ACLU Letter to Representatives Nadler and Franks Exploring the Current State of Civil Rights Enforcement within the Department of Justice

The Honorable Jerrold Nadler
Chair, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties
House Judiciary Committee
Washington, D.C. 20515

The Honorable Trent Franks
Ranking Member, Subcommittee on the Constitution,
Civil Rights, and Civil Liberties
House Judiciary Committee
Washington, D.C. 20515

“Changing Tides: Exploring the Current State of Civil Rights Enforcement within the Department of Justice:” Oversight Hearing on the Civil Rights Division of the Department of Justice

Dear Representatives Nadler and Franks:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nationwide, we write to express our serious concerns about the Department of Justice’s (“DOJ”) enforcement of civil rights laws under the Bush Administration. The Department of Justice is the nation’s largest law enforcement agency and DOJ’s Civil Rights Division could be considered the nation’s largest civil rights legal organization. It should bring great power and resources to bear in defense of America’s most vulnerable. It wields the authority and resources of the federal government on difficult and complex issues and has helped bring about some of the greatest global advances for civil rights. However, DOJ’s record under the Bush administration shows it is not living up to this critical mission. The Civil Rights Division has avoided challenging cases that could yield significant rulings and advance civil rights.

The Bush administration has abdicated its responsibility to enforce the nation’s most critical laws. In extreme cases, DOJ has gone so far as to switch sides from defending the civil rights of minority plaintiffs to being their opponent. The most recent example is its flip-flop in the case, United States v. the New York City School Board. In 1996, the Justice Department brought suit against the New York City Board of Education, alleging that the Board discriminated against women, African Americans, Hispanics, and Asians by giving civil service tests for these jobs that discriminated against African Americans and Hispanics. While the Board of Education maintained a category of senior building engineers in the New York City schools that is well paid, privileged and overwhelmingly white and male, it failed to recruit African Americans, Hispanics and Asians. In 1999, after several years of litigation, the Justice Department and the Board of Education entered into a settlement agreement. At that time, many of those working as custodians were employed only provisionally – they could be fired at any time and could not compete for various job benefits because they had not passed the civil service exam. The agreement said these individuals would all become permanent civil service employees. The agreement also gave them retroactive seniority. Finally, the agreement said that if any of its provisions were challenged, the Justice Department and the Board of Education would defend the agreement.

When several white male custodians represented by the Center for Individual Rights brought just such a challenge, arguing that the settlement constituted reverse discrimination, the Justice Department reneged on its promise to defend the individuals it had previously represented. In response, the ACLU Women’s Rights Project stepped in to protect the settlement agreement and took up the fight on behalf of those the Justice Department had abandoned. In October 2005, the ACLU presented its legal arguments to the court. In September 2006, a federal judge in Brooklyn upheld job benefits for the female and minority school custodians in an important victory against discrimination in the workplace. Although the ACLU works tirelessly to defend and protect civil rights and civil liberties of Americans, we should not have to step in to do DOJ’s job.

Another example of the Justice Department’s unwillingness to enforce civil rights laws occurred in Pennsylvania in a case involving the public transit agency in the Philadelphia Region, the Southeastern Pennsylvania Transportation Authority or SEPTA. In the SEPTA case, the Justice Department suddenly dropped its support in 2001 for a lawsuit brought by women who said the SEPTA running test for police was unfair to female applicants. The test demanded women run 1.5 miles in 12 minutes. No other [transit?] police force in the country uses such a rigorous test because running a mile-and-a-half in 12 minutes isn’t a prerequisite to be a good transit cop, but it did effectively exclude women from the SEPTA police force. The statistics revealed that 93 percent of women applicants couldn’t pass the running test. Although the Justice Department pressed its case for four years under the Clinton Administration, the Bush-appointed leadership decided to abandon the case and the civil rights of these women.

The Department’s voting rights section has also thrown the scales of justice off balance. Since 2001, it has filed more minority language cases under Section 203 than in the entire previous 26 years. While that is a positive development, it initiated very few cases under Section 2 of the Voting Rights Act, which is the main anti-discrimination provision. The Voting Section has only filed seven Section 2 cases in the last five years, with one of them being its first reverse-discrimination complaint on behalf of white voters. The only case involving black voters began under the previous administration and was filed in 2001. In comparison, 14 Section 2 lawsuits were filed during the last two years alone of the Clinton administration.

Most of the department’s major voting-related actions of the past five years have been beneficial to the Republican Party, including two in Georgia, one in Mississippi and a Texas redistricting plan. Current and former lawyers in the Civil Rights Division said political appointees continually overruled their decisions and exerted undue political influence over voting rights cases. One-third of the Civil Rights Division lawyers have left the department and the remaining lawyers have been barred from making recommendations in major voting rights cases.

In addition, the Justice Department has also abandoned its mission in cases involving abusive police practices. The Department’s Special Litigation Section is charged with handling cases under Police Pattern or Practice Litigation. These “police abuse” prosecution cases numbered about 20 nationwide as of 2006, according to a leading scholar on the subject, Professor Sam Walker at the University of Nebraska at Omaha. Very few, if any, consent decrees have been entered into under the Bush administration. While the Bush administration has entered into several memorandum-of-agreement settlements, there has been no effort to address the on-going problems of agencies such as the San Francisco Police Department. Progress has ground to a halt and the special litigation section hasn’t initiated any new cases in years. We know from recent cases in New York, Atlanta and Los Angeles that police abuse does still exist in America.

Instead of taking up the cause and defending civil rights, the Justice Department is diverting valuable resources to smaller, easier cases that have little or no impact on defeating nationwide civil rights abuses. We cannot allow DOJ to continue its destruction of civil rights in this country. We look forward to working with Congress to return the DOJ to its rich heritage of protecting the rights of minorities and enforce civil rights laws.

Sincerely,

Caroline Fredrickson Jesselyn McCurdy
Director Legislative Counsel

cc: House Judiciary Committee