An Uncertain Future for Civil Rights at the DOJ

The Justice Department under President Obama pursued civil rights cases in an aggressive manner, making it perhaps the most activist administration in history. Founded in 1957 and tasked with enforcing federal law prohibiting discrimination, the DoJ’s civil rights division spearheaded this effort. Over the past eight years, the civil rights division has been at the forefront of cases involving police misconduct, voting rights, discrimination, and more. However, President Donald Trump’s appointees to the Justice Department signal a different approach. Their careers, in contrast, suggest an emphasis on states’ rights, religious freedom, and self-regulation of the police.

Attorney General Jeff Sessions, despite proponents’ attempts to brand him as a civil rights hero, has long been at odds with both the ACLU and the NAACP. Sessions has stated that investigations into police departments “undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness.” Trump’s two appointees to the civil rights division, in particular, are notable. The former head of the division, Vanita Gupta, had previously worked with the NAACP and the ACLU. In contrast, Trump’s picks for the division have the opposite kind of experience with civil rights lawsuits.

Thomas Wheeler, former general counsel to Mike Pence, has been named the new acting head of the civil rights division. His experience draws mostly from defending schools and municipalities from discrimination lawsuits, as well as advocating for voter ID laws. Wheeler’s deputy, also considered for the position of acting head, is John Gore, whose law firm has defended multiple states against civil rights lawsuits. These include gerrymandering cases in New York, Florida, and South Carolina, as well as a Florida attempt to purge its voter rolls months before an election. Gore also defended North Carolina’s HB2, which limited transgender students to using bathrooms corresponding with their birth sex.

In 1997, Jeff Sessions said that “the position of civil rights chief represents the executive branch’s position on civil rights issues.” As head of the civil rights division, Thomas Wheeler will have broad discretion over which cases to pursue. This means that enforcement of civil rights laws will likely meet the partisan pattern of previous administrations. Under former President George W. Bush, lawsuits filed by the civil rights division regarding discrimination or enforcement of the Voting Rights Act fell by almost half in comparison to the Clinton administration. 

A 2009 report by the Government Accountability Office found multiple instances in which supervisors had refused to pursue cases against the recommendations of career lawyers. These included Texas’s infamous 2003 redistricting plan and accusations that state officials had illegally intimidated black voters. Bradly Schlozman, Bush’s civil rights chief, was found to have prioritized political affiliations in hiring, declaring in an email that he wanted to “gerrymander those crazy libs rights out of the section” that enforces voting rights and replace them with “real Americans.” William Bradford Reynolds, Reagan’s civil rights chief, was similarly accused by Democrats and advocacy groups of refusing to enforce civil rights laws. However, unlike Wheeler and Gore, neither Schlozman or Reynolds had extensive experience fighting against civil rights lawsuits before having joined the Justice Department.

Unfortunately, when states believe that they are free from federal oversight, they are far more likely to act outside the bounds of the Constitution.

The costs of a complacent Justice Department would be dire. In 1994, after the videotaped beating of Rodney King, the civil rights division was granted authority to investigate “a pattern or practice of conduct by law enforcement officers” that violated constitutional rights. The Obama administration used this provision to investigate an unprecedented twenty-five police departments across the country. These police departments have been under investigation not only for allegations of systemic racism, but also, in the case of Newark, NJ, police misconduct, including “shootings, sexual assault, prisoner beatings, false arrests, and discrimination.”

The civil rights division has also investigated states that have failed to comply with federal voting regulations. In 2013, the Supreme Court struck down Section 4 of the Voting Rights Act, which required states and counties with histories of discrimination to receive clearance from the Justice Department before making any changes to their voting procedures. Shortly after, North Carolina passed perhaps the most infamous of voter ID measures, which, according to the judges of the Fourth Circuit, “target[ed] African Americans with almost surgical precision.” The law required strict adherence to a number of verification measures: first, it required voters to present a photo ID while voting; second, it eliminated the ability to register on Election Day, restricted access to early ballots, and banded electronic distribution of absentee ballots; third, it restricted the locations and times in which municipal voters could cast absentee ballots. The court noted that “before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected African Americans.” 

Unfortunately, when states believe that they are free from federal oversight, they are far more likely to act outside the bounds of the Constitution. Just last year, the Justice Department found that the state of Louisiana was illegally committing the mentally ill to nursing homes rather than providing them with appropriate mental health services. The Department also sued a Virginia county that had attempted to refuse building permits for mosques. In Shenandoah, Pennsylvania, the Justice Department prosecuted two police officers who had attempted to cover up the murder of a Mexican immigrant by local high school football players. And, in North Carolina and Virginia, it challenged the controversial “bathroom bills” which John Gore defended.

For many Americans, federal oversight is necessary when state and local officials attempt to marginalize them. That is why Eric Holder referred to the civil rights division as the “crown jewel” of the Justice Department. Over the past eight years, the civil rights division has vigorously investigated these (and other) infringements of civil rights. Though not all cases attract national attention, each has a profound impact on those involved. Hopefully, the Justice Department of Jeff Sessions and Thomas Wheeler will defy expectations and continue the important work set out under the Obama administration.

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