The Civil Rights Division of the U.S. Justice Department is headed for a dramatic makeover under President-elect Joe Biden, who has pledged to make racial equality a centerpiece of his agenda.
Biden will seek to return the division to its original purpose, focusing on anti-discrimination laws that protect millions of people in minority groups that were mostly ignored in the Trump years, said Vanita Gupta, who led the division under Obama from 2014 to early 2017. That means more enforcement of protections in housing, education and the workplace, as well as pushing for better local policing following a tumultuous year of racial unrest, she said.
“This will be an even bigger pivot because of what the Trump administration represents,” said Gupta, who now runs the Leadership Conference on Civil and Human Rights. “It’s been a kind of systematic erosion of civil rights enforcement that is unlike anything we’ve seen in recent times or recent administrations.”
The division was created in 1957 by the Civil Rights Act to enforce laws barring discrimination on the basis of race, color, sex, disability, religion and national origin. Under Trump, it has sued to protect college admissions for white students, abandoned efforts to protect voting rights and offered support to the president’s political agenda by pushing to ask about citizenship in the census and scrutinizing Democratic governors’ handling of the coronavirus pandemic.
Civil-rights enforcement will look a lot different under Biden, who is certain to “undo the Trump years” the same way Trump tried to undo the Obama years — “but with a vengeance,” said Linda Chavez, who served as the White House Director of Public Liaison for former President Ronald Reagan.
“Anything having to do with race, immigration, voting — I think you’re going to see a really dramatic shift in the people appointed” and their priorities, said Chavez, now a conservative commentator and author.
Under Trump, one of the highest-profile actions taken by the Civil Rights Division was a lawsuit accusing Yale University of discriminating against white and Asian applicants by taking race into consideration to admit more Black and Hispanic students.
All applicants “should expect and know that they will be judged by their character, talents and achievements and not the color of their skin,” Eric Dreiband, the division’s current chief, said when he announced the case in October.
Samuel Bagenstos, who served in the division under Obama, said the Yale suit illustrates the Trump administration’s approach to civil rights. Affirmative-action policies at schools are intended to level the playing field after centuries of institutionalized racism, so the Civil Rights Division shouldn’t be used to challenge them, said Bagenstos, now a law professor at the University of Michigan.
Obama gave a shout out to the Civil Rights Division at a campaign speech Oct. 31 in Flint, Michigan, as he urged voters to consider what’s at stake in the election.
“A president by himself can’t eliminate all racial bias in our criminal justice system,” Obama said. “But if we elect district attorneys and state’s attorneys and sheriffs focused on equality and justice, and we once again have a Justice Department and a Civil Rights Division in the Justice Department that cares about these issues, we can make things better.”
Gupta said Trump’s actions over the past four years suggest an embrace of white supremacy — the antithesis of the goals of the Civil Rights Division. She pointed to the president’s failure to unequivocally denounce white nationalists and neo-Nazis in Charlottesville, Virginia, his ban on visitors from predominantly Muslim countries, his disparaging remarks about African nation’s and cruel immigration polices that included separating family members.
Trump has rejected such characterizations. In an interview last month with Fox News, the president said, “I condemn all white supremacists.” He added, “If I say it 100 times it won’t be enough because it’s fake news.”
According to Tom Perez, the head of the division from 2009 to 2013 and now chairman of the Democratic National Committee, Biden will need to reaffirm the importance of civil rights enforcement as part of a broader effort to renew confidence in the Justice Department.
“The Civil Rights Division under the Trump administration has been an unmitigated disaster,” Perez said.
Governors in New York, Michigan and New Jersey accused the Civil Rights Division of playing politics when it considered opening an investigation into whether four Democratic-led states that regularly criticized by Trump had caused the virus to spread in nursing homes. Attorney General Bill Barr also directed the division to take legal action against state and local officials if their pandemic restrictions went too far in limiting gatherings by religious groups.
The Civil Rights Division under Trump even got caught up in the president’s failed effort to add a citizenship question to the 2020 Census.
The American Civil Liberties Union and a group of states led by New York Attorney General Letitia James accused administration officials including John Gore, the head of the division before Dreiband, of providing false testimony about the genesis of the census plan, which U.S. Commerce Secretary Wilbur Ross claimed was intended to help enforce the Voting Rights Act of 1965. The true motive of the plan was to increase power for Republicans in Congress, and the civil rights angle was a pretext, the states alleged. The Supreme Court called it “contrived.”
Crucially, the Civil Rights Division under Biden will likely resume so-called pattern and practice investigations into local police departments to root out discriminatory practices, Gupta said. That’s more crucial than ever after a year of high-profile killings of Black people by police, massive nationwide protests and civil unrest, she said. Such probes were carried out successfully under both parties but fizzled under Trump, who offered unwavering support to police.
While Biden won’t go as far as defunding local law enforcement, as some Democrats demanded, he is likely to champion a shift back to making sure police departments are addressing systemic racism and discrimination, Bagenstos said.
Deval Patrick, who ran the division under Bill Clinton before serving as governor of Massachusetts from 2007 to 2015, said previous administrations from both parties had more respect for the Civil Rights Division.
“My predecessor in the George H.W. Bush administration may not have been as vigorous in certain areas as I would have wanted, but he wasn’t openly hostile to the assignment,” Patrick said. “He wasn’t going about finding ways to read civil rights out of the civil rights law.”
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