[Senate Hearing 111-1102]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 111-1102
 
   OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 20, 2010

                               __________

                          Serial No. J-111-85

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
               Matthew S. Miner, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................    32
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    35
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2

                               WITNESSES

Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice...........................     4

                         QUESTIONS AND ANSWERS

Responses of Thomas E. Perez to questions submitted by Senator 
  Durbin.........................................................    26

                       SUBMISSIONS FOR THE RECORD

Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice, statement................    36


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

                              ----------                              


                        TUESDAY, APRIL 20, 2010

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senators Cardin, Franken, and Sessions.

 OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR 
                   FROM THE STATE OF MARYLAND

    Senator Cardin. The Judiciary Committee will come to order. 
Today's hearing will be an oversight hearing for the Civil 
Rights Division of the Department of Justice. I want to thank 
Chairman Leahy for giving me the opportunity to chair today's 
hearing. It is always a pleasure to have my fellow Marylander 
with us, Tom Perez, who heads up the Civil Rights Division.
    Before we get started, I just want to acknowledge--this 
hearing deals with the Civil Rights Division. It is, I think, 
appropriate to acknowledge the great loss of one of our great 
civil rights leaders, Dorothy Height, who passed away. She was 
the long-time Chairwoman of the National Council of Negro 
Women. She was a strong fighter for equal justice based on 
gender and race, and her leadership was critically important 
during the civil rights movement with her insistence for racial 
justice and gender equality.
    The saying that I think I will always remember about 
Dorothy Height was, ``If times aren't ripe, you have to ripen 
the times.'' And I think that her legacy will stick with us as 
we meet the current challenges for equality in America.
    For more than 50 years, the Civil Rights Division has been 
charged with protecting all Americans against discrimination 
throughout our society. The Division is our Nation's moral 
compass. As Senator Ted Kennedy said, civil rights is ``the 
unfinished business'' of the Nation, and there is much work to 
be done.
    Whether it is in discrimination in employment, education, 
housing, voting, personal liberties, or hate crimes, the Civil 
Rights Division must take action and not stand on the sidelines 
against those who violate our laws.
    The Civil Rights Division has a proud tradition of fighting 
to enforce anti-discrimination laws in the areas of voting 
rights, civil rights, housing, elections, employment, and hate 
crimes. However, during the last administration, the Division 
had an alarming lack of civil rights enforcement and a 
multitude of politicization, so much so that their own Office 
of Professional Responsibility and the Office of Inspector 
General began independent investigations of the political 
appointees at the Department of Justice.
    Year after year, more evidence of corruption and lack of 
enforcement came to the surface. Between 2001 and 2006, the 
Voting Section failed to file any cases on behalf of African-
American voters. During the same time period, there was one 
case, just one case, filed for minority vote dilution. In 2008, 
in the height of the economic downturn and housing collapse, 
the Division played no role in holding lenders accountable for 
discrimination. Disability lawsuits declined almost 50 percent 
under the last administration. Only ten hate crimes were 
prosecuted, the lowest number of hate crime cases brought in 
more than a decade. And, by the way, there is evidence that 
there was a rise in hate crime activity during that same 
period.
    There is a lot to be done in the Civil Rights Division to 
restore its role in protecting civil rights. When President 
Obama nominated Tom Perez to be Assistant Attorney General for 
Civil Rights, I was confident that he would restore the morale 
in the Division because he came from the Division. Tom Perez 
served for 10 years beginning as a trial attorney in the 
Criminal Section. Through the years, he moved up the ladder, 
first as trial attorney and eventually as Deputy Assistant 
Attorney General for Civil Rights.
    So he knew the importance of setting aside political and 
ideological affiliations when hiring new attorneys. Tom Perez 
knew from firsthand experience the need to ensure protection 
and legal recourse for those who have been discriminated 
against. For all these reasons, as well as leadership from 
Attorney General Holder and President Obama, I was confident 
that in Tom Perez's hands the Division would return to its 
roots of providing a voice for the voiceless and help to our 
most vulnerable citizens because he knew what civil rights 
attorneys should do.
    The administration has taken action, and I look forward to 
hearing about what the Civil Rights Division is doing under 
your new leadership. Specifically, what types and how many 
cases have been initiated, filed, and brought within the 
Housing and Civil Enforcement Sections, the Fair Housing 
Section, the Criminal Section, the Voting Section, the 
Employment Section, and the Disability Section. That is the 
purpose for today's hearing. We look forward to a dialog with 
the Division chief and carrying out our responsibility to 
oversight the Civil Rights Division.
    With that, let me turn to Senator Sessions.

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

    Senator Sessions. Thank you, Senator Cardin, and thank you 
for recognizing Dorothy Height. I got to know her on a number 
of occasions, and what a delightful, wonderful lady she was and 
what a history she has in advocating for civil rights in 
America.
    This Division is important. Properly exercised, it provides 
tremendous benefit to American citizens, and I think that the 
Chairman is right to recognize that politics is inappropriate 
in the Department and politics can be evident from both sides 
of the aisle, certainly, and we need to be concerned.
    One of the purposes, I do believe, of this hearing is to 
make sure that the Civil Rights Division is exercising its 
authority to shield and protect individuals from 
discrimination, but not as a sword to assert inappropriate 
claims that have the effect of promoting political agendas. So 
I cannot--you know, civil rights principles need to be 
professionally analyzed, and with regard to the housing 
collapse, there is strong evidence to indicate that pressure to 
make loans to individuals in ways that demonstrated clearly 
that there was no housing prejudice could well have resulted in 
an institution making bad loans that they really should not 
have made, and threats and pressures can cause some of that. So 
I think that was a part of the housing collapse.
    On election day in November 2008, members of the New Black 
Panther Party intimidated voters at a precinct in Philadelphia, 
with one member wielding a nightstick. The activity was 
described by prominent civil rights activists as ``the most 
blatant form of voter intimidation'' that he had seen even 
during the voting rights crisis in Mississippi where he had 
worked a half-century before. Despite this characterization and 
direct evidence of guilt that appeared on behalf of the New 
Black Panther Party members, the Department of Justice decided 
not to fully pursue every avenue to ensure that guilty parties 
did not disenfranchise other voters in the future. In fact, one 
of the intimidators recently worked at another voting precinct 
recently.
    So the United States Commission on Civil Rights--the U.S. 
Commission on Civil Rights has many of the same goals as the 
Civil Rights Division--are concerned about this matter, and a 
majority of the Commissioners are not satisfied that the 
Department of Justice has fully pursued every avenue of behalf 
of the voters to make sure that these actions do not strike 
again in Philadelphia or elsewhere.
    But instead of coordinating with the Commission, the 
Justice Department has put up a steel barrier and attempted to 
thwart every effort the Commission has raised about this case. 
This does not bode well for an administration that has promised 
to be open and transparent, it seems to me. So I am concerned 
that this new culture might be producing some harmful results.
    For the last several months, my office and I am sure others 
have gotten a lot of telephone calls and messages about the 
abuses of ACORN. This is an organization that Congress voted to 
de-fund because of voting practices that have proven to be 
corrupt, yet it is reported that in March of 2009, this 
administration discontinued a criminal investigation into two 
voter fraud complaints. In 2008, at least two individuals filed 
complaints against ACORN and produced documents demonstrating 
that ACORN representatives were registering underage 
individuals and individuals in the country illegally, not 
eligible to vote. The FBI and the Department of Justice opened 
investigations for fraudulent voter registration card 
submissions. This administration apparently has let ACORN off 
the hook, saying that no laws were violated even though it was 
stated by the Department ``questionable hiring and training 
practices'' occurred. Does that mean that they made errors and 
moved forward with activities that were illegal? And shouldn't 
more be done about it than that?
    In Kinston, North Carolina, the voters there decided they 
wanted to do away with party affiliations in local elections--
that is, city elections--where many have that. Kinston is a 
majority African-American community. According to an article in 
the Washington Times and other articles, this administration 
overruled the voters in Kinston because partisan elections, you 
apparently concluded, were needed so that African-American 
voters could elect their ``candidates of choice.''
    Well, I agree with the assessment of Abigail Thernstrom, a 
member of the United States Commission on Civil Rights, in 
regards to this case. She said the following: ``The Voting 
Rights Act is supposed to protect against situations when black 
voters are locked out because of racism. There is no 
entitlement to elect a candidate they prefer on the assumption 
that all black voters prefer Democratic candidates.''
    So I know that we have heard a lot of rhetoric about the 
Division being back open for business and the voting booth once 
again being protected, but I am concerned about some of these 
actions and whether or not the administration has any plans to 
enforce Section 8 of the motor-voter bill of the Voting Rights 
Act, which required dead and duplicate voters to be removed 
from the rolls.
    I am concerned about some of the disparate impact cases, 
especially in light of the Supreme Court's ruling in Ricci, 
which we had so much discussion about during the Sotomayor 
confirmations.
    So, Mr. Chairman, I would note that after this financial 
crisis, lawsuit--the administration is planning, I understand, 
to file disparate impact lawsuits against financial 
institutions because of practices that do not appear to be 
discriminatory, but might have disproportionate results. The 
New York Times reported that the DOJ ``is beginning a major 
campaign against banks and mortgage brokers suspected of 
discriminating against minority applicants in lending.'' Some 
critics have contended that the Government rules punishing 
banks--pushing banks to lend to minority and low-income 
borrowers contributed to the financial meltdown. The campaign 
could rekindle that debate. So we will need to understand with 
clarity just how you intend to approach that idea because it is 
one thing to make sure that people are not discriminated 
against. It is another to pressure banks to make loans that are 
not sound. That is not good for the borrowers, and it is not 
good for the country.
    Thank you, Mr. Chairman.
    Senator Cardin. Thank you, Senator Sessions.
    We will now hear from the Assistant Attorney General, the 
head of the Civil Rights Division, Tom Perez.

STATEMENT OF HON. THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, 
       CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Perez. Thank you, Mr. Chairman. It is an honor to be 
here, as always, in front of my home Senator and a champion of 
civil rights not only in Maryland but across America. So it is 
always great to be here in front of someone who, 
parenthetically, has one of the remarkable wives in America as 
well. Please give my regards to Myrna.
    Senator Cardin. I am glad you put that in the record.
    Mr. Perez. Yes, absolutely. And, Senator Sessions, I have 
always had great respect for you and appreciate the respect you 
accorded me dating back to 1989, when I was in Mobile, Alabama, 
prosecuting Danny Miller in a case that you supported 100 
percent of the way. So it is always a pleasure to be here in 
front of you as well. And I appreciate both of your 
acknowledging Dr. Height. It has been a sad week or so for the 
civil rights movement in the aftermath of Benjamin Hooks and 
now Dr. Height, who, when the Equal Pay Act--today is Equal Pay 
Day, and when the Equal Pay Act was signed in 1963 by President 
Kennedy, who was standing next to him? Dorothy Height, a real 
civil rights icon. So thank you for the opportunity to be here 
today to testify.
    Senator Sessions. Thank you for being in Birmingham.
    Mr. Perez. I had three wonderful days in Birmingham, as I 
told Senator Sessions, at the Civil Rights Institute, at the 
Sixteenth Street Church meeting with civil rights leaders. I 
met an old colleague of mine that I had prosecuted a case with 
in Alabama in 1991 when I was a career civil servant under Dick 
Thornburgh, and it was great to reacquaint. And I had one of 
the best meals I have ever had, Senator, in Birmingham that 
evening. Good vittles, as we say in the business.
    Senator Sessions. And I would just say how proud I am of 
Birmingham for its principled and sincere effort to confront 
its past where racial discrimination was far too prevalent, and 
much of it was very, very destructive and damaging to that 
whole city. But it has confronted its past in an honest and 
forthright way. I think other cities can learn from what 
Birmingham has done.
    Mr. Perez. I look forward to bringing my children there, 
and I look forward to bringing my children to the museum in 
Greensboro that I had the privilege of participating in the 
grand opening of, so two remarkable tributes to our Nation's 
history.
    It really is a pleasure to be here. The Attorney General 
has called our Division the ``Crown Jewel of the Department of 
Justice.'' The President singled out the Civil Rights Division 
in his State of the Union. You have been very supportive of our 
budget requests, and we are very, very grateful because that 
has enabled us to step up our enforcement efforts in a number 
of ways.
    My first priority upon confirmation was to take immediate 
steps to restore trust between career staff and political 
leadership, to restore public confidence, and to de-politicize 
decisionmaking. We worked quickly to return principled 
responsibility for hiring experienced career attorneys to the 
career securities themselves. Our new written hiring policies 
for career personnel are now on our website. Our honors hiring 
process, which had been taken away from career people in the 
prior administration, is now back in the hands of career 
people, and we hired a bumper crop of 16 new raw graduates who 
will be starting this summer and this fall.
    We have also made it a lot easier for lawyers in the 
Division to do their jobs by eliminating a wide range of 
needless bureaucratic obstacles that were standing in the way 
of doing their job. We have restored communication between 
career and non-career staff, and as a former--I will always 
consider myself a career attorney because I spent 10 of the 
best years of my life in that Division. So, for instance, 
before we make decisions on Section 5 cases, I now want to hear 
from all the career attorneys and the analysts what their 
opinions were. The policy was changed in the prior 
administration so that they were not allowed to offer that 
viewpoint. We may not always agree on the final outcome, but 
every voice will indeed be heard.
    We are encouraging our lawyers, rather than forbidding 
them, to conduct aggressive outreach to key stakeholders in 
communities across this country. We have stepped up enforcement 
across the board, and we are focusing enforcement not simply on 
quantity but on quality of cases filed and maximizing the 
number of people that we can help. And I have given you a 
detailed analysis of some of the cases, and I wanted to give 
you a few highlights.
    In the wake of the national housing crisis, the enforcement 
of fair housing and fair lending protections are among our 
most--our top priorities. Working with the President's 
Financial Fraud Enforcement Task Force, we have established a 
dedicated Fair Lending Unit and hired a Special Counsel for 
Fair Lending. We currently have 39 open matters in the Fair 
Lending Unit. Last month, we announced a landmark settlement 
with two subsidiaries of AIG to resolve allegations of 
discrimination against African-American borrowers by brokers 
with whom these subsidiaries had contracted. The borrowers were 
being subjected--the African-American borrowers were being 
subjected to excessive fees, and we have sent a clear signal in 
this settlement to lenders that they must take steps to ensure 
that brokers with whom they partner are not engaged in 
discrimination. Twenty-five hundred African-American borrowers 
who were subjected to unnecessarily excessive fees will receive 
relief in the context of this settlement.
    In the fair housing case in Southern California, we reached 
the largest settlement ever in a case involving rental 
discrimination.
    Meanwhile, as President Obama said in the State of the 
Union, we are once again working to combat all forms of 
employment discrimination. We have reinvigorated our pattern 
and practice enforcement program, and as a result, the 
Employment Litigation Section has more than a dozen active 
pattern-and-practice investigations.
    In a significant case against the New York Fire Department 
for hiring discrimination, the trial judge granted summary 
judgment to the United States, and this was after the Ricci 
decision, and he explicitly discussed how the Ricci decision 
did not apply to the particular facts of this case. And, in 
fact, he found so much evidence of difficulty and 
discrimination historically in the fire department that he 
ruled that the evidence constituted evidence of intentional 
discrimination, not simply disparate impact.
    We have also ramped up our enforcement of the Uniformed 
Services Employment and Reemployment Rights Act, or USERRA. 
Since the new administration began, we have filed 19 USERRA 
lawsuits compared with 16 that were filed during the previous 3 
years combined.
    In addition, just last week, we closed an investigation of 
the State of Oregon regarding a law dating back to 1923 that 
banned public school teachers from wearing religious clothing, 
and we worked heavily on that case because we felt that it was 
discriminatory. And the Governor signed a bill repealing the 
law, and we were able to settle the case.
    In the education context, you need look no further than the 
front page of today's Washington Post to see the work that we 
are doing in that section. And, regrettably, and very 
troublingly, we continue to see a need to combat the 
resegregation of schools to ensure that all students have equal 
access to quality education. The Walthall, Mississippi, school 
district case is a case that is an outgrowth of a 1970 court 
desegregation order. The district in recent years, through a 
transfer policy, created what many local members of the 
community called a ``white'' school and a ``black'' school. And 
what happened was through this transfer policy, the segregation 
of the schools was furthered again. And to make matters worse, 
in the predominantly African-American school, classrooms were 
then being segregated by race so that the remaining non-
minority students in the ``black'' school were being segregated 
by classroom. This was wrong. This was illegal. We attempted to 
settle the case with the school district. They rejected the 
settlement, and we were forced to go to court, and the court 
ordered the relief that is noted in today's Washington Post.
    I wish I could say that was the only case of this nature. 
In Monroe County, Louisiana, we had a case involving a school 
district, 87 percent African American. They have two high 
schools. One is 100 percent African American; one is 57 percent 
African American, 43 percent white. In the school district that 
has 100 percent African-American students, there were no AP 
classes offered and five gifted and talented or honors courses. 
In the other school that was 43 percent white, there were 70 
such courses offered. This is not fair, this is not legal, and 
we reached a settlement to correct this. Regrettably, we 
continue to see that our education docket is ripe and 
continuing our work.
    In our criminal enforcement, the prosecution of hate crimes 
remains a top priority, and we are working to implement the 
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act 
of 2009, training lawyers, law enforcement officers, State and 
local across the country. In the meantime, we have seen an 
increase in the number of hate crime cases that we have 
brought. Late last year, we announced the indictment of five 
individuals, including three police officers, on charges 
related to the fatal racially motivated beating of a Latino 
immigrant in Shenandoah, Pennsylvania, and the subsequent 
cover-up of the incident by three members of the police 
department. A very, very troubling incident. I have great 
respect for law enforcement officers and the work that they do, 
but when they cross the line, they must be held accountable for 
their actions.
    In addition to Shenandoah, we have a number of cases 
pending involving the New Orleans Police Department. In one 
case involving police-involved fatal shootings following 
Hurricane Katrina, four officers have pleaded guilty in the 
investigation into this and the other incidence is ongoing. At 
the most recent plea hearing, the district judge said the 
following, after our attorney read the underlying facts into 
the record supporting the plea agreement:
    ``I do not think you can listen to that account without 
being sickened by the raw brutality of the shooting and the 
craven lawlessness of the cover-up. We will continue our work 
in New 
Orleans.''
    On the voting front, we are actively preparing for the 
upcoming round of redistricting. The Voting Section has 
received the largest complement of new resources so that we 
will be prepared for redistricting. We are continuing the 
critical work of protecting the rights of language minorities 
to access the ballot while stepping up our enforcement of 
Section 2 of the Voting Rights Act and the National Voter 
Registration Act. We are preparing guidance on Section 7 and 
Section 8 of motor-voter so that States and others understand 
their obligations in that area. The section has an initiative 
underway to ensure compliance with critical provisions of 
motor-voter, requiring that eligible voters be able to register 
at State social service agencies. Already under this 
initiative, we have begun inquiries of six States, and we will 
expand those inquiries elsewhere. In March, we won a favorable 
ruling, a summary judgment motion, in a case against the State 
of New York to ensure voter registration opportunities required 
by motor-voter are available at offices serving college 
students with disabilities and State-funded institutions of 
higher education.
    We also have a robust disability rights practice. We are 
feverishly working on the ADA regulation as we prepare for the 
20th anniversary of the ADA. We have dramatically stepped up 
efforts to prevent the unnecessary institutionalization of 
people with disabilities, including significant cases in 
Georgia, New York, Arkansas, and elsewhere, and to ensure that 
the conditions in the facilities are safe.
    My memory banks are seared with the nightmare of a 14-year-
old girl with mental health issues who was in an institution in 
Georgia. She did not need to be there, but she was there. She 
had treatment for her condition, and one of the side effects 
from that treatment was constipation. She was in so much pain, 
but the condition--the people did not treat her. She literally 
exploded--or I should say imploded, and died in that 
institution. These are real people suffering real problems, 
some of the most vulnerable people in our community, and I 
cannot sleep at night when I think about things like that that 
are happening in institutions across this country. And we will 
continue to work on those efforts to make sure that 
institutions are safe and that only people who should be there 
are there.
    In short, the Civil Rights Division is again open for 
business, and we are indeed using all of the tools in our law 
enforcement arsenal, including litigation, education, outreach, 
and numerous forms of technical assistance. We have forged new 
partnerships with State and local law enforcement. I met with 
local law enforcement in Birmingham when I was out there to 
discuss issues of mutual interest, including our hate crimes 
enforcement, human trafficking, and other issues of church 
arsons, et cetera. And we have numerous partnerships with our 
Federal partners. We have made a lot of progress, but as you 
correctly point out, Senator, as Senator Kennedy said, civil 
rights remains ``the unfinished business'' of America. I wish I 
could be that Maytag repairman waiting for the phone to ring, 
but, regrettably, we continue to be the Toyota mechanic, and I 
am here to answer any questions you may have, and I look 
forward to your questioning.
    [The prepared statement of Mr. Perez appears as a 
submission for the record.]
    Senator Cardin. Well, thank you for energy and your passion 
on these issues. I share your concern about what we can do to 
help, and it is frustrating that we cannot move faster to 
provide the opportunities for all the people in this country.
    I also very much acknowledge the great results in 
recruitment. That is a clear sign that the right climate has 
returned to the Civil Rights Division, and we have heard and 
you have told us about the regular meetings between the career 
attorneys and the political appointments so that you have a 
seamless system taking the best advice from the career 
attorneys. And we very much appreciate that, and we applaud 
your efforts in that regard.
    I also appreciate that you started with fair lending 
because I think in these economic times fair lending is an area 
that we really need to put a spotlight on.
    I agree with Senator Sessions that we do not want to put a 
climate out there that causes institutions to do things that 
are irresponsible. That is not our intention, and I agree with 
Senator Sessions. But I think we can learn from history. You go 
back to before World War II, where we had housing programs in 
this country that were administered by FHA, and the color 
coding was adopted in redlining which had at least tried to be 
justified based upon economic realities, when what it did was 
hold down a class of people. And the net result was that wealth 
accumulation, which many times was based upon the ability to 
own a home and get the equity of that home, was denied to the 
minority population in our country. Statistics showed that by 
1980 when the GI bill's mortgages matured, the net worth of 
white families was close to $40,000, whereas compared to black 
households it was a little over $3,000.
    That has its own rippling effect as we look at trying to 
develop businesses. The first source of capital that you look 
at is the wealth that has been accumulated within your own 
community, and if you do not have wealth accumulations, it 
holds down business growth, it holds down our whole economy. 
And the same type of issues could be mentioned in a lot of 
other areas.
    Predatory lending occurred in this recent crisis. There 
were black families in Maryland that were targeted in minority 
communities that could have gotten traditional loans, but 
instead were steered by brokers into a more expensive type of 
financing and ultimately found themselves in a situation that 
they could not get out of. So I just really want to applaud you 
for focusing on the lending issue, setting up a separate unit, 
because the lending discrimination in this country is having a 
profound effect not just on the mortgage for homes, but also as 
it relates to businesses and education, et cetera.
    So I just really want to encourage you to continue, and I 
want to give you a little bit more time just to talk about what 
you are doing about the predatory lending practices to make 
sure that all communities in our country have equal access to 
credit.
    Mr. Perez. Sure. Thank you for that question, Senator, and 
thank you for your longstanding support of these efforts to 
curb predatory lending.
    As you know, I had the good privilege of serving as 
Governor O'Malley's point person on foreclosure prevention, and 
I met with many families who were days and in some cases hours 
away from losing their home. I learned a lot about this issue 
in the course of traveling across our great State of Maryland, 
and first and foremost, I think what I learned most is that 
consumer protection and preserving a sound lending climate go 
hand in hand. We sometimes live in an unnecessarily binary 
universe where we say you either do one or the other. We can 
and must do both. And when we passed the series of reforms in 
Maryland that were very aggressive, we passed them with the 
absolute support of the mortgage bankers, the mortgage brokers. 
They actually gave me an award for the work that we did. And 
they understood that when you do not have sound consumer 
protections, then that can undermine the system, writ large.
    And so the work that we are doing really builds off that 
because the data is very clear. The foreclosure crisis has 
touched virtually every community in this country, but it 
disproportionately touches communities of color, in particular 
African-Americans and Latinos. Thirty percent of the 
foreclosure activity in the State of Maryland was in Prince 
George's County, a predominantly African-American suburb in the 
State of Maryland.
    And so we have seen that, and we have seen in the AIG case 
that the brokers understood that they could take advantage of 
African-American borrowers because--cross burning are the most 
overt form of discrimination and bigotry. Lending 
discrimination is some of the most subtle. It is what I call 
discrimination with a smile. Many people are just happy to be 
in a home. They do not realize that that 8-percent interest 
rate they were just quoted was far worse than the terms that 
they were otherwise eligible. And so oftentimes we see that 
discrimination with a smile in the work that we do, whether it 
is the AIG case, whether it is the other work that we are 
doing.
    And so I truly believe that the work that we are doing on 
the President's Financial Fraud Task Force, the partnerships we 
have underway--I will be with the Attorney General of Illinois 
tomorrow. I recently met with the Attorney General of Tennessee 
to talk about potential joint efforts. Those sorts of 
partnerships are critical because we have seen, regrettably, 
that this issue has a very, very strong civil rights dimension 
and calls for us to use the tools in our arsenal, notably the 
Fair Housing Act and the Equal Credit Opportunity Act, and that 
is precisely what we are doing.
    Senator Cardin. You talk about partnership with the States. 
I want to focus on the implementation of the Matthew Shepard 
and James Byrd, Jr., Hate Crimes Prevention Act. You noted in 
your opening comments about cases that have been filed by your 
Division. That bill was passed for two purposes: one, to make 
it clear that the Federal Government would be available to deal 
with those types of activities, but also to enhance the 
partnership between the Federal Government and the local 
governments.
    Could you just share with us what your Division is doing 
with the local prosecutors to enhance their capacity to deal 
with this issue?
    Mr. Perez. That is a great question. I was in Birmingham, 
as I said, the week before last with a number of key 
stakeholders, and we had a very robust 2-hour session with 
local law enforcement, because I do not measure success of the 
Matthew Shepard Act by the number of Federal prosecutions that 
are brought. I measure success by the number of cases that we 
can bring. I have always asked the question in every case I 
have done, What is in the best interest of the case? And many 
of these cases--church arsons, for instance--it was in the best 
interest of the case, once you solved it, to give it to the 
local authorities because they could prosecute it perhaps 
faster. Some hate crimes cases are easier to give to the local 
authorities.
    Laramie, Wyoming, almost went bankrupt in the prosecution 
of Matthew Shepard because it was a small community. The 
average DA's office in the United States I believe has 
something like nine employees. They are small. We are now a 
resource for local law enforcement, and that is why I am 
traveling the country to deliver that message and to work with 
colleagues, Federal law enforcement, local law enforcement, 
nonprofit partners, to train. Because people ask me, what are 
your first impressions on the job, Mr. Chairman, and one of my 
first impressions is the more things change, the more they stay 
the same.
    Today in South Carolina, there is going to be a sentencing 
in a hate crimes case, father and son team. An African-American 
goes into a store to use the facilities. They are appalled by 
the fact that an African-American is going into the store. They 
assault him. They pull out a chain saw from their car, and they 
ignite the chain saw and attack him with a chain saw. Yes, a 
chain saw, I kid you not. Two white people come to the defense 
of this person. They attack that person as well. And we were 
able to secure a plea the day after the jury was empaneled.
    And so we see this cancer of the soul, which I thought was 
behind us, continues to rear its ugly head, and, frankly, as 
you correctly pointed out, Senator, in your opening statement, 
hate crimes are on the rise. And that is why this bill is a 
critical tool in our law enforcement arsenal, and we look 
forward to empowering both Federal and local law enforcement to 
do the work that needs to be done to combat hate crimes.
    Senator Cardin. Senator Sessions mentioned during his 
opening statement concerns about intimidation at the polling 
places, and I agree with him. Any type of intimidation should 
be dealt with.
    A couple years ago, some of my Republican colleagues raised 
the issue of access to voting by our military, and, quite 
frankly, I agreed with their concerns, and we took action 
jointly to make sure that our military gets adequate time in 
order to be able to participate in local elections.
    I mention that specifically because there could be a 
problem with those States that have late primaries as to how we 
can comply with those time limits. And we need to figure out 
how we can make sure that our military are fully empowered, all 
voters are fully empowered during the 2010 elections.
    I want to, of course, remind the Committee about the type 
of innovative deception that seems to come about every 
election, how we will see mysterious letters appear in minority 
communities telling them that the election day will be 
Wednesday rather than Tuesday or that if you have outstanding 
parking tickets, you better not show up at the polling place 
because you will be arrested and things like that; aimed at a 
segment of voters who are likely to be intimidated by that type 
of material.
    I think we all condemn that, and we have taken steps to try 
to prevent that at the State level. But to me, this should be a 
national priority, to make sure that it is clear that we have 
the capacity of the Federal Government to support our States to 
make it abundantly obvious that if people participate in these 
types of activities, they will be held accountable and that it 
should have no place in American elections.
    What are you doing in preparation for the 2010 elections?
    Mr. Perez. I completely agree with everything you have 
said, and we are working hard to make sure that we implement 
the MOVE Act, that we ensure that overseas military voters can 
vote in the upcoming primary, so that is a front-burner item 
simply because we have to get--we have primaries, as you have 
said, coming up.
    I share your concern about voter intimidation in any way, 
shape, or form. I still have a copy of the literature from 
Prince George's County in 2006 that I suspect you also have in 
a file somewhere, and that was----
    Senator Cardin. I keep it closer by than in a file.
    [Laughter.]
    Senator Cardin. A constant reminder.
    Mr. Perez. Yes. So I have seen those things, and we will 
continue to be very vigilant in the prosecution of all forms of 
voter intimidation.
    As you know, we share that responsibility with the Criminal 
Division, and we coordinate very closely with the Criminal 
Division. We have jurisdiction over intimidation that has a 
civil rights dimension, and they have jurisdiction over 
actually a broader array of statutes relating to intimidation. 
But we communicate very well together, and we will continue to 
ensure that that is a top priority.
    Senator Cardin. My request is that if you believe you need 
stronger tools, please let us know. As you know, when President 
Obama was in the Senate, he authored a bill that I cosponsored 
that dealt with this subject, and the Committee approved it. If 
you believe that you do not have adequate or broad enough 
powers, please let us know.
    Mr. Perez. I certainly will.
    Senator Cardin. Senator Sessions.
    Mr. Perez. Thank you, Mr. Chairman.
    Good morning, sir.
    Senator Sessions. Mr. Perez, I like your enthusiasm, I like 
your experience, and I like the idea that I think I hear you 
say, that you worked closely with your prosecutors and are 
involved in the cases yourself, and that, therefore, you are 
responsible to answer and make decisions that set good policy 
for the Department.
    You know, I am a strong believer that many people are 
discriminated against and are unfairly handled with regard to 
big items like homes and end up paying a lot more interest, and 
they may not have realized, as you said, just how significant 
that is, how every month they may be paying another $50, $60, 
$100 that they do not have, really, that could be avoided.
    So I think these are good, and I have spent a lot of time 
having meetings over my State with housing people to make sure 
our African-American community particularly took advantage of 
the housing opportunities the Federal Government had provided, 
the HOPE bill and other things, and I believe strongly in that. 
But I was--I guess I could be criticized for being unaware that 
perhaps they were making loans to some people who could not 
afford them or that the backgrounds were not being done 
sufficiently to make good loans. It does not help a poor person 
to encourage them to make a loan that they cannot reasonably be 
expected to pay back.
    So it is a difficult issue, but I certainly appreciate your 
work against the redlining and things that were clearly 
discriminatory, and some of those things still remain 
discriminatory today.
    You have been a critic of politicizing the Department, and 
I think you should take care to make sure that you do not. It 
was reported in the media that a political appointee in your 
Division assembled an entire Voting Section for a brown-bag 
lunch in November of 2009 and announced that the Obama 
administration had ``no interest'' in enforcing Section 8 of 
the National Voter Registration Act or the motor-voter law. 
Section 8 vests the Attorney General with power to ensure that 
States are complying with Section 8 and removing dead and 
duplicate voters from the rolls. If you have an excessive 
number of names on the rolls that are of people who are 
deceased or who have moved away, it is much easier to slip in 
and have someone vote in that person's name. It creates a risk.
    The political appointee reportedly said Section 8 ``has 
nothing to do with increasing turnout of minority voters,'' 
says ``so there is no interest in enforcing that law.'' Have 
you heard that?
    Mr. Perez. I have not, actually, Senator, and what is 
interesting about that is we are actually right in the middle 
of preparing guidance because we cannot simply--I am a firm 
believer that the way to ensure full enforcement of our laws is 
through some litigation activity but technical assistance and 
other guidance. And so we are actually in the middle of 
preparing guidance on Section 7 of motor- voter, Section 8, 
Section 5, because we want to make sure that----
    Senator Sessions. Well, I am talking about Section 8.
    Mr. Perez. Right, and----
    Senator Sessions. Section 8----
    Mr. Perez. Absolutely.
    Senator Sessions. Did this employee make such a statement 
and somebody reported it in the media?
    Mr. Perez. I am unaware of that, Senator. I am unaware of 
that.
    Senator Sessions. Would you check and see?
    Mr. Perez. I certainly will, and I----
    Senator Sessions. That is against your view, is that 
correct?
    Mr. Perez. I will share with you our Section 8 guidance 
when it is released, and I anticipate it will be released in 
the near future, because as I have said many times, our job is 
to enforce the law, all of the laws, and we will indeed enforce 
Section 7----
    Senator Sessions. Well, let me ask you----
    Mr. Perez [continuing].--And Section 8.
    Senator Sessions [continuing].--A lot here. I just want to 
ask a question.
    Mr. Perez. Sure.
    Senator Sessions. Do you think that it is inappropriate if 
this individual--I believe it is supposed to be Julie 
Fernandez--had said that the Obama administration ``had no 
interest in enforcing Section 8? ''
    Mr. Perez. I am quite confident, Senator, that given the 
conversations I have had with Julie, because she is preparing 
the guidance and helping to prepare the guidance, I am quite 
confident that you are going to see an aggressive statement of 
what States can do and what States should not do in the voter-
purging context of Section 8. So I think our actions will speak 
for themselves.
    Senator Sessions. Has your administration brought any 
lawsuits to ensure that these rolls remove the dead and 
duplicate voters?
    Mr. Perez. The guidance that we are trying to bring right 
now is intended to prevent problems from occurring, because we 
have heard situations where there have been improper purging of 
voter rolls so that people who can----
    Senator Sessions. Oh, so you are concerned about improper 
purging. I have seen that happen from the Department of Justice 
quite a lot. Why would you--do you have any proof that these 
people have actually removed people improperly or with----
    Mr. Perez. No, sir. The way I have approached this is, 
whether it is Section 4, Section 5, Section 7, Section 8, we 
need to have transparent guidance for State authorities to make 
sure that they know what the rules of engagement are. So we are 
treating Section 8 enforcement exactly how we are treating 
every other section, which is to make sure we have transparent 
guidance, that we get feedback from States when we put the 
guidance out so that they will understand what the rules of 
engagement are. And, again, I will be glad to share with you 
that guidance when it comes in--when it is released.
    Senator Sessions. If you are finished----
    Mr. Perez. Yes, sir.
    Senator Sessions [continuing].--I would like to follow up 
and just----
    Mr. Perez. Sure.
    Senator Sessions [continuing].--Remind you that this 
Congress as part of the legislation insisted that rolls be 
cleaned up. I know the Civil--you understand that?
    Mr. Perez. Yes, sir, and we are committed to the 
enforcement of that.
    Senator Sessions. I am aware, having been familiar with the 
Department of Justice for the last 20 years, that the 
Department of Justice has had more emphasis on trying to block 
efforts to remove from the roll dead and duplicate names, it 
seems to me, than they have in enforcing this section. So my 
question to you is: Will you take action to ensure that 
communities who have large numbers of people on the rolls that 
should not be there remove those from the rolls?
    Mr. Perez. We will make sure it is done properly, yes, sir.
    Senator Sessions. And you will enforce Section 8?
    Mr. Perez. Yes, sir.
    Senator Sessions. You have repeatedly given speeches 
proclaiming the Civil Rights Division is back open for business 
or that the voting booth is once again being protected. Yet in 
the 15 months since the Inauguration, the Voting Rights 
Section, according to information I have, has brought only four 
cases in that time period and dismissed another--and that is 
against the Black Panther Party--for voter intimidation, that 
infamous case. Three of those four cases were initiated during 
the Bush administration: in Texas, a Spanish language ballot 
Section 203 enforcement; Lake Park, Florida, vote dilution; 
Riverside, California, Spanish language ballots enforcement.
    Now, I do not think it is fair to say the previous 
administration shut down civil rights enforcement, and I reject 
that. I believe that is an overstatement, and I believe it is 
in danger of politicizing your office, frankly.
    Now, what about the Uniformed and Overseas Citizens 
Absentee Voting Act cases? The Civil Rights Division I guess 
now will be implementing the new provisions of the recently 
passed MOVE Act, which was intended to secure voting for over 
25 percent of military overseas voters who were unable to cast 
a ballot in 2008. Certainly, we should take every effort to 
make sure that those who are serving us abroad have an 
opportunity to vote and do not lose their vote because they 
have been deployed.
    So, first, does your Voting Section have any attorneys with 
military experience and are their experiences being used in the 
implementation of the MOVE Act? And I understand that the 
Voting Section has only four attorneys that are participating 
in monitoring this and in compliance with it. And as you noted, 
I understand you will be hiring a lot of attorneys on 
redistricting in the future, but do you have enough attorneys 
in this section to enforce these laws?
    Mr. Perez. Absolutely. I am very confident in our 
complement of people working on the MOVE Act, working to 
enforce that. We have just got a very good verdict--I think it 
was in Virginia--in an UOCAVA case. We have aggressively 
enforced that, and we will continue to do so. And I appreciate 
the leadership of Senator Schumer and others in the passage of 
the MOVE Act. As you know, that was a bipartisan bill, and we 
will fully and aggressively enforce it, and I look forward to 
doing so.
    Senator Sessions. Well, an election is coming up in 
November----
    Mr. Perez. Absolutely.
    Senator Sessions [continuing].--And we do not want to have 
another election with 25 percent of our military----
    Mr. Perez. I agree with you, Senator.
    Senator Sessions [continuing].--Folks are not able to vote.
    On this new Black Panther Party case dismissal, you told 
the House Judiciary Committee when you testified that the 
maximum penalty was sought in that case. But the question was: 
Was it obtained? Could you compare the remedy sought in the 
original complaint with the remedy actually obtained in the 
injunction? Isn't it true that the complaint sought a permanent 
injunction against all four defendants and the ultimate 
injunction was only for a few years and against just one 
defendant? What is your----
    Mr. Perez. Sure.
    Senator Sessions [continuing].--Analysis of that?
    Mr. Perez. I would like to start out--you indicated in your 
opening statement that we had erected a steel barrier, and I 
simply want to point out for the record, Senator, that we have 
provided over 4,000 pages of documents to the Civil Rights 
Commission in response to their requests. In addition, I have 
offered to come to the Commission, and I will, in fact, be 
coming over there in a few weeks to testify on that. So with 
all due respect, Senator, I would not call that a steel 
barrier.
    With respect to your question about----
    Senator Sessions. What about the people who make the 
decisions in the case----
    Mr. Perez. Well, Senator, as----
    Senator Sessions [continuing].--Who were involved in it and 
had discussions with other members of the Department and 
political appointees above them who did not agree with the 
dismissal of the case in this fashion? Are you going to allow 
them to testify?
    Mr. Perez. Actually, the two career people who were in the 
front office and made the decision, people with over 60 years 
of experience, actually came to the Hill and briefed 
Congressman Wolf at his request, and so they did come to the 
Hill.
    As you know in connection with your service as U.S. 
Attorney, there is a longstanding Department position that was 
applied in Republican and Democratic administrations that 
front-line trial attorneys are not brought before committees 
because we want to make sure that they have the ability to make 
their decisions and not be looking over their shoulder 
wondering whether they will be called to testify. So----
    Senator Sessions. Well, it may be unusual--it may be 
something I am not fully comfortable with, the powers we give 
to quasi-independent agencies. But the Civil Rights Commission 
has the right to issue subpoenas, and they have issued a 
subpoena to the Department of Justice to have employees testify 
about this case. To my knowledge, you have either not responded 
or are not--or have not--or maybe opposed it. What is your 
view----
    Mr. Perez. We did respond, Senator, and, in fact, the 2(e) 
regulations that have been in place I think since the mid-1950s 
apply in this situation as well. And as part of our response, 
again, we have offered and submitted over 4,000 pages of 
documents.
    I will note parenthetically that you are getting those as 
well, and in the application of the 2(e) regulations, we have 
directed--and the Civil Division handles all these requests of 
this nature, and they inform people that the front-line trial 
attorneys are not going to be produced because they are----
    Senator Sessions. Are you asserting that--you are asserting 
that you do not have to comply with subpoenas from the U.S. 
Commission on Civil Rights?
    Mr. Perez. We are applying the 2(e) regulations in a way--
--
    Senator Sessions. What is the 2(e) regulation?
    Mr. Perez. The 2(e) regulation pertains to a Supreme Court 
case that involves--when front-line trial attorneys are 
subpoenaed to talk about case-related decisions that they made, 
there is a certain process that must be followed, and to the 
extent that there are questions that a body--whether it is this 
Committee or a Civil Rights Commission--is seeking to ask about 
the deliberative process, there is a privilege that has been 
asserted by Democratic and Republican administrations for 
decades, and that is the privilege that is being asserted again 
here. And that is why I have offered to come up, and they have 
accepted that offer.
    Senator Sessions. You had certain attorneys come and 
provide information to the Congress, but not certain attorneys, 
my understanding is, that were involved in the handling of this 
case. Am I right about that?
    Mr. Perez. The Acting Assistant Attorney General for Civil 
Rights and the Acting Deputy Assistant Attorney General for 
Civil Rights came up. The front-line trial attorneys did not, 
as is the case in Republican and Democratic administrations for 
decades. I know when I served in the Thornburgh Department of 
Justice, that was the policy then, and it has been pretty 
consistent in my experience.
    Senator Sessions. Well, I think that is a good policy, 
generally, but the question is: What about the United States 
Commission on Civil Rights? They are set up to ensure that 
civil rights are enforced, and they have been given subpoena 
powers, and apparently they would like to talk to the people 
who actually tried the case. And I understand your testimony to 
be that the Department of Justice is resisting allowing those 
people to respond to the U.S. Commission on Civil Rights.
    Mr. Perez. The authority of the Civil Rights Commission, as 
I understand it, does not exceed the authority of the U.S. 
Senate. And so we have spent considerable time attempting to 
work with the Commission. That is why we have provided the 
4,000 pages of documents. That is why I have offered to come 
up.
    I have great respect for the institution of the Civil 
Rights Commission, and that is one reason why I am more than 
willing to come up and explain why we reached the decision that 
we reached. But as you know, Senator, that is why we have 
political leadership in place, to come up and explain those 
things, and we are treating the Civil Rights Commission with 
great respect. We applied the same 2(e) principles to them that 
we would apply to any request that we would get from this 
Commission.
    Senator Sessions. But there still remain concerns about how 
that case was handled, and I do not think they are going to be 
resolved unless the people actually involved in it are allowed 
to testify or to give evidence, and that is just the way it is 
going to be, I suppose.
    When we dealt with the hate crimes legislation, I think the 
FBI statistics showed actually a slight decline in hate crime 
cases. Have they gone up in recent months? Or what numbers are 
you basing----
    Mr. Perez. Well, if you look at the--hate crimes against 
Latinos, for instance, have gone up I think 4 years in a row. 
We now have seen a significant--we have a threats case that we 
have indicted in New Jersey.
    Senator Sessions. Where do you get the numbers----
    Mr. Perez. The hate crime--the FBI data, and then also the 
Southern Poverty Law Center has data targeting and tracking 
hate crimes. And as you know, we all acknowledge that the 
hate----
    Senator Sessions. Does the FBI data show that there has 
been an increase?
    Mr. Perez. I know in the context of Latino----
    Senator Sessions. Well, I am asking overall.
    Mr. Perez. Let me--I will get the precise figures, and I 
will----
    Senator Sessions. My understanding of your testimony, Mr. 
Perez, was that hate crimes are up. I think you should be 
accurate if they are not up. One category could be up and needs 
attention, but----
    Mr. Perez. Here is what I will do, Senator. I will get you 
all the data sources we have--the FBI, the Southern Poverty Law 
Center, the Anti-Defamation League, all of the sources that 
collect that data. I will also get you the data on the hate 
crimes prosecutions that we have done, and what you will see in 
the cases that have been brought is that there has been indeed 
a significant rise in the number of cases.
    When I was a deputy chief in the Criminal Section in 1996, 
we handled somewhere in the vicinity of about 50 cases. A 
decade later, there were about a dozen cases that were 
prosecuted. So we----
    Senator Sessions. Well, I believe----
    Mr. Perez [continuing].--Will get you those.
    Senator Sessions [continuing].--Both the police and the 
Federal Government is doing a more aggressive job of 
prosecuting and identifying these cases. I would hope and pray 
that the amount of hate crimes is down and not up. My 
understanding is that the FBI numbers do not show that. I 
assume they are the most authoritative, but I could be wrong, 
and I will look at that. Thank you very much, and I appreciate 
this.
    Mr. Chairman, I do have a very important Armed Services 
Committee meeting. I will have to slip out.
    Senator Cardin. We certainly understand. That is why we 
allowed you as much time----
    Senator Sessions. You allowed me to go over.
    Senator Cardin [continuing].--As you needed.
    Senator Sessions. I appreciate it.
    Mr. Perez. Thank you, Senator, for coming, and when I get 
you the data on Section 8, I will also get you the information 
on the current Section 8 case that we actually have going on, 
and I will make sure you know about that.
    Senator Sessions. Thank you.
    Mr. Perez. Thank you for your time.
    Senator Cardin. I just would point out that the Southern 
Poverty Law Center has supplied information to this Committee 
that shows an increase in hate crime activities. We would also 
point out that many local jurisdictions do not provide the FBI 
with information.
    I have tried to work with members of the Judiciary 
Committee to increase the information made available to the FBI 
so that we have more reliable information on hate crime 
activities and have met resistance from my Republican 
colleagues on this Committee to get that information to the 
FBI.
    And let me also point out that in conversations that I have 
had with local law enforcement officials and with local 
advocacy groups, there is no question that there has been an 
alarming increase in hate crime activities in this country, 
something that I think has been not only well documented but 
acknowledged as far as the problems being confronted by law 
enforcement around this country.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. I apologize. I 
was in the HELP Committee hearing, so I just got here when the 
Ranking Member was--I assume I have 16 minutes?
    [Laughter.]
    Senator Franken. No. I am joking. I know he had to leave.
    Mr. Perez, last month your Division settled a case called 
J.L. v. Mohawk Central School District. You mentioned the case 
in your written testimony and probably in your oral testimony. 
It involved a 14-year-old student from upstate New York. The 
student, J.L., is gay. Because he was gay, his classmates 
destroyed his clothes, his phone, his music player. One student 
knocked J.L. down a flight of stairs. Another brought a knife 
to school and threatened to kill him. When J.L. and his parents 
complained to school officials, the school principal just told 
him that, ``Boys will be boys.'' You supported J.L.'s lawsuit 
against his school and helped broker a settlement.
    Unfortunately, this case is hardly unique. A similar case 
came up in my State. The fact is discrimination and harassment 
are a fact of life for lesbian, gay, bisexual, and transgender 
students across the country, yet there is no explicit 
protection in Federal law that bars discrimination and 
harassment against LGBT students in public schools.
    What do you think of this? Do we need an explicit ban 
against discrimination in public schools based on sexual 
orientation or gender identity?
    Mr. Perez. Thank you for your question, Senator. I was in 
Seattle about 3 weeks ago, and I went to a middle school as 
part of an anti-bullying campaign, and I told the students the 
following: Today's bullies are tomorrow's civil rights 
defendants all too frequently, and I know that because I have 
prosecuted high school students for horrific acts of hate 
crimes. And so I am a firm believer that we need to start 
earlier on in our prevention efforts, and I am very proud of 
the work we did in the Mohawk County case because until we 
intervened in that case, the case was languishing. And the 
Federal Government can make a difference.
    I have a 13-, an 11-, and a 7-year-old, and when they go to 
school, I have every right to know and believe that they are 
going to be safe in school. And we used Title IX theory--it is 
a theory of gender nonconformity--and we were able to bring the 
case under Title IX. It is not the first time we have brought a 
case involving similar circumstances using a Title IX theory. 
We did another one when I was in my first tour of duty in the 
Clinton administration working with the Education Section, and 
we will continue to monitor those.
    I would be happy to work with you on the underlying issue 
of ensuring that everybody going to school can have the reality 
of a learning environment that is nurturing, non-
discriminatory, and non-threatening.
    Senator Franken. Don't we have explicit laws against 
bullying people on race and on----
    Mr. Perez. Well, depending on the facts----
    Senator Franken [continuing].--Religion and----
    Mr. Perez. I mean, depending on the facts and circumstances 
of the case, there may be local or State laws or potentially 
our Federal civil rights laws. And, again, we have had cases 
before involving racially motivated violence committed by 
school-aged kids. Oftentimes, it has been arsons of schools, 
arsons of churches, pretty significant assaults.
    Senator Franken. I am talking about bullying. Right now 
Title IX covers sex discrimination.
    Mr. Perez. Correct.
    Senator Franken. But while some circuits have interpreted 
that to include discrimination on the basis of sex 
stereotypes----
    Mr. Perez. Correct.
    Senator Franken [continuing].--Not one circuit has found 
that to include discrimination on the basis of sexual 
orientation.
    Mr. Perez. That is correct. Our theory was a theory of 
gender nonconformity, which is a form of sex discrimination. It 
was not a theory of discrimination based on the fact that 
somebody is gay.
    Senator Franken. OK. Well, I would like to work with you on 
this and----
    Mr. Perez. I would be happy to.
    Senator Franken [continuing].--Explicit protections for 
folks on lesbian, gay, bisexual, and transgender for kids who 
are--it is a very real thing that there is this bullying in 
school.
    Let us turn to a couple other matters. As you know, the 
U.S. Commission on Civil Rights was founded by President 
Eisenhower to promote civil rights. That may sound self-
evident, but let me list some of the recent actions by the 
Commission and Commission members. They include: one, 
testifying against the reauthorization of the Voting Rights 
Act; two, opposing by a majority the Matthew Shepard Hate 
Crimes Act; and, three, issuing a report questioning the 
academic and social benefits of school diversity. That is the 
U.S. Commission on Civil Rights doing that.
    I know you do not have the authority or jurisdiction over 
the Commission, but as the Nation's chief law enforcement 
officer for civil rights, can you tell me, you know, what is 
happening here? I would also love to hear you talk about the 
Voting Rights Act as reauthorized and the Hate Crimes Act. Are 
those pieces of legislation central to your mission?
    Mr. Perez. Absolutely central to our mission, and we have--
in the voting context, we are feverishly preparing for 
redistricting. Senator Sessions mentioned some voting cases, 
but I look forward to giving him the full panoply of voting 
cases that we are working on, including a Section 8 case, a 
Section 2 case in Euclid, Ohio; a victory recently in a New 
York State NVRA case; another case in Shannon County, South 
Dakota, which is Indian country, making sure that people with 
limited English proficiency in Indian country can access the 
ballot. So I am very proud of the work we have done, and I look 
forward to ensuring that Senator Sessions has a full list of 
the cases that we are actually working on in the Obama 
administration.
    I also have great respect for the Civil Rights Commission. 
I had the privilege during the transition, Senator, of 
overseeing the Obama transition of all the agencies that have a 
robust civil rights presence, large agencies such as Department 
of Justice, HHS, HUD; smaller agencies, the EEOC and the Civil 
Rights Commission. And I actually got a history lesson on the 
history of the Civil Rights Commission and the creation. Civil 
rights has always been bipartisan in our country. I learned 
that from Senator Kennedy. And you look at all the major pieces 
of civil rights legislation, and they have been a function of 
bipartisan work. I look forward to the 20th anniversary of the 
ADA this summer, a bill signed by George Herbert Walker Bush.
    And so I have profound respect for the tradition and the 
history of the Civil Rights Commission, and that is why when 
they asked me to come over recently to talk about the work on 
the New Black Panther Party case, I said, ``Of course I will 
come over.'' And I will be over there in a few weeks to discuss 
our actions there, and I hope that we can reach a point where 
we can return to our bipartisan roots, because really civil 
rights is about bipartisan coalition building. That is what I 
have learned from the movement, and as I study the history of 
the movement, that is what it is, and that is what I hope it 
will return to.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Senator Cardin. I would just remind the Senator he went 16 
seconds over his allotted time.
    Senator Franken. I guess I am not the Ranking Member.
    [Laughter.]
    Mr. Perez. That was my fault, Senator.
    Senator Cardin. Well, let me first say to Mr. Perez that 
you are being very diplomatic on the Civil Rights Commission, 
and I understand your position as testifying before us. I think 
Senator Franken is absolutely correct in the manner in which he 
has presented that. I understand the tradition of the Civil 
Rights Commission, but it is an important institution, and it 
is one that should be in the forefront of advocacy for the 
civil rights of all Americans. And looking at its recent 
actions, it calls into question whether it is carrying out its 
intended responsibility.
    Now, that is our responsibility as the Congress to oversee 
that Commission, and it is an issue of great concern to me and 
I know this Committee, and I thank Senator Franken for the 
manner in which he presented his question. I just underscore 
the point that in the New Black Panther Party case, it was 
career attorneys that made those judgments, as it should have 
been. And I applaud you for trying to, again, keep this out of 
the political arena, and I wish you well in your appearance 
before the Commission.
    Mr. Perez. Thank you.
    Senator Cardin. We will be watching that carefully.
    I want to go back to Senator Sessions' points on the 
enforcement of Section 8. Let me just make an observation, if I 
might. I certainly agree with Senator Sessions. Anyone who 
should be taken off the rolls--someone who has died should be 
off the rolls. If someone has moved, they should be taken off. 
The rolls should be accurate. I certainly agree with that. But 
I can tell you, after every election I get more complaints 
about people who were eligible to vote and who were 
inappropriately taken off of a roll and showed up and had to 
file either a provisional ballot or the election officials did 
not know how to handle a provisional ballot, or whatever, or 
they were harassed to such a point that they just left because 
of the time problems that they have in voting.
    I do check with our local law enforcement to see how many 
matters--because after every election there are always these 
accusations that people fraudulently voted. And then we take a 
look at it, and we do not find it. And there have been a lot of 
studies done, and the number of people who are fraudulently 
voting is minuscule compared to those who are eligible to vote, 
who try to vote, who either cannot vote or their votes do not 
get counted properly.
    Now, I am for Senator Sessions' point. I want all of our 
laws enforced. Do not get me wrong. But I would hope that we 
would try to be empowering people to vote who are eligible to 
vote and spending our resources to do that and not try to spend 
a lot of effort with a problem that really does not exist or 
exists in such a minor way that we should be very surgical as 
to how we go about it. I think I share--there are many who 
share my view on that, and I did not want Senator Sessions' 
comments to go without being responded to.
    Mr. Perez. Senator, when you asked me a fair lending 
question, I said that, you know, consumer protection and 
preserving a sound lending climate go hand in hand. There is a 
tendency to create this unhealthy binary world where you either 
do one or the other when you should be doing both.
    Similarly, we can combat voter fraud and we can ensure 
access, full access to the ballot. Those are not mutually 
exclusive propositions, and that is exactly what we are doing. 
There is a right way and a wrong way to enforce Section 8 of 
motor-voter, and we are preparing guidance so that States do it 
the right way. Similarly, we are preparing guidance so that 
States enforce Section 7 because, frankly, we have received 
numerous reports about motor vehicle agencies, social service 
agencies that are not doing their job of providing those 
materials. And so we need to be vigilant across the board.
    Senator Cardin. Well, thank you. I certainly support that. 
I want to ask one additional question. Then Senator Franken 
would like a second round, and we have time for it.
    I want to deal with the Olmstead case in dealing with 
people with disabilities. It was an expansion by the Supreme 
Court of the interpretation of Title II of the ADA, and it 
appears that we are making, I think, some significant progress 
on behalf of people with disabilities. Georgia's Department of 
Human Resources could not segregate two women with mental 
disabilities in the State psychiatric hospital long after the 
agency's own treatment professionals had recommended their 
transfer to community care.
    Can you just share with us what the priority in your 
Department is in regards to the expansion of the rights of 
people with disabilities?
    Mr. Perez. We have an active docket of cases, and this is a 
situation that occurs in almost every State in the United 
States. And the old paradigm of looking at people who were in 
institutions was: Is the institution safe? Are the conditions 
constitutional? That is an important question. But that is the 
second question that should be asked. The first question that 
should be asked is: Are there people in this institution who 
should not be there, who can and want to live in the 
communities with the appropriate supports?
    So in every case we are now doing, we are asking the two 
questions, and I get some pushback from time to time from 
States saying it is too expensive. Well, with all due respect, 
it is too expensive to warehouse people in institutions. The 
average cost oftentimes is over $200,000 per person when you 
could live humanely and far more inexpensively in community-
based settings.
    So we have a case in New York where we intervened, a major 
case where we got a very good ruling from the court. We have 
the Georgia case itself where I personally went down and sat 
with the Governor. I did that because 10 years after the 
Olmstead case, there was scant evidence of progress, and so we 
had to file another lawsuit in order to move forward there.
    The good news is that we have been negotiating in good 
faith with the State, and we are also doing similar 
negotiations elsewhere, and I am confident that we can build a 
new paradigm so that people with disabilities who want to live 
in community-based settings can do so, because just as the 
segregation of people by race in the schools is 
unconstitutional and immoral, the segregation of people--the 
unnecessary segregation of people with disabilities in 
institutions is equally illegal and must be stemmed.
    Senator Cardin. Thank you.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Mr. Perez, part of your job is enforcing the Freedom of 
Access to Clinic Entrances Act, which prohibits--I am sorry, 
which protects Americans' access to reproductive service 
providers. I know that Attorney General Holder asked the U.S. 
Marshals Service to help safeguard reproductive health 
providers and facilities around the country after Dr. George 
Tiller's murder last year.
    How are you working with the U.S. Marshals Service to 
ensure ongoing protection for these providers? And are you and 
Attorney General Holder still recommending increased 
protection, or do you believe that the need was temporary?
    Mr. Perez. I do not believe--we conduct regular threat 
assessments. We are actively--we have an active docket. The 
last thing I worked on before I left the Clinton administration 
was the murder of Dr. Slepian in Buffalo, New York, 3 miles 
from where I grew up. The first thing I got briefed on when I 
arrived back 11 years later as AAG for Civil Rights was a 
briefing on the murder in Kansas. So the more things change, 
the more they stay the same. And this threat is an ongoing 
threat, and we take those seriously. We are constantly 
assessing, reassessing, working not only with our partners at 
the Marshals Service but with other law enforcement partners. 
We were actively monitoring the Kansas prosecution. I cannot 
comment in any detail, but that investigation remains ongoing.
    We will continue to fully exercise our civil authority as 
well. We had a case last year in New Mexico involving an arson 
of a clinic that came to a successful prosecution. These cases 
are among our highest priorities.
    Senator Franken. Thank you. I know that the Department of 
Justice has helped enforce the Help America Vote Act and has 
worked with polling places to ensure accessibility for 
individuals with disabilities. But although most polling places 
now have accessible voting machines, the GAO recently found 
that half of ``accessible voting machines'' may pose problems 
to many with disabilities, such as those who are in 
wheelchairs.
    Mr. Perez. Right.
    Senator Franken. What actions has the Civil Rights Division 
taken to address this problem?
    Mr. Perez. I am familiar with that report, and we are 
actively working jurisdiction by jurisdiction. Because of the 
volume of precincts--and I know in my own State of Maryland, we 
had a number of precincts that had accessibility issues, and so 
we are feverishly working to make sure not simply that the 
facilities are physically accessible, but then working issues 
involving some people with vision impairments. We have read 
more about that or heard more about that recently. But that is 
certainly a broad part of our overall agenda of ensuring that 
everybody who is eligible to vote can do so.
    Senator Franken. Thank you. I think that is so important, 
and thank you, Mr. Chairman. If I had known I had had two 
rounds, I would not have come down so hard on the Ranking 
Member, who had an important Armed Services Chairman hearing. 
And I apologize for that. That was uncalled for.
    Mr. Perez. Mr. Chairman, if I could, I just wanted--my 
staff handed me something that I just wanted to make sure was 
in the record relating to the FBI hate crimes reports. 
According to the information I received, the most recent FBI 
hate crimes report documents the highest level of hate crimes 
since 2001. So the number reported in 2008 was 7,783, which was 
up from 7,624 in 2007, and so that is the highest level since 
2001. And I will be certain to share this information with 
Senator Sessions, but I just wanted to make sure the record was 
complete regarding what the data shows.
    I can tell you from our own enforcement experience, as I 
said at the outset, the phone is ringing off the hook, and the 
cases are more and more brutal, and we have got a lot of 
father-son teams--one in Indiana, one in South Carolina. They 
are passing down their hatred to their children, and it really 
is remarkable. We just sentenced a person for threatening the 
President last week in Arkansas. We have a case pending 
involving threats against the heads of the National Council of 
La Raza, MALDEF, and others. And when this person was pending 
trial, he threatened the pre-trial services officer in his 
case, and he has now been detained.
    So there are a lot of dangerous people out there who want 
to divide this country along racial, ethnic, and other lines.
    Senator Cardin. Well, that is unfortunately consistent with 
the information that I think each of us has observed in our own 
communities, and it is clearly a circumstance that we need to 
take aggressive action, and we thank you for the manner in 
which you are proceeding in this regard.
    I do really send an open invitation to all my colleagues on 
this Committee. If we can get more reliable information to the 
FBI from local officials on these types of activities, I think 
it would be useful. And I did author legislation to deal with 
the homeless to try to get the information so we can act on 
what is a significant problem, violence against people who are 
homeless. And I did that not to initiate new policy, but to 
find out what the facts are so that we can try to develop the 
right policies to protect all people in our community. And it 
was not received in a way that we could proceed in this 
Committee. And if there is an interest by the Republicans to 
try to have the FBI have more reliable information in this 
area, I can assure you that I am very happy to work with any of 
my Republican colleagues so that we can have effective 
information to work on.
    Absent that, we do have the FBI information that shows a 
rise in hate crime activities. We do have the local information 
from our local law enforcement, and we also have the Southern 
Law Poverty Center, which has produced a great deal of 
information in this regard--all confirming that there has been 
an alarming increase in hate crime-type activities in this 
country. We thank you for moving forward aggressively in this 
area, and I appreciate very much your testimony.
    Mr. Perez. Thank you for your time, and thank you for your 
interest.
    Senator Cardin. If there is nothing further, the Committee 
will stand adjourned. The record will stay open for 7 days.
    [Whereupon, at 11:30 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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