(NAME-MCE) Justice Dept. Reshapes Its Civil Rights Mission

[Bill Howe]

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June 14, 2007
Justice Dept. Reshapes Its Civil Rights Mission
By NEIL A. LEWIS

WASHINGTON, June 13 — In recent years, the Bush administration has
recast the federal government's role in civil rights by aggressively
pursuing religion-oriented cases while significantly diminishing its
involvement in the traditional area of race.

Paralleling concerns of many conservative groups, the Justice
Department has successfully argued in a number of cases that
government agencies, employers or private organizations have
improperly suppressed religious expression in situations that the
Constitution's drafters did not mean to restrict.

The shift at the Justice Department has significantly altered the
government's civil rights mission, said Brian K. Landsberg, a law
professor at the University of the Pacific and a former Justice
Department lawyer under both Republican and Democratic
administrations.

"Not until recently has anyone in the department considered religious
discrimination such a high priority," Professor Landsberg said. "No
one had ever considered it to be of the same magnitude as race or
national origin."

Cynthia Magnuson, a spokeswoman for the Justice Department, said in a
statement that the agency had "worked diligently to enforce the
federal laws that prohibit discrimination based on religion."

The changes are evident in a variety of actions:

¶Intervening in federal court cases on behalf of religion-based groups
like the Salvation Army that assert they have the right to
discriminate in hiring in favor of people who share their beliefs even
though they are running charitable programs with federal money.

¶Supporting groups that want to send home religious literature with
schoolchildren; in one case, the government helped win the right of a
group in Massachusetts to distribute candy canes as part of a
religious message that the red stripes represented the blood of
Christ.

¶Vigorously enforcing a law enacted by Congress in 2000 that allows
churches and other places of worship to be free of some local zoning
restrictions. The division has brought more than two dozen lawsuits on
behalf of churches, synagogues and mosques.

¶Taking on far fewer hate crimes and cases in which local law
enforcement officers may have violated someone's civil rights. The
resources for these traditional cases have instead been used to
investigate trafficking cases, typically involving foreign women used
in the sex trade, a favored issue of the religious right.

¶Sharply reducing the complex lawsuits that challenge voting plans
that might dilute the strength of black voters. The department
initiated only one such case through the early part of this year,
compared with eight in a comparable period in the Clinton
administration.

Along with its changed civil rights mission, the department has also
tried to overhaul the roster of government lawyers who deal with civil
rights. The agency has transferred or demoted some experienced civil
rights litigators while bringing in lawyers, including graduates of
religious-affiliated law schools and some people vocal about their
faith, who favor the new priorities. That has created some unease,
with some career lawyers disdainfully referring to the newcomers as
"holy hires."

The department's emphasis has been embraced by some groups
representing Muslims, Jews and especially Christian conservatives, who
have long complained that the federal government ignored their
grievances about discrimination.

"We live in a society that is becoming more religiously diverse, even
by the hour," said Kevin Seamus Hasson, who founded the Becket Fund
for Religious Liberty 12 years ago. "So it's entirely appropriate and
slightly overdue that the Justice Department is paying more attention
to the various frictions that increasing religious diversity is
causing in the society."

Combating racism remains an important mission, Mr. Hasson said, but
one that has changed over the years. "We can now deal with the
problems of racism more effectively on a more local level," he argued.
"We don't always need the federal government to come riding over the
hill."

Some religious figures, though, are more wary about the changes at the
Justice Department. Robert Edgar, president of the National Council of
Churches, a liberal-leaning group, agreed that it was important to
take on issues like religious discrimination and human trafficking.

But the problems of race and poverty in America "still require the
highest caliber of attention," said Mr. Edgar, who cited the flawed
government response to New Orleans and its mostly poor, black
population after Hurricane Katrina. He said he was distrustful of the
Justice Department's leadership to make appropriate decisions as to
the nation's civil rights priorities.

A New Mission

Some critics say that many of the Justice Department's
religious-oriented initiatives are outside its mandate from Congress.
While statutes prohibit religious discrimination in areas like
employment and housing, no laws address some of the issues in which
the department has become involved.

"They are engaging in freewheeling social engineering," said Ayesha
Khan, counsel for Americans United for Separation of Church and State,
and "using the power of the federal government to put in place an
ideological, not constitutional agenda."

The department declined to make available for interviews Assistant
Attorney General Wan J. Kim, who heads the civil rights division, or
Eric Treene, who holds the newly created position of special counsel
for religious discrimination.

Ms. Magnuson, the Justice Department spokeswoman, said it was
justified in devoting so much attention to the issue because Congress
has demonstrated its interest by including religion in the landmark
Civil Rights Act of 1964 and enacting the 2000 law involving zoning
restrictions, the Religious Land Use and Institutionalized Persons
Act.

Ms. Magnuson also said the department had not diminished its interest
in enforcing racial and national origin discrimination cases. The
changes at the Justice Department began under Attorney General John
Ashcroft, but have accelerated under Alberto R. Gonzales, his
successor.

Mr. Gonzales has increasingly cited his agency's record on behalf of
religious causes as among his most important accomplishments, often
noting the successful intervention in cases on behalf of people who
had suffered discrimination for wearing Muslim head coverings. In
speeches, he routinely says that religious freedom is the nation's
"first freedom because our founders saw fit to place it first in the
Bill of Rights."

President Bush has also talked of the department's religion-related
activities in appearances before religious conservatives, an important
element of his support. Aside from any political benefit of satisfying
conservative groups, the Justice Department's shift has brought a more
subtle dividend: a defense to the criticism leveled at past Republican
administrations that they were half-hearted about civil rights
enforcement.

Changing Mission

The Bush administration has avoided that problem by changing the civil
rights mission to something its Justice Department can take on with
enthusiasm.

The department has prevailed in many, if not most of the cases in
which it has become involved. It has, in effect, duplicated in the
religious arena its past success in cases involving race and national
origin.

At the same time, the department has sharply reduced its efforts to
combat voting rights plans that may dilute black electoral strength.

Ms. Magnuson, the department spokeswoman, said that the civil rights
division had brought more voting rights lawsuits under Mr. Bush than
had been brought in the Clinton administration.

But an examination of the Justice Department's Web site listing of the
cases brought through early 2007 shows that many of them involved a
different part of the law, one that requires voting materials be
available in languages other than English in places with high
concentrations of Asian and Hispanic voters.

Joseph D. Rich, who recently stepped down as head of the voting rights
section after a 37-year career at Justice, said that only the federal
government had the resources to bring voting dilution cases, while
private groups have been able to bring the language cases. The civil
rights division also brought the first case ever on behalf of white
voters, alleging in 2005 that a black political leader in Noxubee
County, Miss., was intimidating whites at the polls.

The shift in priorities at the criminal section of the civil rights
division has been especially stark. The criminal section — which
previously had mostly focused on hate crimes or lawsuits against
police officers who may have violated someone's civil rights — began
taking on human trafficking cases that had previously been handled
elsewhere.

During Mr. Bush's second term, the section brought dozens of cases
against people charged under a new law with bringing women into the
country to work in brothels. The new employees with religious
backgrounds were enthusiastic about such cases, seeing them akin to
combating slavery, a former career lawyer in the division said.

Pursuing trafficking cases, rather than those involving hate crimes or
police abuse, was seen as important to moving ahead in the department,
current and former career officials said. They added that political
appointees in supervisory positions frequently vetoed proposed hate
crime investigations or questioned them to death.

"You only needed for that to happen a few times and people got the
message they shouldn't be eager to send up such cases," said one
lawyer who would talk only on condition of anonymity.

Rigel C. Oliveri, a law professor at the University of Missouri who
worked in the civil rights division during the Clinton and early Bush
years, said it became increasingly frustrating to bring what she said
were worthy civil rights cases, because the political appointees would
not act on them. "It was like a black hole," she said.

Whatever cases may have been slowed or ignored, some religious leaders
said they were grateful for actions the department had taken.

The Rev. N. J. L'Heureux, the executive director of the Queens
Federation of Churches in New York, said the department had helped
several Christian, Muslim and Jewish congregations deal with local
governments trying to block houses of worship in neighborhoods. In
Hollywood, Fla., for example, the department successfully sued the
city for denying a permit to an Orthodox synagogue.

Sometimes, Mr. L'Heureux said, an inquiry from Mr. Treene, the special
religious affairs counsel, had been enough to encourage local
governments to drop their resistance. The civil rights division
favorably resolved 16 of 26 zoning investigations simply by expressing
interest in them, according to the Justice Department.

Kareem W. Shora, the executive director of the American-Arab
Anti-Discrimination Committee, said that Mr. Treene had also
intervened in cases the group brought to him about Arab prison inmates
having access to prayer opportunities.

In so-called equal-access cases, the department has mostly won court
rulings allowing religious organizations like the Child Evangelism
Fellowship to have the same access to public school students as
nonreligious groups, a principle generally approved by a divided
Supreme Court in 2001.

In the candy cane case, for example, school officials in Westfield,
Mass., had suspended students for handing out candy canes with
religious messages, saying it was disruptive and lurid. The students
said that the "J" shape represented Jesus and the red stripes his
blood, the white his purity. In a pending case from San Diego, the
government defended the city's campground lease to the Boy Scouts,
which had been challenged because of the group's religious tenets. The
department has also challenged so-called Blaine amendments, which are
state constitutional provisions enforcing separation of church and
state more rigidly than does the United States Constitution. The
federal government sued because the amendments could impede Mr. Bush's
religion-based initiative, which provides money to religious groups
for social programs.

Reshaping the Staff

As it has reoriented its priorities, the department has also tried to
remake the cast of government lawyers who enforce civil rights. A
number of career lawyers who served as section heads or deputies in
the civil rights division have been replaced.

In Congressional testimony in March, Mr. Rich said seven managers had
been removed or marginalized for what he characterized as political
reasons or perceived disloyalty. Department officials acknowledge the
changes, but dispute the reasons.

In addition, Mr. Ashcroft arranged for the agency's senior political
appointees to take over the decades-old system used to hire recent law
school graduates for entry-level career jobs that are supposed to be
nonpartisan.

Under the system, known as the honors program, nonpolitical career
lawyers had screened applicants. Those selected were almost
exclusively graduates of top-ranked law schools and often had had
prestigious judicial clerkships or other relevant experience.

Monica M. Goodling, a former senior aide to Mr. Gonzales, testified to
a House committee last month that she had improperly used politics to
hire some people as assistant federal prosecutors and for other civil
service jobs, a possible violation of federal employment laws.

But the pattern of hiring on an ideological basis was more widespread
than what Ms. Goodling described, according to interviews and
department statistics.

Figures provided by the department show that from 2003 through 2006,
there was a notable increase of hirings from religious-affiliated
institutions like Regent University and Ave Maria University. The
department hired eight from those two schools in that period, compared
to 50 from Harvard and 13 from Yale.

Several career lawyers said that some political appointees favored the
religious-oriented employees, intervening to steer $1,000 to $4,000
annual merit bonuses to them.

Ms. Oliveri and several other law professors said placement officers
and faculty at their schools found that graduates seeking work at the
Justice Department had a better chance by cleansing their résumés of
liberal affiliations while emphasizing ties to the Federalist Society,
a Washington conservative group, or membership in a religious
fellowship.

Ms. Oliveri recalled that when she was hired in 2000 by the Justice
Department, she was impressed by the accomplishments of her peers. But
once the political appointees controlled the hiring, she said, "The
change in the quality of people who were chosen was very pronounced."

When the front office sent around the résumés of those newly hired for
the honors program, she said, "It was obvious what they had:
conservative and religious bona fides."





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