[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]



 
                     CIVIL RIGHTS DIVISION OF THE 
                       U.S. DEPARTMENT OF JUSTICE

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 2, 2004

                               __________

                             Serial No. 66

                               __________

         Printed for the use of the Committee on the Judiciary


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                      COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee        ZOE LOFGREN, California
CHRIS CANNON, Utah                   SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama              MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana          MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin                WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida                  ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania        TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana                  ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia            LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel
                                 ------                                

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

STEVE KING, Iowa                     JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania        ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia

                     Paul B. Taylor, Chief Counsel

                  Mindy Barry, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member
                            C O N T E N T S

                              ----------                              

                             MARCH 2, 2004

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress From the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress From 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  From the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     4

                               WITNESSES

Honorable Alexander Acosta, Assistant Attorney General, Civil 
  Rights Division, Department of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable Steve Chabot, a 
  Representative in Congress From the State of Ohio, and 
  Chairman, Subcommittee on the Constitution.....................     2


                     CIVIL RIGHTS DIVISION OF THE 
                       U.S. DEPARTMENT OF JUSTICE

                              ----------                              


                         TUESDAY, MARCH 2, 2004

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 1:05 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Steve Chabot 
(Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. This 
afternoon the Subcommittee on the Constitution convenes to 
review the progress of the Civil Rights Division of the 
Department of Justice for the purpose of the reauthorization of 
the Department.
    The Division has been in the forefront of protecting the 
civil rights of all Americans since it was created all the way 
back in 1957. The Division's role in this effort is to enforce 
laws prohibiting discrimination on the basis of race, sex, 
handicap, religion, and national origin.
    The Civil Rights Division lists many important 
accomplishments as well as new efforts to combat discrimination 
in areas as diverse as education, employment, housing, lending, 
public accommodations, and voting. I know the new Assistant 
Attorney General has worked hard to create strong policies and 
affirmatively develop initiatives to further the important work 
of the Division.
    Beginning in 2001, the Division added 52 new positions, 
which has allowed it to expand its work related to enforcement 
of the Americans with Disabilities Act, the Civil Rights of 
Institutionalized Persons Act, also known as CRIPA, the Voting 
Rights Act, and its Trafficking in Persons Program. As a 
result, the Division has opened 38 CRIPA investigations since 
2001, which represents a 90 percent increase over the 20 
investigations initiated over the preceding 3 years. The 
Division has authorized seven unemployment discrimination or 
employment discrimination lawsuits since November of 2003. Six 
have been filed so far in 2004. And in fiscal year 2004, the 
Division has opened 49 investigations of alleged employment 
discrimination by State and local government.
    The Division has prosecuted 122 human traffickers, double 
the number of prosecutions as under the previous 
Administration. The Division has 146 pending human trafficking 
investigations, and since 2001 has resolved over 1,000 
disability-related complaints, at least 354 through informal 
means, 131 through formal settlement agreements, and 13 with 
consent decrees, and over 500 through mediation.
    Finally, on November 4, 2003, 160 Federal observers and 39 
Civil Rights Division personnel went to 15 counties in 8 States 
to monitor State and local elections. These activities go hand-
in-hand with the Voting Access and Integrity Initiative created 
by the Attorney General in October of 2001. The department-wide 
initiative is helping to enhance the Department's ability to 
deter discrimination and election fraud, and ability to 
prosecute violators vigorously so that all Americans will have 
access to the voting process.
    I also wanted to highlight the Division's continuing work 
related to the terrorist attacks of September 11th, 2001, and 
incidents of discriminatory backlash. Since September 11, 2001, 
the Division, the FBI, and the U.S. Attorneys' offices have 
investigated 546 incidents of backlash discrimination.
    As a result of these investigations, Federal charges have 
been brought in 13 cases against 18 defendants. All have been 
convicted. In addition, the Department has contributed to 
approximately 121 backlash prosecutions in Federal, State and 
local courts since September of 2001. Further, more than 250 
town and community meetings have been held on backlash issues, 
and best practices have been developed for law enforcement to 
prevent and respond to hate incidents against Arab Americans, 
Muslims, and Sikhs.
    I know that Members of our Subcommittee will have questions 
important to them regarding specific cases and policies. I look 
forward to hearing your testimony and the answers to all of our 
questions. It is important for the Division to continue to play 
an important role in safeguarding the civil rights of all 
Americans. We all look forward to examining the Division's work 
over the past year this afternoon, and we welcome you here this 
afternoon, Assistant Attorney General Acosta.
    [The prepared statement of Mr. Chabot follows:]
 Prepared Statement of the Honorable Steve Chabot, a Representative in 
                    Congress From the State of Ohio
    This afternoon the Subcommittee on the Constitution convenes to 
review the progress of the Civil Rights Division of the Department of 
Justice for the purpose of the reauthorization of the Department.
    The Division has been in the forefront of protecting the civil 
rights of all Americans since it was created in 1957. The Division's 
role in this effort is to enforce laws prohibiting discrimination on 
the basis of race, sex, handicap, religion, and national origin. The 
Civil Rights Division lists many important accomplishments as well as 
new efforts to combat discrimination in areas as diverse as education, 
employment, housing, lending, public accommodations, and voting. I know 
the new Assistant Attorney General has worked hard to create strong 
policies and affirmatively develop initiatives to further the important 
work of the Division.
    Beginning in 2001 the Division added 52 new positions which has 
allowed it to expand its work related to enforcement of the Americans 
with Disabilities Act, the Civil Rights of Institutionalized Persons 
Act--also known as CRIPA, the Voting Rights Act, and its trafficking in 
persons program. As a result, the Division has opened 38 CRIPA 
investigations since 2001, which represents a 90 percent increase over 
the 20 investigations initiated over the preceding three years; the 
Division has authorized 7 employment discrimination lawsuits since 
November 2003--6 have been filed so far in 2004--and in fiscal year 
2004, the Division has opened 49 investigations of alleged employment 
discrimination by state and local governments; the Division has 
prosecuted 122 human traffickers--double the number of prosecutions as 
under the previous administration; the Division has 146 pending human 
trafficking investigations; and since 2001 has resolved over 1,000 
disability-related complaints--at least 354 through informal means, 131 
through formal settlement agreements, 13 with consent decrees, and over 
500 through mediation.
    Finally, on November 4, 2003, 160 federal observers and 39 Civil 
Rights Division personnel went to 15 counties in 8 states to monitor 
state and local elections. These activities go hand-in-hand with the 
Voting Access and Integrity Initiative, created by the Attorney General 
in October, 2001. The Department-wide Initiative is helping to enhance 
the Department's ability to deter discrimination and election fraud and 
ability to prosecute violators vigorously so that all Americans will 
have access to the voting process.
    I also want to highlight the Division's continuing work related to 
the terrorist attacks of September 11, 2001, and incidents of 
discriminatory backlash. Since September 11, 2001, the Division, the 
FBI, and the U.S. Attorneys offices have investigated 546 incidents of 
backlash discrimination. As a result of these investigations, federal 
charges have been brought in 13 cases against 18 defendants. All have 
been convicted. In addition, the Department has contributed to 
approximately 121 backlash prosecutions in federal, state and local 
courts since September of 2001. Further, more than 250 town and 
community meetings have been held on backlash issues and best practices 
have been developed for law enforcement to prevent and respond to hate 
incidents against Arab Americans, Muslims and Sikhs.
    I know that all of the Members of our Subcommittee will have 
questions important to them regarding specific cases and policies. I 
look forward to hearing your testimony and the answers to all of our 
questions. It is important for the Division to continue to play an 
important role in safeguarding the civil rights of all Americans. I 
look forward to examining the Division's work over the past year this 
afternoon.

    Mr. Chabot. And I will now refer to my Ranking Member Mr. 
Nadler of New York for the purpose of making an opening 
statement.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, I want to join you in welcoming Assistant 
Attorney General Acosta, and to commend you for scheduling this 
important and timely oversight hearing.
    The protection of fundamental civil rights is one of the 
hallmarks of the American experiment. Without effective 
protection of our civil rights, many Americans would remain 
consigned to the margins of our society and unable to fulfill 
the promise of this great Nation.
    The ideal of equality and freedom has too often been more 
an aspiration than a reality for too many of our citizens. 
Indeed the history of the United States is reflected in ongoing 
struggles to make good on the promises made in the Declaration 
of Independence and the Bill of Rights for everyone. In fact, 
you can very well read the history of this country as a history 
of the expanding of the understanding of what was meant in the 
Declaration of Independence when it was said that all men are 
created equal.
    In 1776, by all men, they certainly didn't mean African 
Americans, they didn't mean women, they didn't mean Native 
Americans, they probably didn't even mean men without property. 
And the history of this country, to a large extent, is a 
history of struggle to expand the meaning to encompass all 
different groups in our society.
    That struggle continues today, and we have much more to do 
before it is realized. In advancing that cause, the Civil 
Rights Division has a crucial role to play in the enforcement 
of these rights under the law. As such, the Division holds a 
sacred trust in the fulfillment of our Nation's core values. 
How well it exercises that trust is the subject of today's 
hearing.
    I look forward to the testimony of the witness and to the 
opportunity to engage in a dialogue with our witness. And I 
thank you again, Mr. Chairman.
    Mr. Chabot. Thank you.
    Mr. Nadler. I ask for a unanimous consent statement, Mr. 
Chairman.
    Mr. Chabot. Without objection.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent that all 
Members have 5 legislative days to submit additional questions 
in writing to Mr. Acosta for written responses for the record.
    Mr. Chabot. Without objection, so ordered.
    Mr. Conyers. Mr. Chairman?
    Mr. Chabot. Yes. The gentleman from Michigan is recognized.
    Mr. Conyers. Thank you very much. I would like to strike 
the requisite number of words and make an opening statement.
    Mr. Chabot. The gentleman is recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    Now, we have several problems, Mr. Acosta, that I hope you 
can address. One is the Texas redistricting issue. The second 
are the absence of compliance agreements in the pattern and 
practices in law enforcement cases. And the third is the Tulia, 
Texas, incident in which we have a very unclear record of what 
the Civil Rights Division did in that area.
    Now, my comments are dealing with the Division, and there 
are a number of staff and trial attorneys that I want to 
commend for the work that they are doing, but we have the issue 
of partisan politics infecting the work in the Civil Rights 
Division, from hiring to substantive decision-making. And I 
think that this problem lays directly at your feet.
    Now, it is--one of the great questions of Federal 
governance is to why you recused yourself from the Texas 
redistricting case, and I am hoping that you will take some 
time to make it clear, to tell us what was going on. The Texas 
preclearance was incredible.
    Here we have, for the first time that I remember, a 
Majority Leader of the Congress from Texas goes back to Texas, 
announcing, as it were, that the districting plan entered into 
by the--drawn up by the judges is unuseful, unhelpful, and that 
he has a better idea. I mean, this is incredible. If everybody 
starts doing that, it is hard to tell where the electoral 
system of Members of Congress is going to end up. But the plan 
which has now been enacted eliminated three effective minority 
opportunity districts, and all seven minority-influenced 
districts. As the Texas delegation stated on numerous 
occasions, the plan has a devastating effect on diluting the 
voting strength of more than 3.5 million Latinos and African 
Americans across that State.
    Now, you know how many times you have been--that you have 
elected to recuse yourself and, to my knowledge, have never 
provided a public response, not even to the letters that I have 
sent you, and probably lots of other people as well. Your 
departure left the Civil Rights Division with no minorities 
whatsoever, from management to line attorney, participating in 
the section 5 review of the Texas plan. Moreover, your decision 
left the Voting Section under the supervision of two 
political--two deputies, unconfirmed, political to the core, 
one of whom is in this room now, both of whom lack strong 
experience in the substantive law, and one of whom possesses 
serious enough political baggage to merit disqualification from 
participating in this matter under Department conflict 
regulations. So I hope you can understand how the scenario of 
unconfirmed political appointees making one of the most 
significant section 5 determinations since the enactment of the 
Voting Rights Act raises serious concerns that the review would 
be politicized.
    And when you review the results as I have, those suspicions 
were justified. And the clear signal of their objection to the 
nature of the process, the chief of the Voting Rights Section 
of the Civil Rights Division did not sign the no-objection 
letter for the Texas plan.
    So I hope you can explain this to the Committee. Why did 
you flee the process? I hope you can tell us when we will 
receive a substantive response to my letter going back to 
December 23, 2003, requesting a copy of the recommendation 
memorandum prepared by the career staff of the Voting Section 
in the Texas congressional case and the other States that were 
subject to review.
    The actions of the Division in Texas and other section 5 
matters require the vigorous oversight by this Committee to 
protect the integrity and meaning of the Voter Rights Act 
itself. The other body has already entertained amendments that 
would extend section 5 in its current form. Before moving 
forward in this area, faced with a 2007 deadline, this body 
must determine whether the current statutory scheme is adequate 
or needs improvement.
    In our November 25 letter to Attorney General Ashcroft, we 
noted that prior to the retirement of James Turner as Career 
Deputy Assistant Attorney General for Civil Rights, it had been 
the practice of the Department to place the Voting Section 
under the supervision of the Career Deputy Assistant Attorney 
General, rather than one of the numerous political deputies.
    And so I would ask unanimous consent, Mr. Chairman, to 
place the rest of my comments\1\ in the record, and I thank you 
for the generous allotment of time that you have afforded me.
---------------------------------------------------------------------------
    \1\ The material referred to was not available at the time this 
hearing was printed.
---------------------------------------------------------------------------
    Mr. Chabot. Without objection, that will be included in the 
record.
    And the gentleman's time has expired.
    Does the gentleman from Florida wish to make an opening 
statement?
    Mr. Feeney. No, thank you, Mr. Chairman.
    Mr. Chabot. Thank you.
    Any other opening statements? Okay.
    If not, we again welcome Mr. Acosta here this afternoon. R. 
Alexander Acosta was selected by President Bush to serve as 
Assistant Attorney General for the Civil Rights Division of the 
United States Department of Justice on August 22, 2003, last 
year.
    Prior to his service as Assistant Attorney General, Mr. 
Acosta served as a member of the National Labor Relations 
Board, and has also served as Principal Deputy Assistant 
Attorney General in the Civil Rights Division.
    After graduation from law school, he served as a law clerk 
on the U.S. Court of Appeals for the Third Circuit, and then 
worked at the Washington office of the Kirkland and Ellis law 
firm where he specialized in employment and labor issues.
    Mr. Acosta is the first Hispanic to serve as an Assistant 
Attorney General at the Department of Justice. He is the 2003 
recipient of the Mexican American Legal Defense in Education 
Fund's Excellence in Government Service Award, and the D.C. 
Hispanic Bar Association's Hugh A. Johnson, Jr., Memorial 
Award.
    He has also taught several classes on employment law, 
disability-based discrimination law, and civil rights law at 
the George Mason School of Law, and we welcome you here for 
your testimony this afternoon, Mr. Acosta.

STATEMENT OF THE HONORABLE ALEXANDER ACOSTA, ASSISTANT ATTORNEY 
     GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE

    Mr. Acosta. Thank you, Mr. Chairman, Ranking Member Nadler, 
Members of the Subcommittee. I want to thank you for your time 
this afternoon. I have a brief opening statement, if I could.
    Mr. Chabot. Yes.
    Mr. Acosta. Thank you once again.
    As Ranking Member Nadler referenced, we are primarily a 
litigating division. Our mission is to enforce Congress' civil 
rights laws, and we have done so, and we have done so 
vigorously. The written testimony previously submitted provides 
an overview of some of our work, but what I would like to do 
this afternoon is take a few minutes to touch on a few of my 
personal experiences in the few months since taking office.
    Since we are a litigating division, I would like to begin 
with two cases that I argued this January. The first case 
concerns a cross burning. It was a really outrageous case. The 
defendant pled guilty to a conspiracy of racial intimidation. 
The defendant welcomed a biracial couple to the neighborhood by 
posting a sign, a sign that read, ``No trespassing, especially 
the N word.'' The defendant subsequently took a gun, walked 
onto this African American man's property, pointed the gun at 
this man, and said, ``Hey, blank, I have something for you.''
    That wasn't enough. The defendant then went back to his 
neighbor's property, built a cross, waited until dusk, burned 
the cross while sitting in a lounge chair drinking beer. When 
the police arrived, he told the police, ``I burned the cross 
to, `let that blank know that he is not welcome here.' ''
    Cross burning has too long been a tool of intimidation 
against racial and religious minorities. It is borne of hatred. 
It is borne of ignorance. It is among the most ugly forms of 
conduct that our culture knows. Since 2001, the Civil Rights 
Division has prosecuted nearly 40 of these cases, 40 cases, 
almost 1 a month.
    Well, in this case the sentencing guidelines called for a 
sentence of up to 2 years. The District Court judge, however, 
departed downward, and sentenced the individual to time served. 
I was and I am outraged by that decision, and that is exactly 
what I argued before the Courts of Appeals.
    The second case concerned a case of religious 
discrimination. A city in Florida has told two small orthodox 
synagogues that they must vacate their premises, that they must 
remove themselves from the business district. While this city 
prohibits houses of worship absolutely, it allows private 
clubs, such as Masonic lodges. The reason the city gives is 
that a private club such as a Masonic lodge has social events 
and rituals which from a secular perspective do contribute to 
the economy of the business district, but that a synagogue that 
has rituals and social events, the same as a Masonic lodge but 
led from a religious rather than a secular perspective, do not 
contribute sufficiently to the business district.
    Well, this is wrong. Congress, in RLUIPA, overwhelmingly 
said it is wrong. I believe it is wrong. And I argued that case 
personally before the Court of Appeals as well.
    In addition to these cases, I have traveled to address and 
to discuss our enforcement responsibilities. This February I 
was privileged to attend and participate in a conference hosted 
by the War Against Trafficking Alliance in Mumbai.
    I thought I understood what human trafficking was about. 
Mr. Chairman, I was wrong. I never really understood what human 
trafficking was about until you visit some of the places where 
these victims and these women are kept, the conditions in which 
they live. I can't find words to describe some of the 
conditions that I saw. Human trafficking is evil. It is nothing 
less than modern-day slavery. It is vile.
    I want to mention a recent case just to drive home the 
point of what human trafficking really entails. The case 
concerns four Mexican women, girls actually. Some were as young 
as 14 years of age. They were lured to our Nation with promises 
of a husband and a better life. What they found instead was 
captivity and prostitution at a brothel in Plainfield, New 
Jersey. They were forced to have sex with man after man after 
man 7 days a week, 24 hours a day. They were never allowed to 
leave the brothel.
    Those two criminals have now been sentenced to 17 years. 
These peddlers in human misery must be brought to justice. We 
have taken substantial steps and devoted substantial resources 
to ensuring that this is so. And, in fact, we have brought 
charges against over 130 defendants on human trafficking and 
related crimes.
    This past week I also traveled to Albuquerque to meet with 
small business owners and leaders as part of our ADA Business 
Connection Initiative. My goal is to discuss how we can work 
cooperatively to build opportunities for Americans with 
disabilities. We vigorously enforce the ADA by litigation, but 
at the same time we do everything in our power to promote 
voluntary and cooperative compliance. Few businesses in this 
Nation realize that Americans with disabilities number in 
excess of 50 million and wield a purchasing power of $170 
billion in discretionary spending per year. That is three times 
the purchasing power of the teenage market. Our Business 
Connection Initiative is just one of several initiatives that 
focus on spreading this message and encouraging businesses to 
increase access to individuals with disabilities voluntarily.
    Later this week, I will be traveling to Selma. I will be 
traveling there to mark the anniversary of the crossing of the 
Edmund Pettus Bridge. I will have the privilege of sharing the 
stage with one of your colleagues, Congressman Lewis, where we 
will be attending a ground-breaking at the Center for the 
Selma-Montgomery National Historic Trail.
    Mr. Chairman, I believe that time spent listening and 
hearing concerns is as important as the time I spend litigating 
and the time I spend speaking. Dialogue and communications with 
the civil rights community is an important part of my job. In 
the few months since I took office, I have met personally with 
over 200, over 200, civil rights groups, national and local 
community leaders. When I travel to a city, I try to meet local 
leaders in that city. I am pleased at the cordial and 
cooperative response that I have received from all fronts 
during my few months on the job.
    I once again thank you for the opportunity to address the 
Subcommittee, and I am happy to answer what questions you may 
have.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Acosta follows:]
                 Prepared Statement of Alexander Acosta
    Thank you Mr. Chairman; Ranking Member Nadler; Members of the 
Subcommittee:
    It is a pleasure to appear before you today and an honor to 
represent the outstanding attorneys, professionals, and staff of the 
Civil Rights Division of the United States Department of Justice.
    I want to take this opportunity to thank my able staff and section 
leadership. I am privileged to lead a dedicated group of professionals 
and prosecutors, both at the trial and appellate levels. I am happy to 
report that we have executed and continue to forward our mission of 
protecting our nation's civil rights.
    I assumed this office nearly six months ago. Preparing for this 
hearing has provided me an opportunity to reflect on that time and to 
evaluate the progress we have made.
    Over that period I have been personally involved in most issues the 
Division faces: In addition to day-to-day management and oversight, 
including reviewing and authorizing the Division's enforcement 
decisions, I have traveled to India and to the Dominican Republic to 
address the problem of trafficking in humans; I have argued in two 
circuit courts of appeal, once on behalf of a synagogue to protect 
their right to worship, and once challenging a downward departure in a 
cross-burning case. I have met with over 200 community groups and 
nationally and locally recognized civil rights leaders, and have given 
22 speeches on civil rights issues.
    Let me begin by discussing a few areas that merit mention.
                         trafficking in persons
    Allow me to start with our efforts to combat the scourge of 
trafficking in persons. Fighting human trafficking ranks among the 
chief priorities of this Administration at the highest levels.
    The President recently made this clear before the United Nations:

        We must show new energy in fighting back an old evil. Nearly 
        two centuries after the abolition of the transatlantic slave 
        trade, and more than a century after slavery was officially 
        ended in its last strongholds, the trade in human beings for 
        any purpose must not be allowed to thrive in our time.

    The Attorney General has similarly made clear his unequivocal 
commitment to this fight:

        Human trafficking . . . is an affront to human dignity. The 
        Department of Justice is determined not to stand idly by while 
        the toll in human suffering mounts. Human trafficking victims 
        often are too young, too frightened, too trapped in their 
        circumstances to speak for themselves. . . . We hope to be the 
        victims' voice, to lessen the suffering, and to prosecute those 
        who commit these crimes to the fullest extent of the law.

    It is estimated that approximately 20,000 humans, mostly women and 
children, are smuggled into this country each year. But the sterility 
of this figure fails to capture the evil of human trafficking.
    Human traffickers are peddlers in human misery. They seize their 
victims, by threat or by trick, and smuggle them across borders, often 
in loathsome conditions. Often they are sold from one trafficker to 
another, sometimes repeatedly. There, surrounded by an unfamiliar 
culture, a foreign language, without travel documents or 
identification, under threat of injury to self or loved ones at home, 
and generally bereft of any support, they are forced into labor or sex 
slavery.
    We in the United States are too often unaware that trafficking 
occurs in our midst. We are learning now that our own quiet 
neighborhoods all too often silently harbor victims. One recent case in 
New Jersey broke in an average neighborhood: one with kids playing, 
with flags fluttering, and with a sign reading ``safe neighborhoods 
save lives.'' There, in an ordinary looking house, unbeknownst to its 
neighbors, was a brothel, and in that brothel were trafficked women: 
Four Mexican women--girls actually--some as young as 14 years of age. 
They were lured to the United States with promises of a husband and a 
better life. Instead, they found captivity and rape. They were forced 
to have sex with man, after man, after man, 24 hours a day, 7 days a 
week. The case was United States v. Jimenez-Calderon. Six principals 
were convicted; they received sentences of up to 17 years in prison. 
Nor is that case an outlier.
    Additionally, in United States v. Soto, members of a smuggling ring 
who likewise trafficked Central American women and girls into the 
United States were convicted and sentenced. They held their victims in 
trailers, and forced them to perform menial house chores during the 
day, and repeatedly raped and abused them at night. When they tried to 
seek help, they were beaten, and ordered murdered.
    These defendants too were convicted; they received sentences of up 
to 23 years in jail.
    In United States v. Kil Soo Lee, we won sentences in the largest 
labor-trafficking case ever prosecuted. There, the defendants held over 
250 Korean and Vietnamese women, forcing them to work without pay in a 
clothing factory. When the laborers complained, they were beaten so 
savagely that one woman lost an eye. The sentencing for Mr. Lee is 
pending.
    Our efforts to counter this scourge are young, but successful, and 
growing. During fiscal years 2001 through 2003, we charged 113 
traffickers--nearly a three-fold increase over the previous three 
years. Of these, 81 included sex-trafficking allegations. Over that 
period, we have opened 210 investigations into allegations of human 
trafficking.
    In addition, this fiscal year alone we have charged 19 defendants, 
have incarcerated an additional eight, and have opened 40 new 
investigations. As of January 28, 2004, we had 146 open trafficking 
investigations--more than twice the number open in January 2001.
    In order to fight human trafficking effectively, our law 
enforcement professionals must be able to recognize it, and, most 
importantly, must be able to recognize its victims. Let there be no 
mistake, they are just that. They are the kidnapped, forcibly 
displaced, victims of a crime. In order to assist in the identification 
and prosecution of these horrific crimes, we have conducted training 
sessions and seminars for Federal and State law enforcement officials, 
as well as non-governmental organizations, including the two largest 
such training sessions ever held.
    I am confident that, with the continued dedication of our Criminal 
Section and law enforcement agents, we can beat back this evil.
               civil rights of institutionalized persons
    Every bit as important, and all too often every bit as shocking, 
are the terms and conditions of confinement we find in publicly-
operated institutions in our own country. Under the Civil Rights of 
Institutionalized Persons Act, we are charged with protecting the 
rights of some of our most vulnerable citizens: those in State-run 
facilities for the aged and for persons with developmental 
disablilities, mental institutions, and juvenile justice facilities. 
Our Special Litigation Section investigates such institutions to 
identify patterns or practices that deprive residents of federally-
protected constitutional or statutory rights.
    By way of example, we recently issued a findings letter regarding 
the terms and conditions of confinement at three juvenile justice 
facilities in Arizona, which housed primarily non-violent teenage 
offenders. The results of our investigation were shocking, to say the 
least. We discovered credible evidence of the frequent sexual abuse of 
youth by both staff and other juveniles. We similarly discovered 
evidence of widespread non-sexual physical abuse, including unjustified 
physical force. Of particular concern was the recurrence of suicides at 
the facilities by juveniles confined there. At one institution, in a 
single year, three youths took their own lives. The investigation 
revealed inadequate suicide prevention measures and inadequately 
trained staff throughout the facilities. The State of Arizona has 
indicated its willingness to work with us to remediate these 
shortfalls.
    In other investigations, we have found nursing home patients dead 
from septic shock after fecal matter built up in their impacted bowels; 
we have discovered incidents of staff abusing--torturing really--
patients with severe mental retardation; and we have found elderly 
patients so neglected as to have developed bed sores that cut to the 
very bone.
    Ordinarily, the abuses in these cases are so disturbing that once 
they are brought to light, the responsible jurisdiction moves quickly 
to address them. Unfortunately, this is not always the case.
    This past December, we filed suit against the State of Mississippi, 
challenging the conditions of confinement at two juvenile facilities. 
Your colleague, Congressman Bennie Thompson, is well familiar with this 
matter, as he originally called it to our attention. Our investigation 
of these facilities revealed evidence that students were frequently 
subjected to physical abuse by staff, routinely shoved and hit, ``hog-
tied'' with hands and feet bound together behind their backs, as well 
as ``pole-shackled'' with hands tied behind a pole and left on public 
display for hours at a time. Staff made liberal use of pepper spray, 
and reports indicated that when some girls were ill as a result of 
running in the heat, they were forced to eat their own vomit. Indeed, 
some juveniles, including those known to be suicidal, were stripped 
naked and placed in solitary confinement in a dark cell with only a 
drain to serve as a toilet.
    This Administration has compiled an unassailable record in 
defending the civil rights of individuals in institutions. To date, 
this Administration has opened 39 new CRIPA investigations, involving 
46 new facilities. By contrast, during its last three years, the prior 
administration opened just 19 such investigations involving 33 
facilities. We have essentially doubled our enforcement effort. This 
Administration has issued 25 findings letters, documenting rights 
abuses at 34 State-operated institutions, has filed six lawsuits, and 
has resolved 24 matters through consent decrees and settlement 
agreements. During fiscal year 2003, we opened 12 CRIPA investigations 
covering 11 facilities, and during fiscal year 2004 we have already 
opened an additional 8 investigations into 8 facilities.
    Over the coming year, we will continue to expand our efforts to 
protect rights in the areas of physical abuse of children, elder care, 
and provision of services in the appropriate environment, as required 
by Federal law. This issue is of the highest importance to me, and to 
my staff. These problems will not continue unchecked.
                             voting rights
    The right to vote is among the most fundamental in our democracy. 
Protecting access to and integrity of the franchise is a top priority.
    Providing access to polling places is part of this effort. We have 
dispatched record numbers of Federal monitors and observers to polling 
places around the country. During 2003, an election by-year, we still 
sent a total of 380 Federal observers to watch 11 elections in 13 
counties in five States. We also sent 148 Department employees to 
monitor an additional 20 elections in 16 counties in 12 States. In 
2002, we deployed a total of 829 Federal employees, 608 observers and 
221 Department personnel to monitor elections in 17 States. By 
contrast, in 1992, the Department dispatched a total of 571 observers 
and monitors. During this year's general election, we anticipate 
similarly proactive prevention efforts.
    We recognize that physical or language barriers too often 
discourage individuals from participating in the electoral process. Our 
Disability Rights Section has actively enforced Federal requirements 
that polling places be accessible to individuals with disabilities. 
Project Civic Access, which I discuss later, addresses this need. In 
addition, we recently issued guidance for local election officials 
instructing them in how to make polling places fully accessible. That 
information, along with much other information regarding individuals 
with disabilities, is available on our website, www.ada.gov.
    We have similarly taken significant steps towards protecting the 
voting rights of language minorities under Section 203 of the Voting 
Rights Act. In July 2002, the Census Bureau determined, based on the 
2000 census, that there exist 80 newly-covered jurisdictions, for a 
total of 296 covered jurisdictions across 30 States. We conducted an 
extensive outreach campaign to ensure compliance by these newly-covered 
jurisdictions, sending letters to all affected officials and offering 
substantial technical assistance. We also initiated a comprehensive 
review of the compliance efforts of all covered jurisdictions. We have 
now monitored elections in a number of covered jurisdictions across the 
country. Where we identified problems, we are investigating. Where 
appropriate, we are prepared to sue and to negotiate settlement 
agreements and consent decrees, to ensure that deficiencies are fixed 
and that language minorities receive at polling place the assistance 
required by law.
    We likewise have begun a vigorous process of implementing the Help 
America Vote Act of 2002 (HAVA). Some provisions of that law took 
effect on January 1, 2004. Jurisdictions are now required to provide 
for provisional voting, provide voter information at polling places, 
comply with Federal rules for mail-in registration, and properly manage 
State-wide voter registration lists. In preparation for HAVA, we have 
been monitoring States' implementation efforts and have offered 
substantial technical assistance for over a year now. Now that those 
provisions have taken effect, we stand ready to enforce HAVA's 
requirements as needed. We intend to work with the Election Assistance 
Commission to help States ensure that voters know their rights under 
this new law.
    Our enforcement of the Voting Rights Act itself continues apace. 
This past year, we litigated four cases alleging violations of Section 
2 of the Voting Rights Act, which prohibits vote dilution. We prevailed 
in three. Separately, under Section 5, we continued the department's 
work addressing changes in voting schemes. During calendar year 2003, 
we received 4,829 submissions under Section 5 of the Voting Rights Act, 
including 397 redistricting plans. We analyzed and returned these 
promptly, noting objections to five redistricting plans and two methods 
of election. Between April 1, 2001, when census data was released, and 
December 31, 2003, we reviewed 2,504 redistricting plans, five percent 
more than were handled during the comparable period following the 1990 
census.
      disability rights and the president's new freedom initiative
    We have been particularly successful in advancing the rights of 
Americans with disabilities.
    Let me begin with a little background. It may surprise some of 
you--perhaps many of you--that 50 million Americans live with some type 
of disability. Most of these individuals can participate fully in 
society, contributing to our economy, our culture and our nation. For 
some, however, simple tasks such as opening doors, negotiating slight 
slopes, or navigating crowds and enclosed spaces pose a significant, 
and often insurmountable, obstacle to participation.
    As one of his first acts, the President ordered the Executive 
branch to live up to the promises the laws have made to Americans with 
disabilities. The New Freedom Initiative harnesses the resources and 
energy of all of the Executive Branch agencies whose programs affect 
the lives of people with disabilities. It advances accessibility and 
opportunity in numerous areas including employment, public 
accommodations, commercial facilities, information technology, 
telecommunications services, housing, schools, and voting.
    In the President's own words:

        Wherever a door is closed to anyone because of a disability, we 
        must work to open it. Wherever any job or home, or means of 
        transportation is unfairly denied because of a disability, we 
        must work to change it. Wherever any barrier stands between you 
        and the full rights and dignity of citizenship, we must work to 
        remove it, in the name of simple decency and simple justice.

    In keeping with the President's challenge, we have advanced the 
civil rights of individuals with disabilities on a number of fronts.
    Our strong record of enforcement speaks for itself. During calendar 
year 2003, our Disability Rights Section resolved over 350 complaints, 
through a combination of formal and informal means. Since 2001, they 
have successfully resolved over 1,000 such complaints, bringing 
increased access to public and private facilities, services, and 
accommodations. Our Housing and Civil Enforcement Section has been 
equally busy. During this Administration, it has filed 23 lawsuits 
enforcing the accessible design and construction provisions of the Fair 
Housing Act. The Housing Section has similarly targeted discrimination 
against group homes for individuals with disabilities, and housing 
providers employing policies designed to bar individuals with 
disabilities.
    Both the Disability Rights and the Appellate Sections have been 
busy pursuing ongoing litigation regarding accessibility to stadium 
style seating theaters. The Supreme Court may well address this issue 
in the near future.
    Even more prolific than our litigation efforts has been our 
Americans with Disabilities Act (ADA) mediation program. During fiscal 
year 2003 alone, we referred over 2,000 complainants to the program, of 
which 77 percent were successfully resolved. We increasingly find that 
complainants actively seek mediation. This bears out the Attorney 
General's repeated statements that through alternative dispute 
resolution we can achieve more justice, at less cost, without the 
antagonism and delays of litigation.
    Litigation and mediation, alone, however, are ineffective 
strategies for securing civil rights. Rather than wait for violations 
to occur, we must be proactive. Accordingly, through the New Freedom 
Initiative we are pursuing several initiatives aimed at spreading 
awareness of accessibility requirements, easing regulatory burdens, and 
securing voluntary compliance.
    Through Project Civic Access, we are working cooperatively with a 
host of local governments to bring their civic spaces and public 
services into compliance. Municipalities operate important public 
facilities, such as court houses, police stations, jails, libraries, 
municipal buildings, theaters, voter registration locations, land 
record offices, and the like. Rather than approach accessibility at 
these locations piecemeal, as individual facilities draw complaints, we 
work proactively with municipalities to develop a comprehensive plan to 
bring all their civic spaces into compliance. To date, we have entered 
agreements with 60 separate cities and towns.
    Through the ADA Business Connection program, we are reaching out to 
the business community, and in particular to the small business 
community, to educate them as to accessibility issues and the 
opportunities available in working with the disability community. Small 
businesses, in particular, often violate accessibility requirements 
simply because they are unaware of them. We hope to spread awareness. 
More generally, we hope to raise awareness of the size and market power 
of the disability community. As I stated earlier, over 50 million 
Americans live with some form of disability, a community with an 
aggregate income of over one trillion dollars and discretionary 
spending of over 170 billion. That figure is three times the purchasing 
power of teenagers--a prime target for advertising. As the baby boomer 
generation grows older, these figures will only increase. The baby 
boomers will increasingly seek accessible housing, easy-to-use 
products, and accessible environments. The business opportunities for 
those willing to address these needs are significant.
    We have also been working with States to conform their State 
housing and building codes to Federal accessibility requirements. The 
ADA provides that once we certify a State code as being substantially 
equivalent to Federal accessibility guidelines, compliance with that 
State code will be considered prima facie evidence of compliance with 
the ADA. Certification is advantageous both to builders and businesses 
as it eases the burdens of compliance, and also for the disability 
community, as it increases accessibility. Within the last month, we 
certified Maryland's State accessibility code, and are working with a 
number of other States towards the same end.
    Finally, we have developed a substantial outreach effort to both 
businesses and the disability community through our website, 
www.ada.gov, and through our toll-free hotline. Last year, we received 
over 25 million ``hits'' on the website, and assisted over 120,000 
callers through our ADA hotline.
    In all, I must say I am proud of our efforts to assist Americans 
with Disabilities. Strong enforcement, coupled with mediation, 
proactive prevention, compliance assistance, and regulatory 
simplification, is helping to ensure that the more than 50 million 
Americans with disabilities can contribute to, and participate fully 
in, our nation.
                 bias motivated and color of law crimes
    Crimes motivated by bias are among the most ugly acts we face in 
our profession. They are crimes motivated by little more than hate and 
ignorance. Whether racially motivated, such as cross or church 
burnings, or whether religiously motivated, such as attacks on a 
synagogue or a mosque, such crimes cut deeply against our national 
ideal of one nation, one people, without regard to such petty 
differences. We continue to pursue aggressively the perpetrators of 
bias motivated crimes.
    Let me give you three recent examples of the types of crimes we are 
prosecuting.
    In February 2003, we secured the conviction of Ernest Avants for 
the 1966 murder of Ben Chester White, an elderly African American farm 
worker in Mississippi. The defendant and others took Mr. White to a 
national forest, where they shot him multiple times in the body and 
head. For this role in this hideous offense, Avants was sentenced to 
life in prison. The prosecution was made possible only after we 
uncovered evidence that the murder had occurred in a national forest.
    In another case, we indicted five white supremacists for assaulting 
two African Americans in a Denny's restaurant in Springfield, Missouri. 
One of the victims was stabbed, and suffered serious injuries. The 
other was threatened with the same. The victims' only ``offense'' was 
to enter the restaurant to eat with two white women.
    In a third case, we indicted three men on disturbingly similar 
charges. According to the indictment, these individuals assaulted six 
Hispanic teenagers--three boys and three girls, all under age 16--who 
were entering a Chili's restaurant to celebrate one of their birthdays. 
One was beaten and stabbed so badly as to require emergency surgery to 
save the use of his hand.
    It is hard to believe that these acts continue to occur in modern 
America. We will vigorously prosecute these cases, and will seek stiff 
criminal sanctions.
    Over the past two years the most visible bias motivated crimes have 
been those termed ``9/11 backlash'' crimes--crimes committed against 
individuals perceived to be of Arab, Asian, or Muslim descent. 
Immediately following 9/11, and to a much lesser extent following the 
start of Operation Iraqi Freedom, we saw a spike in such incidents. 
Fortunately, however, after the President and the Attorney General 
strongly condemned such behavior, these incidents quickly fell to near 
their pre-9/11 levels.
    We have had tremendous success fighting these crimes. Since 9/11, 
in conjunction with the FBI and United States Attorneys' offices, we 
have investigated over 500 allegations of such bias motivated crimes. 
These resulted in local prosecutors initiating 125 prosecutions. In 
addition, the Civil Rights Division brought Federal charges in 13 cases 
against 18 defendants, with a 100 percent rate of conviction.
    The Community Relations Service has sponsored more than 250 town 
meetings around the country and we have held more than 25 meetings with 
community leaders to address civil rights concerns. This effort will 
continue.
    We have made a particular effort to target illegal cross burnings, 
a grotesque practice, used historically to terrorize and intimidate 
racial and religious minorities. Since 2001, we have brought 35 cross-
burning prosecutions, charging a total of 50 defendants.
    I personally argued one such case in the Fourth Circuit, appealing 
the district court's downward departure from the sentencing guidelines. 
In that case, United States v. May, the defendant had engaged in a 
pattern of racially hostile conduct towards a mixed race couple, 
including posting a racially explicit ``No Trespassing'' sign, and 
threatening with a handgun. This conduct culminated in a cross burning. 
The district court's departure would have let the defendant off 
essentially for time served.
    The Criminal Section also prosecutes ``color of law'' cases--law 
enforcement officers who willfully and knowingly deprive individuals' 
of their civil rights. For instance, in United States v. Waldon we 
prosecuted a Sheriff's Deputy who strangled to death a businessman who 
he and his partner had arrested as part of a robbery scheme. And, in 
United States v. Young, we prosecuted a police officer who admitted to 
using his authority to coerce a young woman into having sex with him. 
Over the past three years, the Criminal Section has charged 217 
officers with such crimes, as compared with 198 during the prior three-
year period. These efforts will continue.
                           special litigation
    In addition to the CRIPA work, which I discussed previously, the 
Special Litigation Section also devotes substantial resources to 
investigating, and where appropriate, prosecuting law enforcement 
agencies for patterns and practices of depriving individuals of their 
civil rights.
    The overwhelming majority of law enforcement officers perform their 
jobs with dedication, fairness and honor. Theirs is a special trust. 
They take substantial risks and they deserve our respect. But with 
trust comes responsibility. Instances of abuse by a few damage the 
profession as a whole. Instances of abuse undermine our criminal 
justice system. When officers do transgress and abuse the public's 
faith and trust, and violate the clearly established constitutional 
rights of those they have sworn to protect, corrective action must be 
taken.
    It is with this in mind that, working with the Special Litigation 
Section, we have adopted a more transparent approach for achieving 
solutions and remedying problematic practices. The Special Litigation 
Section thus strives to keep target agencies fully informed as to its 
findings and potential violations as the investigation proceeds. And, 
as the process unfolds, we work hard to resolve complaints without 
litigation. Our response is a graduated one, which considers the 
potential violations. By working with law enforcement agencies, rather 
than appearing only as a litigation opponent, we can achieve greater, 
in less time, results which are longer lasting, and with less cost and 
rancor. In short, we have expanded our effort to affect not only a 
prosecutorial, but also an instructive, role.
    Let me give you a couple of examples:
    First, we recently entered both a consent decree and a memorandum 
of understanding with Prince George's County Police Department (PGPD). 
Through these, the Department agreed to sweeping reforms. The 
agreements require widespread reform in PGPD's use of canines and 
force. In addition, they establish specific training requirements and 
accountability practices.
    Most notably, the agreements will require PGPD to take the 
following steps: (1) reform its use of force policies, as well as its 
training, reporting, and accountability procedures; (2) adopt and 
implement a ``guard and bark'' methodology for canines, whereby canines 
will locate suspects and hold them at bay by barking loudly--use of 
biting is restricted to specifically delineated exigent circumstances; 
(3) create a special board to review all firearm discharges; (4) 
operate a system to manage risk regarding officer performance; (5) 
effectively review canine bites and other related activity; and (6) 
investigate and review misconduct allegations.
    This structure was unique in its use of both a consent decree and 
memorandum of understanding. We insisted on the consent decree where 
court involvement was essential, and employed a memorandum of 
understanding where flexibility and the ability to work with the 
Department to craft solutions were necessary. Our approach was 
sufficiently creative and effective that the agreements were applauded 
by the city, the police force, the Fraternal Order of Police, and 
community groups alike. To ensure the effective implementation of the 
agreements, the Justice Department will continue to monitor the Prince 
George's County Police Department for the next three years. But, we 
will not be present solely as a watchdog; we also will remain involved 
to offer technical assistance.
    The agreements resolved investigations that had been open since 
July 1999 and October 2000. By working with the jurisdiction towards 
these goals, rather than simply investigating with an eye to civil 
litigation, I believe we have come farther much faster than we 
otherwise would have.
    In July 2003, we similarly reached two significant consent decrees 
with the city of Detroit, a city that has seen more than its fair share 
of policing difficulties over the years. The city and its police 
leadership are now working hard to implement those agreements. While 
the City was off to a slow start, the monitor's first quarterly report 
found substantial efforts in several important areas.
    Our record of enforcement is impressive. We have opened 12 new such 
pattern or practice investigations, and are currently conducting 
preliminary inquiries into more than 20 additional agencies. This 
Administration has filed seven lawsuits against law enforcement 
agencies and has reached settlement agreements in 13 such suits. This 
compares with the two such settlements that were entered over the 
preceding three years.
    In addition to litigation, as I indicated, we make a concerted 
effort to be transparent in our investigations. The ultimate purpose of 
our investigations is to fix the problem, not to fix the blame. 
Accordingly, although not required to, we now provide police agencies 
with extensive technical assistance. We also issue findings letters, 
documenting in detail our conclusions, and explaining why a particular 
practice may be problematic. This provides jurisdictions with a clear 
roadmap to compliance, which makes settlement and cooperative fixes 
significantly more likely.
                       employment discrimination
    Fighting discrimination in employment has long been a core function 
of the Civil Rights Division, a mission that this Administration has 
carried on. We have fought employment discrimination on the basis of 
race, color, national origin, sex, disability, and religion, and will 
continue to do so.
    For example, in January we filed a ``Section 707'' pattern or 
practice lawsuit against the City of Erie, Pennsylvania, challenging 
its use of an unjustified physical agility test in selecting entry-
level police candidates. Since 1996, 71 percent of men had passed the 
test, but only 13 percent of women. Of note is the fact that the City 
declined to proffer any justification for this test.
    And, more recently, we filed two sexual harassment employment 
discrimination suits. The first was against the City of Baltimore 
Department of Public Works under Title VII, alleging that it subjected 
a former female employee to a hostile work environment and failed to 
implement its own complaint process. In other words, the suit alleged 
that the former female worker was subjected repeatedly to a verbal and 
physical barrage of lewdness, public nudity, and pornography. The 
second challenged a requirement by the District of Columbia fire 
department that new hires for emergency medical technician positions 
``successfully'' pass a pregnancy test, and that they not become 
pregnant during their first year.
    We continue to fight racial discrimination in employment. Just last 
week, we filed an employment discrimination suit against the New Jersey 
University of Medicine and Dentistry, alleging failure to promote on 
the basis of race. In United States v. Delaware we alleged that the 
Delaware State Police's written examination for selecting entry-level 
police officers illegally discriminated against African-Americans on 
the basis of their race. Specifically, we asserted that the State's use 
of the ``ALERT'' exam had a disparate impact against African-Americans, 
was not job-related and, thus, violated Title VII. This case was tried 
in the United States District Court for the District of Delaware last 
August.
    We are also awaiting a decision in another major pattern or 
practice race discrimination case, U.S. v. City of Garland, Texas. In 
that case we alleged that the city's use of its written examination for 
entry-level police officers and firefighters had a disparate impact 
against African-Americans and Hispanics, was not job-related and, thus, 
violated Title VII. As in the Delaware case, we are awaiting a decision 
from the court.
    Our enforcement figures are substantial. So far this fiscal year we 
have initiated several 41 Section 707 pattern or practice 
investigations, investigating a series of fire departments for possible 
racial discrimination, and 11 Section 706 ``individual violation'' 
investigations. Moreover, I have authorized three Section 706 suits and 
one Section 707 suit. Historically, the Section has filed no more than 
one pattern or practice lawsuit per year.
    In addition to the Employment Section, the Office of Special 
Counsel for Immigration Related Unfair Employment Practices (OSC) also 
pursues employment discrimination specifically directed on the basis of 
citizenship or national origin. The Office of Special Counsel enforces 
the anti-discrimination provision of the Immigration and Nationality 
Act (INA). This mission includes (1) protecting workers' rights by 
investigating and resolving complaints, whether through formal or 
informal means; (2) engaging in public outreach and education efforts 
for both workers and employers through speeches, panel participation, 
print and web informational publications, a telephone hotline, and 
publicly-funded grants for the same purposes; and (3) providing inter-
agency and inter-government advice and counsel on immigration 
employment-related issues.
    In September 2003, OSC settled a charge that Triangle Services, 
Inc., had terminated an asylee in violation of the INA through document 
abuse. The complaint alleged that upon expiration of the complainant's 
employment authorization, Triangle refused to accept other legally 
acceptable documentation. At the same time, Triangle accepted such 
documents as proof of qualification from United States citizens. 
Triangle agreed to pay a $1,100 civil penalty and $14,400 in back pay 
and benefits, and also agreed to provide training and post notices 
regarding employees rights.
    In March 2003, OSC reached a settlement agreement resolving a 
complaint that the respondent discharged and replaced four United 
States citizens with non-citizens on the belief that non-citizens would 
be harder working, more dependable, and less prone to complaining about 
working conditions. DDI agreed to pay $18,000 in back pay, a $1,000 
civil penalty, and to advertise positions publicly in the future.
    Overall, over the past three years, OSC has secured $1,302,700 in 
civil penalties and damages. This compares favorably with the 
$1,075,100 recovered over the prior three years. The Office of Special 
Counsel also continues its more informal efforts to resolve disputes, 
having received 18,580 calls to its hotline in 2003, and handled 194 
telephone interventions into disputes. Both figures comport with the 
Section's historical activity levels.
                     housing and civil enforcement
    We have taken a strong stance against sex discrimination--often in 
the form of sexual harassment--in the provision of housing. All too 
frequently we see unscrupulous landlords prey on needy tenants, 
obliging them to suffer sexual harassment, if not to outright acquiesce 
in sexual acts, on threat of eviction or other adverse housing actions. 
This Administration has filed six lawsuits in five States challenging 
such conduct. These have been resolved both through consent decrees and 
litigation, and we consistently secure significant monetary damages and 
penalties, as well as injunctions against violators' continued 
involvement with property management. Last year, we took one such case 
to trial and were vindicated with a jury verdict in the amount of 
$451,208 against a landlord who harassed at least 22 female tenants.
    Equally important is the provision of accessible housing to 
Americans with disabilities. I discussed previously our efforts 
enforcing the requirements of the Fair Housing Act, along with the ADA, 
that certain housing units and common spaces be accessible.
    The Housing and Civil Enforcement Section has responsibilities 
beyond the housing arena. One other area of particular note is our work 
under the Equal Credit Opportunity Act, pursuing ``redlining,'' the 
practice of declining to locate or lend in an area based on the race of 
its inhabitants, and other discriminatory lending practices.
    In 2003, we resolved a significant redlining suit against Mid 
America Bank in Chicago, Illinois. We alleged that the bank redlined 
predominantly African American and Hispanic portions of the greater 
Chicago area. In settling the lawsuit, the bank agreed to open two new 
branches in these areas, to undertake outreach and education programs 
there, and to provide $10 million in subsidized loans to qualified 
residents over a five-year period.
    At present, I have authorized two additional redlining suits, and 
we have a number of similar cases under preliminary investigation. We 
also have opened several active investigations into allegations of 
racially discriminatory auto lending, and are monitoring private 
lawsuits raising similar claims.
    The Housing and Civil Enforcement Section has also been actively 
enforcing RLUIPA--the Religious Land Use and Institutionalized Persons 
Act of 2000. RLUIPA prohibits States and municipalities from 
discriminating on the basis of religion, from treating religious 
assemblies less equally than non-religious assemblies, and from 
imposing a substantial burden on the exercise of religion absent a 
compelling governmental interest and narrow tailoring.
    Since November 2001, the Administration has opened 15 formal 
investigations into allegations of religious discrimination in the 
land-use context. For example, in West Mifflin, PA, we assisted a 
predominantly Black Baptist congregation that had purchased a church 
from a predominantly white Baptist congregation. The black congregation 
was denied an occupancy permit. After we sent a letter opening our 
investigation, the town issued the permit.
    We have filed one lawsuit under RLUIPA, United States v. Maui, in 
which we are challenging a County Planning Commission's decision to 
deny the Hale O Kaula Church permission to use agricultural land for 
religious worship, and to construct a second floor on a building 
already owned by the Church. In December 2003, the District Court 
denied the County's motion to dismiss.
    In January, I personally argued an RLUIPA appeal in the Eleventh 
Circuit Court of Appeals. In that case, Midrash Sephardi v. Surfside, 
the town's zoning ordinance prohibits religious assemblies from its 
commercial district, yet permits private clubs such as lions clubs and 
masonic lodges. We contend that such assemblies are comparable, and 
thus are entitled to equal treatment.
                       educational opportunities
    The Educational Opportunities Section bears responsibility for 
overseeing compliance with approximately 360 consent decrees, 
settlement agreements, and court orders in primary, secondary, and 
higher education school desegregation cases. Some of these cases are 
decades old. Under this Administration, the Section has started to 
review this docket to determine in which, if any, additional relief is 
necessary, or whether a district is an appropriate candidate for 
unitary status.
    Last year saw the successful agreement of unitary status and 
dismissal of one of the longest running school desegregation suits in 
the nation, Davis v. East Baton Rouge Parish School System. The school 
system agreed to fund a number of additional magnet programs and other 
educational opportunities for African American students, and the 
litigation was dismissed with prejudice. But not every case warranted 
unitary status. We have obtained or filed for additional relief in a 
number of school districts where the problems to be remedied by the 
original consent decree persisted.
    The Education Section continues to focus on discrimination in 
education on the basis of language. The Equal Educational Opportunities 
Act of 1974 (EEOA) requires school systems to overcome language 
barriers that impede students' ability to learn and function in 
English. We recently reached agreements to improve the programs created 
to implement the EEOA in Bound Brook and Plainfield, New Jersey, and 
are investigating a number of schools and school systems in several 
States for their possible failure to meet their EEOA obligations. In 
one case, for example, we have authorized suit (and are currently 
engaged in active pre-suit negotiations) against a school that failed 
to provide adequate language instruction to numerous non-English 
speaking Asian students, placing them in classes taught in a different 
Asian language. We further allege that this school condoned the verbal 
and physical abuse of Asians by other students.
    We continue to enforce Title IX actively, both at the trial and 
appellate levels. We have participated both as a party and as an amicus 
in Title IX cases involving discrimination in athletics and in-school 
harassment. Our amicus briefs have supported the right of individuals 
to file a private right of action under Title IX for claims of 
retaliation, and have defended the constitutionality of applying Title 
IX to the States. We also currently are investigating allegations that 
a high school employee physically and verbally harassed female students 
over several years with the school district's knowledge, in violation 
of Title IX's guarantee.
    The Educational Opportunities Section also has been actively 
addressing discrimination on the basis of religion in the educational 
context. It has opened several investigations into allegations of 
discrimination against the wearing of headscarves by female Muslim 
students. We have filed several amicus briefs challenging religious 
discrimination. In two cases, for example, we defended the right of 
clubs to distribute religious messages on the same terms as other 
students could distribute secular messages; and in two others, we 
defended the right of religious groups to have equal access to, and 
equal use of, school property as secular groups. We also participated 
in a case where students in a Massachusetts high school were suspended 
for distributing candy canes at Christmas with a note that explained 
the religious significance of the candy cane and a prayer. Our amicus 
brief noted that that the school had engaged in viewpoint-based 
discrimination against religion in violation of the First and 
Fourteenth Amendments--a position also supported by the American Civil 
Liberties Union in a brief supporting the students. The district court 
agreed with us in a 62-page opinion.
                        coordination and review
    As I noted earlier, a central focus of this Administration has been 
expanding access to public services for language minorities. Most 
individuals living in the United States read, write, speak, and 
understand English. For many though, English is not their primary 
language. The 2000 census identified over 26 million who speak Spanish, 
and seven million who speak an Asian language, at home. Anyone having a 
limited ability to speak, read, write, or understand English falls in 
the category of ``Limited English Proficient,'' or LEP.
    Being LEP can be a barrier to access to public services and 
benefits, and often bars participation in the very tools made available 
to enhance English language ability and civic participation, such as 
schools and voting. Accordingly, the Federal government has committed 
to making its services accessible to LEP individuals.
    In addition, our Coordination and Review Section's (COR) developed 
the Department's ``Guidance to Federal Financial Assistance Recipients 
Regarding Title VI Prohibition Against National Origin Discrimination 
Affecting Limited English Proficient Persons.'' The Guidance 
implemented Executive Oder 13166, which mandated LEP accessibility, 
which along with Title VI regulations, requires that Federal as well as 
federally funded programs and services provide meaningful access to LEP 
individuals.
    Coordination and Review is responsible for enforcing non-
discrimination requirements in Department-funded programs. COR 
currently has 23 open LEP complaints that it is investigating, under a 
Memorandum of Understanding with the Office of Justice Programs. In 
addition, COR assists other agencies in enforcing Executive Order 13166 
by providing technical assistance upon request, both to Federal funding 
agencies that must ensure compliance by their recipients and to all 
Federal agencies that must ensure that their own federally conducted 
programs are accessible to LEP individuals. For example, COR has spent 
substantial time assisting the Bureau of Indian Affairs of the 
Department of Interior, including on-site assistance, in its 
investigation of allegations that only English is offered to LEP 
students on an Indian Reservation in Arizona.
    We have increased the size of the Coordination and Review Section 
to expand its ability to provide training sessions and technical 
assistance regarding meaningful linguistic access, and to continue 
administrative enforcement of Title VI/LEP requirements.
    Coordination and Review currently has eleven open formal 
investigations, with a number of additional inquiries under way. COR is 
also in the process of developing a training video on the LEP 
initiative and how to address ``language negatives.'' Moreover, we are 
printing our beneficiary and recipient/federal agency brochures in nine 
languages: English, Spanish, Chinese, Korean, Vietnamese, Russian, 
Cambodian, Arabic, Hmong, and Haitian Creole. Also, in June of 2002, we 
issued the Department's LEP Guidance for Recipients, which outlines how 
to achieve meaningful access by LEP persons to programs and activities 
receiving assistance from the Department of Justice. That Guidance has 
functioned as a template for similar guidance issued by other Federal 
agencies.
    Of particular note, COR managed the development and adoption of the 
joint final ``Cureton'' rule, which established a uniform understanding 
among 22 participating agencies of the terms covered ``program'' and 
covered ``program or activity,'' conforming to those enacted by the 
Civil Rights Restoration Act of 1987. This rule responded to doubts 
regarding Title VI regulations raised by a Third Circuit decision in 
Cureton v. NCAA.
          * * * * *
    The President, less than one minute into his Inaugural Address, 
reminded this nation of a simple truth: ``The grandest of [American] 
ideals is an unfolding American promise that everyone belongs, that 
everyone deserves a chance, that no insignificant person was ever 
born.'' He reminded us that, ``[w]hile many of our citizens prosper, 
others doubt the promise, even the justice, of our own country. The 
ambitions of some Americans are limited by failing schools and hidden 
prejudice and the circumstances of their birth.''
    The Civil Rights Division's charge is no less than helping ensure 
this grandest of American ideals of which the President spoke. There is 
no higher calling in government than ensuring that the law applies 
fairly and equally to all Americans. As the Attorney General has said, 
for those of us in public service, equal justice before the law is more 
than a mission--it is a sacred trust.
    I hope that our shared opposition to prejudice and discrimination 
helps sets a stage for an open and productive dialogue.
    I would again like to thank the Chairman, the Ranking Member, and 
the Committee for their time today and welcome any questions you may 
have.

    Mr. Chabot. And I will recognize myself for 5 minutes for 
the purpose of asking questions.
    We appreciate your testimony here this afternoon, Mr. 
Assistant Attorney General.
    Number one, it is my impression that the Division has been 
very aggressive in both its enforcement of the ADA and its 
efforts to educate Government entities and members of the 
private sector about the rights of individuals with 
disabilities. However, there is some concern that the 
Department is interpreting reasonable accommodation to mean 
wholly equivalent. Can you comment on the general principles 
the Department uses in its own investigations of potential ADA 
violations, and in defining the rights of individuals with 
disabilities in preemptive efforts? For example, what is the 
approach of the Department regarding stadium-style theaters, 
for example, the seating there?
    Mr. Acosta. Certainly, Mr. Chairman. Reasonable 
accommodation has been defined--this is obviously a fact-
specific inquiry. Courts throughout the Nation have looked at 
that term and have defined that term with reference to the 
facts of a case.
    With respect to stadium-style seating, there is a 
regulation that covers that matter, and the Department has for 
many years now had a litigating position that makes clear that 
what we expect is a comparable line of sight. There has been 
litigation on this matter. Some plaintiffs have taken the 
position that seating, for example, in the front row is 
acceptable. One Federal judge called that ``headache city,'' 
alluding, I would assume, to the angle, to the steep angle of 
view that an individual has in the front seat. We believe it is 
a comparable line of sight. We believe that is what is 
required.
    Let me add this. We are very sensitive to the cost of 
compliance, and we are working with businesses to ensure both 
access and reductions in regulatory burden. As a quick example, 
we just signed an agreement with the State of Maryland whereby 
we certified the Maryland Building Code. We have the authority, 
if States submit a code, to review the code and to identify 
discrepancies between a local building code and Federal 
requirements. By bringing a code up to specification, Federal 
specification, all sides win. In Maryland now, every time a 
local inspector goes to inspect a building, once it is signed 
off by that local inspector, the builder knows that it is built 
rightly.
    So we are very sensitive to vagueness issues, we are very 
sensitive to cost of compliance, and are working with States 
and localities to certify business codes so everyone knows what 
is expected of them.
    Mr. Chabot. Thank you very much.
    Let me shift to another area. In your written testimony, 
you state that you have opened investigations of 39 nursing 
homes and mental health facilities and also jails for violating 
the constitutional rights of their patients or inmates.
    What is the status of those investigations, and can you say 
whether you anticipate filing suits in any of them? And 
finally, how has the Division's approach to investigations 
under CRIPA changed since you have taken the lead?
    Mr. Acosta. Certainly, Mr. Chairman.
    As you alluded, we have opened 39 new investigations 
covering 46 facilities under the Civil Rights of 
Institutionalized Persons Act. In some cases, we have signed 
agreements, some very recently. In other cases we have found it 
necessary to litigate.
    We have filed the first lawsuits under CRIPA in--quite 
honestly, I didn't know in how many years. I have asked my 
staff. They don't remember--the career staff does not remember 
the last time that a CRIPA lawsuit was filed, so several years. 
That concerned a center, a juvenile detention center, in 
Mississippi, where children are being hog-tied; where they are 
being pole-shackled; where they are placed around a pole, their 
arms are tied behind their back, and left on public display; 
where girls, suicidal girls, were stripped naked, left in a 
windowless room with only a drainpipe to serve as a toilet. We 
are litigating that case, and we will litigate it strongly.
    One change that we have made under CRIPA is we are making 
very public our findings. The Division previously had not 
publicly--they were public, but they weren't widely circulated, 
the concerns with respect to certain facilities.
    The reason we have done this is when a finding is made 
public, when public attention is called on a wrongdoing, not 
only do we fix the problem at that particular facility, but we 
set national standards. We make it clear not only to that 
facility, but to other facilities, that these types of actions 
are not constitutional and are not permitted. And so I feel 
very strongly that we need to disseminate our findings and make 
them quite public.
    Mr. Chabot. Thank you very much. My time has expired.
    The gentleman from New York is recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Acosta, prior to this hearing, our staff has requested 
the dockets for each section of the Division. Do you have that 
material to share with us, or can you get it for us?
    Mr. Acosta. Mr. Nadler, I believe that material was 
requested last week. It was----
    Mr. Nadler. What?
    Mr. Acosta. It was requested last week. It is quite 
voluminous, and we have not yet been able to compile it.
    Mr. Nadler. But you will have it for us?
    Mr. Acosta. If the Committee would like it, we are 
certainly willing to provide it.\2\
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    \2\ The material referred to was not available at the time this 
hearing was printed.
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    Mr. Nadler. Thank you very much.
    Second, the Attorney General has announced that if passed 
and if upheld by the courts, the Civil Rights Division will be 
the Division charged with enforcing the so-called Partial-Birth 
Abortion Act. Now, first of all, whose civil rights will your 
division be enforcing in that case?
    Mr. Acosta. Congressman, this Congress passed a statute----
    Mr. Nadler. Well, the Senate hasn't passed it yet, have 
they?
    Mr. Acosta. Yes. This Congress passed the statute, it 
passed by a nearly two-thirds margin. It sets forth the 
elements of a crime. Our job is to enforce that statute against 
individuals who meet the elements of that crime.
    Mr. Nadler. Okay. I won't press the subject.
    The President's fiscal year 2005 budget has proposed cuts 
to the Civil Rights Division of $1.62 million and 15 full-time-
equivalent positions. First of all, from where would these 
resources be drawn, especially in light of your presumed 
additional responsibilities to enforce the Partial-Birth 
Abortion Act?
    Mr. Acosta. Certainly, Congressman. Since 2001, the 
Division has received budget increases providing us 52 
additional spots. The President's budget calls for a budget 
increase of $300,000. Because of increased expenses, that will 
cause a net shortfall of 2.2 million, which has the effect, 
assuming no decreases, of reducing our FTE by 15.
    I am working with the Administrative Section of the Civil 
Rights Division to look into this matter and to reduce 
expenditures, to streamline and make our process more 
efficient.
    I have not examined where and from what sections and what 
enforcement responsibilities any reductions in FTEs would have 
to come. I will say this: We have received substantial budget 
increases, and I think that the budget is more than sufficient 
to allow us to satisfy our mission.
    Mr. Nadler. That is interesting, because you said you are 
now examining all of that. So where did the figure come from? 
Was the figure just taken from some--in other words, the figure 
does not seem, from what you just said, to have been drawn from 
an analysis of what you need. I mean, it was drawn from some 
other source, the figure of the budget cut?
    Mr. Acosta. Congressman, if I could. The budget allocation 
is increasing by 300,000. The expenditure side, however, 
because of salary increases, expected salary increases, and 
other expected increases is increasing by 2.5 million. That 
result will be a net shortfall of 2.2.
    My understanding is that one way to address that net 
shortfall is to attrit 15 FTEs. That is not the sole way of 
addressing that shortfall, and our administrative staff is 
looking for other potentials as well.
    Mr. Nadler. Mr. Attorney General, as part of its legal 
strategy to defend the constitutionality of the Partial-Birth 
Abortion Act, the Department of Justice has subpoenaed the 
records of women who had abortions and records of clinics and 
hospitals around the country in the last 2 years; that is, 
records covering the last 2 years. In those cases, the 
Department has argued there is no Federal common law doctor-
patient privilege. Is that your understanding of current law? 
Do you believe that patient medical records should be entitled 
to no doctor-patient privilege whatsoever?
    Mr. Acosta. Mr. Nadler, as you are aware, as part of this 
Congress's passage of the partial birth abortion ban, Congress 
held, I believe, 8 years of hearings and found that----
    Mr. Nadler. Excuse me, but that isn't the question. The 
question is do you believe that there is no doctor-patient 
privilege on the Federal level with respect to these kinds of 
medical records?
    Mr. Acosta. With respect to medical records, the plaintiffs 
have introduced these medical records into the case. The 
plaintiffs witnesses are relying on the medical records to 
disagree with Congress' finding that these procedures are 
medically necessary. The Department is seeking the same access 
to these medical records.
    Mr. Nadler. For the same individuals?
    Mr. Acosta. For the same individuals, making clear that we 
are not looking for any----
    Mr. Nadler. Excuse me, but I thought the women are not 
parties to the case.
    Mr. Acosta. The plaintiffs have----
    Mr. Nadler. Let me simplify since we are running out of 
time.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
is granted an additional minute.
    Mr. Nadler. Thank you.
    As a matter of law, do you believe that there is, or do you 
believe that there should be, a patient-doctor privilege at a 
Federal level for medical records, forgetting the question of 
partial birth abortion? Do you still think there is, and do you 
think that there should be if there isn't, a doctor-patient 
privilege?
    Mr. Acosta. I haven't reviewed doctor-patient privilege, 
Mr. Nadler.
    Mr. Nadler. Thank you.
    I have one more question. The GAO is conducting a review at 
the request of Members of the Committee of reported voting 
irregularities. I understand that the GAO team has been 
encountering difficulty in getting timely responses from the 
Civil Rights Division to its requests for information and 
meetings as part of its effort to complete the study. They have 
not been encountering similar problems with other divisions in 
the Department, such as the Criminal Division. Requests take, 
on average, 4 weeks to fill, if not longer. This includes the 
requests for meetings, files, data runs on matters and cases 
initiated and copies of documents.
    From what I understand, these problems are not restricted 
to this particular study. In addition to the delays in the 
production of materials and information, GAO analysts reported 
that each request must be made in writing, which has not been 
the practice in the past. Additionally, each request must 
undergo multiple layers of review within the Division before an 
answer is forthcoming or meeting set up.
    While other divisions have used similar procedures, GAO has 
not experienced similar delays from other divisions within the 
Department.
    GAO is an arm of Congress, and these requests should be 
treated as coming from Members themselves. Can you commit to me 
that you will take steps to ensure somewhat more timely 
cooperation with the GAO in its work?
    Mr. Acosta. Congressman, absolutely.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Florida is recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman.
    And, Mr. Acosta, I have two things that I am interested in, 
perhaps you would just comment on for me.
    The Americans with Disability Act is full of great 
intentions and has really opened a lot of doors in a very 
literal way, excuse the pun. In some areas, though, it is being 
used by trial attorneys as a sword rather than a shield to 
protect people with disabilities. In my district, for example, 
small businesswomen and businessmen are visited by a trial 
lawyer who drives up somebody that has a physical handicap 
typically, and subsequently is hit with a, you know, 
multimillion-dollar, several-hundred-thousand-dollar lawsuit, 
which includes, of course, a plea for attorneys' fees.
    There is a bill pending in Congress that actually would 
provide the operator of the hotel in that instance, or whatever 
the facility was, to remedy the problem as opposed to endow 
trial lawyers further in America. But I would like to know, 
have you expanded on your efforts to sort of ratify and certify 
State building codes and how that may help us continue access 
to people with disabilities without endowing the trial 
attorneys of America? Because my purpose would be the former as 
opposed to the latter.
    And, secondly, I wonder if you could comment on the 
instances of downward departures in decisions where you have 
obtained a criminal sanction against an individual who is 
guilty of a civil rights violation as enacted by Congress. You 
mentioned one, the cross burning case.
    The Rodney King case was a fairly famous example of our 
courts basically saying that higher courts could not use a de 
novo review, but had to basically submit to decisions by lower 
courts, even if they egregiously downwardly departed. And I 
thought maybe you might have some additional examples of 
instances where downward departures has hampered your ability 
to deter, through stiff penalties, people who are guilty of 
violent actions.
    Mr. Acosta. Thank you, Congressman. Let me take the 
questions, if I could, in reverse order. With respect to the 
downward departures, I mentioned the cross burning case where 
the downward departure was from up to 2 years to time served. 
What I didn't mention was that the District Court judge in the 
record made comments along the lines of, ``I may get reversed 
on this, and if I get reversed, well, I will deal with it 
then.'' And I mentioned that because I think it is relevant to 
be aware that some individuals may have that view.
    I don't have, off the top of my head, instances of downward 
departures. If the Congressman would like, I am happy to review 
the records and submit.\3\
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    \3\ The material referred to was not available at the time this 
hearing was printed.
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    Mr. Feeney. I would, if it is not too much trouble. There 
is no real urgency.
    Mr. Acosta. Not at all.
    With respect to the certification, I thank you for the 
question, because I think it is very important. Using Florida 
as an example, if Florida submits their building code, I have 
architects on my staff that will examine the code, identify 
discrepancies, and notify Florida of those discrepancies.
    If Florida amends its code, a few things happen. One, 
builders, when they go to build it, can build it right the 
first time when it is cheaper to do so. Two, when State 
building inspectors inspect the building, they can point out 
any deficiencies or any problems. Three, a State builder's 
certification that the building is compliant with State 
building codes becomes prima facie evidence of compliance with 
the ADA, and therefore can be used to act as a shield against a 
frivolous lawsuit.
    Mr. Feeney. If I can quickly follow up on that. Suppose my 
building code has 1,000, you know, parts to it. Supposing 950 
passed muster, but 50 are denied. If I am a private operator, 
and one of the 950 approved issues is raised against me, can I 
use that as a defense? In other words, do you have to ratify 
the whole code before a State is certified?
    Mr. Acosta. Certainly, Congressman. Codes can be ratified 
in whole or in part. In the case of Florida, I believe at least 
parts of Florida's building code have been ratified. I don't 
know if the entire code has been ratified.
    Five States have submitted their codes in whole or in part 
to the Civil Rights Division in the mid-1990's for 
certification. Subsequent to that Maryland has now submitted 
their code, along with North Carolina and New Jersey, and 
several other States.
    The only parts that can be used as an affirmative defense 
are those parts that we have certified.
    Mr. Feeney. Thank you.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Michigan is recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Acosta, how many times have you recused yourself in the 
course of your being in charge of this Division?
    Mr. Acosta. Congressman, I have recused myself twice.
    Mr. Conyers. And did you choose to give public reasons for 
that?
    Mr. Acosta. Congressman, the Department has a long-standing 
policy, going back several years, in which we do not disclose 
the reasons why an individual may choose to recuse himself or 
herself.
    Mr. Conyers. Well, are you from Texas?
    Mr. Acosta. I am not from Texas, Congressman.
    Mr. Conyers. Well, then what--what are we to draw from one 
of the most--both cases were important, but in one of the most 
novel and far-reaching attempts to redistrict congressional 
seats, you were not there, but, even worse, it was left at the 
hands of political appointees.
    Mr. Acosta. Congressman, I understand your concern. I--let 
me say this. You mentioned earlier that--I believe you 
characterized it as I fled from that decision.
    Mr. Conyers. Fled. Yes.
    Mr. Acosta. Yes. Thank you. I believed, and I do believe, 
that my recusal was appropriate, that it was the right thing 
for me to do. I have very able deputies, good deputies, and I 
have full confidence in their decision-making process.
    Mr. Conyers. Did you say that you are prevented from giving 
reasons for why you would recuse yourself?
    Mr. Acosta. Congressman, the Department's policy is that it 
does not provide the reasons why a recusal decision is made.
    Mr. Conyers. It says you may decide not to give reasons for 
a recusal. It doesn't say that you can't.
    Mr. Acosta. My understanding, having discussed this with 
the appropriate individuals in the Department, is the 
Department's policy is that it does not provide reasons why a 
recusal decision is made.
    Mr. Conyers. Well, let me ask you about the pattern and 
practice part of this thing. We are having a retrenchment in 
the area of pattern and practice enforcement under 14141, 
because the agreements lack substantial compliance 
requirements. So the teeth are taken out of them. And that is 
contrary to previous practices.
    Why have you departed from the 5-year consent decree with 2 
years substantial compliance model that was followed in the 
past? For example, in Cincinnati, where there was a great deal 
of violence, in that agreement there is no requirement for 
substantial compliance in the agreement. This is a clear march 
backwards.
    Mr. Acosta. Congressman, if I could. I believe that we have 
a rather strong record with respect to pattern and practice. In 
the 3 years preceding this Administration, there were, I 
believe, three pattern of practice agreements reached.
    Since 2001, we have reached 13 pattern and practice 
agreements. And to go into the details of those agreements, 
four of them, I believe, are consent decrees. Nine of them are 
MOUs. Whether they be consent decrees or MOUs, they have 
monitors, they require compliance. They are strong agreements.
    Now, you may be alluding to a question that was raised 
recently where the question is: Why does the agreement have a 
termination date? And the answer is this: In all our systems of 
laws, we do not put someone under--we do not put someone, for 
example, in jail indefinitely. There is typically a term. Our 
agreements do have a term. But it is important to recognize, 
and I have said this publicly, I have said this with respect to 
the Prince George's consent decree that does have a date 
certain termination date, just because an agreement terminates 
does not mean that we are out of the picture.
    We have every authority to reopen a case. We have every 
authority to bring another 14141 action. All we are saying is 
that upon termination, if there are additional issues, it is up 
to the United States to continue meeting the burden of proving 
that, in fact, there are additional issues.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you.
    Thank you, Mr. Acosta. Mr. Acosta, in my jurisdiction, near 
my jurisdiction, there have been a rash of cross burnings--
excuse me, of church burnings. In the prior Administration, a 
task force was formed, and for the proper response, the ATF has 
responded, I think, in a very timely manner to the recent 
church burnings. Is the Civil Rights Division also involved?
    Mr. Acosta. Congressman, I would have to look at the 
specific case. We are involved in several church burnings. I 
would be happy to get back to you with specifics.
    Mr. Scott. The ATF has been extremely helpful in that.
    Let me ask a couple of questions on preclearance. The 
Georgia v. Ashcroft decision, do I understand the standard 
measure for the--on the question of dilution is whether or not 
the minority community is worse off than it was before the 
change; the change would be--make the minority community worse 
off. Whether the new policy is discriminatory or not, if the 
minority community is worse off, then it should not be 
precleared. Do I understand that right?
    Mr. Acosta. Congressman, the standard is whether or not 
there is retrogression, which can be easily termed as whether 
or not the minority community is worse off.
    Real quick, if I could, on the church burning issue. I will 
go back and look at it, because, like cross burnings, church 
burnings are something we take very seriously. And you do have 
my commitment that we will take a look at those cases if we 
can.
    Mr. Scott. Okay. Do influence districts count on measuring 
dilution?
    Mr. Acosta. The Congressman is referring to the Supreme 
Court's recent decision, where the Supreme Court said that 
there are a few ways to look at retrogression. One is whether 
the district itself has retrogressed, and if so, whether there 
is an offsetting district. But a second way of looking at that 
is with respect to influence districts. So, yes, the Supreme 
Court has, in fact, said that influence districts are a factor 
that we have to consider.
    Mr. Scott. Did you agree to release the--on the Texas case, 
the professional report that was done, the report that was done 
by the professional employees at the Civil Rights Division?
    Mr. Acosta. Congressman, I have no authority to agree or 
disagree. I am recused on that case.
    Mr. Scott. I mean, the report itself. Can that be released, 
the work done by the professional staff?
    Mr. Acosta. With respect to the Texas case, again, I am 
recused on that case, so I cannot direct staff to release or 
not release. I cannot become involved with that case or matters 
arising from that.
    Mr. Scott. Where is the document now?
    Mr. Acosta. Congressman, I--I am recused. I don't know. I 
don't know what the details of that case are.
    Mr. Scott. Who would know where the document is now?
    Mr. Acosta. My principal deputy, sir.
    Mr. Scott. Who is that?
    Mr. Acosta. Sheldon Bradshaw.
    Mr. Scott. Can we get a question to him as to whether or 
not he would authorize the release of the document?
    Mr. Acosta. I assume that Legislative Affairs that is here 
is happy to relay that question.
    Mr. Scott. Under the faith-based initiative, as you are 
aware, sponsors of federally funded programs that claim to be 
religious faith-based can discriminate in employment based on 
religion. And as you know, if you can discriminate based on 
religion, you can discriminate based on race. Was the Civil 
Rights Division consulted in coming--in coming to that 
conclusion and adopting that position?
    Mr. Acosta. Congressman, I would--as you are aware, I have 
been with the Civil Rights Division for a few months now.
    Mr. Scott. What would the Civil Rights Division's position 
be on the question of whether or not you ought to defend the 
House-passed Head Start bill that includes a provision that you 
can tell a teacher, prospective teacher, that you would have 
gotten the job, but we don't hire people of your religion, or 
we don't hire people that belong to your church? What would be 
the Civil Rights Division's position on that situation?
    Mr. Acosta. If I could, two things. One, I was about to say 
that there is a process within the Department where all 
divisions are typically consulted on a matter such as that. So 
I assume the Division was, in fact, consulted.
    With respect to the specific provision, you know, as--any 
lawyer would, I would like to take a look at the provision 
before opining as to a position.
    Mr. Scott. Could I have an additional 30 seconds?
    Mr. Chabot. The gentleman's time is expired. He is given an 
additional minute.
    Mr. Scott. Thank you.
    The House-passed bill on Head Start allows the 
discrimination. What is--does the Civil Rights Division have a 
position on whether or not teachers ought to be--whether or not 
you ought to be able to tell a prospective teacher that you 
would have gotten the job, but you are the wrong religion, or 
you belong to the wrong church, or our church has a contract, 
and we only hire our own? Does the Civil Rights Division have a 
position on that kind of discrimination?
    Mr. Acosta. Congressman, the Department has an obligation, 
and, in fact, does defend actions of this Congress so long as a 
constitutional--a reasonable constitutional argument can be 
made. The Department reaches those as a whole. I couldn't get 
more specific without----
    Mr. Scott. So you would--in terms of giving us--do you ever 
give advice, take a position? Do you like that, the idea that 
you could tell a prospective teacher----
    Mr. Acosta. Congressman, again, I assume if this Congress 
passed it, that it is constitutional, and it would be our 
obligation to----
    Mr. Scott. Let me talk about the confusion for a second. 
Can you directly fund a church in sponsoring a program?
    [2 p.m.]
    Mr. Acosta. Can a church be directly funded by the Federal 
Government?
    Mr. Scott. Right. Can First Baptist Church as a church run 
a Head Start program? Not the 501(c)(3), but directly fund the 
church; thinking of the Cleveland voucher case, can you 
directly fund a church?
    Mr. Acosta. Congress plans these issues--certainly the 
Establishment Clause prohibits funding of religion, but these 
issues arecomplex. They have gone all the way up to the Supreme 
Court at times. I would need to take a look at it.
    Mr. Chabot. The gentleman from North Carolina is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Attorney General, can you describe for me briefly or 
generally what the Civil Rights Division does under section 5 
of the Voting Rights Act?
    Mr. Acosta. Certainly, sir. Section 5 of the Voting Rights 
Act requires covered jurisdictions, there are a few, over a 
dozen covered jurisdictions, to submit any changes in voting in 
districts. We have received since 2000, I believe, over 14,000 
such submissions. They are reviewed for whether or not they 
have--whether they are retrogressive in intent or in effect.
    Mr. Watt. Of those 14,000 that you have received, how many 
has the Division said were unacceptable under the law?
    Mr. Acosta. I believe that we have objected to 39 in 
comparison to 13,000 submissions during the prior 3 years, with 
29 objections during the prior 3 years.
    Mr. Watt. Okay. In those 39 cases, I presume the Voting 
Rights Division or your Division has concluded that something 
improper has taken place, and it would have some discriminatory 
impact on minority citizens?
    Mr. Acosta. We have concluded that there would be 
retrogression intentionally or that the effect would be 
retrogressive.
    Mr. Watt. And based on that, would you have an opinion as 
to whether discrimination or adverse impact on minority voters 
is continuing in the jurisdictions that are currently covered 
under section 5?
    Mr. Acosta. Certainly whether or not--well, let me 
rephrase. It is difficult to say. I am not aware of any 
legislature that intentionally is looking to discriminate.
    Mr. Watt. I didn't ask you about intentional. I asked you 
about whether they were continuing to violate the law.
    Mr. Acosta. In at least 39 cases the plans were, according 
to our Division, retrogressive.
    Mr. Watt. Do you have an opinion as to whether, if the 
section 5 preclearance requirement were not in effect--well, 
let me phrase the question a little bit differently. Do you 
have an opinion whether the existence of the preclearance 
requirement is an important factor that is considered by those 
covered jurisdictions in the adoption of plans? Is that 
something in your experience those jurisdictions take into 
account to try to make sure that they go out of their way not 
to send up a plan that would be rejected by your Division?
    Mr. Acosta. Allow me to make this easy. Yes. And the 
jurisdictions themselves, if one were to look at the amount of 
money spent on attorneys that are expert in section 5, 
obviously they do consider it because they spend substantial 
sums on this matter.
    Mr. Watt. All right. I am just--I am trying to avoid 
keeping from having you express an opinion on a matter that is 
our legislative prerogative, the ultimate question of whether 
section 5 of the Voting Rights Act should be reauthorized in 
2007. I think that is a legislative judgment. But I also 
think--I do think it is important for us to have the factual 
information that would allow us to do a thorough evaluation of 
that issue. And so I guess my question to you is not whether we 
should make the decision to or not to do, my question would be 
whether you believe section 5 serves a valuable purpose at 
present.
    Mr. Acosta. Certainly, Congressman. Section 5 historically 
has served a valid purpose. And certainly in those States that 
are covered by section 5, the existence of section 5 has an 
impact on the redistricting process.
    Mr. Watt. Might I ask unanimous consent for 1 additional 
minute, Mr. Chairman?
    Mr. Chabot. Yes. The gentleman is recognized for an 
additional minute.
    Mr. Watt. Is it your Division's intention to engage with 
the Administration in an evaluation of whether section 5 should 
be reauthorized, and, if so, what do you expect to be your 
recommendation?
    Mr. Acosta. Certainly that is a dialogue in which the Civil 
Rights Division will be involved. My recommendation, obviously, 
is one that I would give to the Attorney General in the first 
instance. Let me say this----
    Mr. Watt. Has the evaluation already started, or has there 
been any preliminary discussion up to this point?
    Mr. Acosta. I have been aware of this issue since this 
summer when I was asked about it during my confirmation 
hearings. And if I could, it is interesting because this Friday 
I am going to be going to Selma, and as you are aware, it was 
the march across Pettus Bridge that I guess predated the 
enactment of the Voting Rights Act by 3 weeks. It was an 
historic event. And the act is an important act that has 
historically had impact on the redistricting process.
    Mr. Watt. I thank the gentleman for his comments. And I 
would just say in conclusion, Mr. Chairman, that I hope your 
experience in Selma is as powerful as the one that you 
testified about where you said in your opening statement, I 
think this is what you said, I thought I understood what human 
trafficking was about, but then when I saw it firsthand, there 
are some of us who understand voting rights discrimination and 
employment discrimination and these kinds of discriminations 
firsthand. And so I applaud you for taking steps that would 
give you those kind of personal experiences rather than just 
approaching these things in a theoretical way, because what 
always appears theoretically from the outside is not always 
what is happening in the inside. Thank you very much.
    Mr. Chabot. The gentleman's time has expired. Mr. Acosta, 
thank you very much for your testimony here this afternoon.
    The gentleman from New York is recognized.
    Mr. Nadler. Mr. Chairman, I ask unanimous consent that all 
Members have 5 legislative days to revise and extend their 
remarks and to submit additional materials for the record. And 
I also think we said additional questions.
    Mr. Chabot. Yes. Without objection, so ordered.
    And if there is no further business to come before the 
Committee, we are adjourned.
    [Whereupon, at 3:08 p.m., the Subcommittee was adjourned.]

                                 
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