What, exactly, is discrimination, and what should be done to fight it? This election offers choices on the answers.
In areas such as mortgages, voter identification and immigration enforcement, the presidential candidates differ over how to use laws that guarantee equality and how far the Justice Department's civil rights division, which exerts strong influence on issues of race and ethnicity, should go to ensure all Americans are treated fairly. The election also will shape the Justice Department's actions in continuing court cases that challenge voter ID laws in some Republican-led states. Opponents contend such laws unfairly discourage minority voting.
Where they stand:
Under President Barack Obama and his attorney general, Eric Holder, the civil rights division has aggressively prosecuted cases where statistics show that blacks and Hispanics are hit harder than whites. These cases include accusations that banks used discriminatory lending practices and that states passed voter identification laws that would keep a disproportionate percentage of minorities from voting.
Republican Mitt Romney agrees with very little that Holder has done. He supports voter ID laws, saying they prevent fraud and don't discriminate. Under recent Republican presidents, the Justice Department has limited its enforcement to cases with evidence of intentional discrimination — not where statistics show that minorities were broadly disadvantaged by a particular practice.
Why it matters:
The philosophy of the current civil rights division is that race and ethnicity still have a major impact on American opportunity and that statistics can prove discrimination. Romney has not made his beliefs clear, but conservatives generally believe that race matters far less than individual responsibility and that discrimination is proved by actions — not numbers.
Under Holder, the Justice Department has used lawsuits based on statistics to hold banks' feet to the fire on how they lend money to Hispanics and black people. For example, it obtained a $335 million settlement in a lawsuit that accused Countrywide Financial Corp. of charging more than 200,000 qualified Hispanic and black borrowers higher rates than white borrowers with similar credit profiles. And a settlement with Wells Fargo Bank provides $125 million for borrowers who were allegedly steered into subprime mortgages or who allegedly paid higher fees and rates than white borrowers.
On the flip side, Holder's Justice Department has been accused by two former civil rights division lawyers of going too far in the other direction by refusing to prosecute minorities when they discriminate against others. They point to the decision by the Justice Department shortly after Obama's election to seek a narrower civil injunction than the Bush administration had against the tiny New Black Panther Party, which was accused of intimidating white voters at one Philadelphia precinct in 2008.
In any event, a more conservative Justice Department could set a higher bar for action against discrimination — it would be unlikely to sue without evidence of intentional bias, instead of statistical disparities.
A Romney administration also would be likely to view measures such as Arizona's tough immigration law more sympathetically. The Supreme Court struck down major parts of the law but upheld the provision requiring police, while enforcing other laws, to question the immigration status of those suspected of being in the country illegally.
Critics say that will lead to racial profiling of Hispanics, a point that resonates with Obama. "No American should ever live under a cloud of suspicion just because of what they look like," he said. Romney saw the ruling differently: "Given the failure of the immigration policy of this country, I would have preferred to see the Supreme Court give more latitude to the states."