Kristen Clarke parlayed a childhood in crime-ridden East Brooklyn into a career as a civil rights lawyer and commentator on issues of race, law and democracy. As chief of the New York attorney general’s Civil Rights Bureau, a position she assumed a year ago, Clarke promotes civil rights enforcement with an arsenal of New York’s robust anti-discrimination laws.
Previously, Clarke was an attorney with the civil rights division of the U.S. Department of Justice and co-director of the Political Participation Group at the NAACP Legal Defense and Education Fund. She was part of the NAACP litigation team that successfully defended the Voting Rights Act in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009). Another voting rights case she argued at the trial level, Shelby County, Alabama v. Holder, is headed to the U.S. Supreme Court.
A graduate of Harvard University and Columbia Law School, the 38-year-old Clarke was honored in 2011 by the National Bar Association as one of the “Nation’s Best Advocates: 40 Lawyers Under 40.” She has also written extensively on civil rights issues. Her recent books include Barack Obama and African American Empowerment: The Rise of Black America’s New Leadership and Seeking Higher Ground: The Hurricane Katrina Crisis, Race and Public Policy Reader, both edited with the late Manning Marable, a leading black history scholar and Pulitzer Prize winner.
Her salary at the attorney general’s office is $140,000.
Q: You have spent virtually your entire career advocating for civil rights. What drove you to this area of the law?
A: My experience growing up in the East New York section of Brooklyn played a large role in my decision to pursue a career in civil rights. This is a section of Brooklyn that is racially isolated and one with some of the highest poverty, crime and unemployment rates in the city. Although I have had the benefit of attending exceptional schools, I know that there are far too many who have not had access to equal educational opportunities.
I have profound respect for the work of civil rights lawyers and advocates such as Thurgood Marshall and Charles Hamilton Houston and Constance Baker Motley. Through seminal cases such as Brown v. Board of Education, they used the law as a vehicle to promote integration and as a tool to close some of the stark racial gaps that we face. I chose this path recognizing that their work is not yet done and that the progress we have achieved remains fragile.
Q: Have you personally experienced discrimination?
A: I grew up in a community called Starrett City, one of the largest housing developments in the country. Starrett City was the subject of litigation under the Fair Housing Act. For years, the complex maintained a system of racial quotas — white prospective tenants could walk in and easily rent an apartment while black and Latino prospective tenants often faced a wait list. Starrett City defended its quota system by arguing that its purpose was to maintain a certain racial balance in the apartments, but a group of minority litigants defeated the policy by bringing a successful claim under the Fair Housing Act.
My experience in Starrett City reminds me that tackling racial segregation and isolation are incredibly complex challenges with no easy solutions but precisely the kind of problems that we need to tackle head on.
Q: How has the definition of discrimination changed? Which are the groups most at risk today?
A: Discrimination has definitely become more sophisticated in form though its impact remains the same. The challenge today is figuring out how to ensure that civil rights enforcement remains tailored to dealing with the new barriers and challenges that we face today.
For example, our state and our country are continuing to grapple with the effects of the mortgage foreclosure crisis, the overall economic downturn and high rates of unemployment. We are now seeing many employers using credit history reports as tools to evaluate job candidates. We are seeing other employers who refuse to hire job candidates who are currently unemployed. These kinds of hiring practices may be ones that have a greater impact on African-Americans, Latinos, women, the elderly and other minority groups.
The challenge is making sure that we remain focused on combating discrimination in whatever shape it rears its ugly head.
Marriage equality in New York certainly stands as a landmark achievement and we must work to ensure that same-sex couples are treated equally and fairly. We have a number of veterans and military personnel who are increasingly the targets of predatory schemes. New immigrants to our state are far too often subject to fraud and reluctant to seek the assistance of law enforcement.
Q: What does the Attorney General’s Civil Rights Bureau do?
A: The Civil Rights Bureau is an engine of aggressive civil rights enforcement. The attorneys within the bureau are among the brightest and most dedicated advocates that I have had the chance to work with.
We review the complaints that come to us with a fine-tooth comb and we meet and hear from advocates about the problems that they are facing. We are proactive in our approach and frequently launch new initiatives to tackle stubborn areas of discrimination. We work to fight employment and housing discrimination, combat immigration fraud and predatory practices aimed at minority groups, and work to promote equal educational opportunity and full access to the ballot box. Sometimes achieving real results means taking a stance that is unpopular and we have an attorney general who is not afraid to do that.
Q: What type of cases do you take on?
A: The bureau takes on cases that will provide an opportunity to have a transformative impact on an industry or a field. We think about litigation that will provide a vehicle to have a mass impact on the rights of New Yorkers. While we litigate some of our cases, we are often able to achieve resolution of our matters through settlement discussions.
The end goal in each instance is to ensure that we uproot and eliminate discriminatory conduct, institute new policies and practices, promote training and compliance and, where possible, provide restitution to impacted individuals.
Q: Much of the bureau’s recent work has focused on voting rights, which seems to be one of your specialties. Does your appointment signal a desire by the attorney general to become more involved with election rights?
A: I believe that the right to vote is the bedrock of our democracy. Our nation has engaged in a decades-long struggle to extend the franchise to all citizens. However, the progress that we have achieved is fragile and the threats that remain are both real and substantial.
Indeed, this is a unique moment for those who are concerned about voting rights. All throughout the country, we have witnessed a seemingly coordinated effort to make access to the ballot box more difficult. We have seen efforts to implement mandatory photo identification requirements for voters, efforts to scale back the time for early voting and efforts to make it more difficult for ex-felons to restore their right to vote. In addition, some jurisdictions have taken aim at the Voting Rights Act seeking to strike down its protections at a time when they remain especially necessary.
The bureau has been working to promote equal access to the ballot box to ensure that all eligible voters are able to freely participate in the political process. We have engaged with Boards of Election across the state, for example, to address the language barriers that some voters face. The Voting Rights Act requires many counties across our state to provide bilingual election-related materials and bilingual assistance at the polls and compliance with the law is necessary to ensure that many non-English speakers across our state are able to effectively and meaningfully participate in the political process.
We know that persons with disabilities face real and substantial barriers when attempting to cast their votes. We also know that minority voters continue to encounter obstacles on Election Day. The bureau is deeply committed to protecting the voting rights of New Yorkers, and I am proud of the enforcement record that we are developing in this area.
Q: What sort of election rights issues arose in this year’s election, both in New York and nationally?
A: Hurricane Sandy most certainly created new challenges and complexities for this year’s presidential election. Many of these challenges were ones that I had encountered while working in the Gulf region following Hurricane Katrina.
The attorney general’s office launched an Election Day hotline that provided an opportunity to address complaints and resolve problems faced by voters across the state. Some of the biggest problems that we learned about came from displaced voters. Many sought to vote by affidavit ballot but many polling sites ran out of those ballots hours before the close of the election.
Q: Does Attorney General Schneiderman view the civil rights unit differently than his predecessors?
A: The attorney general knows that while we have made great progress throughout the years, the work is not yet complete. The long march toward equality and justice in our state is not yet over. In the end, I think that civil rights enforcement will be an important part of the attorney general’s legacy.
Q: Last year, Schneiderman launched his “Religious Rights Initiative” to target faith-based discrimination and violations of religious rights. What has been the result of that initiative? Have you brought any lawsuits?
A: The initiative has been very well-received among a number of faith communities. We have achieved a number of important settlements including one with Milrose Consultants, an architectural firm with offices in three states; the New York City Health and Hospitals Corp. (HHC), the largest municipal health care organization in the country; and Jacobi Medical Center, a facility within that network, to safeguard all employees’ rights to religious accommodations. The settlements require the institutionalization of best practices to ensure that employees’ religious accommodations requests will be handled in accordance with the law.
We know that there is more work to do on this front including addressing problems with respect to religious headwear and confronting the school bullying incidents that are directed at religious minorities. More and more faith communities are turning to our office for help on these issues and this will continue to remain a priority area of enforcement.
Q: Your office filed an amicus brief in Arizona v. United States, the dispute over Arizona’s controversial immigration policies. You argued that Arizona’s statute was pre-empted by federal law, as, of course, the U.S. Supreme Court found. Doesn’t the attorney general’s office usually oppose pre-emption and support the state’s right to make its own laws and policies? If so, why did you oppose Arizona?
A: First, it is important to note that New York is a gateway state that is home to some of the largest populations of both documented and undocumented immigrants in the country. For this reason, it was very important for the Supreme Court to receive the views of states like ours in this critical case.
Many of the enforcement measures that we have seen that target “removable” immigrants, such as Arizona’s law, have the potential to sweep in legal immigrants and U.S. citizens who simply share the same race, ethnicity, or cultural markers as undocumented persons. We have a real interest in a state as diverse as New York in ensuring that laws and measures like these don’t rear their head in our state.
The amicus brief that we submitted to the court argues that Congress placed the federal executive branch in charge of overseeing a nationwide immigration policy with specific enforcement priorities. The brief notes that as part of that policy, the executive branch oversees state cooperative efforts to identify, apprehend and detain undocumented immigrants for purposes of removal. But the brief cautions that states may not pursue their own enforcement priorities without federal oversight.
Q: Civil rights actions have been used to advance the rights of racial, ethnic and religious minorities, women and gays. What’s next? Where is the next frontier in civil rights law?
A: We have made significant progress in combating racial and gender discrimination and in working to combat discrimination based on sexual orientation and religion. However, we know that there is more work to do to level the playing field and ensure that everyone has equal access to opportunity.
The re-election of President Barack Obama stands and will continue to stand as a unique moment in our political history. However, there are many people who claim that we are now post-racial and believe that we have overcome problems of race. In my view, this has made the work of civil rights lawyers more challenging now than ever. We are now working to combat the real and significant discrimination problems that exist at a time when some believe that we no longer need the strong protections conferred by federal and state civil rights laws.
Q: The U.S. Supreme Court recently agreed to hear Shelby County, Alabama v. Holder, a major Voting Rights Act case that seeks to overturn a provision requiring states with a history of discrimination at the polls to obtain permission from the federal government before changing election procedures. What are the implications of that case, both nationally and in New York? Will New York appear as amicus curiae?
A: The Shelby County, Alabama v. Holder case was filed in 2009 and seeks to gut a core provision of the Voting Rights Act that has played a profound role in blocking and deterring voting discrimination in certain parts of our country. This provision, the Section 5 preclearance provision, applies to 16 states and requires that they seek federal approval before implementing new voting changes. It’s an incredibly important law that continues to play a key role today by preventing jurisdictions from erecting new obstacles and barriers.
I presented oral argument in this case before the D.C. District Court prior to my arrival at the attorney general’s office. During that argument, I presented an overview of the tremendous legislative record that was developed by Congress during its 2006 reauthorization hearings of the Section 5 preclearance provision. During those hearings, Congress developed a record replete with evidence of ongoing discrimination, including intentionally discriminatory conduct that squarely violates the protections afforded by the 14th and 15th Amendments.
As the case now goes before the Supreme Court, we must all be concerned. The Voting Rights Act is perhaps one of our nation’s most important and effective federal civil rights laws. Events within those states subject to the Section 5 preclearance provision stand as evidence that we still need the protections provided by this law. Section 5 provides the strong medicine necessary to block and resist efforts to turn the clock back on the fragile progress that we have made and I am hopeful that the Supreme Court will defer to Congress’ considered judgment that the law continues to occupy an important place in our democracy.