Prepared Statement
of
R. Alexander Acosta
Assistant Attorney General for Civil Rights
House Committee on the Judiciary, Subcommittee on the Constitution
Thank you Mr. Chairman; Ranking Member Nadler; Members of the Subcommittee:
It is a pleasure to appear before you today and an honor to represent the outstanding attorneys, professionals, and staff of the Civil Rights Division of the United States Department of Justice.
I want to take this opportunity to thank my able staff and section leadership. I am privileged to lead a dedicated group of professionals and prosecutors, both at the trial and appellate levels. I am happy to report that we have executed and continue to forward our mission of protecting our nation’s civil rights.
I assumed this office nearly six months ago. Preparing for this hearing has provided me an opportunity to reflect on that time and to evaluate the progress we have made.
Over that period I have been personally involved in most issues the Division faces: In addition to day-to-day management and oversight, including reviewing and authorizing the Division’s enforcement decisions, I have traveled to India and to the Dominican Republic to address the problem of trafficking in humans; I have argued in two circuit courts of appeal, once on behalf of a synagogue to protect their right to worship, and once challenging a downward departure in a cross-burning case. I have met with over 200 community groups and nationally and locally recognized civil rights leaders, and have given 22 speeches on civil rights issues.
Let me begin by discussing a few areas that merit mention.
Trafficking in Persons
Allow me to start with our efforts to combat the scourge of trafficking in persons. Fighting human trafficking ranks among the chief priorities of this Administration at the highest levels.
The President recently made this clear before the United Nations:
We must show new energy in fighting back an old evil. Nearly two centuries after the abolition of the transatlantic slave trade, and more than a century after slavery was officially ended in its last strongholds, the trade in human beings for any purpose must not be allowed to thrive in our time.
The Attorney General has similarly made clear his unequivocal commitment to this fight:
Human trafficking . . . is an affront to human dignity. The Department of Justice is determined not to stand idly by while the toll in human suffering mounts. Human trafficking victims often are too young, too frightened, too trapped in their circumstances to speak for themselves. . . . We hope to be the victims’ voice, to lessen the suffering, and to prosecute those who commit these crimes to the fullest extent of the law.
It is estimated that approximately 20,000 humans, mostly women and children, are smuggled into this country each year. But the sterility of this figure fails to capture the evil of human trafficking.
Human traffickers are peddlers in human misery. They seize their victims, by threat or by trick, and smuggle them across borders, often in loathsome conditions. Often they are sold from one trafficker to another, sometimes repeatedly. There, surrounded by an unfamiliar culture, a foreign language, without travel documents or identification, under threat of injury to self or loved ones at home, and generally bereft of any support, they are forced into labor or sex slavery.
We in the United States are too often unaware that trafficking occurs in our midst. We are learning now that our own quiet neighborhoods all too often silently harbor victims. One recent case in New Jersey broke in an average neighborhood: one with kids playing, with flags fluttering, and with a sign reading “safe neighborhoods save lives.” There, in an ordinary looking house, unbeknownst to its neighbors, was a brothel, and in that brothel were trafficked women: Four Mexican women – girls actually – some as young as 14 years of age. They were lured to the United States with promises of a husband and a better life. Instead, they found captivity and rape. They were forced to have sex with man, after man, after man, 24 hours a day, 7 days a week. The case was United States v. Jimenez-Calderon. Six principals were convicted; they received sentences of up to 17 years in prison. Nor is that case an outlier.
Additionally, in United States v. Soto, members of a smuggling ring who likewise trafficked Central American women and girls into the United States were convicted and sentenced. They held their victims in trailers, and forced them to perform menial house chores during the day, and repeatedly raped and abused them at night. When they tried to seek help, they were beaten, and ordered murdered.
These defendants too were convicted; they received sentences of up to 23 years in jail.
In United States v. Kil Soo Lee, we won sentences in the largest labor-trafficking case ever prosecuted. There, the defendants held over 250 Korean and Vietnamese women, forcing them to work without pay in a clothing factory. When the laborers complained, they were beaten so savagely that one woman lost an eye. The sentencing for Mr. Lee is pending.
Our efforts to counter this scourge are young, but successful, and growing. During fiscal years 2001 through 2003, we charged 113 traffickers – nearly a three-fold increase over the previous three years. Of these, 81 included sex-trafficking allegations. Over that period, we have opened 210 investigations into allegations of human trafficking.
In addition, this fiscal year alone we have charged 19 defendants, have incarcerated an additional eight, and have opened 40 new investigations. As of January 28, 2004, we had 146 open trafficking investigations – more than twice the number open in January 2001.
In order to fight human trafficking effectively, our law enforcement professionals must be able to recognize it, and, most importantly, must be able to recognize its victims. Let there be no mistake, they are just that. They are the kidnapped, forcibly displaced, victims of a crime. In order to assist in the identification and prosecution of these horrific crimes, we have conducted training sessions and seminars for Federal and State law enforcement officials, as well as non-governmental organizations, including the two largest such training sessions ever held.
I am confident that, with the continued dedication of our Criminal Section and law enforcement agents, we can beat back this evil.
Civil Rights of Institutionalized Persons
Every bit as important, and all too often every bit as shocking, are the terms and conditions of confinement we find in publicly-operated institutions in our own country. Under the Civil Rights of Institutionalized Persons Act, we are charged with protecting the rights of some of our most vulnerable citizens: those in State-run facilities for the aged and for persons with developmental disablilities, mental institutions, and juvenile justice facilities. Our Special Litigation Section investigates such institutions to identify patterns or practices that deprive residents of federally-protected constitutional or statutory rights.
By way of example, we recently issued a findings letter regarding the terms and conditions of confinement at three juvenile justice facilities in Arizona, which housed primarily non-violent teenage offenders. The results of our investigation were shocking, to say the least. We discovered credible evidence of the frequent sexual abuse of youth by both staff and other juveniles. We similarly discovered evidence of widespread non-sexual physical abuse, including unjustified physical force. Of particular concern was the recurrence of suicides at the facilities by juveniles confined there. At one institution, in a single year, three youths took their own lives. The investigation revealed inadequate suicide prevention measures and inadequately trained staff throughout the facilities. The State of Arizona has indicated its willingness to work with us to remediate these shortfalls.
In other investigations, we have found nursing home patients dead from septic shock after fecal matter built up in their impacted bowels; we have discovered incidents of staff abusing – torturing really – patients with severe mental retardation; and we have found elderly patients so neglected as to have developed bed sores that cut to the very bone.
Ordinarily, the abuses in these cases are so disturbing that once they are brought to light, the responsible jurisdiction moves quickly to address them. Unfortunately, this is not always the case.
This past December, we filed suit against the State of Mississippi, challenging the conditions of confinement at two juvenile facilities. Your colleague, Congressman Bennie Thompson, is well familiar with this matter, as he originally called it to our attention. Our investigation of these facilities revealed evidence that students were frequently subjected to physical abuse by staff, routinely shoved and hit, “hog-tied” with hands and feet bound together behind their backs, as well as “pole-shackled” with hands tied behind a pole and left on public display for hours at a time. Staff made liberal use of pepper spray, and reports indicated that when some girls were ill as a result of running in the heat, they were forced to eat their own vomit. Indeed, some juveniles, including those known to be suicidal, were stripped naked and placed in solitary confinement in a dark cell with only a drain to serve as a toilet.
This Administration has compiled an unassailable record in defending the civil rights of individuals in institutions. To date, this Administration has opened 39 new CRIPA investigations, involving 46 new facilities. By contrast, during its last three years, the prior administration opened just 19 such investigations involving 33 facilities. We have essentially doubled our enforcement effort. This Administration has issued 25 findings letters, documenting rights abuses at 34 State-operated institutions, has filed six lawsuits, and has resolved 24 matters through consent decrees and settlement agreements. During fiscal year 2003, we opened 12 CRIPA investigations covering 11 facilities, and during fiscal year 2004 we have already opened an additional 8 investigations into 8 facilities.
Over the coming year, we will continue to expand our efforts to protect rights in the areas of physical abuse of children, elder care, and provision of services in the appropriate environment, as required by Federal law. This issue is of the highest importance to me, and to my staff. These problems will not continue unchecked.
The right to vote is among the most fundamental in our democracy. Protecting access to and integrity of the franchise is a top priority.
Providing access to polling places is part of this effort. We have dispatched record numbers of Federal monitors and observers to polling places around the country. During 2003, an election by-year, we still sent a total of 380 Federal observers to watch 11 elections in 13 counties in five States. We also sent 148 Department employees to monitor an additional 20 elections in 16 counties in 12 States. In 2002, we deployed a total of 829 Federal employees, 608 observers and 221 Department personnel to monitor elections in 17 States. By contrast, in 1992, the Department dispatched a total of 571 observers and monitors. During this year’s general election, we anticipate similarly proactive prevention efforts.
We recognize that physical or language barriers too often discourage individuals from participating in the electoral process. Our Disability Rights Section has actively enforced Federal requirements that polling places be accessible to individuals with disabilities. Project Civic Access, which I discuss later, addresses this need. In addition, we recently issued guidance for local election officials instructing them in how to make polling places fully accessible. That information, along with much other information regarding individuals with disabilities, is available on our website, www.ada.gov.
We have similarly taken significant steps towards protecting the voting rights of language minorities under Section 203 of the Voting Rights Act. In July 2002, the Census Bureau determined, based on the 2000 census, that there exist 80 newly-covered jurisdictions, for a total of 296 covered jurisdictions across 30 States. We conducted an extensive outreach campaign to ensure compliance by these newly-covered jurisdictions, sending letters to all affected officials and offering substantial technical assistance. We also initiated a comprehensive review of the compliance efforts of all covered jurisdictions. We have now monitored elections in a number of covered jurisdictions across the country. Where we identified problems, we are investigating. Where appropriate, we are prepared to sue and to negotiate settlement agreements and consent decrees, to ensure that deficiencies are fixed and that language minorities receive at polling place the assistance required by law.
We likewise have begun a vigorous process of implementing the Help America Vote Act of 2002 (HAVA). Some provisions of that law took effect on January 1, 2004. Jurisdictions are now required to provide for provisional voting, provide voter information at polling places, comply with Federal rules for mail-in registration, and properly manage State-wide voter registration lists. In preparation for HAVA, we have been monitoring States’ implementation efforts and have offered substantial technical assistance for over a year now. Now that those provisions have taken effect, we stand ready to enforce HAVA’s requirements as needed. We intend to work with the Election Assistance Commission to help States ensure that voters know their rights under this new law.
Our enforcement of the Voting Rights Act itself continues apace. This past year, we litigated four cases alleging violations of Section 2 of the Voting Rights Act, which prohibits vote dilution. We prevailed in three. Separately, under Section 5, we continued the department’s work addressing changes in voting schemes. During calendar year 2003, we received 4,829 submissions under Section 5 of the Voting Rights Act, including 397 redistricting plans. We analyzed and returned these promptly, noting objections to five redistricting plans and two methods of election. Between April 1, 2001, when census data was released, and December 31, 2003, we reviewed 2,504 redistricting plans, five percent more than were handled during the comparable period following the 1990 census.
Disability Rights and the President’s New Freedom Initiative
We have been particularly successful in advancing the rights of Americans with disabilities.
Let me begin with a little background. It may surprise some of you – perhaps many of you – that 50 million Americans live with some type of disability. Most of these individuals can participate fully in society, contributing to our economy, our culture and our nation. For some, however, simple tasks such as opening doors, negotiating slight slopes, or navigating crowds and enclosed spaces pose a significant, and often insurmountable, obstacle to participation.
As one of his first acts, the President ordered the Executive branch to live up to the promises the laws have made to Americans with disabilities. The New Freedom Initiative harnesses the resources and energy of all of the Executive Branch agencies whose programs affect the lives of people with disabilities. It advances accessibility and opportunity in numerous areas including employment, public accommodations, commercial facilities, information technology, telecommunications services, housing, schools, and voting.
In the President’s own words:
Wherever a door is closed to anyone because of a disability, we must work to open it. Wherever any job or home, or means of transportation is unfairly denied because of a disability, we must work to change it. Wherever any barrier stands between you and the full rights and dignity of citizenship, we must work to remove it, in the name of simple decency and simple justice.
In keeping with the President’s challenge, we have advanced the civil rights of individuals with disabilities on a number of fronts.
Our strong record of enforcement speaks for itself. During calendar year 2003, our Disability Rights Section resolved over 350 complaints, through a combination of formal and informal means. Since 2001, they have successfully resolved over 1,000 such complaints, bringing increased access to public and private facilities, services, and accommodations. Our Housing and Civil Enforcement Section has been equally busy. During this Administration, it has filed 23 lawsuits enforcing the accessible design and construction provisions of the Fair Housing Act. The Housing Section has similarly targeted discrimination against group homes for individuals with disabilities, and housing providers employing policies designed to bar individuals with disabilities.
Both the Disability Rights and the Appellate Sections have been busy pursuing ongoing litigation regarding accessibility to stadium style seating theaters. The Supreme Court may well address this issue in the near future.
Even more prolific than our litigation efforts has been our Americans with Disabilities Act (ADA) mediation program. During fiscal year 2003 alone, we referred over 2,000 complainants to the program, of which 77 percent were successfully resolved. We increasingly find that complainants actively seek mediation. This bears out the Attorney General’s repeated statements that through alternative dispute resolution we can achieve more justice, at less cost, without the antagonism and delays of litigation.
Litigation and mediation, alone, however, are ineffective strategies for securing civil rights. Rather than wait for violations to occur, we must be proactive. Accordingly, through the New Freedom Initiative we are pursuing several initiatives aimed at spreading awareness of accessibility requirements, easing regulatory burdens, and securing voluntary compliance.
Through Project Civic Access, we are working cooperatively with a host of local governments to bring their civic spaces and public services into compliance. Municipalities operate important public facilities, such as court houses, police stations, jails, libraries, municipal buildings, theaters, voter registration locations, land record offices, and the like. Rather than approach accessibility at these locations piecemeal, as individual facilities draw complaints, we work proactively with municipalities to develop a comprehensive plan to bring all their civic spaces into compliance. To date, we have entered agreements with 60 separate cities and towns.
Through the ADA Business Connection program, we are reaching out to the business community, and in particular to the small business community, to educate them as to accessibility issues and the opportunities available in working with the disability community. Small businesses, in particular, often violate accessibility requirements simply because they are unaware of them. We hope to spread awareness. More generally, we hope to raise awareness of the size and market power of the disability community. As I stated earlier, over 50 million Americans live with some form of disability, a community with an aggregate income of over one trillion dollars and discretionary spending of over 170 billion. That figure is three times the purchasing power of teenagers—a prime target for advertising. As the baby boomer generation grows older, these figures will only increase. The baby boomers will increasingly seek accessible housing, easy-to-use products, and accessible environments. The business opportunities for those willing to address these needs are significant.
We have also been working with States to conform their State housing and building codes to Federal accessibility requirements. The ADA provides that once we certify a State code as being substantially equivalent to Federal accessibility guidelines, compliance with that State code will be considered prima facie evidence of compliance with the ADA. Certification is advantageous both to builders and businesses as it eases the burdens of compliance, and also for the disability community, as it increases accessibility. Within the last month, we certified Maryland’s State accessibility code, and are working with a number of other States towards the same end.
Finally, we have developed a substantial outreach effort to both businesses and the disability community through our website, www.ada.gov, and through our toll-free hotline. Last year, we received over 25 million “hits” on the website, and assisted over 120,000 callers through our ADA hotline.
In all, I must say I am proud of our efforts to assist Americans with Disabilities. Strong enforcement, coupled with mediation, proactive prevention, compliance assistance, and regulatory simplification, is helping to ensure that the more than 50 million Americans with disabilities can contribute to, and participate fully in, our nation.
Bias Motivated and Color of Law Crimes
Crimes motivated by bias are among the most ugly acts we face in our profession. They are crimes motivated by little more than hate and ignorance. Whether racially motivated, such as cross or church burnings, or whether religiously motivated, such as attacks on a synagogue or a mosque, such crimes cut deeply against our national ideal of one nation, one people, without regard to such petty differences. We continue to pursue aggressively the perpetrators of bias motivated crimes.
Let me give you three recent examples of the types of crimes we are prosecuting.
In February 2003, we secured the conviction of Ernest Avants for the 1966 murder of Ben Chester White, an elderly African American farm worker in Mississippi. The defendant and others took Mr. White to a national forest, where they shot him multiple times in the body and head. For this role in this hideous offense, Avants was sentenced to life in prison. The prosecution was made possible only after we uncovered evidence that the murder had occurred in a national forest.
In another case, we indicted five white supremacists for assaulting two African Americans in a Denny’s restaurant in Springfield, Missouri. One of the victims was stabbed, and suffered serious injuries. The other was threatened with the same. The victims’ only “offense” was to enter the restaurant to eat with two white women.
In a third case, we indicted three men on disturbingly similar charges. According to the indictment, these individuals assaulted six Hispanic teenagers – three boys and three girls, all under age 16 – who were entering a Chili’s restaurant to celebrate one of their birthdays. One was beaten and stabbed so badly as to require emergency surgery to save the use of his hand.
It is hard to believe that these acts continue to occur in modern America. We will vigorously prosecute these cases, and will seek stiff criminal sanctions.
Over the past two years the most visible bias motivated crimes have been those termed “9/11 backlash” crimes – crimes committed against individuals perceived to be of Arab, Asian, or Muslim descent. Immediately following 9/11, and to a much lesser extent following the start of Operation Iraqi Freedom, we saw a spike in such incidents. Fortunately, however, after the President and the Attorney General strongly condemned such behavior, these incidents quickly fell to near their pre-9/11 levels.
We have had tremendous success fighting these crimes. Since 9/11, in conjunction with the FBI and United States Attorneys’ offices, we have investigated over 500 allegations of such bias motivated crimes. These resulted in local prosecutors initiating 125 prosecutions. In addition, the Civil Rights Division brought Federal charges in 13 cases against 18 defendants, with a 100 percent rate of conviction.
The Community Relations Service has sponsored more than 250 town meetings around the country and we have held more than 25 meetings with community leaders to address civil rights concerns. This effort will continue.
We have made a particular effort to target illegal cross burnings, a grotesque practice, used historically to terrorize and intimidate racial and religious minorities. Since 2001, we have brought 35 cross-burning prosecutions, charging a total of 50 defendants.
I personally argued one such case in the Fourth Circuit, appealing the district court’s downward departure from the sentencing guidelines. In that case, United States v. May, the defendant had engaged in a pattern of racially hostile conduct towards a mixed race couple, including posting a racially explicit “No Trespassing” sign, and threatening with a handgun. This conduct culminated in a cross burning. The district court’s departure would have let the defendant off essentially for time served.
The Criminal Section also prosecutes “color of law” cases – law enforcement officers who willfully and knowingly deprive individuals’ of their civil rights. For instance, in United States v. Waldon we prosecuted a Sheriff’s Deputy who strangled to death a businessman who he and his partner had arrested as part of a robbery scheme. And, in United States v. Young, we prosecuted a police officer who admitted to using his authority to coerce a young woman into having sex with him. Over the past three years, the Criminal Section has charged 217 officers with such crimes, as compared with 198 during the prior three-year period. These efforts will continue.
In addition to the CRIPA work, which I discussed previously, the Special Litigation Section also devotes substantial resources to investigating, and where appropriate, prosecuting law enforcement agencies for patterns and practices of depriving individuals of their civil rights.
The overwhelming majority of law enforcement officers perform their jobs with dedication, fairness and honor. Theirs is a special trust. They take substantial risks and they deserve our respect. But with trust comes responsibility. Instances of abuse by a few damage the profession as a whole. Instances of abuse undermine our criminal justice system. When officers do transgress and abuse the public’s faith and trust, and violate the clearly established constitutional rights of those they have sworn to protect, corrective action must be taken.
It is with this in mind that, working with the Special Litigation Section, we have adopted a more transparent approach for achieving solutions and remedying problematic practices. The Special Litigation Section thus strives to keep target agencies fully informed as to its findings and potential violations as the investigation proceeds. And, as the process unfolds, we work hard to resolve complaints without litigation. Our response is a graduated one, which considers the potential violations. By working with law enforcement agencies, rather than appearing only as a litigation opponent, we can achieve greater, in less time, results which are longer lasting, and with less cost and rancor. In short, we have expanded our effort to affect not only a prosecutorial, but also an instructive, role.
Let me give you a couple of examples:
First, we recently entered both a consent decree and a memorandum of understanding with Prince George’s County Police Department (PGPD). Through these, the Department agreed to sweeping reforms. The agreements require widespread reform in PGPD’s use of canines and force. In addition, they establish specific training requirements and accountability practices.
Most notably, the agreements will require PGPD to take the following steps: (1) reform its use of force policies, as well as its training, reporting, and accountability procedures; (2) adopt and implement a “guard and bark” methodology for canines, whereby canines will locate suspects and hold them at bay by barking loudly – use of biting is restricted to specifically delineated exigent circumstances; (3) create a special board to review all firearm discharges; (4) operate a system to manage risk regarding officer performance; (5) effectively review canine bites and other related activity; and (6) investigate and review misconduct allegations.
This structure was unique in its use of both a consent decree and memorandum of understanding. We insisted on the consent decree where court involvement was essential, and employed a memorandum of understanding where flexibility and the ability to work with the Department to craft solutions were necessary. Our approach was sufficiently creative and effective that the agreements were applauded by the city, the police force, the Fraternal Order of Police, and community groups alike. To ensure the effective implementation of the agreements, the Justice Department will continue to monitor the Prince George’s County Police Department for the next three years. But, we will not be present solely as a watchdog; we also will remain involved to offer technical assistance.
The agreements resolved investigations that had been open since July 1999 and October 2000. By working with the jurisdiction towards these goals, rather than simply investigating with an eye to civil litigation, I believe we have come farther much faster than we otherwise would have.
In July 2003, we similarly reached two significant consent decrees with the city of Detroit, a city that has seen more than its fair share of policing difficulties over the years. The city and its police leadership are now working hard to implement those agreements. While the City was off to a slow start, the monitor’s first quarterly report found substantial efforts in several important areas.
Our record of enforcement is impressive. We have opened 12 new such pattern or practice investigations, and are currently conducting preliminary inquiries into more than 20 additional agencies. This Administration has filed seven lawsuits against law enforcement agencies and has reached settlement agreements in 13 such suits. This compares with the two such settlements that were entered over the preceding three years.
In addition to litigation, as I indicated, we make a concerted effort to be transparent in our investigations. The ultimate purpose of our investigations is to fix the problem, not to fix the blame. Accordingly, although not required to, we now provide police agencies with extensive technical assistance. We also issue findings letters, documenting in detail our conclusions, and explaining why a particular practice may be problematic. This provides jurisdictions with a clear roadmap to compliance, which makes settlement and cooperative fixes significantly more likely.
Fighting discrimination in employment has long been a core function of the Civil Rights Division, a mission that this Administration has carried on. We have fought employment discrimination on the basis of race, color, national origin, sex, disability, and religion, and will continue to do so.
For example, in January we filed a “Section 707” pattern or practice lawsuit against the City of Erie, Pennsylvania, challenging its use of an unjustified physical agility test in selecting entry-level police candidates. Since 1996, 71 percent of men had passed the test, but only 13 percent of women. Of note is the fact that the City declined to proffer any justification for this test.
And, more recently, we filed two sexual harassment employment discrimination suits. The first was against the City of Baltimore Department of Public Works under Title VII, alleging that it subjected a former female employee to a hostile work environment and failed to implement its own complaint process. In other words, the suit alleged that the former female worker was subjected repeatedly to a verbal and physical barrage of lewdness, public nudity, and pornography. The second challenged a requirement by the District of Columbia fire department that new hires for emergency medical technician positions “successfully” pass a pregnancy test, and that they not become pregnant during their first year.
We continue to fight racial discrimination in employment. Just last week, we filed an employment discrimination suit against the New Jersey University of Medicine and Dentistry, alleging failure to promote on the basis of race. In United States v. Delaware we alleged that the Delaware State Police's written examination for selecting entry-level police officers illegally discriminated against African-Americans on the basis of their race. Specifically, we asserted that the State's use of the "ALERT" exam had a disparate impact against African-Americans, was not job-related and, thus, violated Title VII. This case was tried in the United States District Court for the District of Delaware last August.
We are also awaiting a decision in another major pattern or practice race discrimination case, U.S. v. City of Garland, Texas. In that case we alleged that the city's use of its written examination for entry-level police officers and firefighters had a disparate impact against African-Americans and Hispanics, was not job-related and, thus, violated Title VII. As in the Delaware case, we are awaiting a decision from the court.
Our enforcement figures are substantial. So far this fiscal year we have initiated several 41 Section 707 pattern or practice investigations, investigating a series of fire departments for possible racial discrimination, and 11 Section 706 “individual violation” investigations. Moreover, I have authorized three Section 706 suits and one Section 707 suit. Historically, the Section has filed no more than one pattern or practice lawsuit per year.
In addition to the Employment Section, the Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) also pursues employment discrimination specifically directed on the basis of citizenship or national origin. The Office of Special Counsel enforces the anti-discrimination provision of the Immigration and Nationality Act (INA). This mission includes (1) protecting workers’ rights by investigating and resolving complaints, whether through formal or informal means; (2) engaging in public outreach and education efforts for both workers and employers through speeches, panel participation, print and web informational publications, a telephone hotline, and publicly-funded grants for the same purposes; and (3) providing inter-agency and inter-government advice and counsel on immigration employment-related issues.
In September 2003, OSC settled a charge that Triangle Services, Inc., had terminated an asylee in violation of the INA through document abuse. The complaint alleged that upon expiration of the complainant’s employment authorization, Triangle refused to accept other legally acceptable documentation. At the same time, Triangle accepted such documents as proof of qualification from United States citizens. Triangle agreed to pay a $1,100 civil penalty and $14,400 in back pay and benefits, and also agreed to provide training and post notices regarding employees rights.
In March 2003, OSC reached a settlement agreement resolving a complaint that the respondent discharged and replaced four United States citizens with non-citizens on the belief that non-citizens would be harder working, more dependable, and less prone to complaining about working conditions. DDI agreed to pay $18,000 in back pay, a $1,000 civil penalty, and to advertise positions publicly in the future.
Overall, over the past three years, OSC has secured $1,302,700 in civil penalties and damages. This compares favorably with the $1,075,100 recovered over the prior three years. The Office of Special Counsel also continues its more informal efforts to resolve disputes, having received 18,580 calls to its hotline in 2003, and handled 194 telephone interventions into disputes. Both figures comport with the Section’s historical activity levels.
We have taken a strong stance against sex discrimination – often in the form of sexual harassment – in the provision of housing. All too frequently we see unscrupulous landlords prey on needy tenants, obliging them to suffer sexual harassment, if not to outright acquiesce in sexual acts, on threat of eviction or other adverse housing actions. This Administration has filed six lawsuits in five States challenging such conduct. These have been resolved both through consent decrees and litigation, and we consistently secure significant monetary damages and penalties, as well as injunctions against violators’ continued involvement with property management. Last year, we took one such case to trial and were vindicated with a jury verdict in the amount of $451,208 against a landlord who harassed at least 22 female tenants.
Equally important is the provision of accessible housing to Americans with disabilities. I discussed previously our efforts enforcing the requirements of the Fair Housing Act, along with the ADA, that certain housing units and common spaces be accessible.
The Housing and Civil Enforcement Section has responsibilities beyond the housing arena. One other area of particular note is our work under the Equal Credit Opportunity Act, pursuing “redlining,” the practice of declining to locate or lend in an area based on the race of its inhabitants, and other discriminatory lending practices.
In 2003, we resolved a significant redlining suit against Mid America Bank in Chicago, Illinois. We alleged that the bank redlined predominantly African American and Hispanic portions of the greater Chicago area. In settling the lawsuit, the bank agreed to open two new branches in these areas, to undertake outreach and education programs there, and to provide $10 million in subsidized loans to qualified residents over a five-year period.
At present, I have authorized two additional redlining suits, and we have a number of similar cases under preliminary investigation. We also have opened several active investigations into allegations of racially discriminatory auto lending, and are monitoring private lawsuits raising similar claims.
The Housing and Civil Enforcement Section has also been actively enforcing RLUIPA – the Religious Land Use and Institutionalized Persons Act of 2000. RLUIPA prohibits States and municipalities from discriminating on the basis of religion, from treating religious assemblies less equally than non-religious assemblies, and from imposing a substantial burden on the exercise of religion absent a compelling governmental interest and narrow tailoring.
Since November 2001, the Administration has opened 15 formal investigations into allegations of religious discrimination in the land-use context. For example, in West Mifflin, PA, we assisted a predominantly Black Baptist congregation that had purchased a church from a predominantly white Baptist congregation. The black congregation was denied an occupancy permit. After we sent a letter opening our investigation, the town issued the permit.
We have filed one lawsuit under RLUIPA, United States v. Maui, in which we are challenging a County Planning Commission’s decision to deny the Hale O Kaula Church permission to use agricultural land for religious worship, and to construct a second floor on a building already owned by the Church. In December 2003, the District Court denied the County’s motion to dismiss.
In January, I personally argued an RLUIPA appeal in the Eleventh Circuit Court of Appeals. In that case, Midrash Sephardi v. Surfside, the town’s zoning ordinance prohibits religious assemblies from its commercial district, yet permits private clubs such as lions clubs and masonic lodges. We contend that such assemblies are comparable, and thus are entitled to equal treatment.
The Educational Opportunities Section bears responsibility for overseeing compliance with approximately 360 consent decrees, settlement agreements, and court orders in primary, secondary, and higher education school desegregation cases. Some of these cases are decades old. Under this Administration, the Section has started to review this docket to determine in which, if any, additional relief is necessary, or whether a district is an appropriate candidate for unitary status.
Last year saw the successful agreement of unitary status and dismissal of one of the longest running school desegregation suits in the nation, Davis v. East Baton Rouge Parish School System. The school system agreed to fund a number of additional magnet programs and other educational opportunities for African American students, and the litigation was dismissed with prejudice. But not every case warranted unitary status. We have obtained or filed for additional relief in a number of school districts where the problems to be remedied by the original consent decree persisted.
The Education Section continues to focus on discrimination in education on the basis of language. The Equal Educational Opportunities Act of 1974 (EEOA) requires school systems to overcome language barriers that impede students’ ability to learn and function in English. We recently reached agreements to improve the programs created to implement the EEOA in Bound Brook and Plainfield, New Jersey, and are investigating a number of schools and school systems in several States for their possible failure to meet their EEOA obligations. In one case, for example, we have authorized suit (and are currently engaged in active pre-suit negotiations) against a school that failed to provide adequate language instruction to numerous non-English speaking Asian students, placing them in classes taught in a different Asian language. We further allege that this school condoned the verbal and physical abuse of Asians by other students.
We continue to enforce Title IX actively, both at the trial and appellate levels. We have participated both as a party and as an amicus in Title IX cases involving discrimination in athletics and in-school harassment. Our amicus briefs have supported the right of individuals to file a private right of action under Title IX for claims of retaliation, and have defended the constitutionality of applying Title IX to the States. We also currently are investigating allegations that a high school employee physically and verbally harassed female students over several years with the school district’s knowledge, in violation of Title IX’s guarantee.
The Educational Opportunities Section also has been actively addressing discrimination on the basis of religion in the educational context. It has opened several investigations into allegations of discrimination against the wearing of headscarves by female Muslim students. We have filed several amicus briefs challenging religious discrimination. In two cases, for example, we defended the right of clubs to distribute religious messages on the same terms as other students could distribute secular messages; and in two others, we defended the right of religious groups to have equal access to, and equal use of, school property as secular groups. We also participated in a case where students in a Massachusetts high school were suspended for distributing candy canes at Christmas with a note that explained the religious significance of the candy cane and a prayer. Our amicus brief noted that that the school had engaged in viewpoint-based discrimination against religion in violation of the First and Fourteenth Amendments - a position also supported by the American Civil Liberties Union in a brief supporting the students. The district court agreed with us in a 62-page opinion.
As I noted earlier, a central focus of this Administration has been expanding access to public services for language minorities. Most individuals living in the United States read, write, speak, and understand English. For many though, English is not their primary language. The 2000 census identified over 26 million who speak Spanish, and seven million who speak an Asian language, at home. Anyone having a limited ability to speak, read, write, or understand English falls in the category of “Limited English Proficient,” or LEP.
Being LEP can be a barrier to access to public services and benefits, and often bars participation in the very tools made available to enhance English language ability and civic participation, such as schools and voting. Accordingly, the Federal government has committed to making its services accessible to LEP individuals.
In addition, our Coordination and Review Section’s (COR) developed the Department’s “Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons.” The Guidance implemented Executive Oder 13166, which mandated LEP accessibility, which along with Title VI regulations, requires that Federal as well as federally funded programs and services provide meaningful access to LEP individuals.
Coordination and Review is responsible for enforcing non-discrimination requirements in Department-funded programs. COR currently has 23 open LEP complaints that it is investigating, under a Memorandum of Understanding with the Office of Justice Programs. In addition, COR assists other agencies in enforcing Executive Order 13166 by providing technical assistance upon request, both to Federal funding agencies that must ensure compliance by their recipients and to all Federal agencies that must ensure that their own federally conducted programs are accessible to LEP individuals. For example, COR has spent substantial time assisting the Bureau of Indian Affairs of the Department of Interior, including on-site assistance, in its investigation of allegations that only English is offered to LEP students on an Indian Reservation in Arizona.
We have increased the size of the Coordination and Review Section to expand its ability to provide training sessions and technical assistance regarding meaningful linguistic access, and to continue administrative enforcement of Title VI/LEP requirements.
Coordination and Review currently has eleven open formal investigations, with a number of additional inquiries under way. COR is also in the process of developing a training video on the LEP initiative and how to address “language negatives.” Moreover, we are printing our beneficiary and recipient/federal agency brochures in nine languages: English, Spanish, Chinese, Korean, Vietnamese, Russian, Cambodian, Arabic, Hmong, and Haitian Creole. Also, in June of 2002, we issued the Department’s LEP Guidance for Recipients, which outlines how to achieve meaningful access by LEP persons to programs and activities receiving assistance from the Department of Justice. That Guidance has functioned as a template for similar guidance issued by other Federal agencies.
Of particular note, COR managed the development and adoption of the joint final “Cureton” rule, which established a uniform understanding among 22 participating agencies of the terms covered “program” and covered “program or activity,” conforming to those enacted by the Civil Rights Restoration Act of 1987. This rule responded to doubts regarding Title VI regulations raised by a Third Circuit decision in Cureton v. NCAA.
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The President, less than one minute into his Inaugural Address, reminded this nation of a simple truth: “The grandest of [American] ideals is an unfolding American promise that everyone belongs, that everyone deserves a chance, that no insignificant person was ever born.” He reminded us that, “[w]hile many of our citizens prosper, others doubt the promise, even the justice, of our own country. The ambitions of some Americans are limited by failing schools and hidden prejudice and the circumstances of their birth.”
The Civil Rights Division’s charge is no less than helping ensure this grandest of American ideals of which the President spoke. There is no higher calling in government than ensuring that the law applies fairly and equally to all Americans. As the Attorney General has said, for those of us in public service, equal justice before the law is more than a mission – it is a sacred trust.
I hope that our shared opposition to prejudice and discrimination helps sets a stage for an open and productive dialogue.
I would again like to thank the Chairman, the Ranking Member, and the Committee for their time today and welcome any questions you may have.