Civil Rights Enforcement in the Trump Era

February, 2017

By Ali Boyd
Associate Editor, Vol. 22
Online Publications Editor, Vol. 23

In the wake of President Trump’s recent inauguration, millions of people across the world came out in protest of his rhetoric and policy agenda.[1] The day after the inauguration, the Women’s March on Washington and sister-marches around the world demonstrated a widespread fear shared by millions that the rights of vulnerable Americans will be violated under President Trump’s administration.[2] Civil rights could, of course, be curtailed through the legislative process, but often this takes time. What is perhaps even more terrifying is the reality that the Trump administration could simply stop enforcing rights that are currently in place, a decision which could have immediate effect.

One of the key institutions for the federal government’s enforcement of civil rights is the Civil Rights Division of the Department of Justice, which was created after the passage of the Civil Rights Act of 1957.[3] Since that time, the Division has been responsible for enforcing federal statutes designed to protect some of the most vulnerable members of our society, [4] including the Americans with Disabilities Act (ADA), the Equal Educational Opportunities Act of 1974, the Civil Rights Act of 1964, and the Voting Rights Act.[5] The Civil Rights Division has been responsible for some remarkable legal work since its installation. The DOJ website boasts of the prosecution of the eighteen individuals for civil rights violations surrounding the murder of three civil rights workers in Mississippi in 1964 as well as the Civil Rights Division’s involvement in the investigations of the assassination of Dr. Martin Luther King, Jr.[6]

In theory, the Civil Rights Division’s job appears straightforward – the United States legislature creates the law, and the Department of Justice’s duty is to enforce those laws through necessary legal action. However, in practice, the power of the Civil Rights Division stretches far beyond mere enforcement of federal statutes. The Division’s ability to choose which issues are worthy of litigation and which are to remain unenforced affects the lives of millions of vulnerable people and sends a message to the nation about what type of discriminatory behavior is acceptable or unacceptable.

As such, the Division’s decisions in these matters should be seen as a direct reflection of the current administration’s civil rights agenda. For example, the Civil Rights Division under President Obama took unprecedented steps toward combatting police misconduct in the wake of several high profile incidents by investigating over twenty police agencies for civil rights violations.[7] President Obama’s support for same-sex marriage and LGBT rights[8] was reflected in the DOJ’s refusal to defend the Defense of Marriage Act, a federal law that defined marriage as being between one man and one woman for the purpose of federal benefits.[9] The Civil Rights Division took proactive steps to expand LGBTQ protections as well by filing suit against North Carolina for its discriminatory transgender bathroom bill.[10] On the other hand, a 2009 Government Accountability Office report found that the Civil Rights Division saw a decline in the number of certain kinds of civil rights enforcement cases under President Bush when compared to his predecessor President Clinton, particularly when it came to enforcement of the Voting Rights Act.[11] These differences from one administration to the next occurred in spite of the fact that the Civil Rights Division has been tasked with enforcing much of the same long-standing law since its inception.

Additionally, the attorneys selected to lead the Department of Justice, and the Civil Rights Division in particular, can have a profound impact on the direction the Civil Rights Division takes, and therefore on the direction of civil rights within our nation. The previously mentioned Government Accountability Office Report found that under the Bush administration, supervisors in the Civil Rights Division decided to close cases against the recommendation of career civil rights attorneys, oftentimes without any explanation.[12]

With this much power vested in the Division and its leaders, do minorities have reason to fear the agenda that the Civil Rights Division will set under President Trump? Based on the evidence we have been given thus far, the answer is a resounding yes. President Trump, through his words and actions, has already begun to set an agenda for what civil rights will look like over the next four years. During his campaign, Trump advocated for a controversial nation-wide stop-and-frisk policy as a way to reduce crime.[13] Should this platform trickle down into the Civil Rights Division, it will be in stark contrast to the investigations of police brutality conducted by Obama’s civil rights team. Within hours of President Trump’s inauguration, the civil rights page that once appeared on the White House’s official website had been removed.[14] Additionally, President Trump’s pick to oversee the Civil Rights Division has a background that indicates resistance to civil rights enforcement may be in our nation’s future, particularly in the area of voting rights. President Trump has tapped attorney John M. Gore to lead the Civil Rights Division as the Deputy Assistant Attorney General.[15] Headlines have scoffed at the fact that Gore, in his private practice, defended the University of North Carolina against the ACLU’s challenge to the same transgender bathroom bill that President Obama’s Department of Justice fought against.[16] Additionally, Gore’s specialty is in “defending the Republican Party against allegations that its voting laws violate civil rights.”[17] When combined with President’s Trump’s recent obsession with the meritless claim that millions of voters cast fraudulent ballots in the November election,[18] this serves as an indication that voting rights will be at the center of President Trump’s time in office. As has become recently apparent, the rights of immigrants and refugees in this country will also be a hot-button issue over the next four years, and President Trump will not stand for anyone within the Department of Justice who gets in the way of his agenda. After acting Attorney General Sally Yates refused to enforce President Trump’s executive order banning the entry of citizens of seven Muslim-majority countries into the United States, the President swiftly removed her from her position.[19]

What do these clues ultimately tell us? At best, it is likely that over the next four years we will see a scaling back of the cases taken on by the Civil Rights Division, particularly in certain areas like voting rights, LGBT rights, and race-based discrimination. This would be similar to the scaling back seen during the years of President George W. Bush. At worst, we could see a complete reversal of the government’s position on important civil rights matters. Rather than using the Voting Rights Act to protect voters from discrimination and give greater access to ballots, the government could instead argue on behalf of states who want to restrict access further. Either way, it is clear we no longer live under President Obama’s Department of Justice.

[1] See Tessa Stuart, Inside the Historic Women’s March on Washington, Rolling Stone (Jan. 21, 2017), http://www.rollingstone.com/politics/features/inside-the-historic-womens-march-on-washington-w462325.

[2] See id.

[3] See About the Division, U.S. Dep’t of Just. Civ. Rights Division (last visited Jan. 26, 2014), https://www.justice.gov/crt/about-division.

[4] See id.

[5] See Disability Rights Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/disability-rights-section (last visited Jan. 26, 2017); Educational Opportunities Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/educational-opportunities-section (last visited Jan. 26, 2017); Voting Section, U.S. Dep’t of Just. Civ. Rights Division, https://www.justice.gov/crt/voting-section (last visited Jan. 26, 2017).

[6] About the Division, supra note 3.

[7] Eric Tucker, Trump Could Reshape Justice Department’s Civil Rights Focus, PBS (Nov. 11, 2016, 10:10 AM), http://www.pbs.org/newshour/rundown/trump-reshape-justice-departments-civil-rights-focus/.

[8] Phil Gast, Obama Announces He Supports Same-Sex Marriage, CNN (May 9, 2012, 9:57 PM), http://www.cnn.com/2012/05/09/politics/obama-same-sex-marriage/.

[9] Eric Tucker, supra note 8.

[10] Id.

[11] See Charlie Savage, Report Examines Civil Rights During Bush Years, The N.Y. Times (Dec. 2, 2009), http://www.nytimes.com/2009/12/03/us/politics/03rights.html.

[12] Id.

[13] Louis Nelson, Trump Calls for Nationwide ‘Stop-and-Frisk’ Policy, Politico (Sept. 21, 2106, 4:04 PM), http://www.politico.com/story/2016/09/donald-trump-stop-and-frisk-228486.

[14] Janell Ross, Civil Rights Page Also Deleted from White House Website, The Wash. Post (Jan. 20, 2017, 3:16 PM), https://www.washingtonpost.com/local/2017/live-updates/politics/live-coverage-of-trumps-inauguration/civil-rights-page-also-deleted-from-white-house-website/?utm_term=.1981d3339f4b.

[15] Eric Levitz, Trump’s Pick to Enforce Civil Rights Is an Expert at Defending GOP Voting Laws, N.Y. Mag. (Jan. 21, 2017, 11:53 AM), http://nymag.com/daily/intelligencer/2017/01/trumps-top-civil-rights-pick-has-bad-record-on-civil-rights.html.

[16] Id.

[17] Id.

[18] Maggie Haberman, Jennifer Steinhauer, and Charlie Savage, Press Secretary Affirms that Trump Believes Lie of Millions of Illegal Voters, The N.Y. Times (Jan. 24, 2017), https://www.nytimes.com/2017/01/24/us/politics/donald-trump-administration.html.

[19] Evan Perez and Jeremy Diamond, Trump Fires Acting AG After She Declines to Defend Travel Ban, CNN (Jan. 31, 2017, 2:37 PM), http://www.cnn.com/2017/01/30/politics/donald-trump-immigration-order-department-of-justice/.

The views expressed herein represent the views of the author only.