Analysis Law and Policy

Jeff Sessions’ Civil Rights Agenda Chills Former DOJ Prosecutors

Sofia Resnick

With this latest budget request, Sessions’ DOJ is signaling to move resources away from the types of cases and investigations that affect more vulnerable members of U.S. society.

In his first 100 days on the job, Attorney General Jeff Sessions has begun to signal which civil rights protections he intends to prioritize, and which ones he doesn’t.

The clearest expression to date of Sessions’ civil rights agenda, however, comes in the form of a four-page document listing the budget requests and priorities of the U.S. Department of Justice (DOJ)’s Civil Rights Division—a supplement to the Trump administration’s 2018 federal budget proposal released last week. The Trump administration is asking for about $148 million in its 2018 budget proposal to fund the Civil Rights Division, about the same amount the Obama administration requested last year.

With this budget request, Sessions’ DOJ is signaling to move resources away from the types of cases and investigations that affect the more vulnerable members of U.S. society, attorneys who previously worked for the Civil Rights Division under President Barack Obama told Rewire.

“Overall, the budget reflects that vulnerable populations can count on less protection from the Justice Department,” said Chiraag Bains, the senior counsel to the assistant attorney general for the Civil Rights Division between 2014 and 2017, of Sessions’ budget priorities. “I think [it’s] going to be less aggressive in certain areas that really need federal attention when it comes to protecting constitutional rights and ensuring people’s safety.”

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What’s absent here, he noted, is the emphasis on protecting the rights of groups that disproportionately experience higher rates of discrimination, such as Black, LGBTQ, and disability communities. For example, a paragraph on voting rights removed language from the previous administration about “focus[ing] on detecting and challenging practices that violate Section 2 of the Voting Rights Act,” which prohibits voting practices that discriminate on the basis of race and color.

The Civil Rights Division was created as part of the Civil Rights Act of 1957 with the purpose of enforcing anti-discrimination laws. Its particular focus, according to DOJ’s website, was to protect the civil rights of “some of the most vulnerable members of our society.” Former Attorney General Eric Holder famously called this division the “crown jewel” of the Justice Department.

Among the changes in priorities, noted those who spoke to Rewire, are the shifts in approaches to police violence, discrimination against foreign-born workers, and school segregation.

What struck hardest for Bains, for example, is the budget’s omission of any commitment to prosecute illegal use of force by police officers, on which he worked closely. Videos showing police officers killing unarmed Black men spurred national attention to this issue in recent years. The Obama administration’s 2017 budget request for the Civil Rights Division listed “ensuring effective and democratically accountable policing” as its top-line priority.

“It’s not shocking, and it’s shocking,” Bains said. “It’s not shocking because we’ve seen the signs already from this attorney general that he wants to pull back from police reform. It is shocking because this is an urgent set of issues. And to completely back away from this work such that it doesn’t even appear on the list of priorities, I think, is going to be really detrimental to the country.”

After investigating discriminatory policing in various cities, DOJ now has standing agreements with 20 law-enforcement agencies, including 15 consent decrees. As a legal agreement between two parties, DOJ frequently uses consent decrees to compel parties to change discriminatory practices in order to avoid or end a civil rights lawsuit. Consent decrees generally come with specific terms with which the party violating the law must comply. Sessions early on ordered a sweeping review of these court orders and has indicated a desire to close some of them (he cannot close them alone; a judge would need to make a ruling). For instance, just last month Sessions unsuccessfully attempted to delay and re-examine a consent decree with the Baltimore Police Department before it was put in place, even though local officials welcomed police reforms.

Meanwhile, for University of Michigan law professor Samuel Bagenstos, one bullet point in the budget document signals that the Civil Rights Division might be used as a propaganda generator to further the Trump administration’s narrative that immigrants are stealing U.S. jobs.

The budget request promises the division will “vigorously combat workplace discrimination” but says as part of this effort it will prioritize “ensur[ing] that companies do not discriminate against U.S. workers in favor of foreign visa holders.” Bagenstos, who worked in the Civil Rights Division under Obama as the principal deputy assistant attorney general, said he believes, based on his experience at DOJ, that discrimination among employers in hiring against foreign-born workers is much more prevalent than discriminating against U.S.-born workers.

“And now what the Sessions Justice Department is trying to do is essentially turn that around and say we’re going to use that anti-discrimination provision as a tool to go after employers who are discriminating against American citizen workers,” Bagenstos said. “In the abstract, there is nothing wrong with that if those cases are out there, but it sure looks like this is a case where they’re going to try to develop a program that’s going to have basically a propaganda function of trying to tell a story to American citizen workers that immigrants are coming and taking your jobs.”

Bagenstos likened DOJ’s promise to crack down on discrimination against U.S. workers to its promise during President George W. Bush’s administration to crack down on widespread voter fraud. But, as the New York Times reported in 2007, a five-year effort failed to turn up evidence of organized or widespread voter fraud. The consequence of this crackdown ended up disproportionately affecting voters of color, many of whom were charged after mistakenly filling out registration forms or misunderstanding eligibility rules, the Times reported.

Bains told Rewire that during his time at the Civil Rights Division, the trend of most of the discrimination cases they were seeing involved prospective employers requiring additional documentation from non-citizens or those presumed, due to their race, not to be legally authorized to work. For example, in recent years the Justice Department sued (and then settled with) Nevada taxi companies, McDonald’s, and medical residency programs for those kinds of practices.

But just last week, DOJ announced a settlement with Carrillo Farm Labor after suing the New Mexico onion farm for “den[ying] U.S. citizens employment in 2016 because it wanted to hire temporary foreign workers under the H-2A visa program,” following an investigation that began in December. In the press release announcing this settlement, DOJ notes that the settlement “is part of a Justice Department initiative dedicated to combatting employment discrimination against U.S. workers.”

The very last agenda item listed in this budget request also shook the civil rights attorneys who talked to Rewire.

It is essentially a commitment that DOJ’s Civil Rights Division will collaborate with the Department of Education’s Office of Civil Rights to review “regulatory materials,” as well as the approximately 170 consent decrees entered into with schools districts that DOJ has found to not be complying with federal desegregation laws.

What worries these attorneys is not the reviews themselves—which they say is common practice—but what the goal for these reviews are, particularly if it involves rescinding guidance on regulations or trying to end consent decrees prematurely. Already, Sessions’ DOJ withdrew guidance (joined by the Department of Education) that federally funded schools have to ensure that transgender students can access bathrooms consistent with their gender identities. Bagenstos told Rewire he anticipates DOJ will continue to scrutinize regulatory guidances that are similarly controversial among conservatives, such as policies involving affirmative action or sexual harassment and assault on college campuses.

“It’s clear that they’re going to try to get rid of Obama-era regulatory guidance that had enhanced civil rights protections for students, and it’s clear that they’re going to go through desegregation decrees and try to get rid of those as well,” Bagenstos said.

He noted that while ending consent decrees involves a legal process, it is relatively simple for a willing Education Department to rescind guidance on regulatory materials.

Anurima Bhargava, the former chief of the Educational Opportunities Section of the Civil Rights Division under Obama, told Rewire in a phone interview that she hopes the Civil Rights Division will continue to investigate and aggressively enforce desegregation in schools, something she says remains a widely pervasive problem. She said schools in the United States are as segregated as they were in 1970s.

“We’re at a place worse than Plessy; [many schools] are separate but unequal,” Bhargava said, referring to the 1896 Supreme Court decision Plessy v. Ferguson that upheld state segregation laws for public facilities as long as those facilities were “separate but equal.” She said that DOJ has found that many school districts that have failed to integrate have schools with unequal levels of resources, disproportionately negatively affecting Black and Latino communities.

On its face, reviewing longstanding consent decrees is not nefarious, said Bhargava, who is now a Leadership in Government fellow at the Open Society Foundations in New York, so long as the goal is not to close these cases prematurely. She noted that because consent decrees are binding court orders, it would take judge to release a school from the order. But she said that, looking forward, it will be important to evaluate how and whether the school districts released from these orders are complying with federal desegregation laws. A 2014 ProPublica investigation found many schools districts forced to integrate, particularly in the South, actively resegregated after judges began releasing them from consent decrees in the 1990s.

Bhargava pointed out that DOJ has continued to seek consent decrees with school districts since Sessions became the attorney general. In March, a federal court approved a desegregation plan for schools in Cleveland, Mississippi, after decades-long litigation.

DOJ declined to respond to a question about what its intents are in reviewing the regulations and 170 consent decrees.

Bhargava said the big-picture view during her time in the Civil Rights Division was that integrating students at young ages throughout their lives could help alleviate bigger societal problems such institutional racism and hate crimes. She worries that Sessions, and the Trump administration at large, does not share this long view. In fact, she believes Sessions—who has a history of making racist statements and is argued to have helped preserve segregated education in Alabama when he was the state’s attorney general—is pro-segregation.

“Jeff Sessions is a segregationist,” Bhargava said. “He has been for the entirety of his career. To the extent that we take anything from that, we’ve got to assume he’s going to be consistent in his understanding of having segregated communities is not something that bothers him. … And that would be from early stages, from our babies to the communities that we see now many decades later as people grow into what is increasingly, not only segregated schools but a segregated society. I think he applauds that, as opposed to [understanding] the ways in which it’s really crippling our ability to have young people learn to play together so they can learn to live together later on.”

The broad agenda laid out in this budget document reflects that of previous Republican administrations, Bagenstos said. But he believes Sessions wields more power than previous attorneys general, and in that way, he could have more influence than in previous administrations as to how the federal government enforces civil rights laws.

“Just given the amount of power Jeff Sessions has to carry out his agenda within the administration, I think that is going to be the most important factor,” he said.

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