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WASHINGTON — Since its creation in 1957, the Civil Rights Division of the U.S. Department of Justice has pushed to deliver the racial equality promised by landmark civil rights legislation. But 46 years later, the aims of the civil rights movement are less clear-cut, and so is the mission of the lawyers of the Civil Rights Division. As the nation confronts increasingly complex issues of race and diversity, the division itself has become a microcosm of the ideological conflicts wrenching the country as a whole. In fact, in recent years the division faced serious internal problems because the top career leadership spots were all filled by white lawyers. From affirmative action to employment discrimination, specific cases handled by the division have become symbolic battlegrounds in the ongoing struggle for control between division lawyers who see themselves as warriors in the fight for a more tolerant, more inclusive America and those who believe in more restrained applications of civil rights laws. “It’s a question of having very different definitions of what civil rights is all about today,” says Abigail Thernstrom, co-author of two books on race in America and a Republican appointee to the U.S. Commission on Civil Rights. “Racial inequality is very real, but there are legitimate disagreements over the sources and about what the objectives should be.” But critics point to several developments they say prove that the Civil Rights Division under former Assistant Attorney General Ralph Boyd Jr. retreated from aggressively pursuing cases in certain areas. Boyd — one of a number of high-level Justice Department resignations this year — was replaced in August by new civil rights chief R. Alexander Acosta. In 2001 and 2002, the division brought 12 new employment discrimination suits, down from 18 over the two previous years. In addition to bringing fewer employment cases overall, under the Bush administration the Justice Department has not brought a single “pattern-or-practice” case — high-impact filings that strike at discriminatory employment policies rather than isolated incidents of discrimination. Pattern-or-practice cases require extensive investigation and can take years to develop. But, civil rights veterans say, such cases are worth the time and resources because they can force broader institutional reform. According to one Civil Rights Division official who defends the section’s record, 12 employment-related pattern-or-practice investigations have been opened so far this year. In several areas, such as police misconduct, Boyd raised the bar for authorizing new cases by insisting on more evidence of wrongdoing before going forward. Boyd’s personnel practices also drew intense scrutiny. Shortly before leaving the division, Boyd reassigned the longtime chief of the Housing and Civil Enforcement Section — a move civil rights advocates say has led to a decrease in the number of discrimination suits brought under the Fair Housing Act. Yet in some areas, the Civil Rights Division made considerable gains under Boyd, who is now a partner in the D.C. office of Alston & Bird. Under Boyd, the division successfully prosecuted more than 20 human-trafficking cases involving hundreds of victims who had been kidnapped, assaulted, and often forced into labor or prostitution. The department secured three times as many human-trafficking convictions in 2001 and 2002 as it did over the previous two years. Boyd also won praise from the Arab-American community for the division’s efforts to fight backlash discrimination against members of the Arab and Muslim communities in the wake of the Sept. 11 terrorist attacks. The Justice Department, led by the Civil Rights Division, investigated roughly 500 incidents of backlash discrimination and brought 13 cases. The department won convictions against 18 defendants — a 100 percent conviction rate. Boyd personally attended dozens of community forums and met more than 25 times with leaders of Arab-American and Muslim-American groups. Still, civil rights advocates and Democratic staffers on Capitol Hill who monitor the division closely remain highly critical of Boyd’s tenure. A report released Sept. 9 by People for the American Way, a liberal public interest group, calls the Justice Department’s civil rights record “abysmal” and dismisses the division’s emphasis on “nontraditional” areas of civil rights enforcement, like human trafficking. BEYOND VOTING RIGHTS Over the past four decades, the mission of the Civil Rights Division has expanded from enforcing new voting rights legislation to fighting discrimination more broadly on the basis of race, sex, religion, age, disability, and national origin. The division has grown from 10 to roughly 350 lawyers. There is no doubt that, as Justice Ruth Bader Ginsburg wrote in Grutter v. Bollinger, the recent Supreme Court case challenging the use of race as a factor in admissions at the University of Michigan Law School, “conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land.” But there seems little consensus as to how to address the problem — or even how to recognize it. With scholars and advocates across the political spectrum split vehemently, the Civil Rights Division finds itself at the crux of the debate over America’s civil rights priorities. Turmoil within the division, as well as friction between the division and the larger civil rights community, tends to become more pronounced during Republican administrations, when the government’s civil rights priorities split from those of liberal civil rights organizations in some areas. Under Democratic presidents, the Civil Rights Division tends to identify far more closely with the goals of traditional civil rights activists. For instance, Bill Lann Lee, who ran the division from 1997 to 2001, spent more than a decade working for the NAACP Legal Defense and Education Fund before joining the Justice Department. But Boyd, whose parents helped launch the Schenectady, N.Y., chapter of the National Association for the Advancement of Colored People, had no direct experience in civil rights law when he was tapped in 2001 for the civil rights post at Justice. A former law firm partner and assistant U.S. attorney in Boston, Boyd brought the sensibility of a major prosecutor’s office to the Civil Rights Division. He pushed division lawyers to separate themselves from the interests of outside civil rights organizations, such as the NAACP and the American Civil Liberties Union. “It’s appropriate for some people who are advocates to push the envelope,” Boyd says. “But that is a different job than the job of lawyers who represent the United States. Our job is to stay tethered to settled legal principles. I’m not one of those folks who thinks that the law or the facts are infinitely malleable. I usually think there is a right answer and a wrong answer. “We have a responsibility to protect people, particularly vulnerable people who have been discriminated against, mistreated because of their race or their color or their national origin or religion,” Boyd continues. “I don’t believe when you represent the United States you stand out there and say, ‘We allege this person did this,’ without doing those things that are necessary to do, that are reasonable to do to make sure you are right.” His approach rankled some members of the division’s career staff, who felt the Justice Department should assume a more activist role. Tension came to a head first in the Employment Litigation Section. Boyd pulled the plug on a gender discrimination case against the Southeastern Pennsylvania Transit Authority, or SEPTA, which runs the mass transit system in Philadelphia. SEPTA’s physical fitness requirements for its police officers screened out over 90 percent of female applicants and were more demanding than those of the Federal Bureau of Investigation or the New York Police Department. In 1997 the Justice Department intervened in and backed a suit on behalf of female applicants who had been denied jobs. When Boyd took over the division, SEPTA’s standards had been upheld twice by the trial judge, and the case was headed to the Third Circuit U.S. Court of Appeals for a second review. After heated internal debate, Boyd decided the administration would not participate in the appeal. The career attorneys who had worked on the case felt blindsided. “There were policy disagreements for sure. But more to the point, there were procedural disagreements,” says one lawyer familiar with the case. “The front office didn’t treat anyone with respect. The division was being run like a dictatorship.” In October 2002, the appellate panel ruled 2-1 that SEPTA’s fitness standards were lawful. Boyd maintains that he made the right decision in abandoning the case. “It was nothing to do with politics or ideology,” Boyd says. “I didn’t think we could make a credible argument, given that we were representing the United States. If I had been a private lawyer I might have come to a different conclusion.” He adds, “Our view was sustained by the courts, and so if it was sustained by the courts I don’t know how it could be crazy or mean-spirited or out of the mainstream or reflective of some political agenda.” Douglas Huron, a partner at D.C.’s Heller, Huron, Chertkof, Lerner, Simon & Salzman who worked in the Employment Litigation Section from 1970 to 1976, says that the court’s ultimate decision in the SEPTA case might have been different had the Justice Department continued support for the plaintiffs. “It happens a lot that courts take the view of Justice more seriously,” Huron says, adding, “If you believe [discrimination based on race and sex] is still a problem, the natural conclusion is that Justice should be aggressively pursuing it.” Decisions affecting other matters have elicited outcries from the administration’s critics as well. In one case involving discrimination against female and minority custodians in the New York City school district, the Justice Department was hotly criticized for abandoning a settlement agreement reached in 2000 that gave jobs to 60 minority applicants. Boyd maintains that there were significant problems with the agreement and that it did not directly benefit individuals who had been discriminated against. He instructed division lawyers to conduct further investigation. “Ultimately, I think it will be resolved in a way that satisfies everyone,” Boyd says. “In a nonpoliticized world, this would not have been a controversial decision. “In the world of Washington politics, the merits tend to get lost in the political posturing. . . . A lot of folks aren’t interested in the right answer, they’re interested in how they can use what you did or what you said to advance a particular political position or agenda.” Following Boyd’s decision in the SEPTA case, animosity between the career managers in the Employment Litigation Section and Boyd’s office continued to mount. A petition signed by nearly every section lawyer rebuked Boyd for making case decisions without consulting career attorneys. Boyd was livid at what he saw as open insubordination. Ultimately, four of the top seven career attorneys in the Employment Litigation Section, including section chief Katherine Baldwin, were involuntarily removed from their posts and transferred to other jobs within the Justice Department. The personnel moves in the section remain controversial and have come up repeatedly at congressional oversight hearings. More recently, personnel shuffles affecting two other litigating sections have thrown fuel on the fire. In April 2003, chief of the Housing and Civil Enforcement Section Joan Magagna was removed from her position after six years and replaced by Steven Rosenbaum, former head of the division’s Special Litigation Section. Magagna, 56, was offered the No. 2 slot in the Disability Rights Section — a unit she headed from 1992 to 1997. Magagna balked at the demotion and accepted an early retirement package in June. “She was literally picked off. They unfairly targeted her because she was being aggressive about enforcing the housing act,” says D.C. civil rights attorney John Relman, who litigated alongside the Justice Department in the high-profile racial discrimination case against Adam’s Mark Hotel chain. Since Magagna’s departure, local housing discrimination attorneys say the section has filed fewer suits and has sent back cases referred from the Department of Housing and Urban Development instead of prosecuting them. Magagna declined to comment on her early retirement or how it may have affected the section’s work. “I will not discuss any specific cases or positions of the Civil Rights Division — what they were when I was there or how they may or may not have changed since I left,” she wrote in an e-mail. Boyd says Relman’s assertion is “flatly false.” “Joan Magagna is a person who served the Justice Department very ably for many years,” he says. “I would never interfere with someone simply for being an aggressive lawyer.” In 2002, the Housing and Civil Enforcement Section initiated 51 new suits. Justice Department spokesman Jorge Martinez would not provide more recent statistics. “Anytime there is a change of leadership, there will be a period of time in which activity slows down while new managers put in place their own processes for reviewing cases and working with line attorneys,” Boyd says. He adds, “All my personnel moves were made based on my sense of how to best use the talent in the division.” Indeed, there is another side to the personnel moves made by Boyd that has been largely overlooked by those outside the Civil Rights Division: its impact on the division’s minority lawyers. When Boyd arrived at Main Justice in July 2001, not one of the division’s nine litigating sections was led by a minority attorney. Despite the large number of minority attorneys drawn to the division, some contend that too few have ascended to management positions. Instead, minority lawyers tend to leave the division or remain foot soldiers in an organization run disproportionately by white attorneys. Political appointees of both parties have grappled with how to remedy the imbalance. “Over time, the division has not necessarily been a good place for attorneys of color,” says one veteran minority lawyer. “We hold people to the fire for statistical shortfalls that existed routinely in management ranks of the Civil Rights Division.” During his two-year tenure, Boyd promoted five minority attorneys to top management positions, including two to section chief posts. With Magagna’s removal, attorney Shanetta Brown Cutlar replaced Rosenbaum as head of the Special Litigation Section, becoming only the second black woman to serve as section chief in the division’s history. Cutlar did not return phone calls seeking comment. David Palmer, Katherine Baldwin’s replacement as chief of the Employment Litigation Section, is the first Hispanic to hold a section chief position in the Civil Rights Division. Palmer declined comment. Boyd also promoted three minority lawyers to deputy chief posts. BIG MAC The promotions came partly in response to agitation from a group within the Civil Rights Division known as the Minority Attorney Coalition, or MAC. The group had aired its concerns with Boyd’s predecessor, Lee, and saw little in the way of change. “It was one of our failings,” says one former Justice Department official. “There is no question the management ranks of the division needed to be more representative.” University of Maryland law professor Helen Norton, a Civil Rights Division official during the Clinton administration, says that under Lee, the division began a practice of publicizing all management openings in an effort to open the promotion process to more candidates. There was “ongoing concern and commitment to make sure we all did a better job,” Norton says. But minority lawyers say it was Boyd who made a difference. “Ralph Boyd went a long way in terms of putting minority lawyers in top positions,” says a black lawyer in the division. “We are trying to do within the Justice Department Civil Rights Division what we require of the private sector and other entities we sue.” In 2001, shortly after his arrival, Boyd sat down with roughly 30 MAC members, who presented him with evidence of disparities between the division’s minority and white attorneys in promotion, pay and litigation opportunities, according to to two MAC members who attended meetings with Boyd. The group made it clear that they might consider suing the Justice Department if the situation did not improve. The most pressing item on the group’s agenda was getting two minority attorneys into the division’s top career ranks. Boyd told the group upfront that he would not advocate quotas, but he responded to concerns that minority lawyers were leaving the department because they were not receiving desirable case assignments or promotions. Some MAC members were surprised to find a strong ally in Boyd — a Republican appointee opposed to racial preferences. But Boyd says he never wavered from his convictions — or apologized for them. “If you had blindfolded me and told me nothing about race or background, I would have chosen the exact same people,” Boyd says. “These promotions were based on attorneys’ legal acumen, judgment and leadership skills.” Vanessa Blum is a reporter for The Recorder’s Washington, D.C., affiliate Legal Times.

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