//  5/30/17  //  In-Depth Analysis

Since President Trump released his budget last week, the public has rightly focused on the bone-deep cuts to Medicaid, food assistance, and disability insurance, programs on which low-income Americans depend. But the budget reveals another way in which the administration’s plans will harm the country’s most vulnerable populations: by reorienting the work of the Justice Department’s Civil Rights Division.

The Civil Rights Division is charged with defending constitutional rights, combating discrimination, and ensuring equal opportunity for all Americans. The president’s budget would cut the Division by 121 positions, from 714 to 593. Given that the requested appropriation remains flat at $148 million, those 121 positions are probably mostly authorized spots that are not currently filled.  The cut is still troubling, however, because it will cabin work the Division intended to undertake.

The more significant changes in the Division’s budget request appear in the list of priorities set forth under the heading “FY 2018 Strategy.” That list reveals several ways in which the administration plans to roll back or reverse civil rights enforcement:

1.  Policing

The Division’s highest profile work in recent years—ensuring constitutional policing—doesn’t make the budget’s list of priorities. Last year, it was the top-line item, and the Division sought funding to hire 24 new employees to investigate police misconduct and protect the rights of children in the criminal justice system.

This administration’s about-face is perhaps unsurprising. After all, three weeks into his tenure Attorney General Jeff Sessions asked a federal judge not to enter a consent decree to reform the Baltimore Police Department—a decree the city’s mayor, police commissioner, and residents welcomed—and he is now reconsidering all of DOJ’s existing and contemplated reform agreements.

But it is hard to reconcile this budget’s priorities with widespread concern about excessive force, racial discrimination, and the tension between law enforcement and many communities of color. Citizens have taken to the streets repeatedly since 2014 to protest fatal police shootings and deaths in custody. DOJ has documented patterns of misconduct in Ferguson, Cleveland, Chicago, and other cities. And many police leaders themselves have sought to alter policy, training, and accountability systems to foster a culture of service and guardianship—an ethic that infuses DOJ consent decrees.

The budget does not even prioritize the prosecution of officers who intentionally abuse civilians, crimes typically charged under 18 U.S.C. § 242. In defense of his reluctance to scrutinize police departments, Sessions has described misconduct as limited to the “misdeeds of individual bad actors.” But holding those bad actors criminally accountable doesn’t make his priority list.

2.  Voting Rights

The budget claims the Civil Rights Division “will continue to protect voting rights,” but it drops key language from last year about “detecting and challenging practices that violate Section 2 of the Voting Rights Act.” 

Since the Supreme Court’s 2013 decision in Shelby County v. Holder rendered the Act’s preclearance regime inoperable, Section 2 has been the primary tool left to challenge vote denial and vote dilution based on race.  The Division has prevailed in three major Section 2 cases since then: one against North Carolina for a law that the Fourth Circuit held targeted black voters “with almost surgical precision”; one against Texas for drawing district lines that a federal district court deemed discriminatory; and another against Texas’s Voter ID law, which a federal judge twice ruled intentionally discriminated against minorities.  In the Texas ID case, the Division withdrew its intentional discrimination claim in February, just weeks before the judge vindicated that very claim. Despite its success, the Division apparently won’t be bringing more of these cases.

So what does it mean to “protect voting rights” without filing Section 2 cases? DOJ may shift its resources toward scaremongering over in-person voter fraud, which the evidence shows is less common is America than being struck by lightning. Indeed, the president has already set up an “election Integrity” commission for this purpose, and we can expect it to recommend restrictions on the voting process. Tragically, the administration may do more to suppress the right to vote than to protect it.

3.  Fair Lending

Last year’s budget included a bullet point on “promoting fair lending and fair housing.” This year’s drops fair lending altogether. To be clear, this is no small thing. In 2010, the Division stood up a Fair Lending Unit to ensure people were not denied access to credit or given discriminatory interest rates. Its efforts were aimed, in part, at many of the practices that led to the financial crash of 2008. The unit recovered $1.6 billion for victims.  

For example, in 2015 the Division and the Consumer Financial Protection Bureau (CFPB) sued Hudson City Savings Bank for redlining—refusing to offer credit in black and Latino neighborhoods in four states—and secured a $27 million settlement. The Division and the CFPB also obtained $232 million through four settlements for minority borrowers who were charged higher interest rates on car loans than white borrowers. Just before Inauguration Day, the Division filed suit against KleinBank in Minnesota, alleging that the bank intentionally avoided providing credit in minority neighborhoods, and put branches and loan officers in white areas but not minority ones. This case is now being overseen by Trump appointees who have written fair lending out of the year’s enforcement strategy.  

4.  Disability Rights

Protecting the rights of people with disabilities—included in last year’s budget request—has been dropped completely. Under Obama, DOJ vigorously enforced the Supreme Court’s mandate in Olmstead v. L.C., a 1999 case in which the justices held that isolating people with disabilities in institutions violated federal law. As a result of settlements reached by the Division over the last few years, over 53,000 people with disabilities will work and receive services in integrated, community-based environments.

Prohibiting discrimination based on disability status shouldn’t be a partisan or political issue.  And it generally hasn’t been—the Americans with Disabilities Act was passed almost unanimously by Congress and was signed into law by President George H.W. Bush, who proclaimed, “Let the shameful wall of exclusion finally come tumbling down.” Under President Trump, however, this enterprise is no longer a priority.

5.  Immigrants’ Rights

A specialized unit of the Civil Rights Division enforces a section of the 1965 Immigration and Nationality Act (8 U.S.C. § 1324b) that prohibits employment discrimination based on national origin or citizenship status. In short, if you are authorized to work in the United States, employers cannot discriminate against you because you are from another country or are not a U.S. citizen or green card holder. Following Trump’s “America First” motto, the budget document makes clear that this unit is being redirected. It will now pursue cases against employers that disfavor qualified U.S. workers and hire visa-holders instead.

Discriminating against workers because they are American citizens is discriminatory, and the Division should sue to stop it. But the vast majority of immigration-based discrimination is against immigrants, not in their favor. Many employers simply refuse to hire people who look or sound foreign. That’s where the Division consistently has focused its efforts. Retreating from that work represents an abandonment of immigrants’ rights.

6.  Education

The budget states that the Division “will continue to work collaboratively with the Department of Education’s Office of Civil Rights to review regulatory materials.” This might sound innocuous, but it no doubt refers to undoing protections issued during the Obama administration. In February, the Trump administration withdrew a 2016 joint guidance aimed at protecting transgender students from discrimination and harassment in schools. Now, the administration will look for other civil rights rules to roll back.

The budget also says the Division will “continue to prioritize the review of approximately 170 longstanding consent decrees”—suggesting that it may seek to let school districts out of desegregation court orders, even if sufficient integration hasn’t been achieved.

7.  LGBT Rights

There is no mention in the budget of combating discrimination based on sexual orientation or gender identity. Defending the rights of LGBT individuals cuts across the Civil Rights Division’s practice areas, so the omission might not ordinarily be significant. The topic was not specifically mentioned in last year’s budget. That said, this is an area of tremendous need, and many fear Attorney General Sessions will reverse recent federal efforts.

President Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009, banning violence based on sexual orientation and gender identity for the first time at the federal level. His Justice Department successfully advocated for a constitutional right to same-sex marriage at the Supreme Court. And it sued North Carolina for the landmark anti-LGBT statute, House Bill 2. By contrast, Sessions opposed the Shepard-Byrd Act when he was in the Senate. He voted for a constitutional amendment to ban same-sex marriage. And after becoming Attorney General, he quickly withdrew the Division’s lawsuit against North Carolina, even though the state continued to discriminate against LGBT people. Given those facts, it is deeply troubling that protecting LGBT rights does not appear on the Division’s priority list.

*  *  *

There are good things in the Civil Rights Division’s list of priorities—human trafficking, hate crimes, and the rights of military servicemembers—but even some of these are complicated by the administration’s divisive policies and politics.  For example, it cannot be ignored that the president’s racially inflammatory campaign rhetoric and his government’s offensive against immigrants and Muslims at the border and around the country have contributed to the rise in hate-motivated violence.

As a whole, this budget foretells a radical remaking of the Civil Rights Division. According to new reporting, the administration also plans to shutter or shrink civil rights offices in other federal agencies, which work hand-in-hand with the Division. Doubtless, career staff will continue to work cases, doing their best to pursue the Division’s mission. But priorities are set from above. Based on this budget, the Trump administration’s priorities are out of step with America’s core values, and they threaten to abandon the populations who need federal protection the most.

Follow Chiraag on Twitter: @chiraagbains

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