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Published on Friday, November 21, 2003 by Knight-Ridder

Going Backwards
Justice Dept.'s Civil Rights Division Retreating from Activist Roots
by Shannon McCaffrey

WASHINGTON - In the turbulent 1960s, lawyers from the Justice
Department's new civil rights division crisscrossed the segregated
South, cast as crusaders in the cause of racial equality. Four decades
later, the civil rights division is retreating from its activist roots.
Under Attorney General John Ashcroft, the Justice Department has
abandoned lawsuits and settlements begun by prior administrations. The
government has filed briefs with the U.S. Supreme Court opposing
affirmative action and calling for a narrow interpretation of disability
rights law.

Lawyers in and out the department say the civil rights division has
been less aggressive in bringing new discrimination cases, particularly
broad "pattern or practice" cases that tackle systemic problems. The
division has filed just one such employment discrimination case in the
almost three years that President Bush has been in the White House.
Between two and four cases used to be filed each year. "I've been deeply
disappointed in this administration," said former California Supreme
Court Judge Cruz Reynoso, a Democratic appointee to the U.S. Commission
on Civil Rights. "It seems their goal is to do as little as possible,
and in that they seem to be succeeding." Lawyers say the department has
eased up on some traditional areas of civil rights enforcement, such as
housing, employment and disability discrimination: In the almost three
years of the Bush administration, the department has brought 16
employment discrimination suits, down from 24 in the final three years
of the Clinton administration.

The disability rights section initiated 701 investigations in fiscal
year 2002 - a decrease of 181 from the year before - and filed 28 cases
- a decrease from 37, according to a report from the U.S. Commission on
Civil Rights. The drop is particularly striking because it was President
Bush's father who, as president, signed the Americans with Disability
Act.

The departure earlier this year of the division's aggressive housing
section chief, Joan Magagna, has led to a sharp drop in new cases. In
the seven months since she left, the housing section has brought eight
cases. In 2002, her last full year on the job, it brought 50 cases.
Magagna chose to leave the department after she was reassigned, a move
that was widely viewed as a demotion.

The Justice Department has been seeking memoranda of understanding
instead of court-sanctioned consent decrees with misbehaving police
departments, which critics say don't carry the same legal weight. Only
the Detroit Police Department has been placed under a consent decree for
wrongdoing. The Bush administration says the new agreements are less
adversarial and encourage community cooperation. "I really think they
want things to languish," said one former civil rights division attorney
who left in frustration and asked not to be identified. "They don't
really want the division to work."

In a few cases, Ashcroft's Justice Department has simply abandoned
earlier battles against discrimination. During the Clinton
administration, Justice Department lawyers recruited Marianne Manousakis
and Janet Caldero to join a discrimination lawsuit against New York
City. The department won a 1999 settlement that helped both women become
custodians in the New York City School District - coveted positions that
involve managing the maintenance of a school building and had gone
almost exclusively to white males. But last year, when three white male
custodians challenged the settlement with the help of the conservative
Center for Individual Rights, the Bush administration refused to defend
the settlement. The lawyers who'd recruited the women for the lawsuit
didn't even return phone calls from Manousakis and Caldero. "They were
gone without even having the decency to tell us," Manousakis said. When
the two did hear back, it was from a new lawyer who insisted that the
department's position hadn't changed. "I have never heard such a case of
double talk as I heard that week," Manousakis said. Justice Department
spokesman Jorge Martinez said the department isn't defending the case
because there's no legal evidence of discrimination. "They had enough
evidence to try this case and win this case," Caldero said. "We won. Now
suddenly they don't have enough evidence?" The women are now being
represented by the American Civil Liberties Union. They stand to lose
their seniority and benefits if they lose in court.

Civil rights lawyers said it's the only case they can recall in which
the Justice Department has abandoned a case with a settlement already in
place. The Justice Department also reversed itself in Philadelphia,
where it pulled out of a suit challenging a 1.5-mile running test that
was preventing most women from joining the transit police force. And in
Buffalo, N.Y., the department sought to end a long-standing consent
decree with the police department over hiring practices, despite
questions about the test used to screen potential officers. U.S.
District Judge John Curtin, who's been overseeing the Buffalo case since
it began in the 1970s, said he was surprised by the Justice Department's
recent moves. In addition to trying to get out of the consent decree
before he was satisfied that the new test the police were using was
satisfactory, the department also opposed a plan to correct a shortfall
in the number of minority cops in Buffalo. "I think a few years ago they
would not have done that," Curtin said. Bill Lann Lee, a former head of
the civil rights division under President Clinton, said he's worried
that the Justice Department is undermining its credibility by reversing
itself on earlier suits as the political winds shift. "There's been a
tradition of carrying on cases from previous administrations to create a
sense of consistency and continuity," Lann Lee said. "It's very
troubling that they are not following through on actions that were
already underway. That sends a terrible signal." Alex Acosta, the new
assistant attorney general for civil rights, declined requests for an
interview. Martinez, Justice's spokesman, defended the division's
record, saying that in some cases the department has been opening
investigations and resolving cases at a faster rate than the Clinton
administration. "To say this department has not been aggressive in
protecting the civil rights of Americans is wrong," Martinez said. He
said statistics show the division has been active in investigating
violations in nursing homes, mental institutions and prisons under the
Civil Rights for Institutionalized Persons Act. And he said the
department is settling more housing and lending discrimination cases, as
well as investigating more employment discrimination cases. The civil
rights division also has won praise from Arab-American groups, among
others, for its efforts to combat anti-Arab backlash in the wake of the
Sept. 11, 2001, attacks. And the division has remained active in
pursuing criminal civil rights charges for crimes such as racially
motivated violence and murders. The division also is tackling the
growing international problem of human trafficking. In fiscal year 2003,
the Justice Department brought charges against 21 alleged human
traffickers, and it has 123 investigations pending. And until the Bush
administration, the management ranks of the civil rights division had,
ironically enough, been almost completely white. Minorities have been
 promoted under Attorney General John Ashcroft. Critics say some of the
cases the administration is taking credit for resolving were begun years
earlier. And they say fewer investigations are being followed through
with lawsuits. Lawyers inside and outside the department describe a
slowdown in which career lawyers investigate and recommend legal action,
only to watch their recommendations sit waiting for approval from
political appointees. "I have never known morale in the division to be
lower than it is today," said Paul Hancock, former head of the housing
discrimination section. What's happening may reflect growing national
ambivalence about civil rights issues. Discrimination sometimes isn't
always clear as it was at the lunch counters in the South in the 1960s,
and there's disagreement about causes and cures. Issues such as
affirmative action inspire deep ideological disagreement. Critics of the
Justice Department hope that Acosta, who took over as assistant attorney
general for civil rights in August, will be more aggressive than his
predecessor, Ralph Boyd. Acosta has been meeting with civil rights
activists and has a solid background in civil rights work. Others worry
that Acosta - who served as Boyd's chief of staff - will continue in the
anti-regulatory mode of the Bush administration. In a 1997 speech,
Acosta argued that consent decrees - one of the civil rights division's
strongest weapons - "must be limited."

Copyright 2003 Knight-Ridder

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