[Senate Hearing 107-922]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-922
 
      OVERSIGHT OF THE DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION
=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 21, 2002

                               __________

                          Serial No. J-107-81

                               __________

         Printed for the use of the Committee on the Judiciary












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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware       STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin              CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin       JON KYL, Arizona
CHARLES E. SCHUMER, New York         MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington           SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina         MITCH McCONNELL, Kentucky
       Bruce A. Cohen, Majority Chief Counsel and Staff Director
                  Sharon Prost, Minority Chief Counsel
                Makan Delrahim, Minority Staff Director














                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, 
  prepared statement.............................................    85
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................    88
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
    prepared statement...........................................    95
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    97
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....    10

                                WITNESS

Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights 
  Division, Department of Justice, Washington, D.C...............     3

                         QUESTIONS AND ANSWERS

Response of Mr. Boyd to a question submitted by Senator Sessions.    33
Responses of Mr. Boyd to questions submitted by Senator Leahy....    36
Responses of Mr. Boyd to questions submitted by Senator Kennedy..    37
Response of Mr. Boyd to a question submitted by Senator Durbin...    56
Responses of Mr. Boyd to questions submitted by Senator Edwards..    57
Responses of Mr. Boyd to questions submitted by Senator Hatch....    59

                       SUBMISSIONS FOR THE RECORD

Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights 
  Division, Department of Justice, Washington, D.C., prepared 
  statement......................................................    61
Chattanooga Times, John Leo, March 1, 1999, article..............    82
Wall Street Journal, Roger Clegg, December 14, 1998, article.....    99

















      OVERSIGHT OF THE DEPARTMENT OF JUSTICE-CIVIL RIGHTS DIVISION

                              ----------                              


                         TUESDAY, MAY 21, 2002

                               U.S. Senate,
                        Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy presiding.
    Present: Senators Kennedy, Feingold, Schumer, Durbin, 
Edwards, Kyl, and Sessions.

             STATEMENT OF HON. EDWARD M. KENNEDY, 
         A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS

    Senator Kennedy. We will come to order. We are just winding 
up a vote, Mr. Boyd, on the floor, so the other Members will be 
coming in and out.
    I apologize to you for the delay.
    It is a privilege to welcome Assistant Attorney General 
Ralph Boyd to the Senate Judiciary Committee. Today's hearing 
is part of the Committee's important responsibility for 
conducting oversight of the Civil Rights Division of the 
Justice Department.
    Since the Division was established 45 years ago, it has 
been at the forefront of our Nation's continuing struggle to 
guarantee equal justice for all Americans. Last year, in an 
address to the Convention on the Elimination of Racial 
Discrimination, Assistant Attorney General Boyd eloquently 
discussed the significant progress made over the last half-
century toward ending discrimination and fulfilling the promise 
of equality. That progress came largely from a genuine and 
sustained commitment by the Division and its leadership to 
vigorously enforce the Nation's civil rights laws, including 
the Civil Rights Act of 1964, the Voting Rights Act of 1965, 
the Fair Housing Act, the Americans with Disabilities Act, and 
the Civil Rights Act of 1991.
    We are proud of the progress we have made, but civil rights 
is still the unfinished business of the Nation. In recent 
months, many of us have become increasingly concerned about 
whether the Civil Rights Division is living up to its important 
mission and whether its rhetoric can be reconciled with the 
realities of the record on enforcement.
    In the past year, the Division has changed its substantive 
position on at least two significant employment discrimination 
cases, adversely affecting the interests of hundreds of women, 
African Americans, Hispanics, and Asians. In both cases, the 
Division's actions raise serious doubts about the strength of 
its commitment to end all forms of discriminatory employment 
practices. Equally troubling, at a time when referrals from the 
Equal Employment Opportunity Commission continue to rise, the 
Division has drastically cut back on filing new cases in this 
area. In the last 16 months, the Division has filed only two 
new Title VII Cases, compared to an average of 14 cases a year 
since 1980.
    On another important civil rights issue, hate crimes, the 
Division has been reluctant to fully engage in the fight 
against these senseless acts of violence. Attorney General 
Ashcroft recently compared the fight against hate crimes to the 
fight against terrorism, describing hate crimes as criminal 
acts that run counter to what is best in America, our belief in 
equality and freedom. Yet, the Civil Rights Division has 
remained deafeningly silent on the bipartisan hate crimes bill 
in Congress that would provide it with greater tools to combat 
these senseless acts of violence.
    As a matter of fact, we are trying to bring that 
legislation up on the floor of the U.S. Senate and the majority 
leader requested that we be able to at least proceed to it. 
There has been an objection filed. Soon we are going to have to 
vote on cloture on hate crimes, if not at the end of this week, 
the vote will take place right after the Memorial Day recess. 
It is enormously important legislation which has passed with 
bipartisan support, 56 to 44, a year ago and passed the Senate 
actually unanimously before that time.
    Its position on hate crimes is in stark contrast to the 
Department's vigorous call for the new and expanded enforcement 
authority to fight terrorism after September 11.
    These concerns are heightened by recent personnel moves and 
changes in longstanding hiring practices in the Division, 
changes that bear a disturbing resemblance to those called for 
in a recent National Review article, and that article states, 
and I quote: ``Republicans should work to gain more control 
over the Civil Rights Division and its renegade lawyers. The 
forces of opposition have burrowed in and they are willing to 
wait out any GOP regime. Yet a few obvious steps would begin to 
address fundamental problems. Instead of putting a single 
section chief on what Boyd calls a temporary task force, the 
administration should permanently replace those it believes it 
cannot trust. Four or five new section chiefs would do a world 
of good. At the same time, Republican political appointees 
should seize control of the hiring process. They do not need to 
make sure that every new lawyer is a member of the Federalist 
Society. Simply hiring competent professionals who do not come 
from left-wing organizations would be an enormous 
improvement.'' I can only hope that the Civil Rights Division 
is not and will not make policy and personnel decisions based 
upon the wishes or recommendations of the National Review. 
Fulfilling the promise of equal justice is too important a goal 
and too difficult a challenge to allow ideological 
considerations to influence the importance of the Nation's 
civil rights laws.
    The Committee looks forward to Assistant Attorney General 
Boyd's testimony today. We will continue to conduct regular 
oversight hearings on the Civil Rights Division in the future 
and I look forward to asking questions on a number of important 
issues.
    Mr. Boyd, we welcome you if you want to proceed.
    [The prepared statement of Senator Kennedy appears as a 
submissions for the record.]

 STATEMENT OF RALPH F. BOYD, JR., ASSISTANT ATTORNEY GENERAL, 
                     DEPARTMENT OF JUSTICE

    Mr. Boyd. Thank you, Senator. Senator, if I may, I would 
like to make a brief opening statement, if I might.
    Senator Kennedy. All right, please.
    Mr. Boyd. Thank you, Senator Kennedy and Members of the 
Committee. I would like to thank the Committee for inviting me 
here today to discuss the important work of the Civil Rights 
Division of the Department of Justice. I appreciate this 
opportunity to let you know what the Division has accomplished, 
answer your questions about our work, and listen to your 
concerns about what I believe has been our thoughtful and 
vigorous enforcement of our Nation's civil rights laws. I also 
want to thank your respective staffs, that is the staffs of 
many of the Members of this Committee, for the courtesies that 
they have extended in meetings with me prior to this hearing.
    Let me begin by saying that it is, indeed, a unique 
privilege to serve as the Assistant Attorney General for Civil 
Rights. The laws enforced by the Civil Rights Division reflect 
some of America's highest aspirations, that is, to become a 
society that provides for equal justice under law, a society 
that effectively protects the most vulnerable among us, and a 
society whose citizens not only protect their own individual 
freedom and liberty, but also champion the individual freedom 
and liberty of others who may be different from them.
    As William Jennings Bryan once said: ``Anglo-Saxon 
civilization has taught the individual to protect his own 
rights. American civilization will teach him to respect the 
rights of others.'' And while the continuing need to enforce 
our civil rights laws confirms that we have not yet achieved a 
society free of prejudice and the discrimination it brings, 
there is no doubt in my mind that America is better off for 
making the journey, and I am, therefore, honored and humbled to 
be charged with the heavy responsibility of enforcing our 
Nation's civil rights laws at the Department of Justice.
    Senator when I agreed to serve as Assistant Attorney 
General and the Senate saw fit to confirm the President's 
confidence in me, I came to the job as a former prosecutor and 
a professional litigator by training and experience and it is 
from that perspective that I report to you on the work and the 
accomplishments of the Civil Rights Division.
    Let me first speak generally and say that the work of the 
Division goes forward carefully, but aggressively. I recall 
during the confirmation process that many Senators sought 
assurances that I would continue to enforce certain statutes. I 
told you then that I was committed to vigorous enforcement of 
the law and I can confirm today that the Division is doing 
precisely that.
    But I can also commit to something else, and that is not 
only are we aggressively using the tools at our disposal, but 
we are doing so with the professionalism and the care that 
Americans expect from their Federal law enforcement officials. 
As I am sure will become clear in this hearing today, there 
will no doubt be individual issues, individual cases about 
which the distinguished Members of this Committee will have 
questions or concerns and I look forward to addressing those 
questions and concerns.
    At the outset, however, let me say that, reviewed as a 
whole, the Division's commitment, my commitment to protecting 
the civil rights of all Americans is clear. Looking at our 
enforcement record in its entirety, I believe it is inarguable 
that the Civil Rights Division has been aggressive, productive, 
and fair in its civil rights enforcement efforts to date.
    For example, last month, Attorney General Ashcroft presided 
over the signing ceremony for an unprecedented agreement 
between the Department of Justice and the city of Cincinnati 
that will effect major reform in the Cincinnati Police 
Department. A year ago, the city of Cincinnati, Ohio, was 
literally and figuratively smoldering in the wake of riots 
touched off by controversial police shootings of young African 
American men. One year later, after thorough investigation by 
the Civil Rights Division, led by the Special Litigation 
Section, and after intense negotiations, there is a positive 
outlook in Cincinnati. There is a framework for the healing 
that city thoroughly needs, a framework resulting from the 
coming together and the working together of many parties with 
differing views, parties like the ACLU, the Black United Front, 
and the Fraternal Order of Police, and Cincinnati is not an 
isolated case.
    Since 1994, when Congress passed the statute that we use to 
investigate patterns of police misconduct, there have been 
seven settlements between the Department and various police 
departments allowing for real reform in those departments. Four 
of these settlements were accomplished in the 6 years between 
1994 and January 20, 2001. Three were accomplished in the year 
and 4 months between that date and today.
    Other areas of enforcement tell a similar story. We enforce 
the Civil Rights of Institutionalized Persons Act, the primary 
Federal law protecting those who are among society's most 
vulnerable, the elderly, the mentally ill, inmates, children, 
and others who reside in State-run institutions, and under this 
administration, the Civil Rights Division has authorized new 
investigations of 24 separate facilities under CRIPA. I have 
personally authorized 18 of those investigations since last 
July. By way of comparison, the Division initiated 
investigations of 15 facilities in fiscal years 1999 and 2000 
combined.
    I am also gratified to report that my Division's efforts to 
combat backlash crimes against Arab, Muslim, Sikh, South Asian, 
and other Americans who may appear to be of Middle Eastern 
origin since the attacks on our country on September 11 have 
proceeded aggressively. As I have said in the past, our Federal 
civil rights laws are meaningless unless those they are 
designed to protect first the fundamental right to physical 
safety.
    The Civil Rights Division, working with the 56 FBI field 
offices and 94 U.S. Attorney Offices and State and local 
authorities across America has investigated approximately 350 
incidents since September 11, ranging from the attempted 
firebombing of a mosque to outright murder. Through ongoing 
cooperation among Federal and State and local authorities, 80 
criminal prosecutions have been initiated and they are bearing 
fruit.
    For example, 2 weeks ago, a defendant in Federal court in 
Seattle pled guilty to a case we indicted in the days following 
September 11. He stood accused of setting fires to cars at a 
mosque and attempting to shoot worshippers when they exited the 
building. These prosecution efforts have proceeded in tandem 
with our outreach efforts to communities and individuals 
affected by these backlash crimes. Since September 13, I have 
spoken out repeatedly, indeed, between 20 and 30 times in 
closed door sessions and in town hall meetings across America 
against violence and threats aimed against vulnerable people 
and affected communities.
    I could tell you, Senator Kennedy and Senator Feingold, 
about many other achievements, most of which are further 
detailed in the written testimony I have submitted for the 
record today. I could describe our continuing prosecution and 
our stepped-up prosecution of human trafficking cases or our 
continuing efforts to protect minority voting rights by 
scrutinizing, free of politics or other improper influence, 
almost 7,000 pre-clearance submissions under the Voting Rights 
Act since February of 2001, submissions containing over 21,000 
voting changes for the Civil Rights Division to review. I am 
proud to say that the hardworking Section V staff has never 
missed a deadline in this endeavor.
    I could also talk at length about the $500 million 
settlement we reached with the State of Mississippi to end 
segregation in its institutions of higher learning or the $300 
million settlement we achieved with the city of Yonkers, New 
York, to close the education and achievement gap between 
minority and white students in that town.
    I could also talk about the sexual harassment cases we have 
initiated in our Employment Section, targeting a county fire 
department or a school district in the American Southwest, or 
the red-lining cases we have approved in the Housing Section of 
the Civil Rights Division. There is also our role in the 
President's New Freedom Initiative focusing on protecting the 
rights of the disabled.
    Senator Kennedy, Senator Feingold, I have been litigating 
cases for the better part of two decades, both as a prosecutor 
serving the American people and the citizens of the 
Commonwealth of Massachusetts, where I come from, and as a 
private lawyer. As a result, I have a sound basis, I think, 
from which to say that both the quality and the quantity of 
civil rights enforcement work coming out of the Civil Rights 
Division during the 9 months I have had the privilege of 
leading that division is exceptional by any fair and reasonable 
measure.
    But as you referred to in your opening remarks, Senator 
Kennedy, we can do more, we need to do more, and I am committed 
to doing more. I hope that today's hearing will help us do 
that. I hope that today's hearing will help in that effort.
    So with that in mind, I look forward to your questions and 
your concerns and I, again, thank you for giving me the 
opportunity in a public forum to talk about these very 
important issues.
    Senator Kennedy. Thank you very much. We will include your 
entire statement in the record.
    Mr. Boyd. Thank you, Senator.
    Senator Kennedy. Thank you very much.
    [The prepared statement of Mr. Boyd appears as a submission 
for the record.]
    Senator Kennedy. If we could, I would like to draw your 
attention to the Brennan case, a rather notorious case 
involving discrimination in New York City. We have been joined 
by Senator Feingold and Senator Kyl. I ask if we might have 15-
minute rounds to give us an opportunity to get into some 
detail. Then if we are joined by others, we can shorten that 
time so everyone gets a chance to speak.
    Let me quote from the brief that the Civil Rights Division 
of the Justice Department filed in the Second Circuit in the 
Brennan case, a very important case in terms of discrimination: 
``The retroactive seniority provision is constitutional because 
it is narrowly tailored to serve the city's compelling 
government interest in remedying the adverse effects caused by 
its civil service examination and recruitment practice.'' Does 
the Department still hold the view that all of the relief that 
has been granted in the Brennan case, including the retroactive 
seniority provision, is constitutional?
    Mr. Boyd. The answer to that, Senator Kennedy, is that we 
certainly do with respect to 27 of the beneficiaries of the 
settlement agreement entered into between the Department of 
Justice and the Board of Education of the city of New York, 
which the Second Circuit has vacated but is continuing to be 
litigated vigorously by the United States through the Civil 
Rights Division, and let me explain the position fully, if I 
may, Senator.
    The Brennan case that you refer to is a case where the 
Board of Education of the city of New York used a screening 
test for applicants for permanent positions as custodial 
engineers in the New York City school system and that screening 
test had a disparate impact on minority applicants. That is to 
say, they did not do well under the terms of that screening 
test to the point at which the permanent hiring numbers were 
woefully deficient for the school board in those positions.
    The Civil Rights Division brought a civil suit against the 
city of New York and the New York Board of Education under 
Title VII, the disparate impact provisions of Title VII, 
arguing that that screening examination was not sufficiently 
job-related nor was it consistent with business necessity. The 
Civil Rights Division and the Department of Justice entered 
into a settlement agreement with the city of New York, an 
agreement that provided retroactive seniority for almost 60 
individuals who were given permanent employment status and 
retroactive seniority under the terms of that settlement 
agreement.
    That settlement agreement was appealed by intervenors. That 
settlement agreement was vacated by the Second Circuit, which 
remanded the case to the District Court to allow the 
intervenors, who alleged that they had been harmed by the 
retroactive seniority given to the beneficiaries under the 
settlement agreement, to fully conduct discovery with respect 
to their claims and litigate their claims.
    Since that time, we have vigorously defended the relief in 
that case with respect to the 27 beneficiaries who actually 
took the examination and failed the examination and, therefore, 
were harmed by what we alleged were the discriminatory 
practices that the school board engaged in.
    Senator Kennedy. If I can, in your brief before the Second 
you intervened on behalf of all of the figures----
    Mr. Boyd. We brought the suit originally----
    Senator Kennedy. I have the brief right here. I can read it 
to you. It was on behalf of all those covered in the initial 
settlement.
    Mr. Boyd. The brief was on behalf of----
    Senator Kennedy. That has changed now. You changed your 
position with regards to the brief which covered all of those 
and now you are saying that you are only covering a part of 
them.
    Mr. Boyd. What we have said, Senator, is that we are 
aggressively defending the settlement agreement with respect to 
the 27 individuals who actually took the exam and were harmed. 
With respect to the remaining 32, what we have told the court 
is because they did not take the examination and were not 
harmed, therefore, by the examination, that there has to be 
some other theory of entitlement in that at present, there is 
not a sufficient factual predicate in the record to demonstrate 
that they were actually harmed, and, therefore, there is not 
yet a sufficient factual basis to support a Title VII remedy of 
retroactive seniority, nor does the factual record at present 
support the constitutionality of that remedy with respect to 
the 32 who were not the test-takers and not harmed by the test.
    But let me make very clear----
    Senator Kennedy. Five minutes are already up and I have 
asked one question, the answer to which we now know is that in 
the brief. You initially defended all, and now you draw a 
distinction. That is a change of position. You gave the reasons 
for that.
    Mr. Boyd. Senator, if I may, just 20 seconds----
    Senator Kennedy. All right.
    Mr. Boyd [continuing]. But to be very clear, we have not 
dropped the remaining 32 who did not take the test.
    Senator Kennedy. Who is defending them?
    Mr. Boyd. What we are doing and what we have said to the 
court is during the course of discovery in this case, we will 
work diligently and vigorously to try to develop a factual 
record that will demonstrate or would demonstrate that the 
remaining 32 were actually harmed and, therefore, entitled to 
relief. But what we have said is the record does not presently 
demonstrate that, so we cannot claim it. We have an 
obligation----
    Senator Kennedy. It did demonstrate that according to the 
Justice Department in its brief. We will let the record----
    Mr. Boyd. That is----
    Senator Kennedy. I want to move on, Mr. Boyd. I have asked 
one question and it has taken seven-and-a-half minutes and I 
would like to see if we can get to the facts on this. In the 
April 17 letter to the judge presiding over the case, the New 
York Corporation Counsel said, and I quote: ``The Department 
has abruptly refused to be bound by the settlement that it 
proposed, signed, moved this court to approve, and defended on 
appeal before the Second Circuit.'' I have the letter right 
here.
    It goes on to say that, ``Until 3 months ago, your office 
was coordinating a defense with the city and then abruptly cut 
off communication on the day the papers were due to be filed in 
court.'' Someone who is unknown to the corporation counsel 
contacted them and said the trial team was being removed from 
the case and you were no longer defending the relief granted to 
32 of the 59 beneficiaries. That is what you were just saying.
    I wonder, has the Department done anything to inform the 32 
beneficiaries that it no longer supports the relief that they 
have been granted?
    Mr. Boyd. Senator, we do not represent the 32.
    Senator Kennedy. Do you know who is representing them?
    Mr. Boyd. I do not, Senator. Let me tell you this, and I 
want to be very clear about it. It may seem like a fine 
distinction, but it is an important one. We are defending that 
settlement agreement that the Second Circuit has vacated. It 
has been vacated by the Second Circuit, but we continue to 
defend it consistent with our obligations under the law as well 
as our obligations under the rules of professional 
responsibility and ethics that all lawyers, especially 
government lawyers, are bound by.
    So what we are saying is, with respect to part of the 
relief to the 27 who took the test, we are flat out defending 
them. With respect to the 32 who the record does not currently 
demonstrate were harmed by any discriminatory practice, we are 
trying to develop that factual record so we can take the 
position that they are entitled to retroactive seniority. But 
the record does not yet reflect that. Now, a position----
    Senator Kennedy. Well, if I can, the Second Court did not 
vacate the joint defense agreement. It did not vacate that 
agreement. The Clinton Administration Justice Department found 
justification for coverage of all, which I have just 
illustrated here. The court did not vacate the joint agreement. 
You say that basically you have not changed the positions in 
the case. Then why did you remove the original trial team from 
the case, write a letter to the presiding judge telling him 
that a firewall has been erected to ensure that any information 
the city provided to the departmental attorneys previously 
assigned to these actions under any claim or privilege would 
not be compromised?
    There has only been one other instance of the Civil Rights 
Division implementing a firewall, and that was years ago. For 
what possible reason would the Justice Department effectively 
set these 32 individuals who are being protected by the 
previous administration adrift?
    Mr. Boyd. Senator----
    Chairman Kennedy [continuing]. I have the documents here, 
if I had the chance.
    Let me ask you a specific question. Have you or anyone on 
your staff at any time had any contact with the Center for 
Individual Rights about the Brennan case?
    Mr. Boyd. I do not recall that I have, Senator. I do not 
know the answer to that question. I can find that answer out 
and get back to you, but they are----
    Senator Kennedy. You would remember that----
    Mr. Boyd. My understanding----
    Senator Kennedy. You have got a superb memory. This is the 
other intervening group. You would know whether----
    Mr. Boyd. Senator, I----
    Senator Kennedy. OK. All right. Fair enough. Fair enough.
    Mr. Boyd. Let me at least answer the question, if I may, 
respectfully, Senator. I would assume that we have, since they 
are a litigating party, so it would be hard for me to imagine 
that we would not have had some conversation with other 
litigants in the case.
    But let me say something very quickly. I did not remove 
anyone from this case. The prior litigating team--the trial 
team in this case forwarded a request to the Office of 
Professional Responsibility within the Department of Justice to 
say that because the position that they had taken essentially 
with respect to the status of the 32 offerees who we are now 
saying there is not sufficient evidence in the record at this 
time to support relief with respect to them, but we are trying 
to develop that factual record, because of that modification in 
our position, and it clearly is a change in position. I have to 
look at the record as is presented to me and look at it in view 
of the facts and the law and make an independent, straight call 
on that, and we have taken a different position with respect to 
those 32 offerees and we expect and hope to be able to defend 
relief with respect to them.
    But the Office of Professional Responsibility, having been 
petitioned by the trial team, the prior trial team in this 
case, gave the judgment that there should be a firewall between 
that trial team and the new trial team and that is the reason 
that counsel was changed. I did not remove them. I had nothing 
whatsoever to do with that, Senator, and it was perfectly 
proper for them, that is, the prior trial team, to raise the 
issue with the Office of Professional Responsibility. We do 
that when difficult ethical issues and responsibilities are 
raised and we follow their judgment.
    Senator Kennedy. Well, it is puzzling that they would be 
dismissed, considereing the success they have had, but that is 
not where my question is. My question was the contact you had 
with the Center for Individual Rights about the Brennan case. I 
understand your answer is that you may have.
    Mr. Boyd. I suspect, Senator, that almost certainly we did. 
I just do not have firsthand knowledge of it, so I am not----
    Senator Kennedy. Will you provide for us when and where you 
had contact, and if the line attorneys on the case were aware 
or were involved?
    Mr. Boyd. I would be happy to, Senator, and again, I am not 
trying to be coy at all. It is just that I have not been 
involved in the day-to-day-litigation----
    Senator Kennedy. Fair enough.
    Mr. Boyd [continuing]. But the Center for Individual Rights 
is a litigant and I would imagine we would have talked to them.
    Senator Kennedy. OK, if you can get us that information. 
Before moving into another subject, the New York Corporation 
Counsel may have said it best: ``The change of administration 
in Washington does not entitle the Department of Justice to 
walk away from legal positions it espoused and the obligation 
it entered into under a previous administration.'' I know that 
you do not agree with that. That was not my conclusion, that 
was theirs.
    Let me go to the employment cases. I notice, according to 
the Employment Litigation Section's own website, which was last 
updated on May 6, the Division had only filed two complaints, 
Title VII cases, one on March 20, 2002, the other May 31, 2001. 
Yet, in your opening statement, you note that you have 
authorized eight new lawsuits that are in pre-suit 
negotiations. Can you tell us, when were the complaints were 
actually filed on the six new cases?
    Mr. Boyd. Not all of them have been filed, Senator. The way 
things work in several of our civil litigating sections, 
including the Employment Litigation Section, the Housing 
Section, is that lawsuits are authorized and then the trial 
teams engage in pre-filing negotiations. In most instances, 
what that results in is an agreed-upon consent agreement or 
settlement agreement that is entered at the same time the suit 
is filed. So a suit can be authorized and then there can be 
several months that transpire between the authorization to 
bring suit and the time the complaint is actually filed. I can 
give you examples of some of those cases.
    Senator Kennedy. As I understand from the website, there 
are only two filed complaints on Title VII. There is obviously 
an enormous number of increases. In your statement, you 
indicated: ``I have authorized the eight new lawsuits that are 
in pre-suit that were not reflected on this.'' Is there any 
reason, without getting into the numbers game, that you would 
have the few numbers that you have as compared as to the 
average for the last 6 or 8 years, of some 14 cases?
    Mr. Boyd. Senator, respectfully, I would take a different 
view of the numbers. I can only authorize suits. I do not 
control the timing of the filing of those lawsuits. I have been 
on duty for approximately 8 to 9 months and I have authorized 
the filing of eight new Title VII cases and I would say that 
that is consistent with the kind of numbers that were filed on 
an annual basis in the past.
    Moreover, as the Senator knows, we have been more than a 
little busy in the Civil Rights Division dealing with the 
aftermath of September 11, the 350 hate crime investigations in 
which we have been involved, the outreach efforts that we have 
mounted nationwide. I have, as I said, done between 20 and 30 
town meetings across America and even in Canada in the wake of 
September 11. So I actually think that the numbers of suits 
that I have authorized is not a departure from the past, but, 
in fact, consistent with the task, both in terms of quantity 
and quality.
    Senator Kennedy. Did you request any additional funding, if 
you are this hard pressed, to try and deal with these 
additional kinds of----
    Mr. Boyd. Senator, we supported the budget that the 
President submitted to Congress.
    Senator Kennedy. Seventeen minutes to the Senator from----
    Senator Kyl. Mr. Chairman, I got here late. I am going to 
have to leave in about 3 minutes, and therefore, I would like 
to just yield to Senator Sessions.
    Senator Kennedy. That is fine. I apologize.
    Senator Kyl. Thank you very much.

               STATEMENT OF HON. JEFF SESSIONS, 
            A U.S. SENATOR FROM THE STATE OF ALABAMA

    Senator Sessions. Mr. Chairman, thanks for calling this 
hearing. It is a very important subject, the oversight of the 
Civil Rights Division of the Department of Justice. The 13th, 
14th, and 15th Amendments to our Constitution changed the 
Constitution to provide for freedom, civil rights, and voting 
rights for all persons, regardless of race. Congress's 
enactment of Civil Rights and Voting Rights Acts extended those 
protections. The judiciary's courageous decisions in the 1950s, 
1960s, and 1970s played a crucial role in transforming those 
abstract guarantees into real changes that affected people's 
lives.
    Yet, it was enforcement by the Department of Justice and 
the lawyers from civil rights organizations that enabled the 
courts to act that protected our citizens that made civil 
rights a reality for poor minorities in the South and around 
the country. Indeed, we have countries all over the world that 
have remarkably wonderful provisions protecting civil rights, 
but have no civil rights at all.
    In America, discrimination on the basis of race, origin, 
religion, or gender has no legitimate place. Over the past 
several decades, the Civil Rights Division has played an 
important role in delivering on this promise by enforcing 
Congress's civil rights laws in housing, employment, and in the 
voting booth.
    The men and women who work at the Department of Justice are 
outstanding professionals who can be proud of the role they 
played over the years in enforcing civil rights. That said, the 
role of the Civil Rights Division is different from that of 
Congress, who makes laws, and the judiciary, who interprets the 
laws. To be effective, the civil rights laws must be enforced 
vigorously, but there must be a consideration of balance.
    Under the tenure of Bill Lann Lee and the Clinton 
Department of Justice, the Department, I believe, occasionally 
did lose that balance. Mr. Lee, by all accounts a very fine 
person, did take some steps that I considered out of the 
mainstream and not based on sound law.
    For example, in 1999, the Civil Rights Division brought its 
tremendous resources to bear against a high school in North 
Carolina in order to force that school to drop its Indian 
mascot. In 1998, the Civil Rights Division targeted the city of 
Torrence, California, for allegedly discriminating against 
minorities in a written test for police and firefighting jobs. 
The city said the tests were fair and widely used around the 
country. The Civil Rights Division persisted, sued, and a 
Federal judge found the suit so unfounded and frivolous that 
she ordered the government to cover Torrence's legal fees of 
approximately $2 million.
    Now, Mr. Boyd, you were talking with Senator Kennedy about 
having to have facts to back up the matters when you file a 
case in court, so I would suggest this decision in 1998 would 
indicate that the Clinton Department of Justice was not always 
right in its position. Do you feel a burden to make sure that 
when you sue a city or a business, that you have the facts and 
the law to justify it and that you are not, therefore, using 
the power or the authority or the august respect the Civil 
Rights Division has to in some way abuse that group?
    Mr. Boyd. Thank you for that question, Senator. I think it 
is an important question, and let me say this. I think what you 
said is true in every case, not just a case that we bring 
against a municipality or another sovereign. We have an 
obligation as Federal prosecutors, as government lawyers, to 
get it right and to do everything that we can to make sure that 
we put ourselves in as good a position as we can reasonably be 
in to get it right.
    We not only have as prosecutors in the Civil Rights 
Division of the Department of Justice great statutory 
authority, but we also have great moral authority. So when we 
say something, courts and the American people ought to be able 
to rely on that as an unvarnished plain statement of truth, as 
best we can discern it.
    So in every case, Senator, I insist on three things, 
regardless of the kind of case it is. The first is that every 
one of our legal claims be supported by well-settled legal 
principles. We are operating within a legal framework. We are 
law enforcers, so we should be seen not simply as just 
enforcing the law, but indeed following it ourselves and making 
sure that any claim that we bring is based on readily 
articulable legal principles. That is the first.
    The second is to say that there should be a good-faith 
factual basis supporting each and every one of those legal 
claims. That does not mean that we have trial level or trial 
quality evidence, but that means we have a good-faith factual 
basis for claiming what we claim and that also means, and I 
insist that it mean in each case that we bring or consider 
seriously bringing, that we have done everything that we can 
reasonably to find out as many facts as we can so that we can 
get it right.
    Now, that means different things for different litigating 
sections within the Civil Rights Division. Obviously, the 
criminal section has the opportunity to use a grand jury and 
compel witness testimony in the grand jury, so the criminal 
prosecutors have a better and more full opportunity to develop 
the facts. On the civil side, you do not have the grand jury, 
but we should still in civil cases do everything that we can 
reasonably do to make sure that we are getting the facts right 
and that we have a good-faith factual basis for everything we 
allege in a complaint.
    Finally, with respect to the relief side, each aspect of 
the relief that we seek should again be well-grounded in 
established legal principles and also have a sufficient factual 
predicate. Now, that determination, because the relief comes at 
the end of the case after a finding of liability, that does not 
so much have to occur at the front end, but it sure better 
occur before the relief is arrived at, especially when it is 
relief that we are asking the court to embrace in the context 
of a court-sanctioned settlement agreement or consent 
agreement.
    I insist or will insist on that in every case that we 
bring. I know some people have said there is a change in 
philosophy and ideology. That is not true. What there is a 
change in is the level of expectation and preparation that I 
expect with respect to everything we do as law enforcers. That 
is what the American people expect. That is what the courts 
expect.
    I had the opportunity recently to have lunch with several 
other members of the Department of Justice and a Supreme Court 
Justice and this Supreme Court Justice reminded us that more is 
expected of us, that what we say in our pleadings and orally in 
open court is viewed differently. There is an expectation that 
we be right and that we do everything we can to get it right 
and I am absolutely determined that we do that.
    We will be as aggressive as the law and facts allow us to 
be in every enforcement action we bring, but it is not rough 
justice by Boyd or rough justice by any member of the 
Department of Justice. It is justice according to the 
Constitution and the tools that Congress has given us.
    Senator Sessions. Well said, Mr. Boyd. I thank you for 
saying that and I think that is important. You are speaking 
correctly.
    The Civil Rights Division of the Department of Justice, 
when it takes on a city like Torrence, California, and accuses 
them of discriminating against police and firemen, that is a 
serious thing. That city, I am sure, had to wrestle very hard 
with whether or not to continue the litigation, whether or not 
just to give in and agree to changes because they did not want 
to continue to be accused by the United States Department of 
Justice as being discriminatory. They also had to ask whether 
they could afford the litigation.
    So it is a power that ought not to be abused, and there are 
cases, particularly like under Adarand that we have some 
disagreement with. One columnist in the Wall Street Journal in 
1998 reported that the acting head of the Civil Rights Division 
has supported unconstitutional racial or gender quotas in over 
20 actions in 1 year. Probably, there would be a dispute and 
disagreement among honest people over that definition, but some 
of these questions are pretty close.
    In 1997, the Circuit Court of Appeals rendered a stinging 
rebuke to the Civil Rights Division for its handling of an 
election dispute in Dallas County, Alabama. For 4 years, 
lawyers from the Civil Rights Division investigated and 
litigated in an attempt to prove racial discrimination in a 
local election. This was quite a challenge to the local county, 
but they resisted and defended and believed in their position 
and decided to see it through and take it to court.
    After reviewing the record, this is what the Court of 
Appeals said: ``A properly conducted investigation would have 
quickly revealed there was no basis for the claim of purposeful 
discrimination against black voters.'' The court pointed out 
that the actual placement of Dallas County voters within 
districts was made by the predominately black Board of 
Registrars. The court then ordered the Department of Justice to 
pay $63,000 in attorneys' fees to the Dallas County Commission 
because the Department had forced the County Commission to 
defend a suit that was not justified under the facts or the 
law.
    I note that the opinion was written by a United States 
District Judge from California who was sitting by designation 
on the 11th Circuit panel. This judge said: ``Unfortunately, we 
cannot restore the reputation of the persons wrongfully branded 
by the Department of Justice as public officials who had 
deliberately deprived their fellow citizens of their voting 
rights. We also lack the power to remedy the damage done to 
race relations in Dallas County by the unfounded accusations of 
purposeful discrimination made by the Department of Justice.'' 
The three-judge panel suggested to the Justice Department that 
it be ``more sensitive'' in the future to ``the impact on 
racial harmony that can result from the filing of a claim of 
purposeful discrimination.'' The court said it found the 
Justice Department's actions were ``without a proper 
investigation of the truth unconscionable.'' ``Hopefully,'' the 
court goes on to say, ``we will not again be faced with 
reviewing a case as carelessly investigated as this one.'' Is 
that something that you will monitor and try to make sure does 
not occur, Mr. Boyd?
    Mr. Boyd. Absolutely, Senator. I thank you for reminding us 
of kind of the obligations that I have been talking about that 
we have as Federal law enforcers. But as I listened to you, I 
also feel compelled to say a couple things about the Civil 
Rights Division and the lawyers in the Civil Rights Division.
    The overwhelming preponderance of lawyers in the Department 
of Justice generally and the Civil Rights Division specifically 
are extraordinarily professional, talented, dedicated, 
committed folks who are doing tremendous good for our country 
and for the rule of law, and I have said several times that 
since coming to this position, I have had the honor to see some 
of the incredible high quality of work and commitment that 
those very professional and talented and gifted lawyers have 
done.
    Last week, I had the opportunity to travel with the 
Attorney General to Albuquerque, New Mexico; Phoenix, Arizona, 
and Las Vegas, Nevada, and when we were meeting with the 
Federal judges in Albuquerque, one of the Federal judges right 
out of the box took about 5 minutes to talk about a case that 
Civil Rights Division lawyers had recently tried in front of 
him, a case that he described as a very difficult case, an 
uphill struggle, which they prevailed in, and he took great 
care to tell me how pleased and how remarkable he thought the 
professionalism of the Civil Rights Division lawyers was.
    So I think it is careful for us as we go forward with all 
of the moral and legal authority that we have, and you are 
quite right to remind us that when we accuse, it carries great 
weight and has very often cascading consequences for the party 
that we accuse, it is certainly appropriate that you remind us 
of that, Senator. But I also want to be very clear to say that 
of the thousands of matters that the Civil Rights Division 
deals with every year, the overwhelming preponderance of those 
matters we are dealing with in an incredibly professional, 
capable way. We have some very committed, experienced, 
dedicated, talented people and I think the people of America 
ought to know that and feel confident about that.
    Senator Sessions. I agree, and I know some of them and they 
do great work. It has changed the face of my area of the 
country, the whole legal landscape, and much of that was done 
by the Civil Rights Division of the Department of Justice. When 
I was a United States Attorney, it was said that I had blocked 
an investigation of the Civil Rights Division, but in truth, as 
I checked the record at that time, I signed and supported the 
pleadings at every pleading that was filed, and there were 
many, many cases pending at that time.
    I believe in the work that you do, but just because someone 
says it is civil rights, maybe they have not done their 
homework. Maybe they have not studied the facts or researched 
the laws quite enough, and I am glad to see that you will give 
everyone a fair chance.
    I am glad that you recognize the difficult position a 
business or a political institution or a governmental 
institution can be in when the Department of Justice says, we 
are going to file next month a lawsuit accusing you of racial 
discrimination, but if you will agree to this consent 
settlement and agree to do A, B, C, and D, we will not file 
that suit. We can reach an agreement. That is the way it ought 
to be done. I am not criticizing that procedure, but do you 
recognize that gives an awful lot of power to the Civil Rights 
Division and you have to wield it responsibly?
    Mr. Boyd. I do, Senator, very much, and let me say this, 
that the cause of victims of discrimination, which protecting 
victims of discrimination is our principal mission, and that 
mission is best served by us discharging our responsibilities, 
our law enforcement responsibilities in a highly professional 
way.
    The idea of aggressive civil rights law enforcement and 
being careful, taking care in how we do that, are not 
necessarily contradictory concepts. In fact, they ought to be 
complementary concepts, and that essentially summarizes my 
approach. We will be aggressive in protecting victims. That is 
our mission, that is our job, and I will tell you, that mission 
in the aftermath of September 11 is as clear as it ever could 
be. But it also requires us, and that cause of protecting 
victims is best served if we do it right, and that is what we 
are going to try to do as best our skills and our experience 
will allow us to do, Senator.
    Senator Sessions. Right. You should be aggressive. You 
should not allow and tolerate racial discrimination in America. 
But at the same time, you want to be professional and balanced. 
I like your remarks and thank you for them.
    Senator Feingold. [Presiding.] Thank you, Senator Sessions.
    We have a vote on, so I am just going to simply recess the 
hearing for about 10 minutes and I will be back to resume 
questioning.
    Mr. Boyd. I will look forward to it, Senator. Thank you.
    Senator Feingold. The hearing is in recess.
    [Recess.]
    Senator Feingold. I call the hearing back to order. By the 
Senate's definition of 10 minutes, we are back.
    Mr. Boyd, it is good to see you again. I would like to 
thank you, and I, of course, want to thank the Chairman, 
Senator Kennedy, and the Chairman of the Committee, Senator 
Leahy, for their leadership and for holding a hearing on this 
subject.
    Mr. Boyd, you have already talked about this a bit, but we 
all have great respect for the hard work and the dedication of 
our Nation's police officers, but on occasion, some of those 
responsible for enforcing the law engage in conduct that itself 
violates Federal laws and constitutional rights. For example, 
racially biased policing, also sometimes known as racial 
profiling, is certainly, in my mind, an unacceptable practice 
that has tarnished relations between a number of police 
departments and the communities they serve.
    As you well know, because I think I have at least discussed 
this in your presence last year, President Bush and Attorney 
General Ashcroft called for a ban on racial profiling and I and 
some of my colleagues have introduced legislation to implement 
and enforce such a ban. Just 2 weeks ago, Deputy Attorney 
General Thompson assured me that the Department still 
explicitly supports a ban on racial profiling and intends to 
work with us to get a bill to the President's desk.
    Investigation of police departments conducted by the Civil 
Rights Division, such as the one recently settled in 
Cincinnati, play an important role in addressing this problem. 
I would like to first ask you, do you regard the settlement 
agreements in the Cincinnati case as a model for addressing 
this concern in other cities, and if so, can we expect to see 
Civil Rights Division investigations elsewhere lead to similar 
reform?
    Mr. Boyd. Thank you for asking that question, Senator, and 
let me just say, before I answer your question directly, I 
appreciate and I know the Attorney General appreciates the 
leadership role that you and Representative Conyers have taken 
with respect to this issue. The issue of racial profiling is 
certainly one of--if not the most important--issue on my plate 
as the head of the Civil Rights Division, and as you correctly 
pointed out, Senator, during the Presidential campaign, then-
Governor Bush made it very clear that he thought that racial 
profiling was wrong and ought to be eliminated.
    The Attorney General has been very clear in saying, not 
only is it wrong, it is unconstitutional, and he has tasked the 
Deputy Attorney General, Deputy Attorney General Thompson, with 
the responsibility of reviewing and studying the issue in the 
context of Federal law enforcement with an eye toward us 
providing some useful guidance about the elimination, the 
ultimate elimination of racial profiling, and we in the Civil 
Rights Division have been in the boat rowing with the Deputy 
Attorney General to make sure that that is done and done as 
promptly as it can be.
    I am also, obviously, aware of the bill that you have 
introduced that deals with this issue and it certainly is a 
good start with respect to dealing with this issue.
    As to Cincinnati in particular, the Cincinnati settlement 
did have racial profiling issues that were present, but the 
principal issues in Cincinnati involved the use of force and 
the alleged excessive use of force as a matter of practice by 
Cincinnati police officers. So the gravamen, the overwhelming 
weight of that agreement was focused on issues regarding the 
use of force, use-of-force policies, training, and reporting 
with respect to the use of force. So that was the preponderant 
issue in Cincinnati.
    But in Cincinnati and elsewhere, we have dealt with this 
racial profiling element or discriminatory police practices. 
The Pittsburgh agreement, the consent decree in Pittsburgh 
reflects issues with respect to racial profiling and others.
    Senator Feingold. Let me follow up on the Cincinnati 
situation a little bit. The Cincinnati settlement actually 
incorporates by reference a city ordinance, No. 88-2001, and 
requires enforcement of that ordinance. Now, Section 1 of the 
Cincinnati law bans racial profiling and defines it as ``the 
detention, intradiction, or other disparate treatment of an 
individual using the racial or ethnic status of such individual 
as a factor, other than in the case of a physical 
description.'' Do you endorse that definition of racial 
profiling?
    Mr. Boyd. Anything we ask of the Department is something--
anything we ask to be part of an agreement in which we enter 
into, in that context, we do, and I do. Senator, I think what 
that is trying to get at, and certainly what your proposed 
legislation seeks to deal with and what I think concerns all of 
us is really racial stereotyping in law enforcement, that is to 
say, using race as a proxy for enhanced criminality, and I 
think that is what concerns us all and I think that is what we 
are trying to deal with effectively in a careful way that does 
not stop us from using race as a factor in circumstances where 
it is justified, and your legislation talks about suspect-
specific situations.
    Senator Feingold. Let me comment on that. I think that is 
fine as far as it goes, but I think I did hear you explicitly 
agree that the language I read you is something the Department 
supports, and I want to make it clear that that is basically 
the definition of racial profiling that we have in our anti-
profiling bill. So, I hope that your endorsement of that 
definition makes it as easy as possible for us to reach 
agreement on a bill to end the practice once and for all. That 
is similar to the type of response I received from the Deputy 
Attorney General, who certainly did not equivocate on the 
point, either.
    Mr. Boyd. Senator, I would just say, as a law enforcement 
body, if we impose a requirement on a police department of one 
of our Nation's significant cities, that we obviously embrace 
it in that context. I think when Deputy Attorney General 
Thompson was in front of you, he said our mission continues to 
be to eliminate racial profiling and that is my position, as 
well, you should not be surprised to hear.
    Senator Feingold. Fair enough. Let me say on that point 
that I strongly believe that this is not an enforcement effort 
that should sort of wax or wane depending on who is running the 
Justice Department. I intend to work for enactment of a law 
that places a clear, workable definition of racial profiling in 
Federal law, that bans the practice, as both the Attorney 
General and, I might add, that the President not only said it 
during his campaign, but I was in the House chamber when he 
made one of his very first statements as President of the 
United States that racial profiling should be prohibited. The 
law should also create strong mechanisms to actually enforce 
that ban.
    I mentioned earlier the striking similarity between the 
Cincinnati law and my bill with respect to a ban on racial 
profiling. For a number of reasons, and some we have already 
discussed, regardless of what the major point of that agreement 
was, the fact is that it had this ban on racial profiling, but 
there are other similarities, as well, with this agreement.
    Both my bill and the Cincinnati settlement require the 
creation of citizen complaint procedures and data collection on 
stops and procedures. The ban on racial profiling, citizen 
complaint procedures, and data collection, in my view, are all 
good steps to address racial profiling and should be applied 
nationwide, so I am glad that you see this Cincinnati 
settlement as a success story, and again, I see it as a way in 
which we can come together to pass some important legislation.
    Let me move on to one of the most important 
responsibilities of the Civil Rights Division: ensuring that 
law enforcement agents carry out their duties within the bounds 
of the law. One of the key tools for carrying out that 
responsibility is Section 14141 of Title 42 of the U.S. Code, 
which makes it unlawful for any law enforcement agent to engage 
in a pattern or practice of conduct that deprives persons of 
rights protected by the Constitution and the laws of the United 
States.
    Mr. Boyd, during your time as head of the Civil Rights 
Division, how many new Section 14141 cases has the Department 
of Justice filed in court?
    Mr. Boyd. I do not believe we have filed any new cases in 
court, Senator. There have been--we currently have opened a 
formal 141 investigation in a number of cities, including 
Portland, Maine, and Schenectady, New York. We have preliminary 
inquiries underway in several South Florida jurisdictions.
    I should say, just to give you a sense of the order of 
magnitude of these cases and the volume of these cases, since 
the statute was enacted by Congress in 1994, there have been 
seven settlements. Three of those settlements have been 
achieved during the last year in the Civil Rights Division. We 
continue to have open investigations that are public in 
Cleveland, Ohio; Detroit, Michigan; East Point, Michigan; New 
Orleans, Louisiana; Prince George's County, Maryland; 
Riverside, California; Tulsa, Oklahoma; and Buffalo, New York.
    Senator Feingold. That is about settlements that have 
occurred under this administration?
    Mr. Boyd. Those are open investigations.
    Senator Feingold. Those are open investigations. You 
mentioned the settlements before. But let me just make sure we 
agree on what has happened since the start of the Bush 
Administration in terms of initiating new complaints. My 
understanding is that there have been no new complaints filed 
against State or local police departments for police abuse or 
misconduct.
    Mr. Boyd. There have not been lawsuits that have been 
filed. There have been formal investigations.
    Senator Feingold. And then the four formal investigations, 
Cincinnati, Tulsa, Schenectady, and Portland, Maine.
    Mr. Boyd. Right, as well as a number of preliminary 
inquiries. Maybe it would be helpful if I briefly described how 
that 14141 process works.
    Senator Feingold. Let me just ask you one other thing 
first, and hopefully we will have time for that. In your 
opening statement, you said the following about the Cincinnati 
settlement: ``This unique and historic arrangement achieved 
real reform without the need for protracted litigation or a 
consent decree.'' Now, how does your Department determine 
whether to initiate a pattern or practice lawsuit against a 
police department under Section 14141? What are the factors or 
standards that you use and how is this approach different from 
or similar to the standard utilized by the prior 
administration? You may well have been heading in that 
direction.
    Mr. Boyd. Yes.
    Senator Feingold. I want to be sure that those different 
pieces are answered that I just listed.
    Mr. Boyd. And please follow up if I am not responsive to 
one of your questions. The factors and standards are the same. 
We review the record that is available to us through witness 
interviews from pleadings or depositions or testimony in other 
fora to determine whether there is a pattern or a policy and 
practice of a police department that consequently causes 
repetitive constitutional violations on the part of police 
officers, whether it is racial profiling, whether it is the 
repetitive use of excessive force.
    If I could analogize for the lawyers, it would be kind of 
doing a 1983 assessment with respect to situation after 
situation to make some assessment as to whether there is some 
formal policy or some unspoken practice that is leading to some 
level of repetitive unconstitutional uses of authority by 
police officers.
    Senator Feingold. This has to do with whether to initiate a 
lawsuit, is what you are answering?
    Mr. Boyd. That is with respect to whether to file a 
complaint in the setting of a lawsuit, but it also has to do, 
Senator, with whether to open a formal investigation, and this 
is what I was talking about before. In our pattern and 
practice, we have essentially three stages. One is the 
preliminary inquiry, where we hear concerns about 
unconstitutional patterns and practices by police departments. 
We do what we can in terms of factual development to see if 
there, if you will, is a ``there'' there. And then if there is 
sufficient evidence, then it moves to the level of a formal 
investigation, at which point it becomes public. And then, if 
necessary, it proceeds to a lawsuit.
    But I should say, since 1994, the Civil Rights Division has 
never filed a pattern and practice lawsuit. The formal 
investigations that have been opened have always resulted, so 
far, anyway, in a settlement or a consent decree that is 
favorable in the view of the Department of Justice. That is, it 
takes care or remediates the problem that caused us to look at 
the police department.
    Senator Feingold. So, is it your belief that this 
administration uses the same approach with regard to both the 
filing of the lawsuit and the filing of the investigation?
    Mr. Boyd. I think we are analyzing the law in the same way. 
I think that what we are trying to do is to go into a situation 
and early on gather all of the stakeholders, if you will, in 
the problem, from the community folk who are affected by police 
practices, government leaders, the command staff of the police 
department, as well as the rank-and-file police officers, with 
a view toward fixing the problem and not so much with a view 
toward fixing the blame.
    If blame has to be assigned at some point, we will do that, 
but our view is that everybody has an interest in acknowledging 
issues where improvement or reform needs to take place, and the 
more people who have to be a part of that process for it to 
work in the long run, the more they are consulted in a part of 
that process early on, the less of a likelihood we will get 
bogged down in litigation.
    Senator Feingold. I appreciate that.
    Mr. Boyd. Senator, if I----
    Senator Feingold. I only have 1 minute left, so I want to 
ask one more question. I understand what you are saying and I 
appreciate it, but I am taking your answer to mean this does 
not change the standard for initiating a lawsuit or commencing 
an investigation despite the desire to try to resolve matters 
in a consensual way.
    Mr. Boyd. You are right, Senator.
    Senator Feingold. Mr. Boyd, I understand that in the 
Schenectady case, U.S. Attorney Daniel French forwarded 
descriptions of more than a dozen alleged incidents of police 
misconduct or abuse to the Civil Rights Division, but it took 1 
year for the Division to authorize an investigation. I 
understand that earlier this year, you recused yourself from 
that case, but I am concerned about how long it took for the 
Department to decide whether to proceed to investigation.
    Why does it take so long for the Department to authorize an 
investigation of a police department, and does the Civil Rights 
Division have deadlines for determining whether to proceed with 
investigation?
    Mr. Boyd. Senator, as you correctly pointed out, I am 
recused in that case so I cannot talk about the details of the 
Schenectady case. But I can say that these investigations take 
a lot of careful effort by the trial team, by the investigative 
team and the Special Litigation Section of the Civil Rights 
Division. They go out, they conduct interviews, they review 
court pleadings, they talk to as many good sources, original 
sources of information as they can, and then they sit down and 
they do the evaluations and do the assessments.
    The idea is that there is not a deadline at the front end 
and the more careful the work that is done at the front end, 
the more likelihood of success when something formal is 
submitted or filed. So I am not so much concerned about how 
long it takes. I am much more concerned about the quality of 
the ultimate product, the quality of our ultimate judgments.
    Schenectady, during the pendency of the referral of the 
matter from the U.S. Attorney to the Civil Rights Division, 
during that time, there were a number of Federal criminal 
prosecutions of Schenectady police officers. So to the extent 
that there was allegedly unlawful conduct going on, it was 
being dealt with in the first instance by the criminal 
prosecutors outside the context of the 14141 investigation. But 
our key is to get it right and to do what is necessary in order 
to get it right at the front end so that we are more 
successful, ultimately, in fixing the problem.
    Senator I also told you, to my knowledge, no formal 14141 
lawsuits had been filed. I was incorrect. I had forgotten that 
a formal suit was filed in the Columbus action, in Columbus, 
Ohio. That is a pending case and I had just forgotten that it 
was pending.
    Senator Feingold. I am pleased to have that correction. My 
understanding is that the investigation of the Cincinnati case 
started pretty fast after the situation there, so I would just 
make note of that and my time is elapsed.
    Senator Schumer.
    Senator Schumer. Mr. Chairman, thank you and I appreciate 
it. First, I want to thank you for holding these important 
hearings. I want to thank Assistant Secretary Boyd for being 
here.
    I have other pressing business, but I have some questions 
in writing. I wanted to submit those and ask that you, Mr. 
Boyd, answer those within, say, a week or so.
    Mr. Boyd. I would be happy to, Senator.
    Senator Schumer. They deal with predatory lending, fair 
housing, discrimination in housing, which is an area that has 
concerned me, and I again thank you, Senator Kennedy, for 
running these hearings and thank my colleagues.
    Senator Kennedy. [Presiding.] Senator Durbin.
    Senator Durbin. Thank you very much, and Mr. Boyd, thank 
you for joining us today.
    I suppose that there are two or three areas that I would 
like to explore with you very briefly, and one of them relates 
to the whole question of staffing at the Division. I suppose 
what I have been reading suggests that there has been an effort 
to move career employees out of the Civil Rights Division to 
other assignments, both permanent and temporary. I can 
understand in light of 9/11 that the Department of Justice is 
trying to allocate its resources most effectively to protect 
this Nation, but I am anxious to hear your explanation in 
reference to several specific transfers and to the policy in 
your Division.
    First, I would like to ask you about the detailing of 
Katherine Baldwin, Section Chief of the Employment Litigation 
Section to the Civil Division. Was that a voluntary or 
involuntary detail?
    Mr. Boyd. I asked Ms. Baldwin to take the laboring oar with 
respect to that very significant employment discrimination task 
force that we had recently created in response to really a 
decades-old expression of concern from lawyers handling 
employment discrimination cases, both within main Justice, and 
more importantly, out in the 94 U.S. Attorneys Offices across 
the country.
    I asked her--but it was a directive, I am not being cute--
because of her experience, her temperament, her expertise in 
this area of the law, the perspective that she brings as an 
experienced and aggressive civil rights enforcer, as well as 
her, what I had observed, what I would describe as excellent 
teaching skills, which is part of what this task force seeks to 
do. I thought that within the Division, the Civil Rights 
Division, that there was really no one else who was close in 
terms of all the qualifications we were looking for for the 
person that would really take the laboring oar on that task 
force.
    Senator Durbin. So did this leave a gap in terms of the 
talent pool in the Civil Rights Division because of your 
decision?
    Mr. Boyd. It really did not, Senator. I am glad you asked 
the question because what it did, at least temporarily, was 
give me the opportunity to elevate to the Acting Chief position 
an experienced Hispanic American lawyer in the Civil Rights 
Division, David Palmer, and although I am delighted at the 
opportunity to be able to give that incredibly good and 
experienced and committed public servant an opportunity to 
serve as Acting Chief.
    I am sorry to say that Mr. Palmer is the first Hispanic 
American to serve as a section chief of one of the litigating 
sections in the 45-year history of the Civil Rights Division, 
and so from my perspective, it was a win-win proposition. Ms. 
Baldwin was going to be taking the leading and the laboring oar 
with respect to a very important initiative of this Department.
    Senator Durbin. Is hers a temporary reassignment?
    Mr. Boyd. It is, and I believe it is 120 days, or 240 days.
    Senator Durbin. Is she going to return to her previous 
position?
    Mr. Boyd. My expectation is that she would, but I often get 
asked questions about future staffing decisions, Senator, and I 
try not to be cute, but I say it depends on all the important 
circumstances that are then present. But when I assigned her to 
this task force, the expectation was that it would be 
temporary.
    Senator Durbin. Can you tell me, as of today, how many 
career Civil Rights Division attorneys have been detailed out 
of the Division?
    Mr. Boyd. I do not know the answer as I sit here, but very 
few, and let me say this, if I may, Senator. I am told--I was 
not here and I certainly was not keeping score, but I offer it 
just as a matter of perspective--I am told that in the prior 
administration, there were five section chiefs, five out of 11 
section chiefs, five out of nine litigating section chiefs in 
the prior administration that were permanently reassigned. As a 
matter of perspective, I have reassigned temporarily one 
section chief.
    I would also say, Senator, that when I arrived in the Civil 
Rights Division, there were three front office personnel from 
the prior administration occupying senior front office 
positions--Deputy Assistant Attorney General, Counsel to the 
Assistant Attorney General--from the prior administration, 
including the prior administration's Chief of Staff. I kept all 
three of them on my front office staff either as Deputy 
Assistant Attorneys General or as Counsel to the Assistant 
Attorney General to me. So I cannot say that that is 
unprecedented, but I would be surprised if there were any prior 
administration that kept in the front office the previous 
administration's Chief of Staff.
    Senator Durbin. There are unconfirmed reports that about 20 
or 30 Division attorneys have been assigned to terrorism 
investigation and prosecution and that you are seeking 
additional attorneys to leave your Division for terrorism work. 
Is that correct?
    Mr. Boyd. I cannot verify the number, but there have been a 
number of attorneys who have volunteered to assist the Criminal 
Division in the really overwhelming burden they have of 
reviewing evidence and documents with respect to the terrorism 
investigation. So, yes, there have been not an insignificant--
--
    Senator Durbin. Do those numbers sound accurate?
    Mr. Boyd. They sound like a correct ballpark figure.
    Senator Durbin. So has that had any impact on the quality 
of work in the Civil Rights Division?
    Mr. Boyd. It has had no impact on the quality, and I do not 
think, candidly, Senator, that I have at least seen or am aware 
of it having remarkably an impact on the quantity. I mentioned, 
and you were not here for it, when Senator Sessions was asking 
questions about the remarkable commitment and productivity of 
the lawyers who work with me in the Civil Rights Division, and 
I think what it has meant is that--it is just like when the 
star player gets injured or a number of star players are 
injured, other people pick up the slack. I think in large 
measure----
    Senator Durbin. I would think that the departure of 20 or 
30 of your better attorneys to an important assignment, no 
doubt, would have some measurable impact, but I will take that 
at face value.
    Mr. Boyd. Senator, we have almost 400, and I am not sure 
that all those persons were attorneys. I think some may have 
been legal assistants.
    Senator Durbin. Let me ask you about this. There seems to 
be--I do not understand it and I am going to ask you to explain 
it--there seems to be an interesting contrast here. When you 
have been asked about speaking directly to defendants in cases 
involving civil rights, like Adam's Mark, you have argued that 
this kind of open dialog sometimes leads to progress being made 
and goals being achieved, and you do not think that that is 
necessarily in and of itself a bad idea. And yet we see 
reports, press reports, that career employees within your own 
Division are being cautioned not to speak to people on Capitol 
Hill or to the press or to organizations outside of the 
Department of Justice.
    Explain to me the standard that you are applying here, 
where on one hand it is a reasonable and thoughtful thing to 
have this dialog, and yet on the other hand it is dangerous for 
your employees to speak out of school.
    Mr. Boyd. Thank you for that question, Senator. I am glad 
you raised it, because it has come up in the media and I have 
not had a chance to address it, so I appreciate you giving me 
that opportunity.
    There is a clear distinction and it is this. I have a 
complete open door policy both within the Division and outside 
the Division. That is to say, any responsible voice who wants 
to weigh in on the merits of an issue that is before us, I am 
happy to hear from. It helps us get it right.
    It is why I have met probably on at least 20 to 30 
occasions with representatives of the civil rights community 
with respect to a whole range of issues. I also repeatedly, in 
addressing the career attorneys in the Civil Rights Division, 
encouraged those attorneys to come talk to me about their 
cases, to come talk to me about pending issues that they feel 
strongly about, especially if they disagree with where they 
think an ultimate decision is going, and I should say that in 
the overwhelming preponderance of cases we have, over 99 
percent of the cases, there is absolutely no dispute about what 
to do and there is consensus.
    In the less than 1 percent of the instances in which there 
is a difference in how we should proceed, I encourage our staff 
attorneys to come see me. What I often say is--fortunately, I 
do not need a lot of sleep, Senator. I come in at somewhere 
around 6 a.m. and I leave around 8 to 8:30 p.m. and I say my 
door is open, either on formal scheduled invitation or if you 
just show up during those hours, I will see you.
    Senator Durbin. I accept that premise. Now let us go to the 
second part----
    Mr. Boyd. Yes. The second part of the question is it is 
very simple in this respect, Senator. Internal deliberations, 
internal law enforcement deliberations that the Department 
engages in are deliberations about how to handle a pending law 
enforcement matter. These lawyers in the Department of Justice, 
by Justice Department rule and regulation, and also by rule and 
regulation of the sanctioning bodies of the bars of the several 
States, require that confidential information not be disclosed 
to outside parties. It is----
    Senator Durbin. So it is strictly limited to confidential 
information cannot be disclosed----
    Mr. Boyd. It is attorney-client information, but it is the 
substance of our deliberations about pending law enforcement 
matters.
    Senator Durbin. So there is no prohibition against your 
career employees or other Civil Rights Division employees 
having conversations about the policy, for example, of how 
civil rights laws are being enforced in the most general way 
without reference to a specific case? I think what we have 
here, and reports out of the Washington Post, the most recent 
article, suggest that some employees within your Division do 
not see this as being such a clear line that you have drawn. 
They feel that you have discouraged even the most basic dialog 
about the policy and enforcement of civil rights laws under the 
Bush administration's Department of Justice, and that, of 
course, raises some troubling possibilities.
    So can you clarify that in terms of a memo that you are 
going to present to your employees so that there is no doubt 
that you are talking about conversations relating to specific 
cases before the Civil Rights Division?
    Mr. Boyd. Yes, Senator, and let me say this. If it were 
true, what you have suggested the Post has reported or some 
people have said, if it were true, it would be troubling. I am 
happy to be able to tell you it is not only not true, it is 
patently false.
    We have career attorneys in the Civil Rights Division who 
every week, if not every day, are speaking to a wide range of 
organizations, groups, symposia, town meetings about the very 
things that you are talking about. It happens literally every 
day. We have done, for example, with respect to our response to 
backlash discrimination in the wake of September 11, we have 
literally conducted hundreds of outreach meetings----
    Senator Durbin. Let me use one specific example, because 
this article relates to your September 28 memo, issued after 
some lawyers in the Civil Rights Employment Litigation Section 
voiced dissent internally over the government's withdrawal from 
an employment discrimination case brought during the Clinton 
administration. Now, that clearly is not a pending case or 
would jeopardize attorney-client privilege, as I read it on its 
face, if this has been a decision by the Civil Rights Division 
under your leadership to withdraw from a case that was already 
being undertaken by the Department.
    So, you are saying, from your point of view, that is all 
right. You do not have a problem with people speaking out if 
they disagree with the policy in the Civil Rights Division?
    Mr. Boyd. No. People can offer whatever judgment they want 
about whether a particular decision is, on the merits, right or 
wrong. What they are not permitted to do is to disclose the 
internal deliberations in which they engaged as advising me. 
They are not allowed to--and this is well settled Department of 
Justice policy that dates back generations, it is also well 
settled lawyer professional responsibility ethics--you are just 
simply not allowed to discuss the details of client confidences 
or internal Department of Justice deliberations.
    Now, anybody in the world is free to say, Boyd was right or 
wrong in a particular discussion with anyone. I mean, Senator, 
believe it or not, I value, I value dissent. I value dialog. I 
value difference because it helps us get it right.
    Senator Durbin. Let me just suggest, because my time is up, 
it might be, if that is your philosophy and your point of view, 
it might be worthwhile for you to consider another memo to the 
Division, because at least there is some uncertainty among the 
attorneys who serve with you.
    Mr. Boyd. Thank you, Senator, and I will, and if I can 
respectfully just say very briefly, the memo to which you refer 
is not a memo that I prepared or had any role in. It was a memo 
that was drafted at the request of a career lawyer within the 
Department of Justice, David Margolis, who is one of the most 
respected and revered members of the Department of Justice, who 
served many administrations, both Democratic and Republican, 
and it was prepared by a member of the Office of Professional 
Responsibility. So it simply dealt with very clear-cut 
professional and ethical obligations of lawyers. It has nothing 
to do at all with appropriate dialog or dissent about general 
positions.
    Senator Durbin. Thank you very much. Thanks, Mr. Chairman.
    Mr. Boyd. Thank you, Senator.
    Senator Kennedy. Senator Edwards.
    Senator Edwards. Thank you very much, Mr. Chairman.
    Mr. Assistant Attorney General, good afternoon.
    Mr. Boyd. Good afternoon, Senator.
    Senator Edwards. I want to talk with you about voting 
rights. As you know, there were a lot of problems in the 2000 
election and none of us want to see those problems show 
themselves again in the upcoming election.
    Mr. Boyd. Sure.
    Senator Edwards. As you certainly know, the Justice 
Department has a lot of responsibility for stopping those 
problems, particularly since our election reform bill that has 
passed the Senate is in conference now and has not become law.
    In December of this last year, I wrote to the Attorney 
General and asked several questions, including whether the 
Justice Department initiated any enforcement actions based upon 
the problems in the 2000 election. In February, I received a 
response from the Justice Department. The response did not 
identify any enforcement actions. It said, and I am quoting 
now, that several investigations were ``open and pending'' and 
that ``we expect to make final decisions in the near future.'' 
It has now been over 18 months since the election of 2000. How 
many voting rights actions has the Civil Rights Division filed 
arising out of that election?
    Mr. Boyd. Senator, thank you for the question. This is an 
area that I thought we would get to sooner or later and I am 
glad we got to it. I thank you for raising the issue.
    We have not filed any lawsuits yet, and if I can perhaps, 
to answer your question more fully, just lay out as succinctly 
as I am able kind of the process and where things are.
    In the aftermath of the 2000 Presidential election, the 
Civil Rights Division received almost 11,000 complaints, 
inquiries, expressions of dissatisfaction about various things, 
people offering opinions about the election, the outcome, the 
judicial proceedings in the wake of the election, a whole 
variety of things. We retained and hired contractors to help us 
deal with that volume of calls, almost 11,000 calls. We also 
coordinated with the NAACP and the Florida Attorney General's 
Office, who were also collecting information or complaints 
about the election or the election processes.
    By January of 2001, the career staff in the Voting Section 
of the Civil Rights Division had whittled all of that 
information down to 12 live investigations, 12 potential cases, 
if you would. Later, two cases were added, so 14 in total out 
of the mass of 11,000 contacts or communications, and I should 
underscore that most of those communications were not 
substantive complaints. They were expressions of 
dissatisfaction or offering opinions or points of view about 
what was transpiring. So most of that did not fall within our 
enforcement jurisdiction.
    Since that time, those open investigations have been 
whittled down further, and I should tell you that kind of the 
range of issues that those 14 investigations dealt with were 
allegations of improper voter roll purges, registration 
problems, failures to provide accesses that the law requires 
for disabled voters, the failure to provide bilingual materials 
in covered jurisdictions, covered jurisdictions within the 
meaning of Section 203 of the Voting Rights Act, allegations 
that limited English proficient voters had been denied 
assistance which they are entitled to at the polls if they so 
seek it, and also some allegations of disparate treatment of 
some minority voters. So that is kind of the universe of what 
we were dealing with.
    Since that time, we have made great progress and I have 
authorized the filing of several lawsuits, both in Florida and 
outside of Florida. Because those are ongoing investigations, 
because they are the present subject of pre-filing 
negotiations, which is a typical practice in this area, I 
cannot really comment on them further.
    But it certainly was my hope that I would, by the time of 
this hearing, would be able to say more about it, but I simply 
will say that I have authorized the filing of some lawsuits, 
and the way it typically unfolds is that there are pre-filing 
negotiations, and very often, if the jurisdictions are 
cooperating, which I understand from our career Voting Section 
staff, the jurisdictions involved here, the subject 
jurisdictions are, in fact, working cooperatively with us to 
reach some enforceable agreements with respect to those 
identified problems. What will typically happen is the 
complaint will eventually be filed, but simultaneous with the 
filing of the complaint will be a settlement agreement or a 
consent decree that has the imprimatur of the court.
    Senator Edwards. Let me make sure I followed all that. So 
you have done some investigating. You have filed no lawsuits so 
far, is that right?
    Mr. Boyd. We have not filed any so far, that is correct, 
Senator.
    Senator Edwards. You yourself have personally authorized 
the filing of a number of lawsuits. Can you tell me how many?
    Mr. Boyd. That is correct. Senator, I would prefer to stay 
away from it at this point. We will, at the time the 
investigation and the negotiations are concluded, will 
certainly be prepared to make that as a matter of public 
record.
    Senator Edwards. What problem would there be in telling me 
how many you have authorized----
    Mr. Boyd. I do not want to----
    Senator Edwards. I am just trying to get some sense----
    Mr. Boyd. No, I do not want to be coy, Senator. It is five.
    Senator Edwards. Five?
    Mr. Boyd. Five.
    Senator Edwards. OK. And out of those five lawsuits, in how 
many of those lawsuits are you engaged in what you would 
consider serious pre-filing negotiations?
    Mr. Boyd. Every single one of them, Senator.
    Senator Edwards. Do you have any expectation, based upon 
the present status of those negotiations, on the likelihood in 
each case of--I am not asking you to go one by one, but the 
likelihood in each case of actually reaching an enforceable 
settlement agreement prior to filing?
    Mr. Boyd. My hope, my aspiration, and my expectation is 
that in each of those, we will reach an enforceable agreement 
prior to the filing of the lawsuit. My understanding is that 
the jurisdictions have been cooperating, that they have 
acknowledged certain deficiencies that we have identified and 
that--and so my expectation--of course, there are no 
guarantees, but my expectation is that at the time we file suit 
in each of those five instances, that we will have either 
agreed upon enforceable settlement agreements or consent 
decrees that have been assented to.
    Senator Edwards. Of course, you know that my concern, our 
concern about this is reaching some conclusion that is in 
effect by the 2002 elections. Can you tell me what geographical 
areas are covered by these suits?
    Mr. Boyd. They all involve, with two exceptions, the State 
of Florida. Can you hold on for a second?
    Three of them are in Florida, Senator, and the others are 
in Missouri and Tennessee.
    Senator Edwards. OK. So the five suits you have authorized, 
three are in the State of Florida, two are in Missouri----
    Mr. Boyd. One is in Missouri and one is in Tennessee.
    Senator Edwards. One is in Tennessee. The lawsuits in 
Florida, do they cover the entire State of Florida or are they 
isolated areas of the State?
    Mr. Boyd. No, they cover particular counties in Florida.
    Senator Edwards. OK. Are you able to tell me which counties 
are involved?
    Mr. Boyd. I am not. I am not, Senator.
    Senator Edwards. OK.
    Mr. Boyd. Although I know that you are a trial lawyer and 
you are doing the progressive cross examination to get to what 
I said I could not give you. I appreciate that, but I cannot, 
Senator.
    Senator Edwards. What about the States of Tennessee and 
Missouri? Are those also regional lawsuits?
    Mr. Boyd. They are regional specific. They are district 
specific.
    Senator Edwards. OK.
    Mr. Boyd. Municipality specific.
    Senator Edwards. Can you tell me what substantive issues 
are involved in the cases?
    Mr. Boyd. The issues that I talked about, failure to 
provide bilingual assistance and bilingual materials in 
jurisdictions that are covered by Section 203 of the Voting 
Rights Act. In at least one instance, there are allegations of 
disparate treatment of minority voters. In another instance, 
there is a failure to provide for access to disabled voters. 
And also, under Section 208 of the Voting Rights Act, the 
failure to allow limited English proficient voters to have 
assistance in voting at the polls.
    There is widespread misunderstanding among poll workers a 
lot of places that a voter cannot be helped by someone else in 
the voting process and that is a misconception. That is a 
misunderstanding of voting rights laws. I understand Section 
208 of the Voting Rights Act, for English proficient people, 
they have a right to be assisted at the polls if they so 
choose.
    Senator Edwards. Can you tell me what the substantive 
issues are in the three Florida cases, not specific, one by 
one, but just in general, what issues are involved? Are they 
the ones you just mentioned?
    Mr. Boyd. Yes, the ones I just mentioned.
    Senator Edwards. OK, the same issues involving Florida?
    Mr. Boyd. It is Florida.
    Senator Edwards. OK.
    Mr. Boyd. There are, in some----
    Senator Edwards. Missouri and Tennessee, are they 
different?
    Mr. Boyd. And some of the issues also involve, as I 
understand it, allegedly improper voting roll purges as well as 
NVRA--motor-voter--Act violations.
    Senator Edwards. I am sorry, could you give me the last 
part one more time?
    Mr. Boyd. Yes. The NVRA, which is the National Voter 
Registration Act, requires that voting jurisdictions make 
enrollment and registration materials available in certain 
public places and there are allegations of violations of that 
Act.
    Senator Edwards. Well, of course, what we need to make sure 
is that we take steps quickly enough to ensure that the 
problems that occurred in the last election do not occur in the 
next election, and I assume that would be your goal in this 
process, is that correct?
    Mr. Boyd. That is exactly right, Senator, and you missed my 
earlier dissertation. You were spared that dissertation. But 
one of the things I talked about is it is important for us to 
move promptly but it is more important that we proceed in a 
thorough and careful way to make sure that we get it right, and 
that is what we are really trying to do, and we are trying to 
get it right without regard to the political implications for 
anyone.
    We are, as I said during my confirmation hearing, we are 
going to follow the investigative trail, the evidence, wherever 
it goes, without regard to politics, and without regard to who, 
if anyone's, ox is being gored, and that is precisely what we 
are doing in Florida and we are trying to take the time 
necessary to get it right.
    Senator Edwards. When will the lawsuits be filed?
    Mr. Boyd. I cannot give you a specific date. As I said----
    Senator Edwards. Can you give me a timeframe?
    Mr. Boyd. You can draw a reasonable inference from the fact 
that I was hopeful that I would be able to announce them prior 
to today, but it will be, I am very confident, well in advance 
of the primaries for the November 2002 elections.
    Senator Edwards. Which means what, within the next 30 to 60 
days?
    Mr. Boyd. I would hope so. I would be surprised, 
disappointed, if we were not. But again, I do not want to be 
nailed down to a particular deadline, but I do not think that 
the date you have offered is unreasonable. I think that that is 
likely or probable.
    Senator Edwards. OK. So you think it is likely or probable 
that the lawsuits we are talking about will be filed in the 
next 30 to 60 days, is that what you are saying?
    Mr. Boyd. Right, and it would be my hope that they would be 
filed contemporaneously with settlement agreements or consent 
decrees that are enforceable.
    Senator Edwards. Thank you very much.
    Mr. Boyd. Thank you, Senator.
    Senator Edwards. Thank you, Mr. Chairman.
    Senator Kennedy. Senator Sessions, I have just one area in 
conclusion. Thank you.
    In the private meetings, you have indicated the Department 
is still studying the hate crimes bill. Has the Department 
finished its study of the bill and reached a conclusion about 
support for S. 625?
    Mr. Boyd. We have not, Senator, but I will say, I do not 
think I am disclosing any of our ongoing deliberations to say 
that we are happy with your continued leadership on this issue, 
the leadership of Senator Hatch. I know Senator Specter 
continues to be concerned about this issue. Certainly, we are 
happy to see provisions in S. 625 that recognize the role that 
all of the sovereigns, if you will, have in combatting hate 
crimes, State and local government. I note that S. 625 has 
provisions that would provide Federal investigative and 
prosecutive assistance to State and local jurisdictions who are 
dealing with hate crimes, that it also would permit the 
Attorney General to give grants to those jurisdictions and also 
provides for funding over the course of the next 2 years and I 
think we are very happy with those aspects of the bill and we 
continue to deliberate the important issues that the remainder 
of S. 625 raise.
    But I can tell you, and the Senator has heard me say this 
before, my background is as a Federal prosecutor, as you know, 
and I can just say that the tools that you give us, that the 
Congress gives us, will be arrows in our quiver that we will 
use without hesitation, Senator.
    Senator Kennedy. The leader has indicated that we will have 
this measure, S. 625, on the floor either at the end of this 
week or when we return, so I draw that to the attention of the 
Department for their consideration.
    On the hate crimes, and I conclude from what you have said 
that you still have not taken a position on the specific 
legislation?
    Mr. Boyd. That is correct, Senator.
    Senator Kennedy. On May 2, you wrote a letter to me on the 
questions about the hate crimes. Excuse me, Daniel Bryant, the 
Assistant Attorney General, wrote to me about the important 
work. ``Thank you for meeting with Assistant Attorney General 
Boyd. This letter provides additional information your staff 
requested.'' Point one makes the summary of the Civil Rights 
Division and point two is hate crime prosecutions that are 
unrelated to the events of September 11. ``The Division has 
prosecuted 25 cases under the hate crimes statute since January 
20, 2001,'' and then it, in addition, has initiated hate crimes 
investigations, 327 since that date.
    Relating to the events of September 11, the Division has 
prosecuted ten cases and has investigated 350. Then you provide 
the list of the cases the Department has provided. In the list 
of the cases, of the ones that you have indicated of the civil 
rights enforcement outreach following September 11, only three 
of the ten are actually under the hate crimes statute. The rest 
of them are not. And of the 25 hate crimes, not including 
Attachment 2, the 25 cases, there are only three cases that use 
245, U.S.C. Section 241 and 245.
    As I understand it, we were told the Division had 
prosecuted 25 hate crimes in the last 16 months that are 
unrelated to September 11 and an additional ten hate crimes 
stemming from September 11. Of the 25 cases unrelated to 
September 11, only three were brought under 245 and only three 
of the ten post-September 11 prosecutions were brought up under 
245. That means barely 17 percent of the cases listed by the 
Department as hate crime prosecutions were actually brought 
under the Federal hate crimes statute.
    Mr. Boyd. Senator, I must confess, the numbers I am looking 
at are different. We had, and I think reported to you that we 
had in the wake of September 11 approximately 350 backlash hate 
crime investigations and the number of non-backlash hate crime 
investigations was, I believe at the time we spoke, 327, which 
I now understand is up to 343.
    But as I sit here, I cannot say with any kind of certainty 
with respect to which particular statutes those cases are 
charged under. But as the Senator knows, we have got a wealth 
of statutory authority, 241, 242, 245, 247, and certainly some 
of these hate crimes, particularly the backlash hate crimes, 
are brought under 247, which is damage or destruction to a 
place of worship, and in the backlash context, that would 
certainly cover the mosques that have been attacked either by 
fire or some other means.
    Senator Kennedy. Well, there are two points that I want to 
mention. When asked about the prosecutions that are unrelated, 
the Division states it has prosecuted 25 cases under hate 
crimes statutes since, and ten cases of backlash discrimination 
as well as having investigated many others. Yet, only three 
used the statute. So at a time that Congress is trying to pass 
legislation, you are indicating to us that the numbers that you 
are able to use in terms of the hate crime statute are 
inflated. You are prosecuting them under other statutes. That 
is one of the points that we are getting to in terms of the 
hate crimes. It has to be under Federal activity under the 
existing statute, but under our bill, obviously, it is much 
broader.
    Mr. Boyd. Senator, let me just offer this----
    Senator Kennedy. This is an area that we are enormously 
interested in. In fairness, I want to give you a chance to look 
through this. This is a letter not from you, but it is from the 
Justice Department and it is dealing with hate crimes and it 
lists the numbers here. Rather than asking you to go on though, 
I would be glad to have you answer.
    Mr. Boyd. Senator, I am looking at the attachment that 
apparently accompanied what you are talking about and I am 
seeing--I am not going to sit here and add each one of them up, 
but a plethora of cases that are brought under hate crimes 
statutes. I see a number that are brought under 42 U.S.C. 36-
31, which is hate crimes in a housing context----
    Senator Kennedy. That is housing discrimination.
    Mr. Boyd [continuing]. Housing context, that is right. 
There are hate crime cases that are charged under 241, 245, and 
they go on and on.
    So I certainly concur with your point, Senator, that the 
proposed legislation that you sponsored, S. 265, is broader 
than Section 245 of Title XVIII. That is inarguably true. I 
just simply want to make sure the record is clear that we are 
bringing and have brought a number of hate crime prosecutions. 
What I am looking at looks to be in excess of 30 cases laid out 
that are not related to September 11 that are brought under a 
wide range of statutes from 245 to 247 to 241 of Title XVIII 
and then Title 42, Section 36-31, as well. There are 27 since--
--
    Senator Kennedy. Let me ask, do you believe that the 
Federal Government and the Civil Rights Division has less of an 
interest in combatting hate-motivated violence against gays and 
lesbians than hate-motivated violence against individuals based 
on race or religion or national origin?
    Mr. Boyd. Senator, I believe that as a Federal prosecutor 
and as the head of the Civil Rights Division, our mission and 
our interest is in protecting all people against any kind of 
violence, especially bias-motivated violence that is based on 
some impertinent or immutable characteristic of a person. So 
with respect to the positions we take about your legislation, 
the Department will speak with one voice and I would 
respectfully decline until----
    Senator Kennedy. I am trying to get that voice to be here 
this afternoon.
    Mr. Boyd. No, I understand that, but I also know, Senator, 
that you understand that the Department speaks with one voice 
on a matter of policy and my positions are positions that I 
share and I can assure you I share with the Attorney General of 
the United States as we try to determine what our voice will 
be.
    Senator Kennedy. Just finally, on the Brennan case, was 
there a written opinion on the Brennan case? Could you provide 
that to us?
    Mr. Boyd. I believe there was a written opinion, when the 
original trial team informed me that they had sought an opinion 
about their professional responsibilities and obligations in 
Brennan, that there was a written advisory from the Office of 
Professional Responsibility.
    Senator Kennedy. Would you provide that?
    Mr. Boyd. Let me say this, Senator. If it is appropriate to 
provide it as a matter of policy, I would be happy to provide 
it. It would be helpful for your understanding fairly and 
accurately what went on here. I offer the following caution, 
though. As I think the Senator knows, it has been the 
longstanding policy of the Department not to----
    Senator Kennedy. It has been provided in the past, I would 
like to get that.
    Mr. Boyd. Senator, let me offer this. The Brennan case, in 
the work that we do to protect victims of discrimination, is 
really important and I would be delighted at any time at your 
urging to continue our conversation about our position in 
Brennan or any other case that we are in the process of dealing 
with. I am happy to have your input. I am happy to have the 
dialog. The more committed minds that are looking at an 
important issue, the better opportunity we have of getting it 
right.
    Senator Kennedy. I will ask that Senator Leahy's statement 
be included in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Senator Kennedy. I have no further questions. I want to 
thank you very much, General Boyd. You have great 
responsibility in this area of civil rights and we want to work 
with you to make sure that this is done in a way which 
represents the intent and the letter of the law. Our Committee 
is grateful for your presence here.
    Senator Sessions. Mr. Chairman, may I offer for the record 
a statement of Senator Hatch, Ranking Member on the Committee, 
in which he praises Mr. Boyd's leadership since he has been in 
the Civil Rights Division.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Senator Sessions. Also, I would offer an article by John 
Leo referring to the lawsuit filed by the previous 
administration over the use of Indian nicknames by high 
schools, a case that I cited, U.S. v. Williams, in which the 
Civil Rights Division awarded, I believe, $63,000 in fees for 
improper actions during the time before Mr. Boyd took over, and 
another article I referred to from the Wall Street Journal.
    Senator Kennedy. Fine. They will be included as part of the 
record.
    Senator Sessions. I would also ask that a statement from 
Senator Grassley be included in the record.
    [The prepared statement of Senator Grassley appears as a 
submission for the record.]
    Senator Kennedy. The hearing will stand in recess.
    [Whereupon, at 4:40 p.m., the hearing was adjourned.]
    [Questions and anwers and submissions for the record 
follow.]


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