Long Road to Justice: The Civil Rights Division at 50
INTRODUCTION
Until the late nineteenth century, African Americans in the United States, particularly in the American South were regarded, both politically and socially, as second-class citizens. Though the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution had been ratified, they were not being implemented with the full force of the law. Moreover, the courts and the federal government had nullified much of the Reconstruction-era Civil Rights Acts.
In 1939, the Justice Department established a Civil Rights Section within its Criminal Division for criminal prosecutions of peonage and involuntary servitude cases, as well as for prosecutions under the remaining Civil Rights Acts. The Section was given limited authority and a small staff. Fighting a World War against Nazism, however, made it increasingly difficult for the United States to defend racial discrimination within its own borders, especially while African-American troops were committed to the struggle for anti-discrimination abroad. The return of Black veterans to the home front provided local leadership and a political framework for civil rights protest that the federal government could no longer ignore.
President Truman established a Committee on Civil Rights in 1946. Its 1947 report, To Secure These Rights, recommended comprehensive civil rights legislation as well as the creation of a Civil Rights Division within the Justice Department. Although President Eisenhower did not embrace civil rights as a political priority within the Administration, Attorney General Herbert Brownell advocated additional governmental efforts. Brownell collaborated with civil rights organizations, including the Leadership Conference on Civil Rights, to propose a civil rights bill that would require both civil remedies and criminal penalties for civil rights violations.
On September 7, 1957, President Dwight Eisenhower signed the Civil Rights Act of 1957, the first civil rights legislation since Reconstruction. While the Act could not implement everything necessary to protect the political, social, and economic rights of African Americans, it did authorize three important features: a position for an Assistant Attorney General for Civil Rights within the Department of Justice; the creation of the United States Commission on Civil Rights; and the use of civil suits against voting discrimination.
On December 9, 1957, Attorney General William P. Rogers signed AG Order No. 155-57, formally establishing the Civil Rights Division of the Department of Justice. In the fifty years since its creation, the Division has been instrumental in promoting equal justice for all Americans.
The following report discusses the efforts of the Civil Rights Division over the past fifty years to eliminate discrimination in the areas of education, employment, housing, voting, criminal justice, and public accommodations. We provide the historical context for the Division’s involvement in each area, outline the Division’s landmark achievements, and assess the challenges it currently faces in securing equal and impartial administration of justice under the law. Finally, we provide recommendations for the Division to consider as it sets out to achieve its mission of effective civil rights enforcement over the next fifty years. We invite the Division, Congress, and the public to examine and reflect on this report as a piece of an ongoing dialogue regarding how best to secure and protect the civil rights of the American people.
RECOMMENDATIONS
Fifty years ago, the attempt to integrate Little Rock High School demonstrated the need for the federal government to finally say "enough." Enough of allowing the states to defy the U.S. Constitution and the courts. Enough of Congress and the Executive Branch sitting idly by while millions of Americans were denied their basic rights of citizenship. The 1957 Act and the creation of the Civil Rights Division were first steps in responding to a growing need.
For years, we in the civil rights community have looked to the Department of Justice as a leader in the fight for civil rights. As this report outlines, in the 1960s and 1970s, it was the Civil Rights Division that played a significant role in desegregating schools in the old South. In the 1970s and 1980s, it was the Civil Rights Division that required police and fire departments across the country to open their ranks to racial and ethnic minorities and women. It was the Civil Rights Division that forced counties to give up election systems that locked out minority voters. And it was the Civil Rights Division that prosecuted hate crimes when no local authority had the will.
However, in recent years, many civil rights advocates have been concerned about the direction of the Division's enforcement. Over the last six years, too often, politics appears to have trumped substance and alter the prosecution of our nation's civil rights laws in many parts of the Division. We have seen career civil rights division employees – section chiefs, deputy chiefs, and line lawyers – forced out of their jobs in order to drive political agendas. We have seen whole categories of cases not being brought, and the bar made unreachably high for bringing suit in other cases. We have seen some outright overruling of career prosecutors for political reasons, and also many cases being "slow walked," to death.
And the problem continues.
In order for the Division to once again play a significant role in the struggle to achieve equal opportunity for all Americans, it must rid itself of the missteps of the recent past, but also work to forge a new path. It must respond to contemporary problems of race and inequality with contemporary solutions. It must continue to use the old tools that work, but when they don't, develop new tools. It must be creative and nimble in the face of an ever-moving target. The following are recommendations for a way forward.
A. Politicization of the Division
Perhaps the most troubling aspect of the change in the Division in recent years is the extent to which their decision-making has been driven by politics. Changes in Administration have often brought changes in priorities within the Division, but these changes have never before challenged so directly the core functions of the Division. And never before has there been such a concerted effort to structurally change the Division by focusing on personnel changes at every level.
The Division's record on every score has undermined effective enforcement of our nation's civil rights laws, but it is the personnel changes to career staff that are, in many ways, most disturbing. For it is the staff that builds trust with communities, develops the cases, and negotiates effective remedies. Career staff has always been the soul of the Division, and it is under attack.
The blueprint for this attack appeared in an article in National Review in 2002. The article, "Fort Liberalism: Can Justice's civil rights division be Bushified," argued that previous Republican administrations were not successful in stopping the Civil Rights Division from engaging in aggressive civil rights enforcement because of the "entrenched" career staff. The article proposed that "the administration should permanently replace those [section chiefs] it believes it can't trust," and further, that "Republican political appointees should seize control of the hiring process," rather than leave it to career civil servants – a radical change in policy. It seems that those running the Division got the message.
To date, four career section chiefs have been forced out of their jobs, along with two deputy chiefs, including the long serving veteran who was responsible for overseeing enforcement of Section 5 of the Voting Rights Act. And the criteria for hiring career attorneys have become their political backgrounds instead of their experience in civil rights. Longtime career attorneys have left the Division in large numbers. The amount of expertise in civil rights enforcement that has been driven out of the Division will be difficult to recapture.
The Civil Rights Division must restore its reputation as the place for the very best and brightest lawyers who are committed to equal opportunity and equal justice. It is not a question of finding lawyers of a particular ideology. Rather, it is a recommitment to hiring staff who share the Division's commitment to the enforcement of federal civil rights laws. That is not politics; it is civil rights enforcement.
B. Voting Rights
The Voting Section at the Civil Rights Division has as its mission to protect the voting rights of racial, ethnic, and language minorities, making it easier for them to access the political process. The voting rights movement was born of a need to promote access as a cure for decades of the denial of access for racial, ethnic and language minority citizens.
However, in recent years the Civil Rights Division has used its enforcement authority to deny access and promote barriers to block legitimate voters from participating in the political process. For example, the Division's failure to block the implementation of Georgia's draconian voter ID law, later held unconstitutional and characterized as a "modern day poll tax" by a federal judge, opened the door for states across the county to pass similar, onerous, laws. Strong evidence exists that requiring a photo ID as a prerequisite to voting disproportionately disenfranchises people of color, the elderly, individuals with disabilities, rural and Native voters, the homeless and low-income people, who are far less likely to carry a photo ID. Up to 10 percent of the voting-age population does not have state-issued photo identification.
Nevertheless, in recent years the Civil Rights Division has sent a strong message to states that voter ID laws, no matter how restrictive and no matter what the impact on minority voters, will not be challenged by the federal government.
The Division has also recently rejected numerous requests from voting rights advocacy groups to enforce that part of the National Voter Registration Act (NVRA) which requires social service agencies to provide voter registration opportunities, despite the fact that there is substantial evidence that registration at social service agencies has plummeted. At the same time, the Division has shifted its enforcement priorities to enforcement of voter purge provisions of the law, which in many cases – as in Florida in 2000 – result in thousands of legitimate voters being taken off the rolls and thus denied their right to vote.
The Division has also pushed states to implement the Help America Vote Act (HAVA) in an exceedingly restrictive way, including advocating for a policy of keeping eligible citizens off the voter rolls for typos and other mistakes by election officials.
And the Department of Justice's voter integrity initiative, established in 2001 by former Attorney General John Ashcroft, has created unnecessary commingling between criminal prosecutors in the U.S. Attorneys' offices and Civil Rights Division attorneys. These efforts can, if done improperly, result in a chilling effect on the participation of minority voters, particularly in jurisdictions where there is a history of disfranchisement efforts targeting racial and ethnic minorities.
Rather than promoting schemes to deny equal opportunity for citizens to vote, the Civil Rights Division should be focused on (1) combating voter ID laws that have a disproportionate negative impact on racial, ethnic, or language minorities, like those passed by both the Georgia and Arizona legislatures; (2) ensuring that states are complying with the NVRA's access requirements, such as those that require social service agencies to afford their clients opportunities to register and vote, and making sure that those registrations are processed appropriately; and (3) reinforcing the firewall the exists between the Criminal Division's work to combat voter fraud and the Civil Rights Division's efforts to promote voter access.
C. Fair Housing
The United States Department of Justice's Housing and Civil Enforcement Section has the powerful authority to bring cases involving a pattern or practice of discrimination that violates the Fair Housing Act in federal court. In recent years that authority has been used infrequently to address significant patterns of discrimination based on race and national origin, and almost never to challenge deeply entrenched residential segregation.
Fresh attention is being paid to racial and ethnic segregation in housing because of the recent Supreme Court decisions that refused to permit race conscious school assignment policies in Louisville and Seattle. Although the Court has, over the years, pointed to ending housing segregation as a key way of avoiding racially and ethnically segregated schools, the Justice Department has been looking the other way. The federal government's chief fair housing litigation agency has repeatedly failed to challenge discriminatory housing practices that actually or potentially segregate neighborhoods and other types of discriminatory practices that affect many people of color. Discrimination in real estate sales and racial steering, discrimination in lending that destroys neighborhoods, discrimination in zoning and land use practices that exclude people of color or limit their housing opportunities all continue virtually unchecked by today's Justice Department.
The Civil Rights Division's authority to bring cases involving a pattern or practice of discrimination is found in the Fair Housing Act. In past years it was used to challenge ongoing practices of discriminatory conduct by real estate agents, lenders, and local government officials, sometimes across entire communities. In recent years the authority has not been used in this way. The federal government was given this pattern or practice authority as a powerful federal tool to check the often longstanding discrimination that so deeply divides our communities. That power lies almost unused today.
The Civil Rights Division's Housing and Civil Enforcement Section also has suffered from the loss of many career employees over the past six years and internal turmoil similar to that which has made headlines in the Division's Voting Rights Section.
D. Disability Rights
In 1990, Congress enacted the Americans with Disability Act (ADA), and the Disability Rights Section is now one of the largest sections within the Civil Rights Division. Since 1990, the Section has: brought suits to remove architectural and other barriers and ensure access to public accommodations (including all hotels, retail stores, restaurants, and places of recreation) and public transportation for person with disabilities; litigated against state and local governments; certified state and local building codes to ensure compliance with the ADA standards for accessible design; and instituted an extensive mediation program to promote voluntary compliance with the ADA.
The disability rights activities of the Division have historically enjoyed bipartisan support under Attorneys General Richard Thornburgh and Janet Reno. In recent years, the Civil Rights Division launched a successful "ADA Business Connection" series of forums designed to bring together business leaders and disability advocates to build a stronger business case for accessibility and disability as a diversity issue.
Moving forward, there will be a strong need for the Department to show leadership in making the judicial and the executive branches of the federal government true models of how to conduct the business of justice and government in a manner that is accessible and welcoming for all people. The federal government can and should do more to measure its compliance with accessibility requirements and to address deficiencies on a systematic basis. Enforcement of civil rights requirements is especially needed in the areas of access to higher education and access to voting, as widespread noncompliance with accessibility requirements exists in both of these important areas. Also, there is a need for stronger leadership on the issue of access to long-term services and supports in non-segregated settings for people with significant disabilities.
In the years to come, disability advocates look forward to strong leadership from the Department of Justice in helping to stem the tide of Supreme Court federalism decisions that have questioned the history of unconstitutional discrimination against people with disabilities by the States and have whittled away at the scope of the protected class in the Americans with Disabilities Act.
E. Employment Discrimination
The importance of the Department of Justice to the effective enforcement of Title VII cannot be overstated. It is the organization with the prestige, expertise, and financial and personnel resources to challenge discriminatory employment practices of state and local government employers. As a general rule, private attorneys and public interest organizations lack the financial and personnel resources to act as private "Attorneys General" in the Title VII enforcement scheme.
Combating discrimination against African Americans has remained a central priority of the Division through both Republican and Democratic administrations. Unfortunately, in recent years, enforcement of Title VII's protections for racial and ethnic minorities has fallen off dramatically. In fact, over the past several years the Employment Section has chosen to devote precious resources to a number of controversial "reverse discrimination" cases on behalf of Whites. As long as race discrimination against minorities remains a sad, harsh reality in this country, battling the persistent scourge of workplace discrimination against minorities must remain a central priority of the Employment Section.
Similarly, throughout most of its history, the Employment Section has recognized and fought for appropriate use of race- and gender-conscious relief. In many cases, the Justice Department entered into consent decrees with race-conscious relief provisions aimed at eliminating the last vestiges of this country's shameful legacy of race discrimination. The Employment Section must support the continued use of constitutional affirmative action programs to remedy past discrimination and promote equal employment opportunity. The Supreme Court has given its stamp of approval for many forms of race-conscious measures, including remedial affirmative action programs. Yet, in recent years, the Employment Section has sought to abandon existing consent decrees that included race-conscious relief and have targeted other employers who attempt to achieve true diversity. Such a change in position threatens to set back the progress that has been made since the passage of the Civil Rights Act.
As the face of discrimination has changed, the method by which discrimination is attacked must change as well. While egregious forms of individual employment discrimination persist, much of today's discrimination is buried in a gauntlet of screening and hiring processes. These processes include psychological profiling, written cognitive ability tests, personality inventory assessments, polygraph examinations, background screens, criminal background histories, credit score evaluations, and physical ability tests, just to name a few. Even well-intentioned employers and supervisors must grapple with the very real issue of hidden bias. The Employment Section must be dedicated to rooting out discrimination even where unlawful bias takes a more subtle form. Title VII prohibits not only the type of discrimination that is evident through "smoking gun" proof of malicious intent, but also the more hidden type of discrimination that plays out through facially neutral policies or practices that disfavor a particular group. The Section must continue to use all of the enforcement tools in its arsenal to address these more subtle forms of discrimination. The most powerful of these tools is the authority to bring pattern or practice cases with the support of statistical evidence. As employers engage in questionable practices like conducting credit checks on applicants and abusing information contained in background checks, the Employment Section should be at the forefront of the effort to ensure that employers utilize valid selection procedures.
The Employment Section is uniquely positioned to tackle widespread discrimination that affects large numbers of public employees. The Section must use its statutory authority effectively to combat the persistent problems of discrimination in the workplace. If the Section returns to vigorous enforcement of the law, it can regain its reputation as a true defender of civil rights.
F. Educational Opportunities
The Supreme Court's opinions in the Seattle and Louisville cases, which limit the discretion of local school boards to take the race of students into account in seeking to voluntarily achieve racially and ethnically diverse learning environments for students, make the work of the Civil Rights Division's Educational Opportunities (EO) Section more crucial than ever before. At the same time, those decisions mean the EO Section must re-order its priorities in a few fundamental ways. First, the United States remains a party in many desegregation cases where there continue to be outstanding orders requiring school districts to eliminate the vestiges of prior discrimination. Currently the Section appears to be seeking to have as many of those districts as possible be declared unitary. Now that it is clear that once declared unitary, as was the Louisville school district, a school district may be forced to dismantle student assignment zones and other policies used to foster integration, the Department needs to stop districts from being declared unitary until it is clear that even post-unitary status, the district will remain integrated. The presence of an ongoing desegregation decree gives a school district more tools at its disposal to eliminate the effects of segregation. The Department needs to evaluate how to use the decrees it has obtained to maintain integrated school systems.
Second, the Department now must devote significant resources to determining how to use its enforcement powers under Title VI of the Civil Rights Act to prohibit discrimination by entities receiving federal funds. Most Local Education Authorities (LEAs) receive some form of federal funding. While Title VI complaints go to the Department of Education for investigation in the first instance, the EO Section has a significant role to play in advising the Department of Education Office of Civil Rights on how to interpret and enforce Title VI, and the Department of Justice is the entity that should be litigating those Title VI cases where the Department of Education finds that a recipient of federal financial assistance has been operating in a manner that has a disparate impact on minority students. There are numerous policies by school boards, such as zero tolerance disciplinary policies; and practices that lead to the over-representation and mistaken categorization of minority students as having learning disabilities, and under-representation in academically gifted programs; that are ripe for investigation under the disparate impact regulations of Title VI. The EO Section can make a major contribution to the government's responsibility to vigorously enforce Title VI of the Civil Rights Act of 1964.
Finally, by working carefully with all stakeholders, LEAs, parents, teachers and local governments, the Educational Opportunities Section has in the past initiated a number of creative programs to foster integrated schools at the K-12 level, including programs that investigate how segregated housing patterns can be dismantled in order to result in integrated educational opportunities. These and other creative initiatives must be undertaken in order to assist school districts that have the will to create diverse learning environments but are daunted by the Supreme Court's limits on their discretion. The Section is, in many ways, the last hope for parents and children who want to see fulfillment of our nation's commitment to equal educational opportunities for all. The Section must re-order its priorities to achieve this mission.
G. Law enforcement accountability
In 1994, Congress passed 42 U.S.C. 14141, the police misconduct provision of the Violent Crime Control and Law Enforcement Act of 1994, which authorizes the Attorney General to file lawsuits seeking court orders to reform police departments engaging in a pattern or practice of violating citizens' federal rights, as well as the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968 and Title VI of the Civil Rights Act of 1964, which together prohibit discrimination on the basis of race, color, sex or national origin by police departments receiving federal funds.
Starting in the late 1990s, the Special Litigation began to conduct investigations and implement consent decrees and settlement agreements where the evidence strongly suggested a violation of the police misconduct statutes. The decrees require the police departments to implement widespread reforms, including training, supervising, and disciplining officers and implementing systems to receive, investigate, and respond to civilian complaints of misconduct. The decrees have had a widespread impact and are being used as models by other police departments. The Section also has used its police misconduct authority to reform restraint practices in a Louisiana jail and to obtain systemic relief in juvenile correctional facilities. The Section is investigating other systemic problems in law enforcement agencies, including excessive force; false arrest; discriminatory harassment, stops, searches or arrests; and retaliation against persons alleging misconduct. The decrees have had a widespread impact and are being used as models by other police departments. The Section has also used its authority under the Civil Rights of Institutionalized Persons Act (CRIPA) to reform restraint practices in adult prisons and jails and to obtain systemic relief in juvenile correctional facilities.
However, in recent years, the section has retreated in its enforcement of these important statutes. The results of this rollback in enforcement have been less accountability by police agencies and a retreat in the efforts to make sure that law enforcement and integrity go hand in hand.
Given the lack of enforcement of these statutes by the Department of Justice, it is more important than ever to amend 42 U.S.C. 14141 to allow for a private right of action to enforce the statute. In addition, the Department needs to support an expansion of its authority, as outlined in the End Racial Profiling Act. The End Racial Profiling Act builds on the guidance issued by the Department of Justice in June 2003, which bans federal law enforcement officials from engaging in racial profiling. ERPA would apply this prohibition to state and local law enforcement, close the loopholes to its application, include a mechanism for enforcement of the new policy, require data collection to monitor the government's progress toward eliminating profiling, and provide best practice incentive grants to state and local law enforcement agencies that will enable agencies to use federal funds to bring their departments into compliance with the requirements of the bill. The Justice Department guidance was a good first step, but ERPA is needed to "end racial profiling in America," as President Bush pledged to do.
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