Trump’s Justice Department Redefines Whose Civil Rights to Protect

WASHINGTON — The Justice Department’s decision last week to support Asian-Americans seeking to curb race-based college admissions is the latest in a series of moves that are redefining decades of civil rights enforcement — and reshaping the very notion of whose interests the federal government should protect.

Since its founding six decades ago, the Justice Department’s civil rights division has used the Constitution and federal law to expand protections of African-Americans, gays, lesbians and transgender people, immigrants and other minorities — efforts that have extended the government’s reach from polling stations to police stations.

But under Attorney General Jeff Sessions, the focus has shifted to people of faith, police officers and local government officials who maintain they have been trampled by the federal government. The department has supported state voting laws that could wind up removing thousands of people from voter rolls. And it has pulled back on robust oversight of police departments found to have violated the rights of citizens in their jurisdictions.

Justice Department officials say that notions of equality have expanded and shifted quickly during the past decade, pushing identity to the fore of politics and culture, and sparking many of the anxieties that helped thrust President Donald Trump into the White House.

In response to competing and sometimes contradictory civil rights interests, department officials say they are sticking with the letter of the law.

“Our job is to be a law enforcement arm that protects the laws as Congress and the Supreme Court has written them,” said John Gore, the head of the Justice Department’s civil rights division.

In some cases, such as with Christians, Sessions has said religious rights have not been protected forcefully enough. In others, like the expansion of protections for transgender people, the attorney general has said the department went further than what the law allows.

But critics say the Justice Department is picking and choosing the statutes it wants to vigorously defend, and letting others go. Those choices have created a new overall position on civil rights that deviates sharply from years past. In offering civil rights protections to a new set of groups, the department has lifted protections for others, especially gay, lesbian and transgender people and African-Americans.

“For the last 242 years, there has been a movement to transform America from a closed society to a more open society, and it opened access to the voting booth, classrooms, employment opportunities and public accommodations,” said Norman Siegel, the former director of the New York Civil Liberties Union.

“The Department of Justice is now moving away from that, and its emerging view of civil rights is a dangerous trend, inconsistent with legal history, and a disturbing manifestation of President Trump,” Siegel said. The Asian-American suit against Harvard, which argues that the school’s admissions policies are discriminatory, is positioned to help one minority group, but former Justice Department attorneys worry that it could ultimately weaken a legacy of the civil rights era that has been used to expand opportunities to other underrepresented minorities.

The Justice Department’s support of that suit “is a distortion of the law and repeated rulings from the United States Supreme Court,” said Anurima Bhargava, an attorney who worked in the department’s civil rights division. “It undermines schools’ efforts to bring students of different backgrounds together.”

The department’s shift in how it regards civil rights has happened quickly and often in lockstep with other parts of the administration. The Leadership Conference, a civil rights advocacy group, counts at least 95 instances in which the administration has taken a stance antithetical to long-standing views on civil rights and civil liberties. Those efforts include chipping away at the rights of immigrants and disadvantaged populations, including prisoners.

The moves “are happening at such a fast clip that it is hard to keep track of all of them,” said Janai Nelson, a lawyer at the NAACP Legal Defense and Educational Fund.

The department’s shift in priorities was on display at the end of July, when Sessions hosted a religious freedom summit to celebrate what he called the country’s “first freedom.” Speakers included Deputy Attorney General Rod Rosenstein; politicians; leaders from many faiths; conservative advocates; and Jack Phillips, owner of the Masterpiece Cakeshop, whose refusal to create a wedding cake for a gay couple on religious grounds was upheld in June by the Supreme Court.

Sessions lauded Phillips for his bravery and called Western culture increasingly “less hospitable to people of faith.”

“President Trump heard this concern,” Sessions said. “I believe this unease is one reason that he was elected.”

The issue of religious rights has been a source of contention for previous administrations. The Supreme Court unanimously rejected an argument from the Obama administration that the government could interfere in the employment decisions of a religious organization, Hosanna-Tabor Church. The justices walked the administration through the history of religious freedom and its value.

Derrick Max, the executive director of Cornerstone Schools, a Christian academy, said that during the past five years, he watched the Justice Department bring cases against people like him, who acted in line with their conscience, but violated principles that President Barack Obama held dear.

“The move from same-sex attraction issues to transgender issues literally exploded so fast everyone’s head was spinning a little bit,” Max said. “Views of people like myself were not being heard.”

But by extending the right to refuse service to people who offend someone’s religious sensibilities, critics say the Justice Department is curbing the rights of groups that have historically faced discrimination, such as gay, lesbian and transgender people. They also note that religious freedom arguments were used to fight school desegregation statutes after they were passed.

“We should treat people the same, regardless of race, gender, sexual orientation — and that applies to cake makers and florists,” Siegel said.

Sessions has made it clear that he will only protect rights for transgender citizens where they are clearly stated, such as the department’s decision to prosecute killings of transgender people under existing hate crime statutes. He rescinded guidance to protect transgender workers and protect transgender students, saying they went beyond the letter of the law.

The Justice Department under Sessions has also backed away from its long-standing position to protect voting rights. It withdrew its objection to a Texas voting law that judges ruled discriminatory against Hispanic and African-American voters. It also reversed a decadeslong stance that people should be allowed to vote, even if they do not exercise that right, in a case in Ohio. The Supreme Court ruled in favor of Ohio’s right to purge its voting rolls of people who do not vote in elections.

The department’s reversal “is dismantling much of the progress made over the past decades to have robust civil rights enforcement,” said Nelson, who fought the Texas voting law. The department has also shifted its approach to local law enforcement, stepping away from Obama-era investigations into allegations of discriminatory and abusive policing in Chicago and Louisiana that were at their midpoint when Trump was inaugurated.

Once he became attorney general, Sessions asked for a 90-day delay in a consent decree with the Baltimore police department, which had been involved in the death of Freddie Gray, a 25-year-old black man who died while in police custody. He also asked for a sweeping review of the department’s law enforcement programs.

In a 2017 radio interview, Sessions said that consent decrees “reduce morale” among police officers and lead to increases in violent crime, statements that were contested by academics and researchers.

But the overall effect is to de-emphasize the department’s responsibility to enforce fair policing polices, said Jonathan Smith, a former official in the department’s civil rights division and the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

“Across government, we are seeing a tremendous shift away from efforts to address inequities based upon race, gender or LGBTQ status,” Smith said. “With that has come the move away from making sure that police departments comply with the Constitution.”