Democrats reworded a statute that would have created a registry of non-criminal discrimination, but Republicans claim the changes were cosmetic.
Leaders of Minnesota’s human-rights department refuse to provide any details about how they plan to spend the $645,000 recently approved by state lawmakers that they had initially intended to use for tracking unverified and non-criminal allegations of hate and discrimination.
Earlier this year, Republican critics blasted the proposal as an “Orwellian” and “terrifying” Democratic plan to catalog and suppress the speech of their political opponents. Local and national media panned it similarly, alleging that Democrats were proposing a “thoughtcrime” database and questioning who would be included in the “state bias registry?”
Democratic supporters of the bill accused Republicans of floating a conspiracy theory.
But while the plan quietly changed at the last minute — human-rights-department officials will now simply “analyze civil rights trends” in the state and prepare a report with suggested policy changes — department leaders are tight-lipped about what, exactly, they will be analyzing.
Minnesota Republicans who spoke with National Review say the approved language, which supporters say “fixed” the problems with the original proposal, is just more vague. Under the guise of analyzing civil-rights trends, they say, department leaders can still gather the same unverified, subjective, and non-criminal allegations of bias they’d intended to all along.
When reached by National Review, department leaders refused to answer any questions.
“This is not a number to be contacting,” Minnesota human-rights commissioner Rebecca Lucero said when reached on her cell phone. When reached on his phone, Nico Bauer, the department’s government-relations director, said he couldn’t speak because he was driving.
In an email, department spokesman Taylor Putz was brief: the “Minnesota Department of Human Rights (MDHR) will do what is required by statute: to analyze and report on civil rights trends. For instance, repeated fires at mosques.”
Putz and Lucero ignored a series of follow-up questions from National Review, including questions about how the department intends to spend the approved money, what kinds of civil-rights trends they intend to analyze, and if they will track or compile unverified, subjective, and non-criminal allegations of bias as part of their analysis.
Putz responded with two sentences. The report the department publishes “will include a methodology section,” he wrote. “You can find it on our website when it comes out in February 2025.”
Speaking on the House floor in May, state representative Harry Niska, a Twin Cities Republican, said that the controversial proposal had been “rebranded,” but “it’s the same thing.”
“We passed the bill, and now we’re going to find out what’s in it, whatever the Department of Human Rights decides they’re actually going to do with the money,” he told National Review in an interview. “If they still want to do what they said they wanted to do, before it became embarrassing, then they still have the power and the money to do that.”
Unmentioned: Gov. Walz’s bill funds a rebranded “bias registry” he requested: a government speech database that tramples on our First Amendment rights. That doesn’t make Minnesota better!
I broke it down on Monday, reading from his own budget request. https://t.co/QcAEXezvaQ pic.twitter.com/Qut0dtOKaq
— Harry Niska (@HarryNiska) May 19, 2023
The plan for what some have deemed a “bias registry” was first hatched in January, in the 2024-25 budget request by the Minnesota Department of Human Rights. Department leaders requested $395,000 in fiscal 2024 and $250,000 every year after to add two full-time staffers and to upgrade the department’s “data tracking capabilities.”
There is “currently a void,” they wrote, “with respect to tracking and reporting on both criminal and non-criminal discrimination and hate incidents in Minnesota.” They believed it was critical to collect more information about allegations of hate that weren’t technically criminal or likely to be investigated by law enforcement — someone in a car yelling a derogatory comment at a passerby was one hypothetical example cited by supporters of the plan.
They proposed building on the department’s existing discrimination helpline to begin gathering a broader set of allegations of discrimination.
The initiative started in single-subject bills in the state House and Senate. But the Democrats behind the measure struggled to answer basic questions about what could and could not be collected, and how, exactly, the information would be used.
Eventually, the language was wrapped into omnibus public safety bills. The version the state House debated in April tasked the human-rights department to:
… solicit, receive, and compile information from community organizations, school districts and charter schools, and individuals regarding incidents committed in whole or in substantial part because of the victim’s or another’s actual or perceived race, color, ethnicity, religion, sex, gender, sexual orientation, gender identity, gender expression, age, national origin, or disability.
It was the same language the state Senate had already passed with little fanfare. But House Republicans aggressively called out the plan as problematic.
Who, they wanted to know, would determine which complaints would be tracked and compiled? Was claiming that Covid-19 is a Chinese bioweapon problematic? What about expressing support for Harry Potter author J.K. Rowling, posting a Bible verse on social media critical of homosexuality, or not using someone’s preferred pronouns? How could department leaders ensure the information they gathered would not be used against political opponents or people who engaged in speech progressives disapprove of? And who would vet the complaints, and what were the repercussions for people making false allegations?
Democratic lawmakers had few satisfying answers.
Ultimately, House Democrats passed the bill. But something curious happened during conference committee when state House and Senate leaders — all Democrats — reconciled differences between their two bills. Even though the language for the alleged “bias registry” plan was the same in both chambers, the language that emerged from committee had changed.
No longer would the human-rights department be tasked to “solicit, receive, and compile” information about allegations of discrimination or bias. The new language said the human-rights department would instead:
Analyze civil rights trends pursuant to this chapter, including information compiled from community organizations that work directly with historically marginalized communities, and prepare a report each biennium that recommends policy and system changes to reduce and prevent further civil rights incidents across Minnesota.
Niska told National Review that he met with the Democratic leader of the committee and with Lucero, the human-rights-department commissioner, to discuss the new language.
“And in that meeting, commissioner Lucero told me that the problem we had raised had been fixed. She used that word, ‘fixed,’ and that my questions were spot on, and they don’t want to collect that information [about constitutionally-protected, non-criminal speech],” he said.
Niska said he didn’t buy it. Although the language had been changed, to Niska it was now just more vague. And the funding that was being approved — $395,000 for fiscal 2024 and $250,000 for 2025 — was the same amount the department had initially requested.
Speaking against the proposal in May, Niska alleged that the Democrats and human-rights leaders behind the plan simply “vaguified” the language in the bill to make the critics look away. He argues that, under the new language tasking the human-rights department to “analyze civil rights trends,” department bureaucrats can theoretically gather the unverified allegations of non-criminal hate and bias that they had intended to all along.
“Absolutely it could include that,” Niska said. “Implicit in the word ‘analyze’ is that there is something to analyze.”
After the measure was passed in May, human-rights-department leaders touted it on their website, writing that “fires at mosques, swastikas painted on property, and Nazi salutes occurring at school events” showed the need for a “more robust” and “holistic understanding of civil rights trends.”
State representative Walter Hudson, a Republican from Albertville, a Minneapolis exurb, and one of the top critics of the measure, said he still has concerns. “I would say it all adds up to more questions than answers in terms of what constitutes tracking civil rights trends,” he told National Review. “If you don’t put in language exactly what it is that you’re doing, and you just tell me, ‘trust me,’ that’s not a high level of oversight.”
Tracking mosque fires is fine, he said, but “isn’t that something we’re tracking anyway? What are you doing with it that you couldn’t do before that is a consequence of this legislation?”
James Dickey, a lawyer with the Upper Midwest Law Center, a conservative nonprofit, said collecting and compiling constitutionally-protected speech is problematic because it could chill speech, and it’s also “hard to say when a reported bias incident would potentially be used against someone in the future.”
Minnesota wouldn’t be the first state to track unverified allegations of bias that don’t amount to crimes. Out west, the “California vs Hate” website appears to similarly allow “any victim or witness” to report “a hate incident or crime in California,” and to be “connected with a professional trained in culturally competent communication and trauma-informed practices.” It’s unclear exactly how California compiles the data it collects.
The Minnesota Department of Human Rights already collects information about discrimination on its website; it has had a “Report Discrimination” button on its homepage since at least April 2020, according to an archived version maintained by the Internet Archive’s Wayback Machine.
The page allows people to report allegations of discrimination, including a description of what happened, the name of the person or business that committed the alleged discrimination, and the remedy the complainant is seeking. A disclaimer states that the department “is collecting this information in order to enforce the Minnesota Human Rights Act.”
So, it is likely that some of the people making complaints to the department are already reporting unverified and non-criminal allegations of discrimination.
“I am less concerned about people spontaneously reporting something to the government that just doesn’t happen to be something the government can act on than I am about the government going out and soliciting information about things that include constitutionally-protected activity, and then compiling a surveillance database about them,” Niska said.
“I have no problem with illegal activity being reported to the government, and then the government enforcing the laws,” he added. “The problem is when the Minnesota Department of Human Rights is telling people that they should be looking for reasons why somebody engaged in First Amendment activity that they don’t like, that that should be sent to a bureaucrat at the Department of Human Rights to put into some catalog for some future purpose that we don’t know about yet.”