[Senate Hearing 111-1102]
[From the U.S. Government Publishing Office]
S. Hrg. 111-1102
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 20, 2010
__________
Serial No. J-111-85
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matthew S. Miner, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 1
prepared statement........................................... 32
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 35
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 2
WITNESSES
Perez, Thomas E., Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice........................... 4
QUESTIONS AND ANSWERS
Responses of Thomas E. Perez to questions submitted by Senator
Durbin......................................................... 26
SUBMISSIONS FOR THE RECORD
Perez, Thomas E., Assistant Attorney General, Civil Rights
Division, U.S. Department of Justice, statement................ 36
OVERSIGHT OF THE U.S. DEPARTMENT OF JUSTICE, CIVIL RIGHTS DIVISION
----------
TUESDAY, APRIL 20, 2010
U.S. Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senators Cardin, Franken, and Sessions.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. The Judiciary Committee will come to order.
Today's hearing will be an oversight hearing for the Civil
Rights Division of the Department of Justice. I want to thank
Chairman Leahy for giving me the opportunity to chair today's
hearing. It is always a pleasure to have my fellow Marylander
with us, Tom Perez, who heads up the Civil Rights Division.
Before we get started, I just want to acknowledge--this
hearing deals with the Civil Rights Division. It is, I think,
appropriate to acknowledge the great loss of one of our great
civil rights leaders, Dorothy Height, who passed away. She was
the long-time Chairwoman of the National Council of Negro
Women. She was a strong fighter for equal justice based on
gender and race, and her leadership was critically important
during the civil rights movement with her insistence for racial
justice and gender equality.
The saying that I think I will always remember about
Dorothy Height was, ``If times aren't ripe, you have to ripen
the times.'' And I think that her legacy will stick with us as
we meet the current challenges for equality in America.
For more than 50 years, the Civil Rights Division has been
charged with protecting all Americans against discrimination
throughout our society. The Division is our Nation's moral
compass. As Senator Ted Kennedy said, civil rights is ``the
unfinished business'' of the Nation, and there is much work to
be done.
Whether it is in discrimination in employment, education,
housing, voting, personal liberties, or hate crimes, the Civil
Rights Division must take action and not stand on the sidelines
against those who violate our laws.
The Civil Rights Division has a proud tradition of fighting
to enforce anti-discrimination laws in the areas of voting
rights, civil rights, housing, elections, employment, and hate
crimes. However, during the last administration, the Division
had an alarming lack of civil rights enforcement and a
multitude of politicization, so much so that their own Office
of Professional Responsibility and the Office of Inspector
General began independent investigations of the political
appointees at the Department of Justice.
Year after year, more evidence of corruption and lack of
enforcement came to the surface. Between 2001 and 2006, the
Voting Section failed to file any cases on behalf of African-
American voters. During the same time period, there was one
case, just one case, filed for minority vote dilution. In 2008,
in the height of the economic downturn and housing collapse,
the Division played no role in holding lenders accountable for
discrimination. Disability lawsuits declined almost 50 percent
under the last administration. Only ten hate crimes were
prosecuted, the lowest number of hate crime cases brought in
more than a decade. And, by the way, there is evidence that
there was a rise in hate crime activity during that same
period.
There is a lot to be done in the Civil Rights Division to
restore its role in protecting civil rights. When President
Obama nominated Tom Perez to be Assistant Attorney General for
Civil Rights, I was confident that he would restore the morale
in the Division because he came from the Division. Tom Perez
served for 10 years beginning as a trial attorney in the
Criminal Section. Through the years, he moved up the ladder,
first as trial attorney and eventually as Deputy Assistant
Attorney General for Civil Rights.
So he knew the importance of setting aside political and
ideological affiliations when hiring new attorneys. Tom Perez
knew from firsthand experience the need to ensure protection
and legal recourse for those who have been discriminated
against. For all these reasons, as well as leadership from
Attorney General Holder and President Obama, I was confident
that in Tom Perez's hands the Division would return to its
roots of providing a voice for the voiceless and help to our
most vulnerable citizens because he knew what civil rights
attorneys should do.
The administration has taken action, and I look forward to
hearing about what the Civil Rights Division is doing under
your new leadership. Specifically, what types and how many
cases have been initiated, filed, and brought within the
Housing and Civil Enforcement Sections, the Fair Housing
Section, the Criminal Section, the Voting Section, the
Employment Section, and the Disability Section. That is the
purpose for today's hearing. We look forward to a dialog with
the Division chief and carrying out our responsibility to
oversight the Civil Rights Division.
With that, let me turn to Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Senator Cardin, and thank you
for recognizing Dorothy Height. I got to know her on a number
of occasions, and what a delightful, wonderful lady she was and
what a history she has in advocating for civil rights in
America.
This Division is important. Properly exercised, it provides
tremendous benefit to American citizens, and I think that the
Chairman is right to recognize that politics is inappropriate
in the Department and politics can be evident from both sides
of the aisle, certainly, and we need to be concerned.
One of the purposes, I do believe, of this hearing is to
make sure that the Civil Rights Division is exercising its
authority to shield and protect individuals from
discrimination, but not as a sword to assert inappropriate
claims that have the effect of promoting political agendas. So
I cannot--you know, civil rights principles need to be
professionally analyzed, and with regard to the housing
collapse, there is strong evidence to indicate that pressure to
make loans to individuals in ways that demonstrated clearly
that there was no housing prejudice could well have resulted in
an institution making bad loans that they really should not
have made, and threats and pressures can cause some of that. So
I think that was a part of the housing collapse.
On election day in November 2008, members of the New Black
Panther Party intimidated voters at a precinct in Philadelphia,
with one member wielding a nightstick. The activity was
described by prominent civil rights activists as ``the most
blatant form of voter intimidation'' that he had seen even
during the voting rights crisis in Mississippi where he had
worked a half-century before. Despite this characterization and
direct evidence of guilt that appeared on behalf of the New
Black Panther Party members, the Department of Justice decided
not to fully pursue every avenue to ensure that guilty parties
did not disenfranchise other voters in the future. In fact, one
of the intimidators recently worked at another voting precinct
recently.
So the United States Commission on Civil Rights--the U.S.
Commission on Civil Rights has many of the same goals as the
Civil Rights Division--are concerned about this matter, and a
majority of the Commissioners are not satisfied that the
Department of Justice has fully pursued every avenue of behalf
of the voters to make sure that these actions do not strike
again in Philadelphia or elsewhere.
But instead of coordinating with the Commission, the
Justice Department has put up a steel barrier and attempted to
thwart every effort the Commission has raised about this case.
This does not bode well for an administration that has promised
to be open and transparent, it seems to me. So I am concerned
that this new culture might be producing some harmful results.
For the last several months, my office and I am sure others
have gotten a lot of telephone calls and messages about the
abuses of ACORN. This is an organization that Congress voted to
de-fund because of voting practices that have proven to be
corrupt, yet it is reported that in March of 2009, this
administration discontinued a criminal investigation into two
voter fraud complaints. In 2008, at least two individuals filed
complaints against ACORN and produced documents demonstrating
that ACORN representatives were registering underage
individuals and individuals in the country illegally, not
eligible to vote. The FBI and the Department of Justice opened
investigations for fraudulent voter registration card
submissions. This administration apparently has let ACORN off
the hook, saying that no laws were violated even though it was
stated by the Department ``questionable hiring and training
practices'' occurred. Does that mean that they made errors and
moved forward with activities that were illegal? And shouldn't
more be done about it than that?
In Kinston, North Carolina, the voters there decided they
wanted to do away with party affiliations in local elections--
that is, city elections--where many have that. Kinston is a
majority African-American community. According to an article in
the Washington Times and other articles, this administration
overruled the voters in Kinston because partisan elections, you
apparently concluded, were needed so that African-American
voters could elect their ``candidates of choice.''
Well, I agree with the assessment of Abigail Thernstrom, a
member of the United States Commission on Civil Rights, in
regards to this case. She said the following: ``The Voting
Rights Act is supposed to protect against situations when black
voters are locked out because of racism. There is no
entitlement to elect a candidate they prefer on the assumption
that all black voters prefer Democratic candidates.''
So I know that we have heard a lot of rhetoric about the
Division being back open for business and the voting booth once
again being protected, but I am concerned about some of these
actions and whether or not the administration has any plans to
enforce Section 8 of the motor-voter bill of the Voting Rights
Act, which required dead and duplicate voters to be removed
from the rolls.
I am concerned about some of the disparate impact cases,
especially in light of the Supreme Court's ruling in Ricci,
which we had so much discussion about during the Sotomayor
confirmations.
So, Mr. Chairman, I would note that after this financial
crisis, lawsuit--the administration is planning, I understand,
to file disparate impact lawsuits against financial
institutions because of practices that do not appear to be
discriminatory, but might have disproportionate results. The
New York Times reported that the DOJ ``is beginning a major
campaign against banks and mortgage brokers suspected of
discriminating against minority applicants in lending.'' Some
critics have contended that the Government rules punishing
banks--pushing banks to lend to minority and low-income
borrowers contributed to the financial meltdown. The campaign
could rekindle that debate. So we will need to understand with
clarity just how you intend to approach that idea because it is
one thing to make sure that people are not discriminated
against. It is another to pressure banks to make loans that are
not sound. That is not good for the borrowers, and it is not
good for the country.
Thank you, Mr. Chairman.
Senator Cardin. Thank you, Senator Sessions.
We will now hear from the Assistant Attorney General, the
head of the Civil Rights Division, Tom Perez.
STATEMENT OF HON. THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL,
CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Perez. Thank you, Mr. Chairman. It is an honor to be
here, as always, in front of my home Senator and a champion of
civil rights not only in Maryland but across America. So it is
always great to be here in front of someone who,
parenthetically, has one of the remarkable wives in America as
well. Please give my regards to Myrna.
Senator Cardin. I am glad you put that in the record.
Mr. Perez. Yes, absolutely. And, Senator Sessions, I have
always had great respect for you and appreciate the respect you
accorded me dating back to 1989, when I was in Mobile, Alabama,
prosecuting Danny Miller in a case that you supported 100
percent of the way. So it is always a pleasure to be here in
front of you as well. And I appreciate both of your
acknowledging Dr. Height. It has been a sad week or so for the
civil rights movement in the aftermath of Benjamin Hooks and
now Dr. Height, who, when the Equal Pay Act--today is Equal Pay
Day, and when the Equal Pay Act was signed in 1963 by President
Kennedy, who was standing next to him? Dorothy Height, a real
civil rights icon. So thank you for the opportunity to be here
today to testify.
Senator Sessions. Thank you for being in Birmingham.
Mr. Perez. I had three wonderful days in Birmingham, as I
told Senator Sessions, at the Civil Rights Institute, at the
Sixteenth Street Church meeting with civil rights leaders. I
met an old colleague of mine that I had prosecuted a case with
in Alabama in 1991 when I was a career civil servant under Dick
Thornburgh, and it was great to reacquaint. And I had one of
the best meals I have ever had, Senator, in Birmingham that
evening. Good vittles, as we say in the business.
Senator Sessions. And I would just say how proud I am of
Birmingham for its principled and sincere effort to confront
its past where racial discrimination was far too prevalent, and
much of it was very, very destructive and damaging to that
whole city. But it has confronted its past in an honest and
forthright way. I think other cities can learn from what
Birmingham has done.
Mr. Perez. I look forward to bringing my children there,
and I look forward to bringing my children to the museum in
Greensboro that I had the privilege of participating in the
grand opening of, so two remarkable tributes to our Nation's
history.
It really is a pleasure to be here. The Attorney General
has called our Division the ``Crown Jewel of the Department of
Justice.'' The President singled out the Civil Rights Division
in his State of the Union. You have been very supportive of our
budget requests, and we are very, very grateful because that
has enabled us to step up our enforcement efforts in a number
of ways.
My first priority upon confirmation was to take immediate
steps to restore trust between career staff and political
leadership, to restore public confidence, and to de-politicize
decisionmaking. We worked quickly to return principled
responsibility for hiring experienced career attorneys to the
career securities themselves. Our new written hiring policies
for career personnel are now on our website. Our honors hiring
process, which had been taken away from career people in the
prior administration, is now back in the hands of career
people, and we hired a bumper crop of 16 new raw graduates who
will be starting this summer and this fall.
We have also made it a lot easier for lawyers in the
Division to do their jobs by eliminating a wide range of
needless bureaucratic obstacles that were standing in the way
of doing their job. We have restored communication between
career and non-career staff, and as a former--I will always
consider myself a career attorney because I spent 10 of the
best years of my life in that Division. So, for instance,
before we make decisions on Section 5 cases, I now want to hear
from all the career attorneys and the analysts what their
opinions were. The policy was changed in the prior
administration so that they were not allowed to offer that
viewpoint. We may not always agree on the final outcome, but
every voice will indeed be heard.
We are encouraging our lawyers, rather than forbidding
them, to conduct aggressive outreach to key stakeholders in
communities across this country. We have stepped up enforcement
across the board, and we are focusing enforcement not simply on
quantity but on quality of cases filed and maximizing the
number of people that we can help. And I have given you a
detailed analysis of some of the cases, and I wanted to give
you a few highlights.
In the wake of the national housing crisis, the enforcement
of fair housing and fair lending protections are among our
most--our top priorities. Working with the President's
Financial Fraud Enforcement Task Force, we have established a
dedicated Fair Lending Unit and hired a Special Counsel for
Fair Lending. We currently have 39 open matters in the Fair
Lending Unit. Last month, we announced a landmark settlement
with two subsidiaries of AIG to resolve allegations of
discrimination against African-American borrowers by brokers
with whom these subsidiaries had contracted. The borrowers were
being subjected--the African-American borrowers were being
subjected to excessive fees, and we have sent a clear signal in
this settlement to lenders that they must take steps to ensure
that brokers with whom they partner are not engaged in
discrimination. Twenty-five hundred African-American borrowers
who were subjected to unnecessarily excessive fees will receive
relief in the context of this settlement.
In the fair housing case in Southern California, we reached
the largest settlement ever in a case involving rental
discrimination.
Meanwhile, as President Obama said in the State of the
Union, we are once again working to combat all forms of
employment discrimination. We have reinvigorated our pattern
and practice enforcement program, and as a result, the
Employment Litigation Section has more than a dozen active
pattern-and-practice investigations.
In a significant case against the New York Fire Department
for hiring discrimination, the trial judge granted summary
judgment to the United States, and this was after the Ricci
decision, and he explicitly discussed how the Ricci decision
did not apply to the particular facts of this case. And, in
fact, he found so much evidence of difficulty and
discrimination historically in the fire department that he
ruled that the evidence constituted evidence of intentional
discrimination, not simply disparate impact.
We have also ramped up our enforcement of the Uniformed
Services Employment and Reemployment Rights Act, or USERRA.
Since the new administration began, we have filed 19 USERRA
lawsuits compared with 16 that were filed during the previous 3
years combined.
In addition, just last week, we closed an investigation of
the State of Oregon regarding a law dating back to 1923 that
banned public school teachers from wearing religious clothing,
and we worked heavily on that case because we felt that it was
discriminatory. And the Governor signed a bill repealing the
law, and we were able to settle the case.
In the education context, you need look no further than the
front page of today's Washington Post to see the work that we
are doing in that section. And, regrettably, and very
troublingly, we continue to see a need to combat the
resegregation of schools to ensure that all students have equal
access to quality education. The Walthall, Mississippi, school
district case is a case that is an outgrowth of a 1970 court
desegregation order. The district in recent years, through a
transfer policy, created what many local members of the
community called a ``white'' school and a ``black'' school. And
what happened was through this transfer policy, the segregation
of the schools was furthered again. And to make matters worse,
in the predominantly African-American school, classrooms were
then being segregated by race so that the remaining non-
minority students in the ``black'' school were being segregated
by classroom. This was wrong. This was illegal. We attempted to
settle the case with the school district. They rejected the
settlement, and we were forced to go to court, and the court
ordered the relief that is noted in today's Washington Post.
I wish I could say that was the only case of this nature.
In Monroe County, Louisiana, we had a case involving a school
district, 87 percent African American. They have two high
schools. One is 100 percent African American; one is 57 percent
African American, 43 percent white. In the school district that
has 100 percent African-American students, there were no AP
classes offered and five gifted and talented or honors courses.
In the other school that was 43 percent white, there were 70
such courses offered. This is not fair, this is not legal, and
we reached a settlement to correct this. Regrettably, we
continue to see that our education docket is ripe and
continuing our work.
In our criminal enforcement, the prosecution of hate crimes
remains a top priority, and we are working to implement the
Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act
of 2009, training lawyers, law enforcement officers, State and
local across the country. In the meantime, we have seen an
increase in the number of hate crime cases that we have
brought. Late last year, we announced the indictment of five
individuals, including three police officers, on charges
related to the fatal racially motivated beating of a Latino
immigrant in Shenandoah, Pennsylvania, and the subsequent
cover-up of the incident by three members of the police
department. A very, very troubling incident. I have great
respect for law enforcement officers and the work that they do,
but when they cross the line, they must be held accountable for
their actions.
In addition to Shenandoah, we have a number of cases
pending involving the New Orleans Police Department. In one
case involving police-involved fatal shootings following
Hurricane Katrina, four officers have pleaded guilty in the
investigation into this and the other incidence is ongoing. At
the most recent plea hearing, the district judge said the
following, after our attorney read the underlying facts into
the record supporting the plea agreement:
``I do not think you can listen to that account without
being sickened by the raw brutality of the shooting and the
craven lawlessness of the cover-up. We will continue our work
in New
Orleans.''
On the voting front, we are actively preparing for the
upcoming round of redistricting. The Voting Section has
received the largest complement of new resources so that we
will be prepared for redistricting. We are continuing the
critical work of protecting the rights of language minorities
to access the ballot while stepping up our enforcement of
Section 2 of the Voting Rights Act and the National Voter
Registration Act. We are preparing guidance on Section 7 and
Section 8 of motor-voter so that States and others understand
their obligations in that area. The section has an initiative
underway to ensure compliance with critical provisions of
motor-voter, requiring that eligible voters be able to register
at State social service agencies. Already under this
initiative, we have begun inquiries of six States, and we will
expand those inquiries elsewhere. In March, we won a favorable
ruling, a summary judgment motion, in a case against the State
of New York to ensure voter registration opportunities required
by motor-voter are available at offices serving college
students with disabilities and State-funded institutions of
higher education.
We also have a robust disability rights practice. We are
feverishly working on the ADA regulation as we prepare for the
20th anniversary of the ADA. We have dramatically stepped up
efforts to prevent the unnecessary institutionalization of
people with disabilities, including significant cases in
Georgia, New York, Arkansas, and elsewhere, and to ensure that
the conditions in the facilities are safe.
My memory banks are seared with the nightmare of a 14-year-
old girl with mental health issues who was in an institution in
Georgia. She did not need to be there, but she was there. She
had treatment for her condition, and one of the side effects
from that treatment was constipation. She was in so much pain,
but the condition--the people did not treat her. She literally
exploded--or I should say imploded, and died in that
institution. These are real people suffering real problems,
some of the most vulnerable people in our community, and I
cannot sleep at night when I think about things like that that
are happening in institutions across this country. And we will
continue to work on those efforts to make sure that
institutions are safe and that only people who should be there
are there.
In short, the Civil Rights Division is again open for
business, and we are indeed using all of the tools in our law
enforcement arsenal, including litigation, education, outreach,
and numerous forms of technical assistance. We have forged new
partnerships with State and local law enforcement. I met with
local law enforcement in Birmingham when I was out there to
discuss issues of mutual interest, including our hate crimes
enforcement, human trafficking, and other issues of church
arsons, et cetera. And we have numerous partnerships with our
Federal partners. We have made a lot of progress, but as you
correctly point out, Senator, as Senator Kennedy said, civil
rights remains ``the unfinished business'' of America. I wish I
could be that Maytag repairman waiting for the phone to ring,
but, regrettably, we continue to be the Toyota mechanic, and I
am here to answer any questions you may have, and I look
forward to your questioning.
[The prepared statement of Mr. Perez appears as a
submission for the record.]
Senator Cardin. Well, thank you for energy and your passion
on these issues. I share your concern about what we can do to
help, and it is frustrating that we cannot move faster to
provide the opportunities for all the people in this country.
I also very much acknowledge the great results in
recruitment. That is a clear sign that the right climate has
returned to the Civil Rights Division, and we have heard and
you have told us about the regular meetings between the career
attorneys and the political appointments so that you have a
seamless system taking the best advice from the career
attorneys. And we very much appreciate that, and we applaud
your efforts in that regard.
I also appreciate that you started with fair lending
because I think in these economic times fair lending is an area
that we really need to put a spotlight on.
I agree with Senator Sessions that we do not want to put a
climate out there that causes institutions to do things that
are irresponsible. That is not our intention, and I agree with
Senator Sessions. But I think we can learn from history. You go
back to before World War II, where we had housing programs in
this country that were administered by FHA, and the color
coding was adopted in redlining which had at least tried to be
justified based upon economic realities, when what it did was
hold down a class of people. And the net result was that wealth
accumulation, which many times was based upon the ability to
own a home and get the equity of that home, was denied to the
minority population in our country. Statistics showed that by
1980 when the GI bill's mortgages matured, the net worth of
white families was close to $40,000, whereas compared to black
households it was a little over $3,000.
That has its own rippling effect as we look at trying to
develop businesses. The first source of capital that you look
at is the wealth that has been accumulated within your own
community, and if you do not have wealth accumulations, it
holds down business growth, it holds down our whole economy.
And the same type of issues could be mentioned in a lot of
other areas.
Predatory lending occurred in this recent crisis. There
were black families in Maryland that were targeted in minority
communities that could have gotten traditional loans, but
instead were steered by brokers into a more expensive type of
financing and ultimately found themselves in a situation that
they could not get out of. So I just really want to applaud you
for focusing on the lending issue, setting up a separate unit,
because the lending discrimination in this country is having a
profound effect not just on the mortgage for homes, but also as
it relates to businesses and education, et cetera.
So I just really want to encourage you to continue, and I
want to give you a little bit more time just to talk about what
you are doing about the predatory lending practices to make
sure that all communities in our country have equal access to
credit.
Mr. Perez. Sure. Thank you for that question, Senator, and
thank you for your longstanding support of these efforts to
curb predatory lending.
As you know, I had the good privilege of serving as
Governor O'Malley's point person on foreclosure prevention, and
I met with many families who were days and in some cases hours
away from losing their home. I learned a lot about this issue
in the course of traveling across our great State of Maryland,
and first and foremost, I think what I learned most is that
consumer protection and preserving a sound lending climate go
hand in hand. We sometimes live in an unnecessarily binary
universe where we say you either do one or the other. We can
and must do both. And when we passed the series of reforms in
Maryland that were very aggressive, we passed them with the
absolute support of the mortgage bankers, the mortgage brokers.
They actually gave me an award for the work that we did. And
they understood that when you do not have sound consumer
protections, then that can undermine the system, writ large.
And so the work that we are doing really builds off that
because the data is very clear. The foreclosure crisis has
touched virtually every community in this country, but it
disproportionately touches communities of color, in particular
African-Americans and Latinos. Thirty percent of the
foreclosure activity in the State of Maryland was in Prince
George's County, a predominantly African-American suburb in the
State of Maryland.
And so we have seen that, and we have seen in the AIG case
that the brokers understood that they could take advantage of
African-American borrowers because--cross burning are the most
overt form of discrimination and bigotry. Lending
discrimination is some of the most subtle. It is what I call
discrimination with a smile. Many people are just happy to be
in a home. They do not realize that that 8-percent interest
rate they were just quoted was far worse than the terms that
they were otherwise eligible. And so oftentimes we see that
discrimination with a smile in the work that we do, whether it
is the AIG case, whether it is the other work that we are
doing.
And so I truly believe that the work that we are doing on
the President's Financial Fraud Task Force, the partnerships we
have underway--I will be with the Attorney General of Illinois
tomorrow. I recently met with the Attorney General of Tennessee
to talk about potential joint efforts. Those sorts of
partnerships are critical because we have seen, regrettably,
that this issue has a very, very strong civil rights dimension
and calls for us to use the tools in our arsenal, notably the
Fair Housing Act and the Equal Credit Opportunity Act, and that
is precisely what we are doing.
Senator Cardin. You talk about partnership with the States.
I want to focus on the implementation of the Matthew Shepard
and James Byrd, Jr., Hate Crimes Prevention Act. You noted in
your opening comments about cases that have been filed by your
Division. That bill was passed for two purposes: one, to make
it clear that the Federal Government would be available to deal
with those types of activities, but also to enhance the
partnership between the Federal Government and the local
governments.
Could you just share with us what your Division is doing
with the local prosecutors to enhance their capacity to deal
with this issue?
Mr. Perez. That is a great question. I was in Birmingham,
as I said, the week before last with a number of key
stakeholders, and we had a very robust 2-hour session with
local law enforcement, because I do not measure success of the
Matthew Shepard Act by the number of Federal prosecutions that
are brought. I measure success by the number of cases that we
can bring. I have always asked the question in every case I
have done, What is in the best interest of the case? And many
of these cases--church arsons, for instance--it was in the best
interest of the case, once you solved it, to give it to the
local authorities because they could prosecute it perhaps
faster. Some hate crimes cases are easier to give to the local
authorities.
Laramie, Wyoming, almost went bankrupt in the prosecution
of Matthew Shepard because it was a small community. The
average DA's office in the United States I believe has
something like nine employees. They are small. We are now a
resource for local law enforcement, and that is why I am
traveling the country to deliver that message and to work with
colleagues, Federal law enforcement, local law enforcement,
nonprofit partners, to train. Because people ask me, what are
your first impressions on the job, Mr. Chairman, and one of my
first impressions is the more things change, the more they stay
the same.
Today in South Carolina, there is going to be a sentencing
in a hate crimes case, father and son team. An African-American
goes into a store to use the facilities. They are appalled by
the fact that an African-American is going into the store. They
assault him. They pull out a chain saw from their car, and they
ignite the chain saw and attack him with a chain saw. Yes, a
chain saw, I kid you not. Two white people come to the defense
of this person. They attack that person as well. And we were
able to secure a plea the day after the jury was empaneled.
And so we see this cancer of the soul, which I thought was
behind us, continues to rear its ugly head, and, frankly, as
you correctly pointed out, Senator, in your opening statement,
hate crimes are on the rise. And that is why this bill is a
critical tool in our law enforcement arsenal, and we look
forward to empowering both Federal and local law enforcement to
do the work that needs to be done to combat hate crimes.
Senator Cardin. Senator Sessions mentioned during his
opening statement concerns about intimidation at the polling
places, and I agree with him. Any type of intimidation should
be dealt with.
A couple years ago, some of my Republican colleagues raised
the issue of access to voting by our military, and, quite
frankly, I agreed with their concerns, and we took action
jointly to make sure that our military gets adequate time in
order to be able to participate in local elections.
I mention that specifically because there could be a
problem with those States that have late primaries as to how we
can comply with those time limits. And we need to figure out
how we can make sure that our military are fully empowered, all
voters are fully empowered during the 2010 elections.
I want to, of course, remind the Committee about the type
of innovative deception that seems to come about every
election, how we will see mysterious letters appear in minority
communities telling them that the election day will be
Wednesday rather than Tuesday or that if you have outstanding
parking tickets, you better not show up at the polling place
because you will be arrested and things like that; aimed at a
segment of voters who are likely to be intimidated by that type
of material.
I think we all condemn that, and we have taken steps to try
to prevent that at the State level. But to me, this should be a
national priority, to make sure that it is clear that we have
the capacity of the Federal Government to support our States to
make it abundantly obvious that if people participate in these
types of activities, they will be held accountable and that it
should have no place in American elections.
What are you doing in preparation for the 2010 elections?
Mr. Perez. I completely agree with everything you have
said, and we are working hard to make sure that we implement
the MOVE Act, that we ensure that overseas military voters can
vote in the upcoming primary, so that is a front-burner item
simply because we have to get--we have primaries, as you have
said, coming up.
I share your concern about voter intimidation in any way,
shape, or form. I still have a copy of the literature from
Prince George's County in 2006 that I suspect you also have in
a file somewhere, and that was----
Senator Cardin. I keep it closer by than in a file.
[Laughter.]
Senator Cardin. A constant reminder.
Mr. Perez. Yes. So I have seen those things, and we will
continue to be very vigilant in the prosecution of all forms of
voter intimidation.
As you know, we share that responsibility with the Criminal
Division, and we coordinate very closely with the Criminal
Division. We have jurisdiction over intimidation that has a
civil rights dimension, and they have jurisdiction over
actually a broader array of statutes relating to intimidation.
But we communicate very well together, and we will continue to
ensure that that is a top priority.
Senator Cardin. My request is that if you believe you need
stronger tools, please let us know. As you know, when President
Obama was in the Senate, he authored a bill that I cosponsored
that dealt with this subject, and the Committee approved it. If
you believe that you do not have adequate or broad enough
powers, please let us know.
Mr. Perez. I certainly will.
Senator Cardin. Senator Sessions.
Mr. Perez. Thank you, Mr. Chairman.
Good morning, sir.
Senator Sessions. Mr. Perez, I like your enthusiasm, I like
your experience, and I like the idea that I think I hear you
say, that you worked closely with your prosecutors and are
involved in the cases yourself, and that, therefore, you are
responsible to answer and make decisions that set good policy
for the Department.
You know, I am a strong believer that many people are
discriminated against and are unfairly handled with regard to
big items like homes and end up paying a lot more interest, and
they may not have realized, as you said, just how significant
that is, how every month they may be paying another $50, $60,
$100 that they do not have, really, that could be avoided.
So I think these are good, and I have spent a lot of time
having meetings over my State with housing people to make sure
our African-American community particularly took advantage of
the housing opportunities the Federal Government had provided,
the HOPE bill and other things, and I believe strongly in that.
But I was--I guess I could be criticized for being unaware that
perhaps they were making loans to some people who could not
afford them or that the backgrounds were not being done
sufficiently to make good loans. It does not help a poor person
to encourage them to make a loan that they cannot reasonably be
expected to pay back.
So it is a difficult issue, but I certainly appreciate your
work against the redlining and things that were clearly
discriminatory, and some of those things still remain
discriminatory today.
You have been a critic of politicizing the Department, and
I think you should take care to make sure that you do not. It
was reported in the media that a political appointee in your
Division assembled an entire Voting Section for a brown-bag
lunch in November of 2009 and announced that the Obama
administration had ``no interest'' in enforcing Section 8 of
the National Voter Registration Act or the motor-voter law.
Section 8 vests the Attorney General with power to ensure that
States are complying with Section 8 and removing dead and
duplicate voters from the rolls. If you have an excessive
number of names on the rolls that are of people who are
deceased or who have moved away, it is much easier to slip in
and have someone vote in that person's name. It creates a risk.
The political appointee reportedly said Section 8 ``has
nothing to do with increasing turnout of minority voters,''
says ``so there is no interest in enforcing that law.'' Have
you heard that?
Mr. Perez. I have not, actually, Senator, and what is
interesting about that is we are actually right in the middle
of preparing guidance because we cannot simply--I am a firm
believer that the way to ensure full enforcement of our laws is
through some litigation activity but technical assistance and
other guidance. And so we are actually in the middle of
preparing guidance on Section 7 of motor- voter, Section 8,
Section 5, because we want to make sure that----
Senator Sessions. Well, I am talking about Section 8.
Mr. Perez. Right, and----
Senator Sessions. Section 8----
Mr. Perez. Absolutely.
Senator Sessions. Did this employee make such a statement
and somebody reported it in the media?
Mr. Perez. I am unaware of that, Senator. I am unaware of
that.
Senator Sessions. Would you check and see?
Mr. Perez. I certainly will, and I----
Senator Sessions. That is against your view, is that
correct?
Mr. Perez. I will share with you our Section 8 guidance
when it is released, and I anticipate it will be released in
the near future, because as I have said many times, our job is
to enforce the law, all of the laws, and we will indeed enforce
Section 7----
Senator Sessions. Well, let me ask you----
Mr. Perez [continuing].--And Section 8.
Senator Sessions [continuing].--A lot here. I just want to
ask a question.
Mr. Perez. Sure.
Senator Sessions. Do you think that it is inappropriate if
this individual--I believe it is supposed to be Julie
Fernandez--had said that the Obama administration ``had no
interest in enforcing Section 8? ''
Mr. Perez. I am quite confident, Senator, that given the
conversations I have had with Julie, because she is preparing
the guidance and helping to prepare the guidance, I am quite
confident that you are going to see an aggressive statement of
what States can do and what States should not do in the voter-
purging context of Section 8. So I think our actions will speak
for themselves.
Senator Sessions. Has your administration brought any
lawsuits to ensure that these rolls remove the dead and
duplicate voters?
Mr. Perez. The guidance that we are trying to bring right
now is intended to prevent problems from occurring, because we
have heard situations where there have been improper purging of
voter rolls so that people who can----
Senator Sessions. Oh, so you are concerned about improper
purging. I have seen that happen from the Department of Justice
quite a lot. Why would you--do you have any proof that these
people have actually removed people improperly or with----
Mr. Perez. No, sir. The way I have approached this is,
whether it is Section 4, Section 5, Section 7, Section 8, we
need to have transparent guidance for State authorities to make
sure that they know what the rules of engagement are. So we are
treating Section 8 enforcement exactly how we are treating
every other section, which is to make sure we have transparent
guidance, that we get feedback from States when we put the
guidance out so that they will understand what the rules of
engagement are. And, again, I will be glad to share with you
that guidance when it comes in--when it is released.
Senator Sessions. If you are finished----
Mr. Perez. Yes, sir.
Senator Sessions [continuing].--I would like to follow up
and just----
Mr. Perez. Sure.
Senator Sessions [continuing].--Remind you that this
Congress as part of the legislation insisted that rolls be
cleaned up. I know the Civil--you understand that?
Mr. Perez. Yes, sir, and we are committed to the
enforcement of that.
Senator Sessions. I am aware, having been familiar with the
Department of Justice for the last 20 years, that the
Department of Justice has had more emphasis on trying to block
efforts to remove from the roll dead and duplicate names, it
seems to me, than they have in enforcing this section. So my
question to you is: Will you take action to ensure that
communities who have large numbers of people on the rolls that
should not be there remove those from the rolls?
Mr. Perez. We will make sure it is done properly, yes, sir.
Senator Sessions. And you will enforce Section 8?
Mr. Perez. Yes, sir.
Senator Sessions. You have repeatedly given speeches
proclaiming the Civil Rights Division is back open for business
or that the voting booth is once again being protected. Yet in
the 15 months since the Inauguration, the Voting Rights
Section, according to information I have, has brought only four
cases in that time period and dismissed another--and that is
against the Black Panther Party--for voter intimidation, that
infamous case. Three of those four cases were initiated during
the Bush administration: in Texas, a Spanish language ballot
Section 203 enforcement; Lake Park, Florida, vote dilution;
Riverside, California, Spanish language ballots enforcement.
Now, I do not think it is fair to say the previous
administration shut down civil rights enforcement, and I reject
that. I believe that is an overstatement, and I believe it is
in danger of politicizing your office, frankly.
Now, what about the Uniformed and Overseas Citizens
Absentee Voting Act cases? The Civil Rights Division I guess
now will be implementing the new provisions of the recently
passed MOVE Act, which was intended to secure voting for over
25 percent of military overseas voters who were unable to cast
a ballot in 2008. Certainly, we should take every effort to
make sure that those who are serving us abroad have an
opportunity to vote and do not lose their vote because they
have been deployed.
So, first, does your Voting Section have any attorneys with
military experience and are their experiences being used in the
implementation of the MOVE Act? And I understand that the
Voting Section has only four attorneys that are participating
in monitoring this and in compliance with it. And as you noted,
I understand you will be hiring a lot of attorneys on
redistricting in the future, but do you have enough attorneys
in this section to enforce these laws?
Mr. Perez. Absolutely. I am very confident in our
complement of people working on the MOVE Act, working to
enforce that. We have just got a very good verdict--I think it
was in Virginia--in an UOCAVA case. We have aggressively
enforced that, and we will continue to do so. And I appreciate
the leadership of Senator Schumer and others in the passage of
the MOVE Act. As you know, that was a bipartisan bill, and we
will fully and aggressively enforce it, and I look forward to
doing so.
Senator Sessions. Well, an election is coming up in
November----
Mr. Perez. Absolutely.
Senator Sessions [continuing].--And we do not want to have
another election with 25 percent of our military----
Mr. Perez. I agree with you, Senator.
Senator Sessions [continuing].--Folks are not able to vote.
On this new Black Panther Party case dismissal, you told
the House Judiciary Committee when you testified that the
maximum penalty was sought in that case. But the question was:
Was it obtained? Could you compare the remedy sought in the
original complaint with the remedy actually obtained in the
injunction? Isn't it true that the complaint sought a permanent
injunction against all four defendants and the ultimate
injunction was only for a few years and against just one
defendant? What is your----
Mr. Perez. Sure.
Senator Sessions [continuing].--Analysis of that?
Mr. Perez. I would like to start out--you indicated in your
opening statement that we had erected a steel barrier, and I
simply want to point out for the record, Senator, that we have
provided over 4,000 pages of documents to the Civil Rights
Commission in response to their requests. In addition, I have
offered to come to the Commission, and I will, in fact, be
coming over there in a few weeks to testify on that. So with
all due respect, Senator, I would not call that a steel
barrier.
With respect to your question about----
Senator Sessions. What about the people who make the
decisions in the case----
Mr. Perez. Well, Senator, as----
Senator Sessions [continuing].--Who were involved in it and
had discussions with other members of the Department and
political appointees above them who did not agree with the
dismissal of the case in this fashion? Are you going to allow
them to testify?
Mr. Perez. Actually, the two career people who were in the
front office and made the decision, people with over 60 years
of experience, actually came to the Hill and briefed
Congressman Wolf at his request, and so they did come to the
Hill.
As you know in connection with your service as U.S.
Attorney, there is a longstanding Department position that was
applied in Republican and Democratic administrations that
front-line trial attorneys are not brought before committees
because we want to make sure that they have the ability to make
their decisions and not be looking over their shoulder
wondering whether they will be called to testify. So----
Senator Sessions. Well, it may be unusual--it may be
something I am not fully comfortable with, the powers we give
to quasi-independent agencies. But the Civil Rights Commission
has the right to issue subpoenas, and they have issued a
subpoena to the Department of Justice to have employees testify
about this case. To my knowledge, you have either not responded
or are not--or have not--or maybe opposed it. What is your
view----
Mr. Perez. We did respond, Senator, and, in fact, the 2(e)
regulations that have been in place I think since the mid-1950s
apply in this situation as well. And as part of our response,
again, we have offered and submitted over 4,000 pages of
documents.
I will note parenthetically that you are getting those as
well, and in the application of the 2(e) regulations, we have
directed--and the Civil Division handles all these requests of
this nature, and they inform people that the front-line trial
attorneys are not going to be produced because they are----
Senator Sessions. Are you asserting that--you are asserting
that you do not have to comply with subpoenas from the U.S.
Commission on Civil Rights?
Mr. Perez. We are applying the 2(e) regulations in a way--
--
Senator Sessions. What is the 2(e) regulation?
Mr. Perez. The 2(e) regulation pertains to a Supreme Court
case that involves--when front-line trial attorneys are
subpoenaed to talk about case-related decisions that they made,
there is a certain process that must be followed, and to the
extent that there are questions that a body--whether it is this
Committee or a Civil Rights Commission--is seeking to ask about
the deliberative process, there is a privilege that has been
asserted by Democratic and Republican administrations for
decades, and that is the privilege that is being asserted again
here. And that is why I have offered to come up, and they have
accepted that offer.
Senator Sessions. You had certain attorneys come and
provide information to the Congress, but not certain attorneys,
my understanding is, that were involved in the handling of this
case. Am I right about that?
Mr. Perez. The Acting Assistant Attorney General for Civil
Rights and the Acting Deputy Assistant Attorney General for
Civil Rights came up. The front-line trial attorneys did not,
as is the case in Republican and Democratic administrations for
decades. I know when I served in the Thornburgh Department of
Justice, that was the policy then, and it has been pretty
consistent in my experience.
Senator Sessions. Well, I think that is a good policy,
generally, but the question is: What about the United States
Commission on Civil Rights? They are set up to ensure that
civil rights are enforced, and they have been given subpoena
powers, and apparently they would like to talk to the people
who actually tried the case. And I understand your testimony to
be that the Department of Justice is resisting allowing those
people to respond to the U.S. Commission on Civil Rights.
Mr. Perez. The authority of the Civil Rights Commission, as
I understand it, does not exceed the authority of the U.S.
Senate. And so we have spent considerable time attempting to
work with the Commission. That is why we have provided the
4,000 pages of documents. That is why I have offered to come
up.
I have great respect for the institution of the Civil
Rights Commission, and that is one reason why I am more than
willing to come up and explain why we reached the decision that
we reached. But as you know, Senator, that is why we have
political leadership in place, to come up and explain those
things, and we are treating the Civil Rights Commission with
great respect. We applied the same 2(e) principles to them that
we would apply to any request that we would get from this
Commission.
Senator Sessions. But there still remain concerns about how
that case was handled, and I do not think they are going to be
resolved unless the people actually involved in it are allowed
to testify or to give evidence, and that is just the way it is
going to be, I suppose.
When we dealt with the hate crimes legislation, I think the
FBI statistics showed actually a slight decline in hate crime
cases. Have they gone up in recent months? Or what numbers are
you basing----
Mr. Perez. Well, if you look at the--hate crimes against
Latinos, for instance, have gone up I think 4 years in a row.
We now have seen a significant--we have a threats case that we
have indicted in New Jersey.
Senator Sessions. Where do you get the numbers----
Mr. Perez. The hate crime--the FBI data, and then also the
Southern Poverty Law Center has data targeting and tracking
hate crimes. And as you know, we all acknowledge that the
hate----
Senator Sessions. Does the FBI data show that there has
been an increase?
Mr. Perez. I know in the context of Latino----
Senator Sessions. Well, I am asking overall.
Mr. Perez. Let me--I will get the precise figures, and I
will----
Senator Sessions. My understanding of your testimony, Mr.
Perez, was that hate crimes are up. I think you should be
accurate if they are not up. One category could be up and needs
attention, but----
Mr. Perez. Here is what I will do, Senator. I will get you
all the data sources we have--the FBI, the Southern Poverty Law
Center, the Anti-Defamation League, all of the sources that
collect that data. I will also get you the data on the hate
crimes prosecutions that we have done, and what you will see in
the cases that have been brought is that there has been indeed
a significant rise in the number of cases.
When I was a deputy chief in the Criminal Section in 1996,
we handled somewhere in the vicinity of about 50 cases. A
decade later, there were about a dozen cases that were
prosecuted. So we----
Senator Sessions. Well, I believe----
Mr. Perez [continuing].--Will get you those.
Senator Sessions [continuing].--Both the police and the
Federal Government is doing a more aggressive job of
prosecuting and identifying these cases. I would hope and pray
that the amount of hate crimes is down and not up. My
understanding is that the FBI numbers do not show that. I
assume they are the most authoritative, but I could be wrong,
and I will look at that. Thank you very much, and I appreciate
this.
Mr. Chairman, I do have a very important Armed Services
Committee meeting. I will have to slip out.
Senator Cardin. We certainly understand. That is why we
allowed you as much time----
Senator Sessions. You allowed me to go over.
Senator Cardin [continuing].--As you needed.
Senator Sessions. I appreciate it.
Mr. Perez. Thank you, Senator, for coming, and when I get
you the data on Section 8, I will also get you the information
on the current Section 8 case that we actually have going on,
and I will make sure you know about that.
Senator Sessions. Thank you.
Mr. Perez. Thank you for your time.
Senator Cardin. I just would point out that the Southern
Poverty Law Center has supplied information to this Committee
that shows an increase in hate crime activities. We would also
point out that many local jurisdictions do not provide the FBI
with information.
I have tried to work with members of the Judiciary
Committee to increase the information made available to the FBI
so that we have more reliable information on hate crime
activities and have met resistance from my Republican
colleagues on this Committee to get that information to the
FBI.
And let me also point out that in conversations that I have
had with local law enforcement officials and with local
advocacy groups, there is no question that there has been an
alarming increase in hate crime activities in this country,
something that I think has been not only well documented but
acknowledged as far as the problems being confronted by law
enforcement around this country.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman. I apologize. I
was in the HELP Committee hearing, so I just got here when the
Ranking Member was--I assume I have 16 minutes?
[Laughter.]
Senator Franken. No. I am joking. I know he had to leave.
Mr. Perez, last month your Division settled a case called
J.L. v. Mohawk Central School District. You mentioned the case
in your written testimony and probably in your oral testimony.
It involved a 14-year-old student from upstate New York. The
student, J.L., is gay. Because he was gay, his classmates
destroyed his clothes, his phone, his music player. One student
knocked J.L. down a flight of stairs. Another brought a knife
to school and threatened to kill him. When J.L. and his parents
complained to school officials, the school principal just told
him that, ``Boys will be boys.'' You supported J.L.'s lawsuit
against his school and helped broker a settlement.
Unfortunately, this case is hardly unique. A similar case
came up in my State. The fact is discrimination and harassment
are a fact of life for lesbian, gay, bisexual, and transgender
students across the country, yet there is no explicit
protection in Federal law that bars discrimination and
harassment against LGBT students in public schools.
What do you think of this? Do we need an explicit ban
against discrimination in public schools based on sexual
orientation or gender identity?
Mr. Perez. Thank you for your question, Senator. I was in
Seattle about 3 weeks ago, and I went to a middle school as
part of an anti-bullying campaign, and I told the students the
following: Today's bullies are tomorrow's civil rights
defendants all too frequently, and I know that because I have
prosecuted high school students for horrific acts of hate
crimes. And so I am a firm believer that we need to start
earlier on in our prevention efforts, and I am very proud of
the work we did in the Mohawk County case because until we
intervened in that case, the case was languishing. And the
Federal Government can make a difference.
I have a 13-, an 11-, and a 7-year-old, and when they go to
school, I have every right to know and believe that they are
going to be safe in school. And we used Title IX theory--it is
a theory of gender nonconformity--and we were able to bring the
case under Title IX. It is not the first time we have brought a
case involving similar circumstances using a Title IX theory.
We did another one when I was in my first tour of duty in the
Clinton administration working with the Education Section, and
we will continue to monitor those.
I would be happy to work with you on the underlying issue
of ensuring that everybody going to school can have the reality
of a learning environment that is nurturing, non-
discriminatory, and non-threatening.
Senator Franken. Don't we have explicit laws against
bullying people on race and on----
Mr. Perez. Well, depending on the facts----
Senator Franken [continuing].--Religion and----
Mr. Perez. I mean, depending on the facts and circumstances
of the case, there may be local or State laws or potentially
our Federal civil rights laws. And, again, we have had cases
before involving racially motivated violence committed by
school-aged kids. Oftentimes, it has been arsons of schools,
arsons of churches, pretty significant assaults.
Senator Franken. I am talking about bullying. Right now
Title IX covers sex discrimination.
Mr. Perez. Correct.
Senator Franken. But while some circuits have interpreted
that to include discrimination on the basis of sex
stereotypes----
Mr. Perez. Correct.
Senator Franken [continuing].--Not one circuit has found
that to include discrimination on the basis of sexual
orientation.
Mr. Perez. That is correct. Our theory was a theory of
gender nonconformity, which is a form of sex discrimination. It
was not a theory of discrimination based on the fact that
somebody is gay.
Senator Franken. OK. Well, I would like to work with you on
this and----
Mr. Perez. I would be happy to.
Senator Franken [continuing].--Explicit protections for
folks on lesbian, gay, bisexual, and transgender for kids who
are--it is a very real thing that there is this bullying in
school.
Let us turn to a couple other matters. As you know, the
U.S. Commission on Civil Rights was founded by President
Eisenhower to promote civil rights. That may sound self-
evident, but let me list some of the recent actions by the
Commission and Commission members. They include: one,
testifying against the reauthorization of the Voting Rights
Act; two, opposing by a majority the Matthew Shepard Hate
Crimes Act; and, three, issuing a report questioning the
academic and social benefits of school diversity. That is the
U.S. Commission on Civil Rights doing that.
I know you do not have the authority or jurisdiction over
the Commission, but as the Nation's chief law enforcement
officer for civil rights, can you tell me, you know, what is
happening here? I would also love to hear you talk about the
Voting Rights Act as reauthorized and the Hate Crimes Act. Are
those pieces of legislation central to your mission?
Mr. Perez. Absolutely central to our mission, and we have--
in the voting context, we are feverishly preparing for
redistricting. Senator Sessions mentioned some voting cases,
but I look forward to giving him the full panoply of voting
cases that we are working on, including a Section 8 case, a
Section 2 case in Euclid, Ohio; a victory recently in a New
York State NVRA case; another case in Shannon County, South
Dakota, which is Indian country, making sure that people with
limited English proficiency in Indian country can access the
ballot. So I am very proud of the work we have done, and I look
forward to ensuring that Senator Sessions has a full list of
the cases that we are actually working on in the Obama
administration.
I also have great respect for the Civil Rights Commission.
I had the privilege during the transition, Senator, of
overseeing the Obama transition of all the agencies that have a
robust civil rights presence, large agencies such as Department
of Justice, HHS, HUD; smaller agencies, the EEOC and the Civil
Rights Commission. And I actually got a history lesson on the
history of the Civil Rights Commission and the creation. Civil
rights has always been bipartisan in our country. I learned
that from Senator Kennedy. And you look at all the major pieces
of civil rights legislation, and they have been a function of
bipartisan work. I look forward to the 20th anniversary of the
ADA this summer, a bill signed by George Herbert Walker Bush.
And so I have profound respect for the tradition and the
history of the Civil Rights Commission, and that is why when
they asked me to come over recently to talk about the work on
the New Black Panther Party case, I said, ``Of course I will
come over.'' And I will be over there in a few weeks to discuss
our actions there, and I hope that we can reach a point where
we can return to our bipartisan roots, because really civil
rights is about bipartisan coalition building. That is what I
have learned from the movement, and as I study the history of
the movement, that is what it is, and that is what I hope it
will return to.
Senator Franken. Thank you.
Thank you, Mr. Chairman.
Senator Cardin. I would just remind the Senator he went 16
seconds over his allotted time.
Senator Franken. I guess I am not the Ranking Member.
[Laughter.]
Mr. Perez. That was my fault, Senator.
Senator Cardin. Well, let me first say to Mr. Perez that
you are being very diplomatic on the Civil Rights Commission,
and I understand your position as testifying before us. I think
Senator Franken is absolutely correct in the manner in which he
has presented that. I understand the tradition of the Civil
Rights Commission, but it is an important institution, and it
is one that should be in the forefront of advocacy for the
civil rights of all Americans. And looking at its recent
actions, it calls into question whether it is carrying out its
intended responsibility.
Now, that is our responsibility as the Congress to oversee
that Commission, and it is an issue of great concern to me and
I know this Committee, and I thank Senator Franken for the
manner in which he presented his question. I just underscore
the point that in the New Black Panther Party case, it was
career attorneys that made those judgments, as it should have
been. And I applaud you for trying to, again, keep this out of
the political arena, and I wish you well in your appearance
before the Commission.
Mr. Perez. Thank you.
Senator Cardin. We will be watching that carefully.
I want to go back to Senator Sessions' points on the
enforcement of Section 8. Let me just make an observation, if I
might. I certainly agree with Senator Sessions. Anyone who
should be taken off the rolls--someone who has died should be
off the rolls. If someone has moved, they should be taken off.
The rolls should be accurate. I certainly agree with that. But
I can tell you, after every election I get more complaints
about people who were eligible to vote and who were
inappropriately taken off of a roll and showed up and had to
file either a provisional ballot or the election officials did
not know how to handle a provisional ballot, or whatever, or
they were harassed to such a point that they just left because
of the time problems that they have in voting.
I do check with our local law enforcement to see how many
matters--because after every election there are always these
accusations that people fraudulently voted. And then we take a
look at it, and we do not find it. And there have been a lot of
studies done, and the number of people who are fraudulently
voting is minuscule compared to those who are eligible to vote,
who try to vote, who either cannot vote or their votes do not
get counted properly.
Now, I am for Senator Sessions' point. I want all of our
laws enforced. Do not get me wrong. But I would hope that we
would try to be empowering people to vote who are eligible to
vote and spending our resources to do that and not try to spend
a lot of effort with a problem that really does not exist or
exists in such a minor way that we should be very surgical as
to how we go about it. I think I share--there are many who
share my view on that, and I did not want Senator Sessions'
comments to go without being responded to.
Mr. Perez. Senator, when you asked me a fair lending
question, I said that, you know, consumer protection and
preserving a sound lending climate go hand in hand. There is a
tendency to create this unhealthy binary world where you either
do one or the other when you should be doing both.
Similarly, we can combat voter fraud and we can ensure
access, full access to the ballot. Those are not mutually
exclusive propositions, and that is exactly what we are doing.
There is a right way and a wrong way to enforce Section 8 of
motor-voter, and we are preparing guidance so that States do it
the right way. Similarly, we are preparing guidance so that
States enforce Section 7 because, frankly, we have received
numerous reports about motor vehicle agencies, social service
agencies that are not doing their job of providing those
materials. And so we need to be vigilant across the board.
Senator Cardin. Well, thank you. I certainly support that.
I want to ask one additional question. Then Senator Franken
would like a second round, and we have time for it.
I want to deal with the Olmstead case in dealing with
people with disabilities. It was an expansion by the Supreme
Court of the interpretation of Title II of the ADA, and it
appears that we are making, I think, some significant progress
on behalf of people with disabilities. Georgia's Department of
Human Resources could not segregate two women with mental
disabilities in the State psychiatric hospital long after the
agency's own treatment professionals had recommended their
transfer to community care.
Can you just share with us what the priority in your
Department is in regards to the expansion of the rights of
people with disabilities?
Mr. Perez. We have an active docket of cases, and this is a
situation that occurs in almost every State in the United
States. And the old paradigm of looking at people who were in
institutions was: Is the institution safe? Are the conditions
constitutional? That is an important question. But that is the
second question that should be asked. The first question that
should be asked is: Are there people in this institution who
should not be there, who can and want to live in the
communities with the appropriate supports?
So in every case we are now doing, we are asking the two
questions, and I get some pushback from time to time from
States saying it is too expensive. Well, with all due respect,
it is too expensive to warehouse people in institutions. The
average cost oftentimes is over $200,000 per person when you
could live humanely and far more inexpensively in community-
based settings.
So we have a case in New York where we intervened, a major
case where we got a very good ruling from the court. We have
the Georgia case itself where I personally went down and sat
with the Governor. I did that because 10 years after the
Olmstead case, there was scant evidence of progress, and so we
had to file another lawsuit in order to move forward there.
The good news is that we have been negotiating in good
faith with the State, and we are also doing similar
negotiations elsewhere, and I am confident that we can build a
new paradigm so that people with disabilities who want to live
in community-based settings can do so, because just as the
segregation of people by race in the schools is
unconstitutional and immoral, the segregation of people--the
unnecessary segregation of people with disabilities in
institutions is equally illegal and must be stemmed.
Senator Cardin. Thank you.
Senator Franken.
Senator Franken. Thank you, Mr. Chairman.
Mr. Perez, part of your job is enforcing the Freedom of
Access to Clinic Entrances Act, which prohibits--I am sorry,
which protects Americans' access to reproductive service
providers. I know that Attorney General Holder asked the U.S.
Marshals Service to help safeguard reproductive health
providers and facilities around the country after Dr. George
Tiller's murder last year.
How are you working with the U.S. Marshals Service to
ensure ongoing protection for these providers? And are you and
Attorney General Holder still recommending increased
protection, or do you believe that the need was temporary?
Mr. Perez. I do not believe--we conduct regular threat
assessments. We are actively--we have an active docket. The
last thing I worked on before I left the Clinton administration
was the murder of Dr. Slepian in Buffalo, New York, 3 miles
from where I grew up. The first thing I got briefed on when I
arrived back 11 years later as AAG for Civil Rights was a
briefing on the murder in Kansas. So the more things change,
the more they stay the same. And this threat is an ongoing
threat, and we take those seriously. We are constantly
assessing, reassessing, working not only with our partners at
the Marshals Service but with other law enforcement partners.
We were actively monitoring the Kansas prosecution. I cannot
comment in any detail, but that investigation remains ongoing.
We will continue to fully exercise our civil authority as
well. We had a case last year in New Mexico involving an arson
of a clinic that came to a successful prosecution. These cases
are among our highest priorities.
Senator Franken. Thank you. I know that the Department of
Justice has helped enforce the Help America Vote Act and has
worked with polling places to ensure accessibility for
individuals with disabilities. But although most polling places
now have accessible voting machines, the GAO recently found
that half of ``accessible voting machines'' may pose problems
to many with disabilities, such as those who are in
wheelchairs.
Mr. Perez. Right.
Senator Franken. What actions has the Civil Rights Division
taken to address this problem?
Mr. Perez. I am familiar with that report, and we are
actively working jurisdiction by jurisdiction. Because of the
volume of precincts--and I know in my own State of Maryland, we
had a number of precincts that had accessibility issues, and so
we are feverishly working to make sure not simply that the
facilities are physically accessible, but then working issues
involving some people with vision impairments. We have read
more about that or heard more about that recently. But that is
certainly a broad part of our overall agenda of ensuring that
everybody who is eligible to vote can do so.
Senator Franken. Thank you. I think that is so important,
and thank you, Mr. Chairman. If I had known I had had two
rounds, I would not have come down so hard on the Ranking
Member, who had an important Armed Services Chairman hearing.
And I apologize for that. That was uncalled for.
Mr. Perez. Mr. Chairman, if I could, I just wanted--my
staff handed me something that I just wanted to make sure was
in the record relating to the FBI hate crimes reports.
According to the information I received, the most recent FBI
hate crimes report documents the highest level of hate crimes
since 2001. So the number reported in 2008 was 7,783, which was
up from 7,624 in 2007, and so that is the highest level since
2001. And I will be certain to share this information with
Senator Sessions, but I just wanted to make sure the record was
complete regarding what the data shows.
I can tell you from our own enforcement experience, as I
said at the outset, the phone is ringing off the hook, and the
cases are more and more brutal, and we have got a lot of
father-son teams--one in Indiana, one in South Carolina. They
are passing down their hatred to their children, and it really
is remarkable. We just sentenced a person for threatening the
President last week in Arkansas. We have a case pending
involving threats against the heads of the National Council of
La Raza, MALDEF, and others. And when this person was pending
trial, he threatened the pre-trial services officer in his
case, and he has now been detained.
So there are a lot of dangerous people out there who want
to divide this country along racial, ethnic, and other lines.
Senator Cardin. Well, that is unfortunately consistent with
the information that I think each of us has observed in our own
communities, and it is clearly a circumstance that we need to
take aggressive action, and we thank you for the manner in
which you are proceeding in this regard.
I do really send an open invitation to all my colleagues on
this Committee. If we can get more reliable information to the
FBI from local officials on these types of activities, I think
it would be useful. And I did author legislation to deal with
the homeless to try to get the information so we can act on
what is a significant problem, violence against people who are
homeless. And I did that not to initiate new policy, but to
find out what the facts are so that we can try to develop the
right policies to protect all people in our community. And it
was not received in a way that we could proceed in this
Committee. And if there is an interest by the Republicans to
try to have the FBI have more reliable information in this
area, I can assure you that I am very happy to work with any of
my Republican colleagues so that we can have effective
information to work on.
Absent that, we do have the FBI information that shows a
rise in hate crime activities. We do have the local information
from our local law enforcement, and we also have the Southern
Law Poverty Center, which has produced a great deal of
information in this regard--all confirming that there has been
an alarming increase in hate crime-type activities in this
country. We thank you for moving forward aggressively in this
area, and I appreciate very much your testimony.
Mr. Perez. Thank you for your time, and thank you for your
interest.
Senator Cardin. If there is nothing further, the Committee
will stand adjourned. The record will stay open for 7 days.
[Whereupon, at 11:30 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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