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Under Trump, approach to civil rights law likely to change definitively

Vanita Gupta, head of the Civil Rights Division at the U.S. Department of Justice, at her office in Washington last week.
Vanita Gupta, head of the Civil Rights Division at the U.S. Department of Justice, at her office in Washington last week.T.J. Kirkpatrick/New York Times

WASHINGTON — In the final weeks of the Obama administration, the Justice Department won the first hate-crime case involving a transgender victim and sued two cities for blocking mosques from opening. Prosecutors settled lending-discrimination charges with two banks, then sued a third. They filed legal briefs on behalf of New York teenagers being held in solitary confinement, and accused Louisiana of forcing mentally ill patients into nursing homes.

And then, with days remaining, prosecutors announced a deal to overhaul Baltimore’s Police Department and accused Chicago of unconstitutional police abuses.

The moves capped a historic and sometimes controversial eight-year span in which the Justice Department pushed the frontiers of civil rights laws, inserting itself into private lawsuits and siding with transgender students, juvenile prisoners, the homeless, the blind and people who videotape police officers. On issues of gay rights, policing, criminal justice, voting and more, government lawyers argued for a broad interpretation of civil rights laws, a view that they consistently said would put them on the right side of history.

Few areas of federal policy are likely to change so definitively. President-elect Donald Trump’s nominee to be attorney general, Sen. Jeff Sessions of Alabama, opposes not only the Justice Department’s specific policies on civil rights, but also its entire approach. While liberal Democrats have criticized Sessions’ views on specific issues like gay marriage and voting, the larger difference is how differently the Trump administration will view the government’s role in those areas.


Vanita Gupta, the head of the civil rights division and the face of the Obama administration’s efforts over the past two years, has spoken about the power “to bend the arc of history itself — not merely by serving your clients, but by harnessing the law as a force for positive change.”

“The project of civil rights has always demanded creativity,” she said in an interview. “It requires being bold. Often that means going against the grain of current-day popular thinking. Or it requires going to the more expansive reading of the law to ensure we are actually ensuring equal protection for everyone.”


Sessions, a former federal prosecutor, has spoken harshly about lawyers and judges who try to push the law in certain directions — “a postmodern philosophy that elevates outcomes over law,” he has called it.

Congress makes laws, he has said, and he was outraged when Eric H. Holder Jr., the former attorney general, refused to defend a law banning gay marriage and told his state counterparts that they could ethically do the same regarding state bans.

“It was shameful and disgraceful and an abandonment of the rule of law,” Sessions said in 2015. “I’m not happy about what’s happened to my Department of Justice.”

At this confirmation hearing, Sessions harkened to the era of segregation in arguing that there was no need for the federal government to become involved in prosecuting crimes against women or gay people that were already being prosecuted locally. “I am not sure women or people with different sexual orientations face that kind of discrimination. I just don’t see it,” Sessions said, denying that he was anti-gay or anti-women.

The Obama administration saw its mandate much more broadly. One of the clearest examples of this philosophy came last year, when Gupta wrote a letter to every public school district in the country and told them to allow transgender students to use the bathrooms that matched their gender identity.


The policy touched off a furious debate and became a touchstone for conservatives who saw the Obama administration as out of touch and making its own laws. Courts have not settled the question of whether the federal sex-discrimination laws apply in matters of gender identity. But Justice Department lawyers, who were fielding questions from school officials, interpreted those protections broadly.

Congress created the civil rights division as part of the Civil Rights Act of 1957, and its mission and leadership have been the subject of frequent debate. President Reagan’s civil rights chief, William Bradford Reynolds, faced criticism from advocacy groups who said he refused to enforce civil rights laws. President Clinton’s choice to lead the division, Bill Lann Lee, served his tenure in an acting capacity after the Senate refused to confirm him, largely over his support for affirmative action. One of President Barack Obama’s nominees, Debo P. Adegbile, was rejected by the Senate over his prior representation of a man convicted of killing a Philadelphia police officer.

In response, Obama never nominated Gupta to the post. Like Lee, she has served her tenure in an acting capacity.

She started work amid unrest in Ferguson, Missouri, where angry and sometimes violent demonstrators protested the police shooting of an unarmed black teenager and the way police officers treated African-Americans. “History simmers beneath the surface in more communities than just Ferguson,” Holder said at the time as he cast the Justice Department as a voice for those who have felt abused and ignored for years.


The Justice Department ultimately cleared the officer involved in the shooting, but sued the city, accusing its officers of long-standing abuses of force in encounters with black residents.

Ferguson was the most high-profile target of the department’s campaign to use civil rights laws to force changes in police policy. Congress gave the Justice Department that authority in 1994 after the police beating of Rodney King in Los Angeles, but no administration has used that power nearly as aggressively. The Obama administration has opened two dozen such investigations and sued cities to make policing changes.

Police groups have criticized the administration’s approach. James O. Pasco Jr., executive director of the National Fraternal Order of Police, said officers were particularly concerned with the administration’s early talk. Tom Perez, Obama’s first civil rights chief, declared his division was “once again open for business,” and promised more investigations into police departments.

“During his entire tenure there, we were never reached out to once. Not once,” Pasco said. “He went out of his way to make police officers the villains.”

Pasco has said collaboration with rank-and-file officers has since improved and spoke glowingly of Gupta. But many officers still say the Justice Department has portrayed them unfairly, and Sessions shares that belief.

“These lawsuits undermine the respect for police officers and create an impression that the entire department is not doing their work consistent with fidelity to law and fairness,” Sessions said at his confirmation hearing. He said civil rights lawsuits hurt morale and changed the way citizens viewed the police. “And we need to be careful before we do that.”


In 2015, Sessions sharply questioned Gupta about her views on policing and her ACLU advocacy. “You come from a background that indicates an aggressiveness in these areas,” he said.

Gupta said such questions reflect a double standard. “I don’t think the same comment gets made of criminal prosecutors who’ve obtained a lot of convictions,” she said in an interview, “that they’re too aggressive to do their jobs effectively.”

She added, “I was an aggressive civil rights chief, and I’m proud of that.”

Gupta will leave government with the administration, but a team of career lawyers remains. Many view Sessions’ nomination warily, but senior officials have urged an open mind. Gupta said she hopes her successor will have one, too. “This is not abstract work done for its own sake,” she said. “It is fundamentally about the people whose rights we protect.”