The DOJ Is Chipping Away at the Civil Rights Act, One Amendment at a Time

Already, the agency has taken a chisel to many of the provisions that make up the Civil Rights Act of 1964.

It is immediately believable that Attorney General Jeff Sessions’ DOJ would be trying to dismantle affirmative action. Shawn Thew-Pool/Getty Images

The New York Times reported last week that the U.S. Department of Justice (DOJ) is launching a project that, at the outset, looks like an attempt to prove that universities are discriminating against white college applicants due to affirmative action. The Times suggested the project signals the Trump administration is targeting the longtime civil rights policy that allows schools to consider race in their admissions policies in an effort to improve opportunities for historically disadvantaged groups, such as Black and Latino Americans.

According to the Times, the document—which the Trump administration is calling a “personnel posting”—was essentially a job announcement seeking current lawyers to work on a new project on “investigations and possible litigation related to intentional race-based discrimination in college and university admissions.”

The White House, however, has refuted the Gray Lady’s interpretation of a leaked internal memo sent to the paper. The DOJ refused to comment for the Times’ story, but, following a national backlash, told ABC News that the job announcement “does not reflect a new policy” regarding affirmative action and in fact was related to a specific “administrative complaint filed by a coalition of 64 Asian-American associations in May 2015 that the prior administration left unresolved.”

The New York Times defended its reporting and noted that the lawsuit involving Asian-American associations was orchestrated by the same conservative activist, Edward Blum, who cooked up Abigail Fisher’s ultimately unsuccessful U.S. Supreme Court lawsuit aimed at University of Texas’ consideration of race in its admissions policy. This latest lawsuit targeting affirmative action involves Asian-American organizations that claim Harvard University discriminates against Asian-American students by rejecting those who have “almost perfect SAT scores, top 1% GPAs, plus significant awards or leadership positions in various extracurricular activities.” As with Fisher’s, this case appears to be aimed for the Supreme Court.

It is immediately believable that Attorney General Jeff Sessions’ DOJ would be trying to dismantle affirmative action. Already, the agency has taken a chisel to many of the provisions and amendments that make up the Civil Rights Act of 1964. It’s only natural to wonder what’s next.

In the name of keeping track of where we are and what could be around the bend, here’s a primer on a few of the civil rights our federal government protects, and the ones that same government is threatening.

Title I—Voting Rights

This provision prohibits unequal application of voter registration requirements. It was amended in 1965, with the adoption of the Voting Rights Act, to ban literacy tests and other voting qualifications beyond citizenship.

In a direct attack on the Voting Rights Act (VRA), the Justice Department is defending a Texas voter ID law that a federal appeals court last year found to be discriminatory against voters of color.

Within hours of the U.S. Supreme Court striking down a key element of the VRA in 2013—which had required that states with a long history of disenfranchising voters of color must seek federal approval before making changes to their election laws—Texas, one such state, began trying to enforce a voter ID law previously blocked by the DOJ for violating the VRA. That law, known as SB 14, limited the kinds of identification voters could present to cast a ballot.

In response, the DOJ under the Obama administration sued Texas to block SB 14. In July 2016, a federal appeals handed the federal government a victory, upholding a lower court ruling that the Texas law had a racially discriminatory impact. The appeals court sent the case back to the district court to try to figure out a remedy to the law, and to further evaluate the claim from plaintiffs, including the DOJ, that the law was intentionally discriminatory.

But in February, Trump’s DOJ withdrew this claim, effectively reversing the DOJ’s position in the lawsuit. Regardless, in April, the district court again ruled that Texas lawmakers enacted the voter ID law with the intent to discriminate against voters of color. Meanwhile in June, Texas Gov. Greg Abbott (R) signed a slightly modified version of the embattled voter ID law, giving additional ID options for voters who sign an affidavit swearing they cannot produce one of the seven types of required identification. In July, the DOJ filed a brief in the ongoing lawsuit, arguing that this new law fixes all problems of discrimination and that the court should drop the case, letting Texas’ new law go into effect next year.

That case is ongoing.

In a different voting rights case before the Supreme Court, the DOJ this week reversed the previous administration’s position regarding the National Voter Registration Act (NVRA). Under the Obama administration, the DOJ argued that Ohio’s purging of individuals from its voter rolls simply because of voting inactivity, without evidence that the person moved, violates the NVRA. (There is a similar case brewing in Georgia.) But on Monday, the DOJ filed an amicus brief arguing the exact opposite.

Justin Levitt, a Loyola Law School professor who previously served as a deputy assistant attorney general within the DOJ’s Civil Rights Division and worked on this case, noted at the Election Law Blog that, according to the NVRA, before state officials can remove someone off the list of registered voters, “either the voter has to tell the official they’ve moved, or the official has to send a forwardable notice and wait two federal elections to see if the voter makes contact.”  

Earlier this summer, the DOJ sent letters to states asking for details on how they purge their voter rolls. In response, former DOJ Civil Rights Division head Vanita Gupta told NBC News, “This is a prelude to setting up voter purging.”

Outside the agency, the Trump administration is taking other actions that greatly worry voting rights advocates. In May, the administration created a commission to investigate widespread voter fraud, a phenomenon the administration has repeatedly alleged exists despite any data to support the charge. Leading the commission, which held its first public hearing last month, are well-known supporters of voter restriction laws such as Kansas Secretary of State Kris Kobach. Activists are concerned the commission was set up to justify nationwide voting restrictions that disproportionately affect voters of color.

Title IV—Desegregation of Public Education

This provision encouraged the desegregation of public schools and explicitly prohibited public schools from denying entrance to or within their schools based on a student’s race, color, or national origin. The provision also authorized the U.S. attorney general to file lawsuits to enforce this act.

In the spring, the DOJ’s Civil Rights Division published a budget request outlining its agenda, which included a plan to review “regulatory materials” and the approximately 170 consent decrees entered into with school districts the DOJ had previously found to not be complying with federal desegregation laws. Civil rights attorneys told Rewire at the time they worried this review might entail releasing districts from these consent decrees prematurely. The DOJ’s language also indicated a shift in approaches to police violence and alleged discrimination against U.S.-born workers.

Title V—Commission on Civil Rights

The Civil Rights Act of 1957 created this commission. The goal was to establish an independent fact-finding federal agency to keep track of how the federal government is enforcing and developing civil rights policy. Though it lacks the power to enforce civil rights laws, it can investigate any lack of enforcement.

At the moment, Sessions’ DOJ is not threatening this commission. But the commission is investigating the Trump administration’s enforcement of civil rights laws, among them Title IX of the Education Amendment Act of 1972.

As Rewire’s Jessica Mason Pieklo recently reported, Catherine Lhamon is the current chair of the commission, appointed to a six-year term by President Barack Obama in 2016. Previously she served as an assistant secretary for civil rights at the Department of Education (DOE), where she helped draft the Obama administration’s Title IX guidance notifying schools that denying transgender students access to bathrooms and facilities that align with their gender identities violates federal law. The DOE and DOJ rescinded that guidance earlier this year. Soon after, the Trump administration stopped investigating civil rights claims by transgender students.

DOE Secretary Betsy DeVos has also signaled her department might reverse an Obama-era policy concerning how schools investigate sexual-assault related violations of Title IX. And recently, DeVos announced she would delay the implementation of a rule designed to protect students from predatory lending.

But Lhamon’s commission is watching all of this.

“The commission’s charge is to be the nation’s eyes and ears about federal civil rights issues that range from voting rights, to discrimination on the basis of race, sex, national origin, religion, disability, age, and also access to justice and the courts,” Lhamon told Rewire in an interview.

Title VI—Nondiscrimination in Federally Assisted Programs

This provision bars discrimination based on race, color, or national origin, in all programs that receive federal funds, such as schools, hospitals, and city governments.

The DOJ’s aforementioned interest in revisiting affirmative action policies opens the potential for new threats to Title VI. As noted by the New York Times, should the DOJ argue that affirmative action policies are discriminatory, “the federal government potentially has the ability to influence university admissions policies by withholding federal funds under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money.”

On the other hand, should any revised policies result in discriminatory policies, that may also be a violation of Title VI.

Title VII—Equal Employment Opportunity

This provision prevents employers from discriminating against prospective employees based on their race, color, religion, national origin or sex. “Sex,” as American Civil Liberties Union attorney Gillian Thomas puts it, was added to this part of the Civil Rights Act “at the last minute” by a Democratic U.S. House representative from Virginia. Thomas writes that historians believe Rep. Howard Smith opposed the Civil Rights Act but still pushed for this amendment, because he worried white women would be otherwise disadvantaged in the workplace.

What we have now is a fight over what “sex” in Title VII means, and if it includes sexual orientation and identity. The Trump administration has insisted it doesn’t. Late last month, the president used Twitter to supposedly ban transgender people from serving openly in the U.S. military. The next day, without being asked, the DOJ filed a “friend of the court” brief in a private employment lawsuit, arguing in favor of the defendants that Title VII does not protect workers on the basis of their sexual orientation.