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Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on race, sex, religion, or national origin. Responsibility for enforcing the law is shared by the Department of Justice and the Equal Employment Opportunity Commission — and Justice has apparently stopped enforcing Title VII. If this seems unduly alarmist, consider that in the 20 years preceding the current administration — under Ronald Reagan, the first George Bush, and Bill Clinton — the Department of Justice filed some 270 Title VII actions, an average of over 13 new cases each year, spread fairly evenly throughout all three administrations. And many of these were high-impact “pattern or practice” suits, the equivalent of class actions, designed to open entire workplaces to minorities and women. But in the two-plus years since George W. Bush was inaugurated, Justice has filed only seven Title VII cases, about three a year. Just one of these was a pattern-or-practice suit, and that was initiated not by Main Justice, but by the U.S. attorney in Manhattan. No new cases have been filed for over six months. Under Title VII, Justice is responsible for enforcement in the public sector — agencies of state and local government — while the EEOC deals with the private sphere. The current administration has not been overly attentive to the EEOC, which even now lacks a presidentially appointed general counsel. Still, the commission’s new case filings in the past two years have been in line with its historic practice, unlike Justice’s, so Title VII enforcement continues at a brisk pace in the private sector. This is a tribute, perhaps, to the EEOC’s somewhat independent status, and it stands in sharp contrast to Justice’s failure to address employment bias in public sector agencies. Within the Department of Justice, the Civil Rights Division handles Title VII enforcement. And within the division, that task resides with the Employment Litigation Section, which has a history of active and successful Title VII prosecution. But the current administration has hamstrung the ELS by depleting its leadership, backing out of Title VII lawsuits and settlements already filed, and insinuating politics into the hiring process. The result is that small suits on behalf of one or two individuals have slowed to a trickle, and the government has virtually abandoned the big-ticket, pattern-or-practice cases. This is an abrupt departure from past practice under both Republican and Democratic administrations. VIGOROUS ENFORCEMENT HISTORY First, some background. As enacted in 1964, Title VII gave the attorney general authority to bring suit to remedy a “pattern or practice” of discrimination in employment, but the law covered only private employers. Then, in 1972, Congress amended Title VII to extend coverage to public agencies, and to divide enforcement responsibility between Justice and the EEOC, with Justice taking on the public sector. In 1972, the ELS started bringing pattern-or-practice cases against public safety agencies that had excluded minorities or women (or both). From 1972 through 1980, under the Nixon, Ford, and Carter administrations, the section sued more than a score of city and county police and sheriff’s departments, including those in such major cities as New York, Chicago, Los Angeles, and Philadelphia; almost as many fire departments; and state police forces in 10 states, among them New York, Florida, Ohio, Maryland, and Virginia. The ELS also filed governmentwide suits against all the agencies in several cities and counties, including one in Fairfax County, Va., that resulted in a payment of nearly $3 million to victims of bias. In 1981, newly elected President Ronald Reagan selected William Bradford Reynolds as head of the Civil Rights Division. Reynolds was more ideological than his predecessors, and he and his political staff on occasion sought to undermine decrees they thought looked too much like quotas, no matter how egregious the underlying discrimination had been. Still, Reynolds authorized a flurry of new Title VII filings. Many were old standbys — city and county police and fire departments, state police, other state agencies — but there was also a new “suburban litigation” program aimed at virtually all-white suburbs that used durational residency requirements to avoid hiring black employees for municipal jobs. The ELS filed more than 30 of these suburban suits under Reynolds. All told, the Justice Department brought nearly 100 Title VII cases during the Reagan years, about 12 annually, the majority of which were those high-impact, pattern-or-practice suits. The same volume continued during the first Bush and the Clinton administrations — over 170 cases, more than 14 per year, many of them pattern-or-practice. But Attorney General John Ashcroft and Ralph Boyd, his assistant attorney general for civil rights, have filed only a handful of small cases. They have turned off the enforcement spigot. A year ago, The Washington Post ran a series of articles suggesting that the Civil Rights Division was being politicized. Nonsense, replied Boyd in a letter to the Post in late March 2002. He defended his conduct, including reassigning the chief and a deputy chief of the ELS, as consistent with the practice in prior administrations. “Such reassignments are not unusual,” he wrote. “[A]t the outset of Attorney General Janet Reno’s tenure, three of the nine section chiefs in the Civil Rights Division were reassigned.” Boyd took the same tack during an oversight hearing chaired by Sen. Edward Kennedy (D-Mass.) last May, saying that he had detailed Katherine Baldwin, the chief of the ELS since 1993, to “take the laboring oar” on a task force because of her “excellent teaching skills.” When asked whether Baldwin would return as chief of the ELS after the detail, Boyd told the senators that “[m]y expectation is that she would.” As it turned out, that expectation was wrong. Baldwin’s detail was temporary, but she did not return to the ELS. Instead, she was made a deputy in another office. Changes in the ELS leadership did not stop with Baldwin’s removal, and the reshuffling of the section’s remaining supervisors was unprecedented. In January 2001, the ELS management team included Baldwin as chief, four deputies, and two senior litigation counsel. Today, four of these seven career lawyers are gone — Baldwin, two deputies, and one senior counsel. They have been replaced, but only Baldwin’s successor had any management experience in the Civil Rights Division or, indeed, anywhere else at Justice. TOO MANY CHANGES Personnel is not all that has shifted dramatically at the ELS. In the fall of 2001, Ralph Boyd pulled the plug on a 3rd Circuit appeal, authorized by the solicitor general, in an ELS case challenging selection standards at the Southeastern Pennsylvania Transportation Authority. SEPTA’s criteria screened out over 90 percent of female applicants for law enforcement jobs, and were more stringent than those of the Federal Bureau of Investigation or the New York Police Department. In the spring of 2002, Boyd ordered reversals of course in two other ELS cases — one involving high paid custodians in the New York City schools, the other police officers in Buffalo. Both were pattern-or-practice suits, and in both the ELS sought to scuttle decrees to which Justice was a party. These were all important cases — aimed at giving minorities and women a shot at decent livelihoods. The administration’s actions toward the ELS — both in terms of personnel moves and reversals in lawsuits — have not escaped public notice. The Leadership Conference on Civil Rights issued a report in April that highlighted the backtracking in several cases, and the Post has covered many of these issues, as has The Kansas City Star. The Star also reported on the apparent politicization of the hiring process within the Civil Rights Division. In the past, a personnel committee of seasoned career lawyers reviewed applicants for line attorney positions and made recommendations to the assistant attorney general heading the division. Today, Boyd’s staff has supplanted the personnel committee, and political appointees interview prospective hires. The specifics of the Bush administration’s treatment of the ELS are well-documented. What has escaped comment, though, is that these actions are means to a larger end — a moratorium on Title VII enforcement. The Department of Justice has not explained the reasons for this freeze. Possible causes range from indifference to fair employment, on the one hand, to open hostility on the other. Whatever the reason, the administration has paralyzed the ELS with attacks on its leadership and reversals in key cases and political hiring. The predictable result is the failure to file new cases. At the Senate oversight hearing in May 2002, Boyd was asked about the decline in filings. He intimated that a number of cases were in the pipeline, and he said that “the numbers of suits that I’ve authorized is not a departure from the past, but [is] in fact consistent with the past, both in terms of quantity and quality.” NOT CONSISTENT WITH THE PAST This is simply not so. In the year since the Senate hearing, the Department of Justice has filed just five employment discrimination cases — four by the ELS, and one by the U.S. Attorney’s Office in the Southern District of New York. That clearly is a “departure” from the quantity of filings compared to previous administrations, and is not “consistent with the past.” And Justice’s Web site lists no new Title VII filings at all since October 2002. As for quality, with the exception of the single case in New York (the one that Main Justice did not initiate), Justice has not employed the most potent weapon in its arsenal — the pattern-or-practice suit. Instead, the few cases filed have sought relief only for isolated individuals. Maybe the ELS has more cases in the pipeline — as Ralph Boyd again suggested at a hearing in the House on May 15 — maybe not. But the facts show that the ELS under the Bush administration has failed to live up to its history. The lawyers in the ELS not only brought a high volume of litigation in past administrations; they almost never lost. They either won on the merits or settled with a consent decree. In part, this enviable record was the result of careful suit selection. But it was also the product of the strong cadre of able career lawyers and supervisors that still exists throughout the Civil Rights Division. That impressive track record indicates that Justice surely would win the vast majority of its Title VII cases, if it brought some. Instead, the administration has decided to hold back its firepower. Twice in the late ’60s and early ’70s, line attorneys in the division publicly protested high-profile Nixon administration reversals in school desegregation lawsuits. The times were heated, and politics were rife. Still, the division kept filing new cases. The Bush administration has succeeded in an enterprise that even Nixon never attempted. It has shut down a major area of civil rights enforcement. That is bad news for public sector workers — and for the country. Doug Huron is a partner at Heller, Huron, Chertkof, Lerner, Simon & Salzman in Washington, D.C. He prosecuted Title VII cases in the Department of Justice’s Civil Rights Division from 1970 to 1976.

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