Since its creation in the Civil Rights Act of 1957, the Civil Rights Division (Division) of the U.S. Department of Justice has been the principal enforcer of our nation’s federal laws prohibiting discrimination. The Division’s work frequently has engendered controversy, and too often its mission has carried it to the juncture of law, policy, and partisan politics. For the most part, however, a bipartisan consensus in support of enforcement of core civil rights protections preserved the Division’s effectiveness. This consensus, however, proved inadequate during the presidency of George W. Bush, as enforcement activity diminished sharply and partisan considerations affected law enforcement and personnel decisions.
Enforcement of the law—particularly the laws prohibiting discrimination on the basis of race—declined precipitously. For example, during the first twenty months of the Obama administration, the Division filed twenty-nine cases alleging employment discrimination. During its first twenty months, the Bush administration filed just one such case. The Division went five years without filing a case pursuant to section 2 of the Voting Rights Act (the main provision authorizing lawsuits) to assist African American voters. It was not until 2006, when the Division was finally faced with the prospect of congressional oversight, that it broke this drought. During this period, however, the Division filed its first ever section 2 case alleging that African-American officials discriminated against white voters in Mississippi. United States v. Brown, 494 F. Supp. 2d 440 (S.D. Miss. 2007), aff’d, 561 F.3d 420 (5th Cir. 2009).
The Bush administration enforced section 5 of the Voting Rights Act, which requires covered jurisdictions to approve election changes before they can go into effect, for partisan gain. It delayed without justification preclearance of a Mississippi redistricting plan with the knowledge that delay would allow a federal district court to enter an alternative plan favoring Republicans. It precleared a mid-decade Texas congressional redistricting plan orchestrated by former Rep. Tom DeLay to favor Republicans, despite a unanimous finding by career attorneys that it would harm minority voters. It precleared a Georgia law requiring that voters show particular photo identification, despite the conclusion of the career staff that the law disadvantaged minority voters. A federal district court eventually struck down the law as the equivalent of a poll tax, and the state was forced to adopt a less draconian version. Common Cause/Georgia v. Billups, 406 F. Supp. 2d 1326 (N.D. Ga. 2005). The Division enforced the National Voter Registration Act to purge voters, but ignored enforcement of the act’s provisions that expand access to registration.
As the U.S. Justice Department’s inspector general and Office of Professional Responsibility found, the Bush administration unlawfully introduced partisanship and ideology into the hiring of career attorneys. See U.S. Dep’t of Justice, An Investigation of Allegations of Politicized Hiring and Other Improper Personnel Actions in the Civil Rights Division (2008), available at http://www.justice.gov/oig/special/s0809a/final.pdf. It abolished the longstanding hiring structure, largely excluding career employees from the process and placing hiring in the hands of political appointees who, too often, hired career attorneys on the basis of ideology and partisan affiliation. The Bush leadership also reassigned career attorneys involuntarily because they were not viewed as sufficiently conservative. By 2006, some 55–60 percent of career attorneys had left the Division, including many of its most experienced litigators. Changing Tides: Exploring the Current State of Civil Rights Enforcement Within the Department of Justice, 110th Cong. 115 (2007) (statement of Joseph D. Rich).
Although the effects of congressional oversight after 2006 and the arrival of a new attorney general in 2007 ameliorated some of the damage, the Obama administration inherited a weakened Civil Rights Division. Assistant Attorney General for Civil Rights Tom Perez described the task facing the Division leadership as “restoration and transformation.” As it moves forward, however, the Division will face substantial obstacles, including a depleted workforce, a hostile political environment, a diminished and conservative judiciary, and a legal landscape changed by a conservative Supreme Court in core areas.
The Division suffered a brain drain that left it short of expertise in key areas, such as the ability to put together a complex pattern or practice case against a large public employer, or the experience to take on the complexities of a major investigation into lending discrimination. Fortunately, the Division has lured back some experienced attorneys and has recruited others from public interest groups and private practice.
Complicating matters, many of the attorneys hired through the system that deemphasized merit in favor of partisanship remain in place. Doubtless, some will perform adequately, but others will not carry their weight, because of either lack of ability or hostility to vigorous law enforcement. Some attorneys may work from within to undermine the Division’s new leadership, while others have already chosen to go public with their complaints and feed a hostile political environment.
Hostile Political Environment
Opponents of the Obama administration in the media, Congress, and the U.S. Commission on Civil Rights have proven eager to discredit the Division. They have chosen as their primary vehicle allegations that the Division inappropriately dismissed voter intimidation complaints involving the New Black Panther Party (NBPP). The incident arose on Election Day 2008 in a heavily African-American precinct in Philadelphia. Two African-American men in paramilitary garb, one of whom carried a baton, stood outside a polling place. In the morning, a police officer arrived and told the man carrying the baton to leave, which he did. The other man had official credentials to serve as a poll watcher and was allowed to stay. No voter complained of intimidation.
Yet, spurred by partisan activists, Fox News covered the incident extensively. The same team of attorneys who previously had sued black officials in Mississippi for voting discrimination and who had obtained their positions during the era of politicized hiring in the Civil Rights Division quickly developed and filed a lawsuit pursuant to section 11(b) of the Voting Rights Act against the two men standing outside the polling place, the national head of the NBPP, and the New Black Panther Party itself. Career officials who ran the Division until Obama’s political appointees arrived determined that the evidence did not support the complaints against the unarmed poll watcher, the NBPP, or its leader, who had denounced the actions of the two men, but they approved seeking an injunction against the man with the baton.
As the Department of Justice’s watchdog Office of Professional Responsibility subsequently found, the decision to dismiss the complaints fell comfortably within the discretion afforded the Division’s leadership. The evidence was thin, the harm was unsubstantiated, and section 11(b) is a particularly inapt tool for addressing election day voter intimidation. It allows only for injunctive relief, which inevitably will be entered long after election day. Indeed, the provision has proven so ineffective that the Division has invoked it only four times since its enactment in 1965.
The U.S. Commission on Civil Rights, however, launched an investigation, which even one of its Republican members denounced as a partisan effort to attack President Obama. See Ben Smith, A Conservative Dismisses Right-Wing Black Panther “Fantasies,” Politico (July 16, 2010, 5:48 P.M.), http://www.politico.com/news/stories/0710/39861.html. The Commission’s investigation, the continuing coverage of agenda-driven media, and the vigorous oversight of a Republican House of Representatives will pose a continuing challenge to the Division’s ability to enforce the law.
Because of the Obama administration’s delay in nominating judges and obstruction by the opposition in the Senate, the president has filled judicial vacancies at a slower pace than any other president in history. The Senate has confirmed only nineteen court of appeals judges and sixty-five district court judges nominated by President Obama, leaving ninety current judicial vacancies. Independence of the Judiciary: Judicial Vacancies, Am. B. Ass’n, http://www.americanbar.org/poladv/priorities/judicial_vacancies (last visited May 31, 2011). There remain fifty vacancies for which the president has not named a nominee. Judicial Vacancies, U.S. Courts, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies.aspx (last visited May 31, 2011). Thirty-three of the vacancies have been declared judicial emergencies by the Administrative Office of the U.S. Courts. Judicial Emergencies, U.S. Courts, http://www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies/JudicialEmergencies.aspx (last visited May 31, 2011).
While Obama has done an extraordinary job of identifying diverse nominees—after his first twenty months in office, 44 percent of his nominees were women and 44 percent were nonwhite—he has, for the most part, shied away from nominees identified with civil rights and civil liberties issues. Alliance for Justice, The State of the Judiciary/The Obama Administration: The First Twenty Months 3 (2010). The exception is Goodwin Liu, who finally withdrew his nomination after an extended filibuster. And his nominees have been, on average, older than those of President Reagan, George H. W. Bush, and George W. Bush. Micah Scwartzman, “Not Getting any Younger,” Slate (May 26, 2011), http://www.slate.com./id/22955971.
The Civil Rights Division, therefore, faces courts with overloaded dockets and growing delays. It also faces a judiciary whose overall ideological composition is unsympathetic to its work. Indeed, when Obama was inaugurated, 59 percent of federal judges had been appointed by Republican presidents, who openly sought to reshape the judiciary in a conservative mold. After the first twenty months of the Obama administration, the judiciary remained composed of 59 percent of judges appointed by Republican presidents. Id. at 6.
Difficult Legal Landscape
While the Civil Rights Division was somnolent, the Supreme Court made its job more difficult. Although nearly every aspect of the Division’s enforcement authority has been affected, major decisions in a few core areas demonstrate the impact:
Section 5 of the Voting Rights Act requires that covered jurisdictions seek preclearance before implementing any election change. Shortly after Congress renewed this provision in 2006, the tiny Northwest Austin Municipal Utility District Number One (NAMUDNO) filed suit, claiming that it should not be covered, but, if it were, Congress had exceeded its authority in enacting section 5.
Although the Court held 8−1 that the act’s language should be interpreted to allow jurisdictions such as NAMUDNO to bail out from coverage, the Court’s opinion expressed doubts about the act’s constitutionality and appeared to send a message to Congress that the act might not survive a second round of scrutiny. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2516 (2009). Two new constitutional challenges are moving through the U.S. District Court for the District of Columbia. Shelby Cty., Ala. v. Holder, No. 10-0651, 2010 WL 3700839 (D.D.C. Sept. 16, 2010); Laroque v. Holder, No. 10-0561, 2010 WL 3719928 (D.D.C. May 12, 2010).
Section 5 is central to the Division’s enforcement program. While the Division rarely interposes a formal objection to a proposed change, its existence significantly influences the behavior of covered jurisdictions. Section 5 is particularly important following the decennial census when jurisdictions redraw electoral districts. The Division will be faced with scores of redistricting submissions, while the constitutionality of section 5 remains under challenge.
Employment discrimination plaintiffs have traditionally faced long odds in federal court. See Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol’y Rev. 103 (2009). Such cases have faced procedural barriers, see, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), and will likely suffer disproportionately following the rejection of notice pleading in favor of a plausibility standard in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
Because of its resources and expertise, the Division often has led the way in challenging the use of written tests by large public employers, notably police and fire departments. In Ricci v. DeStefano, 129 S. Ct. 2658 (2009), the Court complicated that task by holding that New Haven, Connecticut, engaged in intentional discrimination against white firefighters when it refused to certify the results of an exam for promotions to lieutenant and captain, pursuant to which no African Americans qualified for promotion and no Hispanics qualified for promotion to lieutenant. The Court stated that the city could not walk away from the test results without a strong basis in evidence that the test had an unlawful discriminatory impact under Title VII of the Civil Rights Act of 1964. The strong basis in evidence requirement is the same high standard the Court imposes to sustain race-conscious affirmative action.
Ominously, the Court set the twin pillars of Title VII’s enforcement structure—disparate impact and intentional discrimination—at odds with each other by reasoning that efforts to avoid disparate impact could result in intentional discrimination in violation of Title VII. Although the majority left the question open, Justice Antonin Scalia, in concurrence, stated that Title VII’s disparate impact standard is inconsistent with the Equal Protection Clause and forecast that the Court would eventually have to address the issue.
Finally, after announcing this new standard, rather than follow its customary practice of remanding the case to the lower courts for its initial application to the facts, the Court held the test valid. In doing so, the Court disregarded the Equal Employment Opportunity Commission’s (EEOC) Uniform Guidelines on Employee Selection Procedures. 29 C.F.R. pt. 1607 (2010).
Ricci will chill voluntary efforts to avoid disparate impact discrimination, which will increase the need for vigilance by the Division and the EEOC. The case also implies doubts about the validity of the EEOC Guidelines and announces that conservatives on the Court will press to invalidate Title VII’s disparate impact provision, as inconsistent with equal protection. All of this will make the Division’s efforts to combat discriminatory selection methods more difficult.
For many years, the Division focused on desegregation of the nation’s public schools. The Division was a party to and monitored hundreds of desegregation decrees, returning to court where necessary to request further relief. As the possibilities for further relief diminished, courts dismissed an increasing number of decrees, often with the understanding that jurisdictions voluntarily would continue court-ordered assignment plans. The Supreme Court dashed many of these expectations in Parents Involved v. Seattle School District No. 1, 551 U.S. 701 (2007), in which it invalidated voluntary race-conscious school assignment plans in Seattle, Washington, and Louisville, Kentucky, making it much more difficult to achieve and maintain meaningful desegregation.
The Court puts pressure on the Division to resist release of jurisdictions from desegregation decrees when doing so will result in the dismantling of race-conscious assignment plans and increase the likelihood of resegregation.
Restoring and reforming the Civil Rights Division will require wise management to surmount internal challenges, political skill to fend off partisan attacks, progress in appointing judges, and exceptional lawyering to protect rights in a challenging legal environment. All of these qualities are in short supply, but the urgent need to restore our nation’s vigorous protection of civil rights demands that Americans work to summon them all.