Update 3/22/11: Hans Bader writes further on the bullying issue at The Washington Examiner: Free speech is a casualty in Obama’s campaign against bullying
It looks like a few websites took umbrage to my DOJ piece on Friday. (here at Volokh.com, here at patterico.com, and here at pajamasmedia.com)
As I wrote in my previous post, the Justice Department plans on looking at bullying cases in local school districts that violate the 1964 Civil Rights Act. DOJ says it will, “enforce federal laws that protect students from discrimination and harassment at school because of their race, national origin, disability, religion, and sex, including harassment based on nonconformity with gender stereotypes.” Those who believe the DOJ is doing nothing wrong, because this law would also include white heterosexual males, are ignoring recent reports from former Justice Department employees who say the Civil Rights Division is not enforcing legislation in a race neutral manner.
First, the federal government should not be involved in prosecuting local school bullying issues to begin with. It is the school district’s responsibility and parents can and do take public schools to court for failing to protect their children. I made this clear in my original post. Apparently, some did not catch what I wrote in my Friday post:
Unfortunately, the Justice Department is politicizing its priorities yet again. One must wonder why the administration believes it should be micro managing local school districts’ bullying problems. When the Justice Department is more interested in making ideological statements through seemingly sugar coated campaigns, no one should feel protected.
Steven Hayward at National Review cites two liberal “stalwarts” at the U.S. Commission on Civil Rights in 1985 who believed “civil rights laws” were not meant to “give civil rights protections to all Americans.” In his article he writes:
The view that civil-rights laws should not be color blind was perhaps most explicitly asserted way back in 1985, when Mary Frances Berry and Blandina Ramirez, two longtime leftist stalwarts on the U.S. Commission on Civil Rights, issued an official statement in their roles as commissioners that said, “Civil rights laws were not passed to give civil rights protections to all Americans, as a majority of this Commission seems to believe. Instead, they were passed out of a recognition that some Americans already had protection because they belonged to a favored group; and others, including blacks, Hispanics, and women of all races, did not because they belonged to disfavored groups.”
In a piece published today by Hans Bader, Senior Attorney at the Competitive Enterprise Institute and former Department of Education Civil Rights attorney, he correctly points out that Washington is currently “inventing” an anti-bullying law today.
However, the administration is on a quest to make it a federal issue, and one must wonder if the Department of Justice will enforce the 1964 Civil Rights Act as race blind as they claim to enforce the Voting Rights Act.
Testimony from two former DOJ attorneys who blew the whistle on the Department about the handling and eventual dismissal of the New Black Panther Party voter intimidation case begs the question not so much if DOJ ever did prosecute what is specifically called a “hate crime” against a white heterosexual male, but if the Justice Department truly looks at civil rights legislation for all people in an equal manner.
According to 2009 hate crime statistics over at the Justice Department, the prosecutions of hate crimes against minorities and homosexuals indeed overwhelms the majority of cases, but the question remains as to how many cases against whites and heterosexuals were reported but were deemed as non-hate crimes.
Furthermore, Mr. Coates and Mr. Adams, both former career lawyers in the DOJ’s Civil Rights division, testified that civil rights laws pertaining to voter rights was enforced unfairly at DOJ. Mr. Adams wrote in a Washington Times op-ed piece:
The U.S. Commission on Civil Rights has opened an investigation into the dismissal and the DOJ’s skewed enforcement priorities. Attorneys who brought the case are under subpoena to testify, but the department ordered us to ignore the subpoena, lawlessly placing us in an unacceptable legal limbo.
The assistant attorney general for civil rights, Tom Perez, has testified repeatedly that the “facts and law” did not support this case. That claim is false. If the actions in Philadelphia do not constitute voter intimidation, it is hard to imagine what would, short of an actual outbreak of violence at the polls. Let’s all hope this administration has not invited that outcome through the corrupt dismissal.
Most corrupt of all, the lawyers who ordered the dismissal - Loretta King, the Obama-appointed acting head of the Civil Rights Division, and Steve Rosenbaum - did not even read the internal Justice Department memorandums supporting the case and investigation. Just as Attorney General Eric H. Holder Jr. admitted that he did not read the Arizona immigration law before he condemned it, Mr. Rosenbaum admitted that he had not bothered to read the most important department documents detailing the investigative facts and applicable law in the New Black Panther case. Christopher Coates, the former Voting Section chief, was so outraged at this dereliction of responsibility that he actually threw the memos at Mr. Rosenbaum in the meeting where they were discussing the dismissal of the case. The department subsequently removed all of Mr. Coates’ responsibilities and sent him to South Carolina.
Mr. Perez also inaccurately testified to the House Judiciary Committee that federal “Rule 11” required the dismissal of the lawsuit. Lawyers know that Rule 11 is an ethical obligation to bring only meritorious claims, and such a charge by Mr. Perez effectively challenges the ethics and professionalism of the five attorneys who commenced the case. Yet the attorneys who brought the case were voting rights experts and would never pursue a frivolous matter. Their experience in election law far surpassed the experience of the officials who ordered the dismissal.
Mr. Adams continues:
Most disturbing, the dismissal is part of a creeping lawlessness infusing our government institutions. Citizens would be shocked to learn about the open and pervasive hostility within the Justice Department to bringing civil rights cases against nonwhite defendants on behalf of white victims. Equal enforcement of justice is not a priority of this administration. Open contempt is voiced for these types of cases.
Some of my co-workers argued that the law should not be used against black wrongdoers because of the long history of slavery and segregation. Less charitable individuals called it “payback time.” Incredibly, after the case was dismissed, instructions were given that no more cases against racial minorities like the Black Panther case would be brought by the Voting Section.
Refusing to enforce the law equally means some citizens are protected by the law while others are left to be victimized, depending on their race. Core American principles of equality before the law and freedom from racial discrimination are at risk. Hopefully, equal enforcement of the law is still a point of bipartisan, if not universal, agreement. However, after my experience with the New Black Panther dismissal and the attitudes held by officials in the Civil Rights Division, I am beginning to fear the era of agreement over these core American principles has passed.
Mr.Bader agrees that the current Justice Department has lacked fairness when interpreting civil rights law. In 2009, Mr. Bader wrote at openmarket.org:
A federal appeals court recently upheld an injunction barring a county official from continuing to prevent people from voting based on their race. The unanimous ruling in United States v. Brown (5th Cir. 2009) was a victory for the Justice Department, which brought the case back during the Bush Administration.
But Eric Holder, Obama’s new attorney general, is ashamed of the decision, and his Justice Department is keeping mum about it. The Justice Department refused even to issue a press release announcing the decision, even though it is customary to issue press releases after all Justice Department wins.
Why the deafening silence? Because the victims of the blatant and massive voting discrimination in Noxubee County, Mississippi, were whites prevented from casting ballots in Democratic primaries by the black political boss who ran the county. (A few blacks also had their voting rights violated).
Holder’s attitude is so small-minded and parochial that it is an embarrassment to the Justice Department.
It has been more than 30 years since a unanimous Supreme Court ruled in McDonald v. Santa Fe Trail Transportation Company (1976) that all races — including whites –are covered by the civil-rights laws. That ruling, which allowed white employees to challenge their race-based firing, was authored by the Supreme Court’s first black justice, Thurgood Marshall, who had earlier successfully argued the landmark case of Brown v. Board of Education, which struck down school segregation in 1954.
But apparently, the principles of the liberal icon Thurgood Marshall are just too “right-wing” for this left-wing administration. (And for many left-wing “career” Justice Department employees in the Voting Rights Section and Civil Rights Division, who refused to work on the suit against voting discrimination in Noxubee County because the victims were white. Only because of the persistence of Bush appointees like Hans Von Spakovsky did this case ever see the light of day).
Holder is simply blind to reality. He can’t accept the reality of even blatant discrimination against white people. Meanwhile, he also refuses to accept the possibility of innocence when white people are accused of hate crimes, citing examples of white people being acquitted in state court as a justification for passing a broad new federal hate-crimes law, which would allow people found not guilty in state court to be retried in federal court.
Ironically, Holder claims that Americans are a “nation of cowards” on matters of race.
The Washington Post’s Jennifer Rubin wrote in Commentary Magazine in September of 2010:
Coates’ bombshell testimony before the U.S. Commission on Civil Rights focused on the Philadelphia black-panther case. Members of the New Black Panther Party, one of whom was an Obama campaign poll watcher and local democratic official, used a nightstick and racial epithets to intimidate voters in a Philadelphia precinct. But the Obama Administration killed a successful lawsuit against these criminals, dismissing it after career Justice Department lawyers had already obtained victory in the case, as a formerJustice Department lawyer, the Philadelphia Bulletin, and a newspaper editorial note. (The New Black Panther Party, which attacks what it refers to as “bloodsucking Jews,” is recognized as a racist, antisemitic hate group even by liberal civil-rights groups like the Southern Poverty Law Center. Its voter intimidation was captured on videotape by a college student).
“Career lawyers pursued the case for months, including obtaining an affidavit from a prominent 1960s civil rights activist who witnessed the confrontation and described it as ‘the most blatant form of voter intimidation’ that he had seen, even during the voting rights crisis in Mississippi a half-century ago.” But Obama’s political appointees at the Justice Department overruled them, dropping the case after victory was already assured because “the court had already entered a default judgment against the” Black Panthers. Thanks to that outrageous decision, the only result of the case was a meaningless injunction telling one of the three defendants not to commit such crimes again (and telling him not to commit such crimes only until 2012, and not barring him from committing such crimes in his home city, but rather barring such crimes only in Philadelphia).
If the federal government will be prosecuting bullying cases under civil rights laws going forward, how can all American people be confident that the cases will be considered fairly, given the history of both the Justice Department in recent years and the point of view about the intention of civil rights laws from the U.S. Commission on Civil Rights? Believing everyone should get a fair shot under the law is nice to think and hope for, but it is not the reality at the moment.