[Senate Hearing 112-719]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 112-719
 
                    CIVIL RIGHTS DIVISION OVERSIGHT

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



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 13, 2011

                               __________

                          Serial No. J-112-40

                               __________

         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                 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York              JON KYL, Arizona
DICK DURBIN, Illinois                JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island     LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
AL FRANKEN, Minnesota                MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware       TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
            Bruce A. Cohen, Chief Counsel and Staff Director
        Kolan Davis, Republican Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coons, Hon. Christopher A., a U.S. Senator from the State of 
  Delaware.......................................................     1
    prepared statement...........................................    52
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa......     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................    58

                               WITNESSES

Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice, Washington, DC...........     5

                         QUESTIONS AND ANSWERS

Responses of Thomas E. Perez to questions submitted by Senators 
  Grassley, Cornyn and Sessions..................................    28

                       SUBMISSIONS FOR THE RECORD

Delawareonline.com:
    September 7, 2011, article...................................    54
    September 5, 2011, article...................................    56
Perez, Thomas E., Assistant Attorney General, Civil Rights 
  Division, U.S. Department of Justice, Washington, DC, statement    60
U.S. Department of Justice, Ronald Weich, Assistant Attorney 
  General, Washington, DC:
    September 20, 2011, letter to Hon. Joseph R. Biden, Jr., and 
      attachment.................................................    77
    September 20, 2011, duplicate letter to Hon. John A. Boehner 
      not printed
U.S. District Court for the Eastern District of Missouri,
    Plantiff v. Midwest Bank.....................................   100
    Settlement Agreement.........................................   113
Wisconsin DOT, July 1, 2011, Memo................................   134


                    CIVIL RIGHTS DIVISION OVERSIGHT

                              ----------                              


                      TUESDAY, SEPTEMBER 13, 2011

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:05 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Christopher 
A. Coons, presiding.
    Present: Senators Coons, Durbin, Klobuchar, Franken, and 
Grassley.

OPENING STATEMENT OF HON. CHRISTOPHER A. COONS, A U.S. SENATOR 
                   FROM THE STATE OF DELAWARE

    Senator Coons. Good morning. It is my honor to call to 
order this hearing of the Senate Committee on the Judiciary. I 
would like to thank Chairman Leahy for the opportunity to chair 
today's oversight hearing. We will hear today from Hon. Thomas 
Perez, Assistant Attorney General for the Civil Rights Division 
of the United States Department of Justice.
    It has been almost a year and a half since this Committee 
last conducted oversight of the Civil Rights Division, and 
among all the important work done by the Department of Justice, 
the work of this Division is uniquely, in my view, important. 
The Civil Rights Division is charged with enforcing our laws, 
providing the rights of all citizens, regardless of race, 
creed, religion, sex, or national origin, in order that they 
might more fully participate in our National civic life. It 
underpins our entire way of life as a Nation because where 
civil rights are not protected, equality, liberty, and the very 
pursuit of happiness are denied.
    As we all know, the Preamble of the United States 
Constitution, our National charter, states that the first two 
purposes of our Government are to form a more perfect union and 
to ensure justice, and I think there is no better shorthand for 
the core mission of the Civil Rights Division of the Department 
of Justice.
    The Civil Rights Division is responsible for ensuring 
voting rights for every American. It protects equal access to 
housing, lending, and employment, regardless of sex, race, 
religion, or national origin. It safeguards members of our 
armed services from any discrimination based on the hardships 
that accompany active duty and deployment. It provides that 
disabled Americans are not precluded from participation in 
civic life, from the marketplace or the workplace. And today, 
since the passage of the Matthew Shepard Hate Crime Prevention 
Act of 2009, the Civil Rights Division also protects the rights 
of gay, lesbian, and transgendered Americans to participate as 
full citizens in our country without fear of violence born of 
bigotry.
    And so it should. Equality for all is supposed to mean 
equality for all.
    In my view, the struggle for civil rights for all Americans 
is a critical part of our National story. The 13th, 14th, and 
15th Amendments established formal equality for all Americans 
by 1870, but as we know, real-world equality sadly lagged far 
behind. It was not until the Civil Rights Act of 1964 and the 
Voting Rights Act of 1965 that Congress finally truly took up 
its charge to turn the promise of those Reconstruction 
constitutional amendments into real progress for African-
Americans and, frankly, for Americans of many different 
backgrounds. And I will remind all today that it was truly 
through bipartisan efforts by both Republicans and Democrats 
that those two signature civil rights acts were passed and that 
both parties have a long and proud tradition of being actively 
concerned about and engaged in the enforcement of civil rights 
for our citizens.
    Since that time, we have made great progress even as we 
have expanded the mission of the civil rights laws beyond State 
action and into the broader economic sphere. Over the past few 
weeks, however, people in my home State of Delaware received a 
sad reminder that the battle against the sort of overt racism 
that marred this country in its past, a battle that many 
Americans hope and believe we have permanently won, still rages 
on at times. Over the Labor Day weekend, in my home town of 
Newark, Delaware, two teens placed a cross which read, ``Burn 
in hell,'' among other truly offensive racial epithets, on the 
lawn of an African-American family, the Parsons. Although 
police in New Castle County were quickly able to arrest two 
young suspects, the homeowner, with whom I spoke at length, was 
understandably not comforted by their arrest. He said, ``I do 
not want this to continue to happen, especially in this 
neighborhood, in this State, or anywhere else. I want hate to 
go away.''
    Like that homeowner, Wayne Parson, I was caught off guard, 
deeply concerned and offended that this would happen in my home 
community. Incidents like these are not supposed to happen in 
our Nation today, but I was reminded that the vast majority, 
the overwhelming majority of our country has moved well beyond 
these senseless, careless, and criminal acts and attitudes, in 
large part due to the vigilant work of those who have come 
before us to testify about the great work of the Civil Rights 
Division.
    So, without objection, if I might, I would like to enter 
into the record articles from the Wilmington News Journal from 
September 5th and September 7th describing these incidents in 
Newark. Thank you.
    [The articles appears as a submission for the record.]
    Senator Coons. Although the perpetrators have been caught, 
we cannot let that be the end of this particular tragic 
incident, especially in the area of hate crimes. I believe we 
need community leaders to stand up and say that these abhorrent 
acts do not represent us and they will not be tolerated and 
that is, in some critical, essential reason, why we are here 
today. Congress has an important role to play in oversight of 
all executive branch activities. But when it comes to civil 
rights, it is critical that both branches are on the same page, 
that we are working together hand in hand to fight our way 
toward that more perfect union. So we will work on eradicating 
discrimination from our laws, and we need you, Mr. Perez, and 
all those who serve with you--the professionals and the 
attorneys, the support personnel, and everybody, the dedicated 
professionals in the Civil Rights Division--to work on stopping 
it in our communities.
    I look forward to hearing from Mr. Perez regarding the work 
he has done at the Civil Rights Division since being confirmed 
to that office almost 2 years ago. Mr. Perez inherited a 
Division that had undergone some significant upheaval, and I 
hope to hear Mr. Perez has moved toward hiring procedures 
strictly on the basis of merit. I hope to hear about the work 
of the Division in fighting some of the more insidious forms of 
institutional discrimination through disparate impact cases 
brought under Title VII of the Civil Rights Act. And I look 
forward to hearing what the Division has done to extend the 
promise of equality to all Americans regardless of race or sex, 
but also regardless of sexual orientation or gender identity.
    Finally, I want to hear about and spend some time examining 
what the Division is doing to make certain that our servicemen 
and -women, the people who risk their lives to defend our 
Nation and way of life, have the ability to vote without burden 
and are not discriminated against in housing, lending, 
employment, or elsewhere.
    I will now yield to the distinguished Ranking Member, 
Senator Grassley, for his statement.
    Senator Grassley.

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE 
                            OF IOWA

    Senator Grassley. I really appreciate oversight hearings 
because I do not believe Congress does enough oversight. The 
Civil Rights Division is well deserving of oversight. I think 
the Division has been pushing the envelope very far, and many 
of its decisions are questionable. The Division has brought 
numerous actions for alleged discrimination in lending. It has 
brought red-lining actions and anti-red-lining actions. It has 
used disparate impact analysis in questionable places and 
against economic reality. As a result, it appears to be pushing 
banks to engage in some of the conduct that led to the mortgage 
bubble and the subsequent financial crisis. And there is 
nothing wrong--in fact, we expect the Division to push hard 
where there is outright discrimination. But when a bank cannot 
make a judgment between a sound loan and a loan that is risky, 
it seems to me we are pushing ourselves to where we were in the 
1990s and 2000s that brought us to the financial collapse. And 
when will Government learn from past bad policies?
    In addition, the Division has taken extreme positions in 
religious employment cases, seeking to make school districts 
accommodate teachers' very disruptive and unreasonable demands 
for time off. It has brought action against school districts 
based on reading the term ``sex'' to mean ``sexual 
orientation.'' It has threatened universities with disability 
discrimination charges if they allow students to use Kindle if 
only sighted students could use that product. It has refused in 
the New Black Panther Party case to prosecute African-Americans 
who allegedly engaged in voter intimidation. Sworn testimony 
exists that the Division believes that such laws apply only 
when African-Americans are victims and that it has no interest 
in enforcing the provisions of the motor-voter law to ensure 
that voting registration lists regularly remove ineligible 
voters.
    Despite OPR's report, the Department has refused to turn 
over many relevant documents on this subject to the House based 
only on bogus generalized confidentiality theory, and it is odd 
to me because transparency brings accountability, and why does 
the Division not want to be transparent and accountable?
    The Assistant Attorney General has stated that the Division 
has eliminated politics in hiring. However, based on 
organizational affiliations listed on new hires' resumes--and 
this was published not only in blogs but in the New York 
Times--it has hired 96 liberals and 0 conservatives. The 
Division responded recently to a letter of mine on this subject 
by claiming that its decisions are made without regard to 
politics and based solely upon civil rights experience. It 
would be more accurate to state that, to the Division, civil 
rights experience is limited to experience with liberal 
advocacy groups. And I have asked for the Inspector General to 
investigate that.
    It is not surprising that the Division has been subject to 
two oversight hearings in recent months. The House Judiciary 
Committee had an oversight hearing in June. But what is more 
interesting about these oversight hearings is that Republicans 
did not request today's hearing, and it follows a Subcommittee 
hearing last week on State laws that have been passed to reduce 
voter fraud. These laws were also discussed by Democrats at the 
House oversight hearing. Viewing these State laws in context 
may be useful to understanding today's hearing.
    Two years ago, we had the Northwest Austin Municipal 
Utility District v. Holder. The Supreme Court decided a case 
under Section 5 of the Voting Rights Act. Under Section 5 some 
States and subdivisions must obtain preclearance from the 
Department of Justice before any changes in voting, no matter 
how innocuous, can go into effect. In the Northwest Austin 
case, the Court, in keeping with judicial restraint, decided 
the case on statutory grounds rather than on reaching the 
alternative argument that Section 5 was unconstitutional.
    Nevertheless, Chief Justice Roberts' opinion for eight 
Justices contained six remarkable paragraphs. He stated that a 
number of Justices, including sitting Justices, have expressed 
serious misgivings concerning the constitutionality of Section 
5. He said that past successes of statute is insufficient to 
justify its continuing constitutionality. He wrote that the 
statute differentiates between States in violation of their 
equal sovereignty and that the data underlying the disparate 
treatment of the States is more than 35 years old. And the 
ninth Justice, Justice Thomas, was prepared right then and 
there to say that Section 5 was unconstitutional.
    We hear much in our Supreme Court confirmation hearings 
about the law being backward-looking about precedent and stare 
decisis. But the law was not these things to Justice Holmes. He 
said that the law was nothing more than a prediction of what 
courts will do. By that measure, after Northwest Austin it is 
an interesting question what the law is regarding the 
constitutionality of Section 5. Until the Supreme Court has 
another Section 5 case, we will not know for sure. And when I 
have voted for the Civil Rights Act's extensions at least three 
times since I have been in the Congress, obviously I felt that 
Section 5 was constitutional.
    At the same time that the Obama Civil Rights Division is 
bringing a number of questionable civil rights cases, it has 
filed exactly zero redistricting cases. It has backed away from 
a number of Section 5 cases when States have objected to 
possible enforcement action. It has filed numerous procedural 
motions on pending cases in which the constitutionality of 
Section 5 is at issue, which, of course, have the effect of 
slowing down litigation. Although I understand that all Senate 
Democrats signed a letter to the Attorney General demanding 
that the Department conduct a national investigation into State 
voter identification laws, this has not occurred. And, of 
course, that is all very interesting.
    Of course, so long as there is no court ruling, the 2012 
redistricting and preclearance will occur under current law. 
Mr. Perez says that the Department is ``vigorously defending 
the constitutionality of Section 5 in the courts.'' More 
accurately, the Department, like St. Augustine, is vigorously 
defending Section 5 but not yet.
    I thank you for the hearing.
    Senator Coons. Thank you, Senator Grassley.
    Mr. Perez, before we proceed, it is the custom of this 
Committee that witnesses be administered the oath. Please 
stand, if you would, raise your right hand, and repeat after 
me: I do solemnly swear that the testimony you are about to 
give to the Committee will be the truth, the whole truth, and 
nothing but the truth, so help you God?
    Mr. Perez. I do.
    Senator Coons. Thank you. Let the record show the witness 
has taken the oath. Please be seated.
    It is my honor now to introduce Mr. Thomas Perez, the 
Assistant Attorney General for the Civil Rights Division of the 
United States Department of Justice. Mr. Perez is a lifelong 
veteran of public service. Prior to his nomination, he served 
as the Secretary of Maryland's Department of Labor, Licensing, 
and Regulation, where he was a principal architect of a 
sweeping reform package to address that State's foreclosure 
crisis. Prior to that, in 2002 Mr. Perez was the first Latino 
elected to the Montgomery County Council, where he served until 
2006. Earlier in his career, Mr. Perez spent 12 years in 
Federal public service, the majority of it as a career attorney 
in the Civil Rights Division. Mr. Perez received his B.A. from 
Brown University in 1983, a master's of public policy from the 
Kennedy School at Harvard in 1987, and he holds a J.D. from 
Harvard Law School as well.
    Mr. Perez, please proceed, if you would, with your 
statement.

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

    Mr. Perez. Thank you, Mr. Chairman, and thank you, Ranking 
Member Grassley. It is an honor to be back in front of this 
Committee. Good morning, Senator Franken, and thank you for 
coming here today, and thanks to all of you for your interest 
in these issues. It is always an honor to be back in the place 
where I had the privilege of serving as a staffer to Senator 
Kennedy a number of years back.
    When I last had the opportunity to appear before you, just 
6 months after being sworn in, I spoke about our commitment to 
restoring and transforming the Civil Rights Division. I 
promised to revitalize the Division to boost morale, return to 
merit-based hiring, and to ensure aggressive, even-handed, and 
independent enforcement of all of the laws within our 
jurisdiction.
    Almost 2 years into my tenure, we have committed 
considerable energy to these efforts, and I am happy to report 
we have had great success thanks to the dedicated career 
professionals in the Civil Rights Division. We filed a record 
number of criminal civil rights cases in fiscal year 2009, and 
then we topped that record a year later. These cases include 
the largest human-trafficking case in Department history, 
charging eight defendants in a scheme to force 600 Thai workers 
to labor on farms across the country. These cases also include 
the most high profile police misconduct case since the Rodney 
King incident. When we secured the convictions of five New 
Orleans police officers for their role in the shooting on the 
Danziger Bridge in the wake of Hurricane Katrina and the 
subsequent cover-up. Five additional officers pled guilty in 
connection to that case.
    We have 17 open pattern or practice investigations of law 
enforcement agencies, more than at any time in our Division's 
history, including our extensive and comprehensive reviews of 
the New Orleans Police Department, and last week the report we 
issued in Puerto Rico. We are working with New Orleans, Puerto 
Rico, and others to develop blueprints for sustainable reform 
that will achieve three goals: reduce crime, ensure respect for 
the Constitution, and restore public confidence in the police.
    On the housing front, we reached the largest-ever 
settlement to resolve claims of rental discrimination in a case 
involving discrimination against African-American and Latino 
renters. We obtained the largest ever amount of monetary relief 
in a Justice Department fair lending settlement to resolve 
claims that two subsidiaries of AIG discriminated against 
African-American borrowers. Our new Fair Lending Unit this year 
has filed more lawsuits under the Equal Credit Opportunity Act 
than in any year in at least a decade, and every settlement we 
reach in this case specifically provides a bank is not required 
to issue an unsafe or unsound loan. That is a provision in 
every decree that we enter into.
    In the last full fiscal year, the Division obtained consent 
decrees or favorable judgments in 42 fair housing cases, 
including 26 with pattern or practice claims, the most such 
settlements in 14 years.
    Our disability rights practice has been taken to new 
heights. We ramped up enforcement of the Supreme Court's 
landmark Olmstead decision, which stands for the proposition 
that the unnecessary institutionalization of people with 
disabilities is a form of discrimination. We have joined or 
initiated litigation or issued findings letters to assure 
community-based services for persons with disabilities in more 
than 35 matters in 20 States. We reached a landmark settlement 
in Georgia and in Delaware, where in Delaware we are reforming, 
with the wonderful partnership of the State, the community 
mental health system. Comparatively, during the previous 
administration, one amicus brief was filed in an Olmstead case.
    We reached the largest-ever settlement under Title III of 
the ADA, which applies to places of public accommodation. Under 
this agreement Wells Fargo will ensure equal access to services 
for people with disabilities, including hearing impairments, 
including vision impairments.
    We have an active docket of cases on behalf of 
servicemembers. We reached the largest-ever settlement under 
the Servicemember Civil Relief Act, ensuring that Bank of 
America and Countrywide will pay $20 million to resolve 
allegations that they illegally foreclosed upon servicemembers 
without court orders. In the first 2\1/2\ years of the 
administration, we have filed more cases under the Uniform 
Services Employment and Re-employment Act, USERA, than was 
filed in the entire 4 years of the preceding administration.
    In 2010, we completed an extensive program of enforcement 
of the MOVE Act to ensure access to the ballot for 
servicemembers and overseas citizens, obtaining agreements in 
14 States or territories, the most enforcement actions under a 
single statute ever taken by the Voting Section leading up to a 
Federal election.
    We have doubled the rate of amicus briefs filed in Federal 
courts of appeals. We have opened up 20 civil investigations 
under the Freedom of Access to Clinic Entrances Act and filed 8 
civil complaints under the Act compared to 1 civil FACE case in 
the 8 years of the preceding administration.
    We have received nearly 4,000 submissions for review under 
Section 5 of the Voting Rights Act, including more than 500 
redistricting plans.
    We filed the first two lawsuits in 7 years under Section 7 
of the NVRA to ensure that citizens have an ample opportunity 
to register to vote, as required by Federal law. The Voting 
Section is involved in 27 new cases this fiscal year, including 
affirmative and defensive cases as well as amicus 
participation, the most in any fiscal year in the last decade. 
This includes nine bailout cases filed by jurisdictions seeking 
to be removed from Section 5 coverage, the most bailout actions 
ever in a single year.
    I am exceedingly proud of these considerable 
accomplishments, and I could go on for another half an hour, 
which I will not. And I am exceedingly grateful to the 
dedicated career staff in the Division. But more important than 
the numbers are the people who have suffered from violations of 
civil rights laws and who have found some measure of justice in 
our work. I met with the victim in the recent hate crimes case 
in New Mexico, a 22-year-old man of Navajo descent, a person 
with a severe developmental disability. He was taken away by 
three defendants, three idiots. They lured him to their home. 
They literally took a hanger. They ignited the hanger on their 
oven, and they put a swastika on his arm. Every single day he 
wakes up he will remember what happened to him.
    Take the six women in Detroit who were subjected to severe 
and pervasive sexual harassment by a maintenance worker in 
their apartment, including in one woman's case being required 
to have sex with him in exchange for keys to the apartment. We 
took that case to trial because the property owner knew about 
it and did nothing, and a jury awarded monetary damages to the 
victims.
    Finally, take the nearly 180 members of the armed forces 
and their families who lost their homes because mortgage 
servicers, in violation of Federal law, foreclosed upon their 
home without first obtaining a court order. When people are 
serving our Nation abroad, we need to have their back at home, 
and that is precisely what they are doing.
    These victims and so many others, whether it is our 
bullying work, our work in Muslim outreach, these are the 
reasons why my colleagues and I get out of bed each morning. It 
is a remarkable honor to serve in this job every day and work 
with the dedicated career attorneys and professionals and 
support staff in the Division to protect and defend the rights 
guaranteed by some of our Nation's most cherished laws. We take 
very seriously our responsibility to carry the torch of the 
great civil rights pioneers who fought for those laws, and we 
honor their legacy by enforcing these laws aggressively and 
even-handedly.
    I welcome the opportunity to tell you more about our work, 
and I look forward to answering any and all questions that you 
have here today.
    Thank you very much, Mr. Chairman, for this opportunity to 
speak.
    [The prepared statement of Mr. Perez appears as a 
submission for the record.]
    Senator Coons. Thank you very much, Mr. Perez. We are now 
going to begin 5-minute rounds of questions, beginning with 
myself.
    I would like to talk first, if I could, about your actions 
to protect the rights of service people, which you referenced 
at the end of your statement. I was struck by how active and 
engaged the Civil Rights Division has been around the 180 
servicemembers who were inappropriately foreclosed upon. I 
would also be interested in hearing what actions you have taken 
to enforce the so-called MOVE Act, or the Military and Overseas 
Voter Empowerment Act of 2009, which acts to ensure that those 
deployed have access to ballots at least 45 days before a 
primary or general election. Twelve States, as I understand, 
have failed to fully comply, and I would be interested in how 
the Civil Rights Division is protecting the rights of 
servicemen and -women under the MOVE Act. And then, second, as 
someone who was long active with the National Guard and Reserve 
in my community, it is the most sort of pressing concern many 
of them as to whether or not when they return they will be able 
to rely on the promise of employment that USERA, also under 
your Division in terms of enforcement jurisdiction, promises 
them. What sort of enforcement activities have you taken? In 
your opening statement, you suggested a very high tempo of 
enforcement activity, so I would like to start with some 
discussion of both of those, if I might.
    Mr. Perez. Thank you for that question. We have a very 
active program of enforcement of a wide range of civil rights 
laws on behalf of servicemembers. In the USERA context, as I 
said, we dramatically stepped up the pace of our enforcement. 
We do that in concert with the Department of Labor, and the 
Department of Labor has been a very important partner. But we 
have already exceeded the number of cases brought from the 
preceding administration, so we brought more cases in 2\1/2\ 
years than were done in the preceding 4 years. U.S. Attorneys 
are also very important partners in these cases.
    I am also going out to military bases to have outreach 
conversations. I will be in Fort Knox in a couple weeks talking 
about USERA, talking about the SCRA, because one of the things 
I have learned in this is that we need to prepare 
servicemembers before they deploy. Many of our cases involve 
national guardsmen and -women who are called up to active duty 
service, and we are really working harder to make sure there is 
that checklist of cases.
    The SCRA is a developing area of the law. We have been 
working hard to make sure that there is maximum opportunity for 
victims of these consumer protection violations to have access 
to courts, and we have been very successful in that regard.
    And, finally, in the MOVE Act, we had an unprecedented year 
of work in 2010. We reached either consent decrees or MOUs or 
other agreements with 14 different jurisdictions. And in the 
aftermath of that, we are continuing to work with them. A 
number of States have moved up their primary dates to address 
the fact that if you have a September primary date you may run 
into compliance problems. Other States we have actually 
extended consent decrees. And, in addition, we have done a lot 
of work thinking about the lessons of 2010, and we have 
actually a very exciting package of reforms. I look forward to 
working with a bipartisan group of Senators--Senator Cornyn and 
Senator Schumer and yourself and others were very involved in 
this. I would like to eliminate, for instance--there is a 
waiver provision in the MOVE Act. We believe that that 
provision should be eliminated. Senator Cornyn had suggested a 
private right of action. We agree with him. We think that that 
should be added.
    So we have a number of ideas about how to enhance the 
capacity, and I think they are ideas that will engender 
bipartisan support.
    Senator Coons. Thank you, Mr. Perez. In addition to the 
MOVE Act, last Congress also passed the Matthew Shepard hate 
crimes law which made two crucial updates to the hate crimes 
definition: first, expanding violent acts covered by the Act by 
removing a requirement that it be connected to the victim's 
exercise of a federally protected right; and, second, expanded 
motivation for hate crimes to include crimes against gay, 
lesbian, and transgendered persons.
    Can you help me understand how the passage of that Act has 
changed the Division's enforcement of hate crimes both in terms 
of prosecution and, as you mentioned, your vigorous and 
effective, I think, outreach to law enforcement and then to the 
broader LGBT community?
    Mr. Perez. It has transformed our ability to combat hate 
crimes in remarkable ways. It has removed unnecessary 
jurisdictional barriers in our racial violence and religious 
violence cases. I came to the Division in 1989 as a career 
prosecutor doing hate crimes cases, had a number of cases that 
were clearly hate crimes, but we were not able to prosecute 
them under Federal law because of the unnecessary barrier that 
was eliminated in the Matthew Shepard/James Byrd, Jr. Act.
    In addition, there is nothing worse--I saw a lot of what I 
call ``equal opportunity bigots.'' They hated African-
Americans. They hated Jews. They hated people who were gay. 
They hated people who were Muslim. They hated, in short, people 
who were different from them in any way, shape, or form. And it 
was frustrating beyond all get-out to not have the ability to 
prosecute gay-bashing incidents, for instance.
    And then one of the really remarkably helpful ways that 
this has transformed our program is that it has facilitated 
additional cooperation with State and local authorities. We 
have trained over 4,000 local law enforcement officers. I have 
participated personally in many of them. Our message is this: 
This is not a law simply for the Feds. This is everybody's law.
    When the Matthew Shepard incident occurred, we had no 
jurisdiction, and, therefore, the Federal Government was unable 
to assist the jurisdiction in the investigation and prosecution 
of that case. It almost bankrupted the jurisdiction, Senator, 
and as a result, with this law we have renewed collaboration 
and cooperation. We are working together with the authorities 
in Newark on the hate crime case that you mentioned. I would 
predict that that case will be prosecuted locally, and that is 
in the best interest of the case. That always is the question 
presented. I do not measure the success of the Matthew Shepard 
Act by the number of Federal cases that we bring. I measure the 
Matthew Shepard Act by the quality of justice, writ large, 
whether it is Federal, State, local, whether it is preventive.
    We had a case in Arkansas. Two weeks after our training, we 
get a call from a trooper who identified a case that was a hate 
crimes case, and it ended up being the first case that went to 
trial. He called us up and said, ``You know, I had this 
situation. I just went to this training. I think it is a hate 
crime.'' We ended up with a remarkable collaboration, and the 
jury ended up, after a 59-minute deliberation, convicting those 
defendants in the first jury trial under this statute. So it 
has been transformational.
    Senator Coons. Thank you. Thank you for your testimony and 
thank you for your great work.
    Senator Grassley.
    Senator Grassley. Mr. Perez----
    Mr. Perez. Good morning, Senator.
    Senator Grassley. Thank you. The Civil Rights Division 
would not preclear under Section 5 the request of the city of 
Kinston, North Carolina, that it could not change from partisan 
to nonpartisan elections. The request was approved by a 
referendum of city voters, including in most of the African-
American precincts. The Division argued that the loss of 
Democratic partisan affiliation on the ballot would eliminate a 
cue that fostered cross-racial voting. It noted that cross-
racial voting was more common in closed primaries than in 
partisan general elections as a basis for its decision, which, 
of course, has nothing to do with nonpartisan voting. Overall, 
the Division's ruling seems to have more to do with protecting 
Democrats than protecting the voting rights of African-
Americans.
    What is your view of whether or not nonpartisan elections 
conflict with Section 5? And would you preclear future requests 
for nonpartisan elections?
    Mr. Perez. The analysis, Senator, under Section 5 is 
twofold: the covered jurisdiction--and there are 16 
jurisdictions, 16 States covered either in whole or in part. 
They bear the burden of showing that a proposed change--that 
there is an absence of discriminatory purpose and an absence of 
retrogressive effect or discriminatory effect. That burden is 
on the covered jurisdiction to demonstrate that.
    In the Kinston case that you mentioned, there was not a 
purpose objection raised, but the conclusion reached was that 
the proposed change had a retrogressive effect. And as a 
result, an objection was lodged. That matter is now in 
litigation so I cannot comment further, and it is actively in 
litigation right now.
    I can say as it relates to your question about nonpartisan 
elections, every submission will be fact specific, and we will 
look at it under the analysis that I outlined. Was the change 
motivated by discriminatory purpose or does it have a 
retrogressive impact? That will be the legal analysis that will 
govern every submission that we receive, and whether that is 
nonpartisan elections, whether it is partisan elections, that 
is the analysis.
    Senator Grassley. On another point, two whistleblowers 
testified under oath that the Civil Rights Division supervisors 
scaled back prosecution of members of, officers of, and the New 
Black Panther Party itself because the supervisors were not 
interested in enforcing the Voting Rights Act in a race-neutral 
way. Instead, the Division would seek equality only for members 
of ethnic and racial minorities.
    The whistleblowers also testified--and, remember, under 
oath--that the Civil Rights Division supervisors indicated that 
they would not bring any cases under Section 8 of the motor-
voter law which requires States to keep voting lists current by 
removing the names of the dead and those who have moved.
    Chairman Smith of the House Judiciary Committee received 
assurances that the Department would provide him with all 
relevant documents in this matter, but the Department has held 
back many documents based upon general ``confidentiality'' 
objections. And, of course, as I said in my statement, I do not 
think that is legitimate because I think the Department ought 
to be transparent. With transparency you get accountability.
    Would you commit to providing all documents on this matter 
to Chairman Smith in short order and to drop all objections 
based upon supposed confidentiality?
    Mr. Perez. Senator, we have provided hundreds if not 
thousands of documents to both the U.S. Civil Rights 
Commission, to Chairman Smith, and to others. I will also note 
in connection with the New Black Panther Party case that there 
was an extensive investigation by the Office of Professional 
Responsibility. They found no evidence--they did not find scant 
evidence or insufficient evidence. They found no evidence that 
decisionmakers were influenced by race, politics, or any other 
improper factor. They found that the decision to file the case 
and the decision to dismiss certain claims were based on a 
good-faith assessment of the facts and the law. It was a very 
extensive investigation, and the report was provided to, I 
believe, both committees of--I know it was provided to the 
House Committee, and I believe it exists here.
    You mentioned Section 8 of the Voting Rights Act. I said 
before and I reiterate our commitment to the enforcement, the 
even-handed enforcement of all the laws. We actually have, I 
believe it is, nine current investigations under Section 8. The 
two people who lead those investigations, the career attorneys, 
are the same career attorneys that have been leading those 
types of investigations for a number of years. And I 
deliberately wanted that to be the case so that there would be 
continuity in our enforcement. And my instruction to them is 
the same instruction I give to every attorney in the Division: 
Follow the facts where the facts lead you. If the facts support 
prosecution, whether it is our civil jurisdiction or our 
criminal jurisdiction, let us go for it. If the facts do not 
support it, then we close the matter. And that is the 
commitment you have from me, Senator.
    Senator Grassley. Well, I have to remind you, though, that 
everything you addressed would be accurate, but it is the 
documents that have not been produced that I was asking my 
question about, the documents that have not been produced. In 
other words----
    Mr. Perez. Senator, I know that I--I personally testified 
before the Civil Rights Commission. We offered up--the 
Department months ago offered to have the deputy that oversees 
the Voting Section be interviewed by the House Members. We have 
provided quite literally hundreds of documents.
    Senator Grassley. You are saying then to me--and I will 
stop with this. But you are saying to me that you produced 
every document that the House has asked for?
    Mr. Perez. I do not know that that is accurate, sir, but I 
do know that we have been incredibly responsive, in my opinion, 
to the requests of the House.
    Senator Coons. Thank you, Senator Grassley.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman.
    Mr. Perez, my understanding is that LGBT persons are 
protected under the Hate Crimes Act, as you talked about in 
your answers to Chairman Coons' questions, and to the same 
extent as other groups like minorities and women. So this means 
that we need to protect LGBT Americans in the same way we 
protect other vulnerable groups.
    Following that principle, doesn't it follow that we should 
protect LGBT students from bullying to the same extent that we 
protect other groups?
    Mr. Perez. We have a number of cases, Senator, involving 
bullying--actually, bullying of all types, bullying of African-
American students, bullying--we had a case in the Twin Cities 
area involving the bullying of Somali students who were told, 
``Go home, you terrorists.'' This is their home. They were born 
here. And the school district failed to take appropriate 
action. The bullying of Asian students in South Philadelphia 
High School, and the bullying of kids who are LGBT is probably 
the largest growth area in our docket. We reached a settlement 
that we did with the Office for Civil Rights at the Department 
of Education arising out of a case in California, the tragic 
suicide of a boy named Seth Walsh. We did a case in Mohawk 
County, New York, under our Title IX authority. We have an 
investigation, obviously, in your neck of the woods in a 
matter, and this is about safety. Whether it is kids who are 
gay, whether it is kids who are Muslim, whether it is kids who 
speak English with an accent, whether it is kids with 
disabilities, as we had in Tennessee where we had a case 
involving the bullying of kids with disabilities, this is an 
emerging growth area, I regret to say. That is why the 
President had a day-long summit on bullying. That is why we 
have taken such an aggressive role.
    And I very much appreciate your leadership in this area. I 
very much support the goals behind your efforts in introducing 
the Student Non-Discrimination Act. The kids are dying. Kids 
are being brutally assaulted. Kids are scared.
    I was in Tennessee meeting with Muslim leaders, and they 
were telling me that their children do not want to go to school 
in the morning because they are getting beaten up for no good 
reason. And that is why we have such an active program of 
engagement.
    Senator Franken. Well, I am glad to hear you say all that 
because, in Minnesota, in Anoka and Hennepin County, the 
largest school district in Minnesota, it was sued by the 
National Center for Lesbian Rights on behalf of a 15-year-old 
student who was a victim of harassment. The student, who I will 
call ``E.R.,'' suffered physical assault and pervasive bullying 
based solely on her sexual orientation and appearance. And I 
understand that the Department of Justice and the Department of 
Education are also investigating the district following claims 
of pervasive harassment.
    Bullying has gained national attention recently following a 
rash of student suicides linked to harassment at school. You 
mentioned the California case. Sadly, harassment of students 
for gender and sexual identity is frequent and disturbing, and 
while the Matthew Shepard Hate Crimes Act provides some 
protection against sexual orientation-based violence, it is 
clearly not doing enough for LGBT students. So thank you for 
mentioning my Student Non-Discrimination Act, and I then assume 
that you do agree that we need an explicit ban against 
discrimination in public schools based on sexual orientation.
    Mr. Perez. Again, our work that I have just described in 
the LGBT context, we proceed under a sex discrimination theory. 
It is well settled in the courts that gender nonconformity is 
one form of sex discrimination under Federal law, and so we are 
proceeding under that context. And that is in part because 
sexual orientation is not part of Title IX.
    Senator Franken. Right.
    Mr. Perez. It is not part of Title IV. My first hearing 
here, where I had the honor of having a conversation with you, 
was when we testified about ENDA. It is not part of Title VII 
yet.
    Senator Franken. Thank you.
    Thank you, Mr. Chairman.
    Senator Coons. Senator Klobuchar.
    Senator Klobuchar. Thank you very much. Thank you for your 
good work.
    Mr. Perez. Thank you.
    Senator Klobuchar. I first just want to get your 
perspective over time as someone that has worked in this area 
for a long time, just where you see since early days when you 
were involved in civil rights issues, what is the changing 
level of discrimination. You were just talking with Senator 
Franken about what has been going on in our State with 
teenagers who have been bullied because they are gay or what 
you have heard about the Somali community also in our State. So 
what do you see as the national trends here with 
discrimination? I am certain that some of the methods may have 
changed with the Internet and those kinds of things, but what 
do you see is the status? Has there been improvement or not?
    Mr. Perez. I think we have made a lot of progress as a 
Nation in understanding and coming together that our diversity 
is indeed our greatest strength. But one of the questions I was 
asked, Senator, when I first came on the job is, ``What are 
your first impressions? '' And one of my first impressions, 
quite honestly, was that the more things change, the more they 
stay the same. I prosecuted hate crimes for the better part of 
a decade. I continue to see all too many situations where the 
names have changed, the locations have changed, but the fact 
patterns remain all too frequent and consistent.
    So we have these what I call ``timeless civil rights 
challenges'' in the education context, school district cases 
where a school district in Monroe, Louisiana, had a high 
school--one was entirely segregated; the other was 57-43, 57 
percent African-American, 43 percent white. In the integrated 
school, they had 85 gifted and talented offerings. In the 
segregated school they had five. Timeless civil rights 
challenges.
    But then we have these emerging challenges. The head wind 
of intolerance that we see in our hate crimes work focused in 
the Muslim community, in the Arab, Sikh, and South Asian 
community. We have a growing docket of cases there.
    Our docket of zoning cases under the bipartisan Religious 
Liberty and Land Use of Institutionalized Persons Act which was 
passed--it was a Senator Hatch and Senator Kennedy initiative 
of about 10 years ago. The vast majority of our cases involving 
Muslims have been within the last 16 months. We have had 16 
cases in the zoning context in the last 16 months that we have 
opened.
    So we have these timeless challenges, but then we have the 
emerging challenges in the bullying context. We have the 
emerging challenges in this head wind of intolerance that often 
manifests itself in senseless acts of violence because of who 
someone worships or who someone sleeps with. And, frankly, 
business is booming, I regret to say.
    Senator Klobuchar. Okay. With the limited--you know, we are 
all having issues with resources, and we want to make sure you 
are allowed to continue to do your work there. Where do you 
prioritize the work that you do?
    Mr. Perez. Well, we have been focused on trying to increase 
enforcement across the board. We have paid particular focus in 
the area of our criminal enforcement, especially our hate 
crimes enforcement, our work in terms of our new Fair Lending 
Unit, our work in the area of disability rights. And, again, 
these emerging areas in the bullying context and in our Muslim 
engagement have been significant.
    One way we are doing more with less is that we have taken 
partnership to new levels. Our U.S. Attorneys are remarkably 
important partners. The U.S. Attorney in Minnesota, Todd Jones, 
has been a phenomenal partner in both our civil and criminal 
enforcement docket. We are working with the Department of Labor 
better than ever, Mr. Chairman, on our USERA work. The 
Department of Housing and Urban Development, we are working 
very hard with them.
    The bullying case we did in South Philadelphia we did with 
the local human rights agency in addition to the U.S. 
Attorney's Office.
    So necessity is the parent of ingenuity, and I think 
ingenuity abounds in our work.
    Senator Klobuchar. Very good. Your testimony mentions that 
the Department has issued the first major revision of its rules 
for accessibility under the ADA. Minnesota was one of the first 
States that did a lot of work for people with disabilities in 
terms of some of the accessibility issues, and so we are 
always--this is near and dear to our heart in our State. So 
could you talk about these rules, why they were needed and what 
the intended benefit----
    Mr. Perez. Sure. Well, a year ago, late July, we celebrated 
the 20th anniversary of the Americans with Disabilities Act, 
and we had a remarkable ceremony with Attorney General 
Thornburgh, Attorney General Holder, and others. And in 
connection with that, we issued the most sweeping set of 
regulations since the initial passage of the ADA. We needed to 
bring the ADA up to reflect the realities of the 21st century, 
and so we have really, I think, moved the ball forward in a 
host of ways, and we are not done. The conversations now are 
about things like the Internet. If you do not have access to an 
accessible Internet, how do you get a job. The unemployment 
rate for people with disabilities in most States is north of 50 
percent. So trying to remove those barriers, the Internet is 
your best friend. Closed-captioning in movie theaters, there 
are all sorts of ways in which we are trying to ensure that the 
Americans with Disabilities Act is part of the fabric of our 
communities.
    Senator Klobuchar. Thank you very much. I appreciate your 
work.
    Mr. Perez. Thank you.
    Senator Klobuchar. Thank you.
    Senator Coons. Thanks, Senator Klobuchar.
    I will begin a second round of questions. Whether the laws 
you are seeking to enforce are 2 years old, 20 years old, or 
more than 40, you have a very broad challenge, and as you said, 
I think eloquently, in pressing back against the head wind of 
intolerance. I just wanted to probe some about the range of 
tools you have got available to you.
    Drew Days, who preceded you in this role, was my own 
professor in law school, and I first heard about disparate 
impact cases and Title VII from him and from his own rich 
history of litigating. What is the Division doing at this point 
to use the tools of disparate impact analysis, long one of the 
most powerful tools the Division had against vestigial racism? 
And what are you doing to ensure full enforcement of the law 
against employment discrimination, particularly in a world 
post-Dukes v. Wal-Mart, where there are real challenges to 
plaintiff class action suits nationally? What role do you see 
for the Division in lending and employment and in access to 
opportunity?
    Mr. Perez. We play a very important role, and you mentioned 
both the employment front and the fair lending front, and we 
have opportunities and active cases in both.
    In the employment front, one of our largest cases in the 
Division right now pertains to the Fire Department of New York. 
The men and women of the New York City Fire Department have 
done heroic work, and we just honored that great work over the 
weekend. The challenge that the department has confronted not 
just for a few years but literally for a few decades was the 
challenge of discrimination. Lawsuits have been pending against 
the New York City Fire Department for so long that the initial 
judge who handled them was a Truman appointee. There are less 
African-Americans and Latinos in terms of percentages on the 
New York Fire Department now than there were 30 years ago.
    In fact, the problem is so acute--and you contrast that 
with the New York Police Department, which has managed to hire 
the most qualified people and to reflect the diversity of the 
community.
    If you look at the Chicago Police Department, if you look 
at the Chicago Fire Department, if you look at Los Angeles, if 
you look at Houston, other places have managed to ensure that 
they are hiring the most qualified and have a pool of folks who 
reflect the diversity of the communities that they serve.
    The New York Fire Department is not, and the situation is 
so significant that the judge in that case granted summary 
judgment for the Government, not only on a disparate impact 
theory which we put forward, but also on a theory of 
intentional discrimination, ruling that the problems have been 
so bad for so long that it is evidence of intentional 
discrimination. And so we are working on that case. We would 
love to resolve that case, but it has been proving rather 
elusive. And so we will continue to do cases of that nature.
    In the fair lending context, as you know, disparate impact 
work is a linchpin of our fair lending work, and I will note 
there are some who argue that disparate impact theory is not 
viable. What is interesting about this is that every circuit 
that has ruled on the viability of disparate impact theory in 
the fair lending context, and every circuit but one, I believe, 
has ruled that disparate impact theory is viable. So there is 
no split in the circuit. It is a longstanding tool in the 
arsenal of the Civil Rights Division, and we are using just 
that. And the work we do, you look at our case in St. Louis 
involving a bank that had literally drawn a red line--there was 
a horseshoe around the African-American communities. They 
basically gerrymandered their service area so they did not have 
to serve African-Americans. The same thing in Michigan with 
Citizens Bank.
    One of the things we do in those cases, Senator, is we 
conduct what is called ``peer review,'' because there are 
critics who contend that you are forcing banks to lend to 
unqualified people. That could not be further from the truth, 
and I am happy to share with you our consent decrees that 
explicitly say that you do not have to make any unsafe or 
unsound loans. And what is interesting is when you look at the 
peer review, other banks were doing great in those areas. They 
had significant market penetration in African-American 
communities, and these banks did not.
    So what we are trying to do is get the mainstream, the good 
lenders, to lend to--to be in place in every community because 
when they do not, when they allow the color of a community as 
opposed to the content of the creditworthiness of the borrower 
to govern, then that opens the door for those unscrupulous 
lenders.
    So I agree wholeheartedly with those who contend that we 
should not force banks to lend to unqualified people. I 
completely and wholeheartedly agree with that statement. And 
our decrees and our use of disparate impact theory absolutely 
embodies that very important principle.
    Senator Coons. Thank you, Mr. Perez.
    Senator Grassley.
    Senator Grassley. I have got to think here whether or not 
in your conversation with the Chairman if you answered my 
second question. I would like to start out, though, with 
another issue on immigration. You said last year, ``Under our 
system of Government, there is one quarterback and only one 
quarterback when it comes to issues of immigration, and that is 
the Federal Government.''
    You made that statement in a context of the Justice 
Department filing against Arizona and arguing that its new law 
that affected immigration enforcement was preempted by State 
law.
    So based upon this argument that you use that the Federal 
Government--that immigration is a Federal responsibility and 
preempts any State law, when can we expect the Department of 
Justice to bring suit on preemption grounds against localities 
that have passed ordinances declaring themselves sanctuary 
cities for those who have entered the United States in 
violation of our Federal immigration laws?
    Mr. Perez. Well, Senator, as I said in that particular 
context of Arizona, the Federal Government is the quarterback 
on immigration issues, and they are the quarterback because 
immigration enforcement decisions have law enforcement 
consequences, they have humanitarian consequences, and they 
have foreign policy consequences. The district court agreed, 
the Ninth Circuit Court of Appeals agreed, and now the matter 
is before--I believe there is a cert petition that has been 
filed in connection with that case. In Utah, a court has put 
the Utah law on hold, and I think the laws in Georgia and 
Indiana have been put on hold, and the matter in Alabama is 
pending a decision by the court. And so those cases will move 
themselves along the court, and I expect that court process 
will move.
    Every situation is very fact dependent, and if you have a 
specific matter that you would like us to look into, I would 
ask you to bring it to our attention, and we will look at it 
and determine whether there is a----
    Senator Grassley. You know about sanctuary cities. They are 
pretty prevalent. In that local ordinance, isn't that a----
    Mr. Perez. I have not reviewed any of the local ordinances 
from any of the so-called sanctuary cities, so I would not be 
in a position to comment and compare them with Federal law. I 
certainly was closely involved in the review of the other 
matters in Arizona, which is why I can speak with a more 
informed judgment.
    Senator Grassley. I guess I am astounded that you do not 
have a view on that, but I will move on anyway. But I can 
understand why maybe you do not have a view on it, but I do not 
think it relates to your not having studied the local 
ordinances.
    The Civil Rights Division brought many lending 
discrimination cases against banks on disparate impact, and so 
I am going to refer to that Wall Street article. But first I am 
going to refer to the fact that the Wall Street Journal 
commented that this policy encourages lenders to lend to 
borrowers regardless of their ability to pay. And as you know, 
the issuance of mortgages to unqualified borrowers is one of 
the pillars of our current economic crisis.
    So you responded and stated that you focus on lending 
institutions that failed to lend to qualified borrowers, and 
you also state that, ``A vacuum ready to be filled by predatory 
lenders could be created.''
    Are you aware of qualified residential mortgage rules 
proposed by the Federal Reserve in part to implement Dodd-Frank 
that requires lenders to retain some percentage of the loans 
that they bundle and sell as securities? If you are aware of 
that, what data are you using to determine that qualified 
borrowers are not able to obtain loans and that those denials 
are based on race?
    Mr. Perez. Well, one thing I would like to do, Senator, if 
I may for the record, I have the copies of our consent decrees 
in the Midwest and the Citizens Bank cases. I would like to 
submit them for the record, if I could, because, again, they go 
to the heart of Senator Grassley's question about whether we 
are forcing banks to lend to unqualified borrowers.
    For instance, no provision of this order requires Midwest 
to make any unsafe or unsound loan. Midwest will offer 
qualified residents, qualified applicants. Throughout all of 
our consent decrees, this is about making sure that opportunity 
exists for people who are qualified. We saw the racial 
gerrymandering in the form of red-lining where a Community 
Reinvestment Act--and I will note that I believe both of these 
cases were referrals from our regulators, so we got these from 
the Fed, I believe. And they looked at it, and the banks 
themselves--these two cases are a case study in the need for 
banks to have internal compliance because the remarkable lack 
of attention to opportunity--and, again, when I talk about 
opportunity, the reason I know opportunity exists is because we 
conduct peer review. So that we look at the peers of Midwest, 
we look at the peers of Citizens, and what we see is they are 
not drawing that horseshoe around the African-American 
communities. They are, in fact, making money, and they are 
making good money, by not judging people by the color of their 
skin but, rather, by the content of their creditworthiness. And 
that is the essence of what we do in this work. We work very 
closely with the regulators. We have gotten more referrals from 
regulators in the last year on fair lending cases than we have 
ever gotten before. I am proud of that. Again, when I talked 
about partnership, Mr. Chairman and Senator Grassley, that is 
one example of working together.
    I believe that there is a false premise that is often put 
out there, which is we can either promote a sound business 
climate for lenders or we have consumer protections. We have 
seen in the abuses of the last few years that that is 
categorically inaccurate. Just as we can have secure 
communities and respect for the Constitution in the law 
enforcement context, we can have common-sense consumer 
protections and preserve a sound business climate for lenders. 
That is what we are doing in this work, and I am very proud of 
that work as a result. And we spend a lot of time working, 
Senator Grassley, with lenders to educate them. And I have 
spoken with lending groups, and I have put up the slides of the 
horseshoe. A picture tells a thousand words, and you see--and 
you asked the question: How is it that you could so obviously 
avoid African-American communities when your peers are doing 
well in those communities? That is what these cases are about--
access to opportunity.
    Senator Grassley. Thank you, Mr. Chairman.
    Senator Coons. Without objection, the materials will be 
included in the record.
    Mr. Perez. Thank you.
    [The information appears as a submission for the record.]
    Senator Coons. Senator Durbin.
    Senator Durbin. Thank you very much, Chairman Coons.
    Mr. Perez, thank you for contacting me last week from 
Puerto Rico and your prompt response to the concerns that had 
been expressed about abuse by law enforcement authorities on 
that island. I hope we can continue to work together to make 
sure that if there are problems, they are investigated 
thoroughly and acted upon to change the policy. Thank you for 
that.
    Mr. Perez. Thank you.
    Senator Durbin. Last week I held a hearing in the 
Subcommittee on the Constitution, Civil Rights, and Human 
Rights about the new State laws that have been passed in seven 
or eight jurisdictions. They have raised concerns--I sensed the 
concerns personally, but they have raised concerns because they 
establish new requirements to vote: voter identification cards, 
photo IDs in some States, new standards for voter registration 
in other States, and reducing the period of early voting in 
many States.
    It troubles me because when it comes to early voting, in 
the last election 30 percent of Americans felt that was the 
best way to exercise their right to vote. And as we reduce 
access to early voting, it creates a hardship on those and many 
others.
    Some of the reduction of early voting also raises political 
questions in my mind. It appears that there has been a 
concerted effort by some groups to reduce early voting on the 
Sunday before the election. In Illinois, that is a day when 
many African-American churches finish their services and people 
go to vote. The same thing is true in the Hispanic community. 
And I do not think it is a coincidence that they are arguing 
that we should close down voting on Sunday. I think there are 
political motives behind that.
    The new voter registration law in the State of California 
is so onerous that the League of Women Voters has publicly 
announced that it is pulling out of voter registration in that 
State--in Florida, I am sorry. In Florida that has happened. 
And if I recall the testimony we received, if you should ask a 
person to register to vote in Florida under the new law and do 
not submit the paperwork within 48 hours, you can be fined 
$1,000. Naturally, the volunteers of the League of Women Voters 
are not interested in facing that penalty and have backed away 
from their traditional historic role of nonpartisan voter 
registration.
    The requirements on voter IDs are equally troubling to me. 
In many States there are thousands, in some cases hundreds of 
thousands, of eligible voters who do not qualify under the 
current new law to vote in the next election. They do not have 
the appropriate voter ID.
    For example, I was in Tennessee yesterday, in Nashville, 
and in that State I believe the number is 126,000 current 
driver's license holders in that State do not have a driver's 
license with a photo on it. So if they present that driver's 
license to vote, they cannot under the new Tennessee law.
    There are over 200,000 people in the State of Wisconsin 
under their new law who would run into problems in voting. And 
for those who say, ``Well, they have got time to get a new 
voter ID card or a new identification card,'' it turns out 
there is only one DMV facility in the State of Wisconsin that 
is open on weekends--one--with over 200,000 people who are 
going to need some new form of ID.
    Mr. Chairman, I ask consent to at this point enter into the 
record a memorandum from one of the DMV offices in Wisconsin 
where--it is an internal memorandum given to the employees to 
address this issue about people now showing up looking for 
these new identification cards so they can vote. And they made 
a point under their law to say it is a free ID card; otherwise, 
they might face the charge of a poll tax. If you have to buy an 
ID to vote, it could violate some of our basic principles and 
law.
    [The memorandum appears as a submission for the record.]
    Senator Durbin. But in this memo, internal memo, from the 
Wisconsin DMV, there is a statement here, which is highlighted, 
which says to the employees: ``While you should certainly help 
customers who come in asking for a free ID to check the 
appropriate box, you should refrain from offering the free 
version to customers who do not ask for it.''
    It is an indication to me that the spirit of this is not to 
make it easier for people but to make it more difficult for 
them to vote. I cannot think of a worse development in a 
democracy than making it more difficult for people to vote.
    At the end of the hearing, reporters and others came up to 
me and said, ``What is next?'' And I said, ``What is next is 
the Civil Rights Division of the Department of Justice.''
    Could you explain to me what your responsibility is now at 
the Department of Justice with the new State laws that I have 
just outlined?
    Mr. Perez. Sure, absolutely. We are obviously closely 
monitoring developments regarding the new laws, and we have two 
sets of statutes that are relevant to this analysis: Section 5 
of the Voting Rights Act applies to all or parts of 16 States, 
and any of those covered States--Illinois not being one of 
them--is required whenever they make a change to either submit 
that change for preclearance to the Civil Rights Division, or 
they can file a lawsuit in a three-judge panel in the District 
of Columbia. In either situation we are involved in the Justice 
Department.
    You mentioned Florida. I cannot comment, obviously, on the 
specifics. They initially submitted their plan for preclearance 
by the Department. We asked a number of questions. They 
withdrew the submission and then they filed in the DDC, which 
is their right. And so now we will be addressing those issues 
in the District of Columbia. And, similarly, there are other 
States with voter ID laws that are in the Section 5-covered 
States.
    The analysis under Section 5 is twofold. The covered 
jurisdiction has the burden--not the Government, not anyone in 
the private sector. The covered jurisdiction has the burden of 
demonstrating two things in connection with their changes: the 
absence of discriminatory purpose and the absence of 
retrogressive effect. So in those 16 jurisdictions, including 
but not limited to four counties in Florida, that framework 
applies.
    You mentioned Wisconsin and other jurisdictions that are 
not covered. We have obviously authority under Section 2 of the 
Voting Rights Act to file lawsuits, and the ``we'' in that 
sentence is not limited to the Department of Justice. Any 
private plaintiff can file suit under Section 2. And, in fact, 
any private plaintiff can file a constitutional challenge. The 
Indiana case that went to the Supreme Court a few years back 
was a constitutional challenge to the voter ID framework in the 
State of Indiana.
    So those are the three legal tools. Section 2 applies to 
any State in the United States, so we have been actively 
monitoring all the laws that have been passed. We will not 
receive submissions, obviously, from Wisconsin and other non-
covered entities, but that does not mean we do not have the 
authority to review and take appropriate action.
    So that is the framework of analysis. A number of these 
matters have been submitted, and I obviously cannot comment 
further because they are actively under review by the 
Department.
    Senator Durbin. I would like to ask you--and the question 
came up in the hearing--why this is happening. And I asked if 
there was evidence of increased voter fraud and the 
impersonation of voters, which is what the photo ID is all 
about. One of the witnesses who was trying to defend these laws 
said, well, they are really not worth prosecuting, these voter 
fraud cases, and very difficult to prosecute, the witnesses are 
not around, it happened in the polling place, things come and 
go and so forth. And it struck me as unusual that we are 
setting out to change the voting rights of millions of 
Americans over something that even a supporter has said has not 
warranted prosecution.
    Can you tell me whether there has been an increased 
incidence of voter fraud over the last several years, 
particularly the impersonation of voters, that might give rise 
to this growing political concern?
    Mr. Perez. Well, the why question, Senator, is in essence 
in our analysis one of the $64,000 questions that we have to 
answer because if you are analyzing a submission to determine 
whether there was discriminatory purpose, that is really the 
why question. And so in the work that we are doing now in 
connection with a number of submissions, that is a question. 
Whether it is a voter ID submission or whether you are changing 
the location of a precinct or whether you are doing any voter 
change subject to Section 5, that why question very much 
animates the work that we do in connection with this.
    In the Supreme Court case, the Indiana case, there was 
evidence in that matter, if I recall correctly, of fraud in a 
2003 mayoral election. I think it was in Gary. And the Court 
said--and there was no other evidence of that. But the Court 
noted that that was enough in that particular matter to justify 
what was put in place.
    We will follow the facts where the facts lead us. We will 
obviously be guided by the Supreme Court's decision in the 
Indiana case, and we will undoubtedly be looking at the why 
question because the why question very much animates a lot of 
our work, really whether it is Section 5 or Section 2, because 
if there is a discriminatory purpose that underlies an action 
in any State, regardless of whether you are one of the 16, then 
that is obviously a fact of relevance.
    Senator Durbin. One of the interesting elements in the 
Indiana case, as I understand it, was that the case challenging 
the Indiana voter ID law was filed before there was actually an 
election in which people were asked to use the ID. And many 
have said that the Supreme Court's decision was premature, and 
even within the decision itself, there were statements by the 
Justices that if something comes up here that might be 
evidentiary and change basic elements of this case, we trust 
that it will be brought in a later case.
    So is that one of the elements as well to determine the 
hardship that is created on voters with some of these new 
voting rights laws?
    Mr. Perez. Well, I think the Court in that case discussed 
the balance that needs to occur and in that particular set of 
facts concluded that the balance tipped in favor of the law 
being constitutional. And so every case that we do is very, 
very fact dependent, and we will continue to follow the facts 
where the facts take us.
    Senator Durbin. Let me ask, if I might, Mr. Chairman, one 
last question. Most of us were involved in 9/11 memorial 
activities at home and here in Washington, and almost without 
fail people noted that we have been blessed as a Nation not to 
have had a terrible terrorist event like 9/11 happen in the 
last 10 years. Credit needs to be given to a lot of people, to 
Presidents Bush and Obama, as well as law enforcement and our 
military intelligence community and so many others, and I want 
to preface my remarks by acknowledging that fact and thanking 
all of them for the wonderful job they have done keeping 
America safe. But in a free and open society like our own, that 
vigilance against terrorism can often come up against 
constitutional values and rights.
    Saturday night I visited with a friend of mine who is a 
businessman in Chicago. He is successful, very successful. He 
has a business. He is a chemist, Ph.D. in chemistry. He has a 
business making cosmetic products, and he has done very well 
for himself. A beautiful home, kids, daughter pursuing a Ph.D. 
in polymer chemistry, and his two sons were there, both of them 
going for advanced degrees in education. A really wonderful 
family that I am proud to call friends. He is Pakistani and 
Muslim. He cannot get on an airplane anywhere in America 
without being stopped, what he calls the four S's which they 
stamp on your ticket, which means they are going to call you in 
for special investigation and a special interrogation and a 
special examination. He has contacted our office, and we have 
gone to great lengths, at one point having him sit down with 
the FBI in the room where he said, ``I will answer any question 
you have. I will provide any document you want. I do not know 
why you continue to do this to me.'' And he travels a lot.
    He is not alone. Some of his friends who were there said, 
``We have gone through the same and similar harassment because 
of our names, because of our appearance, we think because of 
our ethnicity and religion.''
    I would like to ask you, Mr. Perez, what is being done to 
make sure that we give law enforcement the resources and leeway 
they need to keep us safe but at the same time to acknowledge 
that we can go too far and we have to be sensitive to the civil 
rights and constitutional rights of minorities among us, Muslim 
Americans and others, who believe at this point that law 
enforcement can go too far?
    Mr. Perez. Well, Senator, I, like you, categorically reject 
the false choice between safeguarding our borders and our 
communities or protecting the Constitution. We can, must, and 
should always strive to do both, and that is what we do in our 
work.
    We have a robust program of engagement that I am actively 
and personally involved in with leaders in the Muslim, Sikh, 
Arab, and South Asian communities, and those conversations are 
very productive. And sometimes they are tough conversations, 
and let me give you one brief example.
    In the aftermath of the attempted bombing of the airplane 
that was landing in Detroit in Christmas Day a couple years 
ago, DHS put in place some new protocols governing people from 
certain countries. In our next meeting we heard a lot from the 
community, and what we heard was that they were responding with 
a meat axe instead of responding surgically. And a couple 
months later, and in direct response to that communication that 
was underway, DHS changed its practice and became more 
surgical.
    We continue to have those dialogs. That does not mean we do 
not have tough situations. And so, in addition, we are 
constantly receiving specific requests, and if you have 
constituents that have specific concerns--I work very closely 
with the Office of Civil Rights and Civil Liberties at DHS. We 
have a very good partnership, and I know they would want to 
hear from people.
    We also have, frankly, an active program in our police 
work. We are involved--in terms of State and local law 
enforcement agencies, we have a number of cases involving 
allegations of racial profiling. So when we see that at a local 
level, we are taking action. When we see it among our Federal 
counterparts, you know, we are striving to make sure that we 
meet the twin ideals of security and respect for the 
Constitution. And we welcome your input and the input of any 
constituents on how they think we can do better. I look forward 
to hearing from them.
    Senator Durbin. So under the Bush administration, the 
Justice Department issued guidance on racial profiling that 
included some loopholes. The guidance states: ``In making law 
enforcement decisions, Federal law enforcement may not use race 
or ethnicity to any degree.'' But the prohibition does not 
apply and this is not in quotes. This is a conclusion. The 
prohibition does not apply to profiling based on religion, and 
it does not apply to law enforcement activities relating to 
national security or border security. In other words, the 
Department of Justice guidance prohibits profiling an African-
American, for example, in a drug case, but it does not prohibit 
profiling a Hispanic American in an immigration case or a 
Muslim American in a terrorism case.
    The Bush administration guidance correctly concludes, I 
believe, ``Racial profiling in law enforcement is not merely 
wrong but ineffective.'' I agree. But I wonder if that 
principle does not apply as well when it comes to religious 
profiling and national security and border security 
investigations.
    In May of 2009 when your confirmation was pending, I asked 
you if you would review this racial profiling guidance and get 
back to me. I wonder if you have had a chance to do that.
    Mr. Perez. We have participated in the working group that 
the Attorney General has assembled on this issue. I also 
mentioned we have a number of cases involving racial profiling. 
Our docket has expanded, and the cases include Maricopa County, 
Arizona; Alamance County, North Carolina; and others. Our 
findings in New Orleans included findings relating to racial 
profiling. I think racial profiling--we remain strongly 
committed, as you mentioned, to unbiased law enforcement. I am 
a big fan of community policing. The linchpin of community 
policing is building relationships of trust. When you profile, 
you undermine that trust. That is a fact, and that is why we 
continue to work, the Civil Rights Division, with a host of 
components throughout the Department. The FBI, the ATF, 
everybody is working together to try to address and produce 
revised guidance that will thread the needle that you have 
described here today.
    So we are continuing to work on that, and we expend a lot 
of time and effort in that.
    Senator Durbin. Specifically, is religious profiling 
condoned? Allowed?
    Mr. Perez. You identified an issue in the 2003 guidance 
that is precisely the topic of the internal discussions, and at 
the same time, again, in our enforcement work, we have a robust 
docket of cases involving discrimination, whether it is the 
employment context, whether it is the hate crimes context, 
whether it is the education context. We have done a number of 
cases where people are judging people, whether it is by their 
sexual orientation or gender identity, their religion, their 
gender, their race, et cetera. We have a regrettably active 
docket of cases in those areas.
    Senator Durbin. Thank you, Mr. Perez.
    Thank you, Mr. Chairman, for your indulgence.
    Senator Coons. Thank you, Senator.
    If I might, I have a few closing questions or comments I 
would like to offer.
    Mr. Perez. Sure, love to.
    Senator Coons. I lost everyone else from this hearing.
    Mr. Perez. Was it something I said, Senator?
    [Laughter.]
    Senator Coons. No, not all.
    Mr. Perez. OK, good.
    Senator Coons. I am interested in--and we can in future 
hearings or future conversations--I think you have led some 
tremendous work in the Fair Housing Enforcement Act, and human 
trafficking is an area that I think is also worthy of further 
discussion, but I wanted to focus on just two things, if I 
could.
    One, the Matthew Shepard Act, you referred previously to 
your own work in enforcement of hate crimes and how the 
amendments were essential to allowing you to effectively as a 
Division take action against a broad range of violence based on 
bigotry. There are other Federal civil rights provisions that 
do not list or include either gender identity or sexual 
orientation as the basis for a civil rights violation, and I 
know you have been relying on case law for a definition of sex 
discrimination or Title IX or Title IV, I think, that include 
gender nonconformity. Can you describe other areas of Federal 
law that prohibit discrimination on the basis of, say, religion 
or race, as you were just talking about in terms of profiling, 
but that does not prohibit discrimination on the basis of 
orientation or identity and where you might urge that we 
consider some amendments or future action?
    Mr. Perez. Well, the first hearing I had after confirmation 
in this committee, Senator, was on the Employment Non-
Discrimination Act. I was working for Senator Kennedy in the 
mid-1990s. The hate crimes bill was introduced in 1996. It took 
13 years. And it was actually introduced a few years before 
that and is still pending action. So I certainly learned from 
Senator Kennedy that civil rights is about persistence, and I 
think that would be very helpful.
    You correctly identify that in our bullying work we apply 
longstanding principles of statutory construction relating to 
gender nonconformity as a form of sexual discrimination. It 
would obviously be much simpler--or you could expand the 
universe of cases involving people who have been victimized if 
you were to expand those definitions. So that is obviously 
another area, and Senator Franken has obviously been playing a 
vigilant leadership role in that area.
    So those are to me two examples that kind of jump off the 
page.
    Senator Coons. Well, it is my hope that we will take them 
up and move them forward, and I am grateful for Senator 
Franken's line of questioning about bullying, an area that has 
long been an unfortunate part of our national culture and 
experience and is now getting broad and needed attention.
    Last, in your opening statement you referenced efforts to 
restore morale and to ensure that the Department--the Division, 
excuse me, has taken steps to ensure hiring based on merit, and 
in some cases there have been challenges or criticisms raised 
about your handling of hiring and promotions within the 
Division. I just wanted to give you an opportunity to speak to 
that. There were, of course, some very troubling investigations 
by the Office of Professional Responsibility and the inspector 
general previously that found inappropriate politicized hiring 
practices. I just wanted to give you an opportunity to address 
whether you are confident that you have restored the Division 
to hiring based on merit and expertise or experience in civil 
rights or whether in your view there was still some room to go.
    Mr. Perez. I am quite confident that we have restored 
merit-based hiring. I had the privilege, Senator, of serving on 
the hiring committee in 1991, 1992, and 1993. I was hired by 
the Elder Bush Attorney General Thornburgh, and so I served on 
the hiring committee under Democratic and Republican 
administrations for the honors program. That is the entry-level 
program.
    Our instructions from John Dunne and Deval Patrick were 
identical: Hire the most qualified people. Merit was an article 
of faith in hiring career people, whether it was entry-level or 
experienced attorneys. And it was an article of faith for 
decades in the Division. And, regrettably, that article of 
faith was breached in horrific ways in the prior 
administration, and those are all documented in the OIG report. 
I talked to section chiefs who were told on a Thursday, ``You 
are going to have three new lawyers reporting to your office 
Monday.'' They had no involvement in their hiring. They got 
their resume on a Friday but had no involvement whatsoever. And 
that broke my heart because you should be judged by your merit, 
by your relevant experience, by your commitment to the even-
handed enforcement of civil rights laws. And that is what we 
did.
    When I was confirmed on October 6th and started on October 
8th, one of the first things we did was a written memo 
restoring the career-driven hiring processes. And one of the 
things we put in place was a provision that said that if the 
Assistant Attorney General is to overrule any recommendation 
for a hire, he or she must do so in writing. And I put that in 
place so that there would be transparency in the process and to 
really hold myself and future AAGs accountable. I have not 
overruled any such recommendation.
    I am so proud of the dedicated men and women, some of whom 
have come in the last 2 years, some of whom have been around 
for many years. The restoration and transformation, all of the 
cases I have described, we would not be there without those 
committed career professionals. The people that we serve every 
day and the people that I work with, they are the folks that 
get me out of bed in the morning every day because they are a 
fantastic group. Many of them could go out and quadruple their 
salaries tomorrow if they want because they are so, so 
talented. But this is not any old job. This is carrying forth 
the legacy of John Lewis and others. And one of my proudest 
moments has been to restore that career-driven hiring process 
that has produced the remarkable cadre of people and has 
enabled us to take the Division to higher and higher levels.
    Senator Coons. Thank you, Mr. Perez, for that response and 
for those actions. You know, some have suggested after a review 
of who has been hired that, in fact, it is still politicized, 
and I reject that. The idea that folks can be identified as 
being Democrat or Republican, conservative or liberal, based on 
their identity or their membership in certain civil rights 
advocacy groups strikes me as ignoring, as I said in my opening 
statement, the best tradition of bipartisanship in caring about 
and advocating for civil rights. And the idea that based on 
someone's identity, orientation, or participation in a group 
that advocates for the powerless or fights for civil rights 
that you can predict how they will work as career attorneys is 
offensive.
    Mr. Perez. I agree with you. We have hired people who have 
clerked for judges that have been nominated by every President 
since Jimmy Carter. We have hired people from small firms, 
large firms, plaintiffs' firms, defense firms. The person who 
heads our Employment Section, you have a keen interest in that. 
We just hired her recently. She was a defense lawyer. She 
defended employment cases. She was in the military before that. 
I have no idea who she voted for for President, and I do not 
care. I want her. She is the best qualified person, and she is 
phenomenal, and that is what it is about. And I think the New 
York Times headline kind of summed it up best, May 31st of this 
year: ``In shift, Justice Department is hiring lawyers with 
civil rights backgrounds.'' I plead guilty to that. I think 
relevant experience is indeed very, very helpful.
    My brother, the surgeon, hires surgeons in his surgical 
practice, and I think it is important to hire people who have 
that relevant experience, and that is really a linchpin of our 
success.
    Senator Coons. Well, thank you, Mr. Perez, for your 
testimony here, for your evident passion and persistence and 
engagement in the hard work of pressing back against the head 
winds of intolerance, and making real the promise of our 
Constitution. And my thanks to everyone in the Civil Rights 
Division for their difficult work in these demanding times. And 
as well, I would like to thank my colleagues for their 
participation in questioning today.
    The record will remain open for a week for members who wish 
to add any additional materials to the committee account of 
these proceedings, and this hearing of the Senate Committee on 
the Judiciary stands adjourned.
    Mr. Perez. Thank you.
    [Whereupon, at 11:31 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follows.]
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