Both Sides with Jesse Jackson

Civil Rights Division of DOJ: What Is Its Role?

Aired December 21, 1997 - 5:30 p.m. ET


When a church is burned in a hate crime, a citizen is beaten by violent police officers or illegal aliens are abused, that's when the civil rights division of the Department of Justice goes into action. The division has the responsibility for a large number of civil rights laws designed to protect the American people. But in recent years, much of the debate about the civil rights division has centered on affirmative action.

Some say that debate has hurt the workings of the division and created a political climate that's hampered its effectiveness. We're talking about the civil rights division, about what it does and what it's supposed to do.

With me is former assistant attorney general for civil rights, William Bradford Reynolds, a Reagan appointee; James Turner, a career deputy who also served as acting assistant attorney general, the same designation chosen for Bill Lann Lee; and Georgetown Law Professor Emma Jordan, who has written widely on civil rights. We'll talk.

First, this background from Lee Thornton.


LEE THORNTON, CNN CORRESPONDENT (voice-over): After weeks of contentious debate, the president put Bill Lann Lee in place as acting assistant attorney general for civil rights.

PRESIDENT WILLIAM J. CLINTON: This is an honorable decision which gives the Senate a chance to consider Mr. Lee again, something which I believe would not have happened if I had done it in another way.

THORNTON: Lee becomes the 13th person to hold the office, which was created by the Civil Rights Act of 1957. The civil rights division helped enforce the nation's laws during the turbulence of the Kennedy years. The Civil Rights Act of 1964 gave it new powers to outlaw discrimination in public accommodations. Its mandate was again expanded by the Voting Rights Act and the Fair Housing Act.

During the Reagan years under the leadership of William Bradford Reynolds, the division was accused of seeking to reopen school desegregation cases and attempting to block affirmative action programs. Some critics say it attempted to turn back the clock.

The affirmative action issue took on renewed importance in 1993, when President Clinton withdrew his nomination of Lani Guinier for

leadership of the civil rights division after criticism that labeled her a quota queen.

While the White House regrouped from the Guinier fallout, the division was under the command of an acting assistant attorney general. Deval Patrick was appointed leader of the division in 1994. He passed his confirmation hearings, but did not escape criticism for his stand on affirmative action.

In his role as acting assistant attorney general, Bill Lann Lee will have full authority on civil rights matters.

BILL LANN LEE, ACTING ASSISTANT ATTORNEY GENERAL ON CIVIL RIGHTS: With God's help, I pledge to enforce without fear or favor our nation's civil rights laws on behalf of all of the American people.

THORNTON: Which is why the division of civil rights was created. The question is, how much will Lee be able to do under the shadow of congressional oversight and congressional criticism?

For BOTH SIDES, I'm Lee Thornton.


JACKSON: Mr. Turner, you served in that position that Bill Lann Lee has now more or less for 30 years, almost as long as the division is old. Why is there so much focus on affirmative action at the expense of the department's wide range of agenda items?

JAMES TURNER, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL: Well, affirmative action became a big issue during the Reagan administration when Mr. Reynolds was designated to be acting assistant, designated to be assistant attorney general. The policy was to try to stomp out all use of numerical goals or quotas or race specific relief across the board, and that began the battle that is still going on about affirmative action. And I think it has hurt the division.

JACKSON: But you know what happened in '57, this division was formed out of the Little Rock crisis with Dwight Eisenhower. And when the idea was put forth, even he had to appoint an attorney general for civil rights in the recess. So even then it was a political hotbed at the very beginning.

TURNER: Well, it was controversial then, but the way its mission was shaped is very interesting because to begin with it was just given the responsibility of enforcing the civil rights laws. It turned out to be on voting rights, for example, that that could not be done on an individual basis, case by case, individuals. Congress wound up passing a very strict voting rights act to get it in and to reform the system, to have systematic relief.

The same thing with school desegregation. You couldn't do it by giving people the free choice of which school to go to.

JACKSON: So the power of the position actually expanded?

TURNER: Yes, it did, and it evolved into a mission which is to reshape American institutions that have been warped for generations by racism and discrimination.

JACKSON: Brad, see the point I'm trying to get to. In late weeks the focus has been on the civil rights division vis-a-vis affirmative action. Most people don't realize that it's about voting rights. It's about open housing. It's about having the handicapped having access to the Empire State Building. There's a wide range of matters here and just one piece of it is affirmative action. What can be done to restore in some sense its meaning for the American people?

WILLIAM BRADFORD REYNOLDS, FORMER ASSISTANT ATTORNEY GENERAL: Well, I think it's meaning has not been lost. I think that the focus on affirmative action is something that at this particular time preoccupies a lot of discussion. But as you say, earlier there was the whole issue of remedying school discrimination. There's the Voting Rights Act. All of those have had their own agendas and their own dialogue and their own discussion points and have been a focus.

The civil rights division is designed to protect individual rights against acts of discrimination. Where we've gotten into any kind of political controversy or a lot of public discussion has been when the effort has been to transform that mission to a protection of group rights and not individual rights.


REYNOLDS: And that's where affirmative action has really taken...

JORDAN: You know, that's a point that's contestable.

REYNOLDS: ...The front and center stage.

JACKSON: Professor Jordan?

JORDAN: Yeah, I think that's a contestable point. It is -- it's a point which is very widely contested. One of the things we have to recognize is that what our society was like before the civil rights division was created in 1957. If you think about it, we have a history in this country -- 4,734 black men and women were lynched, and during that time not one anti-lynching bill succeeding in passing Congress.

There was no place to go to seek enforcement in the federal government against states that were aiding and assisting in a very violent process. And so one of the things that I want to add to the discussion about group rights is that the injury is a group injury, and if you think about the history of our country and the way in which the need for the civil rights division arose, it didn't arise because one individual had their right impaired. It was because groups were targeted.

JACKSON: Brad, you know, in the 1960s, you know, Robert Kennedy's monitoring of the voting process, which showed these race group discrepancies, laid the groundwork for the 1965 Voting Rights Act. Do you object to that use of the civil rights division?

REYNOLDS: No, I don't object to the civil rights division -- any use of the civil rights division. I think that you have to identify where the discrimination is, and many times you can identify it by looking at that kind of a situation where you have systemic discriminatory behavior against large numbers of people. The problem that I think we get into is when you talk about how you remedy the wrong.

You have a lot of groups in this country. That's what makes this country great. And a lot of them are minorities versus non- minorities. You cannot use the civil rights laws to prefer one group over another group.

JORDAN: When you have a constitutional amendment...

REYNOLDS: You have to be sure you use it...

JORDAN: ...That designates the protection of African-Americans freeing them from slavery and creating protection for voting rights for African-Americans, and I think we have to remember that history. Right now, we're in the middle of a very big media release for a picture called "Amistad," and that picture calls up the history of slavery. So when you say there are all these groups and they're all the same, you're forgetting that we had a civil war about slavery.

We have three amendments to our Constitution that arose from slavery and the post-slavery statutes. Civil rights statutes stand today as an important aspiration for this country in the enforcement of the rights of African-Americans. So I think that this is revisionist history. It's a way of diminishing our historical connection as individuals to, well, there are two moves, two strategies. One is to say that each African-American is an individual, and if you've individually suffered a remedy -- harm, you're entitled individually to a remedy.

REYNOLDS: And nobody disagrees with that.

JORDAN: And the group...

JACKSON: We have to take a break, but that's compounded now by the gender and race factors. We'll be right back and keep this discussion going in just a moment.


JACKSON: Welcome back.

The subject is the civil rights division of the Department of Justice. Some say that it's been used and abused by politicians on both sides. Brad Reynolds, the point it seemed that Dr. Jordan was making was Rosa Parks being arrested was an individual case representing a race of people violated by law who needed support from the department of civil rights.

REYNOLDS: Well, we needed changes in the law. That we did need. And we got them. And the changes in the law were that we cannot treat

anybody or any group of people in a disadvantageous way that's discriminatory. And what the law said is that African-Americans and all other Americans are entitled to equal rights and equal protection. And what we have to do in the civil rights division, and what it has to continue to do, is to enforce those laws to ensure that every single individual in this country gets the kind of equal protection that every other individual has.

TURNER: But, Brad, that's the point I was making before. You can't concentrate on individuals. You have to look at the institution that has been corrupted -- the school system, the voting system, the housing system -- and you have to correct the systemic scars from the history of racism...

REYNOLDS: And I don't disagree with that.

TURNER: And that is what the civil rights division's mission came to be.

REYNOLDS: I don't disagree with that. But in correcting it, you can't trip over the same kind of a tightrope that we were trying to get away from. You cannot allow yourself by correcting these systemic problems to use discrimination in order to cure discrimination.

TURNER: But you always wanted to go back and look for individual victims...

REYNOLDS: Absolutely.

TURNER: ...And never look at the whole picture, and that was the mistake that I think you made.

REYNOLDS: But the whole...

JORDAN: Individual victims of specific acts of racial discrimination, and many of those people have died, and it's their children and grandchildren and great grandchildren who are suffering the injury.

REYNOLDS: Absolutely. But the whole picture...

JORDAN: And the question is what to do for them. Nothing, I suppose, under this theory.

REYNOLDS: Well, I think the whole picture requires that you not be out there using the evil of discrimination in trying to correct discrimination, and that's the thing that everybody has to be aware of when you're enforcing civil rights.

JACKSON: Brad, has the department ever done that, used discrimination to correct it?

REYNOLDS: Oh, I think that it has.

JACKSON: For example?

REYNOLDS: And, well, I think the affirmative action dialogue that we've had and debated has centered on that very definitely. And Justice Blackmun said in the Supreme Court that maybe we do have to use discrimination to cure discrimination. He couldn't get any of his other colleagues to agree with him.

JACKSON: Well, sometimes you have to use good blood to get out bad blood in a blood transfusion.

JORDAN: That isn't actually what Justice Blackmun said.

JACKSON: Does that make it, you know, that it's a bad use of blood?

JORDAN: But that's not what Justice Blackmun...

REYNOLDS: But what you cannot do, you cannot take the evil that we're trying to rid this country of and use that as a tool to try to fight discrimination.

JACKSON: Is that a danger, Dr. Jordan?

REYNOLDS: You cannot do that.

JORDAN: Well, no. I don't think it's a danger, and Justice Blackmun's point was that there are times when one has to use race in order to get beyond race. He didn't use the word discrimination, and that's an important difference. One of the things that I like about this country -- I don't have a choice, I was born here -- but one of the things I love about it is the debate which we are having and we will continue to have about these fundamental issues.

REYNOLDS: I agree with that. I think that's right.

JORDAN: That we can bring these things to the fore. Now the interesting thing for me about Bill Lann Lee's plight is that his plight is caused by those people who disagree with a president who's been elected twice and whose views on affirmative action are clear. And so it's as though the Republican majority in the Senate is now using this as an occasion to have two votes on the question of affirmative action.

REYNOLDS: But that's the...

JORDAN: They didn't win the presidency, they don't have the power of appointment...

TURNER: Right.

JORDAN: This president does. They have the power to be consulted and to confirm.


REYNOLDS: Well, but that's the political process. I mean, the fact is there is a check on presidential appointments at the Senate level. It's advise and consent. They do have the ability and they do

have the opportunity to for whatever reasons -- good, bad or indifferent -- voice their up or down approval or disapproval on a nomination. And in the event that they say they don't approve, the president then has to take whatever course he thinks is appropriate; either a new nominee, or in this case allowing the attorney general to appoint Bill Lann Lee and not...

TURNER: Well, I hate to tell you, but not everybody agrees that the Senate has that kind of authority.

REYNOLDS: But the Constitution, I think, gives them that authority, and they have actually started to challenge...


TURNER: Well, I want to read you what your pal Bruce Fein (ph) said about this. He said that denying Senate confirmation of a president's nominee that is provoked by a disagreement over policy is a flagrant circumvention of the court decisions and the political customs.

REYNOLDS: Well, that's what's great about this country. We can have debate on these issues and dialogue and there are differences


TURNER: I think Bruce is dead right, and you're dead wrong on that.

JACKSON: But it seems that you guys are (OFF-MIKE). But here's a guy, Bill Lann Lee, who has the academic credentials. He has, if you will, the family values, no flaw in character. He has the experience. And yet he's been rejected not because of lack of merit or qualifications, but because he agrees with the man who appointed him. That doesn't pass the smell test.

REYNOLDS: Well, I think there's a reason here that's a little different. What the Senate has said in Bill Lann Lee's case is that he has basically put a marker down very emphatically as to what he feels the law ought to be and how it ought to go and what the decisions ought to be in that area.

JACKSON: But that's not what he said. I mean, the Senate did not say -- as a matter of fact, he could not get to the Senate; he was stopped by...

REYNOLDS: No, but he said that in hearings.

JACKSON: ...Orrin Hatch.

REYNOLDS: He said that in hearings before the committee. And what the committee's judgment was that if this is a nominee who has indicated that he is not going to enforce the laws in the civil rights division in the same kind of an energetic way as they feel they ought to be enforced, then he probably should not be asked to take the post up.

JACKSON: Let me ask you a question. You served in that role, the head of the division, and you, Turner. Can an assistant attorney general for civil rights operate outside of the attorney general?

JORDAN: Well, that...

JACKSON: No, could you do that? Could you operate outside of John Mitchell?

REYNOLDS: No, I don't -- I think that he would have to answer to the attorney general certainly.

JACKSON: Could you operate outside of the attorney general?

TURNER: Absolutely not.

JACKSON: So then what is the point?

JORDAN: Well, you know, I can give you some proof...

REYNOLDS: The point, again, is that the Senate, I think, has the ability to make the judgments it wants to make on a nominee, as to how he will or will not actively and energetically enforce the law.

JACKSON: I meant Ed Meese, not John Mitchell. But my point is, can an A.G. for civil rights operate outside of the attorney general?

JORDAN: They can't, but you have to...


JACKSON: The attorney general and the president.

JORDAN: Jesse, you have to realize that this problem that Bill Lee has encountered is in the category of little "p" for politics. There's big "P," the political process that we talk about in constitutional terms, and then there's little "p," which is the back corridor politics where the partisan, the bipartisan coalition that has supported the civil rights division. Frankly, it was Eisenhower that created the division.

The bipartisan process breaks down when we get close to an election season and the party who's out of the White House wants to lay down a marker about an issue. And there are two primary vehicles for doing that -- the budget and the confirmation process.

TURNER: I think that's right.

JORDAN: And both of those processes have been used against the civil rights division.

REYNOLDS: By both sides.

JORDAN: The Heritage Foundation recommended that the budget of the civil rights division be cut by 50 percent.

JACKSON: We're going to get out and cut this debate by 50 percent.

JORDAN: I'll bet.

JACKSON: I'll be right back with a final segment with this panel in just a moment. We'll be right back.


JACKSON: Now for a final thought from this panel. What will guide the civil rights division for the rest of the Clinton years? Will it be politics? Will the work of the division really get done?

What do you think, Jim Turner?

TURNER: I'm very optimistic that there will be less political interference, principally because Bill Lann Lee is a square shooter. He meant it when he said he would follow the law and he is dedicated to the basic mission of the civil rights division.

JACKSON: Dr. Jordan?

JORDAN: Well, I'm concerned. Senator Hatch has warned Bill Lann Lee that he will be the most closely scrutinized bureaucrat in history, and in my mind that's a threat and a promise that his efforts to enforce the law will be subject to scrutiny and his political leadership will be thwarted by calling him up for a series of nit- picking hearings.


REYNOLDS: I think it's going to be basically politics, but I think it's going to be politics because the attorney general is so embroiled in politics that very little else is going on over there in the Justice Department that isn't politically driven. The White House has decided that it's going to intrude into civil rights matters in a very major way, and that says to me if you don't have a person there except in the acting capacity that politics is basically going to control the agenda.

JACKSON: Thanks to all of you for being part of an important discussion. I'll be right back with a follow-up to a recent program. Stay with us.


JACKSON: Now a follow-up to one of our recent programs. For more than six months now, President Clinton's blue ribbon commission on racial issues has been holding meetings around the country. This show focused on the town meeting Mr. Clinton himself conducted in Akron, Ohio. The process goes on. The most recent meeting was in Fairfax County, Virginia.

Here's some of what happened.


FAIRFAX COUNTY RESIDENT: We don't want to be a minority in our own homeland. Why is that you people just assume that millions of white people want to be a minority in our country?


Boo, oh, right, boo. This is a monologue -- monologue -- nothing to do with a dialogue. We are white people, and we do not accept to be a minority in our own homeland. And why is it that you say 90 percent of students are white. Where have the whites gone?

FAIRFAX COUNTY RESIDENT #2: He does not represent white parents in this community. We applaud what's going on in this school. Please do not make this the focus of your reports tonight.


JACKSON: Well, of course, the local media did make it the focus of their reports. So did the national media as well. The fact is that citizen had a right to speak. That's our system. Coming to racial understanding in this country will not be easy. It never has been. What's important is that the process remain open, that it goes on.

All of us here at BOTH SIDES wish you and yours a happy and peaceful holiday season. We'll see you again here next week. Keep hope alive.


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