Over the past two years, the outlines of the Bush administration’s civil rights litigation strategy have begun to emerge. In several important cases, the Civil Rights Division at the Ashcroft Justice Department, led by Assistant Attorney General Ralph J. Boyd, Jr., has shifted course from the position espoused by the Reno Justice Department, signaling several worrisome trends.
Impeding Equal Opportunity in Education: the University of Michigan Affirmative Action Cases
This year, the Supreme Court will decide consider two cases challenging the affirmative action policies at the University of Michigan — >one involving the law school, the other involving the undergraduate program.28 At issue is the university’s consideration of race as one of many factors designed to ensure diversity in admissions.
University administrators value diversity because the different perspectives and experiences of a diverse student body enrich classroom discussions and campus life. Racial diversity in colleges and professional schools also advances the longstanding goal of equal economic opportunity. Unlike the discredited practice of considering race to exclude minorities, the consideration of race to encourage minority admissions serves legitimate government interests: it remedies historical discrimination, promotes educational values of diversity, and enhances civil rights. Affirmative action of this nature was upheld by a divided Supreme Court in the 1978 case of Regents of the University of California v. Bakke,29 but has been under attack in recent years.
Recognizing the important societal goals served by diversity in higher education, the Clinton administration filed an amicus curiae brief in support of the University of Michigan in the district court, and had filed briefs in other courts in support of similar admissions policies. But the Bush administration has shifted course. On January 16, 2003, the administration filed amicus briefs in the Supreme Court, which declare the university’s policies unconstitutional and say racial diversity may only be achieved through racially neutral means. The two highest-ranking African-Americans in the Administration - Secretary of State Colin Powell and National Security Advisor Condoleezza Rice - subsequently distanced themselves from the Bush administration brief.
Critics pointed out that President Bush’s position is hypocritical – why is it permissible to use ostensibly racially neutral means to achieve the racially conscious goal of diversity?30 Why are “percentage plans” an acceptable alternative when they rely on continued segregation of high schools? The President’s condemnation of the system that
Bakke endorsed, namely the benign consideration of race as one admission factor among many, calls into question his commitment to longstanding civil rights goals.
This shift reveals President Bush’s contradictory views on the role of states in determining social policy. On the one hand, this administration champions “states’ rights” and supports judicial nominees committed to limiting the ability of Congress to enact civil rights laws applicable to states. Yet administration officials assert federal authority when they want to stop states from enacting civil rights policies with which they disagree. Here, the state of Michigan has decided that the narrowly tailored use of race is necessary to achieve a diverse student body at state universities. The Bush administration disagrees with that policy and relies on federal supremacy to overturn it.
President Bush’s willingness to reverse the federal government’s position in this highly visible pending civil rights litigation has inflamed rather than soothed racial tensions.
Failing to Defend the Rights of Victims of Employment Discrimination: the New York City Custodian Case
In 1992, during the administration of President George H.W. Bush, the Justice Department began to investigate the dramatic under-representation of women and minorities among school custodians hired by the New York City Board of Education. By 1993, DOJ had filed suit, alleging in its pleadings that on a staff of 865 custodians, Whites made up 92 percent and males made up 98.5 percent, despite the availability of many qualified women and minorities. In essence, custodian jobs in New York were awarded within an “old boys” network that is plainly unacceptable under the Constitution and Title VII of the Civil Rights Act.
The suit was settled three years ago by means of a court-approved consent decree. But litigation over the consent decree continues, and the underlying problem has not been solved. Today, some 96 percent of the custodians are men, and very few of them are minorities.
Female and minority custodians received awards under the settlement with the support of the plaintiff Justice Department, but the seniority rights of those employees have been challenged by a group of White male custodians. Last April, the Civil Rights Division at DOJ abruptly abandoned the claims of the female and minority custodians and refused to defend the settlement against the challenge from White male custodians.
The American Civil Liberties Union has intervened in the case to assume defense of those claims, but DOJ’s shift in position continues to reverberate. In a letter to the court, lawyers for New York City — who had initially defended against the lawsuit — complained that the Justice Department had “abruptly refused to be bound by the settlement agreement that it proposed, signed, moved this court to approve and defended on appeal.”31
Undermining Equal Employment Opportunity for Women: the SEPTA Case
The Civil Rights Division at DOJ spent four years in litigation to overturn discriminatory hiring criteria used by the Southeastern Pennsylvania Transportation Authority (SEPTA). But in late 2001, on the very day an appellate brief in the case was due, the Department abruptly dropped the civil rights suit altogether.
The case focused on an aerobic capacity test that SEPTA administered to job applicants. SEPTA set the pass-rate for the test at a level that caused 93% of female applicants to fail. But the SEPTA standard was stricter than the standard used by the FBI, the Secret Service, and the New York City police and fire departments. Prior to the Bush administration’s reversal of position, the Justice Department had long contended that the SEPTA standard was unnecessarily strict and therefore impermissibly discriminated against women.
The litigation continues without federal involvement, but the female plaintiffs in the case are bitter about the Bush administration’s reversal. Terry Fromson, managing attorney of the Women’s Law Project, criticized, the Justice Department for “backing out on a commitment to defends equal rights for women in a highly visible case.” Another lawyer for the plaintiffs said: “This is politics. They are willing to turn their backs on women despite their pledge to enforce civil rights laws.”32
Retreating on Racially Discriminatory Hiring Tests: the Buffalo Police Case
The Buffalo Police Department has a long history of employment discrimination. Blacks, Hispanics, and women were systematically excluded from becoming police officers by means of employment tests that bore little or no relation to law enforcement skills. In 1973, the city was sued under Title VII of the Civil Rights Act and found liable at trial. The Civil Rights Division played an important role in the case from its earliest days; a 1978 court order drafted by Justice Department has been the standard by which the city is judged in its efforts to achieve compliance with federal law.
In the intervening years, under court supervision, the city has made great strides in remedying past discrimination. But the job is not finished. Even today, the city has proposed employment tests of questionable validity that have an adverse effect on minority applicants. As recently as June 2001 — >in the early months of the Bush administration — the Justice Department opposed such tests. But one year later the Department adopted a completely different position and insisted that the same career lawyer who had worked for years opposing the tests take the opposite position in court.
Paul C. Saunders, an attorney at the prestigious firm of Cravath, Swaine & Moore, which has long represented African-American police officers in the case, wrote a letter to the career government lawyer that aptly summarizes the Department’s reversal:
To say that I was shocked and surprised by your new draft of the settlement agreement and proposed order would be an understatement of the first order. It represents such a dramatic departure from the Department of Justice’s earlier positions that I can only conclude that it was imposed on you by the ‘front office’ [i.e., the political appointees] of the Civil Rights Division. Whether or not it was, however, the difference between the position now reflected in your proposal and the positions that the Department was taking less than a year ago is nothing short of breathtaking.33
Interestingly, the current reversal echoes the government’s earlier embarrassing turnaround in the case. During the Reagan administration, then-Civil Rights Division head William Bradford Reynolds sought to overturn the 1978 order that his Justice Department predecessors had drafted, arguing that such a “race-conscious” remedy order was illegal, even in the face of massive prior race discrimination. The Second Circuit affirmed the order and helped discredit Mr. Reynolds’ extreme legal theories.34
Undermining the Rights of Individuals with Disabilities
President Bush’s father signed the Americans with Disabilities Act of 1990 (ADA) into law with great fanfare. The ADA offered the promise of equal, effective and meaningful opportunities for individuals with disabilities to participate in society. But the ADA is under attack in the courts. Employers have argued for narrow interpretations of key provisions in the ADA, interpretations that limit the number of Americans covered by the ADA and the scope of remedies available to them.
The Clinton administration frequently litigated in favor of a broad understanding of the ADA. Under Attorney General Reno, the Civil Rights Division vigorously enforced the Act, and the solicitor general filed briefs in support of litigants seeking protection. The current Bush administration has taken the opposite approach. In at least two ADA cases decided by the Supreme Court last term, Solicitor General Ted Olsen filed amicus briefs in favor of the employer, arguing for narrowing the scope of the ADA.35
In an important Third Circuit case called Frederick L. v. Department of Public Welfare,>36 the Justice Department recently failed to file an amicus brief in support of the rights of individuals with disabilities. Frederick L. involves the implementation of Olmstead v. L.C., a 1999 ADA case in which the Supreme Court held that individuals with disabilities must be moved from state institutions to community settings when clinically appropriate.37 The central issue in Frederick L. is whether a state is excused from that responsibility if doing so would require the expenditure of additional funds, even if the state will later reap significant savings. The Clinton administration, which had filed a brief in Olmstead> and advanced
Olmstead claims in lower courts, surely would have recognized the national implications of Frederick L. and filed an >amicus brief in support of the plaintiff. DOJ’s absence from the case speaks volumes about the administration’s lukewarm support for this very important civil rights statute.
Retreating from Enforcement of Civil Rights in Public Accommodations: the Adams Mark Case
Racial discrimination in providing hotel accommodations has been unlawful since the enactment of the Civil Rights Act of 1964 and the great majority of hotels have long since complied. However, allegations of serious problems with the treatment of African-Americans at the Adams Mark Hotel chain led the Clinton administration to investigate and ultimately enter into a consent decree with Adams Mark in March 2000 that required it, among other things, to implement non-discrimination policies and procedures in all of its hotels. While the decree was set to remain in effect for four years, less than two years after its adoption by the court, the Ashcroft Justice Department proposed ending the consent decree prematurely.
According to the original complaint, African-American guests attending an April 1999 Black College Reunion were systematically charged more than White guests for similar or inferior accommodations, offered restricted services, and singled out with a requirement to wear neon orange wristbands. Under a settlement with the Justice Department and the state of Florida, the company agreed to a series of reporting, training and advertising requirements that would remain in place until November 2004.
However, in February 2002, Assistant Attorney General Boyd told hotel officials that he might agree to modify the agreement to shorten the enforcement period. News accounts revealed that the company’s president, a contributor to Attorney General Ashcroft’s political campaigns, had requested such relief.38 After a storm of protest, Mr. Boyd backed away from the possibility of ending the agreement prematurely.
Restricting the Franchise: the Florida Voting Rights Case
Perhaps the most precious of the civil rights victories is the right to vote. The franchise is the fundamental engine of change in our democracy, and the primary means of ensuring the responsiveness of elected officials to public concerns. Yet one of the consequences of pervasive racial disparities in the criminal justice system39 is the massive disenfranchisement of African-American men, especially in Southern states.
In 14 states, persons who have been convicted of a felony are prohibited from voting for life. Even individuals convicted of non-violent crimes who resume a law-abiding life remain permanently ostracized from civic life in this fashion. As a consequence of disenfranchisement laws, 1.4 million Black men — 13 percent of the entire adult Black male population — are denied the right to vote. In two states, Florida and Alabama, approximately 31 percent of all Black men are permanently disenfranchised.40
The Brennan Center for Justice at New York University filed suit against Florida under Section 2 of the Voting Rights Act of 1965, which prohibits states from maintaining practices that deny or abridge the right to vote on account of race. The Florida law not only has the effect of denying thousands of African-Americans the franchise, there is also powerful evidence that it was originally enacted in 1868 with racial animus. One proponent of the law asserted that the disenfranchisement law would keep Florida from becoming “niggerized.”41
Fourteen former law enforcement and senior Department of Justice officials, including former Deputy Attorney General Eric Holder and former Solicitor General Seth Waxman, have filed an amicus brief in support of the plaintiffs in the case, Johnson v. Bush. But the current Justice Department has taken precisely the opposite position, filing an amicus brief in support of the offensive Florida law. Tellingly, Florida is represented by some of the same Washington lawyers who represented then-candidate George W. Bush in Florida following the 2000 election, an election in which felon disenfranchisement probably ensured Bush’s disputed margin of victory.
Rolling Back Protections Against Police Misconduct: the Pittsburgh Police Consent Decree
In 1994, Congress gave the Department of Justice important new authority to investigate troubled police departments and to remedy abuses that constitute a “pattern or practice” of police misconduct. One of the most successful invocations of that authority occurred in Pittsburgh, where in 1997, the Justice Department intervened in a civil rights lawsuit against the local police department and played a key role in shaping systemic reforms.
But in September 2002, the Civil Rights Division joined forces with Pittsburgh officials and asked a federal judge to lift the consent decree, despite the fact that the court-appointed auditor’s report had recently documented many remaining problems, including flaws in the systems used to investigate misconduct. Nonetheless, the court granted the Justice Department’s motion in part, over the objection of the NAACP, the ACLU, and other groups that had initiated the lawsuit prior to the Justice Department’s involvement.42
Changes in position by federal government litigators should be relatively rare. While priorities may shift and strategies may be modified, the government’s fundamental support for enforcement of the law, especially civil rights laws, should never be in doubt. Current occupants of the White House and the Justice Department should recognize the institutional interests that are served by continuity in litigation from one administration to the next.
John Dunne, a former New York State legislator who served as Assistant Attorney General for Civil Rights during the first Bush administration, has said that in his time at the Justice Department he never asked the solicitor general’s office to cancel an appeal. Indeed, Dunne says that his views on the merits of litigation were based, in part, on the institutional views of career attorneys in his Division.43
In contrast, the current Bush administration has shown itself to be too quick to alter the government’s litigation posture in important cases. This is one more arena in which the 50-year old bipartisan civil rights consensus is being tested as never before.