for assistance most often involve sexual harassment, discrimination against lesbians and gay men, employment discrimination based on sexual orientation, and housing discrimination against people with disabilities.[110]

Ms. Matsuoka says that her agency would support any effort to strengthen state civil rights legislation. She does not believe citizens of Arkansas have adequate means for seeking redress of grievances because it is difficult to find attorneys willing to take civil rights cases. Ms. Matsuoka believes that if a human rights agency is established, it must be neutral and untied to any political or corporate interests.[111]

Sheila Gomez, Director, Immigration Services, Catholic Social Services

Immigration Services for Catholic Social Services is the only nonprofit agency recognized and accredited by the Immigration and Naturalization Service and the Board of Immigration Appeals.[112] It provides immigration assistance to immigrants at or near the poverty level in Arkansas.[113] The agency also provides support for families and individuals who are eligible for immigration benefits but cannot afford private assistance.[114]

Immigration Services receives a grant from the U.S. Department of Justice to provide educational programs in Arkansas on immigration issues and unfair employment practices. Sheila Gomez said because of the agency's work with the immigrant population, it is very aware of the extent of abuse in employment and the vulnerability of the immigrant employee.[115]

According to Ms. Gomez, within the past eight years Arkansas has experienced a dramatic increase in its immigrant population, which is most evident in northwest Arkansas.[116] Along with the rise in the immigrant population, there is similarly a rise in anti-immigrant sentiment, particularly against Hispanic immigrants. Ms. Gomez reported that the social climate is such, that it is not only acceptable to discriminate against immigrants but in some circles it is also considered patriotic. [117]

Based on the nature and extent of civil rights abuse agency officials have heard about or detected, she believes a state office to investigate civil rights abuses could be useful. She further noted the need for a state presence in civil rights enforcement:

Washington, D.C., is far away in another planet sometimes, and they have a lot of complaints from all over. And I think because of the nature of immigration in Arkansas, and the fact that it's been so much so soon, in a short period of time, the people who have lived here a long time are experiencing something that is very different and unique for them. Immigration in California, Texas, or New York is not like immigration in Arkansas. We need an office in Arkansas with people who understand where we are in our immigration.[118]

Ms. Gomez reported that this anti-immigrant sentiment against Hispanics had contributed to instances of racial tensions, particularly in northwest Arkansas.[119] Some of the discrimination complaints she receives most often concern abuse by law enforcement agencies, government agencies, and private employers.[120] Legal immigrants have complained about being refused identification, such as social security cards and marriage certificates. Throughout the state, immigrants have also complained about illegal police stops and being asked to show documents to prove their legal status.[121]

In Pulaski County, Ms. Gomez alleged that some Hispanics were denied housing because they did not speak English. They were also charged higher rent and had to pay under different conditions than non-Hispanic renters.[122]

In Ashley County, Ms. Gomez alleged that a Hispanic person was asked to leave a store because of his national origin descent. In another situation, an employee at an Ashley County store was told to follow Hispanics and blacks in the stores because they steal. [123] Ms. Gomez also provided the Advisory Committee information on alleged employment discrimination in Texarkana, Fort Smith, Springdale, Rogers, Hope, Warren, Siloam Springs, and Grannis. One of the major patterns of discrimination she has found is that employers will deny immigrants job applications until they can prove legal status. According to Ms. Gomez, employers must first interview a potential applicant, after which the applicant has three days to produce proof of legal status. Clients also reported incidents in which employers will intimidate immigrant employees to prevent them from filing for workers compensation.[124]

Ms. Gomez said when Immigration Services receives complaints, either oral or written, her agency will refer them to the U.S. Department of Justice, Office of the Special Counsel. Ms. Gomez said that sometimes her agency refers clients to Arkansas Legal Services but would also like to make referrals to pro bono attorneys.[125]

Robert Trevino, State Director, Arkansas League of United Latin American Citizens (LULAC)

LULAC is the oldest and largest Hispanic advocacy organization in the United States.[126] Robert Trevino said the state needs a commission to oversee civil rights complaints and an impartial body to decide these issues.[127] According to Mr. Trevino, there are problems in the Hispanic community that not only can be attributed to discrimination and the lack of opportunities but also to exploitation by employers.[128]

Another major concern among Hispanics is affordable housing. Many Hispanics, particularly those employed in agriculture, live in substandard housing. When they complain, they are oftentimes threatened with either losing their jobs or deportation.[129] There are concerns with employers who use immigrants to work but refuse to pay them.[130] Relations between the police and the Hispanic community are poor. Most police departments in Arkansas are ill-prepared or unwilling to deal with Spanish-speaking citizens. Translation services throughout the justice system are inadequate, denying many non-English-speaking persons their due process rights.[131]

Mr. Trevino said that despite these problems some positive efforts have been made to address Hispanic concerns.[132] He reported that Governor Mike Huckabee met with representatives of LULAC regarding some of these issues and that the Arkansas Minority Health Commission had been particularly supportive in addressing the effect of pesticides on workers in agriculture. The governor also ordered the State Departments of Education, Health, and Human Services, and the state police to appoint staff to serve as a liaison to LULAC.[133]