Civil Rights Déjà Vu, Only Worse

Civil Rights Déjà Vu, Only Worse

Under George W. Bush, Republicans set about undermining the Civil Rights Division of the Justice Department. Expect a more devastating assault on the division under Trump.

December 12, 2016

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In my first job as a practicing lawyer, I served from 1994 to 1997 as a career attorney in the Civil Rights Division of the U.S. Department of Justice. The division, staffed by hundreds of committed lawyers and other professionals, has long played a key role in making good on our nation’s promise of equality under the law. Established in 1957, it was at the center of the civil-rights struggle of the 1960s. Its attorneys had a major hand in drafting, defending, and enforcing the 1964 Civil Rights Act and the 1965 Voting Rights Act, and its cases successfully desegregated schools and neighborhoods throughout the United States. The Civil Rights Division has always represented the best of what government can do.

At the beginning of the Obama administration, I returned to the division as part of the leadership team assembled by Tom Perez, who was assistant attorney general at the time. George W. Bush’s administration had taken its toll on the division’s staff. Although some great lawyers and other professionals had continued to work there, the department’s top leadership under Bush had abused and demoralized them. During the first six months of my job, much of the work was best described as trauma counseling. At staff meetings and discussions of pending cases, lawyers would break down, suddenly remembering horrible things that the Bush folks had said or done.

Of course, not all the longtime staff had stuck it out through the Bush years. A large proportion of the attorneys in the division, including about two-thirds of those in the Voting Section, had departed. The departing lawyers were disproportionately those who had between 7 and 15 years of experience, just the people the division counts on most to lead trial teams and handle the most complex and sensitive issues.

Gage Skidmore/Creative Commons

Jeff Sessions speaking at an immigration policy speech hosted by Donald Trump in Phoenix, Arizona.

When career lawyers left during the Bush administration, three sorts of people replaced them. One group consisted of good lawyers who cared about civil rights. These were the kind of attorneys whom the division might have hired at any time—and there might have been more of them if the Bush appointees had not tried to avoid hiring lawyers who worked with civil-rights groups. A second group was made up of undistinguished lawyers from partisan Republican networks, who had shown no commitment to civil rights but sought a steady job in the career civil service. The third group was the most threatening: right-wing true believers with an agenda to subvert the historic work of the division—an agenda many of them continued to pursue after Barack Obama took office. Some of these attorneys, such as Hans von Spakovsky and J. Christian Adams, eventually left the division and became outspoken critics of Obama’s civil-rights policies from perches in conservative media.

By the time Perez and his team were done, the Civil Rights Division was the most aggressive and effective civil-rights law firm in the country—and perhaps the government’s most aggressive and effective enforcement agency. The Democratic Congress played a central role. It gave the division money to hire new career lawyers, enabling us to recruit truly outstanding, experienced, and committed people. We also insisted that front-line supervisors apply rigorous standards to all their employees, which helped to get the best performance from everyone and encouraged poor performers to find something else to do. We brought in several new section chiefs who took on both longstanding and newly developing civil-rights issues.

Under Perez, the division pushed forward on as many issues as possible as quickly as possible. When he moved on to head the Department of Labor, his successors Jocelyn Samuels and Vanita Gupta—neither of whom served with Senate confirmation—built on his achievements.

The election of Donald Trump, I fear, will wipe out all those achievements. Trump’s announcement that Alabama Senator Jeff Sessions is his choice for attorney general sends an especially strong signal about the new administration’s intentions. Sessions first came to public notice in the 1980s as a young Reagan-appointed U.S. attorney in Alabama, when he criminally prosecuted three prominent local voting-rights activists for voter fraud—only to see a jury acquit the activists in a matter of hours. Although Reagan nominated Sessions for a federal judgeship, the Republican-controlled Senate voted down his nomination after a number of Department of Justice lawyers—including one from the Civil Rights Division—testified about his use of racist language with his coworkers. Sessions has attracted national attention in recent years for his extreme anti-immigration positions.

Here are the areas in which civil-rights advocates should have the most concern about a Trump/Sessions Justice Department:

Personnel and Leadership. Many of the Bush appointees to leadership positions in the Civil Rights Division were notable for both their hostility to the division’s work and their personal nastiness. Brad Schlozman, principal deputy assistant attorney general, was the subject of a scathing report from the department’s Office of the Inspector General and Office of Professional Responsibility, but he was far from the only one to do enormous damage to the division’s work and morale. The Bush administration, however, did hire some decent senior staff committed to the division’s mission—notably, Wan Kim and Lisa Krigsten—and those appointees helped trim some of the administration’s worst excesses. I expect none of that decency in the Trump administration. The safe bet is that the people Trump and Sessions put in leadership positions within the division will be cut from the Schlozman mold. Many of them are likely to be chosen from the group of right-wing true believers who were hired into the division during the Bush administration and later became outspoken critics of President Obama. That development will, once again, drive away committed career attorneys.

Voting Rights. After the Supreme Court’s 2013 Shelby County decision cutting the heart from the Voting Rights Act, states formerly covered by the statute’s preclearance requirement initiated a wave of new vote-suppression measures. Other states also adopted voting restrictions in advance of the 2016 election. The Civil Rights Division responded with an aggressive program of lawsuits that limited the worst abuses, even if these lawsuits were not always successful.

Pete Souza/White House

Assistant Attorney General for Civil Rights Tom Perez after being nominated by President Obama for secretary of labor in March 2013. 

I expect the efforts to attack voter suppression to end in the Trump administration and the division instead to bring new lawsuits that will themselves be designed to suppress the vote. A provision of the National Voter Registration Act (commonly known as the Motor Voter law) requires states to maintain up-to-date voting rolls. Many conservative commentators—including leading right-wing voices on voting issues like Adams and von Spakovsky—believe that the voting rolls in many jurisdictions fail to comply with that provision because they contain people who died, moved out of the jurisdiction, or otherwise are not eligible voters. I expect the Trump Civil Rights Division to bring suits under that provision in places with large minority, youth, or other Democratic-leaning populations. The goal of these lawsuits will be to trim the voting rolls.

The division is also likely to turn toward enforcement of the rights of military voters—a perfectly good cause, but not one that should be pursued at the expense of enforcing the rights of minority voters. And if the Trump administration can find a case where African Americans even arguably stopped whites from voting, they will throw massive resources into proving such a case. A long effort by the Bush administration netted one case of that kind, in Noxubee County, Mississippi, which they pursued while letting many real vote-suppression cases go by the wayside.

Police Misconduct. Since 1994, the Civil Rights Division has had authority to sue police departments that engage in a “pattern and practice” of violating constitutional rights. Although the division took some important first steps in using that authority during the Clinton administration, the authority lay largely dormant during the Bush years. The Obama administration, by contrast, aggressively used the pattern-or-practice statute to reform police departments, and it did so even before the Black Lives Matter movement began. The division initiated investigations that were unprecedented in their number and scope; it entered into major consent decrees to transform law enforcement agencies in cities such as New Orleans, Seattle, Cleveland, and Ferguson, Missouri, and it filed contested litigation in Maricopa County, Arizona, among other places. These decrees addressed such matters as the use of excessive force, racial profiling, and the failure to protect victims of gender- and LGBT-based violence. In the past couple of years, the division has expanded its work to target practices that entrench economic inequality in the criminal justice system.

We can expect a Trump administration to seek to overturn this legacy. On the campaign trail, Trump blamed President Obama’s criticism of police misconduct for encouraging what Trump characterized as a “war on police.” The division’s new leadership will probably not drop the existing police consent decrees right away, but it will not enforce them vigorously. As soon as the courts allow, the division will likely allow police departments to get out from under the decrees, and it is unlikely to enter new ones. This will be a major loss to the efforts to reform American policing. Because of complex procedural doctrines created by the Supreme Court, private litigants are in no position to bring pattern-and-practice cases of this type—only the government can do so. Without an aggressive Civil Rights Division, the key tool of litigation-induced reform will be unavailable. And we can anticipate that the division will shut down its efforts to address economic inequalities in this area.

Fair Housing. Donald Trump has personal experience with the division’s enforcement of the Fair Housing Act—as a defendant in a major case challenging racial discrimination in Trump-owned apartment properties in the 1970s. On the campaign trail, Trump opposed the Obama administration’s steps to revitalize fair-housing enforcement.

I expect Trump’s opposition to have a major impact on the division’s work in the housing area. The division will continue to do small-bore fair-housing work, thanks to amendments that Democrats added to the Fair Housing Act in 1988 that limit prosecutorial discretion and require the Department of Justice to bring cases on behalf of individual victims of discrimination in many circumstances. (The amendments, passed by a Democratic Congress, were a response to then–Assistant Attorney General William Bradford Reynolds's gutting of civil-rights enforcement.) But don’t expect the Trump administration to bring systemic fair-housing cases, like the one against Trump in the 1970s, or the ones that resulted in hundreds of millions of dollars’ worth of settlements in fair lending cases arising out of the foreclosure crisis. The lawyers now assigned to those cases will likely be reassigned to other work performed by the Division’s Housing Section. In the Bush administration, a shift in priorities away from fair-housing cases led to an increased emphasis on bringing cases under the Religious Land Use and Institutionalized Persons Act to challenge local decisions to deny churches, mosques, and synagogues zoning permits to expand their buildings and parking lots. Expect a similar shift in the Trump administration, though intervention on behalf of mosques does not seem likely to be a high priority.

Douglas Graham/CQ Roll Call via AP Images

Protesters hold signs outside the Supreme Court as the Shelby County, Alabama v. Holder oral arguments where set to begin at the Supreme Court on the importance of protecting the right to vote for all Americans on February 27, 2013. 

Hate Crimes. During the Obama administration, the division has prosecuted record numbers of hate crimes. In the first year of his administration, Obama signed the Shepard-Byrd Hate Crimes Prevention Act, which significantly expanded the Civil Rights Division’s authority to prosecute these offenses.

Hate-crimes enforcement has taken on new urgency with the spate of incidents that occurred in the immediate aftermath of Election Day. We ought to expect the division to continue to prosecute clear-cut hate crimes. But, given the political currents that supported the Trump campaign, we should also expect the prosecution numbers to go down. And, given periodic attempts by the right-wing media to treat incidents of black-on-white violence as hate crimes, look for the Trump administration to scour the country for such incidents to prosecute federally.

Education. In May 2016, on the 62nd anniversary of the Brown v. Board of Education decision, the Government Accountability Office reported that American public schools remain heavily segregated on the basis of race and class—and that the extent of segregation was increasing. Although Supreme Court decisions over the past four decades—starting with Milliken v. Bradley in 1974, and extending through the Roberts Court’s 2007 Parents Involved case—have thrown up significant obstacles to school integration, the Civil Rights Division has continued to pursue desegregation in an active docket of cases. The new administration can be expected to allow that work to wither on the vine. And we can likely say goodbye to the Obama administration's nascent, but important, efforts to promote socioeconomic integration in schools.

The division, along with the Department of Education, has also done key work in recent years to reform school discipline to promote safe school environments while avoiding disparate racial impacts and cutting off the school-to-prison pipeline. These efforts have drawn sharp criticism from right-wing media. Expect the division to turn away from its focus on school discipline, and to turn its attention to claims of discrimination brought by religious groups who seek to use public school resources.

Fibonacci Blue/Creative Commons

Under Trump, the Civil Rights Division is likely to overturn consent decrees reached with New Orleans, Seattle, Cleveland, and other cities in the wake of Black Lives Matter protests. 

Rights of Language Minorities. The division has done lots of unsung work over the past few years in protecting the rights of Americans who speak languages other than English. Building on one of the few areas in which the Bush administration took significant positive steps in civil-rights enforcement, the division has protected the voting rights of language minorities. It has also taken a number of steps to ensure that those who speak little English have access to school, court, and other government services. Given the anti-immigrant politics on which Trump relied during his campaign, I expect the administration to abandon this work.

LGBT Rights. The Obama administration has been aggressive in interpreting laws forbidding sex discrimination—including Title VII (which prohibits sex discrimination in employment), Title IX (which prohibits sex discrimination in education), and the Fair Housing Act (which prohibits sex discrimination in the sale or rental of housing)—as embracing a prohibition on discrimination against gays, lesbians, and transgender individuals. This interpretation has met with some success in the courts, though it faces a major test in Gloucester County School Board v. G.G., currently pending before the Supreme Court. In the G.G. case, a lower court applied the Obama administration’s interpretation and enforced the right of a transgender boy to use the boy’s bathroom at his school.

The Court will hear argument in the G.G. case after Inauguration Day. Because the protection of transgender students was a flashpoint in the campaign, Trump’s Justice Department may not take the same position as the Obama administration in G.G. Even beyond that case, there is good reason to worry that the new administration will more generally abandon the Obama administration’s pro-LGBT-rights interpretations of the civil-rights laws—whether before or after the Court decides G.G. Even worse, there is a substantial prospect that the Civil Rights Division will take an affirmatively anti-LGBT-rights position and intervene to make religious-freedom or free-speech arguments on behalf of the defendants in LGBT discrimination cases brought under state laws.

Disability Rights. Disability rights have historically been bipartisan. George H.W. Bush has frequently declared the 1990 Americans with Disabilities Act (which he shepherded through Congress and signed as president) as one of his proudest achievements. When the courts read the ADA unduly narrowly, the Pelosi Congress passed a new law overturning those interpretations, and President George W. Bush proudly signed the law in 2008. But one can expect a Trump Civil Rights Division to be less aggressive in enforcing the ADA. The division may well shut down the Obama administration’s successful efforts to enforce the ADA’s integration mandate to ensure that states use their Medicaid dollars to create community services for people with disabilities. In the Obama administration, the division has been moving slowly—too slowly—to issue regulations governing the accessibility of the internet, but we can now expect those efforts to grind entirely to a halt. (Or, as some industry-friendly observers suggest, the division may issue regulations that impose minimal requirements on businesses that operate websites, thus preventing the courts from reading the ADA to embrace more robust protections.)

All told, we can expect a Trump Civil Rights Division to reverse a vast swath of the gains, both in management and in substance, that the division made under Obama. Can anyone take up the slack? Committed activists and lawyers outside the government will fight the good fight and win some battles, but the sad fact is that the Civil Rights Division is indispensable to effective civil-rights enforcement. Over decades, the Supreme Court has chipped away at the tools for private plaintiffs to sue to enforce the civil-rights laws. State attorneys general have some authority, but they lack the resources of the federal government, and most lack the will. The election of President Trump will massively set back civil-rights enforcement for years to come.

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