SPEAKERS CONTENTS INSERTS
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CIVIL RIGHTS DIVISION OF THE
U.S. DEPARTMENT OF JUSTICE
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
JUNE 25, 2002
Serial No. 81
Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, JR., WISCONSIN, Chairman
HENRY J. HYDE, Illinois
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
LINDSEY O. GRAHAM, South Carolina
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL E. ISSA, California
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
Page 4 PREV PAGE TOP OF DOCSPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MELISSA A. HART, Pennsylvania,
LAMAR SMITH, Texas
J. RANDY FORBES, Virginia
JERROLD NADLER, New York
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
BRADLEY S. CLANTON, Chief Counsel
PAUL B. TAYLOR, Counsel
CRYSTAL M. ROBERTS, Counsel
KRISTEN SCHULTZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
JUNE 25, 2002
The Honorable Steve Chabot, a Representative in Congress From the State of Ohio, and Chairman, Subcommittee on the Constitution
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Mr. Ralph F. Boyd, Jr., Assistant Attorney General, Department of Justice
CIVIL RIGHTS DIVISION OF
THE U.S. DEPARTMENT OF JUSTICE
TUESDAY, JUNE 25, 2002
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 11:06 a.m., in Room 2237, Rayburn House Office Building, Hon. Steve Chabot [Chairman of the Subcommittee] presiding.
Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution of the Judiciary Committee. I am Steve Chabot, the Chairman.
This morning, the Subcommittee on the Constitution convenes to review the progress of the Civil Rights Division of the Department of Justice under the leadership of Assistant Attorney General Ralph Boyd. Since its inception in 1957, the Division has sought to protect the civil rights of all Americans by enforcing laws prohibiting discrimination on the basis of race, sex, handicap, religion, and national origin. We are proud of the accomplishments of the Division in combatting discrimination in areas as diverse as education, employment, housing, lending, public accommodation, and voting.
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Over the years, the Assistant Attorney General has played a crucial role in establishing Division policy and providing executive guidance and direction to further the important work of the Division. Many believe that the Division failed to vigorously enforce civil rights laws during the tenure of Bill Lann Lee, who President Clinton appointed Acting Assistant Attorney General in December 1997, after the Senate refused to confirm him. Under Lee, the Division used decades-old school desegregation decrees to wage a war on charter schools, filed employment discrimination lawsuits against municipalities without a sufficient factual basis for its claims, and maintained that the electoral systems be dramatically revamped to ensure proportional representation. An oversight hearing held by this Subcommittee on July 12, 2000, exposed Lee's abdication of the Division's enforcement responsibilities.
During the short tenure of Assistant Attorney General Ralph Boyd, the Division has actively prosecuted civil rights violations and reached several landmark settlement agreements. We commend the Division's efforts to combat backlash discrimination following September 11 by investigating over 350 incidents of discrimination against individuals perceived to be of Middle East origin, initiating State and Federal prosecutions, and conducting community meetings with Arab Americans across the country to allay concerns about alleged mistreatment by Federal investigators.
Using the tools provided by the Trafficking Victims Protection Act, passed by Congress in 2000, the Division has taken the lead in Federal investigation and prosecution of human trafficking. Notably, the Division prosecuted 35 defendants for trafficking in 2001, roughly quadrupling the number prosecuting in 2000.
Page 7 PREV PAGE TOP OF DOC Last year, the Division conducted extensive investigations and compliance reviews to determine if city and State governments were providing adequate access to services and programs for people with disabilities, as required by the Americans with Disabilities Act. And on January 30, 2002, the Division reached landmark settlement agreements with 21 communities across the country to improve the accessibility of public administration buildings, libraries, polling places, police stations, and parks.
During Lee's tenure, the Division participated in 457 school desegregation cases and did little or nothing to return control of those school districts to local officials. Under Assistant Attorney General Boyd, the Division is making progress in this area. The Division has recently settled two major desegregation cases, collecting over $800 million to improve educational opportunities for minorities in New York and Mississippi. We encourage the Division to continue to lift consent decrees as school districts become fully integrated.
The Division has also made great strides in the area of voting rights, actively reviewing redistricting plans submitted under section 5 of the Voting Rights Act. Since last February, the Voting Section has pre-cleared 1,222 of the redistricting plans and never missed a deadline. The Voting Section has represented the Attorney General in two suits for a declaratory judgment under section 5 of the act filed by Georgia and Louisiana. We encourage the Division to continue to review redistricting plans expeditiously and exempt complying districts from section 5 coverage.
The Division has played an important role in protecting the civil rights of all Americans. We hope to examine the strides the Division has made under Assistant Attorney General Ralph Boyd in today's oversight hearing. I look forward to hearing from our witnesses this morning.
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At this time, we will turn to the minority side. Mr. Nadler is not here yet. Are either one of the other Members interested? We will let Mr. Nadler give an opening statement when he gets here, at an appropriate time.
At this time, then, we will recognize our witness and introduce him and welcome him to the Committee. Our witness today will be Ralph Boyd, Assistant Attorney General for the Civil Rights Division of the Department of Justice. Mr. Boyd is responsible for the Department's enforcement of the nation's civil rights laws prohibiting discrimination on the basis of race, sex, handicap, religion, and national origin in areas that include housing, education, voting, employment, and public accommodation.
Prior to his appointment in 2001, Mr. Boyd served as a partner at the Boston firm of Goodwin Proctor. From 1991 to 1997, he served as an Assistant U.S. Attorney in Boston, prosecuting firearms, homicide, trafficking, and gang violence cases. Mr. Boyd coordinated Operation Trigger Lock, a national gun crime prosecution program, and served as a member of the Department's Urban Crime Initiative. Mr. Boyd is a recipient of the Attorney General's Special Achievement Award. He graduated from Heverford College and earned his law degree at Harvard University, and we welcome you here this morning, Mr. Boyd. We look forward to hearing your testimony.
STATEMENT OF RALPH F. BOYD, JR., ASSISTANT ATTORNEY GENERAL, DEPARTMENT OF JUSTICE
Mr. BOYD. Thank you very much, Mr. Chairman, and if I may, I would like to start out by making some brief remarks, which I will represent to the Committee are much more brief than the written testimony that we have submitted for the record of this Subcommittee today.
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But thank you, Mr. Chairman and other Members of this distinguished Subcommittee. Thank you for inviting me to discuss the important work of the Civil Rights Division. I appreciate this opportunity to let you know about the work we are doing, what the Division has accomplished, answer your questions about our work, and perhaps most importantly, to listen to your concerns about what I believe is our even-handed and fair and vigorous enforcement of our nation's civil rights laws. I also want to thank your respective staffs for the courtesies that they have extended in meetings with me over the past few months on a variety of topics.
Let me begin by saying that it is really an enormous honor and privilege to serve as the Assistant Attorney General for Civil Rights. The laws enforced by the Civil Rights Division reflect some of our country's highest aspirations, that is, to become a society that provides equal justice under law, that effectively protects the most vulnerable among us, and whose citizens not only respect and protect their own individual freedom and liberty but also champion the individual freedom and liberty of others who may be different from them.
William Jennings Bryan, and I have quoted him before but I think his quote is particularly fitting for our purposes, William Jennings Bryan once said, ''Anglo-Saxon civilization has taught the individual to protect his own rights. American civilization will teach him to respect the rights of others.''
While the continuing need to enforce our civil rights laws confirms that we have not yet achieved a society free of prejudice and the discrimination it brings, there is no doubt in my mind that America is much better off for making the journey, and I am, therefore, honored to be charged with the important responsibility of enforcing our nation's civil rights laws at the Department of Justice.
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Mr. Chairman and Members of the Committee, when I agreed to serve as the Assistant Attorney General for Civil Rights, I came to the job, as the chair has pointed out, as a former prosecutor and professional litigator by training and experience, and it is from that perspective that I report to you on the work and the accomplishments of the Civil Rights Division. Let me first speak generally and say that the work of the Division goes forward carefully, but aggressively.
I recall during the confirmation process that many Senators sought assurances that I would continue to enforce certain civil rights statutes. I told them that I would and that I was fully committed to vigorous enforcement of the law, especially our nation's civil rights law, and the Division is doing just that and with the sense of purpose and the professionalism Americans expect and, indeed, deserve.
Last month during my oversight hearing before the Senate Judiciary Committee, Senator Kennedy in his opening remarks said, and I quote, ''Fulfilling the promise of equal justice is too important a goal and too difficult a challenge to allow ideological considerations to influence the importance of the nation's civil rights laws.'' I agree, and that is how we have approached the issues that have come before us and that is how we will continue to treat them.
As the head of the Civil Rights Division, I call balls and strikes based on the law and facts that pertain to a given situation as best I am able to discern them and withoutwithoutregard to politics. That is not always easy to do and it often brings criticism, sometimes criticism of a very personal nature and almost always of a political nature. But regardless of the source of the criticism or the intensity of that criticism, the Civil Rights Division will carry out its enforcement mission in a way that is faithful to the law and the factual truth as we are able to find it and discern it. I simply will not budge from that principle, no matter what.
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I know there are individual issues, individual cases about which some of the distinguished Members of this Committee may have questions or concerns and I look forward to addressing them openly and candidly. At the outset, however, let me say that about 99 percent of what we do, 99 percent of the hard work done by the lawyers in the Civil Rights Division is never seen or discussed because it is simply not controversial, and yet it is important and it is precisely the kind of unstinting civil rights enforcement that Senator Kennedy spoke of and that I insist on and that the country expects of us.
Looking at our enforcement record in its entirety, it seems to me inarguably true that the Civil Rights Division has been aggressive, productive, and fair in its civil rights enforcement and outreach efforts at an especially critical time in the history of our country.
For example, in April, Attorney General Ashcroft presided over the signing ceremony for an unprecedented agreement between the Department of Justice and the City of Cincinnati that will affect major reforms in the Cincinnati Police Department. A year ago, the City of Cincinnati, Ohio, was literally and figuratively smoldering in the wake of riots touched off by controversial police shootings of young black men. One year later, after thorough investigation by the Civil Rights Division led by its Special Litigation Section and intense negotiations, there is a positive outlook in Cincinnati. There is a framework for healing that that city sorely needs, a framework resulting from the coming together and the working together of many parties with varying, differing views, parties as diverse as the ACLU, the Black United Front, the local NAACP, the Urban League, and the Fraternal Order of Police.
Page 12 PREV PAGE TOP OF DOC Cincinnati, I am happy to report, is not an isolated case. I am also gratified to report on the Civil Rights Division efforts to combat backlash crimes against Arab and Muslim and Sikh and South Asian and other Americans who may appear to be of Middle Eastern origin since the attacks on our country of September 11. As I have said in the past, our civil rights laws are little more than empty rhetoric unless those they are designed to protect can first enjoy the fundamental right to physical safety. If we cannot do that as a Government, then anything else we might do will have a hollow ring to it.
My Division, working with the 56 FBI field offices across America, the 94 U.S. Attorneys' Offices, and State and local authorities has invested, as the chair pointed out, over 350 incidents since September 11, ranging from the attempting firebombing of a mosque to outright murder. Through ongoing cooperation among Federal and State authorities, approximately 80 prosecutions have been initiated and they are bearing fruit.
For example, recently, a defendant in Boston, Massachusetts, plead guilty to making threatening calls, calls threatening to kill a prominent Arab American leader and his family after September 11. Another defendant in Seattle recently plead guilty in a case we indicted in the days following September 11. That defendant stood accused of setting fire to cars at a mosque and then attempting to shoot worshippers when they exited the building.
These prosecution efforts have proceeded in tandem with our outreach efforts to communities affected by these backlash crimes. Since September 13, I have spoken out between 20 and 30 times in closed door sessions and in town hall meetings across America against violence and threats aimed at vulnerable people and affected communities, communities including our brothers and sisters who may look different than many of us, who may speak differently, or who may worship in a different way than we do, if they worship at all.
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Other areas of our civil rights enforcement efforts tell a similar story. For example, we enforce the Civil Rights of Institutionalized Persons Act, the primary Federal law protecting those who are among society's most vulnerable, the elderly, the mentally ill, children, inmates, and others who reside in State-run institutions. During my administration of the Civil Rights Division, the Division has authorized new investigations of 24 separate facilities under CRIPA. I have personally authorized 18 of those investigations since last July, and by way of comparison, the Division initiated investigations of 15 facilities in fiscal years 1999 and 2000 combined.
Now, I could tell Members of the Committee about many other achievements of the Civil Rights Division, most of which are further detailed in the written testimony I have submitted for the record today. I could describe our ever-increasing prosecution of human trafficking cases or our continuing efforts to protect minority voting rights by scrutinizing free of politics or other improper influence over 7,000 pre-clearance submissions under the Voting Rights Act since February of last year, submissions containing over 22,000 voting changes for the Division to review, and I am proud to say that the hard working section 5 staff in our Voting Rights Section has never missed a deadline, and I am also gratified to report that every single section 5 decision we make is motivated and informed by the facts and the law, regardless of the competing political interests impacted by our decision. That was true in Texas, it was true in North Carolina, it was true in Mississippi, in Arizona, in Florida, in every other case we have reviewed.
I could also talk at length about the $500 million settlement we reached recently with the State of Mississippi to end segregation and to ameliorate the remnants of segregation in its institutions of higher learning, or the $300 million settlement we and the NAACP in Yonkers, New York, achieved with the City of Yonkers to bring to a successful end a two decades old desegregation case, and more importantly, to close the education and the achievement gap between minority and white students in that city.
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I could talk about the sexual harassment cases we have initiated in our Employment Section, targeting a county fire department or a school district in the American Southwest, or our commitment to protecting poor and minority women involved in welfare-to-work programs from sexual harassment by taking the position in Federal Court that they are covered employees under title 7. I could also talk about the lawsuit we just filed last week against the City of New York Department of Parks and Recreation for discriminating against blacks and Hispanics in promotions.
There is also our role in the President's New Freedom Initiative, focusing on protecting the rights of the disabled and seeing to it that they are able to be, as other Americans are, fully involved in the economic, in the civic, and in the recreational mainstream of American life.
Mr. Chairman, I have been litigating cases for the better part of two decades, both as a prosecutor and a private lawyer. I think I have a sound basis from which to say that the quality and the quantity of our civil rights enforcement work during the almost 11 months that I have had the honor of serving as the Assistant Attorney General is exceptional by any reasonable measure. But we can do more. I am committed to doing more and I am committed to doing it better, and I hope that today's hearing will be part of an ongoing dialogue and constructive dialogue that will help us do our job, a job that the American people have entrusted to us. I hope it will help us do that job ever better.
With that, Mr. Chairman and Members of the Committee, I look forward to your questions.
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Mr. CHABOT. Thank you very much. We appreciate your testimony this morning.
Now, the Members will have 5 minutes each to ask questions, and I will begin with myself.
In addressing the use of force, and you referred to this in your testimony, by the nation's police departments, the Division is increasingly achieving settlements through memorandums of agreement, as it did with the Cincinnati Police Department in my district in my State of Ohio, and in voting rights cases, the Division is seeking to achieve agreements with political subdivisions prior to filing suit.
Is it accurate to say that the Division is taking a more cooperative and collaborative approach to resolving its cases, in seeking to negotiate settlements rather than litigate, and what are the advantages of this approach, and how does this approach differ from that of the prior Administration?
Mr. BOYD. Let me say this, Mr. Chairman. Thank you for the question. We are enforcing the same laws and taking the same view of what the law is. I think your characterization of our approach as being, at least in the first instance, initially a more collaborative approach is true. We have foundI have found from my experience in law enforcement and community building and improving relationships between the law enforcement community and the constituents that they serve, from my experience in Boston, I found that if you can use a collaborative approach that engages and involves all of the parties who have an interest in the resolution of a dispute, the opportunity to make real headway far more quickly than you can from adversarial and protracted litigation is the preferred approach.
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So, for example, in Cincinnati, the concerns that the community had about their relationship with the police department and the way that the police department conducted itself in policing the citizens of the community, those were issues that were of concern to everyone, not just Government, not just the rank-and-file police officers, and not just the command staff of the police department, but everybody had a stake in that, from the community being policed to Government to the command staff and to the union and to the rank-and-file, and we thought that it was critically important that all of those people who have an interest in preparing and improving the dynamic and the relationship between the police and the community in Cincinnati, that all folks ought to have a respected voice in the solution that will be arrived at that will not affect us here in Washington, but will affect the people of Cincinnati.
And that is our approach in other areas, as well, so that if we can work cooperatively and collaboratively with affected people and identify problems and assure ourselves of legally enforceable solutions, sustainable solutions to those problems, that is what we are going to do.
But make no mistake about it, Mr. Chairman. If that approach does not work, if the evidence and the law supports it, we will not hesitate to litigate. Litigate is obviously what our Division is set up to do and we are not shy about doing it. But if there is another way that will get it done better and faster and involve everyone who should be a part of that process, we will do it.
Mr. CHABOT. Thank you very much. In a piece that appeared in the Boston Globe on March 23 of this year, you explained your philosophy as follows. ''We want to be aggressive in protecting people in civil rights, but we also want to do it carefully and thoughtfully.'' In a hearing before the Senate Judiciary Committee on June 21, also of this year, you stated numerous times, and I quote, ''We, as a Division, have an obligation to get it right.''
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How has the Division acted aggressively, yet carefully and thoughtfully in enforcing civil rights laws and how is the Division getting it right?
Mr. BOYD. One of the things that I talked about in the context of getting it right tries to recognize that we have a mission in the Civil Rights Division and that really is to vigorously protect the civil rights of all Americans, but we do that in a legal framework. It is not done according to Boyd or according to any of Boyd's predecessors or according to the Attorney General, the President, or any person who has an interest in civil rights, which should be all Americans, but it is done in a legal framework.
So when I say aggressive, we are aggressive, but we are aggressive but very honest in our interpretation and our application of the legal principles that guide us in taking a very professional approach to developing the evidence that we need in order to pursue a case.
So I frequently say to folks, three things I am going to be looking at when a case comes to me. One, do we have a clearly articulable legal theory, a legal theory that you could explain to anyone and they would understand? Second, do we have a good faith factual basis to proceed going forward? And finally, with respect to relief, is there a sufficient factual predicate for the relief that we seek?
And that is what we are going to look for in every case, and if we have got that, we are going to go 100 miles an hour at it. If we do not have that, we are going to work to try to get it, and at the end of the day, if we do not get it, then that is where the restraint part of being a Federal prosecutor and a Government lawyer comes in, appropriate restraint.
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Mr. CHABOT. Thank you very much. My time is expired.
The gentleman from Massachusetts, Mr. Frank, is recognized for 5 minutes.
Mr. FRANK. Mr. Boyd, obviously, you have the job of enforcing the law, but also, given that you are the prime civil rights enforcer and policy maker, your views on the law as it exists or what should be changed are relevant, so I would be interested in your views on affirmative action. That was very controversial a few years ago. There was liability to amend the law, particularly, for example, to make it illegal to use non-binding goals. We had a very specific piece of legislation before this very Subcommittee.
So I would be interested, based on your experience both in the Justice Department and prior to that, what you think about affirmative action in general, and particularly, should we outlaw the use of non-binding goals in various enforcement?
Mr. BOYD. Thank you, Congressman Frank. That is a
Mr. FRANK. You are welcome. [Laughter.]
Mr. BOYD. This is a very big issue, and let me say that I am going to resist the temptation to offer my personal views. The Administration speaks with one voice about this kind of issue, and obviously, with the University of Michigan cases proceeding toward the Supreme Court for resolution that address this affirmative action in the specific education context, until we have completed those deliberations
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Mr. FRANK. Well let me ask you about an issue that is not related to the University of Michigan case. One of the issues we had here was the use by the United States Government itself of non-binding goals, for instance. That is not at all implicated in the University of Michigan decision, I believe. We debated here whether or not we should abolish the use of non-binding goals within the United States Government itself. Do you have a position on that?
Mr. BOYD. My position is that as long as what is being done by the Government, by the United States or by one of the several States, is consistent with the controlling authority
Mr. FRANK. Do you think it is?
Mr. BOYD [continuing]. The Adarand decision, if it is serving a compelling State interest and it is narrowly tailored, I absolutely support it.
Let me say this more generally, though, to give you some perspective, Congressman Frank. This issue came up during my confirmation hearing in the Senate, and one of the things that I said was that both in my public life, in my private life, the entirety of it, I have seen the need for, benefitted from, and rolled up my sleeves and actively engaged in trying to bring more people into the important processes of our Government and of our
Mr. FRANK. And I thank you for that, I really do, but
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Mr. BOYD [continuing]. And
Mr. FRANK. Excuse me, Mr. Boyd, but we have only got 5 minutes and that is really kind of off the subject. The use of non-binding goals, say, by the military, is that consistent with Adarand, in your view?
Mr. BOYD. Again, in instances where those goals are implemented in a narrowly tailored way, I would think that it would be.
Mr. FRANK. I appreciate that. Let me ask you one other policy-related question where I do not think there is any pending legislation. Several of us have been pushing and the Senate recently had a Committee pass a bill, and it may come to the floor, that would extend non-discrimination protection to sexual orientation. It would be not as part of the Civil Rights Act, but a similar principle, but without affirmative action here, to make it illegal in appropriate federally covered situations to fire or discriminate in hiring or promotion, et cetera, against someone who is gay or lesbian. Do you have any views on that?
Mr. BOYD. Congressman, I have views on literally everything, but I am going to be restrained and respectfully say that for issues that are pending before this body that the Administration has to pass or make a judgment on, we are going to speak with one voice and I would let that voice come from somewhere other than mine.
But let me say this. I think it is absolutely, and I say this having been a private lawyer who was engaged in these issues and as a public lawyer, it is absolutely critical that we protect people from wrongdoing, and that includes wrongdoing that is based on some immutable or some impertinent characteristic of a person, and
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Mr. FRANK. I appreciate that. Let me justand I thank you very much and I appreciate the spirit in which you have answered that, but I am inferring you think it would be wrong to fire someone who had performed perfectly well on the job because of some basic personality characteristic of that sort?
Mr. BOYD. Oh, I think whetherwhen you say ''wrong,'' I assume you mean in a legal sense, and the point
Mr. FRANK. I am trying to quote within the context of what you said. You said that we would protect people.
Mr. BOYD. Where the law, whether it is the title 7 context or any other context, whether it is the hate crime context, if the law prescribes it, it absolutely would be wrong.
Mr. FRANK. The question is whether the law should prescribe it. Obviously, the law
Mr. BOYD. I understand that, Congressman, and that is the thing that the Administration will speak with one voice on and it, respectfully, will not be mine today. But again, I want to be very clear that whatever tools that this body gives us in conjunction with the Senate, I am delighted to have as an arrow in my quiver.
Mr. FRANK. You are telling me if it is passed into law, you will enforce it. That is reassuring.
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Mr. BOYD. Enforce it with great vigor.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Alabama, Mr. Bachus, is recognized for 5 minutes.
Mr. BACHUS. Thank you. It says ''Honorable Boyd'' on your place card and I am glad to know you have a first name.
Mr. BOYD. It is Ralph, Congressman. As I told Congressman Forbes, my five children would be unhappy to see ''Honorable'' before my name. They sometimes dispute that. [Laughter.]
Mr. BACHUS. I want to commend you on what you have done. I want to commend you on your work on human trafficking, where you quadrupled the number of prosecutions. You doubled the number of investigations. This Committee is very committed to moving against that abuse and I am not sure that I have seen publicly any recognition of your good work in that regard in any of the leading publications. I have seen it in what we have here, so I want to commend you on that.
Also, I want to commend you on CRIPA, your work on helping safeguard the safety and the health of the senior citizens in nursing homes. I have an 85-year-old father and mother, one of whom has Alzheimer's, and I certainly know that that is important and I think you are addressing real life and death issues among society's most vulnerable citizens, the elderly, the mentally disabled, victims of abuse, and children. You stepped up the investigation there and you stepped up the activity there, in fact, dramatically over the Clinton administration, and I commend you on that. The Committee and some of us on the Committee have pushed for them to enforce CRIPA and do investigations and I commend you on that.
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I have two questions, if time permits. They are both on pre-clearance. On October 21, 1997, the City of Fairfax, Virginia, obtained a declaratory judgment exempting it from section 5 pre-clearance requirements after showing that it had complied with the Voting Rights Act in taking positive steps both to encourage minority political participation and to remove structural barriers to minority electoral influence. What steps is the Division taking to exempt other political subdivisions from section 5 that have met the requirements for exemption?
Mr. BOYD. Thank you, Congressman, for your kind remarks. Let me just say very quickly that, as I am sure the Members of this Committee are aware, human trafficking is an ever-increasing problem, and the work that we have been doing, we have been joined in that boat rowing with lots of other folks who have rolled up their sleeves, folks at State, folks at the FBI. Folks at the CIA have even been involved in that effort. It is not just the prosecution effort. That is an important piece of it, but it is also dealing with victims and providing relief and comfort for victims, and that is an important aspect of what we have been doing.
With respect to CRIPA, I must say, it is sad to say that there is a need for us to do the work that we are doing, but it literally is life and death work, as you correctly pointed out in your comments, and I appreciate you recognizing that.
Mr. BACHUS. And doing it at a time when we were distracted by so many things in the Justice Department. I am just astounded that you have been able to make such progress under such difficult circumstances.
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Mr. BOYD. I say our purpose is protecting people, whether it is from hate crimes or human trafficking or being oppressed or abused in an institutional setting. It is about protecting people with all the tools that the law gives us.
With respect to pre-clearance and exemptions, let me say this. We have a similar approach in that area that we do in the desegregation cases. One of the things that I was focused on when I became the Assistant Attorney General was to figure out with all of these situations that we are responsible for overseeing out there in the desegregation context, where there are between 400 and 500 outstanding consent decrees, in the section 5 context, is to figure out where we really need to be and really focus our resources in those places where we need to be, where there is not substantial compliance with decades-old consent decrees, where districts are not unitary, or on the voting side where jurisdictions have not successfully integrated minority voters in the process of the important franchise of active participation in the franchise of voting.
Where those problems are not existing, we do not want to be focusing our resources there and we want to encourage people to take, jurisdictions to take the steps necessary, working with us and in many instances our co-plaintiff to reach some agreement about ending our involvement.
But where we need to be, we need to be going 100 miles an hour in a fair and in a pragmatic, in a practical way. One of the things I always ask in decades-old situations where there has been Department of Justice involvement is what do we expect to achieve in the next two or 3 years that we have not achieved in the prior 30 or 20 or whatever it is. And if we have not achieved it, why and what do we do about it, and let us focus our resources there.
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So the reality is, with respect to jurisdictions, under section 5 there is a bail-out provision and if folks are getting it done, we expect them to make that statement and take the initiative to do it and we will give it a clear, plain, and honest look.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Mr. Boyd, was your office consulted about the civil rights implications involved in arresting United States citizens and holding them without charges?
Mr. BOYD. Let me say this, Congressman. There have been voices at the table with respect to the formulation of our anti-terrorism policy and at various times, our voice has been a part of the formulation of that policy or discussions about what that policy should be.
Mr. SCOTT. So you were consulted. Did you agree that arresting United States citizens and holding them without charges was consistent with your view of civil rights?
Mr. BOYD. My view of whether it is consistent with civil rights would depend on the specifics of a given case, and there are, obviously, laws and statutes that govern that and you have got to really take those on a case-by-case basis as opposed to kind of treating these things as approved.
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Mr. SCOTT. So did you approve of arresting United States citizens and holding them without charges?
Mr. BOYD. I did not approve or disapprove of it. As I said, during the course of formulating what the
Mr. SCOTT. Unfortunately, like the gentleman from Massachusetts, I only have 5 minutes, and these were really kind of short questions. Was your office consulted when the FBI changed its policy on spying on citizens outside of an ongoing investigation?
Mr. BOYD. I am not familiar with what you are talking about in that respect.
Mr. SCOTT. The FBI has announced a change in policy which requiresthe old policy being that before you start spying on citizens and gathering information, that you have to be conducting an investigation. Internally, they have to articulate that they are investigating something, rather than just gathering information. Now, they are changing the policy where they can just go gather information on United States citizens. Apparently, you were not consulted, because you do not know what I am talking about.
Mr. BOYD. Let me
Mr. SCOTT. Do you know what I am talking about?
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Mr. BOYD. I am
Mr. SCOTT. Were you consulted or not?
Mr. BOYD. I am familiar with what you are talking about and I am going to again, Congressman, have to respectfully resist sharing what those deliberations are or what my advice was or what the substance of those consultations was.
Mr. SCOTT. The gentleman from Massachusetts asked a question about ENDA. You are aware that there is vicious discrimination based on sexual orientation that has civil rights implications. Can you articulate any reason why it should not be illegal?
Mr. BOYD. Let me say this. You are quite right that there continues, unfortunately, to be discrimination and in some instances vicious discrimination, as you describe, against people because of their sexual orientation. If you are asking me as a matter of general principle, I would tell you I feel very strongly that we ought to protect all Americans from expressions, illegal expressions of hatred, violence folks, and that includes
Mr. SCOTT. But the question was
Mr. BOYD [continuing]. Includes especially folks who are selected for that kind of treatment because of some immutable characteristic or some impertinent characteristic of their person-ness, if you will. So there are, as you know, Congressman
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Mr. SCOTT. Out of those characteristics and what not, are you including sexual orientation in that category?
Mr. BOYD. I would.
Mr. SCOTT. Okay. I did not hear
Mr. BOYD. What I was saying was
Mr. SCOTT. I did not hear you articulate any reason why it should not be illegal.
Mr. BOYD. What I was saying was with respect to, for example, the various proposals that are pending, for example, S. 625, Senator Kennedy's bill, there are many aspects of that bill that I know the Administration supports vigorously.
Mr. SCOTT. Okay.
Mr. BOYD. There are also, if I may, just to be very clear, and those are the provisions of the bill that provide prosecutive and investigative and financial resources to State and local jurisdictions who are prosecuting hate crimes, with respect to including disability and sexual orientation as part of a Federal hate crime. Those deliberations are ongoing and there are important legal and policy considerations that the Administration continues to deliberate about,dealing with the power ofissues like the power of Congress to regulate in that area, the Commerce Clause
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Mr. SCOTT. But I have a very specific question. I think you answered that. I want to get in one more question. Can you tell me what you are doing to encourage access to voting by those that are physically handicapped?
Mr. BOYD. Yes, absolutely. One of the things that we have been doing as part of the New Freedom Initiative is holding sessions across the country to talk to people, particularly people from the disability community, about how best, about what it is that we can do with the legal tools that we have to help them exercise a whole wide range of rights and interests that they have, from voting to economic participation, employment, participation in civic activities, recreational activities, so part of what we are doing is dialoguing with folks.
The other thing is
Mr. CHABOT. The time of the gentleman is expired. You can continue to answer the question.
Mr. BOYD. I think I can wrap it up very quickly. One of the specific things we have done that you may have heard me refer to is Project Civic Access, and that is a project in which we engaged jurisdictions, municipalities from across America, from Alaska to Virginia, to open up, to enter into agreements with cities to open up a variety of civic functions for people with disabilities, including most specifically opening up public buildings where voting takes place and where other important business of Government takes place.
So that is kind of a concrete example of what we are doing, but there is a lot that we are trying to do on that front. This is a huge priority for the President and for us.
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Mr. CHABOT. The gentleman's time has expired.
The gentleman from Virginia, Mr. Forbes, is recognized for 5 minutes.
Mr. FORBES. Thank you, Mr. Chairman.
Mr. Boyd, thank you for being here today. I do not know which is more difficult, balancing all of the resources you have at the Division or the resources you have at home with five children, but I thank you for doing a good job with both and for being here with us today.
Mr. BOYD. Thank you.
Mr. FORBES. I want to shift my focus to another topic. I know that the Division has made great strides in addressing cases of backlash discrimination against people perceived to be of Middle Eastern origin following September 11. In your written testimony, you stated that combined Federal agencies have invested approximately 350 instances of discrimination since September 11.
I wonder if you could tell us, what role has the Division played in these investigations and how many instances of discrimination has the Division investigated?
Mr. BOYD. Thank you, Congressman, for that question. I think it is important for people to understand the depth of the Federal Government's commitment to protecting everyone in America after September 11, not just from terrorism, but also from the actions of the, what I describe as opportunistic bigots among us. So thank you for the question.
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One of the things that I did in the immediate aftermath of September 11 was to take some of the most experienced prosecutors in the Criminal Section of the Civil Rights Division, who really are our A team, if you will. Those are the folks that have been doing these difficult cases under very difficult circumstances, in some instances for decades, but take some of our most experienced prosecutors and ask them to be a clearinghouse for all reports of backlash hate crimes in the aftermath of September 11 and to make an initial cut on them, that is, to figure out what the level of substance of the allegations are, do they amount to a crime under Federal or State law, and once making that decision, assuming that a particular allegation or series of allegations does, to then look and work and coordinate with State and local authorities to make an assessment about who is in the best position to effectively and quickly prosecute that case.
And so that is whatand in doing that, also, obviously, as I mentioned, to coordinate with the 94 U.S. Attorneys' Offices with whom we co-counsel those prosecutions, as well as the 56 FBI offices across America, and that has allowed us to bring, where appropriate, a number of important Federal prosecutions, but also to reinforce a number of important State prosecutions.
I had the opportunity a few weeks back to meet with the District Attorney in Maricopa County, Arizona, who is prosecuting a drive-by shooting, a murder of a Sikh gas station operator who the FBI and our office worked with and coordinated with, and then that is juxtaposed to those cases in which we are taking the lead role in prosecuting.
So we have been kind of the clearinghouse to look at all of the allegations from 31 different States and the District of Columbia so far, and then working with the State and local folks to coordinate and figure out who is in the best position to effectively deal with a particular set of allegations.
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Mr. FORBES. In follow-up on that, I know I have read that the Division has initiated approximately 70 State and local criminal prosecutions and ten Federal cases. Why has the Division initiated more State than Federal cases?
Mr. BOYD. Number one, there are a lot more of them than there are of us. That is number one.
Number two, one of the things I am happy to report that I do not think probably is a very often told or well told story is that it has been easy for law enforcement and for the American community to be motivated in weeding out and having a campaign against terrorism, but what I am happy to say is that our experience with local law enforcement in the wake of September 11 is that they have joined with us and been equally diligent and vigorous in weeding out hate and bigotry where it is expressed through violence or threats of violence.
So one of the reasons for the high number of State and local prosecutions is they have fought for those prosecutions and have been motivated to do them, and in some instances were in the best position to do them. As well, Congressman, there is a longstanding work agreement, if you will, between the Justice Department's Criminal Division and the Civil Rights Division's Criminal Division and the various Attorneys General and District Attorneys from the several States, and it says that, in substance, in many instances, where it is appropriate for the State to go first, the preference is to have the State go first and we will backstop them.
Mr. CHABOT. The gentleman's time has expired.
Page 33 PREV PAGE TOP OF DOC Mr. FORBES. Thank you.
Mr. CHABOT. Thank you.
The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman, and Mr. Boyd, thank you for being here.
A black man in charge of civil rights enforcement in an Administration that in our community is not perceived as having a superior record and interest in that is not an enviable position to be in, especially one that has strong views about civil rights, as I know you do, so I want to thank you for serving in that role and tell you that I do not envy you and that despite my aggressive posture in a private meeting with you, I will assure you that in this public setting, I will be a lot more civil in my approach to you, but saying even so that nothing you have said or that I have learned publicly since our private meeting has changed my opinion about whether the Civil Rights Division in the Justice Department did or did not politicize the decision in the Mississippi voting rights case. I feel strongly you did that and nothing I have heard, read, or seen since our meeting has changed my view on that, although I want to go to a different subject today.
Many of us who deal with the Voting Rights Act are aware that various of its provisions will be up for renewal or expiration in 2007, and I would like to have your opinion, if you were facing that decision today, not in this Administration, not putting this Administration on record, but using the experiences that you have observed in the period of time that you have been in your position, I would like to have your opinion about whether it would be important and necessary to renew and extend those provisions of the Voting Rights Act that are set to expire in 2007.
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Mr. BOYD. Thank you, Congressman. Let me say this, and I say it most respectfully. I am going to resist making a headline, Boyd offers X view about voting rights
Mr. WATT. I thought I was asking you a question that2007, I believe, is beyond the scope of this Administration. It might be in the next Administration. It might be the same Administration. But I am just asking your personal views at this point.
Mr. BOYD. I may be wrong and you may be right. I thought this came up in 2005, but in any event, that is beyond this Administration.
Congressman, I am going to resist offering a view. That is something that the Administration ought to speak with one voice about, but let me say this. I think that there has got to beI hope there is consensus in America about the objectives of the Voting Rights Act, about the objective which is, I think, more than simply ending overt
Mr. WATT. Can I get you away from philosophical discussion and maybe ask the question a little bit different in a way that does not call upon you to express an opinion about renewal. Could you just describe some of the ongoing problems that the Civil Rights Division has observed in the area of Voting Rights Act that might or might not justify the extension of those provisions of the Voting Rights Act.
Mr. BOYD. I can tell
Page 35 PREV PAGE TOP OF DOC Mr. WATT. I will get you out of the
Mr. BOYD. I can tell, Congressman, you were an able trial lawyer because that is another way to go at it and I can answer the question in that respect.
Mr. WATT. Thank you.
Mr. BOYD. Let me give you an example of a few cases that we have done recently that I think illustrate the point. We recently litigated a section 2 case in Blaine County, Montana, successfully on behalf of Native Americans who we allege that the processes and the procedures of voting for county commissioner positions in Blaine County really impaired the ability of that Native American community to successfully exercise their franchise to vote. We brought that section 2 case. We litigated it vigorously. It was vigorously defended, and we won.
As you may recall our recent experience in Florida and the Florida investigation in the wake of the Presidential election in 2000, as I am sure you have heard, Congressman, or read, I have authorized a number of lawsuits in Florida that deal with issues relating to problems that occurred that violate the Voting Rights Act. In some instances, in many instances, they were limited English proficient related problems, problems under section 203 for the failure of covered jurisdictions to provide bilingual voting assistance for mainly Spanish speaking voters, but also Haitian American voters, problems under section 208 where there were instances in which local election officials refused to allow limited English proficient voters, mostly Haitian American voters, who are permitted under section 208 to have assistance in voting. In some instances, that assistance was denied.
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There also is an instance in which I have authorized a lawsuit arising out of the Florida Presidential election that is brought under section 2 of the Voting Rights Act that has to do with the improper treatment of voters because of language or language-related issues.
And so as we saw with the Presidential election in Florida, we continue to have problems. We are making, I think, a lot of headway, but we have more work to do and as long as that statute is out there and it is in my quiver, if you will, we are going to use it forcefully and effectively.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized for 5 minutes.
Mr. HOSTETTLER. Thank you, Mr. Chairman.
Mr. Boyd, during Bill Lann Lee's tenure as Division head, the Division was party to or appeared as amicus in 457 school desegregation cases and did little or nothing to lift consent decrees at schools that became fully integrated. The Division has recently settled two major desegregation cases, and you alluded to one of those in your opening testimony, and that it collected over $800 million to improve educational opportunities for minorities in New York and Mississippi. We commend you and your Division for your progress in the area.
In Missouri v. Jenkins, Chief Justice Rehnquist, writing for the majority, stated that ''the ultimate goal in overseeing desegregation efforts is to return school districts to local control.'' What steps is the Division taking to return school districts to local control? Specifically, how many attorneys are assigned to each school desegregation case? How many times each year does the Division review the cases? How many times do they act on the cases?
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Then thirdly, and you might have discussed this in general terms earlier, but if you can, would you give an opinion as to your support on the legislative requirement that the Department issue an annual status report on these desegregation cases.
Mr. BOYD. Thank you, Congressman. If I miss something, follow up, please.
Perhaps it would be helpful to talk as concisely as I am able, which is not always concisely enough, but let me say this. One of the first things I did when I first came on duty, if you will, was to look at that pile of desegregation cases and try to get some sense, and I alluded to this earlier, try to get some sense of those districts that were under desegregation orders that are continuing to be problematic, and by problematic, I mean not integrated, not unitary, and not moving steadfastly and in a dedicated way toward that, and where the lack of that initiative is continuing to result in unfair and disparate treatment of minority students, particularly black students, and then also to distinguish that group from those districts that are under longstanding desegregation orders that are, as a matter of fact, unitary, or with some effort close to being unitary, could get there with some effort, and then try to urge those districts that are close to take the steps necessary to get to unitary status, to work with our co-plaintiffs in those cases where the district appears to be unitary, appears to be integrated, to see if there is a way for us together to agree that the district is unitary and ultimately either jointly recommend or assent to dismissal of those cases.
In other words, we do not want to be places where our work is done. We want to focus our resources where there is still work to be done, where there are still disparate opportunities for students of color and to focus our resources there.
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So the answer to your question is, we are literally systematically going through that pile of 400 to 500 cases to make those distinctions between those cases that need our active involvement and those cases that are the situations that are clearly unitary or close to being unitary, and we are going about it in a systematic way and we are going about it in a collaborative way, that is to say, working with the districts themselves and also working with our co-plaintiffsin a lot of instances, that is the NAACP Legal Defense Fund or othersto see if we can all work toward the same goal, which is to unburden the districts that are unitary but certainly push toward compliance with longstanding consent decrees those districts that are not.
In fact, there is one of those cases in Louisiana in which I have actually been down there a number of times and have actively engaged myself in trying to prompt some real meaningful movement from the school board with respect to complying with the decree in a case that was commenced 2 years before I was born.
So we are trying to distinguish between where we need to be and where we really need to expend resources to get districts to where they need to be, and in those instances where we do not need to be there because unitary status, as a matter of fact, a de facto matter, has been achieved or exists either because the board took affirmative steps to comply or because the demographic of the district has just made it that way through social circumstances.
So that has been our approach, to literally analyze every case we have and figure out which category it goes in and then act appropriately.
Page 39 PREV PAGE TOP OF DOC Mr. HOSTETTLER. Thank you.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from New York, the Ranking Member, Mr. Nadler, is recognized.
Mr. NADLER. Thank you. The State of Florida prior to the 2000 election purged from the voting rollsthousands of qualified voters were improperly purged. These voters were disproportionately African American. What have you done to remedy the situation?
Mr. BOYD. Thank you, Congressman, for that question. Let me say this about Florida. As I have
Mr. NADLER. Just about this question about Florida.
Mr. BOYD. Yes. We looked at the purge issue, the purge issue and about 12 other important issues, and during the course of that investigation, although we were not able and still are not able as of the hearing today to quantify the number of people who were improperly purged from the voting lists, but we were able to certainly satisfy ourselves that it did happen and we are trying as we go along to quantify that.
A lot of times, people have beliefs about what the numbers are, but when you actually
Page 40 PREV PAGE TOP OF DOC Mr. NADLER. Excuse me. I only have 5 minutes. What are you doing about it?
Mr. BOYD. Well, during
Mr. NADLER. You said it happened. What are you doing to assure it is corrected?
Mr. BOYD. During the course of the investigation, literally, the State legislature in Florida took care of the problem. What we could do about it
Mr. NADLER. By doing what?
Mr. BOYD. By passing, I think what is fair to say, the most comprehensive election reform law in America, that had 78 provisions, including a provision that we reviewed during the legislative process and just recently, I believe either in May or in March, pre-cleared under section 5. But it is a provision in the Florida Reform Act that deals with the purge problem and it deals with it in a very comprehensive way.
The first thing it does is it changes the burden of proof with respect to eligibility. It says it is not up to the voter to carry the burden with respect to eligibility. It is up to the election
Mr. NADLER. So basically you are saying the Florida legislature. Could you supply me a copy of that?
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Mr. BOYD. Absolutely, and
Mr. NADLER. Thank you. Secondly, again prior to the election, as part of the purge issue, the State purged thousands of alleged felons. Under State law there, a felon cannot vote for life. They also purged thousands of people who were not felons, thinking they were felons. The company they hired admitted it had an inaccuracy rate of about 20 percent.
They also purged people who werethey did not even follow their own law. They also purged people who had been convicted of felonies 30, 40 years before in other States which did not have lifelong disability statutes, and even though the Florida Supreme Court told them that under State law they could not purge someone who was convicted of a crime in New York 40 years ago, they did that. Some of the local registrars protested, but the Secretary of State insisted it be done anyway and they did it and that had a disproportionate effect on African Americans. So they knowingly violated their own State law.
What has the Department done about that? What kind of sanctions are you going to take to make sure that a State does not knowingly violate its own law in order to purge voter rolls with a disproportionate racial impact?
Mr. BOYD. Congressman, our jurisdiction is limited to the NVRA, the National Voter Registration Act, and the Voting Rights Act of 1965. So a number of the issues that you raise fall outside of our jurisdiction.
Let me just say this. We cannot verify the number. I do not want to embrace your numbers. I do not disagree with you, I just do not knowwe do not know with any level of reliability or certainty as I sit here what the numbers are, but let me say this, that
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Mr. NADLER. But you do know it was a disproportionate impact?
Mr. BOYD. We know that it happened. We do not know what the numbers are with
Mr. NADLER. But you do know it had a disparate racial impact.
Mr. BOYD. There was some conduct of that election that did have a disparate impact, the spoiling of ballots. I am not aware
Mr. NADLER. The purging of the rolls, though you cannot quantify it, you do, I assume, knowand if you do not, please say sothat that had a disparate racial impact.
Mr. BOYD. I cannot say based on reliable information I know that, but I would not be surprised if that were the case. But let me just say this, because it is important for people to understand. What we can get in situations where there is a violation under the Voting Rights Act is prospective relief and the prospective relief that we would get in the situation that you have described, Congressman, is precisely the relief that the Voting Reform Act covers.
Mr. NADLER. Okay. Thank you. Let me ask you one more question before my time comes out. According to the Employment Litigation Section's website, which was last updated on May 6, the Division has filed only two complaints in title 7 cases since January of 2001, one on March 20 of this year and one on May 31 of last year. Under the previous Administration, they were doing about 14 a year. Why did it fall so low?
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Mr. CHABOT. The gentleman's time has expired, but you can answer.
Mr. BOYD. Let me say this. You have to addit is three now, because last week, we filed another one.
Mr. NADLER. Okay.
Mr. BOYD. Let me quickly give you comparative stats, because I do not think we have fallen below. So far this year to date, we filed three new cases. In all of the calendar year 2000, nine were filed. In terms of consent decrees
Mr. NADLER. Wait a minute, but how many were filed last year?
Mr. BOYD. Last year, there were eight new cases filed. This year, we have already reached six consent decrees as of the end of May. In the entire calendar year of 2000, there were 11 reached. In the year 2000, there were eight title 7 lawsuits that were authorized. So far, to date, I have authorized five. So far, I have opened 13 investigations, and in all of calendar year 2000, there were 17. So I think those numbers are very consistent. That is not necessarily because of me, but this railroad runs really well and the folks that do this kind of work have been doing it in some instances for decades and doing it quite well, and that does not change from Administration to Administration.
Mr. CHABOT. Thank you, Mr. Boyd, and I want to thank the Assistant Attorney General for his excellent testimony here this morning, and now into this afternoon. I want to thank the participation of the members of the panel.
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Mr. NADLER. Mr. Chairman?
Mr. CHABOT. I ask unanimous consent that the record remain open for five legislative days to permit Members and our witness to revise and extend their remarks and to include extraneous material.
Mr. NADLER. Mr. Chairman, I ask unanimous consent that all Members be given seven legislative days to submit written questions to the witness and to submit additional materials for the record.
Mr. CHABOT. Is there any objection to that?
Mr. CHABOT. If not, we will adopt that.
Mr. NADLER. Thank you.
Mr. CHABOT. We want to again thank you very much for your testimony this afternoon.
Mr. BOYD. Thank you, Mr. Chairman.
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[The prepared statement of Mr. Boyd follows:]
PREPARED STATEMENT OF RALPH F. BOYD, JR.
Mr. Chairman, Ranking Member Nadler, and Members of the Subcommittee:
I would like to thank the Subcommittee for inviting me to discuss the important work of the Civil Rights Division. I appreciate this opportunity to let you know what the Division has accomplished, answer your questions about our work, and listen to your concerns and thoughts about what I believe has been our thoughtful and vigorous enforcement of the civil rights laws.
Let me begin by expressing what a privilege it is to serve as the Assistant Attorney General for the Civil Rights Division. The statutes enforced by the Civil Rights Division reflect some of America's highest aspirations: to become a society that provides equal justice under law; to become a society that effectively protects the most vulnerable among us; and to become a society whose citizens not only protect their own individual freedom and libertybut champion the individual freedom and liberty of their neighbors who may be different from them. And while the very need to enforce the civil rights statutes confirms that we have not yet achieved a society that is free from the conduct these statutes prohibit, there is no doubt in my mind that America is better off for making the journey, and I am therefore privileged, honored, and indeed humbled to be charged with the awesome responsibility of civil rights enforcement at the Department of Justice.
Page 46 PREV PAGE TOP OF DOC When I agreed to serve as Assistant Attorney General, I came to the job as a professional prosecutor and litigator by training and experience, and it is from that perspective that I report to you on the work and accomplishments of the Civil Rights Division. Before I comment on the substantive enforcement of the civil rights statutes, I note that one of the jobs of the Department of Justice, and therefore the Civil Rights Division, is to defend Acts of Congress from constitutional challenge wherever a reasonable defense can be made. With this in mind, the Civil Rights Division, mainly through the efforts of our Appellate Section, has been vigorously defending anti-discrimination statutes by repeatedly intervening in cases where constitutional questions are raised, and this effort has been largely successful. For example, the Division has defended 11th Amendment challenges to Title VI and Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the Individuals with Disabilities Education Act, the Equal Pay Act, and Section 504 of the Rehabilitation Act of 1973, and has been, with limited exceptions, very successful in this important endeavor. Although these types of cases do not generate a great deal of publicity, I mention them first because their impact is so significant. Individual cases may be won or lost, but litigation over the constitutionality of federal civil rights statutes goes to the fundamental question of whether victims of discrimination will be able to seek relief in court. I am gratified to report that the tools Congress has provided remain largely intact.
As for substantive enforcement, let me first speak generally and say that the work of the Division goes forward carefully, but aggressively. I recall during the confirmation process that many Senators' written questions sought assurances that certain statutes would continue to be enforced. I told the Senate then that I was committed to vigorous enforcement of the law, and I feel very comfortable telling you today that the Division is doing just that.
Page 47 PREV PAGE TOP OF DOCTAKING A COOPERATIVE APPROACH TOWARD POLICE DEPARTMENT REFORM
I think that the Civil Rights Division's enforcement of Section 14141 of Title 42 of the United States Code, the statute that grants the Department of Justice the authority to investigate State and local law enforcement agencies that are alleged to have engaged in a pattern or practice of unconstitutional conduct, provides a particular success story in this regard. Last April, the City of Cincinnati, Ohio was literally and figuratively smoldering in the wake of riots touched off by community reaction to a number of controversial police shootings. One year later, Attorney General Ashcroft presided over the signing ceremony for an agreement between the Department of Justice and the City of Cincinnati that implemented significant reforms with respect to uses of force by the Cincinnati Police Department. Moreover, by engaging in a collaborative negotiation process with the City, the police, and community groups, the Department of Justice agreement will be jointly monitored and enforced along with a separate agreement among the community groups and the City. This unique and historic arrangement achieved real reform without the need for protracted litigation or a consent decree. It reflected our desire to help fix the problems in Cincinnati, not fix the blame. It was supported by groups as diverse as the Cincinnati Black United Front, the ACLU of Ohio, the Fraternal Order of Police, the Cincinnati branch of the NAACP, and the Urban League of Greater Cincinnati.
Cincinnati is not an isolated case. Since the statute was passed in 1994, there have been seven settlement agreements or decrees entered pursuant to Section 14141. Three of those settlements have been achieved during this Administration. Moreover, the Division has commenced active investigations in Portland, Maine; Schenectady, New York; and Miami, Florida. In sum, the Division's enforcement efforts with respect to this statuteled by the Special Litigation Sectionhave been thoughtful, focused, and vigorous, and the overwhelmingly favorable results we have achieved bear this out.
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COMBATING CRIMINAL DEPRIVATIONS OF CIVIL RIGHTS
As a former federal criminal prosecutor, I really enjoy being able to convey the successes of our Civil Rights Division's Criminal Section. The Criminal Section of the Civil Rights Division prosecutes criminal civil rights violations, including bias-motivated crimes, police and other official misconduct, and human trafficking and involuntary servitude, among other things. From October 2000 to February 2002, the Division filed cases against 218 defendants for criminal civil rights violations. Of those, nearly 200 defendants were either convicted at trial or pleaded guilty. During that period the Division secured convictions in every prosecution involving non-law enforcement personnel, and in 80% of the cases involving police or other official misconduct. Prosecution of State and local officials who abuse their positions of authority continues to be a priority for the Division. Since October 2000, 136 law enforcement officials have been charged for using their positions to deprive local citizens of constitutional rights. The number of officers charged in fiscal 2001 is the most ever in a single yearand a 50% increase over the previous fiscal year.
The investigation and prosecution of bias-motivated crimes is also a top priority. Over the last year we have made clear that the Department will not tolerate violence or other crimes driven by racism or religious discrimination. Since October 2000, the Division has filed 38 cases charging 53 defendants with racial violence ranging from shootings and assaults to cross-burnings and arson. Moreover, in the wake of the tragic events of September 11, 2001, the Division immediately responded to the upsurge in backlash violence and threats.
PROSECUTING ACTS OF DISCRIMINATORY BACKLASH AND ENGAGING IN COMMUNITY OUTREACH FOLLOWING SEPTEMBER 11 ATTACKS
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Since September 11, the Civil Rights Division has been involved in the investigation and prosecution of alleged incidents involving violence or threats against individuals perceived to be of Middle-Eastern origin, including Arab Americans, Muslim Americans, Sikh Americans, and South-Asian Americans. The Division has also been involved in outreach efforts to provide individuals and organizations information about government services.
With respect to the investigation and prosecution of alleged incidents involving violence or threats, the Civil Rights Division, the Federal Bureau of Investigation, and United States Attorneys' offices have investigated approximately 350 such incidents since September 11. The incidents have consisted of telephone, internet, mail, and face-to-face threats; minor assaults as well as assaults with dangerous weapons and assaults resulting in serious injury and death; and vandalism, shootings, and bombings directed at homes, businesses, and places of worship.
Several experienced attorneys in the Civil Rights Division's Criminal Section have been tasked to review all new allegations and to monitor those investigations that are opened to ensure uniform decision-making in the initiation of federal investigations and prosecutions and to optimize resource allocation. Approximately 70 State and local criminal prosecutions have been initiated against approximately 80 subjects, many after coordination between federal and local prosecutors and investigators. Federal charges have been brought in ten cases, and the Civil Rights Division and United States Attorneys' offices are working together on those cases. A few examples are as follows:
(1) On February 14, 2002, the United States Attorney's Office for the District of Massachusetts filed a criminal information against Zachary J. Rolnik under 18 U.S.C. 245 for placing a telephone call to Dr. James J. Zogby, the president of the Arab-American Institutea national organization that advocates for Arab Americans, on the morning of September 12, 2001 and leaving a voice mail message in which Rolnik threatened to kill Dr. Zogby and his children. On June 6, 2002, Rolnik pled guilty to the charge.
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(2) On December 12, 2001, the United States Attorney's Office for the Central District of California filed a criminal complaint against Irving David Rubin and Earl Leslie Krugel under 18 U.S.C. 371, 844, and 924 for conspiring to damage and destroy, by means of an explosive, the King Fahd mosque and for possessing an explosive bomb to carry out the conspiracy. On January 10, 2002, Rubin and Krugel were indicted under 18 U.S.C. 371, 2332, 844, 924, 373, 922, and 5861, which additionally included charges related to the defendants' alleged attempt to damage and destroy, by means of an explosive, the office of the Muslim Public Affairs Council and the district office of United States Representative Darrell Issa.
(3) On September 26, 2001, the United States Attorney's Office for the Western District of Washington indicted Patrick Cunningham under 18 U.S.C. 844, 247, and 924 for shooting at two Islamic worshipers and for dousing two cars with gasoline in an attempt to ignite them and cause an explosion that would damage or destroy the Islamic Idriss Mosque. Cunningham pled guilty to two counts on May 9, 2002 and faces a mandatory minimum of 5 years in prison and a maximum of life in prison.
In addition, the Civil Rights Division and the United States Attorney's offices continue to coordinate with local prosecutors in instances where cases are being prosecuted locallyand where there are also potential federal crimes that have not been chargedto consider whether plea bargains can resolve both local and federal criminal liability.
We are pleased to note that cooperation between federal agents and local law enforcement officers and between Justice Department prosecutors and local prosecutors has been outstanding. This is a testament to local law enforcement nationwide, which has shown the willingness to, and which has largely been given the legal and financial resources to, investigate and prosecute vigorously alleged bias-motivated crimes against individuals perceived to be of Middle-Eastern origin, including Arab Americans, Muslim Americans, Sikh Americans, and South-Asian Americans. The Department is aware that, in rare instances, local authorities may not have the tools or the will to prosecute a particular bias-motivated crime fully. In those rare instances, the Department will be prepared to initiate federal proceedings, if appropriate.
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America is well-served by our partners in State and local law enforcement. If the post-September 11 alleged incidents of backlash violence were a test of local efforts to prosecute bias-motivated crimes, local law enforcement passed with flying colors.
With respect to community outreach, I have directed the Civil Rights Division's National Origin Working Group (NOWG) to help combat the post-September 11 discriminatory backlash by referring allegations of discrimination to the appropriate authorities and by conducting outreach to vulnerable communities to provide information about government services. The NOWG, which existed before the September 11 terrorist attacks, was created to combat discrimination: (1) by receiving reports of violations based on national origin, citizenship status, and religion, including those related to housing, education, employment, access to government services, and law enforcement, and referring them to the appropriate federal authorities; (2) by conducting outreach to vulnerable communities; and (3) by working with other components within the Department of Justice and with other federal agencies to ensure accurate referrals, productive outreach, and the effective provision of services to victims of civil-rights violations and by coordinating efforts to combat the discriminatory backlash with other Department of Justice components and other federal agencies.
Since September 11, I have spoken out against violence and threats against individuals perceived to be of a certain race, religion, or national origin and have met frequently with leaders of Arab-American, Muslim-American, Sikh-American, and South-Asian American organizations. My first such meeting occurred on September 13, 2001, the same day I issued a statement that ''[a]ny threats of violence or discrimination against Arab or Muslim Americans or Americans of South Asian descents are not just wrong and un-American, but also are unlawful and will be treated as such.'' Among the attendees at this meeting were James Zogby, President, Arab American Institute; George Salem, Chairman, Arab American Institute; and Dr. Ziad Asali, President, Arab-American Anti-Discrimination Committee. Since that time, I have met with and spoken to various groups on numerous occasions to listen to the concerns of minority communities and to explain the Department's efforts in combating crimes of discriminatory backlash.
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AGGRESSIVELY PROSECUTING ACTS OF HUMAN TRAFFICKING
Another criminal enforcement priority of the Civil Rights Division is to establish appropriate mechanisms to enhance our ability to prosecute those who engage in the despicable act of trafficking in persons. Even while these mechanisms are being developed, our attorneys are aggressively prosecuting these cases. Using the additional tools provided by the Trafficking Victims Protection Act passed by Congress in 2000, the Civil Rights Division and United States Attorneys' offices have jointly prosecuted dozens of traffickers and helped hundreds of trafficking victims over the past year.
To provide one example, a Maryland couple lured a fourteen-year old girl from Cameroon with promises of an American education, only to enslave her as a domestic servant in their home for three years. They kept her under their power through physical violence and threats of deportation, and she was sexually assaulted. Ultimately, she ran away with the help of a good Samaritan. A call to our human trafficking complaint line led to a federal involuntary servitude prosecution. The couple was sentenced to nine years in prison and ordered to pay the girl over $100,000 in restitution.
Using the new prosecutorial tools provided by the Act, we prosecuted 34 defendants for human trafficking in 2001roughly quadrupling the number prosecuted in 2000. The Division currently has approximately 100 pending trafficking investigations, which represent nearly a 50% increase from a year before.
IMPLEMENTING THE PRESIDENT'S NEW FREEDOM INITIATIVE AND
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EXECUTIVE ORDER 13217
The Civil Rights Division is especially focused on initiatives of the President and the Attorney General. On February 1, 2001, the President announced the New Freedom Initiative to assist Americans with disabilities by increasing access to assistive technologies, expanding educational opportunities, increasing the ability of Americans with disabilities to integrate into the workforce, and promoting increased access to daily community life. The Civil Rights Division has been an active participant in this Initiative, led by the Disability Rights Section. These dedicated attorneys have accomplished a great deal recently and many of their victories are not just for individuals, but for the disabled community that is afforded greater access through the relief the Section obtains. For example, through ''Project Civic Access,'' the Section reached agreements, which were announced in January 2002, with 21 jurisdictions requiring them to ensure that their public facilities (e.g., courthouses, libraries, polling places, and parks) are accessible to people with disabilities, as required by the Americans with Disabilities Act (''ADA''). The Section has also negotiated: (1) a comprehensive settlement agreement with New York-New York Hotel and Casino to provide accessibility throughout its Las Vegas facility; (2) an agreement with one of the nation's largest theater chains to modify its design for newly-constructed stadium-style theaters to provide people with disabilities meaningful access; and (3) an agreement with a large resort and campground owner and operator that will require policy changes allowing persons with service animals to use the facilities, the nationwide training of all employees, and compensatory damages for prior discrimination.
In addition to these notable achievements, the Disability Rights Section has also initiated a broader initiative called the ''ADA Business Connection Project.'' This business initiative seeks to facilitate increased compliance with the ADA by fostering a better understanding of ADA requirements among the business community and by increasing dialogue, understanding, and cooperation between the business community and the disability community. The project features a new ADA Business Connection web destination on the Section's ADA Website providing easy access to information of interest to businesses and a new series of ADA Business Briefs that are designed to be easily printed from the website for direct distribution to a company's employees or contractors.
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An essential part of this initiative is a series of meetings between the disability and business communities, which represent collaborative efforts to discuss how the disability community and business leaders can work together to make the promise of the ADA a reality. The kick-off meeting in January 2002 raised many issues that can be addressed through collaboration and dialogue. For example, one hotel company has approached a graduate business school about including an instructional module on serving guests with disabilities in the school's hotel curriculum. At our upcoming meeting, which is scheduled for tomorrow, we expect to explore ways of ensuring adequate staff training about the ADA and people with disabilities in service industries that typically suffer from high staff turnover. We are also planning a series of meetings at several cities around the country to foster dialogue between businesses and disability groups in those cities regarding ADA compliance and market development opportunities for business.
Both Project Civic Access and the ADA Business Connection program are integral parts of the President's New Freedom Initiative. In addition to these two projects, we are working with State and local governments to implement Executive Order 13217 and the 1999 Olmstead v. L.C. United States Supreme Court decision, which requires States to place individuals with disabilities in community settings rather than institutions, where placement is appropriate and reasonable, in order to provide them with greater access to community life. Thus, we are developing a technical assistance document designed to assist States in implementing their responsibilities under Title II of the ADA, including those addressed in the Olmstead decision.
In addition, we hope to increase our outreach and education efforts to parents and other family members of people currently residing in institutions, those on the verge of institutionalization, and professionals treating those persons. By doing so, we hope to assist family members in understanding the benefits of community placement and to address some treating professionals' unfamiliarity with community placement alternatives, thereby reducing the likelihood that persons with disabilities who can be placed in community settings will be unnecessarily institutionalized.
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ENFORCING THE VOTING RIGHTS ACT OF 1965 AND IMPLEMENTING THE ATTORNEY GENERAL'S VOTING RIGHTS INITIATIVE
In March 2001, the Attorney General announced the Voting Rights Initiative to ensure that American voters are neither disenfranchised nor defrauded. The initiative focuses on two main areas of concern: preventing abuses of voting rights and prosecuting abuses of voting rights.
The Voting Section enforces the Voting Rights Act of 1965 and has been incredibly busy, as is traditional following a census. In the past year, the majority of the Section's enforcement of the Voting Rights Act has been in the areas of Section 5 enforcement, Section 2 enforcement, and the use of Federal observers in covered jurisdictions to ensure compliance with the Act.
Since the Administration began, the Section has received 7,178 Section 5 submissions containing 22,360 changes, of which 1,703 were redistricting plans. The Division has precleared 1,358 of the redistricting plans. We have interposed objections to seven redistricting plans, four to changes of method of election, and one cancellation of an election.
Another decennial task given to the Voting Section is enforcement of the language minority provisions of the Voting Rights Act. Section 203 requires certain States and political subdivisions to conduct elections in the language of certain ''language minority groups'' in
Page 56 PREV PAGE TOP OF DOC addition to English. The Department is working with the Census Bureau to ensure the Director of the Census carries out his statutory responsibility to certify jurisdictions subject to Section 203 requirements. As the certification process moves along, we are preparing an outreach campaign to inform covered jurisdictions of their responsibilities and to assist in ensuring that compliance with Section 203 is achieved prior to elections this fall.
In addition, the Section has represented the Attorney General in three suits for a declaratory judgment under Section 5 of the Voting Rights Act (filed by Georgia, Florida, and Louisiana). The Department recently prevailed in the Georgia litigation: on April 5, 2002, the United States District Court for the District of Columbia issued its decision, adopting the Department's position and invalidating Georgia's State Senate plan. The Louisiana case is still at the pretrial stage. The Section is also pursuing several suits under Section 2 of the Voting Rights Act, which prohibits dilution of minority voting strength. A lawsuit by the State of Florida seeking preclearance of the State's congressional plan was recently dismissed after the Department announced administrative preclearance. Litigation is pending, at various stages, against Charleston County, South Carolina; the San Gabriel Water District in California; and Alamosa County, Colorado. Another accomplishment is a settlement in United States v. Lawrence, a Section 2 lawsuit brought to protect the voting rights of Hispanic voters in Lawrence, Massachusetts. The agreement was approved by a federal court on February 27, 2002. The Department also recently announced settlement with Miami-Dade County resolving allegations that the County had prevented certain Creole-speaking Haitian American voters, with limited ability to understand English, from receiving assistance at the polls by a person of their choice, as required under Section 208 of the Voting Rights Act.
The Attorney General has allocated additional attorney slots to the Voting Section of the Civil Rights Division and has announced the creation of a position devoted to addressing issues of election reform. The Attorney General has now appointed a Senior Counsel for Election Reform, Mark Metcalf, who is assisted by two career attorneys. These attorneys monitor and review State and federal election reform proposals. Investigations are also continuing in several matters related to the 2000 Presidential election.
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PROTECTING THE RIGHTS OF INSTITUTIONALIZED PERSONS
Another example of vigorous enforcement by the Division is our enforcement of the Civil Rights of Institutionalized Persons Act or ''CRIPA.'' This statute authorizes the Civil Rights Division to investigate State-run nursing homes, prisons, and juvenile facilities when credible allegations of systematic serious or flagrant violations of constitutional standards or, in some cases, federal law, arise. Although CRIPA work is very rarely high profile, it is among the most important work that we do. CRIPA investigations can literally address life and death issues in nursing homes and juvenile facilities, and the population protected by the statute are among society's most vulnerablethe elderly, the mentally disabled, victims of abuse, and children. This Administration has authorized investigations of 24 facilities under CRIPA, and I have personally authorized 18 such investigations since I arrived at the Department late last July. In the past seven months alone, the Division has conducted 57 tours of nursing homes, juvenile facilities, mental health facilities, and correctional institutions. By way of comparison, the Division initiated CRIPA investigations of 15 facilities in fiscal years 1999 and 2000 combined. Moreover, the Special Litigation Section, which is charged with enforcing this statute, is hiring to fill attorney positions that have been added to pursue these cases, so I expect to continue to be able devote the resources necessary to continue to enforce this important statute.
CLOSING THE EDUCATION GAP
The work of the Division's Educational Opportunities Section is notable for several recent major accomplishments. First, the Section helped to resolve the longstanding Yonkers, New York elementary and secondary education desegregation case. The settlement resolves outstanding issues concerning State liability, restores control of the district to the local school board, and provides $300 million to the school district to use for educational and remedial programs over the next five years. These programs are intended to help narrow the ''achievement gap'' between disadvantaged and other students.
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The Section also achieved another major victory through the settlement of the Mississippi higher education desegregation case, which was approved by the court and will be of significant enduring benefit to many disadvantaged and other students in Mississippi. Under the agreement, the State will provide approximately $500 million to improve education at the State's historically-black public four-year colleges and increase access for minority students to the State's other colleges. As part of the relief, the historically-black colleges will implement new programs, be provided funds to enhance facilities, and will receive funds to create and enhance existing endowments.
Other notable achievements in safeguarding educational opportunities for all students include: (1) successfully litigating a Title IX case against the Michigan High School Athletic Association (''MHSAA'') and obtaining a court order that requires MHSAA to develop a plan to ensure equal opportunity for girls in high school sports; (2) obtaining a favorable settlement in ten cases regarding the desegregation of several of Alabama's junior colleges and trade schools;
(3) working with parties in longstanding desegregation cases to ensure that requests for unitary status were properly evaluated, and agreeing to unitary status in several cases where our efforts helped achieve unitary school systems; and (4) opening preliminary inquiries into school districts to determine whether legally appropriate services are being provided to limited English proficient students, disabled students, and whether peer harassment is being adequately addressed by school officials.
PROTECTING HOUSING, CREDIT, AND PUBLIC ACCOMMODATION RIGHTS
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The Housing and Civil Enforcement Section enforces the Equal Credit Opportunity Act, the Fair Housing Act (FHA), Title II of the Civil Rights Act of 1964 (public accommodations), and Section 2 of the Religious Land Use and Institutionalized Persons Act (''RLUIPA''). Under the first three statutes, the Department of Justice may bring suit where there is a ''pattern or practice'' of discrimination. RLUIPA enforcement may involve a single incident of discrimination. In addition, upon referral from the Department of Housing and Urban Development (HUD) under the FHA, after HUD has investigated and issued a charge of discrimination, the United States may bring suit on behalf of individual victims of discrimination.
This Section has been extremely busy during this Administration and has achieved a number of notable successes. The Section has brought 51 new lawsuits, negotiated 57 consent decrees and settlement agreements, and litigated one case to judgment in a successful jury trial. I have also authorized 16 additional lawsuits that are in pre-suit negotiations. Examples of significant victories include a $451,208 verdict against a landlord who sexually harassed a number of his female tenants, and two consent decrees against nightclub owners in Kansas and Alabama who denied black patrons access to the clubs on the same basis as whites.
The Section's pending matters run the full gamut of the statutes under its jurisdiction. For example, since January 20, 2001, the Section has filed cases under the FHA against housing providers alleging race or national origin discrimination, sexual harassment and numerous cases against developers and builders of multifamily housing that fail to meet the FHA's requirement that they be accessible to persons with disabilities. I also have approved (1) two lending discrimination cases, one involving redlining practices by a major urban bank; (2) several cases involving sexual harassment of tenants by landlords; (3) several cases of discrimination based on familial status or race; and (4) several cases involving discriminatory zoning decisions which were based on the race, national origin, or disabilities of the affected individuals.
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WORKING TO ENSURE EQUAL EMPLOYMENT OPPORTUNITIES
The Employment Litigation Section has had ten successful resolutions of cases involving discrimination based on race, sex, and religion since the beginning of the new Administration. They include: (1) a 2001 supplemental consent order in the Milwaukee Fire Department case where we secured $1.8 million in back pay and 40 jobs for African-American victims of hiring discrimination; (2) a settlement with the City of Newark based on religious discrimination directed at Muslim police officers; and (3) three consent decrees resolving allegations of sexual harassment.
With respect to the settlement with the City of Newark, the Civil Rights Division alleged that the City had discriminated against current and former police officers on the basis of their religion by failing or refusing reasonably to accommodate their religious observance, practice, and belief as Muslims of wearing a beard. The suit also alleged that the City threatened the Muslim officers with termination, transferred them to undesirable assignments, and denied them opportunities to work special overtime events. The consent decree provides for back pay and compensatory damages to 10 current and former Newark police officers. In addition, the agreement provides for two years of court supervision to allow the Department to ensure that the City implements non-discriminatory employment policies designed to reasonably accommodate the religious observance, practice, and belief of police department employees.
As with the other sections in the Division, the Employment Litigation Section continues to be very productive. During this Administration, the Section opened 133 new investigations, received authorization for 9 new cases, 3 of which have been filed, litigated 37 active cases, and monitored 67 consent decrees. One of the new and precedent-setting cases filed by this Administration involves the application of Title VII to participants in workfare programs under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996. In this case, the Division took the position that Title VII applied to women who were participants in workfare programs and who were allegedly subjected to sexual harassment. Although the district court disagreed with our position, the United States will appeal this case to the United States Court of Appeals for the Second Circuit. Another significant case that the Division and the United States Attorney for the Southern District of New York has just filed challenges the promotion practices of the New York City Department of Parks and Recreation. In that lawsuit, the United States alleges that the Parks Department engaged in a pattern and practice of intentional discrimination against blacks and Hispanics in making promotions. Among other things, the suit alleges that the Parks Department failed to follow its own procedures by routinely failing to post notices of job openings and instead selecting white employees for promotions.
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As stated, I have authorized 9 new lawsuits, 6 of which are in pre-suit negotiations. A few examples of the types of cases we are handling include cases that involve the sexual harassment of a female firefighter by her male colleagues, the sexual harassment of a school teacher by a female supervisor of the same sex, and the denial of a black employee of a promotion because of his race.
PROTECTING CITIZENS AND LEGAL IMMIGRANTS FROM EMPLOYMENT DISCRIMINATION
One particularly important component of the Civil Rights Division that I also wanted to mention is the Office of Special Counsel for Immigration Related Unfair Employment Practices or ''OSC.'' OSC protects United States citizens and work-authorized aliens from employment discrimination based on citizenship status or national origin. The OSC fulfills this mission through investigation and litigation, a vigorous outreach program directed towards employers and potential victims of discrimination, and a unique early intervention program. The OSC also advises the Department on a wide range of policy matters relating to immigration and the treatment of immigrants.
The Office's accomplishments include: (1) the investigation of 196 charges alleging unfair immigration-related employment practices since January 20, 2001; 42 of those investigations have been resolved through settlement; (2) favorable results in, and the ongoing litigation of, cases and matters against major employers in several industries that employ large numbers of immigrants, including the hospitality, gaming, agriculture, meatpacking, and retail industries; (3) initiation of a major investigation of internet-based job-referral agencies that may be engaging in acts of illegal citizenship status discrimination; (4) an expanded and improved program, including increased outreach to the employer community, use of ethnic media to communicate OSC's mission to under-served communities, and increased emphasis on establishing partnerships with State and local governments; and (5) timely and ongoing responses to both employer and worker concerns about the employment of non-citizens in the aftermath of the September 11th attacks.
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Today I have talked about the highlights of the Division's accomplishments and initiatives, but there is obviously more that could be said. I must say in closing that none of what I have discussed could have been accomplished without the dedicated career staff of the Civil Rights Division, and in fact, it is because of their, experience, talent, and dedication that we have been able to achieve the successes we haveboth in terms of quality and quantityduring my brief tenure as Assistant Attorney General. I look forward to answering your questions.
Mr. CHABOT. With that, if there is no further business, we are adjourned.
[Whereupon, at 12:16 p.m., the Subcommittee was adjourned.]