U.S. Department of Justice
Information on Employment Litigation, Housing and Civil Enforcement, Voting, and Special Litigation Sections' Enforcement Efforts from Fiscal Years 2001 through 2007 Gao ID: GAO-10-75 October 23, 2009The Civil Rights Division (Division) of the Department of Justice (DOJ) is the primary federal entity charged with enforcing federal statutes prohibiting discrimination on the basis of race, sex, disability, religion, and national origin. GAO was asked to review the Division's enforcement efforts. This report addresses the activities the Division undertook from fiscal years 2001 through 2007 to implement its enforcement responsibilities through four of its sections (1) Employment Litigation, (2) Housing and Civil Enforcement, (3) Voting, and (4) Special Litigation. To conduct our review, GAO analyzed data on cases filed in court and matters (e.g., a referral or allegation of discrimination) investigated. To supplement this analysis, GAO also reviewed a sample of closed matter files (about 210 of 5,400). GAO randomly selected matters investigated under different statutes for each section and considered the government role (e.g., plaintiff or defendant) and type of issues investigated (e.g., the nature of the alleged discrimination or violation) to ensure that the sample reflected the breadth of the work and practices of each section. While not representative of all closed matters, the sample results provided examples of why matters were closed. Additionally, GAO analyzed complaints and other relevant court documents for a comparable number of cases filed as plaintiff by each section, as well as DOJ documents, such as annual reports, that described the Division's enforcement efforts.
From fiscal years 2001 through 2007, the Employment Litigation Section initiated more than 3,200 matters and filed 60 cases as plaintiff under federal statutes prohibiting employment discrimination. About 90 percent of the matters initiated (2,846 of 3,212) and more than half of the cases filed (33 of 60) involved individual claims of discrimination. Of these cases, more than half (18 of 33) alleged sex discrimination against women. The Section filed 11 pattern or practice cases--cases that attempt to show that the defendant systematically engaged in discriminatory activities. Nine of these cases involved claims of discrimination in hiring, and the most common protected class (i.e., class of individuals entitled to statutory protection against discrimination, such as national origin or gender) was race (7 of 11). From fiscal years 2001 through 2007, the Housing and Civil Enforcement Section initiated 947 matters and participated in 277 cases under federal statutes prohibiting discrimination in housing, credit transactions, and certain places of public accommodation (e.g., hotels). Nearly 90 percent (456 of 517) of the Fair Housing Act (FHA) matters were initiated under its pattern or practice authority. The largest number of the FHA matters involved allegations of discrimination based on race (228) or disability (206). The majority (250 of 269) of the cases that the Section filed as plaintiff included a claim under the FHA and primarily involving rental issues (146 of 250). Most of the cases alleged discrimination on the basis of disability (115) or race (70). From fiscal years 2001 through 2007, the Voting Section initiated 442 matters and filed 56 cases to enforce federal statutes that protect the voting rights of racial and language minorities, disabled and illiterate persons, and overseas and military personnel and addressed such issues as discriminatory voter registration practices. The Section initiated most matters (367 of 442) and filed a majority of cases (39 of 56) as plaintiff under the Voting Rights Act. These matters (246 of 367) and cases (30 of 39) were primarily filed on behalf of language minority groups. The Section spent about 52 percent of its time on reviews of proposed changes in voting procedures (e.g., moving a polling place) submitted by certain jurisdictions covered under the act, as compared with cases (about 33 percent) or matters (about 14 percent). From fiscal years 2001 through 2007, the Special Litigation Section initiated 693 matters and filed 31 cases as plaintiff to enforce federal civil rights statutes in four areas--institutional conditions (e.g., protecting persons in nursing homes or jails), conduct of law enforcement agencies (e.g., police misconduct), access to reproductive health facilities and places of worship, and the exercise of religious freedom of institutionalized persons. Of the matters initiated and closed (544 of 693), the largest numbers involved institutional conditions (373) and conduct of law enforcement agencies (129). The cases filed (27 of 31) primarily involved institutional conditions. DOJ provided technical comments, which GAO incorporated as appropriate.
GAO-10-75, U.S. Department of Justice: Information on Employment Litigation, Housing and Civil Enforcement, Voting, and Special Litigation Sections' Enforcement Efforts from Fiscal Years 2001 through 2007
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
October 2009:
U.S. Department Of Justice:
Information on Employment Litigation, Housing and Civil Enforcement,
Voting, and Special Litigation Sections‘ Enforcement Efforts from
Fiscal Years 2001 through 2007:
GAO-10-75:
GAO Highlights:
Highlights of GAO-10-75, a report to congressional requesters.
Why GAO Did This Study:
The Civil Rights Division (Division) of the Department of Justice (DOJ)
is the primary federal entity charged with enforcing federal statutes
prohibiting discrimination on the basis of race, sex, disability,
religion, and national origin. GAO was asked to review the Division‘s
enforcement efforts. This report addresses the activities the Division
undertook from fiscal years 2001 through 2007 to implement its
enforcement responsibilities through four of its sections (1)
Employment Litigation, (2) Housing and Civil Enforcement, (3) Voting,
and (4) Special Litigation. To conduct our review, GAO analyzed data on
cases filed in court and matters (e.g., a referral or allegation of
discrimination) investigated. To supplement this analysis, GAO also
reviewed a sample of closed matter files (about 210 of 5,400). GAO
randomly selected matters investigated under different statutes for
each section and considered the government role (e.g., plaintiff or
defendant) and type of issues investigated (e.g., the nature of the
alleged discrimination or violation) to ensure that the sample
reflected the breadth of the work and practices of each section. While
not representative of all closed matters, the sample results provided
examples of why matters were closed. Additionally, GAO analyzed
complaints and other relevant court documents for a comparable number
of cases filed as plaintiff by each section, as well as DOJ documents,
such as annual reports, that described the Division‘s enforcement
efforts.
What GAO Found:
From fiscal years 2001 through 2007, the Employment Litigation Section
initiated more than 3,200 matters and filed 60 cases as plaintiff under
federal statutes prohibiting employment discrimination. About 90
percent of the matters initiated (2,846 of 3,212) and more than half of
the cases filed (33 of 60) involved individual claims of
discrimination. Of these cases, more than half (18 of 33) alleged sex
discrimination against women. The Section filed 11 pattern or practice
cases”cases that attempt to show that the defendant systematically
engaged in discriminatory activities. Nine of these cases involved
claims of discrimination in hiring, and the most common protected class
(i.e., class of individuals entitled to statutory protection against
discrimination, such as national origin or gender) was race (7 of 11).
From fiscal years 2001 through 2007, the Housing and Civil Enforcement
Section initiated 947 matters and participated in 277 cases under
federal statutes prohibiting discrimination in housing, credit
transactions, and certain places of public accommodation (e.g.,
hotels). Nearly 90 percent (456 of 517) of the Fair Housing Act (FHA)
matters were initiated under its pattern or practice authority. The
largest number of the FHA matters involved allegations of
discrimination based on race (228) or disability (206). The majority
(250 of 269) of the cases that the Section filed as plaintiff included
a claim under the FHA and primarily involving rental issues (146 of
250). Most of the cases alleged discrimination on the basis of
disability (115) or race (70).
From fiscal years 2001 through 2007, the Voting Section initiated 442
matters and filed 56 cases to enforce federal statutes that protect the
voting rights of racial and language minorities, disabled and
illiterate persons, and overseas and military personnel and addressed
such issues as discriminatory voter registration practices. The Section
initiated most matters (367 of 442) and filed a majority of cases (39
of 56) as plaintiff under the Voting Rights Act. These matters (246 of
367) and cases (30 of 39) were primarily filed on behalf of language
minority groups. The Section spent about 52 percent of its time on
reviews of proposed changes in voting procedures (e.g., moving a
polling place) submitted by certain jurisdictions covered under the
act, as compared with cases (about 33 percent) or matters (about 14
percent).
From fiscal years 2001 through 2007, the Special Litigation Section
initiated 693 matters and filed 31 cases as plaintiff to enforce
federal civil rights statutes in four areas––institutional conditions
(e.g., protecting persons in nursing homes or jails), conduct of law
enforcement agencies (e.g., police misconduct), access to reproductive
health facilities and places of worship, and the exercise of religious
freedom of institutionalized persons. Of the matters initiated and
closed (544 of 693), the largest numbers involved institutional
conditions (373) and conduct of law enforcement agencies (129). The
cases filed (27 of 31) primarily involved institutional conditions.
DOJ provided technical comments, which GAO incorporated as appropriate.
View [hyperlink, http://www.gao.gov/products/GAO-10-75] or key
components. For more information, contact Eileen R. Larence at (202)
512-8777 or larencee@gao.gov.
[End of section]
Contents:
Letter:
Background:
Results-in-Brief:
The Employment Litigation Section Investigated More Matters and
Participated in More Individual Employment Discrimination Cases under
Section 706 of Title VII Than under Other Statutory Provisions, and
Devoted Most of Its Time Spent on Cases to Pattern or Practice Cases:
The Housing and Civil Enforcement Section Initiated More Matters and
Participated in More Cases Involving a Pattern or Practice of
Discrimination under the Fair Housing Act Than Any Other Statute or
Type of Matter or Case:
The Voting Section Initiated Matters and Filed Cases Primarily under
the Voting Rights Act on Behalf of Language Minority Groups, and
Devoted the Greatest Proportion of Its Time to Reviews of Changes in
Voting Practices and Procedures:
The Special Litigation Section Primarily Investigated Matters and
Participated in Cases Involving Institutional Conditions and Devoted
the Greatest Percentage of Time to these Matters and Cases, as Compared
with Its Other Areas of Responsibility:
Agency Comments and Our Evaluation:
Appendix I: Objectives, Scope, and Methodology:
Appendix II: Additional Information on the Employment Litigation
Section:
Appendix III: Additional Information on the Housing and Civil
Enforcement Section:
Appendix IV: Voting Rights Section:
Appendix V: Special Litigation Section:
Appendix VI GAO Contact and Staff Acknowledgments:
Tables:
Table 1: Employment Litigation, Housing and Civil Enforcement, Voting,
and Special Litigation Sections‘ Available Permanent Positions and
Salaries and Expenses from Fiscal Years 2001 through 2007:
Table 2: Statutory Provisions Enforced by the Employment Litigation
Section from Fiscal Years 2001 through 2007:
Table 3: Matters the Employment Litigation Section Initiated by Statute
from Fiscal Years 2001 through 2007:
Table 4: Reasons for Closing Matters:
Table 5: Cases the Employment Litigation Section Initiated by Statute
from Fiscal Years 2001 through 2007:
Table 6: Section 706 Cases Initiated by Subject and Protected Class
from Fiscal Years 2001 through 2007:
Table 7: Section 707 Pattern or Practice Cases Initiated by Subject
from Fiscal Years 2001 through 2007:
Table 8: USERRA Cases Initiated by Subject from Fiscal Years 2005
through 2007:
Table 9: Statutory Provisions Enforced by the Housing and Civil
Enforcement Section from Fiscal Years 2001 through 2007:
Table 10: Matters the Housing and Civil Enforcement Section Initiated
by Statute from Fiscal Years 2001 through 2007:
Table 11: Bases of Allegations for the FHA Matters Initiated from
Fiscal Years 2001 through 2007:
Table 12: Issues in the FHA Matters Initiated from Fiscal Years 2001
through 2007:
Table 13: Basis of Allegations for ECOA Matters from Fiscal Years 2001
through 2007:
Table 14: Housing and Civil Enforcement Section Cases by Statute and
Fiscal Year Filed from Fiscal Years 2001 through 2007:
Table 15: Housing and Civil Enforcement Section Case Types for Cases
Initiated from Fiscal Years 2001 through 2007:
Table 16: Issues in the FHA Cases Filed from Fiscal Years 2001 through
2007:
Table 17: Bases of Claims for the FHA Cases Filed from Fiscal Years
2001 through 2007:
Table 18: Bases of Claims and Issues for Housing and Civil Enforcement
Section Testing Program Cases Filed from Fiscal Years 2001 through
2007:
Table 19: Statutory Provisions Enforced by the Voting Section from
Fiscal Years 2001 through 2007:
Table 20: Matters Initiated by the Voting Section from Fiscal Years
2001 through 2007 by Statute:
Table 21: Matters Initiated On Behalf 0f Language Minorities from
Fiscal Years 2001 through 2007:
Table 22: Section 2 Matters Initiated from Fiscal Years 2001 through
2007 by Protected Class: ;
Table 23: Matters Initiated by the Voting Section under VRA Section 2
from Fiscal Years 2001 through 2007 by Subject:
Table 24: Voting Cases Filed from Fiscal Years 2001 through 2007 by
Statute:
Table 25: VRA Section 2 Cases Filed from Fiscal Years 2001 through 2007
by Protected Class:
Table 26: Number of Section 5 Submissions and Changes Received by the
Voting Section during Fiscal Years 2001 through 2007:
Table 27: Number of Objections to Section 5 Changes Proposed from
Fiscal Years 2001 through 2007:
Table 28: Percentage of Time the Voting Section Spent on Cases,
Matters, and Section 5 Reviews from Fiscal Years 2001 through 2007:
Table 29: Percentage of Time Reported Spent on Section 5 Reviews from
Fiscal Years 2001 through 2007 by Fiscal Year:
Table 30: Statutory Provisions Enforced by the Special Litigation
Section from Fiscal Years 2001 through 2007:
Table 31: Matters Initiated by the Special Litigation Section from
Fiscal Years 2001 through 2007 by Fiscal Year:
Table 32: Number of Matters Initiated Involving Institutional
Conditions from Fiscal Years 2001 through 2007 by Category and Facility
Type:
Table 33: Cases Filed by Special Litigation Section from Fiscal Years
2001 through 2007 by Area of Responsibility:
Table 34: Cases Involving Institutional Conditions by Category,
Facility Type, and Fiscal Year:
Table 35: Percentage of Hours Reported for Matters by Facility Type and
Fiscal Year:
Table 36: Percentage of Hours Reported for Cases by Area of
Responsibility and Fiscal Year:
Table 37: Number of Right-to-Sue Letters Issued by the Employment
Litigation Section:
Table 38: Summary of Section 707 Cases Filed from Fiscal Years 2001
through 2007:
Table 39: Cases Filed Prior to Fiscal Year 2001 That Were Still Open
from Fiscal Years 2001 through 2007:
Table 40: Percentage of Time Charged to Employment Litigation Section
Matters by Statute from Fiscal Years 2001 through 2007:
Table 41: Percentage of Time Charged to Employment Litigation Section
Cases by Statute from Fiscal Years 2001 through 2007:
Table 42: Number of On-board Staff for the Employment Litigation
Section by Position and Fiscal Year:
Table 43: Percentage of Attrition for the Employment Litigation Section
by Position and Fiscal Year:
Table 44: Housing and Civil Enforcement Section: Percentage of Time
Charged to Matters by Statute for Fiscal Years 2001-2007:
Table 45: Housing and Civil Enforcement Section: Percentage of Time
Charged by Case Type for Fiscal Years 2001 through 2007:
Table 46: Cases Remaining Open from Fiscal Years 2001 through 2007 by
Statute and Government Role:
Table 47: Housing and Civil Enforcement Section: Historical Track of
Available Resources (dollars in thousands):
Table 48: Number of On-board Staff for Housing and Civil Enforcement
Section by Position and Fiscal Year:
Table 49: Percentage of Attrition for Housing and Civil Enforcement
Section by Position and Fiscal Year:
Table 50: Voting Section Plaintiff Cases Filed Prior to Fiscal Year
2001, but Open from Fiscal Years 2001 through 2007, by Statute:
Table 51: Cases Filed under the Voting Rights Act Prior to Fiscal Year
2001, but Open from Fiscal Years 2001 through 2007, by Subject:
Table 52: Cases Filed under Section 2 of the Voting Rights Act Prior to
Fiscal Year 2001, but Open from Fiscal Years 2001 through 2007, by
Protected class:
Table 53: Percentage of Time the Voting Section Spent on Matters from
Fiscal Year 2001 through 2007, by Fiscal Year:
Table 54: Percentage of Time the Voting Section Spent on Cases from
Fiscal Years 2001 through 2007 by Fiscal Year:
Table 55: Percentage of Time the Voting Section Spent on Plaintiff
Cases from Fiscal Years 2001 through 2007, by Fiscal Year:
Table 56: Percentage of Time the Voting Section Spent on Defendant
Cases from Fiscal Years 2001 through 2007 by Fiscal Year:
Table 57: Voting Section: Historical Track of Available Resources:
Table 58: Number of On-board Staff for Voting Section by Position and
Fiscal Year:
Table 59: Percentage of Attrition for Voting Section by Position and
Fiscal Year:
Table 60: Special Litigation Section Cases Filed Prior to Fiscal Year
2001 by Facility Type:
Table 61: Special Litigation Section Cases Filed Prior to Fiscal Year
2001, by Government Role and Facility Type:
Table 62: Percentage of Hours Spent on Matters by Facility Type and
Fiscal Year:
Table 63: Percentage of Hours the Special Litigation Section Spent on
Institutional Conditions Matters, by Facility Type and Fiscal Year:
Table 64: Percentage of Hours the Special Litigation Section Spent on
Cases, by Area of Responsibility and Fiscal Year:
Table 65: Percentage of Hours the Special Litigation Section Spent on
Institutional Conditions Cases by Facility Type and Fiscal Year:
Table 66: Special Litigation Section: Historical Track of Available
Resources:
Table 67: Number of On-board Staff for Special Litigation Section by
Position and Fiscal Year:
Table 68: Percentage of Attrition for Special Litigation Section by
Position and Fiscal Year:
Table 69: Special Litigation Section Subject Values for Matters and
Cases Recorded in ICM:
Figures:
Figure 1: HUD Referrals from Fiscal Years 2001 through 2007:
Figure 2: Housing Testing Conducted from Fiscal Years 2001 through
2007:
Figure 3: Language Minority Matters Compared with All Matters Initiated
by the Voting Section from Fiscal Years 2001 through 2007:
Figure 4: Number of VRA Section 2 Matters Filed by the Voting Section
for Fiscal Years 2001 through 2007:
Figure 5: Matters Initiated and Closed by the Special Litigation
Section from Fiscal Years 2001 through 2007 by Area of Responsibility:
Abbreviations:
AAG: Assistant Attorney General:
ADA: Americans with Disabilities Act:
CRIPA: Civil Rights of Institutionalized Persons Act of 1980:
DOJ: Department of Justice:
DOL: Department of Labor:
ECOA: Equal Credit Opportunity Act:
EEOC: Equal Employment Opportunity Commission:
FACE: Freedom of Access to Clinic Entrances Act:
FDIC: Federal Deposit Insurance Corporation:
FHA: Fair Housing Act:
FHAP: Fair Housing Assistance Program:
HAVA: Help America Vote Act of 2002:
HUD: Department of Housing and Urban Development:
IDEA: Individuals with Disabilities Education Act:
ICM: Interactive Case Management System:
IT: information technology:
NVRA: National Voter Registration Act:
PROMPT: Proactive Recruitment of Multicultural Professionals for
Tomorrow:
RLUIPA: Religious Land Use and Institutionalized Persons Act of 2000:
SCRA: Servicemembers Civil Relief Act:
STAPS: Submission Tracking and Processing System:
UOCAVA: Uniformed and Overseas Citizens Absentee Voting Act:
USERRA: Uniformed Services Employment and Reemployment Rights Act of
1994:
VRA: Voting Rights Act of 1965, as amended:
14141: Violent Crime Control and Law Enforcement Act of 1994:
[End of section]
United States Government Accountability Office: Washington, DC 20548:
October 23, 2009:
The Honorable John Conyers, Jr.
Chairman:
Committee on the Judiciary:
House of Representatives:
The Honorable Jerrold Nadler:
Chairman:
Subcommittee on the Constitution, Civil Rights and Civil Liberties:
Committee on the Judiciary:
House of Representatives:
The Honorable Melvin L. Watt:
House of Representatives:
Established after the passage of the Civil Rights Act of 1957, the
Civil Rights Division (Division) of the Department of Justice (DOJ) is
the primary federal entity charged with the responsibility of enforcing
federal statutes prohibiting discrimination on the basis of race, sex,
disability, religion, and national origin. Since its establishment, the
Division's mission has expanded to include the enforcement of laws
prohibiting discrimination in employment, housing, voting, public
accommodations, education, and the rights of institutionalized persons.
To carry out these broad enforcement responsibilities, the Division
initiates thousands of matters and hundreds of cases each year.
[Footnote 1] In hearings as recent as 2008, members of Congress raised
issues about how the Division carried out its enforcement
responsibilities from fiscal years 2001 through 2007. Specifically,
these hearings included testimony on the work of 4 of the Division's 11
sections--Employment Litigation, Housing and Civil Enforcement, Voting,
and Special Litigation--over the 7-year period.[Footnote 2] During
these hearings, members raised issues about the sections' activities,
including how they determined which matters to investigate and which
cases to pursue in federal court in the areas of employment, housing,
and voting discrimination. Additionally, members also raised issues
about actions undertaken to protect individuals confined in certain
institutions operated by, or on behalf of, state or local governments
(e.g., mental health facilities, nursing homes, jails and prisons, and
juvenile correctional facilities); efforts to enforce laws prohibiting
religious discrimination; and actions taken to investigate allegations
of police misconduct (e.g., excessive use of force).[Footnote 3]
In the past, we have done work on the Division and its enforcement
activities. In September 2000, we reported on the reasons that the
Division's Employment Litigation, Housing and Civil Enforcement, and
Voting sections pursued a selection of cases and closed a selection of
matters.[Footnote 4] According to Section managers, legal merit (i.e.,
the strength of evidence in a case) was the predominant reason in their
decisions to pursue allegations of discrimination as cases by filing
complaints in federal court. We reported that the reasons generally
given for closing a matter were a lack of merit (e.g., insufficient
evidence to support allegations), no further action was warranted
(e.g., the problem was resolved), the matter was returned to the
referring federal agency for administrative resolution by that agency,
or corrective action was taken by the jurisdiction investigated. In
addition, in February and September 2000, we reported on how the
Division tracked and managed matters and cases using its Case
Management System, including the limitations of that system. We also
described the new Interactive Case Management System (ICM) that the
Division was implementing at the time of our review to replace the Case
Management System.[Footnote 5] As the Division's official case
management system, ICM was to track, count, and measure all matters and
cases from their inception to conclusion. You asked us to review the
enforcement efforts of the Division's Employment Litigation, Housing
and Civil Enforcement, Voting, and Special Litigation sections from
fiscal years 2001 through 2007. Accordingly, this report addresses the
following question for each of the four sections: From fiscal years
2001 through 2007, what activities did the Division undertake to
implement its enforcement responsibilities through its (1) Employment
Litigation Section, (2) Housing and Civil Enforcement Section, (3)
Voting Section, and (4) Special Litigation Section?
To address our objective for each of the four sections, we analyzed
electronic data from ICM on the cases pursued and matters initiated by
each section from fiscal years 2001 through 2007. As part of this
analysis, we took actions to assess the reliability of the ICM data to
ensure they were sufficiently reliable for the purposes of these
objectives. Those actions included ascertaining if, and to what extent,
data were missing in the information provided; determining the
consistency of the data by comparing data in related fields; comparing
the ICM data with matter and case file documents to identify any
differences between the electronic and file information, as described
below; and discussing any anomalies or instances of missing data with
appropriate agency officials to identify possible data entry errors. As
appropriate, we made corrections to the data or used the data in
conjunction with other sources. We found the data to be sufficiently
reliable for presenting overall trends in the sections' enforcement
efforts. Limitations in the data that we identified are noted later in
this report.
To supplement our analysis of the ICM matter data and further assess
the reliability of these data, we compared ICM data with documents
(e.g., memoranda and correspondence) in matter files for a
nongeneralizable sample of closed matters--matters that were concluded--
for each of the four sections.[Footnote 6] Specifically, we reviewed 49
of about 3,300 closed matters for the Employment Litigation Section; 60
of about 1070 closed matters for the Housing and Civil Enforcement
Section; 51 of about 345 closed matters for the Voting Section; and 51
of about 714 closed matters for the Special Litigation Section. In
determining our samples, we randomly selected matters investigated
under each of the statutes enforced by the respective section and took
into consideration the government role (e.g., plaintiff or defendant)
and the subject investigated (e.g., the nature of the alleged
discrimination or violation) to ensure that the sample reflected the
breadth of the work and practices of the respective section from fiscal
years 2001 through 2007. Because our samples were not representative,
we were unable to generalize the results to all closed matters
investigated by these sections during the period of our review.
Nevertheless, our file reviews provided examples of how the matter data
in ICM compared to the same information in the matter files, how the
sections investigated matters, and why the sections closed them.
Additionally, to supplement our analysis of the ICM case data of each
section, as well as our assessment of the reliability of these data, we
analyzed complaints for a comparable number of cases filed in court by
each of the four sections. Specifically, we analyzed 60 complaints from
the Employment Litigation Section, 56 complaints from the Voting
Section, and 31 complaints from the Special Litigation Section, which
constituted all of the complaints that each of those sections filed
during the time period of our review. Given the large number (277) of
complaints filed by the Housing and Civil Enforcement Section during
the 7-year period, we analyzed case documents for a nongeneralizable
sample of 33 cases identified in the ICM data. In selecting the sample
of Housing and Civil Enforcement Section cases to review, we randomly
chose cases that involved each of the statutes enforced by the Section,
and considered other case characteristics, such as the fiscal year in
which the case was filed in court. For all four sections, we compared
the information in the complaints to data contained in ICM (e.g., the
statutes under which the complaints were filed) to identify possible
data entry errors. Although the information we obtained cannot be
generalized to all cases filed by the Housing and Civil Enforcement
Section during the period of our review, it provided us with
information on how the case data in ICM compared to the same
information in the case files and illustrative examples of the types of
cases pursued by this Section.
In addition to the closed matter data, we also analyzed aggregate
matter data for matters initiated from fiscal years 2001 through 2007
by each of the four sections in our review. The Division also provided
aggregate data for the time each of the four Sections reported spending
on matters and cases from fiscal years 2001 through 2007.
We also analyzed DOJ documents, such as annual reports, hearing
statements, speeches, and budget documents, that described the
Division's enforcement efforts (including special initiatives and areas
of focus) from fiscal years 2001 through 2007. We interviewed DOJ
headquarters, Division, and Section officials to obtain information on
four sections' enforcement efforts during the 7-year period.
Furthermore, to identify issues and gain additional perspective on the
sections' litigation efforts, we interviewed representatives of three
nongovernmental civil rights organizations and five experts on the four
civil rights areas covered in our review. We identified these
individuals in part through our review of the transcripts from
oversight hearings in which these individuals had testified. Although
the information we obtained was not generalizable beyond the
individuals we interviewed, these interviews helped enhance our
analysis of the litigation efforts and other activities of the four
sections during the period of our review.
We conducted our work from June 2007 through October 2009 in accordance
with all sections of GAO's Quality Assurance Framework that are
relevant to our objectives. The framework requires that we plan and
perform the engagement to obtain sufficient and appropriate evidence to
meet our stated objectives and to discuss any limitations in our work.
We believe that the information and data obtained, and the analysis
conducted, provide a reasonable basis for any findings and conclusions
in this product. Additional details on our scope and methodology are
contained in appendix I.
Background:
History of the Division and Some of the Major Statutes Enforced:
The Division was established within DOJ as a result of the Civil Rights
Act of 1957[Footnote 7] to enforce all federal statutes affecting civil
rights. The act provided DOJ with new tools to prosecute racial
inequality and political disenfranchisement. The act focused
specifically on voting, authorizing DOJ to bring lawsuits against
anyone who had violated or was about to violate any other person's
voting rights--either the right to vote in federal elections or the
right to be free from racial discrimination in voting. The act was
followed by a series of laws that prohibited discrimination in
employment, credit, housing, public accommodations and facilities,
education, and certain federally funded and conducted programs. These
laws also expanded the classes of individuals entitled to statutory
protection from discrimination--referred to as protected classes--
prohibiting discrimination on bases including gender, religion,
national origin, familial status, and disability. The following are the
some of the goals and purposes articulated by Congress in passing the
major civil rights statutes enforced by the four sections in our
review.
* The Voting Rights Act of 1965, as amended[Footnote 8]:
The purpose of the Voting Rights Act, as reauthorized in 2006, is to
ensure that the right of all citizens to vote is preserved and
protected as guaranteed by the Constitution. Originally enacted in
1965, the Voting Rights Act reflected Congress' intention to rid the
country of racial discrimination in voting.
* The Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)
[Footnote 9]:
UOCAVA was enacted in 1986 to facilitate absentee voting by United
States citizens, both military and civilian, who are overseas, because,
as noted in the House of Representatives report accompanying the bill,
when they fail to receive their absentee ballots in time to vote and
return them, they are clearly and effectively disenfranchised.[Footnote
10]
* National Voter Registration Act (NVRA):[Footnote 11]
In passing the NVRA in 1993, Congress found that discriminatory and
unfair registration laws and procedures can have a direct and damaging
effect on voter participation in federal elections and
disproportionately harm voter participation by various groups,
including racial minorities. The NVRA was intended, in part, to
establish procedures to increase the number of eligible citizens who
register to vote in federal elections as well as to protect the
integrity of the electoral process and ensure accurate and current
voter registration rolls.
* Help America Vote Act of 2002 (HAVA)[Footnote 12]
HAVA was enacted after the events surrounding the November 2000
election, at least partly in response to perceived voting
irregularities in the State of Florida. Problems identified were
related to voter registration lists, absentee ballots, ballot counting,
and antiquated voting systems, among others.
* The Civil Rights Acts of 1964, and 1968[Footnote 13]
The Civil Rights Act of 1964 expanded the Division's authority to
combat racial, ethnic, religious, and gender-based discrimination, by
prohibiting discrimination in public facilities; employment; schools;
and certain places of public accommodation, such as motels,
restaurants, and theaters. The Civil Rights Act of 1968 further
broadened the reach of the Division, addressing civil rights-related
violence, employment discrimination, housing discrimination, and the
rights of Native Americans living on tribal reservations.
* Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA)[Footnote 14]
Following a review after the 1991 Gulf War of the effectiveness of the
reemployment rights set forth in the Vietnam Era Veterans' Readjustment
Assistance Act of 1974,[Footnote 15] Congress passed USERRA. The law
was designed, among other things, to encourage noncareer service in the
uniformed services by eliminating or minimizing the disadvantages to
civilian careers and employment that can result from such service.
USERRA protects individuals as they transition between their military
duties and civilian employment.
* Civil Rights of Institutionalized Persons Act of 1980 (CRIPA)
[Footnote 16]
In passing CRIPA, Congress recognized the commitment of DOJ to ensuring
the adequate care of the Nation's institutionalized citizens, but noted
that federal court decisions had made clear that a federal statute was
necessary to clarify the Attorney General's authority to bring suits on
behalf of such persons. As such, Congress passed CRIPA to give the
Attorney General legal standing to enforce existing constitutional and
federal statutory rights of institutionalized persons and ensure they
are afforded the full measure of protections the Constitution
guarantees them.
* Fair Housing Amendments Act of 1988[Footnote 17]
Originally enacted as part of the Civil Rights Act of 1968, the Fair
Housing Act (FHA) was significantly amended in 1988. In passing the new
statute, the House of Representatives Committee on the Judiciary
explained its purpose as fulfilling the promise made to the American
people in the Civil Rights Act of 1968, which was to proscribe housing
practices that discriminate on account of race, color, national origin
or religion, and as added later, sex.[Footnote 18] The committee noted
that the prior act had failed to provide an effective enforcement
system to make that promise a reality, so the new law was to fill that
void by creating an administrative enforcement system and removing
barriers to court action by private litigants and DOJ. The statute's
purposes were also to extend the principle of equal housing opportunity
to handicapped persons and families with children, all of whom had been
the victims of unfair and discriminatory housing practices.
* Equal Credit Opportunity Act (ECOA)[Footnote 19]
In passing the first version of ECOA, Congress found "a need to insure
that the various financial institutions and other firms engaged in the
extension of credit exercise their responsibility to make credit
available with fairness, impartiality and without discrimination on the
basis of sex or marital status."[Footnote 20] Two years later, in 1976,
the categories of race, color, religion, national origin, and age were
added to the law, as well as prohibitions against discrimination based
on the receipt of public assistance benefits and the exercise of rights
under the Consumer Credit Protection Act.[Footnote 21]
* Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)
[Footnote 22]
As explained upon the bill's introduction in the Senate, RLUIPA was
intended to protect religious liberty from unnecessary governmental
influence and represented an attempt to respond to the Supreme Court's
decision in the case of City of Boerne v. Flores,[Footnote 23] in which
it had held that Congress lacked the authority to enact provisions of
the Religious Freedom Restoration Act.[Footnote 24]
* Violent Crime Control and Law Enforcement Act of 1994:
The Violent Crime Control and Law Enforcement Act of 1994, included a
provision--codified at 42 U.S.C. § 14141--which responded to judicial
decisions that had denied both individual victims and DOJ standing to
pursue relief for police misconduct. The law conferred standing upon
the Attorney General to bring civil actions for prospective relief
against governmental authorities for unconstitutional patterns or
practices, which was a recognized gap in the federal scheme for
protecting constitutional rights.[Footnote 25]
Organization of the Division and Staffing Levels for the Employment
Litigation, Housing and Civil Enforcement, Special Litigation, and
Voting Sections:
In carrying out its responsibilities, the Division is headed by an
Assistant Attorney General, who reports to the Associate Attorney
General. The Office of the Assistant Attorney General establishes
policy and provides executive direction and control over litigative
enforcement and administrative management activities in the
Division.[Footnote 26] The Division has 11 sections--10 program-related
sections and an Administrative Management section. Eight of the 10
program sections have enforcement responsibilities over particular
subject areas that include employment, housing, voting, criminal
violations, education, immigrant-related discriminatory employment
practices, disability rights, and institutional conditions. Of the
remaining two sections, one is responsible for coordinating federal
agencies' civil rights enforcement efforts, and the other handles
appellate matters and provides legal guidance. Each of the enforcement
sections, with the exception of the Office of Special Counsel, is
headed by a section chief and has several deputy section chiefs. This
report focuses on four of the Division's program sections: Employment
Litigation, Housing and Civil Enforcement, Voting, and Special
Litigation.
According to the Acting Assistant Attorney General and the Division's
budget official, changes in the Department's priorities from fiscal
years 2001 through 2007 affected the resources available to the
sections. Specifically, officials said that the Attorney General had
realigned resources in 2005 to reflect the increased prioritization of
DOJ's counterterrorism efforts, which became DOJ's top strategic goal.
As a result, the Division, like many other DOJ components, had lost
staff since 2002. Table 1 presents the number of permanent positions
and salaries and expenses available from fiscal years 2001 through
2007, by fiscal year, to each of the four sections in our review.
(Appendixes II-V provide additional information on resources available
to each section.)
Table 1: Employment Litigation, Housing and Civil Enforcement, Voting,
and Special Litigation Sections' Available Resources for Permanent
Positions and Salaries and Expenses from Fiscal Years 2001 through
2007:
Employment Litigation Section:
Permanent positions:
Fiscal year: 2001: 62;
Fiscal year: 2002[A]: 62;
Fiscal year: 2003[B]: 62;
Fiscal year: 2004[C]: 62;
Fiscal year: 2005[D]: 61;
Fiscal year: 2006[E]: 61;
Fiscal year: 2007[F]: 61.
Salaries and Expenses:
Fiscal year: 2001: 6,804;
Fiscal year: 2002[A]: 7,515;
Fiscal year: 2003[B]: 7,797;
Fiscal year: 2004[C]: 8,056;
Fiscal year: 2005[D]: 8,226;
Fiscal year: 2006[E]: 9,279;
Fiscal year: 2007[F]: 9,963.
Housing and Civil Enforcement Section:
Permanent positions:
Fiscal year: 2001: 100;
Fiscal year: 2002[A]: 100;
Fiscal year: 2003[B]: 100;
Fiscal year: 2004[C]: 100;
Fiscal year: 2005[D]: 98;
Fiscal year: 2006[E]: 98;
Fiscal year: 2007[F]: 98.
Salaries and Expenses:
Fiscal year: 2001: 13,295;
Fiscal year: 2002[A]: 13,963;
Fiscal year: 2003[B]: 14,278;
Fiscal year: 2004[C]: 14,594;
Fiscal year: 2005[D]: 14,342;
Fiscal year: 2006[E]: 13,541;
Fiscal year: 2007[F]: 14,168.
Voting Section:
Permanent positions:
Fiscal year: 2001: 105;
Fiscal year: 2002[A]: 105;
Fiscal year: 2003[B]: 105;
Fiscal year: 2004[C]: 105;
Fiscal year: 2005[D]: 102;
Fiscal year: 2006[E]: 102;
Fiscal year: 2007[F]: 98.
Salaries and Expenses:
Fiscal year: 2001: 12,158;
Fiscal year: 2002[A]: 13,242;
Fiscal year: 2003[B]: 13,596;
Fiscal year: 2004[C]: 14,123;
Fiscal year: 2005[D]: 13,720;
Fiscal year: 2006[E]: 11,758;
Fiscal year: 2007[F]: 11,810.
Special Litigation Section:
Permanent positions
Fiscal year: 2001: 63;
Fiscal year: 2002[A]: 73;
Fiscal year: 2003[B]: 73;
Fiscal year: 2004[C]: 73;
Fiscal year: 2005[D]: 72;
Fiscal year: 2006[E]: 72;
Fiscal year: 2007[F]: 72.
Salaries and Expenses:
Fiscal year: 2001: 7,500;
Fiscal year: 2002[A]: 8,920;
Fiscal year: 2003[B]: 9,799;
Fiscal year: 2004[C]: 10,048;
Fiscal year: 2005[D]: 10,233;
Fiscal year: 2006[E]: 12,096;
Fiscal year: 2007[F]: 12,656.
Source: Civil Rights Division:
[A] Fiscal year 2002 includes a $95,000 rescission.
[B] Fiscal year 2003 includes a $683,000 rescission.
[C] Fiscal year 2004 includes a $1,158,000 rescission, partially offset
by the restoration of the fiscal year 2003 $683, 000 rescission.
[D] Fiscal year 2005 includes two rescissions totaling $1,458,000, and
subsequent transfers of $228,000 (Office of Immigration and Litigation
$95,000) and United States Attorneys ($133,000), and a reduction of 15
positions (8 attorneys) from civil enforcement activities.
[E] Fiscal year 2006 includes two rescissions totally $1,410,000 and a
transfer of $443,000 to the U.S. Attorneys.
[F] Fiscal year 2007 includes an across-the board reduction of
$1,057,000 and a transfer of 4 positions and $576,000 to U.S.
Attorneys.
[End of table]
Process for handling matters and cases:
All four of the sections undertake investigations on behalf of
individuals alleging a single act of discrimination against a person or
persons as well as investigations that tend to be larger and more
complex. This second type of investigation is referred to in the
Employment Litigation, Housing and Civil Enforcement, and Special
Litigation sections as a pattern or practice investigation and in the
Voting Section as a systemic investigation. A pattern or practice case
is one in which the plaintiff attempts to show that the defendant--such
as an employer, provider of housing, or correctional institution--has
systematically engaged in discriminatory or unlawful activities,
especially by means of policies and procedures. The number of incidents
necessary to show a pattern or practice depends upon the nature of the
right protected and the nature of the ordinary violations of that
right. These cases are factually and legally complex and, according to
Division officials, time-consuming and resource-intensive. While the
Voting Section does not have pattern or practice authority like the
other three sections, according to Section officials, cases that the
Voting Section initiates typically address systemic problems in the
method of election of a given jurisdiction or other discriminatory
voting practices. According to the Division, these cases are similar in
scope and complexity to pattern or practice cases.
The Division's process for handling matters and cases in the four
sections covered in our review generally varies by section because of
the structure of the statutes or provisions within a statute that each
section enforces. However, each section's process shares some common
steps. For example, all four sections receive referrals of allegations
of discrimination from numerous sources, such as other federal
agencies, private attorneys, Members of Congress, citizens, community
organizations, and advocacy groups. All four sections may also initiate
investigations as a result of information obtained from section survey
and outreach work, demographic data, U.S. Attorney's Offices, media
sources, and other sources of information about discrimination.
However, the extent to which the sections have discretion to pursue
particular matters varies by section. For example, the Employment
Litigation section receives referrals of individual charges of
discrimination against state and local government employers under
section 706 Title VII of the Civil Rights Act from the Equal Employment
Opportunity Commission (EEOC), and has the discretion either to close
the matter with a letter to the charging party (known as a right-to-sue
letter)[Footnote 27] after reviewing the charge[Footnote 28] or
consider the matter for possible litigation. In contrast, the Housing
and Civil Enforcement section receives certain referrals under Fair
Housing Act from the Department of Housing and Urban Development (HUD),
which DOJ is required by statute to file in federal district court.
These non-discretionary referrals are called "election cases" because
either the complaining party or the respondent has elected to have the
case heard in federal court rather than through a HUD administrative
hearing. The Voting Section generally does not receive referrals from
other federal agencies and, like the other three sections, has the
authority to initiate its own litigation. The Special Litigation
Section has discretion under all the statutes it enforces to recommend
or not to recommend an investigation or case; therefore, the Section
considers all its work to be self-initiated.
Generally, all four sections may initiate certain types of
investigations, but for other types, they must obtain the approval of
the Office of the Assistant Attorney General. For example, in the
Employment Litigation Section, the Section Chief can approve opening an
investigation on charges of discrimination that the EEOC referred to
DOJ under section 706 of Title VII.[Footnote 29] A Deputy Section Chief
initially reviews the referrals and brings those that have potential
for litigation to the attention of the Section Chief. The Housing and
Civil Enforcement Section can also initiate investigations based on
most HUD referrals, but as of 2007 had to obtain the approval of the
Office of the Assistant Attorney General to initiate certain
investigations, such as allegations of religious discrimination in land
use regulation under RLUIPA. Once a section decides to investigate a
referral or allegation of discrimination, the section chief or attorney
managers assigns a trial attorney to conduct the investigation. Upon
completion of the investigation, the trial attorney makes a
recommendation to the Deputy Section Chief or Section Chief on whether
to file a lawsuit, close the matter, or participate in some other
manner,[Footnote 30] and the Section Chief makes the final decision
whether to close an investigation that has been authorized by the
Assistant Attorney General or recommend a lawsuit or other
participation to the Assistant Attorney General. If the Section Chief
decides not to pursue a referral or allegation of discrimination the
section closes the matter and notifies all appropriate parties.
[Footnote 31]
In all four sections, if the Section Chief decides to pursue a matter
and recommend filing a complaint to initiate a lawsuit, then the trial
attorney prepares a justification package.[Footnote 32] The contents of
this package vary by section, but are to include a justification
memorandum for pattern and practice cases. This memorandum includes the
facts of the case, the legal argument for filing a lawsuit, and the
proposed complaint to be filed in court alleging a violation of civil
rights laws. Each package is reviewed and approved by an attorney
manager and the section chief. A Deputy Assistant Attorney General then
reviews the justification package, and forwards it to the Assistant
Attorney General for final review and approval. Depending on the type
of case, the section may also send the justification package to the
U.S. Attorney's Office for the district where the lawsuit is to be
filed for review and concurrence. Pursuant to statutory requirements,
the Attorney General is to authorize some justification packages for
the Special Litigation Section.
If the Assistant Attorney General approves the justification package,
the Division notifies the defendant by letter of DOJ's intent to file a
lawsuit.[Footnote 33] Subsequently, the trial attorney and the
defendant often have presuit settlement discussions.[Footnote 34] If
they reach a presuit settlement, a settlement document stating the
points of agreement is prepared, reviewed and approved by the Office of
the Assistant Attorney General, and signed by all parties. The
settlement document may be filed in the federal district court along
with the complaint for approval by the judge. In these instances, the
settlement document is called a consent decree. A settlement entered
into by the Employment Litigation and Housing and Civil Enforcement
sections is usually a consent decree. The Section or the relevant U.S.
Attorney's Office monitors the settlement agreement for compliance,
where appropriate. If the presuit settlement discussions do not result
in a settlement, the section files the complaint in federal district
court and the parties engage in litigation conducted pursuant to the
federal rules of civil procedure and evidence. According to Section
officials, defendants often settle prior to or during a trial. If a
trial is held, the plaintiff or defendant can appeal the decision, and
then the section works closely with the Division's Appellate Section,
which assumes responsibility for the appellate stage of the case. In
certain instances, the sections may conclude a matter without the
filing of an approved complaint by reaching an out-of-court settlement
agreement with the opposing party. For example, the Special Litigation
Section may resolve a matter in this manner, but leave the matter open
and monitor compliance with the agreement; thus, the matter never
becomes a case, although it has been resolved by settlement between the
two parties.
If the Assistant Attorney General does not approve the justification
package, the trial attorney generally prepares a closing memorandum (or
another form of documentation) and notifies the charging party,
respondent or referring agency, as appropriate, that DOJ is not filing
a lawsuit. The matter is then closed.
In pursuing investigations and cases, the four sections may play a
number of different roles depending on the legal and factual
circumstances. While the Division may act as a plaintiff--with the
section representing the United States in a case whereby it brings a
lawsuit against an individual or entity based on unlawful
discrimination--it may also be involved in a case in other ways. A
section may act as amicus curiae, or "friend of the court," by filing a
brief in an action in which it is not a party, because the Division has
a strong interest in the subject matter. The section may also intervene
as a party in a case--either on the side of the plaintiff or the
defendant--because the constitutionality of a federal statute has been
questioned or it has another interest in the outcome of the case. The
section may also participate in a case as the defendant, representing
the United States in lawsuits brought by plaintiffs against federal
agencies challenging the enforcement of federal laws.
The Division's Interactive Case Management System Tracks Matters and
Cases:
Over the past 20 years, the Division has used various case management
systems to manage its workload. In October 2000, the Division
implemented the Interactive Case Management System (ICM) as its
official system to track, count, and capture performance measurement
information for all matters and cases from their inception to their
conclusion and to assist staff in their case work. According to
Division documentation, ICM was also designed to serve as a tool for
senior management to oversee the work of the Division and to assist
senior managers in reporting accurate matter and case data at all
levels of the organization, improving accountability, analyzing the
Division's performance, and responding to congressional inquiries about
the work of the Division. Additionally, ICM was designed to capture and
report on the level of effort that attorneys and professionals dedicate
to investigations and case-related tasks to help Division managers
oversee attorneys' work.
In September 2009, as part of our work on the Division's enforcement
efforts from fiscal years 2001 through 2007, we reported on the extent
to which the Division had conducted and documented assessments of ICM's
performance since its implementation in fiscal year 2001, and
additional data the Division could collect using ICM to assist in
reporting on its enforcement efforts.[Footnote 35] We reported that in
accordance with DOJ guidance that encourages components to conduct
assessments of electronic data systems at least once a year, the
Division reported conducting annual assessments of ICM's performance
from fiscal years 2001 through 2006; although the Division has not
assessed the performance of ICM since fiscal year 2006 and lacks
documentation of prior assessments. We also reported that opportunities
exist to collect additional data that have been consistently requested
by Congress for oversight purposes, which would improve the Division's
use of ICM for reporting on the four sections' enforcement efforts. To
strengthen the Division's ability to manage and report on the four
sections' enforcement efforts, we recommended that the Acting Assistant
Attorney General of the Division (1) conduct and respond to annual
assessments of the performance of the Division's case management system
and ensure that these assessments are documented and maintained so they
can be used to improve the performance of the system; (2) require
sections to record data on protected class and subject in the
Division's case management system in order to facilitate reporting of
this information to Congress; and (3) as the Division considers options
to address its case management system needs, determine how sections
should be required to record data on the reasons for closing matters in
the system in order to be able to systematically assess and take
actions to address issues identified. DOJ concurred with our
recommendations.
Results-in-Brief:
From fiscal years 2001 through 2007, the Employment Litigation Section
initiated more than 3,200 matters and filed 60 cases as plaintiff under
federal statutes prohibiting discrimination in employment based on
race, color, sex, religion, national origin, and military service, and
retaliation against a person for filing a charge of discrimination,
participating in an investigation, or opposing discriminatory
practices. About 90 percent of the more than 3,200 matters the section
initiated (2,846 of 3,212) alleged violations of section 706 of Title
VII of the Civil Rights Act, which involve individual claims of
discrimination. Additionally, about 96 percent of the matters (3,087 of
3,212) initiated were as a result of section 706 referrals from the
EEOC and the Department of Labor (USERRA).[Footnote 36] As such, much
of the section's matters are driven by what the section receives from
other agencies. Consequently, the number of section 706 and USERRA
matters initiated declined in the latter fiscal years, which section
officials attributed to a decline in referrals from EEOC and the
Department of Labor, respectively.Because the Section did not require
staff to maintain information in ICM on the subject of the matter, such
as harassment and retaliation, or the protected class of the
individuals, such as race and religion, who were allegedly
discriminated against, we could not determine this information for over
80 percent of the matters the section closed from fiscal years 2001
through 2007. In our September 2009 report on ICM, we recommended that
the Division require the Sections to record data on protected class and
subject in the Division's case management system in order to strengthen
its ability to account for its enforcement efforts.[Footnote 37] DOJ
concurred with our recommendation. In addition to the matters
initiated, the section filed 60 cases in court as plaintiff from fiscal
years 2001 through 2007, and filed more than half (33 of 60) under
section 706 of Title VII. According to Employment Litigation section
officials, the primary reason for pursuing a case was that the case had
legal merit, i.e., the strength of evidence in the case. The majority
of the section's cases (18 of 33) involved sex discrimination against
women, and one-third (11 of 33) involved claims of race discrimination,
[Footnote 38] with six cases filed on behalf of African Americans and
five cases filed on behalf of Whites. For example, in March 2005, the
section filed a lawsuit alleging that the city of Cairo, Illinois
discriminated against a female employee by sexually harassing her,
denying her a promotion, and terminating her employment because she
refused sexual advancements from her supervisors. Most of the 11
pattern or practice cases the Section filed during the 7-year period
involved claims of discrimination in hiring (9 of 11) and the most
common protected class was race (7 of 11) , with four cases filed on
behalf of African Americans, two on behalf of Whites, and one on behalf
of American Indians or Alaska Natives. For example, in January 2001,
the section filed a lawsuit alleging that the Delaware State Police
Department was discriminating against African Americans in hiring for
trooper positions.[Footnote 39] Of the 16 USERRA cases the Section
filed from fiscal year 2005--the year the section assumed
responsibility for these cases--through 2007, more than half (10 of 16)
alleged violations of reemployment rights and/or discharge under
USERRA.
From fiscal years 2001 through 2007, the Housing and Civil Enforcement
Section initiated 947 matters and participated in 277 cases under
federal statutes prohibiting discrimination in housing; credit
transactions; and in certain places of public accommodation (e.g.,
hotels).[Footnote 40] The Section enforced provisions of the Fair
Housing Act (FHA), the Equal Credit Opportunity Act (ECOA), and the
land use provisions of the Religious Land Use and Institutionalized
Persons Act (RLUIPA), among others. According to Housing Section
officials, the Section considers legal merit when deciding whether to
pursue a matter as a case as well as (1) whether it looks like the
matter will be resolved locally, (2) whether litigation would resolve a
significant statutory issue; and (3) whether the plaintiff has the
resources to proceed on its own should the Section choose not to get
involved. During the 7-year period, the section initiated more matters
(517 of 947) and participated in more cases (257 of 277) involving a
pattern or practice of discrimination under FHA than any other statute
or type of matter or case. More than half (517 of 947) of the matters
initiated involved an allegation under the FHA,[Footnote 41] primarily
alleging discrimination on the basis of race or disability and
involving land/zoning/local government or rental issues.[Footnote 42]
For example, the section investigated a matter in which a landlord of
an apartment complex allegedly turned away families with children or
assigned them to a particular floor. According to Section officials,
the large number of land/zoning/local government matters it initiated
was due to the Section regularly receiving referrals from HUD as well
as complaints from other entities involving these issues. Over the 7-
year period, the section experienced a general decline of election
matters involving an allegation under the FHA derived from HUD
referrals, with the fewest number of total matters, 106, in fiscal year
2007. Section officials attributed the decrease, in part, to a decline
in referrals from HUD as a result of more complaints of housing
discrimination being handled by state and local fair housing agencies
instead of HUD. The majority (250 of 269) of cases that the Section
filed in court as plaintiff involved a claim under FHA--more than half
(132 of 250) of which involved a pattern or practice of discrimination.
Additionally, more than half (146 of 250) of the FHA cases involved
rental issues and nearly half (115 of 250) were brought on behalf of
persons with a disability. For example, one of the complaints we
reviewed was filed on behalf of a man with a disability who had filed a
complaint with HUD against the property manager and owner of his
apartment complex, alleging the defendants discriminated against him on
the basis of his physical impairments when they unreasonably prolonged
meeting his request for a ground floor apartment and did not provide
the reasonable accommodation of handicapped parking spaces. The number
of cases filed by the section generally decreased from fiscal years
2001 through 2007 from 53 to 35, which section officials generally
attributed to fewer election cases being referred from HUD. Overall,
almost 70 percent (185 of 277) of the cases the section participated in
from fiscal years 2001 through 2007 originally derived from a HUD
referral, but declined to about 50 percent (17 of 35) of cases filed in
fiscal year 2007.
From fiscal years 2001 through 2007, the Voting Section initiated 442
matters and filed 56 cases to enforce federal statutes that protect the
voting rights of racial and language minorities, disabled and
illiterate persons, and overseas and military personnel and addressed
such issues as discriminatory voter registration practices. It enforced
the VRA; the NVRA; UOCAVA; and beginning in fiscal year 2002, HAVA. The
Voting Section has the discretion to initiate a matter or pursue a case
under all of its statutes, with the exception of the review of changes
in voting practices or procedures, which it is statutorily required to
conduct under section 5 of the VRA. During the 7-year period, the
Section initiated more matters (367 of 442) and (39 of 56) cases under
the VRA than the other statutes it enforced. The Section initiated most
matters (246 of 367) on behalf of language minority groups, primarily
Spanish speakers (203 of 246). For example, in one matter, the Section
obtained copies of bilingual general election materials from the
elections administrator to determine whether the jurisdiction was
complying with requirements that it provide written materials and other
assistance for elections (e.g., ballots) in the language of the
applicable minority group. The Section also initiated 162 matters under
section 2 of the VRA, which prohibits voting practices or procedures
that discriminate on the basis of race, color, or membership in a
language minority group. About half of these matters were initiated on
behalf of language minority groups (80 of 162), primarily Spanish
speakers (71 of 80) and about half involved a racial minority (88 of
162), primarily African American voters (71 of 88).[Footnote 43] For
example, one matter involved allegations that African American students
at a college and a university faced discriminatory treatment in the
registration process for the 2000 Presidential election. The majority
of the cases that the Section filed in court under the VRA were on
behalf of language minority groups (30 of 56 cases), primarily Spanish
speakers (27). While cases involving language minority groups were
filed under various VRA provisions, the largest number of cases (24 of
30) involved claims under section 203 alleging that the covered
jurisdiction had failed to provide voting-related materials or
information relating to the electoral process in the language of the
applicable minority group. For example, in one case, the section
alleged that, in conducting elections, a city, where over 45 percent of
the total citizen voting age population was Hispanic, had not
translated fully into Spanish written election-day materials and
information, such as the official ballot, forms for voters with
disabilities, and signs identifying a polling place's location, among
others. The Section filed 13 cases that involved a claim under section
2 of the VRA, 5 on behalf of language minority groups and 10 on behalf
of racial minority groups--6 on behalf of Hispanics and 3 on behalf of
African Americans.[Footnote 44] For example, the section alleged that
certain voting practices--such as hostile acts directed at Hispanic
voters or requiring Hispanic voters to prove their citizenship without
credible evidence calling into question their citizenship--were in
violation of section 2. According to aggregate data on time spent on
matters, cases, and other activities for the 7-year period, the Voting
Section reported devoting the greatest total percentage of time (52
percent) to administrative reviews of proposed changes in the voting
practices and procedures of certain jurisdictions covered under section
5 of the VRA, such as a proposed redistricting plan--which would make
changes to the geographic boundaries of voting districts--or the
relocation of a polling place, as compared with cases (33 percent) or
matters (14 percent).
From fiscal years 2001 through 2007, the Special Litigation Section
initiated 693 matters and participated in 33 cases enforcing federal
civil rights statutes in 4 areas--institutional conditions, the conduct
of law enforcement agencies, access to reproductive health facilities
and places of worship, and the exercise of religious freedom of
institutionalized persons. The Section enforced the Civil Rights of
Institutionalized Persons Act (CRIPA), Violent Crime Control and Law
Enforcement Act (14141), Freedom of Access to Clinic Entrances (FACE),
and the provisions of the Religious Land Use and Institutionalized
Persons Act (RLUIPA) protecting the rights of free exercise of religion
for institutionalized persons. The Section could bring cases involving
the exercise of religious freedom under RLUIPA and access to
reproductive health facilities under FACE, on behalf of individuals.
However, the Section was statutorily required to file only cases that
alleged a pattern or practice involving institutional conditions under
CRIPA and 14141 and of police misconduct under 14141. Because the
Section had discretion under all these statutes to pursue an
investigation or case, it considered all of its work to be self-
initiated. During the 7-year period, the Section initiated 693 matters
and participated in 33 cases under federal statutes corresponding to
its four areas of responsibility, but these matters and cases primarily
involved institutional conditions. Of the 693 matters initiated, the
Section concluded or closed 544 matters. The majority of the closed
matters (373 of 544) concerned a wide range of allegations about
institutional conditions in various types of facilities--adult
corrections (e.g., jails and prisons), health and social welfare (e.g.,
nursing homes, mental health facilities, facilities for persons with
developmental disabilities, and group foster homes), and juvenile
corrections (juvenile correctional facilities or entire juvenile
correctional systems). The allegations included failure to provide
adequate medical, mental health, and nursing care services to
residents; staff's physical abuse of residents; and overcrowding in the
facility. The Section also initiated and closed 129 matters involving
the conduct of law enforcement agencies, specifically allegations of
police misconduct in law enforcement agencies such as police use of
excessive force (i.e., more than necessary to subdue a citizen. During
the 7-year period, the Section participated in 33 cases--31 as
plaintiff, 1 as defendant, and 1 as defendant-intervenor. The majority
(27 of 31) of the cases that the Section filed as plaintiff alleged a
pattern or practice of egregious and flagrant conditions that deprived
persons institutionalized in health and social welfare (13); juvenile
corrections (7), and adult corrections (7) facilities of their
constitutional or federal statutory rights. Cases involving juvenile
correctional facilities constituted the largest number (7) of any one
type of facility and included such allegations as a pattern or practice
of failing to protect inmates from undue risk of suicide and abuse from
staff; failure to provide adequate mental health, special education,
rehabilitation therapy, or psychiatric services; use of isolation or
physical restraints; and failure to provide the number of professional
staff legally required for that type of facility. According to Special
Litigation Section officials, the Section filed two of the seven cases
because the respective jurisdiction refused to cooperate with the
Section and settle the case. The Section filed the other cases, because
Section officials believed conditions in the juvenile facilities were
so egregious that filing a case was the proper avenue for the Section
to monitor the respective jurisdictions' remedial efforts. In addition,
the Section brought cases against two city and one county police
department. All three cases alleged police use of excessive force.
According to aggregate data on the time spent on matters and cases from
fiscal years 2001 through 2007, the Section reported devoting the
greatest percentage of time to (62 percent) matters and cases (81
percent) involving institutional conditions, as compared with its other
areas of responsibility.
We provided a draft of this report to the Attorney General for review
and comment. DOJ provided technical comments, which we incorporated
into the report as appropriate.
The Employment Litigation Section Investigated More Matters and
Participated in More Individual Employment Discrimination Cases under
Section 706 of Title VII than under Other Statutory Provisions, and
Devoted Most of its Time to Pattern or Practice Cases:
From fiscal years 2001 through 2007, the Employment Litigation Section
enforced federal civil rights statutes that prohibit discrimination in
employment based on race, color, sex, religion, national origin, and
military service, and retaliation against a person for filing a charge
of discrimination, participating in an investigation, or opposition
discriminatory practices. During the 7-year period, the section
initiated more matters (2,846 of 3,212) and participated in more cases
filed in court as a plaintiff (33 of 60) under section 706 of Title VII
of the Civil Rights Act, based on claims of individual employment
discrimination referred from the EEOC, than other statutory provisions.
A majority of these cases involved individual claims of sex
discrimination on behalf of women (18 of 33), and about one-third (11
of 33) involved claims of race discrimination. Most of the pattern or
practice cases filed by the Section during the seven year period
involved claims of discrimination in hiring (9 of 11) and the most
common protected class was race (7 of 11).
The Employment Litigation Section Had Various Statutory
Responsibilities from FY 2001 through FY 2007:
The Employment Litigation Section is responsible for enforcing civil
rights laws that prohibit discrimination in employment based on race,
color, sex, religion, national origin, and military service, and
retaliation against a person for filing a charge of discrimination,
participating in an investigation, or opposing discriminatory
practices. Two major statutes enforced by the Employment Litigation
Section are Title VII of the Civil Rights Act and USERRA. The Section
enforced Title VII from fiscal years 2001 through 2007. The Section
began enforcing USERRA in September 2004 after the Attorney General
transferred responsibility for USERRA enforcement to the Civil Rights
Division. The Assistant Attorney General for Civil Rights delegated
USERRA enforcement authority to the Employment Litigation section. The
Employment Litigation Section initiates Title VII litigation in two
ways--(1) under section 706 in response to referrals from the EEOC or
(2) under section 707 at the discretion of the Section. The Section
initiates USERRA litigation in response to referrals from the
Department of Labor. Table 2 provides a description of the section's
responsibilities under Title VII of the Civil Rights Act and USERRA.
(Appendix II provides information on other statutes enforced by the
Employment Litigation Section.)
Table 2: Statutory provisions enforced by the Employment Litigation
Section from fiscal years 2001 through 2007.
Statutory provision: Section 706 of Title VII of Civil Rights Act, 42
U.S.C. § 2000e-5; Description of responsibilities: Title VII prohibits
discrimination in employment based on race, color, sex, religion and
national origin. Individuals who believe they were unlawfully denied an
employment opportunity or otherwise discriminated against by an
employer may file charges with the EEOC. If after investigation the
EEOC determines that a charge made against a state or local government
has merit and efforts to obtain voluntary compliance are unsuccessful,
the EEOC must refer the charge to DOJ to bring an enforcement action.
Section 706 provides the Attorney General with the authority to file
suit based upon an individual charge of discrimination that EEOC has
referred to DOJ. If the section decides not to initiate litigation, it
is required under Title VII to notify the charging party of his or her
right to file a private lawsuit. Section 706 also grants the Attorney
General the authority to intervene in private cases against a public
employer that are of general public importance.
Statutory provision: Section 707 of Title VII of Civil Rights Act, 42
U.S.C. § 2000e-6; Description of responsibilities: Section 707 provides
the Attorney General with authority to bring lawsuits against state and
local governments where there is reason to believe that there has been
a pattern or practice of employment discrimination.
Statutory provision: The Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301-34; Description of
responsibilities: USERRA prohibits discrimination in employment and
related practices based on military service. The Department of Labor
(DOL) investigates USERRA complaints, makes a determination as to
whether the complaint has merit, and attempts to resolve voluntarily
those complaints that are deemed meritorious. If the DOL is unable to
resolve a complaint, at the request of the servicemember, DOL will
refer the complaint to DOJ.
Source: GAO analysis of federal laws.
[End of table]
The Section Initiated More Matters and Participated in More Cases under
Section 706 of Title VII Based on Claims of Individual Employment
Discrimination than Other Statutory Provisions:
The Section Initiated Most Matters Under Section 706 and Most Matters
Resulted from Agency Referrals:
The Employment Litigation Section initiated over 3,200 matters from
fiscal years 2001 through 2007. About 90 percent of the more than 3,200
matters the Section initiated (2,846 of 3,212) alleged violations of
section 706 of Title VII. Of the total time charged to matters during
the 7-year period, about 65 percent was devoted to section 706 matters,
including time charged to ongoing matters initiated prior to fiscal
year 2001.[Footnote 45] Additionally, the Section initiated about 96
percent of the matters (3,087 of 3,212) as a result of section 706
referrals from the EEOC and USERRA referrals from the Department of
Labor.As such, much of the section's matters are driven by what the
section receives from other agencies. As shown in Table 3, the number
of section 706 and USERRA matters initiated declined in the latter
fiscal years, which a Section Chief attributed to a decline in
referrals from EEOC and the Department of Labor, respectively.[Footnote
46] In addition to initiating matters as a result of referrals from
other federal agencies, the Section also has the authority to initiate
section 707 pattern or practice matters at its own discretion. The
Section initiated more than 100 pattern or practice matters based on
its analysis of data on employers or job classifications; referrals
from congressional members, citizens, and civil rights organizations;
media reports; and other sources.[Footnote 47] Section officials stated
that these matters have been a longstanding priority for the Section.
Table 3: Matters Employment Litigation Section initiated by statute
from fiscal years 2001 through 2007.
Statute: Section 706;
FY 2001: 486;
FY 2002: 494;
FY 2003: 512;
FY 2004: 377;
FY 2005: 430;
FY 2006: 269;
FY 2007: 278;
Total: 2,846.
Statute: Section 707;
FY 2001: 7;
FY 2002: 5;
FY 2003: 13;
FY 2004: 55[B];
FY 2005: 4;
FY 2006: 5;
FY 2007: 16;
Total: 105.
Statute: USERRA;
FY 2001: n/a;
FY 2002: n/a;
FY 2003: n/a;
FY 2004: n/a;
FY 2005: 110;
FY 2006: 75;
FY 2007: 56;
Total: 241.
Statute: Other[A];
FY 2001: 3;
FY 2002: 6;
FY 2003: 0;
FY 2004: 0;
FY 2005: 1;
FY 2006: 2;
FY 2007: 8;
Total: 20.
Statute: Total;
FY 2001: 496;
FY 2002: 505;
FY 2003: 525;
FY 2004: 432;
FY 2005: 545;
FY 2006: 351;
FY 2007: 358;
Total: 3,212.
Source: Division ICM data.
Note: n/a--not applicable:
[A] Other includes matters referred to the Section involving Section
709 of Title VII, which requires employers to file certain reports with
the EEOC, and matters involving section initiatives.
[B] Thirty-nine of the 55 matters initiated in fiscal year 2004 were
related, and one of the matters initiated in fiscal year 2004 also
involved the Fourteenth Amendment.
[End of table]
According to data maintained by the Section in ICM, the Employment
Litigation Section conducted investigations for about 390 of the
approximately 3,100 closed matters the section initiated from fiscal
years 2001 through 2007.[Footnote 48] Section officials stated that
professional judgment, recommendations made by the EEOC or the
Department of Labor (in the case of EEOC and USERRA charge referrals),
strength of the evidence, and Section resources are considered when
deciding whether to recommend an investigation. Section officials
acknowledged that the data maintained in ICM may understate the number
of matters investigated because the stage field--which tracks the
history of a matter--may not yet have been updated to indicate that an
investigation had been authorized. Additionally, officials stated that
some matters included in the Section's ICM data were referred to the
U.S. Attorney's Office for the Southern District of New York, which has
communicated to the Section its interest in receiving Title VII and
USERRA referrals.[Footnote 49]
Information on the Characteristics of the Matters Closed by the
Employment Litigation Section and the Reasons for Closing Each Matter
Was Not Readily Available:
Because the Section did not require staff to maintain information in
ICM on the subjects of matters and the protected classes of the
individuals who were allegedly discriminated against, we could not
determine this information for the majority of the matters closed from
fiscal years 2001 through 2007. Specifically, the subject field--the
field that provides information on the nature of the allegation, e.g.,
harassment and retaliation--was not captured in ICM for about 85
percent of the matters and the protected class field, e.g., race and
religion, was not captured in ICM for about 83 percent of the matters.
According to Section officials, staff are not required to maintain this
information--information that is key to ensuring the Division executes
its charge to enforce statutes prohibiting discrimination on the basis
of protected class--in ICM because the Section does not view this
information as necessary for management purposes. Additionally,
Division officials stated that when planning for ICM's implementation
with section officials, the Division did not consider requiring
sections to provide these data. As previously discussed, in our
September 2009 report on ICM, we recommended that the Division require
the Employment Litigation, Housing and Civil Enforcement, and Voting
sections to record data on protected class and all four sections to
record data on subject in the Division's case management system in
order to strengthen its ability to account for its enforcement
efforts.[Footnote 50] The Division concurred with our recommendation.
Information on protected class and subject, however, was available for
most of the approximately 85 closed matters initiated under section 707
from fiscal years 2001 through 2007.[Footnote 51] According to ICM
data, these matters largely focused on claims of race discrimination
against African Americans (about 56 matters)[Footnote 52] and sex
discrimination against females (about 48 matters), and most of the
section 707 matters had a subject of hiring, recruitment, and/or
testing program. Similarly, because the Section does not systematically
collect information in ICM on the reasons matters were closed, we were
not able to readily determine this information for the approximately
3,300 matters the Section closed from fiscal years 2001 through
2007.[Footnote 53] However, interviews with agency officials and our
review of a nongeneralizable sample of 49 Employment Litigation Section
closed matter files provided information on some of the reasons why the
Section closed these matters. The reasons Section officials gave for
closing matters included:
* intervention is not justified,
* a like or related case is or has been prosecuted,
* the size and/or limited impact would not justify the resources
necessary to prosecute,[Footnote 54]
* the facts in the file would not justify prosecution,
* the section does not have jurisdiction to bring suit,
* a lawsuit has been filed by the charging party, and:
* the employer provided or offered appropriate relief on its own.
Sections also closed matters when Division managers did not approve the
Section's recommendation to proceed with a case, although Division
officials we interviewed could not readily identify instances in which
this had occurred and the Section does not maintain this information in
ICM. In our September 2009 report on ICM, we reported that capturing
such information in ICM would enable the Division to conduct a
systematic analysis of the reasons that matters were closed and
determine whether there were patterns in the reasons that the Division
or Sections may need to address.[Footnote 55] For example, Division
management may provide additional guidance on factors it looks for in
deciding whether to approve a section's recommendation to pursue a
case. As previously discussed, we recommended that the Division
determine how sections should be required to record data on the reasons
for closing matters in the system in order to be able to systematically
assess and take actions to address issues identified. DOJ concurred
with our recommendation.
We also reviewed documents from a nongeneralizable sample of 49 closed
matter files and determined the reasons provided in the files for
closing matters were generally consistent with the reasons identified
by Section officials and varied by the statutory provision under which
the investigation was conducted.[Footnote 53] As shown in Table 4, the
most common reason (9 of 19) for closing a section 706 matter was that
the size and/or limited impact would not justify the resources
necessary to prosecute or the facts in the file would not justify
prosecution. However, for 7 of the 19 section 706 closed matter files,
the reason the matter was closed was not contained in the file
documentation we received, and Section officials attributed this to a
filing error. Eight of the 10 section 707 matters we reviewed were
closed because the Section found that the evidence did not support the
allegations. For example, in four of these matters, which were related,
the Section determined that although evidence supported the allegation
of a pattern or practice of discrimination against African American job
applicants, several factors would make litigation difficult, including
(1) the small number of African American applicants, which meant there
was little applicant data on which to build a strong pattern or
practice claim of hiring discrimination; (2) the remaining evidence was
5 to 10 years old; and (3) the facts upon which the Section would bring
a case had already been unsuccessfully litigated. The most common
reason for closing USERRA matters was because the Section agreed with
the Department of Labor's recommendation against providing
representation.
Table 4: Reasons for Closing Matters.
Statute: Section 706;
Number of closed matters reviewed by GAO[A]: 19[B].
Reason for closing matter: The size and/or limited impact would not
justify the resources necessary to prosecute, or the facts in the file
would not justify prosecution;
Number of closed matters reviewed by
GAO[A]: 9.
Reason for closing matter: EEOC did not recommend litigation;
Number of
closed matters reviewed by GAO[A]: 5.
Reason for closing matter: Entity took corrective action;
Number of
closed matters reviewed by GAO[A]: 2.
Reason for closing matter: Reason not included in the documents in the
file;
Number of closed matters reviewed by GAO[A]: 7.
Statute: Section 707;
Number of closed matters reviewed by GAO[A]: 10.
Reason for closing matter: Evidence did not support the allegations;
Number of closed matters reviewed by GAO[A]: 8.
Reason for closing matter: Issue was resolved through private
litigation; Number of closed matters reviewed by GAO[A]: 1.
Reason for closing matter: Unable to determine reason[C];
Number of
closed matters reviewed by GAO[A]: 1.
Statute: USERRA;
Number of closed matters reviewed by GAO[A]: 20.
Reason for closing matter: Section agreed with Department of Labor's
recommendation against providing representation;
Number of closed
matters reviewed by GAO[A]: 10.
Reason for closing matter: Representation not provided;
Number of
closed matters reviewed by GAO[A]: 4.
Reason for closing matter: Reason not included in the documents in the
file;
Number of closed matters reviewed by GAO[A]: 2.
Reason for closing matter: Other reasons, such as plaintiff to obtain
private counsel;
Number of closed matters reviewed by GAO[A]: 4.
Source: GAO review of documents from closed case matter files.
[A] The numbers do not total to 49 because some matters were closed for
more than one reason.
[B] The numbers do not total to 19 because some matters were closed for
more than one reason.
[C] Cased on the matter documents we reviewed, the attorney recommended
going forward with a supplemental investigation to enable additional
information to be collected. However, the matter was closed.
[End of table]
The Section Filed More than Half of its Cases Under Section 706 and a
Majority of These Cases Involved Individual Claims of Sex
Discrimination:
The Employment Litigation Section filed 60 cases as a plaintiff and
participated in 18 additional cases as a plaintiff intervenor, amicus,
or defendant from fiscal years 2001 through 2007. According to
Employment Litigation section officials, legal merit is the primary
reason for pursuing cases. Other factors considered by the section in
deciding whether to pursue a case include the impact of the case on a
type or category of discrimination or on a particular location, and the
casework of the section. Other priorities, such as those of the
Attorney General, may also influence the Section's decision to pursue
particular kinds of cases. In July 2009, Section officials told us that
given that the Assistant Attorneys General who authorized suits from
fiscal years 2001 through 2007 and the Section Chief who made suit
recommendations to the Assistant Attorneys General during that period
are no longer employed by DOJ, it would be inappropriate for them to
speculate as to why the Section focused its efforts in particular
areas. Nevertheless, according to Section officials, following the
terrorist attacks of September 11, 2001, the Assistant Attorney General
asked the various sections within the Division to make the development
of cases involving religious discrimination a priority. Officials
stated that in response to the Assistant Attorney General's request,
the Employment Litigation Section opened a supplemental investigation
on charge referrals related to religious discrimination.[Footnote 57]
Section officials also reported that they aggressively pursue
employment discrimination cases involving national origin because the
section receives so few meritorious referrals of this type. As shown in
Table 5, more than half of the cases (33 of 60) the Section initiated
from fiscal years 2001 through 2007 were filed under section 706 of
Title VII.[Footnote 58] However, about 19 percent of the total time the
Section charged to cases over the 7-year period was charged to section
706 cases, according to time data reported in the Division's time
reporting system. According to Section officials, these cases are small
in scope when compared with pattern or practice lawsuits that target
systemic discrimination practices. Nevertheless, according to section
officials, section 706 cases are important because they might not be
pursued without the section's participation.
Table 5: Cases the Employment Litigation Section initiated by statute
from fiscal years 2001 through 2007.
Statute: Section 706;
FY 2001: 6;
FY 2002: 4;
FY 2003: 5;
FY 2004: 2;
FY 2005: 4;
FY 2006: 3;
FY 2007: 9;
Total: 33.
Statute: Section 707;
FY 2001: 1;
FY 2002: 0;
FY 2003: 0;
FY 2004: 4;
FY 2005: 2;
FY 2006: 3;
FY 2007: 1;
Total: 11.
Statute: USERRA;
FY 2001: n/a;
FY 2002: n/a;
FY 2003: n/a;
FY 2004: n/a;
FY 2005: 6;
FY 2006: 4;
FY 2007: 6;
Total: 16.
Statute: Total;
FY 2001: 7;
FY 2002: 4;
FY 2003: 5;
FY 2004: 6;
FY 2005: 12;
FY 2006: 10;
FY 2007: 16;
Total: 60.
[End of table]
Source: Civil Rights Division ICM data and GAO review of complaints
filed in Court.
A majority of the section 706 cases (18 of 33) filed from fiscal years
2001 through 2007 involved claims of sex discrimination on behalf of
women.[Footnote 59] For example, in January 2001, the Division filed a
lawsuit alleging that the Village of Cuba, New Mexico discriminated
against three females by failing or refusing to increase their hourly
compensation at the same rate as the increase in compensation given to
male hourly employees. Additionally, in March 2005, the Division filed
a lawsuit alleging that the city of Cairo, Illinois discriminated
against a female employee by sexually harassing, denying promotion, and
terminating her employment because she refused sexual advancements from
her supervisors.
About one-third of the section 706 cases (11 of 33) filed during the 7-
year period involved claims of race discrimination, with six cases
filed on behalf of African Americans and five cases filed on behalf of
Whites.[Footnote 60] For example, in June 2005, the Division filed a
lawsuit alleging that the Weimar Independent School District
discriminated against an African American individual by not selecting
her for the high school principal position.[Footnote 61] Additionally,
in July 2007, the Division filed a lawsuit alleging that the city of
Indianapolis discriminated against six White males by promoting African
Americans and females to the position of sergeant even though they were
ranked lower on the eligibility list.[Footnote 62] Table 6 provides the
subjects and protected classes for the complaints the Division filed in
court from fiscal years 2001 through 2007.
Table 6: Section 706 cases Initiated by subject and protected class
from fiscal years 2001 through 2007[A].
Subject: Discharge;
FY 2001: 2;
FY 2002: 0;
FY 2003: 2;
FY 2004: 1;
FY 2005: 3;
FY 2006: 0;
FY 2007: 3;
Total: 11.
Subject: Discrimination in terms/conditions;
FY 2001: 0;
FY 2002: 0;
FY 2003: 0;
FY 2004: 1;
FY 2005: 0;
FY 2006: 0;
FY 2007: 1;
Total: 2.
Subject: Harassment;
FY 2001: 2;
FY 2002: 3;
FY 2003: 3;
FY 2004: 0;
FY 2005: 2;
FY 2006: 0;
FY 2007: 2;
Total: 12.
Subject: Hiring;
FY 2001: 1;
FY 2002: 0;
FY 2003: 0;
FY 2004: 0;
FY 2005: 1;
FY 2006: 0;
FY 2007: 1;
Total: 3.
Subject: Promotion;
FY 2001: 2;
FY 2002: 2;
FY 2003: 2;
FY 2004: 1;
FY 2005: 1;
FY 2006: 0;
FY 2007: 1;
Total: 9.
Subject: Retaliation;
FY 2001: 2;
FY 2002: 1;
FY 2003: 4;
FY 2004: 1;
FY 2005: 2;
FY 2006: 1;
FY 2007: 1;
Total: 12.
Subject: Other[B];
FY 2001: 2;
FY 2002: 0;
FY 2003: 0;
FY 2004: 1;
FY 2005: 0;
FY 2006: 3;
FY 2007: 1;
Total: 7.
Protected Class: National Origin Ethnicity;
FY 2001: 1;
FY 2002: 1;
FY 2003: 1;
FY 2004: 0;
FY 2005: 0;
FY 2006: 0;
FY 2007: 0;
Total: 3.
Protected Class: National Origin Ethnicity; Hispanic or Latino;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: National Origin Ethnicity; Indian;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: National Origin Ethnicity; Not Hispanic or Latino;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Race;
FY 2001: 2;
FY 2002: 2;
FY 2003: 1;
FY 2004: 0;
FY 2005: 1;
FY 2006: 1;
FY 2007: 4;
Total: 11.
Protected Class: Race; African American;
FY 2001: 1;
FY 2002: 1;
FY 2003: 1;
FY 2004: [Empty];
FY 2005: 1;
FY 2006: [Empty];
FY 2007: 2;
Total: 6.
Protected Class: Race; American Indian or Alaska Native;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 2.
Protected Class: Race; Asian;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Race; White;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 2;
Total: 5.
Protected Class: Religion;
FY 2001: 1;
FY 2002: 0;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 0;
FY 2007: 1;
Total: 2.
Protected Class: Religion; Seventh Day Adventist;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Religion; Not specified;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 1;
Total: 1.
Protected Class: Sex;
FY 2001: 3;
FY 2002: 2;
FY 2003: 4;
FY 2004: 2;
FY 2005: 3;
FY 2006: 2;
FY 2007: 5;
Total: 21.
Protected Class: Sex; Female;
FY 2001: 3;
FY 2002: 2;
FY 2003: 3;
FY 2004: 1;
FY 2005: 3;
FY 2006: 2;
FY 2007: 4;
Total: 18.
Protected Class: Sex; Male;
FY 2001: 0;
FY 2002: 0;
FY 2003: 1;
FY 2004: 1;
FY 2005: 0;
FY 2006: 0;
FY 2007: 1;
Total: 3.
Source: GAO analysis of Division complaints filed in court. A The 33
individual cases may involve multiple protected classes and subjects.
BOther includes assignment, discipline, equal pay, and pregnancy.
[End of table]
The Section filed 11 pattern or practice (section 707) cases from
fiscal years 2001 through 2007,[Footnote 63] and charged about 63
percent of the total time spent on cases over the 7-year period to
pattern or practice cases, including time charged to ongoing cases
filed prior to fiscal year 2001.[Footnote 64] According to Division
officials, pattern or practice cases have consistently been a priority
of the section because they have the greatest impact on remedying
discriminatory practices.[Footnote 65] Under its pattern or practice
authority, the Section obtains relief in the form of offers of
employment, back pay and other compensatory relief for individuals who
have been the victims of the unlawful employment practices. According
to the Division, these cases very frequently are resolved by consent
order prior to trial. As shown in table 7, most of the pattern or
practice cases the Section filed involved claims of discrimination in
hiring, and the most common protected class was race.
Table 7: Section 707 pattern or practice cases initiated by subject
from fiscal years 2001 through 2007[A].
Subject: Assignment;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Subject: Discharge;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Subject: Discrimination in Terms/Conditions;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 2;
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 3.
Subject: Hiring;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 3;
FY 2005: 1;
FY 2006: 3;
FY 2007: 1;
Total: 9.
Subject: Promotion;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Subject: Recruitment;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Subject: Testing Program;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: 2;
FY 2007: 1;
Total: 5.
Protected Class: National Origin Ethnicity;
FY 2001: 0;
FY 2002: 0;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 3;
FY 2007: 1;
Total: 4.
Protected Class: National Origin Ethnicity; Hispanic or Latino;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 2;
FY 2007: 1;
Total: 3.
National Origin Ethnicity; Other;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 1;
FY 2007: [Empty];
Total: 1.
Protected Class: Race;
FY 2001: 1;
FY 2002: 0;
FY 2003: 0;
FY 2004: 1;
FY 2005: 1;
FY 2006: 3;
FY 2007: 1;
Total: 7.
Protected Class: Race; African American;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 2;
FY 2007: 1;
Total: 4.
Protected Class: Race; American Indian or Alaska Native;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Race; White;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: 1;
FY 2007: [Empty];
Total: 2.
Protected Class: Religion;
FY 2001: 0;
FY 2002: 0;
FY 2003: 0;
FY 2004: 2;
FY 2005: 1;
FY 2006: 0;
FY 2007: 0;
Total: 3.
Protected Class: Religion; Jewish;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Religion; Muslim;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Religion; Sikh;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Religion; Other;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Sex;
FY 2001: 0;
FY 2002: 0;
FY 2003: 0;
FY 2004: 1;
FY 2005: 1;
FY 2006: 1;
FY 2007: 0;
Total: 3.
Protected Class: Sex; Female;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Protected Class: Sex; Male;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: 1;
FY 2007: [Empty];
Total: 2.
Source: GAO analysis of Division complaints filed in court.
Note: The 11 individual cases may involve multiple protected classes
and subjects.
[End of table]
From fiscal years 2001 through 2007, the section filed seven pattern or
practice cases that alleged discrimination on the basis of race--4 on
behalf of African Americans, 2 on behalf of Whites, and 1 on behalf of
American Indians or Alaska Natives. One such case was filed in fiscal
year 2001, and alleged that the Delaware State Police Department was
discriminating against African Americans in hiring for trooper
positions. Specifically, the lawsuit alleged that the police
department's use of written examinations to select entry-level state
troopers disproportionately excluded African Americans from employment
and was not job-related and consistent with business necessity, as
required by federal law.
The next pattern or practice case the section filed on behalf of
African Americans was filed in fiscal year 2006. This case also
involved a protected class of national origin/ethnicity specifically,
Hispanics or Latinos.
In July 2005, the Section filed its first case involving an allegation
of a pattern or practice of discrimination against White males. The
lawsuit alleged that the City of Pontiac through the Pontiac Fire
Department pursued and continued to pursue policies and practices that
discriminated against applicants for employment and employees based on
race and sex by explicitly creating and maintaining a dual system for
hiring and promotion. A second pattern or practice on behalf of White
males was filed in February 2006.
Three of the 11 pattern or practice cases alleged discrimination on the
basis of religion--two were filed in fiscal year 2004 and one was filed
in fiscal year 2005. For example, in September 2004, the Section filed
a lawsuit alleging that the New York Metropolitan Transportation
Authority and the New York City Transit Authority selectively enforced
uniform policies to target Muslim and Sikh employees whose religious
beliefs and practices required that they wear head coverings. According
to the lawsuit, Muslim, Sikh, and similarly situated employees suffered
adverse employment actions.
Three of the 11 pattern or practice cases included claims of sex
discrimination--one related to females and two related to males.
[Footnote 66] For example, in January 2004, the Division filed a suit
alleging that the city of Erie, Pennsylvania discriminated against
females by, among other things, failing or refusing to hire women for
the entry-level position of police officer on the same basis as men.
(Appendix II contains additional information on each of the section 707
cases.)
The Employment Litigation Section also initiated 16 USERRA cases from
fiscal years 2005 through 2007, as shown in Table 8, and charged about
6 percent of its total time spent on cases to these cases.[Footnote 67]
More than half of these cases (10 of 16) alleged violations of
reemployment rights and/or discharge under USERRA.[Footnote 68] For
example, in March 2005, the Division filed a lawsuit alleging that an
employer violated USERRA by denying the plaintiff reemployment rights
upon his return from military service and by discharging him. In
another lawsuit filed in September 2007, the Division alleged that the
employer violated USERRA by demoting the plaintiff upon his return from
military service and subsequently discharging him because of his
membership, service, or obligation to perform service in the uniformed
services.
Table 8: USERRA cases Initiated by subject from fiscal years 2005
through 2007[A].
Subject: Assignment;
FY 2005: 0;
FY 2006: 0;
FY 2007: 1;
Total: 1.
Subject: Benefit;
FY 2005: 0;
FY 2006: 1;
FY 2007: 0;
Total: 1.
Subject: Discharge;
FY 2005: 4;
FY 2006: 1;
FY 2007: 5;
Total: 10.
Subject: Discipline;
FY 2005: 0;
FY 2006: 1;
FY 2007: 0;
Total: 1.
Subject: Discrimination in terms/conditions;
FY 2005: 1;
FY 2006: 2;
FY 2007: 1;
Total: 4.
Subject: Reemployment;
FY 2005: 4;
FY 2006: 2;
FY 2007: 4;
Total: 10.
Source: GAO analysis of Division complaints filed in court.
Note: Individual cases can involve multiple subjects.
[End of table]
The Employment Litigation Section also participated in 18 additional
cases in the role of plaintiff intervenor (11),[Footnote 69] defendant
(6), and amicus curiae (1). (Appendix II includes additional
information on these cases as well as cases that were filed prior to
fiscal year 2001 that the Section was still involved in, e.g.,
monitoring compliance, from fiscal years 2001 through 2007.)
The Housing and Civil Enforcement Section Initiated More Matters and
Participated in More Cases Involving a Pattern or Practice of
Discrimination under the Fair Housing Act than Any Other Statute or
Type of Matter or Case:
From fiscal years 2001 through 2007, the Housing and Civil Enforcement
Section was primarily responsible for the enforcement of federal civil
rights statutes related to discrimination in housing, credit
transactions, and in certain places of public accommodation. During
this time period, the Housing and Civil Enforcement Section initiated
more matters (517 of 947) and participated in more cases (257 of 277)
under FHA than any other statute or type of matter or case. Nearly 90
percent of the matters (456 of 517) were initiated under its pattern or
practice authority under the FHA, primarily alleging discrimination on
the basis of race or disability and involving land/zoning/local
government or rental issues. The majority (250 of 269) of cases that
the Section filed in court as plaintiff involved a claim under FHA--
more than half (132 of 250) of which involved a pattern or practice of
discrimination. Additionally, more than half (141 of 250) of the FHA
cases involved rental issues and nearly half (118 of 250) were brought
on behalf of persons with a disability.
The Housing and Civil Enforcement Section Had Various Statutory
Responsibilities from fiscal years 2001 through 2007:
The Housing and Civil Enforcement Section is primarily responsible for
the enforcement of federal civil rights statutes related to
discrimination in housing, credit transactions, and in certain places
of public accommodation, which have been long-standing responsibilities
for the Section. From fiscal years 2001 through 2007, the Section had
responsibility for enforcing provisions of the FHA and the Equal Credit
Opportunity Act (ECOA). Additionally, in the spring of 2001, the
Section received responsibility for enforcing the land use provisions
of the Religious Land Use and Institutionalized Persons Act (RLUIPA)
and, in July 2006, received responsibility for enforcing the
Servicemembers Civil Relief Act (SCRA). The Section has the discretion
to investigate matters and bring cases under all of the statutes it
enforces, with the exception of HUD "election cases," which the Section
is statutorily required to file. These nondiscretionary referrals are
called "election cases" because either the complaining party or the
respondent has elected to have the case heard in federal court, rather
than through a HUD administrative hearing process. The Section,
however, has discretion about whether to add a pattern or practice
allegation to the HUD-referred election complaint, if supported by the
evidence. Furthermore, the Section has the authority and discretion to
independently file pattern or practice cases and to pursue referrals
other than HUD election cases.[Footnote 70] Table 9 presents the
responsibilities of the Section, by statute. (Appendix III provides
greater detail about each statute enforced by the Section.)
Table 9: Statutory provisions enforced by the Housing and Civil
Enforcement Section from fiscal years 2001 through 2007[A].
Statutory provision: The Fair Housing Act (FHA); 42 U.S.C. §§ 3601 et.
seq.; Description of responsibilities: The FHA prohibits discrimination
on the basis of race, color, religion, sex, familial status, national
origin, or disability in all types of housing transactions. The FHA
allows individuals who believe they have been injured by a
discriminatory housing practice to file complaints with HUD and DOJ to
bring suit where there is reason to believe that a person or entity has
engaged in a pattern or practice of discrimination.
Statutory provision: Equal Credit Opportunity Act (ECOA), 41 U.S.C. §§
1691 et seq.; Description of responsibilities: ECOA prohibits creditors
from discriminating against applicants in any aspect of a credit
transaction on the basis of race, color, religion, national origin,
sex, marital status, age, because all or part of the applicant's income
derives from any public assistance program, or because the applicant
has in good faith exercised any right under the Consumer Credit
Protection Act.
Statutory provision: Title II of the Civil Rights Act of 1964 (Title
II), 42 U.S.C. §§ 2000a to a-5; Description of responsibilities: Title
II prohibits discrimination on the basis of race, color, religion, or
national origin in certain places of public accommodation, such as
motels, restaurants, or movie theaters.
Statutory provision: Religious Land Use and Institutionalized Persons
Act (RLUIPA), 42 U.S.C. §§ 2000cc et seq.; Description of
responsibilities: RLUIPA prohibits state and local governments from
unjustifiably imposing a substantial burden on religious exercise or
imposing land use regulations that discriminate against a religious
assembly or institution.
Statutory provision: The Servicemembers Civil Relief Act (SCRA), 50
U.S.C. App. §§ 501-96; Description of responsibilities: The SCRA
provides protections for members of the military as they enter active
duty, such as the suspension of judicial and administrative
proceedings.
Source: GAO review of federal statutes.
[A] The Section is also responsible for enforcing several statutes that
prohibit discrimination in, among other things, programs where the
operator of the program receives federal funds. Such statutes include
Title VI of the Civil Rights Act of 1964, and Section 504 of the
Rehabilitation Act of 1973. These kinds of cases can be brought only
after a referral from the agency that administers the relevant
federally funded program. Additionally, the Section enforces Title III
of the Civil Rights Act of 1964, which prohibits discrimination in
public facilities.
[End of table]
More Than Half of the Matters the Section Initiated Involved an
Allegation Under the FHA:
The Housing and Civil Enforcement Section initiated 947 matters from
fiscal years 2001 through 2007. According to Section officials, the
Section initiated matters based on referrals from HUD; allegations of
discrimination received from Members of Congress, citizens, private
attorneys, advocacy groups, and federal agencies; and the section's
review of media sources and written materials, such as policies stated
in advertisements or other printed documentation.[Footnote 71] The
Division's budget submission for fiscal year 2007 identifies that the
pattern or practice cases in the Housing and Civil Enforcement Section
remained a high priority because of their broad impact. As shown in
table 10, more than half (517 of 947) of the matters initiated involved
an allegation under the FHA,[Footnote 72] of which about 90 percent
(456 of 517) included an allegation of a pattern or practice of
discrimination.[Footnote 73] Furthermore, according to time data for
the 7-year period, of the total time section staff charged to matters,
most of the time (about 78 percent) was charged to matters involving
allegations under FHA (either solely or in combination with other
statutes).[Footnote 74] After the FHA, the Section initiated the
majority of matters (252 of 947) and devoted about 19 percent of its
time to ECOA matters (either solely or in combination with other
statutes). (Appendix III includes additional information on the matters
initiated by the Section, the time charged to matters during the 7-year
period, and the reasons the Section identified for closing
matters.)[Footnote 75] Table 10 shows the numbers of matters the
Section initiated, by statute.
Table 10: Matters initiated by statute from fiscal years 2001 through
2007.
Statute: FHA;
Statute Combinations: FHA;
FY 2001: 94;
FY 2002: 75;
FY 2003: 80;
FY 2004: 60;
FY 2005: 59;
FY 2006: 63;
FY 2007: 49;
Total: 480.
Statute: FHA;
Statute Combinations: FHA and Section 504;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Statute: FHA;
Statute Combinations: Total;
FY 2001: 95;
FY 2002: 75;
FY 2003: 80;
FY 2004: 60;
FY 2005: 59;
FY 2006: 63;
FY 2007: 49;
Total: 481.
Statute: ECOA;
Statute Combinations: ECOA;
FY 2001: 18;
FY 2002: 17;
FY 2003: 31;
FY 2004: 54;
FY 2005: 36;
FY 2006: 42;
FY 2007: 20;
Total: 218.
Statute: ECOA;
Statute Combinations: ECOA and FHA;
FY 2001: 8;
FY 2002: 1;
FY 2003: 2;
FY 2004: 4;
FY 2005: 4;
FY 2006: 8;
FY 2007: 6;
Total: 33.
Statute: ECOA;
Statute Combinations: ECOA and Title III;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Statute: ECOA;
Statute Combinations: Total;
FY 2001: 26;
FY 2002: 18;
FY 2003: 33;
FY 2004: 58;
FY 2005: 41;
FY 2006: 50;
FY 2007: 26;
Total: 252.
Statute: RLUIPA;
Statute Combinations: RLUIPA;
FY 2001: 1;
FY 2002: 4;
FY 2003: 30;
FY 2004: 25;
FY 2005: 32;
FY 2006: 23;
FY 2007: 16;
Total: 131.
Statute: RLUIPA;
Statute Combinations: RLUIPA and FHA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 2;
Total: 3.
Statute: RLUIPA;
Statute Combinations: Total;
FY 2001: 1;
FY 2002: 4;
FY 2003: 31;
FY 2004: 25;
FY 2005: 32;
FY 2006: 23;
FY 2007: 18;
Total: 134.
Statute: Title II;
FY 2001: 13;
FY 2002: 10;
FY 2003: 8;
FY 2004: 7;
FY 2005: 7;
FY 2006: 3;
FY 2007: 2;
Total: 50.
Statute: SCRA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 8;
Total: 8.
Statute: Other[A];
FY 2001: 2;
FY 2002: 2;
FY 2003: 0;
FY 2004: 7;
FY 2005: 4;
FY 2006: 4;
FY 2007: 3;
Total: 22.
Grand Total:
FY 2001: 137;
FY 2002: 109;
FY 2003: 152;
FY 2004: 157;
FY 2005: 143;
FY 2006: 143;
FY 2007: 106;
Total: 947.
Source: Division ICM Aggregate Data.
[A] Other includes Title III, Title VI, Title VI and Section 504,
Section 504, and Criminal Interference With Housing Rights. Matters
involving these statutes are described in Appendix III.
[End of table]
The Section initiated the fewest number of total matters, 106, in
fiscal year 2007. Section officials attributed the decrease, in part,
to a decline in the number of referrals from HUD, as shown in figure 1,
and the bank regulatory agencies. In addition, Section officials stated
that the number of matters initiated can fluctuate each year depending
on the extent to which the Section's resources are focused on the
litigation of large cases. According to section officials, the general
decrease in HUD election referrals over time resulted in part from more
complaints of housing discrimination being handled by state and local
fair housing agencies instead of HUD. According to Section officials,
since the passage of the amendments of the FHA, more state and local
fair housing agencies have been certified to receive complaints of
discriminatory housing practices.[Footnote 76] Such certification is
granted if the Secretary of HUD determines that a state or local agency
affords substantially equivalent rights and regulations to those
provided in the FHA. Housing and Civil Enforcement Section officials
stated that as a result, HUD handles a third to a fourth fewer
complaints than before. Further, over the 7-year period, ICM data show
a general decline of election matters--non-discretionary matters
involving an allegation under the FHA--that are derived from HUD
referrals. Figure 1 HUD Referrals from Fiscal Years 2001 through 2007:
Figure 1: HUD Referrals from Fiscal Years 2001 through 2007:
[Refer to PDF for image: line graph]
Fiscal year: 2001;
Number of referrals: 97.
Fiscal year: 2002;
Number of referrals: 62.
Fiscal year: 2003;
Number of referrals: 44.
Fiscal year: 2004;
Number of referrals: 46.
Fiscal year: 2005;
Number of referrals: 50.
Fiscal year: 2006;
Number of referrals: 39.
Fiscal year: 2007.
Number of referrals: 33.
Source: Civil Rights Division, Housing and Civil Enforcement Section
Report on HUD Referrals.
[End of figure]
FHA Matters Primarily Involved Allegations of Discrimination on the
Basis of Race or Disability and Issues Involving Land/Zoning/Local
Government or Rental:
The largest proportions of FHA matters the Section initiated involved
allegations of discrimination based on race, disability, or both.
[Footnote 77] About 44 percent (228 of 517) of FHA matters initiated
involved allegations of racial discrimination--of which almost all (207
of 228) involved allegations of discrimination against African
Americans. Further, 99 of the 517 FHA matters (about 19 percent)
involved at least one allegation of discrimination on the basis of
national origin/ethnicity, 79 of which involved allegations of
discrimination against Hispanic or Latinos. Approximately 40 percent
(206 of 517) of the matters the Section initiated under the FHA from
fiscal years 2001 through 2007, involved at least one allegation of
discrimination based on disability as shown in table 11.[Footnote 78]
Table 11: Bases of allegations for FHA matters initiated fiscal year
2001 through 2007.
Protected Class: Disability;
FY 2001: 44;
FY 2002: 33;
FY 2003: 29;
FY 2004: 27;
FY 2005: 25;
FY 2006: 25;
FY 2007: 23;
Total: 206.
Protected Class: Family;
FY 2001: 14;
FY 2002: 11;
FY 2003: 4;
FY 2004: 7;
FY 2005: 3;
FY 2006: 6;
FY 2007: 3;
Total: 48.
Protected Class: National Origin Ethnicity;
FY 2001: 17;
FY 2002: 13;
FY 2003: 17;
FY 2004: 12;
FY 2005: 9;
FY 2006: 12;
FY 2007: 19;
Total: 99.
Protected Class: Race;
FY 2001: 45;
FY 2002: 36;
FY 2003: 36;
FY 2004: 22;
FY 2005: 29;
FY 2006: 34;
FY 2007: 26;
Total: 228.
Protected Class: Other[A];
FY 2001: 6;
FY 2002: 4;
FY 2003: 5;
FY 2004: 11;
FY 2005: 3;
FY 2007: 12;
FY 2007: 4;
Total: 45.
Source: GAO analysis of ICM aggregate matter data.
[A] Table includes all matters with an allegation under FHA. If a
single complaint alleged multiple bases, it was counted under each
basis alleged. Since one matter can involve multiple protected classes,
the numbers of allegations is greater than the 517 matters.
[B] Other includes age, color, homeless, marital status, religion, sex,
and source of income.
[End of table]
As shown in Table 12, about 35 percent (181 of 517) of the FHA matters
the Section initiated involved the subject, or issue, of land/zoning/
local government, which is used for allegations of discriminatory
actions taken by a local zoning board or governing body. According to
Section officials, the large number of land/zoning/local government
matters it initiated was due to the Section regularly receiving
referrals from HUD as well as complaints from other entities involving
these issues. Division officials identified that a Section priority
from fiscal years 2001 through 2007 was to ensure that zoning and other
regulations concerning land were not used to hinder the residential
choices of individuals with disabilities. Another priority was ensuring
that newly constructed multifamily housing is built in accordance with
the FHA's accessibility requirements.[Footnote 79]
Table 12: Issues in FHA matters initiated fiscal year 2001 through 2007
(includes all matters with an allegation filed under FHA)[A].
Subject (Issue): Group Homes;
FY 2001: 21;
FY 2002: 19;
FY 2003: 12;
FY 2004: 14;
FY 2005: 7;
FY 2006: 8;
FY 2007: 6;
Total: 87.
Subject (Issue): Harassment;
FY 2001: 1;
FY 2002: 2;
FY 2003: 3;
FY 2004: 4;
FY 2005: 5;
FY 2006: 5;
FY 2007: 0;
Total: 20.
Subject (Issue): Land/Zoning/Local Government;
FY 2001: 40;
FY 2002: 31;
FY 2003: 32;
FY 2004: 28;
FY 2005: 20;
FY 2006: 16;
FY 2007: 14;
Total: 181.
Subject (Issue): Lending;
FY 2001: 8;
FY 2002: 6;
FY 2003: 3;
FY 2004: 4;
FY 2005: 7;
FY 2006: 9;
FY 2007: 6;
43.
Subject (Issue): New Construction;
FY 2001: 11;
FY 2002: 1;
FY 2003: 4;
FY 2004: 6;
FY 2005: 10;
FY 2006: 5;
FY 2007: 7;
Total: 44.
Subject (Issue): Other Housing Subject Matter[B];
FY 2001: 9;
FY 2002: 4;
FY 2003: 18;
FY 2004: 8;
FY 2005: 11;
FY 2006: 10;
FY 2007: 5;
Total: 65.
Subject (Issue): Rental;
FY 2001: 29;
FY 2002: 27;
FY 2003: 23;
FY 2004: 15;
FY 2005: 16;
FY 2006: 24;
FY 2007: 13;
Total: 147.
Subject (Issue): Retaliation;
FY 2001: 1;
FY 2002: 2;
FY 2003: 1;
FY 2004: 1;
FY 2005: 1;
FY 2006: 5;
FY 2007: 1;
12.
Subject (Issue): Sales;
FY 2001: 9;
FY 2002: 7;
FY 2003: 3;
FY 2004: 3;
FY 2005: 1;
FY 2006: 3;
FY 2007: 3;
Total: 29.
Subject (Issue): Other[C];
FY 2001: 2;
FY 2002: 3;
FY 2003: 1;
FY 2004: 2;
FY 2005: 0;
FY 2006: 1;
FY 2007: 1;
Total: 10.
Source: GAO analysis of ICM aggregate matter data.
Note: Includes all matters with an allegation filed under the FHA.
[A] If a single complaint alleged multiple issues, it was counted under
each issue alleged.
[B] Other Housing Subject Matter covers items that relate to a housing
complaint but do not involve the denial of housing––such as the denial
of utilities or repairs.
[C] Other includes insurance, other non-housing subject matter, and
public accommodations.
[End of table]
Rental matters were also among the most common matters the section
initiated (147 of 517), followed by group homes (87 of 517). Rental
matters involve discrimination in property that is listed for a fee,
and can involve issues such as eviction, the discriminatory provision
of services and facilities occupancy restrictions, and the assessment
of rental fees based on the number of occupants. For example, the
Section investigated a matter in which a landlord of an apartment
complex allegedly turned away families with children or assigned them
to a particular floor.
According to Section officials, the number of rental-related issues is
reflective of larger national trends in that discrimination in rental
housing may be more frequently reported or easier to detect than in
home sales.
Additionally, matters involving allegations of discrimination in group
homes were among the largest number of FHA matters the Section
initiated. In 2001, the President announced the New Freedom Initiative
and issued Executive Order 13217, which addressed the implementation of
existing laws in light of the Olmstead decision, where the Supreme
Court held that under Title II of the Americans with Disabilities Act,
states are required to provide community-based treatment for persons
with mental disabilities, where appropriate.[Footnote 80] According to
the Division, in response, the Housing and Civil Enforcement Section
increased its focus on discrimination against group homes for
individuals with disabilities, and housing providers employing policies
designed to bar individuals with disabilities.[Footnote 81] For
example, the Section opened an investigation in fiscal year 2003 on
behalf of complainants who had been denied a conditional use permit for
a residential group home, which would have allowed them to build the
home on their property despite certain zoning restrictions. The
complainants alleged the city had acted in a discriminatory manner
against the disabled and group homes for the disabled by denying the
permit.
Over a Quarter of Housing and Civil Enforcement Section Matters
Initiated Involved Lending Issues under ECOA:
From fiscal years 2001 through 2007, the Section initiated about 250
matters with at least one allegation under ECOA involving a lending
issue. As shown in Table 13, about 70 percent (177 of 252) of these
matters included allegations of discrimination based on age, marital
status, or both. Section officials stated that due to the high number
of bank and regulatory agency referrals from fiscal years 2001 through
2007 that involved allegations of discrimination based on marital
status or age, the majority of matters initiated during the 7-year
period also involved these bases of discrimination. For example, the
FDIC alleged a bank committed a discriminatory pattern or practice in
violation of ECOA by requiring the spouses of the guarantors to sign
commercial guarantees (business agreements). Allegedly, the guarantees
were required only because of a spousal relationship with the guarantor
and not because of any business relationship. Additionally, according
to Section officials and DOJ's annual ECOA reports to Congress, all but
a small number of the referrals based on age and marital status are of
the type that are generally returned for administrative resolution
because the unlawful practice has discontinued and there is little
chance that it will be repeated.[Footnote 82] Section officials also
stated that matters that involved allegations of discrimination based
on race or national origin/ethnicity generally involve more complicated
issues and may not be as easily corrected by administrative enforcement
action the bank regulatory agencies can take. Additionally, according
to Section officials, issues of potential lending discrimination based
on race or national origin have long been priorities for the Division.
Thus, a larger proportion of race and national origin discrimination
matters are retained and investigated by DOJ and may eventually become
cases.
Table 13: Basis of Allegations for ECOA matters fiscal year 2001
through 2007 (includes all matters with an allegation filed under
ECOA).
ECOA:
FY 2001: 26;
FY 2002: 18;
FY 2003: 33;
FY 2004: 58;
FY 2005: 41;
FY 2006: 50;
FY 2007: 26;
Total: 252.
Age:
FY 2001: 6;
FY 2002: 2;
FY 2003: 9;
FY 2004: 21;
FY 2005: 11;
FY 2006: 13;
FY 2007: 3;
Total: 65.
Marital Status:
FY 2001: 4;
FY 2002: 11;
FY 2003: 15;
FY 2004: 28;
FY 2005: 22;
FY 2006: 18;
FY 2007: 14;
Total: 112.
National Origin/Ethnicity:
FY 2001: 6;
FY 2002: 3;
FY 2003: 6;
FY 2004: 3;
FY 2005: 3;
FY 2006: 5;
FY 2007: 4;
Total: 30.
Race:
FY 2001: 17;
FY 2002: 0;
FY 2003: 9;
FY 2004: 6;
FY 2005: 10;
FY 2006: 10;
FY 2007: 8;
Total: 60.
Unfair Documentary Practices[A]:
FY 2001: 3;
FY 2002: 0;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 7;
FY 2007: 0;
Total: 10.
Other[B]:
FY 2001: 4;
FY 2002: 5;
FY 2003: 3;
FY 2004: 1;
FY 2005: 2;
FY 2006: 4;
FY 2007: 2;
Total: 21.
Source: GAO analysis of ICM aggregate matter data:
[A] If a single complaint alleged multiple bases, it was counted under
each basis alleged.
[B] Unfair documentary practices" is used to describe unfair
requirements for materials to determine income, national origin, and
creditworthiness, or inappropriate use of fraud of active duty alerts
on credit reports.
[C] Other includes disability, source of income, sex, family, and
religion.
[End of table]
From fiscal years 2001 through 2007, about a third (90 of 252) of
matters initiated with at least one allegation under ECOA involved the
protected classes of race, national origin/ethnicity, or both, as shown
in Table 13. Based on ICM data kept by the section, 51 of these 90
matters (about 56 percent) involved racial discrimination against
African-Americans and 20 (about 22 percent) involved national origin
discrimination against Hispanics or Latinos. For example, the Section
initiated an investigation to determine if the defendant, a car
dealership, engaged in discrimination against African-Americans in
setting finance terms for car loans. The Section initiated the
investigation after a Section attorney read a newspaper article in
which a former employee made admissions concerning the discriminatory
actions of his former employer.
As shown in table 13, the number of matters initiated under ECOA varied
from fiscal years 2001 to 2007. According to Housing and Civil
Enforcement Section officials, the variance was in part due to the
number and type of ECOA matters referred to the Section. For example,
new Home Mortgage Disclosure Act[Footnote 83] regulations promulgated
by the Federal Reserve Board, effective in 2004, changed the type and
amount of information lenders were required to report on home loans
under this Act, including some data on loan pricing by race and
gender.[Footnote 84] As a result, the Section received an increased
number of race and national origin referrals, even as the total number
of bank agency referrals decreased, and reported devoting more time to
reviewing the race and national origin referrals and developing cases
from them.[Footnote 85] Consequently, Section officials stated that as
a result, they initiated fewer matters on their own. In addition, with
respect to type of referral, Section officials explained that
investigations involving national origin and race take a greater amount
of resources to review than cases involving other protected classes.
According to these officials, because the Section conducted more of
these investigations in fiscal year 2007, and these types of
investigations are complex, the overall of matters initiated in fiscal
year 2007 declined.[Footnote 86]
The Housing and Civil Enforcement Section Initiated Matters Under
RLUIPA, Title II, and Other Statutes:
After FHA and ECOA matters, the Housing and Civil Enforcement section
initiated the highest numbers of matters under RLUIPA and Title II of
the Civil Rights Act. Of the 947 matters initiated by the Section, 134
(about 14 percent) included at least one allegation under RLUIPA, of
which nearly all involved allegations of religious discrimination and
the subject of land/zoning/local government. For example, a religious
society alleged the county violated RLUIPA by not granting a special
exception permit to a zoning code that restricts the height of
structures in residential zones for the construction of a mosque, where
the zoning code had an exception for Christian structures. Fifty (about
5 percent) of the Housing and Civil Enforcement Section matters were
initiated under Title II, of which about 36 matters (about 72 percent)
involved allegations of discrimination based on race in places of
public accommodation. (Appendix III provides information on the numbers
of matters the Section initiated under other statutory provisions,
including Title III, Title VI, and the SCRA.)
Most of the Cases Filed by the Housing and Civil Enforcement Section
Included a Claim under the FHA and Involved Rental Issues Regarding
Discrimination on the Basis of Disability or Race:
The Housing and Civil Enforcement Section filed 269 cases as plaintiff
in fiscal years 2001 through 2007.[Footnote 87] Additionally, the
Section participated in seven cases as amicus, and served as intervenor
on behalf of the plaintiffs in one case.[Footnote 88] According to
Section officials, the Section considers legal merit when deciding
whether to pursue a matter as a case as well as (1) whether it appears
the matter will be resolved without Section intervention, such as by
the local jurisdiction, (2) whether litigation would resolve a
significant statutory issue, such as the interpretation of a provision
of law the Section enforces; and (3) whether the plaintiff has the
resources to proceed on his or her own should the Section choose not to
get involved. Section officials stated that the section examines
evidence of disparate impact--practices that are not intended to
discriminate but in fact have a disproportionately adverse effect on
minorities--when relevant to individual or pattern or practice cases,
although the Section had never filed a case based solely on disparate
impact evidence. The Section's decision to pursue particular kinds of
cases may also be influenced by other priorities, such as those of the
Assistant Attorney General. The Section may litigate cases solely or
share litigation responsibility with a U.S. Attorney's Office.[Footnote
89]
About 90 Percent of the Section's Cases Included a Claim Under FHA and
More than Half of These Cases Involved Rental Issues:
As shown in table 14, the Section participated in 277 cases from fiscal
years 2001 through 2007.[Footnote 90] Of the 277 cases, 140 were HUD-
referred election cases”35 of which included an additional allegation
of a pattern or practice of discrimination. Additionally, about 90
percent (257 of 277) of the cases included a claim under the FHA and
250 of these FHA cases were filed as plaintiff.
Table 14: Housing and Civil Enforcement Section Cases by Statute and
Fiscal Year Filed from Fiscal Years 2001 through 2007:
Statutes: FHA;
Statute Combinations: Section 504;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Statute Combinations: FHA;
FY 2001: 49;
FY 2002: 45;
FY 2003: 26;
FY 2004: 31;
FY 2005: 40;
FY 2006: 28;
FY 2007: 29;
Total: 248.
Statute Combinations: 3613(E)[A];
FY 2001: [Empty];
FY 2002: 1;
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 2.
Statute Combinations: FHA Total;
FY 2001: 49;
FY 2002: 46;
FY 2003: 26;
FY 2004: 33;
FY 2005: 40;
FY 2006: 28;
FY 2007: 29;
Total: 251.
Statutes: ECOA;
Statute Combinations: ECOA;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 3;
Total: 4.
Statute Combinations: ECOA and FHA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: 2;
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 1;
Total: 5.
Statute Combinations: ECOA Total;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: 1;
FY 2004: 2;
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 4;
Total: 9.
Statutes: RLUIPA;
Statute Combinations: RLUIPA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: 1;
FY 2006: 1;
FY 2006: 1;
Total: 4.
Statute Combinations: RLUIPA and FHA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Statute Combinations: RLUIPA Total;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: 2;
FY 2006: 1;
FY 2007: 1;
Total: 5.
Statutes: Title II;
Statute Combinations: Title II;
FY 2001: 4;
FY 2002: 2;
FY 2003: 1;
FY 2004: 3;
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 1;
Total: 12.
Title II Total;
FY 2001: 4;
FY 2002: 2;
FY 2003: 1;
FY 2004: 3;
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 1;
Total: 12.
Total;
FY 2001: 53;
FY 2002: 49;
FY 2003: 29;
FY 2004: 38;
FY 2005: 42;
FY 2006: 31;
FY 2007: 35;
Total: 277.
Source: GAO analysis of ICM data.
[A] 42 U.S.C. § 3613(e) allows the Attorney General to intervene in
cases involve discriminatory housing practices where the Attorney
General certifies that the case is of general public importance.
[End of table]
ICM data show the number of cases filed by the Housing Section
generally decreased from fiscal years 2001 through 2007. According to
Section officials, the decline can be attributed to fewer election
cases being referred from HUD. Overall, almost 70 percent (185 of 277)
of the cases the Housing Section participated in from fiscal years 2001
through 2007 originally derived from a HUD referral. Such cases
declined from 75 percent (40 of 53) of cases filed in fiscal year 2001
to 63 percent (24 of 38) of cases filed in fiscal year 2004. Such cases
increased in fiscal year 2005, but again declined in fiscal years 2006
and 2007 to around 50 percent (17 of 35) of cases filed in fiscal year
2007. Among HUD-referred cases are election cases, which the Section is
statutorily required to file. As shown in table 15, the Section filed
the largest number of election cases (25) in fiscal year 2001 and the
lowest number (12) in fiscal year 2003.[Footnote 91] Section officials
reported that the number of cases with an allegation of pattern or
practice varied slightly over the 7-year period and the Section has
more control over these kinds of cases because it can initiate them
without a referral. However, Section officials also said that the
number of pattern and practice cases filed may fluctuate each year
depending on the extent to which the Section's resources are focused on
the litigation of large cases. Additionally, in some years, the Section
may file more consent orders resolving ongoing cases, while in other
years the Section may file more cases. According to time data
maintained by the Division, the Section spent at least three-quarters
of its time on pattern and practice cases each year from fiscal years
2001 through 2007. (Appendix III includes information on the percentage
of time Section staff charged by case type for the 7-year period.)
Table 15: Housing and Civil Enforcement Section Case Types for Cases
Initiated between fiscal year 2001 through 2007.
Case Type: Pattern and Practice;
FY 2001: 18;
FY 2002: 20;
FY 2003: 14;
FY 2004: 17;
FY 2005: 16;
FY 2006: 14;
FY 2007: 17;
Total: 116.
Case Type: Election Case;
FY 2001: 25;
FY 2002: 22;
FY 2003: 6;
FY 2004: 11;
FY 2005: 17;
FY 2006: 10;
FY 2007: 14;
Total: 105.
Case Type: Pattern and Practice Election;
FY 2001: 6;
FY 2002: 5;
FY 2003: 6;
FY 2004: 5;
FY 2005: 6;
FY 2006: 5;
FY 2007: 2;
Total: 35.
Case Type: Enforcement;
FY 2001: ;
FY 2002: 1;
FY 2003: 3;
FY 2004: 4;
FY 2005: 3;
FY 2006: 2;
FY 2007: [Empty];
Total: 13.
Case Type: Amicus Participation;
FY 2001: 3;
FY 2002: 1;
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 2;
Total: 7.
Case Type: Amicus Participation Pattern and Practice;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Total:
FY 2001: 53;
FY 2002: 49;
FY 2003: 29;
FY 2004: 38;
FY 2005: 42;
FY 2006: 31;
FY 2007: 35;
Total: 277.
Source: GAO Analysis of ICM data.
[End of table]
For cases the Housing and Civil Enforcement Section filed as plaintiff
involving at least one allegation under the FHA, the Section asserted
more claims related to rental issues (146 of 250) than any other
subject, as shown in Table 16.[Footnote 92] In one rental case, the
defendant allegedly violated FHA when he discriminated against African-
American tenants at two apartment complexes that he owned and managed
by evicting African-American tenants, while not evicting similarly
situated non-African-American tenants. Specifically, the defendant
allegedly required African-American tenants to vacate their apartments
permanently due to renovation work while not requiring non-African-
American tenants to do so, and failed to provide necessary and
requested maintenance to African-American tenants while providing such
maintenance to non-African American tenants.
Table 16: Issues in FHA cases filed from fiscal years 2001 through 2007
(includes all claims with an allegation filed under FHA)[A].
Subject (Issue): Rental;
FY 2001: 27;
FY 2002: 27;
FY 2003: 14;
FY 2004: 14;
FY 2005: 22;
FY 2006: 19;
FY 2007: 23;
Total Occurrences: 146.
Subject (Issue): New Construction;
FY 2001: 15;
FY 2002: 7;
FY 2003: 6;
FY 2004: 8;
FY 2005: 6;
FY 2006: 3;
FY 2007: 6;
Total Occurrences: 51.
Subject (Issue): Retaliation;
FY 2001: 4;
FY 2002: 5;
FY 2003: 0;
FY 2004: 3;
FY 2005: 2;
FY 2006: 6;
FY 2007: 6;
Total Occurrences: 26.
Subject (Issue): Harassment;
FY 2001: 2;
FY 2002: 4;
FY 2003: 1;
FY 2004: 4;
FY 2005: 6;
FY 2006: 6;
FY 2007: 2;
Total Occurrences: 5.
Subject (Issue): Testing Program;
FY 2001: 4;
FY 2002: 4;
FY 2003: 2;
FY 2004: 1;
FY 2005: 1;
FY 2006: 2;
FY 2007: 4;
Total Occurrences: 18.
Subject (Issue): Land/Zoning/Local Government;
FY 2001: 2;
FY 2002: 2;
FY 2003: 3;
FY 2004: 3;
FY 2005: 4;
FY 2006: 2;
FY 2007: 1;
Total Occurrences: 17.
Subject (Issue): Sales;
FY 2001: 0;
FY 2002: 3;
FY 2003: 3;
FY 2004: 4;
FY 2005: 1;
FY 2006: 4;
FY 2007: 1;
Total Occurrences: 16.
Subject (Issue): Group Homes[B];
FY 2001: 1;
FY 2002: 1;
FY 2003: 2;
FY 2004: 2;
FY 2005: 2;
FY 2006: 3;
FY 2007: 1;
Total Occurrences: 12.
Subject (Issue): Other Housing Subject Matter;
FY 2001: 2;
FY 2002: 4;
FY 2003: 0;
FY 2004: 2;
FY 2005: 3;
FY 2006: 0;
FY 2007: 0;
Total Occurrences: 11.
Subject (Issue): Other[C];
FY 2001: 0;
FY 2002: 0;
FY 2003: 1;
FY 2004: 4;
FY 2005: 3;
FY 2006: 1;
FY 2007: 1;
Total Occurrences: 10.
Source: Division ICM data.
[A] If a single complaint alleged multiple issues, it was counted under
each issue alleged.
[B] Group home cases are usually a subset of land/zoning/local
government cases.
[C] Other includes lending, insurance, and other non-housing subject
matter.
[End of table]
Additionally, the Section asserted more claims on behalf of persons
with a disability (115 of 250) than any other protected class, as shown
in Table 17. For example, one of the complaints we reviewed was filed
on behalf of a man with a disability who had filed a complaint with HUD
against the property manager and owner of his apartment complex,
alleging the defendants discriminated against him on the basis of his
physical impairments when they unreasonably prolonged meeting his
request for a ground floor apartment and did not provide the reasonable
accommodation of handicapped parking spaces.
Table 17: Bases of claims for FHA cases filed from fiscal years 2001
through 2007:
Protected Class (Basis): Disability;
FY 2001: 20;
FY 2002: 17;
FY 2003: 13;
FY 2004: 18;
FY 2005: 18;
FY 2006: 13;
FY 2007: 16;
Total Occurrences: 115.
Protected Class (Basis): Family;
FY 2001: 13;
FY 2002: 10;
FY 2003: 7;
FY 2004: 6;
FY 2005: 6;
FY 2006: 4;
FY 2007: 5;
Total Occurrences: 51.
Protected Class (Basis): National Origin/Ethnicity;
FY 2001: 4;
FY 2002: 4;
FY 2003: 3;
FY 2004: 2;
FY 2005: 5;
FY 2006: 2;
FY 2007: 3;
Total Occurrences: 23.
Protected Class (Basis): National Origin/Ethnicity; Hispanic or Latino;
FY 2001: 1;
FY 2002: 3;
FY 2003: 2;
FY 2004: 2;
FY 2005: 3;
FY 2006: 1;
FY 2007: 2;
Total Occurrences: 14.
Protected Class (Basis): National Origin/Ethnicity; Other[B];
FY 2001: 4;
FY 2002: 2;
FY 2003: 1;
FY 2004: 0;
FY 2005: 2;
FY 2006: 1;
FY 2007: 1;
Total Occurrences: 11.
Protected Class (Basis): Race;
FY 2001: 15;
FY 2002: 16;
FY 2003: 8;
FY 2004: 7;
FY 2005: 11;
FY 2006: 8;
FY 2007: 5;
Total Occurrences: 70.
Protected Class (Basis): Race; African American;
FY 2001: 12;
FY 2002: 15;
FY 2003: 8;
FY 2004: 7;
FY 2005: 11;
FY 2006: 8;
FY 2007: 5;
Total Occurrences: 66.
Protected Class (Basis): Race; Asian;
FY 2001: 3;
FY 2002: 2;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 0;
FY 2007: 0;
Total Occurrences: 5.
Protected Class (Basis): Race; Other[C];
FY 2001: 1;
FY 2002: 1;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 1;
FY 2007: 0;
Total Occurrences: 3.
Protected Class (Basis): Sex;
FY 2001: 2;
FY 2002: 4;
FY 2003: 4;
FY 2004: 3;
FY 2005: 5;
FY 2006: 6;
FY 2007: 1;
Total Occurrences: 25.
Protected Class (Basis): Sex; Female;
FY 2001: 2;
FY 2002: 3;
FY 2003: 4;
FY 2004: 3;
FY 2005: 4;
FY 2006: 5;
FY 2007: 1;
Total Occurrences: 22.
Protected Class (Basis): Sex; Male;
FY 2001: 0;
FY 2002: 1;
FY 2003: 0;
FY 2004: 0;
FY 2005: 1;
FY 2006: 1;
FY 2007: 0;
Total Occurrences: 3.
Protected Class (Basis): Other[D];
FY 2001: 2;
FY 2002: 3;
FY 2003: 0;
FY 2004: 0;
FY 2005: 1;
FY 2006: 0;
FY 2007: 0;
Total Occurrences: 6.
Source: Division ICM data.
[A] If a single complaint alleged multiple bases, it was counted under
each basis alleged.
[B] For National Origin cases, the category other includes American
Indian or Alaskan Native, Arab, Indian, Not Hispanic or Latino, and
Other.
[C] For race cases, the category other includes American-Indian or
Alaskan Native, Hispanic, and White.
[D] Other includes color and religion.
[End of table]
Furthermore, 70 of the 250 FHA cases that the Housing Section filed as
plaintiff involved at least one claim of racial discrimination,
primarily related to rental issues (about 50 of 70). Of those 70 cases,
which include HUD election cases that the Section is statutorily
required to file, about 66 were described as concerning racial
discrimination against African-Americans. As shown in Table 18, the
number of cases with a claim of racial discrimination generally
declined from fiscal years 2001 through 2007. According to Section
officials, since the Section has discretion to initiate the FHA pattern
or practice cases it files, not the HUD election cases, it is more
meaningful to look at the trend in the filing of those cases. Our
review of the FHA pattern and practice cases identified that of the 132
pattern or practice cases the Section filed as plaintiff from fiscal
years 2001 through 2007, 30 included at least one claim of racial
discrimination. From fiscal years 2001 through 2003, the number of such
cases filed ranged from 6 to 7. The Section filed 3 such cases each
year from fiscal years 2004 through 2006, and two cases in fiscal year
2007.
The Section Conducted Over 1,700 Housing Tests and Filed 20 Housing
Testing Cases Over the 7-Year Period:
The section filed 20 cases derived from over 1,700 tests conducted as
part of its Fair Housing Testing Program from fiscal years 2001 through
2007.[Footnote 93] In 1991, the section created the Fair Housing
Testing Program to help enforce the FHA. Generally, fair housing
testing involves individuals who pose as prospective buyers or renters
of real estate to gather information that may indicate whether a
housing provider is complying with fair housing laws.The purpose of
this testing is to allow the section to identify potential patterns or
practices of housing discrimination that may go undetected.[Footnote
94] According to section officials, in fiscal year 2005, DOJ set the
goal of doubling the number of tests conducted by fiscal year 2007. As
shown in figure 2, DOJ exceeded this goal.
Figure 2: Housing Testing Conducted from Fiscal Years 2001 through
2007:
[Refer to PDF for image: line graph]
Fiscal year: 2001;
Number of tests: 237.
Fiscal year: 2002;
Number of tests: 110.
Fiscal year: 2003;
Number of tests: 135.
Fiscal year: 2004;
Number of tests: 162.
Fiscal year: 2005;
Number of tests: 205.
Fiscal year: 2006;
Number of tests: 283.
Fiscal year: 2007;
Number of tests: 502.
Source: Housing and Civil Enforcement Section data on housing testing.
[End of figure]
Nine of the Section's 20 testing cases involved allegations of
discrimination on the basis of disability in new construction, rentals,
or both; 7 involved race discrimination against African Americans in
rentals or public accommodations; 5 involved familial status
discrimination in rentals, of which 2 additionally involved
discrimination against African Americans or African Americans; and 1
involved discrimination on the basis of national origin/ethnicity in
rentals.[Footnote 95] As shown in table 18, the Section filed 9 of the
20 cases, including four of the five new construction cases, from
fiscal years 2001 to 2002, filed 1 to 2 cases per year from fiscal
years 2003 through 2006 and 4 cases in fiscal year 2007.
Table 18: Bases of claims and issues for HCE testing program cases
filed from fiscal years 2001 through 2007:
Statue: FHA;
Issue: New Construction Rental;
Basis of Discrimination: Disability;
FY 2001: 3;
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 4.
Statue: FHA;
Issue: New Construction Sales;
Basis of Discrimination: Disability;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 1.
Statue: FHA;
Issue: Rental;
Basis of Discrimination: Disability;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: 1;
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 2;
Total: 4.
Statue: FHA;
Issue: Rental;
Basis of Discrimination: Family;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: 1;
FY 2007: 1;
Total: 3.
Statue: FHA;
Issue: Rental;
Basis of Discrimination: Family and Race - African American;
FY 2001: [Empty];
FY 2002: 2;
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 2.
Statue: FHA;
Issue: Rental;
Basis of Discrimination: National Origin/Ethnicity - Other;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: 1;
Total: 1.
Statue: FHA;
Issue: Rental;
Basis of Discrimination: Race - African American;
FY 2001: [Empty];
FY 2002: 1;
FY 2003: [Empty];
FY 2004: 1;
FY 2005: 1;
FY 2006: [Empty];
FY 2007: [Empty];
Total: 3.
Statue: Title II;
Issue: Public Accommodations;
Basis of Discrimination: Race - African American;
FY 2001: 1;
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: 1;
FY 2005: [Empty];
FY 2006: [Empty];
FY 2007: [Empty];
Total: 2.
Total;
FY 2001: 5;
FY 2002: 4;
FY 2003: 2;
FY 2004: 2;
FY 2005: 1;
FY 2006: 2;
FY 2007: 4;
Total: 20.
Source: GAO analysis of ICM data.
[End of table]
According to the Division's fiscal year 2005 budget submission, the
Section's ability to identify patterns and practices of discrimination
against persons with disabilities through testing had been reduced
during fiscal year 2003 when the Immigration and Naturalization
Services was transferred to the Department of Homeland Security, as
many experienced and trained DOJ testers were Immigration and
Naturalization Services employees. In 2006, the Attorney General
initiated Operation Home Sweet Home to ensure equal access to housing
by expanding and targeting the Division's fair housing testing program.
[Footnote 96] Housing Section officials stated that Operation Home
Sweet Home has resulted in an increase in the quantity and quality of
testing.
The Section Filed Cases Under ECOA, RLUIPA and Title II:
The Housing Section filed a total of 26 cases pursuant to ECOA, RLUIPA
and Title II. All 9 ECOA complaints, 5 of which were in combination
with the FHA, involved lending issues. Seven of the 9 complaints
included at least one allegation of racial discrimination and 4
included at least one allegation of discrimination on the basis of
national origin/ethnicity.[Footnote 97] For example, in October 2006,
the Section filed a complaint alleging that a bank was in violation of
ECOA and the FHA for discriminating on the basis of race and national
origin by, among other things, placing branch offices and providing
banking and lending services to meet the banking and credit needs in
majority White areas, but not areas where minorities comprised the
majority of the population. The Section filed 5 complaints pursuant to
RLUIPA, 1 in combination with FHA. All of the RLUIPA complaints
involved discrimination based on religion and the issue of land use/
zoning/local government. The Section also filed 12 public accommodation
complaints under Title II, all of which involved at least 1 allegation
of racial discrimination, national origin/ethnicity discrimination, or
both.
The Voting Section Initiated Matters and Filed Cases Primarily under
the Voting Rights Act on Behalf of Language Minority Groups, and
Devoted the Greatest Proportion of Its Time to Reviews of Changes in
Voting Practices and Procedures:
From fiscal years 2001 through 2007, the Voting Section was responsible
for enforcing federal statutes that protect the voting rights of racial
and language minorities, disabled and illiterate persons, and overseas
and military personnel. During the 7-year period, the Section initiated
more matters (367 of 442) and cases (39 of 56) under the Voting Rights
Act than the other statutes it enforced, and primarily on behalf of
language minority groups (246 of 367 matters and 30 of 56 cases).
According to aggregate time data for the 7-year period, the Voting
Section spent the greatest total percentage of time (52 percent) on
administrative reviews of proposed changes in the voting practices and
procedures of certain jurisdictions covered under section 5 of the VRA,
such as a proposed redistricting plan--which would make changes to the
geographic boundaries of voting districts--or the relocation of a
polling place, as compared with cases (33 percent) or matters (14
percent).
The Voting Section Had Various Statutory Responsibilities from Fiscal
Years 2001 through 2007:
The Voting Section has responsibility for the enforcement of federal
voting rights statutes, including provisions designed to safeguard the
right to vote of racial and language minorities, disabled and
illiterate persons, and overseas and military personnel. The Section
undertook its statutory responsibilities on behalf of specific
protected classes, for example, ensuring that certain jurisdictions
provide voting materials in the languages of certain language minority
groups as well as in English. In addition, the Section enforced
provisions that are to protect voters in general, such as the
requirement that states provide provisional ballots to voters in
federal elections who claim to be eligible and registered to vote, but
whose names do not appear on the polling place register. From fiscal
years 2001 through 2007, the Section enforced the Voting Rights Act
(VRA); the National Voter Registration Act (NVRA); the Uniformed and
Overseas Citizens Absentee Voting Act (UOCAVA); and beginning in fiscal
year 2002, the Help America Vote Act (HAVA). Table 19 presents
responsibilities of the Voting Section by statute and provision.
Appendix IV provides additional information about each statute enforced
by the Voting Section.
Table 19: Statutory provisions enforced by the Voting Section from
fiscal years 2001 through 2007:
Statutory provision: Section 2 of the VRA, 42 U.S.C. § 1973;
Description of responsibilities: Section 2 of the Voting Rights Act
prohibits discriminatory procedures or practices that result in a
denial or abridgment of the right to vote on account of race, color, or
membership in a language minority group. Section 2 prohibits not only
voting practices and procedures that are intended to discriminate
against these protected classes, but also those practices and
procedures that have a discriminatory impact.
Statutory provision: Sections 203, 4(f)(4) and 4(e), of the VRA, 42
U.S.C. §§ 1973aa-1a, 1973b(f)(4), 1973b(e);
Description of responsibilities: Collectively known as the "language
minority provisions" of the Voting Rights Act, sections 203 and 4(f)(4)
are to enable members of applicable language minority groups to
participate effectively in the electoral process; thus, covered
jurisdictions must provide registration and voting materials in the
language of the applicable minority group, in addition to English, or,
in certain instances, provide oral instructions. Section 4(e) prohibits
states from denying the right to vote on the basis of English
proficiency to those who were educated in public or accredited private
schools in which the predominant classroom language was other than
English.
Statutory provision: Section 208 of the VRA, 42 U.S.C. § 1973aa-6;
Description of responsibilities: Section 208 allows any voter who
requires assistance to vote by reason of blindness, disability, or
inability to read or write to be given assistance generally by a person
of the voter's choice.
Statutory provision: Section 5 of the VRA, 42 U.S.C. § 1973c.;
Description of responsibilities: Under Section 5, state and local
jurisdictions in certain parts of the country may not change their
election practices or procedures, which include moving a polling place
or changing district lines in the county, until they obtain federal
"preclearance" that the change has neither the purpose nor the effect
of discriminating against protected minorities in exercising their
voting rights. Preclearance may be obtained either from the United
States District Court for the District of Columbia or the Attorney
General.
Statutory provision: Section 4 of the VRA, 42 U.S.C. § 1973b;
Description of responsibilities: Section 4 of the VRA provides for
jurisdictions to terminate or "bailout" from the requirements of
section 5, if determined by a three-judge panel of the United States
District Court for the District of Columbia to meet certain statutory
standards. The Attorney General is authorized to consent to an entry of
judgment granting the bailout.
Statutory provision: Section 11(b) of the VRA, 42 U.S.C. § 1973i(b);
Description of responsibilities: Section 11(b) prohibits persons,
whether or not they are acting on behalf of the government, from
intimidating, threatening, or coercing, or attempting to do so, any
person for voting or attempting to vote. It further prohibits
intimidation, threats, or coercion of persons aiding others in voting
or exercising certain powers or duties under the VRA.
Statutory provision: Help America Vote Act of 2002 (HAVA), 42 U.S.C. §§
15301-545;
Description of responsibilities: HAVA established requirements related
to voting system standards, provisional voting and voting information,
and computerized statewide voter registration lists to be enforced by
the Attorney General.
Statutory provision: National Voter Registration Act of 1993 (NVRA), 42
U.S.C. §§ 1973gg -1973gg-10;
Description of responsibilities: The NVRA requires states to adopt
certain federal voter registration procedures and contains detailed
requirements regarding state removal of names from federal registration
rolls. The NVRA requires states to have a program to remove ineligible
voters from voter rolls, but also requires that such list maintenance
programs incorporate specific safeguards.
Statutory provision: Uniformed and Overseas Citizens Absentee Voting
Act (UOCAVA), 42 U.S.C. §§ 1973ff -1973ff-6;
Description of responsibilities: UOCAVA requires states and territories
to allow absent uniformed services voters and their spouses or
dependents, as well as overseas voters, to register and vote absentee
in federal elections.
Source: GAO summary of federal statutes.
[End of table]
The Voting Section has the discretion to initiate a matter or pursue a
case under all of its statutes, with the exception of the review of
changes in voting practices or procedures, which it is statutorily
required to conduct under section 5 of the VRA.[Footnote 98],[Footnote
99] According to Section officials, the Section identifies possible
violations of the statutes it enforces from allegations of
discriminatory practices that it receives from citizens, as well as
advocacy and community organizations, members of Congress, and U.S.
Attorney's Offices; by staff reviewing news articles; and through the
Section's election monitoring efforts.[Footnote 100] They noted that
during the 7-year period, as compared to prior years, the Section had
received complaints from a broader range of racial and ethnic groups
and a consortium of civil rights organizations that monitor polling
places during elections. Section and Division officials identified
shifts in the Section's priorities beginning in 2002. In October 2007,
the Section Chief who served from 2005 through late 2007 told us that
the Voting Section was focused on enforcing all of the statutes for
which it was responsible, rather than any provision in particular. He
further stated that while at-large election systems that discriminated
against African Americans remained a priority of the Section, not many
of these systems continued to discriminate, and new tensions over
immigration had emerged; therefore, the Section had been pursuing cases
of voting discrimination against citizens of other minority groups.
[Footnote 101] However, in September 2009, Voting Section officials
stated that while many at-large election systems that diluted minority
voting strength have been successfully challenged, the Section
continued to identify such systems that discriminate against African
American, Hispanic, and Native American residents in jurisdictions
throughout the country and that taking action against at-large election
systems remained a high priority for the Section. They also stated that
the Section had as a priority the enforcement of all the statutes for
which it was responsible throughout the period of our review. In July
2007, the Assistant Attorney General stated that since 2002, the
Section had increased its enforcement of the minority language
provisions of the VRA and in 2002 had instituted the most vigorous
outreach efforts to jurisdictions covered by the minority language
provisions of the Act. Additionally, the Acting Assistant Attorney
General reported in September 2008 that the Division had brought more
cases under the VRA's minority language provisions during the past 7
years than in all other years combined since 1975.
The Voting Section Initiated More Matters under the VRA than Other
Statutes and Primarily on Behalf of Language Minority Groups:
From fiscal years 2001 through 2007, the Voting Section initiated 442
matters, over 80 percent (367 of 442) of which involved allegations
under the VRA.[Footnote 102] Although the number of matters initiated
each fiscal year fluctuated, the largest number of matters initiated
consistently involved the enforcement of VRA provisions, increasing in
fiscal year 2003 to its highest level (136 of 367) and then generally
declining. Section officials explained that, generally, fluctuation
from year to year in terms of the number of matters initiated under any
of the statutes enforced by the Section is a normal occurrence;
however, certain occurrences and initiatives of the Section, described
as applicable below, may affect the distribution of cases over time.
Table 20 shows the number of matters initiated by the Voting Section
from fiscal years 2001 through 2007.
Table 20: Matters initiated by the Voting Section from fiscal years
2001 through 2007 by statute.
Statute: VRA;
Fiscal year: 2001: 52;
Fiscal year: 2002: 69;
Fiscal year: 2003: 136;
Fiscal year: 2004: 38;
Fiscal year: 2005: 19;
Fiscal year: 2006: 18;
Fiscal year: 2007: 29;
Total: 361.
Statute: HAVA;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: 6;
Fiscal year: 2006: 19;
Fiscal year: 2007: [Empty];
Total: 25.
Statute: HAVA/NVRA;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: 1;
Fiscal year: 2007: [Empty];
Total: 1.
Statute: HAVA/VRA;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: 1;
Fiscal year: 2006: [Empty];
Fiscal year: 2007: 2;
Total: 3.
Statute: NVRA;
Fiscal year: 2001: 5;
Fiscal year: 2002: 2;
Fiscal year: 2003: 2;
Fiscal year: 2004: 4;
Fiscal year: 2005: 3;
Fiscal year: 2006: 3;
Fiscal year: 2007: 1;
Total: 20.
Statute: NVRA/VRA;
Fiscal year: 2001: 1;
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: 1;
Fiscal year: 2005: [Empty];
Fiscal year: 2006: 1;
Fiscal year: 2007: [Empty];
Total: 3.
Statute: UOCAVA;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: 1;
Fiscal year: 2003: 3;
Fiscal year: 2004: 3;
Fiscal year: 2005: 3;
Fiscal year: 2006: 9;
Fiscal year: 2007: 5;
Total: 24.
Statute: Other[A];
Fiscal year: 2001: 4;
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: 1;
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007: [Empty];
Total: 5.
Statute: Total;
Fiscal year: 2001: 62;
Fiscal year: 2002: 72;
Fiscal year: 2003: 141;
Fiscal year: 2004: 47;
Fiscal year: 2005: 32;
Fiscal year: 2006: 51;
Fiscal year: 2007: 37;
Total: 442.
Source: GAO analysis of VOT aggregate matter data.
[A] Other includes one matter involving a challenge to the
constitutionality of UOCAVA; a project to post on the Section's web
site information on the rules for restoring the rights for ex-felons;
and matters pursuant to the Voting Accessibility for the Elderly and
Handicapped Act of 1984, 42 U.S.C. §§ 1973ee to 1973ee-6, which, with
certain exceptions, requires that for federal elections polling places
and registration facilities be accessible to handicapped and elderly
voters and states make available registration and voting aids for
handicapped and elderly individuals.
[End of table]
As shown in Figure 3, over half (246 of 442) of all matters initiated
during the 7-year period were on behalf of language minority
groups.[Footnote 103] The Section initiated the largest number of these
matters in fiscal years 2002 and 2003 (52 and 117, respectively), which
constituted almost 70 percent (169 of 246) of all matters initiated on
behalf of language minority groups. Section officials explained that
while the Section's work is for the most part driven by information
received from various sources, the likely explanation for the increased
number of matters on behalf of language minority groups was, in part,
due to increased Section activity following the renewed 2002
determinations of the Director of the Bureau of the Census regarding
jurisdictions covered by section 203 of the VRA.[Footnote 104]
Following the coverage determinations, the Section, in the latter part
of 2002 and in 2003, initiated investigations of newly covered
jurisdictions to ensure compliance with the law's requirements. In
addition, around the same time period, the Section had an initiative to
investigate at-large elections in numerous jurisdictions, particularly
in California, many of which had experienced significant minority
population growth.
Figure 3: Language Minority Matters Compared with All Matters Initiated
by the Voting Section from Fiscal Years 2001 through 2007:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 2001;
All matters: 62;
Language minority: 13.
Fiscal year: 2002;
All matters: 72;
Language minority: 52.
Fiscal year: 2003;
All matters: 141;
Language minority: 117.
Fiscal year: 2004;
All matters: 47;
Language minority: 24.
Fiscal year: 2005;
All matters: 32;
Language minority: 13.
Fiscal year: 2006;
All matters: 51;
Language minority: 12.
Fiscal year: 2007;
All matters: 37;
Language minority: 15.
Total;
All matters: 442;
Language minority: 246.
Source: GAO analysis of ICM data.
[End of figure]
The Majority of Matters Initiated on Behalf of Language Minority Groups
Involved Spanish Speakers:
Over 80 percent (203 of 246) of the language minority matters involved
Spanish speakers; approximately 16 percent involved Native Americans or
Alaska Natives (39 of 246); and about 9 percent involved Asian language
speakers (21 of 246).[Footnote 105] As shown in table 21, about half of
the matters involving Spanish and Native Americans voters were
initiated in fiscal year 2003, which officials explained was, in part,
as a result of the post-Census initiative described above.
Table 21: Matters initiated on behalf of language minorities by fiscal
year.
Protected Class: Chinese;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 1;
Fiscal Year: 2004: 1;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Total: 2.
Protected Class: Chinese/Other Asian;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 1;
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Total: 1.
Protected Class: Chinese/Spanish;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 1;
Fiscal Year: 2003: 2;
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 2;
Fiscal Year: 2007: 1;
Total: 6.
Protected Class: Chinese/Other Asian/Spanish/Vietnamese;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 1;
Fiscal Year: 2007: [Empty];
Total: 1.
Protected Class: Native American;
Fiscal Year: 2001: 3;
Fiscal Year: 2002: 5;
Fiscal Year: 2003: 20;
Fiscal Year: 2004: 1;
Fiscal Year: 2005: 2;
Fiscal Year: 2006: 1;
Fiscal Year: 2007: 1;
Total: 33.
Protected Class: Native American/Spanish;
Fiscal Year: 2001: 1;
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 2;
Fiscal Year: 2004: 3;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Total: 6.
Protected Class: Other Asian;
Fiscal Year: 2001: 1;
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 2;
Fiscal Year: 2004: 1;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 2;
Total: 6.
Protected Class: Other Asian/Spanish;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 3;
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 1;
Total: 4.
Protected Class: Spanish;
Fiscal Year: 2001: 6;
Fiscal Year: 2002: 46;
Fiscal Year: 2003: 84;
Fiscal Year: 2004: 17;
Fiscal Year: 2005: 10;
Fiscal Year: 2006: 7;
Fiscal Year: 2007: 9;
Total: 179.
Protected Class: Spanish/Race - African American;
Fiscal Year: 2001: 2;
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: 1;
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Total: 3.
Protected Class: Spanish/Race - Hispanic;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 1;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 1;
Fiscal Year: 2007: [Empty];
Total: 2.
Protected Class: Spanish/Race - Asian;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 2;
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Total: 2.
Protected Class: Vietnamese/Race - African American;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 1;
Total: 1.
Total:
Fiscal Year: 2001: 13;
Fiscal Year: 2002: 52;
Fiscal Year: 2003: 117;
Fiscal Year: 2004: 24;
Fiscal Year: 2005: 13;
Fiscal Year: 2006: 12;
Fiscal Year: 2007: 15;
Total: 246.
Source GAO analysis of ICM data.
[End of table]
Almost seventy percent (171 of 246) of the matters initiated on behalf
of language minorities were under the VRA's language minority
provisions that require covered jurisdictions to provide bilingual
written materials and other assistance for elections (e.g., ballots) in
the language of the applicable minority group or oral instructions in
the case of Alaska Natives or American Indians.[Footnote 103] For
example, in one matter, the Section requested and received from the
official responsible for administering elections copies of bilingual
materials for a general election to determine whether a jurisdiction
was in compliance with section 203. Matters initiated on behalf of
language minorities also involved claims under other VRA provisions--
about 80 matters under section 2 of the VRA[Footnote 107] and 8
alleging intimidation.[Footnote 108]
About Half of the Matters Initiated under Section 2 of the VRA Involved
Language Minority Groups and About Half Involved Racial Minority
Groups:
From fiscal years 2001 through 2007, the Voting Section initiated 162
matters under section 2 of the VRA--about 80 involving a language
minority group and 88 involving a racial minority group.[Footnote 109]
As shown in Table 22, the majority (71 of 80) of the section 2 language
minority matters were initiated on behalf of Spanish speakers. The
largest number (71 of 88) of matters initiated on behalf of racial
minorities involved African American voters. Table 4 shows the number
of matters that the Voting Section initiated under section 2 of the VRA
from fiscal years 2001 through 2007, by protected class.
Table 22: Section 2 matters initiated from fiscal years 2001 through
2007, by protected class:
Protected Class: Language Minority; Spanish;
Total: 64.
Protected Class: Language Minority; Native American;
Total: 6.
Protected Class: Language Minority; Native American/Spanish;
Total: 1.
Protected Class: Language Minority; Asian;
Total: 2.
Protected Class: Language Minority; Total;
Total: 73.
Protected Class: Race; African American;
Total: 64.
Protected Class: Race; Asian;
Total: 6.
Protected Class: Race; Hispanic;
Total: 4.
Protected Class: Race; American Indian/Alaska Native;
Total: 1.
Protected Class: Race; African American/Hispanic;
Total: 3.
Protected Class: Race; African American/White;
Total: 1.
Protected Class: Race; Native Hawaiian/Other Pacific Islander;
Total: 2.
Protected Class: Race; Total;
Total: 81.
Protected Class: Language Minority and Race; Language Minority-
Spanish/Race-Hispanic;
Total: 2.
Protected Class: Language Minority and Race; Language Minority -
Spanish/Race - African American;
Total: 2.
Protected Class: Language Minority and Race; Language Minority -
Spanish/Race - Asian;
Total: 2.
Protected Class: Language Minority and Race; Language Minority -
Vietnamese Race - African American;
Total: 1.
Protected Class: Language Minority and Race; Total;
Total: 7.
Protected Class: Voters[A];
Total: 1.
Grand Total:
Total: 162.
Source: GAO analysis of ICM data.
[A] Specific protected class was not identified.
[End of table]
Most of the section 2 matters were initiated in fiscal years 2001
through 2003 (121/162). Section officials reported that the larger
number of section 2 matters in 2001 can likely be attributed to a
highly contested and controversial Presidential election occurring in
November 2000, which gave rise to an abnormally high number of election-
related complaints to DOJ. In addition, as noted above, Section
officials reported that the Section had developed a section 2
initiative in the latter part of fiscal year 2002 and in 2003 to
investigate at-large elections in numerous jurisdictions where African
American or Hispanic population growth had occurred. Figure 4 shows the
number of section 2 matters initiated in each of fiscal years 2001
through 2007.
Figure 4: Number of VRA Section 2 Matters Filed by the Voting Section
for Fiscal Years 2001 through 2007:
[Refer to PDF for image: vertical bar graph]
Fiscal year: 2001;
Matters: 37.
Fiscal year: 2002;
Matters: 13.
Fiscal year: 2003;
Matters: 71.
Fiscal year: 2004;
Matters: 9.
Fiscal year: 2005;
Matters: 9.
Fiscal year: 2006;
Matters: 7.
Fiscal year: 2007;
Matters: 16.
Total:
Matters: 162.
Source: GAO analysis of ICM data.
[End of figure]
As shown in table 23, the 162 matters initiated under section 2
involved three issues--at-large methods of election (103 of 162),
"other dilution" (12 of 162), and other practices prohibited under
section 2 (47 of 162), which are described below. The relative
proportion of matters involving language minority groups as compared
with racial minority groups varied by issue.
Table 23: Matters initiated by the Voting Section under VRA Section 2
from fiscal years 2001 through 2007 by subject:
VRA Provision: Section 2 - At Large[A];
Protected Class: Language Minority; Total: 60.
Protected Class: Race;
Total: 39.
Protected Class: Language Minority and Race; Total: 4.
Section 2 - At Large Total;
Total: 103.
VRA Provision: Section 2 - Other Dilution;
Protected Class: Race;
Total: 7.
Protected Class: Language Minority;
Total: 3.
Protected Class: Language Minority and Race;
Total: 2.
Section 2 - Other Dilution Total;
Total: 12.
VRA Provision: Section 2 - Other;
Protected Class: Race;
Total: 35.
Protected Class: Language Minority;
Total: 10.
Protected Class: Language Minority and Race;
Total: 1.
Protected Class: Voters;
Total: 1.
Section 2 - Other Total;
Total: 47.
Grand Total;
Total: 162.
Source GAO analysis of ICM data.
[A] Section officials, noted, however, that most of the matters opened
for investigations of at-large elections involving Hispanic voters were
designated under the protected class of "language minority - Spanish,"
whereas now, the Section uses the racial category of Hispanic in order
to distinguish these matters from the bilingual minority language
matters.
[End of table]
About 64 percent (103 of 162) of the section 2 matters involved at-
large methods of election.[Footnote 110] About 62 percent (64 of 103)
of these at-large matters were initiated on behalf of language
minorities and about 42 percent (43 of 103) were initiated on behalf of
racial minorities, including 4 matters involving both racial and
language minorities. For example, in one matter, the Section initiated
an investigation to determine whether there was cause to believe that
the at-large method of election for a city council diluted Hispanic
voting strength in violation of section 2. Matters that the Section
characterizes as "section 2--other dilution" are similar to the at-
large matters in that they involve allegations that the method of
election or election plan--other than an at-large election system--
denies members of the protected class an opportunity to participate in
the political process and elect representatives of their choice equal
to other members of the electorate. For example, according to Section
officials, such matters may involve a challenge to a jurisdiction's
redistricting plan. The Section initiated 12 of these matters--7 on
behalf of racial groups, 3 on behalf of language minorities, and 2
involving both racial and language minorities. Section officials
reported that they would expect to see the large majority of their
section 2 work involving voting practices such as at-large and other
dilutive methods of election.
In addition, the Voting Section initiated 47 (of 162) section 2 matters
challenging practices other than a method of election, such as voting
qualifications that deny or abridge the rights of protected groups,
discriminatory voting registration procedures, or election-day
practices that have a "disparate impact" (i.e., a greater impact on one
group of voters than other groups). For example, one matter involved
allegations that African American students at a college and a
university faced discriminatory treatment in the registration process
for the 2000 Presidential election. A second matter involved
allegations from a citizen that city officials had discriminated
against a Hispanic candidate for city council by invalidating her
filing forms while accepting similar forms from another candidate and
had instructed voters during an election not to vote for "the Mexican."
Thirty-five of these (47) matters were initiated on behalf of racial
minority groups of which 31 involved African Americans, 10 were on
behalf of language minority groups, and 1 included both language
minority and racial groups.[Footnote 111] Section officials told us
that these types of claims often grow out of section 203 language
minority investigations, and are not always reflected in ICM data.
The Section Initiated Matters Under VRA's Intimidation Provision, as
well as Under HAVA, the NVRA and UOCAVA:
The Section also initiated 27 matters, referred to as intimidation
matters, under the provision of the VRA that prohibits persons, whether
or not they are acting on behalf of the government, from, among other
things, intimidating or threatening anyone for voting or anyone who is
aiding others in voting.[Footnote 112] These matters primarily involved
the intimidation of persons belong to racial groups--African Americans
(16), Whites (2), Hispanics (1). Eight involved language minorities.
[Footnote 113]
In addition to the VRA, the Voting Section initiated 76 matters under
HAVA, NVRA, and UOCAVA on behalf of voters. The Section initiated 29
matters involving HAVA provisions in fiscal years 2005 through
2007.[Footnote 114] About two-thirds of the HAVA matters (19 of 29)
involved issues related to HAVA's voter list requirements, which refers
to the computerized statewide voter registration list required by
section 303(a) of HAVA. For example, the Section initiated one HAVA
matter when several organizations brought a lawsuit alleging that a
state had violated HAVA and other federal law in the operation of its
computerized voter registration database. The state filed a motion in
court seeking to add the United States as a defendant, which the
Section successfully opposed in court because the United States was not
a necessary party. Section officials explained that the largest number
(20 of 29) of HAVA matters was initiated in fiscal year 2006 because
the HAVA voting systems standards requirements went into effect on
January 1, 2006, and the computerized statewide voter registration list
requirements became effective for most states that had applied for a
waiver on January 1, 2006 as well. Section officials told us that for a
time prior to and following the January 1, 2006 deadline, the Section
was engaged in extensive investigation efforts to determine states'
compliance with the law. Section officials reported that most of the
issues that arose with the states with regard to compliance were
resolved cooperatively without resort to litigation.
The Section also initiated 24 matters under the NVRA. These matters
either involved issues related to the requirement to remove voters from
registration lists under specified conditions--known as "purge" cases
(11)--or issues related to the registration of voters (6).[Footnote
115],[Footnote 116] For example, in one NVRA matter, the Section
investigated a citizen's allegations that a newspaper had improperly
published about 50,000 names of inactive voters and had reported that
these voters were subject to removal from the registration list unless
action was taken.
In addition, the Voting Section initiated 24 matters under UOCAVA. For
example, in one matter, the State Supreme Court had issued an order
staying the distribution of ballots to overseas voters pending the
outcome of litigation regarding the appearance of certain candidates on
the ballot. The Section wrote a letter to the State Attorney General
expressing concerns regarding potential violations of UOCAVA‘s mailing
requirements. Because UOCAVA only applies to federal elections, Section
officials explained that, typically, more matters are initiated during
federal election years; however, special elections to fill vacancies in
congressional seats occasionally arise in odd-numbered years as well,
which have resulted in UOCAVA matters. According to Section officials,
the number of UOCAVA matters initiated was the highest in fiscal year
2006 (9 of 24) because after a UOCAVA case involving run-off elections
in Georgia, they sought to identify other states where the statutory
timetables for primary run-off elections did not permit enough time for
overseas balloting. (Appendix IV provides information on the reasons
why the Voting Section closed matters.[Footnote 117])
Similar to Matters, the Voting Section Filed More Cases under the VRA
than Other Statutes and Primarily on Behalf of Language Minority
Groups:
During the 7-year period, the Voting Section filed 56 cases, primarily
under the VRA and on behalf of language minority groups. The Section
also participated in 33 cases as plaintiff-intervenor (1), amicus (2),
or defendant (30); handled 19 Immigration and Nationality Act appeals
for DOJ's Office of Immigration Litigation in fiscal years 2006 and
2007; and continued to participate in approximately 25 cases in which
the complaint or brief had been filed prior to 2001, but remained open
for at least part of the 7-year period. Appendix IV provides
information on these cases. According to Section officials, the Section
typically pursued cases that address systemic problems, similar to
pattern or practice cases in the Employment Litigation and Housing and
Civil Enforcement Sections, involving larger and more complex issues
than a single act of discrimination. They said that an at-large method
of election is the most systemic type of method the Section might
attempt to change, but other practices may also have a systemic effect.
For example, the use of racial slurs by pollworkers, if not an isolated
instance, may create a hostile environment for minority voters in a
polling place. Section officials further stated that the failure of
local officials to take corrective actions can also tend to make a
practice more systemic. The Section Chief from 2005 through 2007 told
us that when deciding whether to pursue a case, the Section considered
legal merit, available section resources, timing, whether the issue was
a priority of the Attorney General, and whether the Section could win
the case.[Footnote 118]
As shown in table 24, approximately two-thirds (39) of the 56 plaintiff
cases filed by the Voting Section from fiscal years 2001 through 2007
included a claim under the VRA. Almost half (27 of 56) of these cases
were filed in fiscal years 2006 and 2007.
Table 24: Voting cases filed from fiscal years 2001 through 2007 by
statute:
Statutes: VRA;
Fiscal Year: 2001: 2;
Fiscal Year: 2002: 4;
Fiscal Year: 2003: 2;
Fiscal Year: 2004: 4;
Fiscal Year: 2005: 7;
Fiscal Year: 2006: 6;
Fiscal Year: 2007: 8;
Total: 33.
Statutes: HAVA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 2;
Fiscal Year: 2007: [Empty];
Total: 2.
Statutes: HAVA/NVRA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 1;
Fiscal Year: 2007: 1;
Total: 2.
Statutes: HAVA/NVRA/VRA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 2;
Total: 2.
Statutes: HAVA/VRA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 1;
Fiscal Year: 2005: 1;
Fiscal Year: 2006: 1;
Fiscal Year: 2007: 1;
Total: 4.
Statutes: NVRA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 2;
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 2;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 2;
Fiscal Year: 2007: [Empty];
Total: 6.
Statutes: UOCAVA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 2;
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 2;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: 3;
Fiscal Year: 2007: [Empty];
Total: 7.
Statutes: Total;
Fiscal Year: 2001: 2;
Fiscal Year: 2002: 8;
Fiscal Year: 2003: 2;
Fiscal Year: 2004: 9;
Fiscal Year: 2005: 8;
Fiscal Year: 2006: 15;
Fiscal Year: 2007: 12;
Total: 56.
Source GAO analysis of ICM data.
[End of table]
The Majority of Cases Filed on Behalf of Language Minority Groups
Involved Spanish Speakers:
The majority of cases (30 of 56) filed were brought on behalf of
language minorities. Twenty-seven of these cases involved claims on
behalf of Spanish-speakers. Six cases involved claims on behalf of
other language minority groups, including Chinese, Korean, Vietnamese,
Creole, and Tagalog speakers and Native Americans.[Footnote 119] While
cases involving language minority groups were filed under various
provisions of the VRA, the largest number of cases (24 of 30) involved
claims under section 203 of the VRA alleging that the covered
jurisdiction had failed to provide voting-related materials or
information relating to the electoral process in the language of the
applicable minority group. For example, in one section 203 case, the
Section alleged that, in conducting elections, a city, where over 46
percent of the total citizen voting age population was Hispanic, had
failed to translate fully into Spanish written election-day materials
and information, such as the official ballot, forms for voters with
disabilities, and signs identifying a polling place's location, among
others.
Other provisions under which the section filed cases on behalf of
language minorities included section 4(f)(4) of the VRA (3 of 30)--
which contains the same requirements for covered jurisdictions to
provide voting-related materials and information in languages other
than English--and section 208 of the VRA(9/30)--which entitles voters
who are blind, disabled, or unable to read or write to be assisted in
voting by a person of their choosing. All of the cases the Section
filed under section 208 were on behalf of language minorities. Section
officials explained that when the Section monitored elections to
determine if jurisdictions were providing effective language
assistance, monitors often discovered that in addition to inadequate
bilingual assistance, the jurisdiction was also not permitting voting
assistance to limited English proficient voters by a family member or
other person of the voter's choosing.
The Section filed five cases involving language minority groups
pursuant to section 2.[Footnote 120] Four of these cases involved the
denial or abridgment of the right to vote of Spanish speakers, one of
which also involved Chinese and Vietnamese speakers. For example, one
section 2 claim alleged that in conducting elections, city officials
had treated limited English proficient Hispanic and Asian American
voters disrespectfully by, among other things, improperly influencing,
coercing or ignoring their ballot choices and by refusing or failing to
provide them provisional ballots. The fifth section 2 language minority
case was filed on behalf of Native Americans.[Footnote 121] In
September 2008, the Acting Assistant Attorney General for Civil Rights
explained that, in many cases, violations of section 203 were
accompanied by such overt discrimination by poll workers that section 2
claims could have been brought as well. However, the Section had been
able to obtain complete and comprehensive relief through its litigation
and remedies under section 203 without the added expense and delay of a
section 2 claim.
Cases Filed under VRA Section 2 Primarily Involved Racial Minority
Groups:
From fiscal years 2001 through 2007, the Section filed 13 cases that
involved a claim under section 2 of the VRA, as shown in table 25.
[Footnote 122] Five cases were on behalf of language minority groups,
as previously discussed, and 10 were on behalf of racial minority
groups (two cases involved both racial and language minority groups).
[Footnote 123] Section officials reported that their litigation is
driven by the facts developed during investigations. They also stated
that they were not aware of any specific reasons for distribution of
section 2 cases filed by the Section among the various groups.
Table 25: VRA Section 2 cases filed from fiscal years 2001 through 2007
by protected class.
Protected Class: Language minority: Spanish;
Number of cases: 1.
Protected Class: Language minority: Spanish/Race: Hispanic;
Number of cases: 2.
Protected Class: Language minority: Spanish/Chinese/Vietnamese;
Number of cases: 1.
Protected Class: Language minority: Native American;
Number of cases: 1.
Protected Class: Race: Hispanic;
Number of cases: 4.
Protected Class: Race: African American;
Number of cases: 3.
Protected Class: Race: White;
Number of cases: 1.
Protected Class: Total;
Number of cases: 13.
Source: GAO analysis of ICM data and complaints filed.
[End of table]
Of the 10 cases filed on behalf of racial minorities, 6 were on behalf
of Hispanic citizens.[Footnote 124] In 3 of these 6 cases, the Section
challenged at-large methods of election, because the methods resulted
in Hispanic citizens having less opportunity than other members of the
electorate to participate in the political process and to elect
representatives of their choice. In the remaining three cases, the
Section alleged that other voting practices--such as hostile acts
directed at Hispanic voters or requiring Hispanic voters to prove their
citizenship without credible evidence calling into question their
citizenship--were in violation of section 2.
The Voting Section also brought three section 2 cases on behalf of
African Americans; 2 were filed in fiscal year 2001 and one was filed
in fiscal year 2006. All three cases challenged methods of election,
alleging that the methods diluted the voting power of African American
voters thus resulting in the denial of an opportunity equal to that
afforded to other members of the electorate to participate in the
political process and elect representatives of their choice. For
example, in the 2006 case, the Section claimed that the method of
electing the City Council, whereby the 5 members were elected at-large
and 4 were elected by ward (i.e., from particular districts), diluted
the voting strength of African American citizens. According to the
complaint filed in court, although African Americans comprised nearly
30 percent of the city's electorate and there had been eight recent
African American candidates for the city council at the time the case
was filed, not a single African American candidate had ever been
elected to the nine-member city council or to any other city office.
The complaint also alleged that the city could have used another method
to divide the districts that would result in African American citizens
constituting a majority of the total population and voting age
population in two districts.
The Section Also Filed One Intimidation Case on Behalf of White Voters:
During the 7-year period, the Section filed one intimidation case on
behalf of White voters in fiscal year 2005. According to Section
officials, the case was initially investigated under section 2 of the
VRA, but later included intimidation claims under section 11(b) of VRA.
The complaint alleged, among other things, that the defendants had:
* excluded Whites from participating in Democratic Executive Committee
affairs by excluding them from Committee meetings relating to primary
election matters and Democratic caucuses,
* manipulated the voter registration rolls in an unlawful manner, by
moving voters from one district to another in order to affect the
racial percentages of voters in particular districts and in an attempt
to alter the outcome in certain elections where African American and
White candidates oppose each other,
* systematically misapplied state absentee ballot procedures in a
matter that had disproportionately burdened White voters and
candidates, and;
* announced in local newspapers that certain named White individuals
would be prevented from voting and would not be welcome at the polls to
vote in the Democratic Primary.
In June 21, 2007, testimony before the Senate Judiciary Committee, the
Assistant Attorney General stated that this case was unusual in that it
was the most extreme case of racial exclusion seen by the Section in
decades, the racial discrimination was directed against White citizens,
and the Section was not aware of any other case in which the Section
had to move for a protective order to prevent the intimidation of
witnesses.
The Voting Section Filed Cases Under HAVA, the NVRA and UOCAVA:
Subsequent to HAVA's enactment in 2002, the Section filed ten cases
involving its provisions from fiscal years 2004 through 2007.[Footnote
125] Specifically, these ten cases involved allegations in five areas
relating to statutory requirements under the law, including the failure
to:
(1) provide provisional ballots to voters in federal elections who
claim to be eligible and registered to vote, but whose names do not
appear on the polling place register;
(2) comply with voter registration application-related requirements;
(3) comply with requirements making voting more accessible, including
the posting of voter information and the provision of voting systems
that are accessible for individuals with disabilities and in
alternative languages;
(4) implement identification requirements for first-time voters who
register by mail; and;
(5) establish an official computerized statewide voter registration
list.
Most cases (7 of 10) involved issues related to making voting more
accessible, Section officials explained that such cases were frequently
filed against localities and were often based on evidence obtained
during election day monitoring or other localized investigative
activities. For example, election observation in a locality for
minority language voting system requirement purposes might indicate
that, at certain polling places, there was no voting system accessible
to persons with disabilities or provisional voting was not implemented
in accordance with HAVA. In one case filed by the Section, for example,
the Section alleged that in the 2004 primary and general elections,
defendant county officials had failed to post in each polling place all
of the voting information required by HAVA, including information
regarding the date of the election, federal and state voting laws, and
requirements applicable to first-time voters who registered by mail.
According to Section officials, they had sent officials in 50 states a
letter explaining how to comply with HAVA and offered significant
ongoing guidance on the law's requirements.
During the 7-year period, the Section filed ten cases involving
allegations under provisions of the NVRA.[Footnote 126] From fiscal
years 2001 through 2007, the Section filed eight cases involving a
purge-related claim and three cases involving the issue of voter
registration.[Footnote 127] Purge cases may involve allegations that
the state did not have a program to remove ineligible voters from voter
rolls (i.e., a program of list maintenance, which is to ensure accurate
and current voter registration rolls for elections). For example, in
one case, the Section alleged that the state's failure to identify and
remove ineligible voters from the registration list and ensure that
local election jurisdictions had done so as well had resulted in
counties with excessively high registration totals as compared to the
voting age population in each county. Purge cases may also involve
allegations that in conducting this required program of removing
ineligible voters from the rolls, the state did not incorporate certain
safeguards, thus unlawfully removing eligible voters from registration
lists. In one instance, the Section filed a case alleging that a city's
procedures with respect to its voter lists had placed so high a burden
on certain voters that, for all practical purposes, they were prevented
from voting on Election Day and effectively removed from the voter
registration rolls in violation of the NVRA. Of the eight NRVA cases
with purge-related claims, which the Voting Section filed during the
period of our review, four cases involved claims that the jurisdiction
had failed to conduct a program to remove ineligible voters from voter
rolls, two involved claims that the jurisdiction unlawfully removed
voters from the voter rolls, and two cases involved both types of
claims. Section officials reported that during the time period of our
review, the Assistant Attorney General had as a priority identifying
list maintenance--i.e., purge--cases under the NRVA. They explained
that the focus was on both ensuring states had a list maintenance
program and that such programs incorporated required safeguards.
However, investigations may focus on one or more aspects of the NVRA
depending on the information received by the Section leading to the
initiation of the investigation and the facts developed during the
investigation.
The Section also filed seven cases involving allegations under UOCAVA
on behalf of overseas voters. In 2007, the Assistant Attorney General
reported that UOCAVA remained a priority of the Section and stated that
in calendar year 2006, the Voting Section had filed the largest number
of cases under UOCAVA in any year since 1992. Section officials
explained that the incidence of UOCAVA cases in 2006 was the result of
the Section's nationwide review of states with primary run-off
elections, as described above.
The Voting Section Engaged in Activities Under Section 5 of the Voting
Rights Act:
The Section also carried out its responsibilities under section 5 of
VRA, which requires certain jurisdictions covered under the act to
"preclear" changes to voting practices and procedures with DOJ or the
United States District Court for the District of Columbia to determine
that the change has neither the purpose nor the effect of
discriminating against protected minorities in exercising their voting
rights. As shown in table 26, from fiscal years 2001 through 2007, the
Voting Section received for administrative review 37,677 submissions--
containing 119,459 proposed changes--from jurisdictions required to
preclear changes in voting practices and procedures under section 5 of
the VRA. According to Voting Section officials, the Section analyzed
and reviewed each submission, which, on average, included 4.5 changes.
They said that proposed changes varied in complexity. For example,
moving a single voting place or adding registration sites were simple
changes, but state-wide redistricting changes were highly complex and
required more time than other types of proposed changes. As shown in
table 26, the number of section 5 submissions and the number of
proposed changes received by the Section fluctuated during the 7-year
period. The total number of submissions peaked in fiscal year 2006 at
7,294, containing a total of 20,434 proposed changes, although the
number of changes involving redistricting peaked (1,617) in fiscal year
2002 and subsequently declined. Voting Section officials explained that
most of the covered jurisdictions conduct their state and local
elections as well as federal elections in even-numbered years (e.g.,
2002, 2004 and 2006). Accordingly, as these jurisdictions prepare to
conduct the elections, they seek to implement a greater number of
changes affecting voting than in years when they are not conducting
elections, which accounts for the higher number of proposed changes in
those years. Officials also explained that the number of redistricting
plans submitted for review had increased early in the decade (2001-
2003), following the release of the 2000 Census, as has occurred after
each census. They reported that the Division usually provided
additional staff to meet the increased work demands. Officials said
that they expected a similar increase in the number of submissions
following the 2010 census and hoped that they would receive additional
staff; however, at the time of our review, they did not know whether
such resources would be forthcoming.[Footnote 128]
Table 26: Number of Section 5 submissions and changes received by the
Voting Section during fiscal years 2001 through 2007:
Number of submissions received:
Fiscal year: 2001: 3,949;
Fiscal year: 2002: 5,967;
Fiscal year: 2003: 4,616;
Fiscal year: 2004: 5,506;
Fiscal year: 2005: 4,456;
Fiscal year: 2006: 7,294;
Fiscal year: 2007: 5,889;
Fiscal year: Total: 37,677;
Number of changes:
Fiscal year: 2001: 12,458;
Fiscal year: 2002: 20,145;
Fiscal year: 2003: 15,166;
Fiscal year: 2004: 18,279;
Fiscal year: 2005: 13,210;
Fiscal year: 2006: 20,434;
Fiscal year: 2007: 19,767;
Fiscal year: Total: 119,459.
Source: GAO Analysis of STAPS data.
[End of table]
The Section reported that it made 42 objections to proposed changes;
however, some objections addressed more than one proposed change. As
shown in Table 27, almost 70 percent of the objections (29/42) involved
changes to redistricting plans. However, the proposed changes to
redistricting plans accounted for less than 3 percent (2,990 of
119,459) of the overall changes submitted to the Section during the 7-
year period.
Table 27: Number of objections to Section 5 changes proposed during
fiscal years 2001 through 2007:
Type of change: Includes redistricting;
Fiscal year: 2001: 1;
Fiscal year: 2002: 17;
Fiscal year: 2003: 5;
Fiscal year: 2004: 4;
Fiscal year: 2005: 1;
Fiscal year: 2006: 0;
Fiscal year: 2007: 1;
Fiscal year: Total: 29.
Type of change: Other;
Fiscal year: 2001: 1;
Fiscal year: 2002: 4;
Fiscal year: 2003: 3;
Fiscal year: 2004: 2;
Fiscal year: 2005: 0;
Fiscal year: 2006: 2;
Fiscal year: 2007: 1;
Fiscal year: Total: 13.
Type of change: Total;
Fiscal year: 2001: 2;
Fiscal year: 2002: 21;
Fiscal year: 2003: 8;
Fiscal year: 2004: 6;
Fiscal year: 2005: 1;
Fiscal year: 2006: 2;
Fiscal year: 2007: 2;
Fiscal year: Total: 42.
Source: Original source is Voting Section website. Note: Some
objections may involve multiple changes.
[End of table]
The Voting Section also initiated about 24 matters involving section 5
of the VRA.[Footnote 129] Sixteen matters involved the enforcement of
the preclearance requirement. For example, according to Section
officials, the Section might initiate a matter to investigate a voting
change that was not precleared or consider intervening in a private
right of action seeking an injunction for a voting change that was not
precleared. For 15 of these 16 matters, ICM data included information
about the group or groups affected by the enforcement action--11
involved African Americans, 4 involved the language minority group of
Spanish speakers, 1 involved the racial minority group of Hispanics,
and 1 involved White voters. An additional 4 matters involved issues
related to the administrative section 5 preclearance process and were
initiated on behalf of African Americans, one in conjunction with
Hispanics. The Section officials explained that the Section would
initiate this type of matter if an issue related to section 5 arose,
but was not a formal section 5 submission or litigation to which the
Section was a party. For example, prior to an expected statewide
redistricting submission under section 5, which the Section anticipated
to be complicated and resource and time-intensive, the Section might
open a matter to prepare for the submission. An additional 3 matters
involved issues related to jurisdictions that were required to preclear
voting changes under section 5 and were seeking to obtain a judgment
from the district court to be removed from coverage, referred to as a
"bailout." Information on the affected groups was available for two of
these matters--one involved the language minority group of Spanish
speakers as well as Hispanics, and the other involved African
Americans.
In addition, the Voting Section filed one case to enforce the
provisions of section 5 of the VRA. In that case, filed in fiscal year
2006, the Section alleged that the jurisdiction had failed to obtain
preclearance of a change to a practice or procedure affecting voting.
The Voting Section identified the minority voters potentially affected
by the voting change as African American and Hispanic voters.
The Voting Section Devoted the Greatest Proportion of its Time to
Reviews of Changes in Voting Practices and Procedures:
As shown in Table 28, from fiscal years 2001 through 2007, the Voting
Section reported spending the greatest total percentage of time (52
percent) on administratively reviewing Section 5 preclearance
submissions, as compared with cases (33 percent) or matters (14
percent).
Table 28: Percentage of time the Voting Section reported spending on
cases, matters, and section 5 reviews from fiscal years 2001 through
2007:
Activity type: Cases;
Percentage of total time: 33.
Activity type: Matter;
Percentage of total time: 14.
Activity type: Section 5;
Percentage of total time: 52.
Activity type: Total;
Percentage of total time: 100.
Source: GAO analysis of ICM time reporting data
Note: Percentages rounded to nearest whole number. Percentages do not
sum to 100 due to rounding. Hours that provide the basis for the
percentages include time of all Section staff, including section chief,
deputies, special counsel, attorneys, support staff, legal assistants,
law clerks, and any staff unique to a section.
[End of table]
The proportion of the total time spent on the administrative reviews of
voting changes generally decreased over the 7-year period. As shown in
table 29, 40 percent of the total time was spent in fiscal years 2001
and 2002; 70 percent was spent from fiscal years 2001 through 2004; and
only 8 percent was spent in fiscal year 2007. As previously discussed,
in the years immediately following a census the number of submissions
for preclearing complex redistricting plans increases and then
decreases over the 10-year period between each census. The fluctuation
in the number of preclearance submissions over time corresponds with
the changes in the time data. Appendix IV provides additional
information on the time spent by the Section on cases and matters
during the 7-year period.
Table 29: Percentage of time reported spent on Section 5 reviews from
fiscal years 2001 through 2007 by fiscal year:
Section 5 reviews:
Fiscal year: 2001: 18;
Fiscal year: 2002: 22;
Fiscal year: 2003: 15;
Fiscal year: 2004: 15;
Fiscal year: 2005: 12;
Fiscal year: 2006: 11;
Fiscal year: 2007: 8;
Fiscal year: Total: 100.
Source: GAO analysis of ICM time reporting data.
Notes:
Percentages rounded to nearest whole number. Percentages do not sum to
100 due to rounding. Hours that provide the basis for the percentages
include time of all Section staff, including section chief, deputies,
special counsel, attorneys, support staff, legal assistants, law
clerks, and any staff unique to a section.
[End of table]
The Special Litigation Section Primarily Investigated Matters and
Participated in Cases Involving Institutional Conditions and Devoted
the Greatest Percentage of Time to these Matters and Cases, as Compared
with Its Other Areas of Responsibility:
From fiscal years 2001 through 2007, the Special Litigation Section had
four areas of statutory responsibility--institutional conditions, the
conduct of law enforcement agencies, access to reproductive health
facilities and places of worship, and the exercise of religious freedom
of institutionalized persons--and initiated 693 matters and
participated in 33 cases under federal statutes corresponding to these
areas. Of the closed matters (544 of 693) initiated by the Section
during the 7-year period, about 373 involved institutional conditions
and 129 involved the conduct of law enforcement agencies, specifically
allegations of police misconduct.[Footnote 130] During the 7-year
period, the Section participated in 33 cases, the majority (27 of 33)
of which involved institutional conditions. According to aggregate data
on the time spent on matters and cases from fiscal years 2001 through
2007, the Section reported devoting the greatest percentage of time to
matters and cases involving institutional conditions, as compared with
its other areas of responsibility.
The Special Litigation Section Had Various Statutory Responsibilities
from Fiscal Years 2001 through 2007:
From fiscal years 2001 through 2007, the Special Litigation Section was
responsible for the enforcement of federal civil rights statutes in
four areas--institutional conditions, the conduct of law enforcement
agencies, access to reproductive health facilities and places of
religious worship, and the exercise of religious freedom of
institutionalized persons. According to Special Litigation Section
officials, the Section did not experience significant changes in its
statutory responsibilities during the 7-year period. The primary
statutes enforced by the Section were the Civil Rights of
Institutionalized Persons Act (CRIPA), Violent Crime Control and Law
Enforcement Act (14141), Freedom of Access to Clinic Entrances (FACE),
and the provisions of the Religious Land Use and Institutionalized
Persons Act (RLUIPA) protecting the rights of free exercise of religion
for institutionalized persons.[Footnote 131] A matter or a case might
be pursued under more than one statute. For example, a matter
concerning a prison or jail might involve allegations of egregious
conditions, such as lack of medical care, and practices affecting the
exercise of inmates' religious freedom in violation of CRIPA and
RLUIPA, respectively. While Special Litigation Section officials
reported that the Section had not undertaken any special initiatives
during the 7-year period, they noted that institutional conditions in
juvenile correctional facilities had been a priority of the Assistant
Attorney General who headed the Division from August 2003 through June
2005. Table 30 shows these responsibilities according to the statutory
provisions and how they apply to various forms of discrimination and
types of institutions.
Table 30: Statutory provisions enforced by the Special Litigation
Section from fiscal years 2001 through 2007:
Area of responsibility: Institutional conditions;
Statutory provision: Civil Rights Of Institutionalized Persons Act
(CRIPA), 42 U.S.C. §§ 1997-1997j;
Description of responsibilities: CRIPA protects the constitutional and
federal statutory rights of persons confined in certain institutions
operated by, or on behalf of, state or local governments (e.g.,
facilities for persons with developmental disabilities, nursing homes,
juvenile correctional facilities, and adult jails and prisons[A]) by
providing the Attorney General with the authority to bring lawsuits
where there is a pattern or practice of egregious and flagrant
conditions that deprive institutionalized persons of their federal or
constitutional rights.
Area of responsibility: Institutional conditions;
Statutory provision: Violent Crime Control and Law Enforcement Act
(14141), 42 U.S.C. § 14141;
Description of responsibilities: 14141 authorizes the Attorney General
to bring suit when juvenile justice system administrators engage in a
pattern or practice violating confined juveniles' constitutional or
federal rights.
Area of responsibility: Institutional conditions;
Statutory provision: Title III of the Civil Rights Act of 1964, 42
U.S.C. §2000b;
Description of responsibilities: Title III prohibits discrimination in
public facilities on the basis of race, color, religion, or national
origin.
Area of responsibility: Conduct of law enforcement agencies;
Statutory provision: Violent Crime Control and Law Enforcement Act
(14141);
Description of responsibilities: 14141 authorizes the Attorney General
to bring suit where law enforcement agencies have engaged in a pattern
or practice of conduct that violates federal law;
Area of responsibility: Conduct of law enforcement agencies;
Statutory provision: Omnibus Crime Control and Safe Streets Act, 42
U.S.C. § 3789d, and Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d et seq-
Description of responsibilities: Both statutes contain prohibitions on
discrimination based on race, color, religion, national origin, or
gender by law enforcement agencies receiving federal financial
assistance.
Area of responsibility: Access to reproductive health facilities and
places of religious worship;
Statutory provision: Freedom of Access to Clinic Entrances (FACE), 18
U.S.C. § 248;
Description of responsibilities: FACE prohibits the use or threats of
force and physical obstruction that injures, intimidates or interferes
with a persons seeking to obtain or provide reproductive health
services or to exercise the First Amendment right of religious freedom
at a place of religious worship.
Area of responsibility: Exercise of religious freedom of
institutionalized persons;
Statutory provision: Religious Land Use & Institutionalized Persons Act
(RLUIPA), 42 U.S.C. § 2000cc-1;
Description of responsibilities: Section 3 of RLUIPA protects the
rights of free exercise of religion for institutionalized persons, by
prohibiting a state or local government from imposing a substantial
burden on the religious exercise of an institutionalized person, unless
the government can demonstrate that the imposition furthers a
compelling interest and is the least restrictive means available to
further that interest.
Source: GAO review of federal laws.
[A] With respect to prisons, jails, and correctional facilities, under
CRIPA, the Section is authorized to seek relief for constitutional
violations only. 42 U.S.C. § 1997a(a).
[End of table]
The Special Litigation Section considered all of its work to be self-
initiated because it had discretion under all the statutes it enforced
to pursue or not to pursue an investigation or case. The Section could
bring cases involving the exercise of religious freedom under RLUIPA
and access to reproductive health facilities under FACE, on behalf of
individuals. However, it was statutorily required to file only claims
alleging a pattern or practice involving institutional conditions under
CRIPA and 14141 and claims alleging police misconduct under 14141.
According to Special Litigation Section officials, the Section received
allegations of unlawful conditions, discrimination or misconduct by law
enforcement from a variety of sources, including incarcerated persons,
family members of institutionalized persons, members of Congress,
advocacy groups, other federal agencies, states, and localities.
[Footnote 132] Section attorneys also developed cases from information
gathered from newspaper accounts or talking with representatives of
advocacy groups, among other things.
Unlike the other Sections, the Special Litigation Section always
conducted a pre-investigation (also referred to as preliminary inquiry)
prior to an investigation, which required the Assistant Attorney
General's approval to proceed.[Footnote 133] Staff were to open a
matter after spending more than 2 hours looking into an allegation,
which demonstrated the Section's interest in pursuing the matter.
Section officials said that these pre-investigations could be time-
consuming to complete, especially those involving CRIPA or 14141, which
require the Section to report on system allegations that suggest that
egregious and flagrant conditions that deprive institutionalized
persons of their constitutional or federal statutory rights or systemic
problems (e.g., a department-wide practice of police officers using
excessive force, not just an individual officer) might exist. They
further explained that many pre-investigations did not progress to an
investigation because the Special Litigation Section could not gather
sufficient evidence to show a pattern or practice of unlawful
conditions or conduct. According to Section officials, the Section
expected its attorneys and investigators to conduct preliminary
inquiries regularly to find new matters to investigate. However, when
attorneys and investigators were involved in contested litigation, they
primarily worked on the litigation and perhaps one or two ongoing cases
or matters and were not expected to, nor did they typically, open new
matters. Consequently, the Section opened fewer preliminary inquiries
when it was engaged in active litigation. Officials also said that the
Section experienced slight variations in the types of matters and cases
it investigates in the normal course of business. Appendix V provides
additional information on the statutes enforced by the Special
Litigation Section.
The Special Litigation Section Primarily Initiated Matters Involving
Institutional Conditions and Conduct of Law Enforcement Agencies:
As shown in table 31, the Special Litigation Section initiated 693
matters from fiscal years 2001 through 2007 under the statutes
corresponding to its four areas of responsibility. Over 70 percent of
all matters initiated (504 of 693) and the largest number of matters
initiated each fiscal year involved institutional conditions. These
matters most frequently alleged violations of CRIPA affecting
institutionalized persons in a variety of types of facilities. Matters
concerning prisons and jails could involve alleged violations of 14141
or RLUIPA, sometimes in conjunction with alleged CRIPA violations.
Matters concerning the administration of juvenile justice systems
always involved allegations of violations of 14141. Over 20 percent of
the matters initiated (158 of 693) concerned the conduct of law
enforcement agencies and alleged police misconduct in violation of
14141. The total number of matters initiated by the Section was highest
in fiscal years 2002 and 2003, and then generally declined.[Footnote
134] According to Section officials, during fiscal years 2002 and 2003,
the Section was not involved in active litigation, but in the ensuing
years it experienced increased case demands, possibly explaining the
decline in the number of matters initiated.[Footnote 135] In addition,
Section officials stated that fewer staff and resources were available
in the later years, as the number of onboard Special Litigation staff--
attorneys, professional, and clerical--decreased in fiscal years 2005,
2006, and 2007, from higher staff numbers in fiscal years 2003 and
2004.[Footnote 136]
Table 31: Matters initiated by the Special Litigation Section from
fiscal years 2001 through 2007 by fiscal year:
Statute: Institutional conditions: CRIPA[A];
Fiscal Year: 2001: 54;
Fiscal Year: 2002: 102;
Fiscal Year: 2003: 77;
Fiscal Year: 2004: 52;
Fiscal Year: 2005: 48;
Fiscal Year: 2006: 73;
Fiscal Year: 2007: 58;
Fiscal Year: Total: 464.
Statute: Institutional conditions: CRIPA and 14141[B];
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: 9;
Fiscal Year: 2004: 4;
Fiscal Year: 2005: 4;
Fiscal Year: 2006: 3;
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 20.
Statute: Institutional conditions: CRIPA and ADA[C];
Fiscal Year: 2001: 2;
Fiscal Year: 2002: 4;
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 5;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 11.
Statute: Institutional conditions: 14141[D];
Fiscal Year: 2001: 1;
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 6;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 2;
Fiscal Year: Total: 9.
Statute: Institutional conditions: Total;
Fiscal Year: 2001: 57;
Fiscal Year: 2002: 106;
Fiscal Year: 2003: 86;
Fiscal Year: 2004: 67;
Fiscal Year: 2005: 52;
Fiscal Year: 2006: 76;
Fiscal Year: 2007: 60;
Fiscal Year: Total: 504.
Statute: Conduct of law enforcement agencies: 14141;
Fiscal Year: 2001: 18;
Fiscal Year: 2002: 29;
Fiscal Year: 2003: 31;
Fiscal Year: 2004: 37;
Fiscal Year: 2005: 20;
Fiscal Year: 2006: 11;
Fiscal Year: 2007: 11;
Fiscal Year: Total: 157.
Statute: Conduct of law enforcement agencies: 14141 and Omnibus Crime
Control Act;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: 1;
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 1.
Statute: Conduct of law enforcement agencies: Total;
Fiscal Year: 2001: 18;
Fiscal Year: 2002: 29;
Fiscal Year: 2003: 31;
Fiscal Year: 2004: 38;
Fiscal Year: 2005: 20;
Fiscal Year: 2006: 11;
Fiscal Year: 2007: 11;
Fiscal Year: Total: 158.
Statute: Access to reproductive health facilities and places of
religious worship: FACE;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 1;
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 1.
Statute: Access to reproductive health facilities and places of
religious worship: Total;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 1;
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: [Empty];
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 1.
Statute: Exercise of religious freedom of institutionalized persons:
RLUIPA;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 3;
Fiscal Year: 2003: 17;
Fiscal Year: 2004: 1;
Fiscal Year: 2005: 2;
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 6;
Total: 29.
Statute: Exercise of religious freedom of institutionalized persons:
RLUIPA and CRIPA[E];
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: [Empty];
Fiscal Year: 2003: [Empty];
Fiscal Year: 2004: [Empty];
Fiscal Year: 2005: 1;
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: [Empty];
Fiscal Year: Total: 1.
Statute: Exercise of religious freedom of institutionalized persons:
Total;
Fiscal Year: 2001: [Empty];
Fiscal Year: 2002: 3;
Fiscal Year: 2003: 17;
Fiscal Year: 2004: 1;
Fiscal Year: 2005: 3;
Fiscal Year: 2006: [Empty];
Fiscal Year: 2007: 6;
Fiscal Year: Total: 30.
Grand Total;
Fiscal Year: 2001: 75;
Fiscal Year: 2002: 139;
Fiscal Year: 2003: 134;
Fiscal Year: 2004: 106;
Fiscal Year: 2005: 75;
Fiscal Year: 2006: 87;
Fiscal Year: 2007: 77;
Fiscal Year: Total: 693.
Source: GAO analysis of ICM aggregate matter data for fiscal years 2001
through 2007.
[A] Includes matters involving juvenile correctional facilities and
juvenile justice administration, for which complaints, if filed, would
be filed under 14141 rather than CRIPA.
[B] Includes matters involving juvenile correctional facilities and the
administration of juvenile justice systems.
[C] Includes some, but not all matters, involving institutional
conditions in facilities for persons with developmental disabilities
and nursing homes. These matters involved the integration mandate
provision of the Americans with Disability Act, also known as the
Olmstead Initiative, after the Supreme Court case, Olmstead v. L.C.,
527 U.S. 581 (1999), which upheld the most integrated setting
requirement of the ADA. That is, individuals are required to be moved
out of unnecessary institutionalization into community-based living
arrangements.
[D] These 9 matters involved the administration of juvenile
correctional systems within a state, not individual facilities.
[E] Because protected class was identified as religion, similar to
other RLUIPA matters, and not institutionalized persons, this matter
was categorized under religious worship rather than institutional
conditions.
[End of table]
The Largest Number of Closed Matters Involved Institutional Conditions
in Various Types of Facilities and the Conduct of Law Enforcement
Agencies:
Because the work of the Special Litigation Section primarily involved
enforcing statutes that protected the constitutional rights of persons
confined in certain institutional facilities and prohibited misconduct
by law enforcement agencies, analyzing the matter data in terms of the
types of facility under investigation helped to describe the work of
the Section during the 7-year period. Accordingly, we analyzed
disaggregated and more detailed information about 544 of the 693
matters initiated during the 7-year period and that the Section had
closed as of August 8, 2008.[Footnote 133] The closed matter data
included 521 pre-investigations and 23 authorized investigations. As
presented in figure 5, our analysis showed that the largest number of
closed matters (approximately 373 of the 544) for any of the Section's
four areas of responsibility involved institutional conditions. Conduct
by law enforcement agencies, specifically issues of police misconduct,
comprised the second largest group of matters and the most frequently
mentioned facility type--law enforcement agency (129 of 544).[Footnote
134] Twenty four matters involved issues related to the exercise of
religious freedom of institutionalized persons (e.g., denial of a
special diet required for religious reasons) in prisons (18), jails
(2), and jail-prisons (4).[Footnote 135], One matter involving access
to reproductive health facilities was a pre-investigation of
allegations of obstructive activities and property damage at a clinic.
According to Section officials, during the 7-year period, the Section
received few allegations of issues involving access to reproductive
health care facilities--clinics--in violation of FACE.
Figure 5: Matters Initiated and Closed by the Special Litigation
Section from Fiscal Years 2001 through 2007 by Area of Responsibility:
[Refer to PDF for image: vertical bar graph]
Institutional conditions:
Number: 373.
Conduct of law enforcement agencies:
Number: 129.
Exercise of religious freedom of institutionalized persons:
Number: 24.
Access to reproductive health facilities:
Number: 1.
Other[A]:
Number: 17.
Note: The data analyzed included 544 matters initiated by the Special
Litigation Section from fiscal years 2001 through 2007 and closed as of
August 8, 2008.
[A] Analyzing additional ICM fields, the 17 matters in the column--
"other" included: 5 involving access to court for juveniles; 1
involving religious freedom, but the type of facility was not
identified; 1 involving a nursing home; and 10 did identify the type of
facility.
[End of figure]
Closed matters involving institutional conditions:
The approximately 373 (of 544) closed matters involving institutional
conditions included pre-investigations and investigations of diverse
categories and different types of institutional facilities within each
category--adult corrections (e.g., jails and prisons), health and
social welfare (e.g., nursing homes, mental health facilities,
facilities for persons with developmental disabilities, and group
foster homes), and juvenile corrections (juvenile correctional
facilities or entire juvenile correctional systems). According to
Section officials, the Section usually investigated these matters under
its CRIPA authority, but matters involving juvenile correctional
facilities or systems and some matters involving prisons and jails were
investigated under 14141. Officials further explained that in
protecting the constitutional rights of institutionalized persons under
the CRIPA statute, its mandate was to try to resolve problems, not
necessarily to file a lawsuit.[Footnote 143] Consequently, the Section
might resolve allegations of CRIPA violations through settlements or
other agreements not filed in court, which then continued to be
identified as a matter in ICM. Officials said that the Section also
settled the vast majority of its jail, prison, and juvenile justice
cases rather than going to court because of a provision in the Prison
Litigation Reform Act enacted in 1996.[Footnote 144] This provision,
which required a state to admit liability before a court could enter
into a consent decree, made it difficult to file such cases since very
few jurisdictions agreed to admit liability.[Footnote 145] When the
Section did not file an agreement in court, the matter did not become a
case and the Section's monitoring of compliance under the settlement
agreement continued to be tracked in ICM as a matter. Table 32 shows
the number of matters that the Section initiated from fiscal years 2001
through 2007, which involved institutional conditions by category and
facility type.
Table 32: Number of Matters Initiated Involving Institutional
Conditions from Fiscal Years 2001 through 2007 by Category and Facility
Type:
Category: Adult corrections;
Facility type: Jail;
Number of closed matters[A]: 102.
Category: Adult corrections;
Facility type: Prison;
Number of closed matters[A]: 80.
Category: Adult corrections;
Facility type: Jail/prison;
Number of closed matters[A]: 1.
Category: Adult corrections;
Facility type: Total;
Number of closed matters[A]: 183.
Category: Health and social welfare;
Facility type: Nursing home;
Number of closed matters[A]: 86.
Category: Adult corrections;
Facility type: Mental health facility;
Number of closed matters[A]: 35.
Category: Adult corrections;
Facility type: Developmental disabilities facility;
Number of closed matters[A]: 28.
Category: Adult corrections;
Facility type: Group foster home;
Number of closed matters[A]: 1.
Category: Adult corrections;
Facility type: Total;
Number of closed matters[A]: 150.
Category: Juvenile corrections;
Facility type: Juvenile correctional facility;
Number of closed matters[A]: 37.
Category: Juvenile corrections;
Facility type: Administration of justice system;
Number of closed matters[A]: 3.
Category: Juvenile corrections;
Facility type: Total;
Number of closed matters[A]: 40.
Category: Grand Total;
Number of closed matters[A]: 373.
Source: GAO analysis of ICM data.
[A] The data analyzed included 373 matters initiated by the Special
Litigation Section from fiscal years 2001 through 2007 and closed as of
August 8, 2008.
[End of table]
Nearly one-half (183 of 373) of the closed matters concerning
institutional conditions involved adult correctional facilities--jails
(102), prisons (80), and jail-prisons (1). Special Litigation Section
officials said prisoners, more than any of the other populations that
the Section serves, contacted the Section through letters and phone
calls to advocate on behalf of conditions. In response to these
communications, the Section would open a matter to pursue a pre-
investigation, but if it could not find evidence of a pattern or
practice, would subsequently close the matter. The Section investigated
these matters under CRIPA (jails (98), prisons (78),[Footnote 146] jail-
prison (1)), 14141 (jails (2), prison (1)), or both statutes (jails
(2), prison (1)). The allegations in these matters included:
* inadequate medical care or diet and nutrition services for residents,
* use of isolation or physical restraints,
* coercive sexual misconduct by staff or peers perpetrated on detainees
or inmates without consent,
* inadequate protection of inmates or detainees from harm due to
insufficient correctional staffing on cellblocks,
* a systemic level of violence as a result of inmate-on-inmate fights,
and:
* overcrowding in the facility.
The 80 closed prison matters included 75 pre-investigations and 5
investigations. In 3 of the investigations, the parties agreed to a
memorandum of understanding, which the Section monitored for compliance
for several years before the matter was closed.[Footnote 147] The
Section closed 2 investigations without further action.
In addition, 150 closed matters (of 373) involved alleged violations of
the civil rights of residents of health and social welfare facilities,
including nursing homes (86), mental health facilities (35), facilities
for persons with developmental disabilities (28), and group foster
homes (1).[Footnote 148] The allegations that the Section investigated
in these matters under its CRIPA authority included failure to provide
adequate medical, mental health, and nursing care services to
residents; staff's physical abuse of residents; and failure to properly
supervise or care for a resident. Section officials estimated that
approximately 90 percent of these matters involved the investigation of
whether the jurisdiction was serving the residents in the most
integrated setting appropriate to an individual resident's needs, as
required by the Olmstead decision.[Footnote 149] Also related to the
Section's Olmstead work were three (of 28) matters that involved
inquiries about facilities for persons with developmental disabilities
located in the community, which the Section initiated in fiscal year
2004 to identify private lawsuits involving Olmstead-related issues in
which the Section might join as an amicus curiae. Of the 150 closed
matters, 143 were pre-investigations and 7 were authorized
investigations--6 of nursing homes and 1 of a facility for persons with
developmental disabilities. In two of the nursing home investigations,
the parties reached an agreement that the Section monitored for
compliance for a period before it closed the matter.[Footnote 150]
Additionally, 40 closed matters (of 373) involved juvenile corrections--
conditions in juvenile correctional facilities (37) or the
administration of juvenile justice systems (3).[Footnote 151] The
Section initiated over half of these matters from fiscal years 2003
through 2005, when a priority of the Assistant Attorney General was
conditions in juvenile facilities. According to Section officials,
although CRIPA and 14141 statutorily provided essentially the same
protections for juveniles in correctional facilities, the Section filed
complaints involving a juvenile correctional facility under its 14141
authority. They explained that filing a case under CRIPA required the
approval of the Attorney General, but doing so under 14141 did not.
Nevertheless, the Section included these matters in its annual CRIPA
report to Congress, as the Section considered them to be part of its
CRIPA work, and recorded them in ICM under CRIPA to distinguish them
from 14141 law enforcement matters. These matters included allegations
such as failure to adequately provide services to residents (e.g.,
medical, psychological, psychiatric, substance abuse treatment, and
special education), properly care for or supervise residents, or
adequately protect residents with suicidal or self-harming behaviors.
They also included allegations of physical abuse of residents, improper
placement of residents in a locked room for a long period of time
without access to adequate services, overcrowding, and insufficient
numbers of professional staff to provide the services legally required
in these facilities. Thirty-three of these 37 matters were pre-
investigations and 4 were investigations. In 1 of the investigations,
the parties agreed to a memorandum of understanding, which the Section
monitored for compliance for a period of time before closing the
matter; 1 investigation was dismissed by the court at the request of
the Special Litigation Section when the facility closed; and the
Section closed 2 matters. In addition, under its 14141 authority, the
Section initiated 3 matters involving the administration of juvenile
justice in jurisdictions to determine whether there was a pattern or
practice of violating the federal rights of incarcerated juveniles.
These matters were not linked to a specific facility, but concerned
systemwide issues across a jurisdiction (e.g., a state juvenile
corrections system). Two of these matters were pre-investigations,
which were closed, and 1 matter was an investigation that was resolved
by the parties agreeing to a memorandum of understanding.
Closed matters involving the conduct of law enforcement agencies:
Matters involving law enforcement agencies comprised the second largest
group and the most frequently reported facility type for closed matters
(129 of 544). These closed matters included 123 pre-investigations and
6 investigations. For its police misconduct work, the Section
identified in ICM specific police-related subjects for investigations,
including police use of excessive force (i.e., more than necessary to
subdue a citizen), police-false arrest of citizens for pretextual
reasons that have no basis in fact, searching and seizing of property
by police officers in ways that violate the law, and other forms of
discriminatory policing unlawful under 14141. (Appendix V includes
additional information on these subjects.[Footnote 153])
According to the Section, the Division considered an investigation
resolved when the Section secured a settlement agreement that addressed
the concerns uncovered during the investigation. Once the Section
secured a settlement, the matter remained open for ongoing monitoring
and compliance until the jurisdiction successfully satisfied the terms
of the settlement. At that time, the Division officially closed the
matter. The six investigations identified in the closed matter data
were initiated in fiscal years 2001 (2), 2002 (3), and 2003 (1).
[Footnote 152] Two of the investigations were resolved by the parties
agreeing to a memorandum of agreement, monitored for compliance for a
period, and then closed. Section officials provided additional
information on police department investigations that were initiated
during our review period, but remained open after the end of fiscal
year 2007. In fiscal year 2004, investigations of three police
departments were authorized and the Section resolved five
investigations with settlement agreements. (Appendix V provides
information on the reasons why the Section closed matters.[Footnote
153])
The Special Litigation Section Participated in 33 Cases, the Majority
Involved Institutional Conditions:
From fiscal years 2001 through 2007, the Special Litigation Section
participated in 33 cases, filing complaints as plaintiff in 31 cases
and participating in 1 case as defendant and 1 case as defendant
intervenor. The Section also handled 25 Immigration and Nationality Act
appeals for DOJ in fiscal years 2006 and 2007. In addition, the Section
continued to participate in 66 cases in which the complaint or brief
had been filed prior to 2001 and remained open for at least part of the
7-year period. These cases are described in appendix V. The 31
plaintiff cases involved three of the Section's four areas of
responsibility--institutional conditions, the conduct of law
enforcement agencies, and access to reproductive health facilities and
places of religious worship. According to Special Litigation Section
officials, the Section sought to ensure that the work of the Section
reflected geographic diversity. Our analysis of the 31 plaintiff cases
showed that the Section had filed cases in 21 states and the District
of Columbia.[Footnote 154] The Section filed more than one case
involving different types of facilities in 7 states; for example, 1
case within a state might involve juvenile facilities and another case
in the same state might involve a facility for persons with
developmental disabilities.
For cases brought under CRIPA, the Special Litigation Section is
authorized to file claims alleging a pattern or practice of egregious
and flagrant conditions that deprive institutionalized persons of their
constitutional or federal statutory rights. Under 14141, the Section is
authorized to file claims alleging a pattern or practice of conduct by
law enforcement or conduct of officials responsible for the
administration of juvenile justice or the incarceration of juveniles,
which deprived persons of their constitutional or federal statutory
rights. According to Special Litigation Section officials, in deciding
whether or not to pursue a case, they considered the conditions in a
particular facility or misconduct of a particular police department and
whether the system (e.g., state correctional or juvenile justice
system) or department alleged to have violated the statute had taken
corrective action or had accepted the behavior in question as its way
of doing business. However, they said that even if the system or
department were taking corrective action, the Special Litigation
Section might pursue a case depending on the severity of the situation
(e.g., sexual abuse) or if Section officials believed that the facility
or local entity were incapable of addressing the problem. As in the
other sections, when recommending litigation, the Special Litigation
Section sent a justification package to the Division. According to
Section officials, the justification package that the Special
Litigation Section sent to the Division for approval usually contained
an explanation of what occurred in negotiations among the parties and
why the Special Litigation Section was unable to reach a settlement,
and the Section's plans for going forward, in addition to the
investigative findings and relevant supplemental information.
As shown in table 33, most of the cases (27 of 31) that the Section
filed from fiscal years 2001 through 2007 involved institutional
conditions. The Section filed three cases involving the conduct of law
enforcement agencies. In addition, in August 2007 the Section filed one
case involving access to a reproductive health clinic in which the
complaint alleged threats of death and injury to a physician working at
a reproductive health care clinic. The court issued a permanent
injunction in November 2007, prohibiting the defendant from publishing
information about reproductive health care physicians, staff, or
patients with the intent of threatening them with physical bodily harm
or death to prevent them from providing reproductive health services.
During the 7-year period, the Section did not file any cases involving
violations of the exercise of religious freedom of institutionalized
persons--RLUIPA. Section officials stated that there was a time when
the Section's enforcement of RLUIPA was directed to be a lower priority
than its enforcement of other statutes. However, in April 2009, these
officials told us that the Section was reviewing a number of
preliminary inquires under RLUIPA, but had not yet filed any complaints
because it was still investigating these matters.
Table 33: Cases Filed by Special Litigation Section from Fiscal Years
2001 through 2007 by Area of Responsibility:
Area of responsibility: Institutional conditions;
Fiscal year: 2001: 2;
Fiscal year: 2002: 3;
Fiscal year: 2003: 1;
Fiscal year: 2004: 6;
Fiscal year: 2005: 5;
Fiscal year: 2006: 6;
Fiscal year: 2007[A]: 4;
Fiscal year: 2001-2007 Total: 27.
Area of responsibility: Conduct of law enforcement agencies[B];
Fiscal year: 2001: 1;
Fiscal year: 2002: [Empty];
Fiscal year: 2003: 1;
Fiscal year: 2004: 1;
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007[A]: [Empty];
Fiscal year: 2001-2007 Total: 3.
Area of responsibility: Access to reproductive health facilities and
places of religious worship;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007[A]: 1;
Fiscal year: 2001-2007 Total: 1.
Area of responsibility: Total;
Fiscal year: 2001: 3;
Fiscal year: 2002: 3;
Fiscal year: 2003: 2;
Fiscal year: 2004: 7;
Fiscal year: 2005: 5;
Fiscal year: 2006: 6;
Fiscal year: 2007[A]: 5;
Fiscal year: 2001-2007 Total: 31.
Source: GAO analysis of complaints filed for cases identified in ICM
data.
[A] In fiscal year 2007, the Section filed an amended complaint in a
case filed and settled in fiscal year 2005. Since the amendment was
part of the same case, the amendment was not counted as a separate case
in fiscal year 2007.
[B] The area of responsibility--conduct of law enforcement agencies--
includes one facility type in ICM--law enforcement agency. Therefore,
numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[End of table]
Cases involving institutional conditions:
As shown in table 34, from fiscal years 2001 through 2007, the Special
Litigation Section pursued 27 cases involving institutional conditions
in three categories--health and social welfare (13), juvenile
corrections (7), and adult corrections (7). The number of cases filed
varied by facility type. Additionally, a single case might involve more
than one facility; for example, 1 case initially involved 4 mental
health facilities and 3 more were added by an amended complaint.
Table 34: Cases Involving Institutional Conditions by Category,
Facility Type, and Fiscal Year:
Category: Health and social welfare:
Facility type: Developmental disabilities facility;
Fiscal year: 2001: 1;
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: 2;
Fiscal year: 2005: 1;
Fiscal year: 2006: 2;
Fiscal year: 2007: [Empty];
Fiscal year: 2001-2007
Total: 6.
Facility type: Mental health facility;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: 2;
Fiscal year: 2007: 1;
Fiscal year: 2001-2007 Total: 3.
Facility type: Nursing home;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: 1;
Fiscal year: 2005: 2;
Fiscal year: 2006: [Empty];
Fiscal year: 2007: 1;
Fiscal year: 2001-2007 Total: 4.
Facility type: Total;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007: [Empty];
Fiscal year: 2001-2007 Total: 13.
Category: Juvenile corrections;
Facility type: Juvenile correctional facility;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: 1;
Fiscal year: 2004: 2;
Fiscal year: 2005: 1;
Fiscal year: 2006: 2;
Fiscal year: 2007: 1[A];
Fiscal year: 2001-2007 Total: 7.
Category: Adult corrections;
Facility type: Jail;
Fiscal year: 2001: 1;
Fiscal year: 2002: 2;
Fiscal year: 2003: [Empty];
Fiscal year: 2004: 1;
Fiscal year: 2005: 1;
Fiscal year: 2006: [Empty];
Fiscal year: 2007: 1;
Fiscal year: 2001-2007 Total: 6.
Facility type: Prison;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: 1;
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007: [Empty];
Fiscal year: 2001-2007 Total: 1.
Facility type: Total;
Fiscal year: 2001: [Empty];
Fiscal year: 2002: [Empty];
Fiscal year: 2003: [Empty];
Fiscal year: 2004: [Empty];
Fiscal year: 2005: [Empty];
Fiscal year: 2006: [Empty];
Fiscal year: 2007: [Empty];
Fiscal year: 2001-2007 Total: 7.
Category: Grand Total;
Fiscal year: 2001: 2;
Fiscal year: 2002: 3;
Fiscal year: 2003: 1;
Fiscal year: 2004: 6;
Fiscal year: 2005: 5;
Fiscal year: 2006: 6;
Fiscal year: 2007: 4;
Fiscal year: 2001-2007 Total: 27.
Source: GAO analysis of complaints filed for cases identified in ICM
data.
[A] In fiscal year 2007, the Section filed an amended complaint in a
case filed and settled in fiscal year 2005. Since the amendment was
part of the same case, the amendment was not counted as a separate case
in fiscal year 2007.
[End of table]
Under its CRIPA authority, the Section filed 13 (of 27) cases alleging
violations of the civil rights of residents of health and social
welfare facilities, including facilities for persons with developmental
disabilities (6), mental health facilities (3), and nursing homes (4).
It filed 12 of the 13 cases from fiscal years 2004 through 2007. Among
the violations alleged in these cases were failure to provide adequate
services (e.g., medical treatment planning, psychiatric, psychological,
nursing, rehabilitation therapy, nutritional, pharmacy, and medical and
dental care) and sufficient numbers of trained professional staff as
legally required. The allegations usually included a failure to assess
facility residents to ascertain whether they were receiving adequate
treatment in the most integrated setting, as required under the
Americans with Disabilities Act.[Footnote 155] The Section resolved the
13 cases through different legal means, including six cases by consent
decree (nursing home (2), developmental disabilities (2), and mental
health (2) facilities) and seven cases by out of court settlements
(developmental disability (4), nursing home (2) and mental health (1)
facilities). The Section was monitoring 11 of these cases for
compliance and closed 2 cases (1 nursing home and 1 facility for
persons with developmental disabilities) during our review period.
Seven (of 27) cases involved institutional conditions in juvenile
correctional facilities, the most frequently reported facility type,
from fiscal years 2003 through 2007. All cases involving juvenile
correctional facilities were recorded as part of the Section's CRIPA
work in the Division's annual CRIPA report to Congress, although, as
previously discussed, all complaints against juvenile correctional
facilities had been filed under 14141 since 1997, while cases involving
allegations against an entire juvenile justice system were filed under
both statutes. The 7 cases involved one or more facilities located in 7
states--Arkansas, Arizona, Hawaii, Indiana, Maryland, Mississippi, and
Oklahoma. The allegations included a pattern or practice of failing to
protect inmates from undue risk from harm, including risk of suicide
and abuse from staff; failing to provide adequate services of various
types (e.g., mental health, special education, rehabilitation therapy,
or psychiatric); and using isolation or physical restraints, among
others. According to Special Litigation Section officials, 2 cases were
filed because the respective jurisdiction refused to cooperate with the
Section and settle the case. In other situations, because Section
officials believed conditions in the juvenile facilities to be so
egregious, they determined that filing a case was the proper avenue to
monitor remedial efforts by the jurisdiction. During the time of our
review, the Special Litigation Section resolved 5 of the juvenile
justice cases by the Section requesting that the court dismiss the case
(3), the parties entering into a consent decree (1), and the parties
reaching an out of court settlement (1). The Section continued to
monitor the jurisdictions for compliance in 4 of the 5 cases and closed
the fifth case. The Section resolved the sixth case through a
settlement in 2005 and monitored the jurisdiction for compliance until
2007, when the Section filed an amended complaint, replacing the
original complaint, and amended the settlement to add another facility.
The seventh case was still in litigation as of July 31, 2008.
In addition, during the 7-year period, the Section filed seven cases
involving institutional conditions in adult correctional facilities--
jails (6) and prisons (1). The six jail cases were filed under CRIPA
(5) and 14141 (1). The alleged violations included a pattern or
practice of failing to protect inmates from harm and failure to
adequately classify and supervise inmates. The allegations also
included failure to provide sufficient access to the courts, adequate
medical and mental health care, sufficient exercise opportunities, a
healthy environment, and sanitary living conditions (e.g., insufficient
ventilation, which can cause medical issues, or the presence of vermin
or human waste). Five of the jail cases were resolved by the parties
reaching an out of court settlement (4) or entering into a consent
decree (1). The Section then monitored jurisdictions for compliance.
[Footnote 156] One case was still in litigation as of July 31, 2008.
Additionally, the Section filed one case involving conditions in prison
under its CRIPA authority. In this case, the allegations included
failure to provide adequate supervision and inmate classification,
adequate medical and mental health care, and a healthy environment. The
parties agreed to a settlement in 2002, and the court dismissed the
case in 2006.
Cases involving the conduct of law enforcement agencies:
During the 7-year period, to carry out its responsibility to enforce
laws involving the conduct of law enforcement agencies, the Special
Litigation Section filed three cases alleging police misconduct. These
cases were filed under 14141 and were brought against police
departments in two cities and one county, in fiscal years 2001, 2003,
and 2004, respectively. According to Section officials, the Section
decided whether or not to pursue a case involving a law enforcement
agency on a department-by-department basis, as determined by the
Section's assessment of the kind of misconduct uncovered and its
estimation of the jurisdiction's ability to address the misconduct with
or without the involvement of the court and upon the approval by the
Division's Front Office. The complaints in the three cases included
allegations of police use of excessive force. The two cases involving
city police departments also included allegations of improper searches
and seizures, arrests made without a warrant, and issues related to the
receipt and adjudication of civilian complaints. The parties in each of
the cases entered into a consent decree. By the end of fiscal year
2007, the Section had closed the case involving the county police
department and was monitoring for compliance the consent decrees with
the two city departments.
The Section also participated as a defendant and a defendant intervenor
in two cases involving law enforcement agencies. In the case in which
DOJ was a defendant, the Fraternal Order of Police sought to prevent
DOJ from enforcing 14141 on the grounds that the act exceeded
congressional authority under the Fourteenth Amendment and, therefore,
was unconstitutional. In the case in which DOJ was a defendant
intervenor, the Section intervened in support of the state's hiring
practices, as they applied to the selection of the chief of police. The
plaintiff--a candidate for police chief--sought to have the city follow
state law and promote its new police chief from within the ranks the
police department. DOJ intervened because it believed that the court
might order the city to take actions that conflicted with an ongoing
consent decree between DOJ and the city. The Section closed the former
case in fiscal year 2001 and the latter in fiscal year 2002.
The Special Litigation Section Devoted the Greatest Proportion of Time
to Matters and Cases Involving Institutional Conditions:
Aggregate data on time spent by Special Litigation staff on matters and
cases from fiscal years 2001 through 2007 showed that overall the
Section spent the greatest percentage of time on those matters and
cases involving institutional conditions.[Footnote 157] However, the
proportion of time spent in any fiscal year on matters and cases
involving institutional conditions varied in relation to the time spent
enforcing laws related to the conduct of law enforcement agencies.
As shown in table 35, during the 7-year period, the Section reported
spending the greatest percentage of time on matters involving
institutional conditions in all facility types (62 percent). The
Section spent the remaining 39 percent of the time on matters involving
the conduct of law enforcement agencies. The percentage of time spent
on matters involving institutional conditions each fiscal year
generally increased during the 7 years, while the percentage of time
spent on conduct of law enforcement generally decreased.
Table 35: Percentage of Hours Reported for Matters by Facility Type and
Fiscal Year:
Area of responsibility: Institutional conditions;
Fiscal year: 2001: 53;
Fiscal year: 2002: 51;
Fiscal year: 2003: 54;
Fiscal year: 2004: 61;
Fiscal year: 2005: 63;
Fiscal year: 2006: 69;
Fiscal year: 2007: 75;
Fiscal year: 2001-2007: 62.
Area of responsibility: Conduct of law enforcement[A];
Fiscal year: 2001: 46;
Fiscal year: 2002: 47;
Fiscal year: 2003: 43;
Fiscal year: 2004: 39;
Fiscal year: 2005: 37;
Fiscal year: 2006: 31;
Fiscal year: 2007: 24;
Fiscal year: 2001-2007: 39.
Area of responsibility: Total;
Fiscal year: 2001: 99;
Fiscal year: 2002: 98;
Fiscal year: 2003: 97;
Fiscal year: 2004: 100;
Fiscal year: 2005: 100;
Fiscal year: 2006: 100;
Fiscal year: 2007: 99;
Fiscal year: 2001-2007: 101.
Source: GAO analysis of ICM time reporting data.
Notes: The table does not include time reported for facility group home
(CRIPA); jail/prison (RLUIPA matters); and clinic (FACE) matters where
hours were less than .05 percent. The table also does not include the
category "other," for which the facility type was not identified and
the combination of hours was less than 1 percent in any fiscal year.
Percentages were rounded to nearest whole number.Percentages do not sum
to 100 due to rounding.
Hours that provided the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[A] The area of responsibility conduct of law enforcement agencies
includes one facility type in ICM--law enforcement agency. Therefore,
the numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[End of table]
As shown in table 36, of the total reported time spent on cases for the
7-year period, the Section spent the greatest percentage of time (81
percent) on cases involving institutional conditions. In addition, the
Section spent 17 percent of the time on cases involving the conduct of
law enforcement agencies.[Footnote 158] However, the percentage of time
spent on each of these two areas of responsibility varied during the
time period.
Table 36: Percentage of Hours Reported for Cases by Area of
Responsibility and Fiscal Year:
Area of Responsibility: Institutional conditions;
Fiscal year: 2001: 58;
Fiscal year: 2002: 72;
Fiscal year: 2003: 83;
Fiscal year: 2004: 84;
Fiscal year: 2005: 90;
Fiscal year: 2006: 88;
Fiscal year: 2007: 92;
Fiscal year: 2001-2007 Total: 81.
Area of Responsibility: Conduct of law enforcement agencies[B];
Fiscal year: 2001: 40;
Fiscal year: 2002: 26;
Fiscal year: 2003: 15;
Fiscal year: 2004: 15;
Fiscal year: 2005: 10;
Fiscal year: 2006: 9;
Fiscal year: 2007: 7;
Fiscal year: 2001-2007 Total: 17.
Area of Responsibility: Access to reproductive health;
Fiscal year: 2001: 0;
Fiscal year: 2002: 1;
Fiscal year: 2003: 2;
Fiscal year: 2004: 0;
Fiscal year: 2005: 0;
Fiscal year: 2006: 0;
Fiscal year: 2007: 1;
Fiscal year: 2001-2007 Total: 1.
Area of Responsibility: Immigration Appeals;
Fiscal year: 2001: 0;
Fiscal year: 2002: 0;
Fiscal year: 2003: 0;
Fiscal year: 2004: 0;
Fiscal year: 2005: 0;
Fiscal year: 2006: 3;
Fiscal year: 2007: 1;
Fiscal year: 2001-2007 Total: 1.
Area of Responsibility: Total[A];
Fiscal year: 2001: 98;
Fiscal year: 2002: 99;
Fiscal year: 2003: 100;
Fiscal year: 2004: 99;
Fiscal year: 2005: 100;
Fiscal year: 2006: 100;
Fiscal year: 2007: 101;
Fiscal year: 2001-2007 Total: 100.
Source: GAO analysis of ICM data.
Note: Hours that provide the basis for the percentages include time of
all section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[A] Total percentages may be less than 100 percent due to exclusion of
the facility type mental retardation and mental health where hours were
less than .05 percent or rounding.
[B] The area of responsibility conduct of law enforcement agencies
includes one facility type in ICM--law enforcement agency. Therefore,
the numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[End of table]
The percentage of time spent on cases involving institutional
conditions increased to over 90 percent in fiscal year 2007. Section
officials explained that in that year, the Section had been involved in
contested litigation related to juvenile justice practices in two
states and in regular contempt proceedings in another case, which
accounted for 44 (of 92) percent of the time spent that year on cases
involving institutional conditions. In contrast, the Section reported
spending a larger percentage of time on cases involving the conduct of
law enforcement in fiscal years 2001(40 percent) and 2002 (26 percent).
According to Section officials, during these 2 years the Section was
engaged in highly contested litigation that involved racial profiling
claims and required intensive document analysis. They explained that
since this was the first contested police department litigation under
the Section's police misconduct authority, each issue that arose
presented an issue of law that had not previously been decided by any
court. Consequently, this case required significant attorney time, thus
explaining the high percentage of time spent on police conduct cases
for those 2 years. Appendix V provides additional information on time
reported spent on matters and cases.
Agency Comments and Our Evaluation:
We provided a draft of this report to the Attorney General for review
and comment. DOJ provided technical comments, which we incorporated
into the report as appropriate.
As agreed with your offices, unless you publicly announce its contents
earlier, we plan no further distribution until 30 days after the date
of this report. At that time, we will send copies of this report to
interested congressional committees and the Attorney General, and other
interested parties. In addition, this report will be available at no
cost on the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staff have any questions concerning this report, please
contact me at (202) 512-8777, or larencee@gao.gov. Contact points for
our Office of Congressional Relations and Public Affairs may be found
on the last page of this report. Other GAO contacts and key
contributors to this report are listed in appendix VI.
Signed by:
Eileen Regen Larence:
Director, Homeland Security and Justice Issues:
[End of section]
Appendix I: Objectives, Scope, and Methodology:
To describe the enforcement efforts of the Civil Rights Division's
Employment Litigation, Housing and Civil Enforcement, Voting, and
Special Litigation sections from fiscal years 2001 through 2007, this
report discusses the activities that the four sections undertook to
implement their respective enforcement responsibilities during the 7-
year period.
To determine the types of activities undertaken, we analyzed electronic
data for closed matters--matters that were concluded--and cases from
the Division's Interactive Case Management System (ICM) for each of the
four sections.[Footnote 159] We included matters initiated and closed
during fiscal years 2001 through 2007 or initiated in prior years and
closed during these years. We included cases pursued during these 7
fiscal years. As part of this analysis, we took actions to assess the
reliability of the ICM data to ensure that they were sufficiently
reliable for the purposes of these objectives.
Initially, we obtained ICM data in spreadsheet form for closed matters
and cases for each of the four sections.[Footnote 160] We
electronically tested the data for obvious errors in accuracy and
completeness, including examining the consistency of entries among
related data fields. In addition, we manually reviewed matter and case
data for each of the four sections, identifying missing values and
assessing consistency across fields, to help assess the completeness
and accuracy of the spreadsheets in order to determine which fields
were sufficiently reliable, accurate, and complete for purposes of our
review. Since we found the data for matters initiated prior to 2001 to
have substantial missing values in certain fields, we focused our
analysis on closed matters initiated from fiscal year 2001 through
fiscal year 2007.[Footnote 161] As appropriate, we asked the sections
to provide additional information so that we could complete the entries
for a field or correct errors for matter and case data. From July
through August 2008, the Division provided us with revised spreadsheets
for matters and cases with additional information and the identified
data errors corrected.
As part of our assessment of the ICM data, we also analyzed Division
documents that provided guidance on the actions that Division and
section staffs were to take to ensure the accuracy, reliability, and
completeness of ICM data. These documents included internal memoranda
from Division managers and the ICM user's guide and data dictionary,
which described the purpose and contents of ICM. We also interviewed
Division Information Technology (IT) officials, who are the Division
officials responsible for managing and maintaining ICM, and section
chiefs, deputy chiefs, and other section staff to obtain information on
actions taken by the Division and sections to take to ensure the
accuracy, reliability, and completeness of these data from fiscal years
2001 through 2007.
To supplement our analysis of the ICM matter data and further assess
the reliability of these data, we compared ICM data with documents
(e.g., memoranda and correspondence) in matter files for a
nongeneralizable sample of closed matters for each of the four
sections.[Footnote 162] In determining our samples, we randomly
selected matters investigated under each of the statutes enforced by
the respective section and took into consideration the government role
(e.g., plaintiff or defendant) and type of subject investigated (e.g.,
the nature of the alleged discrimination or violation) to ensure that
the sample reflected the breadth of the work and practices of the
respective section from fiscal years 2001 through 2007. Once the
matters for each section were organized into categories, we randomly
ordered the matters for selection. We initially decided to review about
200 matter files (about 50 for each section), which was similar to the
number of matters reviewed in the prior GAO report on the Civil Rights
Division.[Footnote 163] Additionally, given the audit's time
constraints and the intended purpose of the information--to provide
anecdotal information on the sections' reasons for closing matters--we
concluded that reviewing this number of matter files would provide
insight into the sections' enforcement efforts. Using the randomized
list of matters, we selected the matter files to be reviewed.
Specifically, we reviewed about 210 of 5,400 matters, including:
* 49 of about 3,300 closed matters for the Employment Litigation
Section,
* 60 of about 1,070 closed matters for the Housing and Civil
Enforcement Section,
* 51 of about 345 closed matters for the Voting Section, and:
* 51 of about 714 closed matters for the Special Litigation Section.
Because our samples were not representative, we were unable to
generalize the results to all closed matters investigated by these
sections during the period of our review. Nevertheless, our file
reviews provided examples of how the matter data in ICM compared to the
same information in the matter files, how the sections investigated
matters, and why the sections closed them.[Footnote 164]
From our analysis of the ICM closed matter data, we determined which
data fields were sufficiently reliable for presenting overall trends in
the sections' enforcement efforts from fiscal years 2001 through 2007,
with respect to matters. However, the results of analysis for each of
the four sections and, therefore, the fields on which we reported,
varied for each section. For example, for the Employment Litigation
Section, the subject field--the field that provides information on the
nature of the allegation, e.g., hiring, recruitment, and reemployment--
was incomplete in ICM for about 85 percent of the matters and the
protected class field was incomplete for about 83 percent of the
matters; therefore, we could not determine the characteristics of the
majority of the matters closed from fiscal years 2001 through 2007.
[Footnote 165] In contrast, for the Housing and Civil Enforcement
Section, we determined the data for these fields to be sufficiently
accurate, reliable, and complete for our purposes.
Additionally, to supplement our analysis of the ICM case data for each
section, as well as our assessment of the reliability of these data, we
analyzed complaints for a comparable number of cases that each section
filed in court as plaintiff. Specifically, we analyzed all complaints
filed from fiscal years 2001 through 2007 by the Employment Litigation
(60), Voting (56), and Special Litigation (31) sections. For each of
the three sections, we compared the information in the complaints to
data contained in ICM (e.g., the statutes under which the complaints
were filed) to identify possible data entry errors. We provided the
results of our analyses to officials in each of the sections and based
on their respective responses made changes to the case data for each
section, as appropriate. Our analysis of the cases for the three
sections allowed us to report on the type of litigation pursued by each
of these sections during the 7-year period.
Given the large number (277) of complaints filed by the Housing and
Civil Enforcement Section during the 7-year period, we analyzed
documents for a nongeneralizable sample of 33 cases identified in the
ICM data.[Footnote 166] In selecting the sample of cases to review, we
randomly chose cases that involved each of the statutes enforced by the
Section, and considered other case characteristics, such as the fiscal
year in which the case was filed in court. Once the cases were
organized into categories, we randomly ordered them within each
category and selected cases from each category for a total of 33 cases
(31 plaintiff complaints and 2 amicus briefs). As with the other three
sections, we compared the information in the sample of complaints to
data contained in ICM (e.g., the statutes under which the complaints
were filed) to identify possible data entry errors. Although the
information we obtained cannot be generalized to all cases filed by the
Housing and Civil Enforcement Section during the period of our review,
it provided us with information on how the case data in ICM compared to
the same information in the case files and examples of the types of
cases pursued by this Section. In addition, we reviewed the complaints
for all 20 (including the 2 that had been randomly selected) cases
filed that the Housing and Civil Enforcement Section derived from over
1,600 tests conducted as part of the Section's Fair Housing Testing
Program from 2001 through 2007, which it established in 1991 to help
enforce the FHA.[Footnote 167] We provided the results of our analyses
of 51 cases, which included the randomly selected and testing cases, to
agency officials. After their review, we made changes to the case data,
as appropriate. This analysis allowed us to report on all of the
"testing" cases as well as examples of other cases pursued by Housing
and Civil Enforcement Section during the 7-year period.
In addition to the closed matter data, we also analyzed aggregate
matter data for matters initiated from fiscal years 2001 through 2007
by each of the four sections in our review. Because these data included
open matters--ongoing investigations--the Division provided the
information aggregated by fiscal year for selected fields, for example,
statute. We received hard copies of this information for each section,
which we then entered into spreadsheets. We verified our data entry,
and then analyzed the spreadsheets. From our assessment of the accuracy
and reliability of the closed matter data and discussions with agency
officials about the aggregate matter data provided for each section, we
were able to determine potential data issues and make necessary
corrections in the aggregate matter data. For example, in the Voting
Section aggregate matter data, we identified potential discrepancies in
about 40 of the 442 matters, when we compared the data in the statute,
subject, or protected class fields; for example, a protected class was
paired with a statutory provision for which it was not relevant. We
asked each section to review our observations and provide corrections.
Changes were made to the data for each section, as appropriate.
The Division also provided aggregate data for the time each of the four
sections reported spending on matters and cases from fiscal years 2001
through 2007. These data included the time reported spent by all
section staff, including the section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section. Because these data included open matters--ongoing
investigations--the Division provided the information aggregated by
fiscal year for selected fields, for example, statute. We received hard
copies of this information for each section, which we then entered into
spreadsheets. We verified our data entry, and then analyzed the
spreadsheets. From our assessment of the accuracy and reliability of
the closed matter data and discussions with agency officials about the
aggregate time data provided for each section, we were able to
determine potential data issues and make necessary corrections.
However, although the time data system is linked to ICM, the
information is entered into the system by the individual staff person
and not subject to the same review process as the ICM data; therefore,
the time data may not be precise. Accordingly, after discussions with
Division officials about these limitations, we decided to report time
information as percentages and generally in broad categories (e.g.,
time reported spent on cases and matters by a section). This
information provided additional trend information and context for our
analysis of the enforcement efforts of each of the four sections from
fiscal years 2001 through 2007.
On the basis of our data assessment efforts for all of the matter,
case, and time data, we determined that the data presented in the
report were sufficiently reliable for presenting overall trends in the
sections' enforcement efforts. Limitations in the data that we
identified for each of the sections are noted in the report as needed.
We used the ICM matter and case data in conjunction with other sources,
including matter and case file documents, agency documents, and
interviews with agency officials. In addition to the materials obtained
from agency files, we also analyzed DOJ documents, such as annual
reports to Congress, congressional hearing statements by agency
officials, and budget documents, which described the Division's
enforcement efforts (including special initiatives and areas of focus)
from fiscal years 2001 through 2007. We analyzed Division documents
such as internal memoranda from Division managers, Division reports to
Congress on the four sections' enforcement endeavors, transcripts of
congressional oversight hearings, and federal budget submissions, to
determine how Division and section officials used ICM data to report
information to congressional committees on the four sections'
enforcement efforts.[Footnote 168] We interviewed senior officials in
DOJ's Justice Management Division, which is the management arm of DOJ;
the Acting Assistant Attorney Generals for the Division;[Footnote 169]
and officials, including section chiefs, deputy section chiefs, and
other staff in the Employment Litigation, Housing and Civil
Enforcement, Voting, and Special Litigation sections to obtain
information on each of the four sections' enforcement efforts during
the 7-year period.
Finally, to identify issues and gain additional perspective on the
sections' litigation efforts, we interviewed representatives of three
nongovernmental civil rights organizations and five experts on the four
civil rights areas covered in our review. We identified these
individuals in part through our review of the transcripts from
oversight hearings in which these individuals had testified. Although
the information we obtained is not generalizable beyond the individuals
we interviewed, these interviews helped enhance our analysis of the
litigation efforts and other activities of the four sections during the
period of our review.
We conducted our work from June 2007 through October 2009 in accordance
with all sections of GAO's Quality Assurance Framework that were
relevant to our objectives. The framework requires that we plan and
perform the engagement to obtain sufficient and appropriate evidence to
meet our stated objectives and to discuss any limitations in our work.
We believe that the information and data obtained, and the analysis
conducted, provide a reasonable basis for any findings and conclusions
in this report.
[End of section]
Appendix II: Additional Information on the Employment Litigation
Section:
Statutes Enforced by the Employment Litigation Section from Fiscal
Years 2001 through 2007:
Title VII:
The Employment Litigation Section is responsible for enforcing against
state and local governments provisions of Title VII of the Civil Rights
Act of 1964, as amended (Title VII). Title VII[Footnote 170] prohibits
discrimination in employment based on race, color, religion, sex, and
national origin. Unlawful practices may include recruitment, hiring,
assignment, promotion, benefits, testing, firing and harassment, among
others. Title VII also prohibits retaliation against a person for
filing a charge of discrimination, participating in an investigation,
or opposing discriminatory practices. The Employment Litigation Section
initiates Title VII litigation in two ways--(1) under section 706 or
(2) under section 707.
Section 706[Footnote 171] allows the Attorney General to file a suit
based upon an individual charge of discrimination that has been
referred to DOJ by the Equal Employment Opportunity Commission (EEOC).
Individuals who believe that they were unlawfully discriminated against
by an employer--including a state or local government--may file a
charge with the EEOC. Once a charge is filed with the EEOC, the EEOC is
then obligated to investigate. The EEOC may either dismiss the charge
if there is not reasonable cause to believe that it is true or,
alternatively, if the EEOC decides that there is reasonable cause, it
must attempt to eliminate the alleged unlawful employment practices by
other methods, such as mediation. If after investigation the EEOC
determines that a charge made against a state or local government has
merit and efforts to obtain voluntary compliance are unsuccessful, the
EEOC must refer it to DOJ to bring an enforcement action. DOJ has the
authority to determine whether to bring such an action. If the Section
decides not to initiate litigation, then it will issue a right-to-sue
letter notifying the charging party of his or her right to file a
private lawsuit.[Footnote 172] Section 706 also grants the Attorney
General the authority to intervene in private cases against a public
employer that are of general public importance.
Under section 707 of Title VII,[Footnote 173] the Attorney General has
authority to bring lawsuits against state and local governments where
there is reason to believe that there has been a pattern or practice of
employment discrimination. Pattern or practice cases seek to alter
employment and selection practices--such as recruitment, hiring,
assignment, tests, and promotions--which have the purpose or effect of
discriminating on the basis of race, color, religion, sex, or national
origin. Employers are liable for employment practices that are
intentionally discriminatory, as well as those that have the effect of
being discriminatory, for instance, a physical fitness test that
eliminates more female than male candidates. The Employment Litigation
Section has discretion to initiate these cases. Its authority is not
dependent upon a referral from the EEOC.
USERRA:
The Employment Litigation Section also enforces the provisions of the
Uniformed Service Employment and Reemployment Rights Act of 1994
(USERRA),[Footnote 174] which prohibit employers from discriminating or
retaliating against an employee or applicant for employment on the
basis of that person's military service. Servicemembers who meet
certain conditions in USERRA are entitled to reemployment rights and
benefits including, for example, prompt reinstatement to the positions
they would have held if they had never left their employment, health
coverage for designated periods, and training, as needed, to requalify
for their jobs. The Department of Labor (DOL) investigates USERRA
complaints, makes a determination as to whether the complaint has
merit, and attempts to resolve voluntarily those complaints that are
deemed meritorious. If DOL is unable to resolve a complaint, at the
request of the servicemember, DOL will refer the complaint to DOJ.
According to Employment Litigation Section officials, most USERRA
matters are resolved by DOL. The Employment Litigation Section reviews
DOL's investigative file accompanying the complaint and makes a
determination as to whether the complainant is entitled to the rights
or benefits. After making such a determination, the Section has the
authority to bring a case on behalf of the claimant. At the end of
fiscal year 2004, the Attorney General transferred responsibility for
the enforcement of USERRA to the Civil Rights Division from the Civil
Division. The Assistant Attorney General for Civil Rights delegated
USERRA enforcement authority to the Employment Litigation Section.
Right-to-Sue Letters:
Most of the more than 3,200 matters (about 90 percent) that the
Employment Litigation Section initiated from fiscal years 2001 through
2007 resulted from section 706 referrals, referred to as charge
referrals, from the EEOC. The Section considers all EEOC charge
referrals as matters even if an investigation is not opened. However,
the Section does not consider requests for right-to-sue letters as
matters. While a charging party is required to file a charge of
discrimination with the EEOC, according to a Section Deputy Chief, some
charging parties may prefer to initiate litigation on their own. In
such instances, the charging parties will request that DOJ provide a
right-to-sue letter as a precondition to filing a Title VII claim in
federal court. According to a Section Deputy Chief, the Section honors
such requests and, as shown in table 37, issued 14,608 such letters
from fiscal years 2001 through 2007.
Table 37: Number of Right-to-Sue Letters Issued by the Employment
Litigation Section:
Fiscal year: 2001;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 2,796.
Fiscal year: 2002;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 2,441.
Fiscal year: 2003;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 2,125.
Fiscal year: 2004;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 1,989.
Fiscal year: 2005;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 1,765.
Fiscal year: 2006;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 1,643.
Fiscal year: 2007;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 1,849.
Fiscal year: Total;
Number of right-to-sue letters issued (charging party requested right
to sue letter): 14,608.
Source: Civil Rights Division, DOJ.
[End of table]
Pattern or Practice Cases from Fiscal Years 2001 through 2007:
Pattern or practice cases seek to alter employment and selection
practices--such as recruitment, hiring, assignment, tests, and
promotions--that have the purpose or effect of discriminating on the
basis of race, sex, religion, or national origin.[Footnote 175]
According to Section officials, pattern or practice cases, which are
complex and resource-intensive, have consistently been a priority of
the Section because they have the greatest impact on remedying
discrimination practices. The Section filed 11 pattern or practice
cases from fiscal years 2001 through 2007. As described in table 38,
most of these cases involved claims of discrimination in hiring and the
most common protected class was race.
Table 38: Summary of Section 707 Cases Filed from Fiscal Years 2001
through 2007:
Date filed: January 10, 2001;
Name of case: U.S. v. the State of Delaware; the Delaware Department of
Public Safety; and the Delaware Division of State Police;
Summary of case: The Section filed a lawsuit alleging that the Delaware
Department of Public Safety, Division of State Police used written
examinations for the entry-level trooper positions that have
disproportionately excluded African Americans from employment, but have
not been shown to be job related and consistent with business
necessity, as required by federal law.
Date filed: January 8, 2004;
Name of case: U.S. v. City of Erie, Pennsylvania;
Summary of case: The Section filed a lawsuit alleging that the city of
Erie, Pennsylvania, pursued practices that discriminated against women
and deprived or tended to deprive women of employment opportunities
because of their sex. According to the lawsuit, the city of Erie
implemented these policies and practices by, among other ways, failing
or refusing to hire women for the entry-level position of police
officer on the same basis as men, and using selection procedures and
physical agility standards for entry-level positions of police officer
that have an adverse impact on women, and that are not job-related.
Date filed: September 16, 2004;
Name of case: U.S. v. Los Angeles County Metropolitan Transit
Authority;
Summary of case: The Section filed a lawsuit alleging that the Los
Angeles County Metropolitan Transit Authority pursued policies and
practices that discriminated against employees and applicants for
employment on the basis of religion by, among other ways, failing or
refusing to reasonably accommodate employees and applicants for
employment who, in accordance with their religious observances,
practices, or beliefs, needed religious accommodation because they are
unable to comply with the Metropolitan Transit Authority's requirement
that employees in the Operations Division be available to work
weekends, on any shift, at any location.
Date filed: September 29, 2004;
Name of case: U.S. v. City of Gallup;
Summary of case: The Section filed a lawsuit alleging that the city of
Gallup, New Mexico, implemented discriminatory recruitment and hiring
procedures by, among other ways, failing or refusing to recruit and
hire American Indians on the same basis as whites and Hispanics.
Date filed: September 30, 2004;
Name of case: U.S. v. New York Metropolitan Transportation Authority,
and the New York City Transit Authority;
Summary of case: The Section filed a lawsuit alleging that the New York
Metropolitan Transportation Authority and the New York City Transit
Authority selectively enforced uniform policies to target Muslim and
Sikh employees whose religious beliefs and practices require that they
wear head coverings.
Date filed: July 26, 2005;
Name of case: U.S. v. City of Pontiac, Michigan and Local #376 Fire
Fighters Union, International Association of Fire Fighters;
Summary of case: The Section filed a lawsuit alleging that the city of
Pontiac, through the Pontiac Fire Department, has pursued policies and
practices that discriminate against non-minority applicants for
employment and employees based on race and sex by explicitly creating
and maintaining a dual system for hire and promotion requiring that one
of every three hires or promotions be given to a minority, which
includes women.
Date filed: August 26, 2005;
Name of case: U.S. v. State of Ohio, et. al.;
Summary of case: The Section filed a lawsuit alleging that the state of
Ohio, among others, pursued policies and practices that discriminated
against employees on the basis of religion by failing or refusing to
reasonably accommodate the religious observances, practices, and
beliefs of those state employees who hold religious objections to
associating with and financially supporting employee organizations, but
who are not members of religions that historically have held
conscientious objections to joining or financially supporting
organizations. The lawsuit further alleged that the state of Ohio,
among others, subjected state employees to disparate treatment on the
basis of religion by allowing employees who are members of religions
that historically have held conscientious objections to joining or
financially supporting employee organizations to redirect their fair
share fees to nonreligious charities, but denying the same
accommodation to employees who are not members of such religions, even
if they hold religious objections to associating with and financially
supporting employee organizations.
Date filed: February 8, 2006;
Name of case: U.S. v. The Board of Trustees of Southern Illinois
University;
Summary of case: The Section filed a lawsuit alleging that the Board of
Trustees of Southern Illinois University maintained programs open only
to undergraduate, prospective graduate and doctoral students who were
either of a specified race and/or national origin or who are female.
Specifically, the Proactive Recruitment of Multicultural Professionals
for Tomorrow (PROMPT) fellowship had been open only to members of
"traditional underrepresented groups," including African Americans,
Latino/Hispanic Americans, Asian Americans, and Native Americans. Of
the approximately 78 fellowship recipients from 2000 to the time the
lawsuit was filed, none of the recipients were white or a member of a
minority group other than one of the PROMPT-specified minority groups.
The Bridge to the Doctorate fellowship had been open only to members of
"underrepresented minority groups," including Hispanics, African
Americans, Native Americans, Alaskan Natives, and Pacific Islanders. Of
the approximately 27 Bridge fellowship recipients during the 2 years it
had been in effect, none were white or a member of a minority group
other than one of the specified minority groups. Additionally, the
Graduate Dean's fellowship had been open to women and "traditionally
underrepresented students" who had overcome social, cultural, or
economic conditions that adversely affected their educational process,
including African Americans, Hispanic Americans, Asian Americans, and
Native Americans. Of the 27 Graduate Dean fellowship recipients, none
were white males.
Date filed: April 3, 2006;
Name of case: U.S. v. City of Virginia Beach, Virginia;
Summary of case: The Section filed a lawsuit alleging that the city of
Virginia Beach pursued policies and practices that discriminated
against African American and Hispanic applicants and that deprived or
tended to deprive African Americans and Hispanics of employment
opportunities because of their race and national origin, by, among
other ways, failing or refusing to hire African American and Hispanic
applicants for the position of entry-level police officer on the same
basis as white applicants; and by using a mathematics test (National
Police Officer Selection Test) with a cutoff score of 70 percent as a
pass/fail screening device that had an adverse impact on African
American and Hispanic applicants for the position of entry-level
officer and that was not job related for the position consistent with
business necessity.
Date filed: July 24, 2006;
Name of case: U.S. v. City of Chesapeake, Virginia;
Summary of case: The Section filed a lawsuit alleging that the city of
Chesapeake's use of the National Police Officer Selection Test had an
adverse impact on African American and Hispanic applicants for the
position of entry-level police officer, and was not job related for the
position consistent with business necessity.
Date filed: May 21, 2007;
Name of case: U.S. v. City of New York;
Summary of case: The Section filed a lawsuit alleging that the city of
New York pursued policies and practices that discriminated against
African Americans and Hispanics and deprived these groups of
individuals of employment opportunities because of their race and/or
national origin by, among other ways, (1) failing or refusing to
appoint, through its open competitive examination process, African
Americans and Hispanics to the rank of entry-level firefighter on the
same basis as whites; and (2) using written examinations that resulted
in disparate impact upon African Americans and Hispanics and were not
job related or consistent with business necessity.
Source: GAO analysis of section 707 complaints filed by the Section
from fiscal years 2001 through 2007.
[End of table]
Additional Information on Cases in Which the Employment Litigation
Section Participated from Fiscal Years 2001 through 2007:
In addition to its work representing plaintiffs in employment
discrimination cases, the Employment Litigation Section participated in
lawsuits in several other ways, including as (1) an amicus curiae, or
"friend of the court," in which the Section filed a brief in an action
in which it was not a party because the Division had a strong interest
in the subject matter; (2) a plaintiff or defendant intervenor, in
which the Section intervened as a party in a case--either on the side
of the plaintiff or the defendant--because the constitutionality of a
federal statute had been questioned or it had another interest in the
outcome of the case; and (3) a defendant, in which the Section
represented the United States in lawsuits brought by plaintiffs against
federal agencies challenging the enforcement of federal laws. From
fiscal years 2001 through 2007, the Section participated in 18 cases as
a plaintiff intervenor, amicus curiae, or defendant. Specifically, the
Section intervened on behalf of the plaintiffs in 11 cases during the
seven year period. Three of these cases were related and alleged that
the District of Columbia government discriminated against three
pregnant females on the basis of sex in violation of section 706 of
Title VII.
The Section participated in one case as amicus curiae during the 7-year
period. In this case, which was filed in court on February 24, 2004,
the Section appeared as amicus in support of the Salvation Army and
state and local government defendants. Plaintiffs, current and former
employees of the Salvation Army, brought an action seeking relief from
the Salvation Army's efforts to enforce compliance with its religious
mission among its staff; plaintiffs claimed to have been subjected to
unlawful religious discrimination and brought suit against the
Salvation Army, as well as against the City of New York and the
commissioners of several state and local government entities that
contracted with the Salvation Army for the provision of social
services. The brief filed on behalf of the United States as amicus
noted concern with the plaintiffs' claims that the Salvation Army's
social service contracts with the state and local government defendants
had turned it into a state actor, therefore subjecting its employment
policies and practices to challenge as violating the federal Free
Exercise and Equal Protection Clauses, as well as the claim that the
Salvation Army's employment practices, in light of these contracts,
created an Establishment Clause violation. As of September 21, 2009,
the case was still pending.
During the 7-year period of our review, the Employment Litigation
Section participated in six cases as defendant. For example, in Colwell
v. United States Department of Health and Human Services, the Section
represented the Department of Health and Human Services in a suit where
the plaintiffs had challenged guidance issued by that agency that would
have required medical service providers and others to provide
translation services to limited English proficient persons in order to
implement the nondiscrimination principle of Title VI of the Civil
Rights Act.[Footnote 176] The plaintiffs asserted that the guidance
exceeded that agency's authority and the agency had violated other
federal and constitutional law. In ProEnglish, et al. v. George W.
Bush, et al., the Section defended an action brought by plaintiffs'
against federal defendants, including the Department of Heath and Human
Services. The plaintiffs challenged Executive Order 13,166, which
directed federal agencies, after consulting with appropriate program
and activity stakeholders, to develop guidance that will help ensure
that persons with limited English proficiency have meaningful access to
federally funded services, as well as other related agency policy
guidance documents.
The Section was also involved in 116 cases from fiscal years 2001
through 2007 that were filed prior to fiscal year 2001. These cases
included (1) those where the Section was involved in litigation and (2)
those where the case had been resolved and the Section was monitoring
compliance with a settlement agreement or order. More than half (67 of
116) of these cases involved pattern or practice claims under section
707. According to Section officials, these cases typically result in
consent orders that Section staff monitor over many years, as specified
in the orders. On the basis of the Division's ICM data, the Section
monitored compliance for 39 of the section 707 (pattern or practice)
plaintiff cases that were closed at some point during the 7-year period
for, on average, about 15 years.[Footnote 177] According to Section
officials, as of October 2, 2009, the Section was continuing to monitor
compliance in an additional 23 section 707 plaintiff cases. The Section
had been monitoring compliance with these cases for, on average, about
28 years. About 22 percent (26) of the 116 cases involved section 706
claims. According to the Division's ICM data, the Section monitored
compliance with the 24 section 706 plaintiff cases for, on average,
about 4 years. As shown in table 39, 22 of the remaining 23 cases were
defensive cases.
Table 39: Cases Filed Prior to Fiscal Year 2001 That Were Still Open
from Fiscal Years 2001 through 2007:
Statute: Section 707;
Section's role: Plaintiff;
Number of cases filed: 63.
Statute: Section 707;
Section's role: Defendant intervenor;
Number of cases filed: 2.
Statute: Section 707;
Section's role: Defendant;
Number of cases filed: 1.
Statute: Section 707;
Section's role: Amicus;
Number of cases filed: 1.
Total section 707[A];
Number of cases filed: 67.
Statute: Section 706;
Section's role: Plaintiff;
Number of cases filed: 24.
Statute: Section 706;
Section's role: Plaintiff intervenor;
Number of cases filed: 1.
Statute: Section 706;
Section's role: Amicus;
Number of cases filed: 1.
Total section 706;
Number of cases filed: 26.
Statute: Small Business Act Small Disadvantaged Business Goals[B];
Section's role: Defendant;
Number of cases filed: 7.
Statute: Executive Order 11246;
Section's role: Defendant;
Number of cases filed: 4.
Statute: Executive Order 11246;
Section's role: Plaintiff;
Number of cases filed: 1.
Total Executive Order 11246;
Number of cases filed: 5.
Statute: Transportation Equity Act for 21st Century[A];
Section's role: Defendant;
Number of cases filed: 4.
Section's role: Defendant Intervenor;
Number of cases filed: 1.
Statute: Total Transportation Equity Act for 21[ST] Century;
Section's role: [Empty];
Number of cases filed: 5.
Statute: Department of Defense Price Preference Program[C];
Section's role: Defendant;
Number of cases filed: 2.
Statute: False Statements;
Section's role: Defendant;
Number of cases filed: 1.
Statute: Small Business Act 8(a) Program;
Section's role: Defendant;
Number of cases filed: 1.
Statute: Fourteenth Amendment and Department of Defense Appropriations
Act of 2000;
Section's role: Defendant;
Number of cases filed: 1.
Statute: Environmental Protection Act;
Section's role: Defendant;
Number of cases filed: 1.
Source: Civil Rights Division ICM data.
[A] Includes cases in combination with section 707--section 706, Crime
Control Act, 14th Amendment, Revenue Sharing Act, and the Department of
Defense Appropriations Act of 2000.
[B] Includes one case in combination with Executive Order 11246. The
Section has authority to prosecute enforcement actions upon referral by
the Department of Labor of complaints arising under Executive Order
11246, which prohibits discrimination in employment by federal
contractors.
[C] Includes one case in combination with Small Business Act 8(a)
Program. Under the Department of Defense Price Preference Program,
minority firms, including female-owned firms, are given price
preferences in competing for federal contracts.
[End of table]
Time Spent on Matters, Cases, and Other Activities from Fiscal Years
2001 through 2007:
The Division's time data show that from fiscal years 2001 through 2007
about 20 percent of the Employment Litigation Section's professional
staff's time was charged to matters,[Footnote 178] 47 percent to cases,
and 33 percent to other activities, such as professional development
and outreach.[Footnote 179] Of the total time charged to matters, about
65 percent of the time was charged to the section 706 matters, which
comprised about 90 percent of the section's matter workload over the
seven year period.
As shown in table 40, the percentage of time charged each year to
matters involving sections 706 and 707 claims fluctuated over the 7-
year period, whereas time charged to USERRA matters from fiscal years
2005 through 2007 was relatively constant.
Table 40: Percentage of Time Charged to Employment Litigation Section
Matters by Statute from Fiscal Years 2001 through 2007:
Statute: Section 706;
FY 2001: 70;
FY 2002: 76;
FY 2003: 82;
FY 2004: 62;
FY 2005: 55;
FY 2006: 60;
FY 2007: 41;
Percentage of total: time charged over the 7-year period: 65.
Statute: Section 707;
FY 2001: 26;
FY 2002: 19;
FY 2003: 15;
FY 2004: 38;
FY 2005: 25;
FY 2006: 16;
FY 2007: 20;
Percentage of total: time charged over the 7-year period: 23.
Statute: USERRA;
FY 2001: n/a;
FY 2002: n/a;
FY 2003: n/a;
FY 2004: n/a;
FY 2005: 20;
FY 2006: 23;
FY 2007: 23;
Percentage of total: time charged over the 7-year period: 8.
Statute: Other[A];
FY 2001: 4;
FY 2002: 5;
FY 2003: 3;
FY 2004: .3;
FY 2005: .2;
FY 2006: 1;
FY 2007: 16;
Percentage of total: time charged over the 7-year period: 4.
Source: Division ICM time data.
Notes: n/a--not applicable.
Percentages do not sum to 100 due to rounding.
[A] Other primarily includes time charged to various Section
initiatives, such as the Section's ongoing initiative to target
employers that may be engaged in a pattern or practice of employment
discrimination, and the Section's technical assistance to other DOJ
components and other federal executive agencies with respect to the use
of employment selection practices and devices in terms of compliance
with Title VII.
[End of table]
As shown in table 41, more than 50 percent of the total time charged to
cases each year was charged to pattern or practice (section 707) cases;
and of the total time charged to cases over the 7-year period, about 63
percent of the time was charged to these cases. Section officials
stated that pattern or practice cases are resource-intensive because
they are complex and typically involve multiple complainants.
Table 41: Percentage of Time Charged to Employment Litigation Section
Cases by Statute from Fiscal Years 2001 through 2007:
Statute: 706;
FY 2001: 24;
FY 2002: 26;
FY 2003: 14;
FY 2004: 22;
FY 2005: 15;
FY 2006: 13;
FY 2007: 21;
Percentage of total time charged over the 7-year period: 19.
Statute: 707;
FY 2001: 51;
FY 2002: 60;
FY 2003: 71;
FY 2004: 67;
FY 2005: 72;
FY 2006: 61;
FY 2007: 61;
Percentage of total time charged over the 7-year period: 63.
Statute: USERRA;
FY 2001: [Empty];
FY 2002: [Empty];
FY 2003: [Empty];
FY 2004: [Empty];
FY 2005: 9;
FY 2006: 16;
FY 2007: 15;
Percentage of total time charged over the 7-year period: 6.
Statute: Transportation Equity Act of the 21st Century;
FY 2001: 15;
FY 2002: 4;
FY 2003: 6;
FY 2004: 4;
FY 2005: 0.4;
FY 2006: 0.6;
FY 2007: 0;
Percentage of total time charged over the 7-year period: 4.
Statute: Department of Defense Price Preference Program;
FY 2001: 0.6;
FY 2002: 3;
FY 2003: 4;
FY 2004: 4;
FY 2005: 3;
FY 2006: 4;
FY 2007: 2;
Percentage of total time charged over the 7-year period: 3.
Statute: Immigration and Nationality Act[A];
FY 2001: 0;
FY 2002: 0;
FY 2003: 0;
FY 2004: 0;
FY 2005: 0;
FY 2006: 6;
FY 2007: 1;
Percentage of total time charged over the 7-year period: 1.
Statute: Other;
FY 2001: 8;
FY 2002: 7;
FY 2003: 5;
FY 2004: 3;
FY 2005: 1;
FY 2006: .03;
FY 2007: .08;
Percentage of total time charged over the 7-year period: 4.
Source: Division ICM data.
Note: Percentages do not sum to 100 due to rounding.
[A] During fiscal years 2006 and 2007, the Section assisted DOJ's
Office of Immigration Litigation in handling Immigration and
Nationality Act appeals.
[End of table]
According to the time data, in fiscal year 2001, about 27 percent of
the time spent on cases was devoted to cases in which the Section acted
as defendant. The Section represents the Departments of Labor and
Transportation and other federal agencies when they are sued for what
is alleged to be overzealous enforcement of federal laws that prohibit
discrimination and/or require affirmative action by government
contractors or recipients of federal financial assistance.[Footnote
180] In addition, the Section has authority to prosecute enforcement
actions for the Department of Labor of referrals arising under
Executive Order 11246, which prohibits discrimination in employment by
federal contractors. According to the fiscal year 2001 budget
submission, the demands placed upon the Section by defensive litigation
had resulted in personnel being diverted from investigating and
litigating affirmative Title VII cases, which resulted in less
effective enforcement of Title VII. The amount of time devoted to
defensive cases, as reported in ICM, declined to about 13 percent in
fiscal year 2002, and generally declined slightly each following year
to about 2 percent in fiscal year 2007. According to a Section Deputy
Chief, the Section was involved in many defensive cases following the
Adarand decision in 1995. However, the Section has not participated in
any new defensive cases in recent years. Our review of complaints filed
by the Division from fiscal years 2001 through 2007 identified that the
Employment Litigation Section had not participated in any new defensive
cases from fiscal years 2005 through 2007.
Staff and Attrition Levels:
As shown in table 42, for the 7-year period in our review, the Section
had its highest level of staff (61) in fiscal year 2001.[Footnote 181]
Table 155: Number of On-board Staff for the Employment Litigation
Section by Position and Fiscal Year:
Position: Attorney;
FY 2001: 37;
FY 2002: 36;
FY 2003: 34;
FY 2004: 36;
FY 2005: 34;
FY 2006: 39;
FY 2007: 35.
Position: Professional;
FY 2001: 17;
FY 2002: 17;
FY 2003: 17;
FY 2004: 15;
FY 2005: 10;
FY 2006: 12;
FY 2007: 13.
Position: Clerical;
FY 2001: 7;
FY 2002: 6;
FY 2003: 7;
FY 2004: 7;
FY 2005: 5;
FY 2006: 7;
FY 2007: 5.
Position: Total;
FY 2001: 61;
FY 2002: 59;
FY 2003: 58;
FY 2004: 58;
FY 2005: 49;
FY 2006: 58;
FY 2007: 53.
Source: Civil Rights Division.
Note: Staff on-board reflects official numbers as of the last day of
each fiscal year.
[End of table]
The turnover rates among Section staff varied by position and fiscal
year, as shown in table 43. In fiscal year 2005, the Division granted
voluntary early retirement authority along with a voluntary separation
incentive payment of $25,000. According to Division officials, the
buyout offered in 2005 resulted in an increased turnover rate among
Section staff.
Table 43: Percentage of Attrition for the Employment Litigation Section
by Position and Fiscal Year:
Position: Attorney;
FY 2001: 20;
FY 2002: 8;
FY 2003: 23;
FY 2004: 35;
FY 2005: 22;
FY 2006: 9;
FY 2007: 21.
Position: Professional;
FY 2001: 0;
FY 2002: 12;
FY 2003: 0;
FY 2004: 12;
FY 2005: 40;
FY 2006: 20;
FY 2007: 8.
Position: Clerical;
FY 2001: 29;
FY 2002: 14;
FY 2003: 0;
FY 2004: 0;
FY 2005: 29;
FY 2006: 20;
FY 2007: 29.
Source: Civil Rights Division.
Notes: The Section's turnover rates include employees who have
separated from the Division (i.e., resignation, transfer to another
federal agency, retirement, etc.) and those reassigned to another
section within the Division.
Numbers have been rounded to nearest whole number.
[End of table]
[End of section]
Appendix III: Additional Information on the Housing and Civil
Enforcement Section:
Statutes Enforced by the Housing and Civil Enforcement Section from
Fiscal Years 2001 through 2007:
The Housing and Civil Enforcement Section is responsible for enforcing
federal civil rights statutes related to discrimination in housing,
credit transactions, land use, and in certain places of public
accommodation, as well as enforcing certain federal protections for
active duty servicemembers. Statutes enforced by the Housing and Civil
Enforcement Section include the Fair Housing Act, The Equal Credit
Opportunity Act, Title II of the Civil Rights Act of 1964, the land use
provisions of the Religious Land Use and Institutionalized Persons Act,
and the Servicemembers Civil Relief Act.
Fair Housing Act:
The Fair Housing Act (FHA)[Footnote 182] prohibits discrimination on
the basis of race, color, religion, sex, familial status, national
origin, and disability in all types of housing transactions. The FHA
applies to direct providers of housing, such as landlords and real
estate companies, as well as other entities, such as municipalities,
banks or other lending institutions, and homeowners' insurance
companies. Unlawful discriminatory housing practices include, among
others, refusing to sell, rent or finance housing; discriminating in
the terms or conditions of a sale or rental; publishing notices or
advertisements that indicate any preference, limitation or
discrimination; falsely representing that a dwelling is not available;
inducing or attempting to induce any person to sell or rent by making
representations regarding the entry or prospective entry into the
neighborhood of a person or persons of a particular race, color,
religion, sex, handicap, familial status, or national origin; and
discriminatory zoning or land use regulations. In addition, the FHA
makes it unlawful to discriminate on the basis of handicap by refusing
to allow reasonable modifications to housing premises or to make
reasonable accommodations to rules, policies, practices, and services.
The statute also requires that multifamily dwellings be constructed in
ways that are accessible and usable by persons with disabilities.
The Section is involved in the enforcement of the FHA through a variety
of mechanisms. The FHA allows DOJ to bring suit where there is reason
to believe that a person or entity has engaged in a pattern or practice
of discrimination, or where a denial of rights to a group of persons
raises an issue of general public importance. DOJ may sue for
preventive relief, monetary damages to the aggrieved persons, and civil
penalties. The Section may also be involved in individual claims of
discrimination. Individuals who believe they have been injured by a
discriminatory housing practice may file complaints with the Department
of Housing and Urban Development (HUD), which is to investigate each
complaint. If the complaint cannot be conciliated, HUD is required to
determine whether reasonable cause exists to believe that a
discriminatory housing practice has occurred. If HUD determines that
reasonable cause exists, it must issue a charge of discrimination;
otherwise, the complaint is dismissed. An administrative hearing on the
charge will be held, unless either the complainant or respondent elects
to have the case heard in federal court. Where either party has made
such an election, DOJ is required to bring a civil lawsuit on behalf of
the aggrieved person in federal district court; these are known as
"election" cases.
In addition to pattern or practice cases and election cases, the
Section is involved in cases under the FHA in several other ways. The
FHA requires HUD to refer any matter involving a state or local zoning
or land use law or ordinance to DOJ, rather than issuing a charge of
discrimination, as well as to refer matters that may be the basis of a
pattern or practice case. Additionally, DOJ may bring an action to
enforce a HUD order or a breach of a conciliation agreement, upon
referral by HUD, and may bring suit to enforce a subpoena on behalf of
HUD. The statute also requires DOJ to bring suit for relief pending the
final disposition of a complaint that has been filed with HUD, where
the Secretary of HUD determines that prompt judicial action is
necessary. Additionally, 42 U.S.C. § 3613(e) states that the Attorney
General "may intervene" when the Attorney General "certifies that the
case is of general public importance."
Equal Credit Opportunity Act:
The Equal Credit Opportunity Act (ECOA)[Footnote 183] prohibits
creditors from discriminating against applicants in any aspect of a
credit transaction on the basis of race, color, religion, national
origin, sex, marital status, age, because all or part of the
applicant's income derives from any public assistance program, or
because the applicant has in good faith exercised any right under the
Consumer Credit Protection Act.[Footnote 184] Compliance with the
requirements of ECOA is enforced by federal bank regulatory agencies--
such as the Federal Deposit Insurance Corporation and the Federal
Reserve Board--which have authority over certain types of lenders and
creditors. Where the agency has been unable to obtain compliance with
ECOA's nondiscrimination requirement, ECOA authorizes the agency to
refer the matter to DOJ with a recommendation that a civil action be
filed. Additionally, the bank regulatory agencies with enforcement
authority under ECOA are required to refer matters to DOJ where the
agency has reason to believe that one or more creditors has engaged in
a discriminatory pattern or practice of discouraging or denying
applications for credit in violation of ECOA. In turn, DOJ, through its
Housing Civil Enforcement Section, may bring a civil action for relief--
including actual and punitive damages--when a matter has been referred.
DOJ may also bring suit whenever there is reason to believe that one or
more creditors are engaged in a pattern or practice of unlawful
discrimination in violation of ECOA.
Title II of the Civil Rights Act of 1964:
The Section may also bring suit to enforce Title II of the Civil Rights
Act of 1964,[Footnote 185] which prohibits discrimination on the basis
of race, color, religion, or national origin in certain places of
public accommodation, such as motels, restaurants, or movie theaters.
DOJ may bring suit where there is reasonable cause to believe that a
pattern or practice of discrimination exists and may obtain injunctive--
but not monetary--relief.
Religious Land Use and Institutionalized Persons Act:
The Section is also responsible for enforcing the land use provisions
of the Religious Land Use and Institutionalized Persons Act (RLUIPA).
[Footnote 186] RLUIPA prohibits state and local governments from
unjustifiably imposing a substantial burden on religious exercise or
imposing land use regulations that (1) discriminate against a religious
assembly or institution by treating them on less than equal terms with
a nonreligious assembly or institution; (2) discriminate on the basis
of religion or religious denomination; (3) totally exclude religious
assemblies from a jurisdiction; or (4) unreasonably limit religious
assemblies, institutions, or structures within a jurisdiction. DOJ is
authorized to bring a suit for injunctive or declaratory relief to
enforce the provisions of RLUIPA. The Housing and Civil Enforcement
Section received jurisdiction to enforce land use provisions of RLUIPA
in 2001.
The Servicemembers Civil Relief Act:
The Servicemembers Civil Relief Act (SCRA)[Footnote 187] provides
protections for members of the military as they enter active duty. It
covers issues such as rental agreements, security deposits, eviction,
installment contracts, credit card interest rates, mortgage
foreclosure, civil judicial and administrative proceedings, motor
vehicle leases, life insurance, health insurance, and income tax
payments. SCRA complaints are forwarded to DOJ by a military legal
assistance office when the office cannot resolve the complaint; the
Section may then bring suit pursuant to 28 U.S.C. § 517, which allows
DOJ to attend to the interests of the United States in any pending
suit.[Footnote 188] In 2006, the Attorney General transferred authority
for enforcing the SCRA to the Civil Rights Division; the Assistant
Attorney General, in turn, delegated that responsibility to the Housing
and Civil Enforcement Section.
The Section Initiated Matters under Other Statutes in Addition to the
FHA, ECOA, and RLUIPA:
The Housing and Civil Enforcement Section initiated matters pursuant to
Titles III and VI of the Civil Rights Act of 1964, section 504 of the
Rehabilitation Act, and the SCRA. From fiscal years 2001 through 2007,
no cases were filed under any of these provisions, except section 504,
under which one case was filed in conjunction with the FHA.[Footnote
189] The Section initiated 13 matters under Title III of the Civil
Rights Act of 1964, which prohibits discrimination in public facilities
based on race, color, religion, or national origin. According to data
maintained by the Section, these matters involved discrimination based
on national origin (Hispanic or Latino), race (black or African
American), and religion (Muslim, Sikh, or other), or were not
specified, and related to land use/zoning/local government, rentals,
public accommodations, or other housing or non-housing subjects.
The Section initiated eight matters under the SCRA, on behalf of
members of the military, which involved lending or rental issues. The
Section also initiated five section 504 matters, [Footnote 190] which
prohibits programs or activities receiving federal assistance from
discriminating against individuals on the basis of disability.[Footnote
191] All of these matters involved discrimination on the basis of
disability and the subject of other housing subject matter, which the
Section uses to signify issues that relate to a housing complaint, but
do not involve being denied housing, such as denial of utilities or
repairs. Section officials explained section 504 matters are rare and
are referred to the Section from HUD. The Section initiated four
matters under Title VI of the Civil Rights Act of 1964,[Footnote 192]
which prohibits discrimination on the basis of race, color, and
national original in programs and activities receiving federal
financial assistance.[Footnote 193] Primary responsibility for prompt
and vigorous enforcement of Title VI rests with the head of each
department and agency administering programs of federal financial
assistance and such cases require a referral to the Section from HUD.
The matters initiated under Title VI involved discrimination based on
disability, national origin (Hispanic or Latino), and race (black or
African American), in land use/zoning/local government or other housing
or non-housing subject matters. The Section initiated one matter
involving the criminal interference with housing rights,[Footnote 194]
which related to discrimination based on race (black or African
American) and harassment issues. Section officials explained that such
cases may be referred from the Criminal Section of the Civil Rights
Division of DOJ.
Time Spent on Matters, Cases, and Other Activities from Fiscal Years
2001 through 2007:
During fiscal years 2001 through 2007, about 48 percent of the total
time that Housing and Civil Enforcement Section staff charged to cases,
matters, and other activities was spent on cases, about 17 percent on
matters, and about 34 percent on other activities such as outreach and
professional development. As shown in table 44, of the time charged to
matters during the 7-year period, the Section charged about 70 percent
of its time to matters initiated under the FHA. Matters involving
allegations under ECOA or allegations under ECOA and the FHA comprised
about 19 percent of the time charged. The Section staff charged about 5
percent of their time to matters involving allegations under Title II
and about 5 percent to those under RLUIPA.
Table 44: Housing and Civil Enforcement Section: Percentage of Time
Charged to Matters by Statute for Fiscal Years 2001-2007:
Statute: FHA;
2001: 63;
2002: 74;
2003: 73;
2004: 69;
2005: 75;
2006: 68;
2007: 66;
Percent of total time charged over the 7-year period: 70.
Statute: ECOA;
2001: 12;
2002: 5;
2003: 12;
2004: 13;
2005: 7;
2006: 13;
2007: 9;
Percent of total time charged over the 7-year period: 10.
Statute: FHA and ECOA;
2001: 19;
2002: 10;
2003: 2;
2004: 3;
2005: 3;
2006: 8;
2007: 12;
Percent of total time charged over the 7-year period: 9.
Statute: Title II;
2001: 3;
2002: 8;
2003: 4;
2004: 5;
2005: 8;
2006: 6;
2007: 2;
Percent of total time charged over the 7-year period: 5.
Statute: RLUIPA;
2001: 0;
2002: 2;
2003: 8;
2004: 7;
2005: 6;
2006: 6;
2007: 6;
Percent of total time charged over the 7-year period: 5.
Statute: Total;
2001: 97;
2002: 99;
2003: 99;
2004: 97;
2005: 99;
2006: 101;
2007: 95;
Percent of total time charged over the 7-year period: 99.
Source: GAO analysis of Division ICM data.
Notes: Two hours of time charged were not provided. Time does not equal
100 percent, as the statutes and statute combinations to which the
Housing and Civil Enforcement Section devoted less than 1 percent of
its time are not included. Those statutes and statute combinations are:
SCRA, Equal Employment Opportunities Commission, Criminal Interference
with Housing Rights, the FHA and RLUIPA, Title VI and the FHA, Title VI
and section 504, Title VI, Title III and ECOA, Title III, Title II and
the FHA, and section 504.
Hours that provide the basis for the percentages include time of all
section professional staff, including section chief, deputies, special
counsel, attorneys, legal support staff, legal assistants, and law
clerks, and any staff unique to a section.
In September 2009, Section officials stated that while the current time
data for the 7-year period are different from the data we obtained in
September 2008 and reported in this table in part due to revisions to
the data, they agreed that Section staff spent most of their time on
the FHA matters, followed by ECOA, and then RLUIPA or Title II,
depending on the year.
[End of table]
The Section spent at least three-quarters of all time spent on cases on
pattern or practice cases from fiscal years 2001 through 2007. Fourteen
percent of the Section's time was spent on election cases that had an
additional allegation of pattern or practice. Table 45 shows the
percentages of case related time charged by Section staff by case type.
Table 45: Housing and Civil Enforcement Section: Percentage of Time
Charged by Case Type for Fiscal Years 2001 through 2007:
Case type: Amicus Participation;
FY2001: 4;
FY2002: 3;
FY2003: 0;
FY2004: 0;
FY2005: 0;
FY2006: 0;
FY2007: 0;
Percent of total time charged over the 7-year period: 1.
Case type: Election Case;
FY2001: 14;
FY2002: 5;
FY2003: 5;
FY2004: 4;
FY2005: 11;
FY2006: 12;
FY2007: 9;
Percent of total time charged over the 7-year period: 8.
Case type: Enforcement;
FY2001: 0;
FY2002: 0;
FY2003: 0;
FY2004: 0;
FY2005: 1;
FY2006: 0;
FY2007: 0;
Percent of total time charged over the 7-year period: 0.
Case type: Pattern or Practice;
FY2001: 68;
FY2002: 77;
FY2003: 81;
FY2004: 85;
FY2005: 74;
FY2006: 71;
FY2007: 67;
Percent of total time charged over the 7-year period: 75.
Case type: Pattern or Practice & Election;
FY2001: 12;
FY2002: 12;
FY2003: 14;
FY2004: 10;
FY2005: 14;
FY2006: 15;
FY2007: 22;
Percent of total time charged over the 7-year period: 14.
Case type: Other[A];
FY2001: 2;
FY2002: 3;
FY2003: 0;
FY2004: 0;
FY2005: 0;
FY2006: 3;
FY2007: 2;
Percent of total time charged over the 7-year period: 1.
Case type: Total;
FY2001: 100;
FY2002: 100;
FY2003: 100;
FY2004: 99;
FY2005: 100;
FY2006: 101;
FY2007: 100;
Percent of total time charged over the 7-year period: 99.
Source: GAO analysis of ICM time reporting data.
Notes: Twelve hours were attributed to the category "not provided." In
some cases, the percentage was less than .05 percent. For example, 1
percent of hours charged in 2005 were charged to Enforcement; however,
overall for the 7-year period, less than 1 percent of total time was
charged to Enforcement. Percentages may not add to 100 percent due to
rounding.
Hours that provide the basis for the percentages include time of all
section professional staff, including the section chief, deputies,
special counsel, attorneys, legal support staff, legal assistants, law
clerks, and any staff unique to the section.
Other includes the following case types and case type combinations:
amicus and pattern or practice; defend other federal agency;
enforcement and pattern or practice; Immigration and Nationality Act
appeals; and prompt judicial action.
[End of table]
Reasons the Housing and Civil Enforcement Section Closed Matters:
Using ICM data, we were unable to readily determine the reasons that
the Section closed approximately 1,070 matters from fiscal years 2001
through 2007 because this information was not maintained in the system.
[Footnote 195] However, on the basis of interviews with agency
officials and our review of 60 Housing closed matter files, we
determined that the Section usually closed matters for one or more of
the following reasons: (1) a lack of merit; (2) no further action was
warranted (e.g., because the matter was referred to another section, or
the parties settled); (3) the referral was returned to the referring
agency for administrative resolution (e.g., the accused took actions to
resolve the allegations); or (4) there was insufficient evidence of a
pattern or practice. Housing officials stated that although HUD
election referrals are generally filed as cases, they may be closed as
matters if (1) the parties settled early in the process and DOJ did not
sign the settlement agreement, or (2) HUD withdrew the charge. We
reviewed the matter files of 10 closed election matters, and although
we were not able to generalize from this sample, we found that 7 of the
10 files confirmed these reasons for closure. For example, in one
election matter file we reviewed, the complainant alleged
discrimination based on disability and HUD later withdrew the complaint
in light of newly discovered evidence. The remaining three election
files reviewed were initiated prior to fiscal year 2001 and closed
either because (1) the Housing and Civil Enforcement Section asked HUD
to follow up on an investigation, as some of the allegations were
unclear, and HUD never issued a new determination of reasonable cause;
or (2) the investigation was open for over 2 years, and it was
determined no further action was warranted.
The Housing and Civil Enforcement Section's Work on Cases Filed Prior
to 2001:
According to ICM data, the Housing and Civil Enforcement Section filed
137 cases as plaintiff prior to fiscal year 2001 that remained open
during the time period of our review. Section officials explained that
once a case has been resolved, during the term of a consent decree, the
Section monitors the defendants' compliance with the consent decree's
various provisions. The cases that remained open involved the FHA, ECOA
and Title II of the Civil Rights Act of 1964. Specifically, 132 cases
involved the FHA, 7 involved ECOA, and 3 involved Title II.[Footnote
196] The cases remaining open under the FHA involved a variety of
subject matters. Most involved rental issues (71 of 132), followed by
cases involving the Section's testing program (27 of 132).[Footnote
197] Most of the FHA cases were election cases (58 of 132), followed by
pattern or practice cases (51 of 132).[Footnote 198] Other cases
involved the Section's enforcement of an order or decision (an order,
consent decree, or some type of agreement issued by an administrative
law judge to collect money owed or to perform a service/duty) or a
prompt judicial action or enforcement matter.[Footnote 199] All of the
ECOA and Title II cases were pattern or practice cases. The Section
also participated in 12 cases as amicus curiae and 1 case as plaintiff
intervenor that were filed before fiscal year 2001. Table 46 shows the
137 cases remaining open from fiscal years 2001 through 2007, by
statute and government role.
Table 46: Cases Remaining Open from Fiscal Years 2001 through 2007 by
Statute and Government Role:
Statutes: ECOA;
Government Role: Amicus;
Total: 1.
Statutes: ECOA;
Government Role: Plaintiff;
Total: 2.
Statutes: ECOA Total;
Total: 3.
Statutes: Title II;
Government Role: Amicus;
Total: 2.
Statutes: Title II;
Government Role: Plaintiff;
Total: 3.
Statutes: Title II Total;
Total: 5.
Statutes: FHA;
Government Role: Amicus;
Total: 8.
Statutes: FHA;
Government Role: Plaintiff;
Total: 127.
Statutes: FHA;
Government Role: Plaintiff - Intervenor;
Total: 1.
Statutes: FHA Total;
Total: 136.
Statutes: FHA and ECOA;
Government Role: Amicus;
Total: 1.
Statutes: FHA and ECOA;
Government Role: Plaintiff;
Total: 5.
Statutes: FHA and ECOA Total;
Total: 6.
Statutes: Grand Total;
Total: 150.
Source: GAO analysis of ICM data.
[End of table]
Housing and Civil Enforcement Section Resources from Fiscal Years 2001
through 2007:
According to data provided by the Division, the staff resources
available to the Housing Section showed little fluctuation over the 7-
year period. As shown in table 47, the total number of permanent
positions available in the Section remained at 100 during the first 4
years and then declined to 98 in the last 3 years.
Table 48: Housing and Civil Enforcement Section: Historical Track of
Available Resources (dollars in thousands):
Resources[A]: Permanent Positions;
Fiscal year: 2001: 100;
Fiscal year: 2002: 100;
Fiscal year: 2003: 100;
Fiscal year: 2004: 100;
Fiscal year: 2005: 98;
Fiscal year: 2006: 98;
Fiscal year: 2007: 98.
Resources[A]: Salaries and Expenses;
Fiscal year: 2001: 13,295;
Fiscal year: 2002: 13,963;
Fiscal year: 2003: 14,278;
Fiscal year: 2004: 14,594;
Fiscal year: 2005: 14,342;
Fiscal year: 2006: 13,541;
Fiscal year: 2007: 14,168.
Source: Civil Rights Division.
[A] Salaries and Expenses.
[End of table]
The number of on-board staff, shown in table 48, generally decreased
from fiscal years 2001 through 2007. However, the number of on-board
attorneys was lowest in fiscal year 2003 (40). The Division stated that
in fiscal year 2005 the Division had granted voluntary early retirement
authority along with a voluntary separation incentive payment of
$25,000. Over the 7-year period, the number of attorneys decreased from
49 to 41 and the number of professionals in the Section remained
relatively constant, fluctuating between 31 and 27.
Table 48: Number of On-board Staff for Housing and Civil Enforcement
Section by Position and Fiscal Year:
Position[A]: Attorney;
Fiscal year: 2001: 49;
Fiscal year: 2002: 45;
Fiscal year: 2003: 40;
Fiscal year: 2004: 46;
Fiscal year: 2005: 46;
Fiscal year: 2006: 41;
Fiscal year: 2007: 41.
Position[A]: Professional;
Fiscal year: 2001: 31;
Fiscal year: 2002: 31;
Fiscal year: 2003: 29;
Fiscal year: 2004: 27;
Fiscal year: 2005: 30;
Fiscal year: 2006: 29;
Fiscal year: 2007: 31.
Position[A]: Clerical;
Fiscal year: 2001: 13;
Fiscal year: 2002: 13;
Fiscal year: 2003: 9;
Fiscal year: 2004: 12;
Fiscal year: 2005: 9;
Fiscal year: 2006: 8;
Fiscal year: 2007: 10.
Position[A]: Total;
Fiscal year: 2001: 93;
Fiscal year: 2002: 89;
Fiscal year: 2003: 78;
Fiscal year: 2004: 85;
Fiscal year: 2005: 85;
Fiscal year: 2006: 78;
Fiscal year: 2007: 82.
Source: Division on-board data for the Housing and Civil Enforcement
Section.
[A] On-board statistics reflect the official numbers of staff at the
end of the fiscal years. The Housing and Civil Enforcement Section
keeps statistics on the average on-board numbers for each fiscal year.
The average on-board number of attorneys and professionals is based on
information contained in the "Staffing Pattern Report" the Section
receives from Human Resources. If the Section receives 10 reports for a
fiscal year, it totals the number of on board attorneys and
professionals and then divides each by the number of received reports (
in this case 10).The Section has been generating these numbers in this
manner since fiscal year 2003. The Section's statistics show the
following average on-board attorney positions: fiscal year 2003--42;
fiscal year 2004--42; fiscal year 2005--43; fiscal year 2006--42; and
fiscal year 2007--41, and the following average on-board professional
positions: fiscal year 2003--28; fiscal year 2004--27; fiscal year
2005--28; fiscal year 2006--29; and fiscal year 2007--30.
[End of table]
In addition, the attrition rates for Section staff fluctuated over the
7-year period, as shown in table 49. The attrition rate for Section
attorneys was highest in fiscal years 2003 and 2007, and attrition was
at the lowest level in fiscal year 2001.
Table 49: Percentage of Attrition for Housing and Civil Enforcement
Section by Position and Fiscal Year:
Position: Attorney;
Fiscal year: 2001: 5;
Fiscal year: 2002: 10;
Fiscal year: 2003: 24;
Fiscal year: 2004: 15;
Fiscal year: 2005: 13;
Fiscal year: 2006: 13;
Fiscal year: 2007: 27.
Position: Professional;
Fiscal year: 2001: 11;
Fiscal year: 2002: 29;
Fiscal year: 2003: 22;
Fiscal year: 2004: 14;
Fiscal year: 2005: 15;
Fiscal year: 2006: 28;
Fiscal year: 2007: 10.
Position: Clerical;
Fiscal year: 2001: 25;
Fiscal year: 2002: 8;
Fiscal year: 2003: 31;
Fiscal year: 2004: 33;
Fiscal year: 2005: 33;
Fiscal year: 2006: 44;
Fiscal year: 2007: 25.
Source: Division attrition data.
Notes: The Section's attrition rates include employees who had
separated from the Division (e.g., resignation, transfer to another
federal agency, retirement, etc.) and those reassigned to another
section within the Division.
Numbers have been rounded to the nearest whole number.
[End of table]
[End of section]
Appendix IV: Voting Rights Section:
Statutes Enforced by the Voting Section from Fiscal Years 2001 through
2007:
The Voting Section is responsible for the enforcement of federal voting
rights statutes, including statutory provisions designed to safeguard
the right to vote of racial and language minorities, disabled and
illiterate persons, and overseas and military personnel. The Voting
Section is also charged with the responsibility for enforcing federal
statutes that, among other things, address issues such as voter
registration, provisional voting, and voter information.
The Voting Rights Act:
The purpose of the Voting Rights Act (VRA),[Footnote 200] as
reauthorized in 2006, is to ensure that the right of all citizens to
vote, including the right to register to vote and cast meaningful
votes, is preserved and protected as guaranteed by the Constitution.
The Voting Section is involved in enforcement of several of its
provisions.
* Section 2:
Section 2 of the VRA[Footnote 201] prohibits discriminatory procedures
or practices that result in a denial or abridgment of the right to vote
on account of race, color, or membership in a language minority group.
A violation is proved where, based on a totality of the circumstances,
political processes leading to nomination or election are not equally
open to members of the protected classes, in that the members have less
opportunity to participate in the political process and elect
candidates of their choice. Prohibited practices and procedures include
redistricting plans and at-large election systems, poll worker hiring,
and voter registration procedures, among others, that discriminate on
the basis of race, color, or membership in a language minority group.
Section 2 prohibits not only voting practices and procedures that are
intended to discriminate against the protected classes, but also those
that have a discriminatory impact. Affected private citizens, as well
as the Attorney General through the Voting Section, may bring lawsuits
to obtain court-ordered remedies for violations of section 2.
* Sections 203, 4(f)(4) and 4(e):
Collectively known as the "language minority provisions" of the Voting
Rights Act, sections 203[Footnote 202] and 4(f)(4)[Footnote 203] are to
enable members of applicable language minority groups to participate
effectively in the electoral process. Under sections 203 and 4(f)(4),
covered jurisdictions[Footnote 204] must provide any registration or
voting notices, forms, instructions, assistance, or other materials or
information relating to the electoral process, including ballots, in
the language of the applicable minority group, as well as in English.
Where the applicable minority language group is Alaska Natives or
American Indians, and the predominant language is historically
unwritten, the covered jurisdiction is only required to provide oral
instructions. Section 4(e)[Footnote 205] prohibits states from
conditioning the right to vote on English language proficiency for
persons educated in American-flag schools in which the predominant
classroom language was other than English. The Attorney General is
authorized to bring civil actions for appropriate relief for violations
of these provisions, which is accomplished through the Voting Section.
* Section 5:
Under section 5 of the act,[Footnote 206] covered jurisdictions
[Footnote 207] may not change their election practices or procedures
until they obtain federal "preclearance" for the change. The act
provides for either judicial or administrative preclearance. Under the
judicial mechanism, covered jurisdictions may seek declaratory judgment
from the United States District Court for the District of Columbia that
the change has neither the purpose nor the effect of discriminating
against protected minorities in exercising their voting rights. Under
the administrative mechanism, covered jurisdictions may seek the same
determination from the Attorney General. The Attorney General may deny
preclearance by interposing an objection to the proposed change within
60 days of its submission. In order to terminate or "bailout" from the
requirements of section 5, jurisdictions may seek a declaratory
judgment from a three-judge panel in the United States District Court
for the District of Columbia that the jurisdiction meets certain
statutory standards. To be successful, a bailout applicant must
demonstrate, for example, that for the previous 10 years all changes
affecting voting have been reviewed under section 5 prior to their
implementation and that these changes were not the subject of an
objection by the Attorney General or the denial of a section 5
declaratory judgment from the District Court for the District of
Columbia, and that the jurisdiction has made constructive efforts to
eliminate intimidation and harassment of persons seeking to register to
vote and vote, among several other requirements. The Attorney General
is authorized to consent to an entry of judgment granting the bailout
if after investigating the Attorney General concludes the jurisdiction
has complied with all of the statute's requirements.
* Section 208:
Section 208[Footnote 208] allows any voter who requires assistance to
vote by reason of blindness, disability, or inability to read or write
to be given assistance by a person of the voter's choice other than the
voter's employer or agent of that employer or officer or agent of the
voter's union.
* Section 11(b):
Section 11(b)[Footnote 209] of the Voting Rights Act prohibits persons,
whether acting under color of law or not, from intimidating,
threatening, or coercing, or attempting to intimidate, threaten or
coerce, any person for voting or attempting to vote. Section 11(b)
further prohibits intimidation, threats, or coercion of those persons
aiding other persons in voting or exercising certain powers or duties
under the act.
Help America Vote Act of 2002:
The Help America Vote Act of 2002 (HAVA),[Footnote 210] among other
things, established a program to provide funds to states to replace
punch card voting systems, established the Election Assistance
Commission, and established minimum election administration standards
for states and units of local government with responsibility for the
administration of federal elections. Certain HAVA provisions relating
to voting system standards, provisional voting and voting information
requirements, and computerized statewide voter registration list
requirements are to be enforced by the Attorney General. HAVA was
enacted in 2002 and primary responsibility for its enforcement was
delegated to the Voting Section.
Uniformed and Overseas Citizens Absentee Voting Act:
Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA)[Footnote
211] requires states and territories to allow absent uniformed services
voters and their spouses or dependents, and overseas voters to register
and vote absentee in federal elections. Under UOCAVA, the Attorney
General may bring a civil action for declaratory or injunctive relief
to carry out the act's provisions.
National Voter Registration Act of 1993:
The National Voter Registration Act of 1993 (NVRA)[Footnote 212]
requires states[Footnote 213] to adopt certain federal voter
registration procedures, including allowing voters to register to vote
by mail, when they obtain driver's licenses, or at offices that provide
public assistance and services to persons with disabilities and other
state agencies and offices. The NVRA also contains detailed
requirements regarding state removal of names from federal registration
rolls. The Act requires states to have a program to remove ineligible
voters from voter rolls, but also requires that list maintenance
programs incorporate specific safeguards, for example, they be uniform,
non-discriminatory, in compliance with the VRA, and not be undertaken
within 90 days of a federal election. The Attorney General is
authorized to bring a civil action for declaratory or injunctive relief
to enforce the provisions of the NVRA, as are private parties.
Reasons the Voting Section Closed Matters:
From fiscal years 2001 through 2007, the Section closed 345 matters.
According to Section officials, the recommendation to close should come
from the lead attorney and be approved by a reviewer (Section Chief or
Deputy Section Chief). As previously discussed, through our analysis of
ICM data we were unable to readily determine the reasons the Voting
Section closed the 345 matters, because this information was not
maintained in ICM. However, through interviews with Voting Section
officials and our analysis of 50 closed matter files, we were able to
ascertain why the Section usually closed matters. According to Section
officials, the primary reasons the Section closed matters included: (1)
no further action was warranted, (2) insufficient evidence to show a
systemic problem, (3) the matter resolved itself, and (4) corrective
action was taken by local officials.
Among the 51 closed matters we reviewed, we identified specific reasons
to close that fell within each of the four categories reported by
Section officials. The specific reasons included the following
examples: NVRA and HAVA claims were incorporated into a pending law
suit; from post election interviews, the Section could not substantiate
claims of intimidation; DOJ's concerns were resolved; and the state
agreed to extend the time to receive and count absentee ballots from
overseas voters. However, we also identified three matters in which the
documentation indicated that the Division had not approved the
Section's recommendation. In one instance, the Division denied further
investigation on the grounds of limited resources, more pressing
matters, and the election results were not due to ethnic background of
the candidate; in the second, it decided not to bring suit; and in the
third, it did not approve further contact with state authorities on
this matter.[Footnote 214] Section officials further noted that section
5 enforcement matters, actions where a covered jurisdiction has failed
to preclear a voting change with the Voting Section, may have remained
open, in some instances for 2 to 3 years. The officials said that these
matters may have remained open because the attorney was waiting for a
corrective action to be taken by the jurisdiction. The reasons Section
officials gave for closing the section 5 enforcement matters reviewed
was that no objection to the proposed change was made.
Additional Information on Cases in Which the Voting Section
Participated from Fiscal Years 2001 through 2007:
Plaintiff Intervenor Case:
In fiscal year 2001 the Section intervened in one case on behalf of the
plaintiff, to defend the constitutionality of section 2. The underlying
litigation had been ongoing since 1991 and the plaintiffs had alleged
that the defendant city's at-large method of electing members of the
city council violated section 2. In response, the defendants had
asserted, among other things, that section 2 of the VRA was
unconstitutional.
Defendant Cases:
The Voting Section participated in 30[Footnote 215] cases as defendant
from fiscal years 2001 through 2007.[Footnote 216] These cases involved
several types of claims against the Attorney General and were filed by
political jurisdictions covered under section 5 of the VRA as well as
by private litigants; although most cases were filed by jurisdictions
(17 of 30).
The largest number of cases in which the Section served as defendant
(12 of 30) was filed by jurisdictions seeking relief under the
"bailout" provision in section 4(a) of the VRA, which allows a
political subdivision to be released from the preclearance requirements
of section 5 if certain conditions are met. To bailout, a jurisdiction
must seek a declaratory judgment[Footnote 217] from a three-judge
District Court in Washington, D.C. It must show that for the previous
10 years it has not used any forbidden voting test, has not been
subject to any valid objection under section 5, and has not been found
liable for other voting rights violations. It must also show that it
has engaged in constructive efforts to eliminate intimidation and
harassment of voters, and similar measures. The Attorney General can
consent to entry of judgment in favor of bailout if the evidence
warrants it, though other interested parties are allowed to intervene
in the declaratory judgment action. Eleven of the bailout cases were
brought by political subdivisions in Virginia; Voting Section officials
reported that the United States consented to the declaratory judgment
in each of these cases. In the last bailout case, a small utility
district in Texas filed suit seeking to bailout from the VRA's
preclearance requirements. The district also argued that if the VRA was
interpreted in a way that meant that the district was ineligible to
bailout, then section 5 of the VRA was unconstitutional. The case was
heard by the Supreme Court, which held that the district was eligible
to bailout from the requirements of section 5 and did not reach the
question of the constitutionality of section 5.
In 5 cases, jurisdictions filed actions seeking a declaratory judgment
under section 5 of the VRA that a change in voting had neither the
purpose nor effect of denying or abridging the right to vote on account
of race, color, or membership in a language minority group. This is the
judicial preclearance process--bringing an action in the District Court
of the District of Columbia--as opposed to an administrative
preclearance conducted by the Voting Section. All of these cases
involved states seeking to have redistricting or reapportionment plans
[Footnote 218] cleared by the court. For example, in one case, after
the 2000 census, the state of Florida gained an additional two members
in the House of Representatives and divided the state into different
electoral districts. Because this constituted a voting change, Florida
brought an action requesting the court to determine whether the
congressional reapportionment plan satisfied the standard of section 5.
After the case was filed, the Attorney General precleared the same
plan, which the state had also submitted for administrative
preclearance, consequently making the filed case unnecessary. In
another case, which was litigated to the Supreme Court, the state of
Georgia brought an action seeking to preclear its state senate
redistricting plan. DOJ unsuccessfully argued that Georgia's
redistricting plan should not be precleared and that the plan's changes
to the existing boundaries of certain districts unlawfully reduced the
ability of black voters to elect candidates of their choice.
The remainder of the cases in which the Section acted as defendant were
brought by private litigants (13 of 30). Four of these cases related to
the section 5 preclearance process. In these cases, the plaintiffs
brought suit seeking to challenge DOJ's preclearance determination, or
DOJ's request for more information from a covered jurisdiction seeking
preclearance. For example, after an invalidated primary election, the
governor of South Carolina issued an executive order setting a special
primary election, which the State of South Carolina then requested the
Attorney General review under section 5 of the VRA. Voting Section
officials informed the South Carolina officials that the Attorney
General would not object to the proposed change to state election
procedures. Subsequently, plaintiffs--27 African American voters from
South Carolina--brought suit challenging the Attorney General's
decision to preclear the change, which the court held that it could not
do.
Several cases (10 of 30) were filed by pro se plaintiffs (those acting
on their own behalf, without legal representation) against the Attorney
General, for which the Voting Section acted as defendant because the
cases related to statutes the Section enforces. For example, in two
cases, the same pro se plaintiff challenged the constitutionality of
section 5 and in another case, a plaintiff challenged the
constitutionality of the Voting Rights Act as a whole. In another pro
se case, the plaintiff alleged that DOJ had failed to respond to the
states' failure to implement HAVA-compliant voting procedures and
requested that the court direct an official in the Voting Rights
Section to take action to prevent future HAVA violations. It was not
always clear what claims the plaintiffs were seeking to allege.
[Footnote 219]
A final case was filed by a group of individual plaintiffs and a
nonprofit public interest organization to challenge DOJ's actions with
respect to its enforcement of HAVA. The plaintiffs filed an action
against DOJ, along with Pennsylvania state and county defendants. The
complaint alleged a number of claims against the state and county
defendants relating to the purchase of new voting machines asserting
that, among other things, the machines were inaccessible to persons
with disabilities. The plaintiffs also alleged that DOJ had treated
Pennsylvania, the plaintiffs, and the county at issue differently than
it had treated a similar matter in New York, which violated plaintiffs'
right to due process of law, under the Fifth Amendment.
Amicus Briefs Filed from Fiscal Years 2001 through 2007:
From fiscal year 2001 through 2007, the Voting Section filed two amicus
briefs.[Footnote 220] Both of these cases involved the enforcement of
the preclearance requirement under section 5 and the Section appeared
on behalf of the plaintiffs. For example, in one case, the state of
South Dakota, not itself covered by section 5, enacted a legislative
redistricting plan in 2001 and sought to enforce that plan in Shannon
and Todd counties, which were subject to section 5, without first
obtaining the required preclearance. The plaintiffs alleged that the
state had violated section 2 and 5 of VRA. DOJ filed an amicus brief on
behalf of the plaintiffs arguing that the state plan was a voting
change in the covered counties subject to preclearance under section 5.
The Voting Section's Work on Plaintiff Cases Filed Prior to 2001:
According to ICM data, the Voting Section filed 25 cases as plaintiff
prior to fiscal year 2001 that remained open during the time period of
our review. Complaints for these cases were filed starting in 1976 to
just shortly before fiscal year 2001. Section officials explained that
some cases remained open because the Section was monitoring consent
decrees, and in other cases the Section continued to monitor elections
in the jurisdictions to ensure continued implementation of procedures
in accordance with the relevant statute.[Footnote 221] As shown in
table 50, most of the cases (21 of 25) were filed under the VRA, and
two cases were filed under the NVRA and UOCAVA, respectively.
Table 50: Voting Section Plaintiff Cases Filed Prior to Fiscal Year
2001, but Open from Fiscal Years 2001 through 2007, by Statute:
Statutes: Voting Rights Act - 1965;
Number of cases: 21.
Statutes: The National Voter Registration Act;
Number of cases: 2.
Statutes: The Uniformed And Overseas Citizen Absentee Voting Act;
Number of cases: 2.
Statutes: Total;
Number of cases: 25.
Source: GAO analysis of ICM data.
[End of table]
As shown in table 51, of the cases filed under the VRA, 15 involved
section 2 of the VRA, 6 involved section 203 of the VRA, and 1 involved
both the enforcement of section 5 and section 2 of the VRA.[Footnote
222] Most (12 of 15) of the cases filed under section 2 of the VRA
involved the subject of "at-large," which refers to an at-large method
of election as denying members of the protected class an opportunity
equal to participate in the political process and elect representatives
of their choice as other members of the electorate. An additional two
cases filed under section 2 involved the subject of "other." The
Section uses the subject "other" to signify cases challenging practices
other than a method of election, such as voting qualifications that
deny or abridge the rights of protected groups, discriminatory voting
registration procedures, or election-day practices that have a
"disparate impact" (i.e., a greater impact on one group of voters than
other groups). One case involved the subject "other dilution." The
Section uses the subject "other dilution" to identify cases alleging
that the method of election or election plan--other than an at-large
election system--denies members of the protected class an opportunity
equal to participate in the political process and elect representatives
of their choice as other members of the electorate.
Table 51: Cases Filed under the Voting Rights Act Prior to Fiscal Year
2001, but Open from Fiscal Years 2001 through 2007, by Subject:
Subject: Section 2-At Large;
Number of cases: 11.
Subject: Section 2-At Large Section 5-Enforcement;
Number of cases: 1.
Subject: Section 2-other dilution;
Number of cases: 1.
Subject: Section 2-other;
Number of cases: 2.
Subject: Section 203;
Number of cases: 6.
Subject: Total;
Number of cases: 21.
Source: GAO analysis of ICM data.
[End of table]
As shown in table 52, the (15) cases remaining open that were filed
under section 2 of the VRA involved the protected classes of race (10)--
5 on behalf of blacks or African Americans,[Footnote 223] 3 on behalf
of American Indians or Alaska Natives, and 1 on behalf of Arabs and 1
Hispanics, respectively--and language minority (5)--4 on behalf of
Spanish speakers and 1 on behalf of Native Americans.
Table 52: Cases Filed under Section 2 of the Voting Rights Act Prior to
Fiscal Year 2001, but Open from Fiscal Years 2001 through 2007, by
Protected class:
Protected class: Race-African American;
Number of Cases: 5.
Protected class: Race-American Indian Or Alaska Native;
Number of Cases: 3.
Protected class: Race-Arab;
Number of Cases: 1.
Protected class: Race-Hispanic;
Number of Cases: 1.
Protected class: Total;
Number of Cases: 10.
Protected class: Language Minority-Spanish;
Number of Cases: 4.
Protected class: Language Minority-Native American;
Number of Cases: 1.
Protected class: Total;
Number of Cases: 5.
Protected class: Grand Total;
Number of Cases: 15.
Source: GAO analysis of ICM data.
[End of table]
Most cases filed under section 203[Footnote 224] and that remained open
during the period of our review involved Native Americans (5 of 6), and
one case involved Spanish speakers. Section 203 requires covered
jurisdictions to provide bilingual written materials and other
assistance for elections (e.g., ballots) in the language of the
applicable minority group or oral instructions in the case of Alaska
Natives or American Indians.
Time Spent on Matters and Cases from Fiscal Years 2001 through 2007:
The percentage time spent by the Section on matters fluctuated over the
time period. As shown in table 53, over half of the total time spent on
matters during the 7-year period was reported in fiscal years 2003
through 2005.
Table 53: Percentage of Time the Voting Section Spent on Matters from
Fiscal Year 2001 through 2007, by Fiscal Year:
Matters:
Fiscal year: 2001: 14;
Fiscal year: 2002: 8;
Fiscal year: 2003: 16;
Fiscal year: 2004: 20;
Fiscal year: 2005: 18;
Fiscal year: 2006: 14;
Fiscal year: 2007: 11;
Fiscal year: Total: 100.
Source: GAO analysis of ICM data.
Notes: Percentages rounded to nearest whole number. Percentages do not
sum to 100 due to rounding.
Hours that provide the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[End of table]
Over the 7-year period, the proportion of the total time reported spent
on cases fluctuated. As shown in table 54, the percentage of the total
time spent on cases declined from fiscal year 2002 to fiscal year 2005,
and then began increasing. Thirty-eight percent of the total time spent
on cases was reported in fiscal years 2006 and 2007.
Table 54: Percentage of Time the Voting Section Spent on Cases from
Fiscal Years 2001 through 2007 by Fiscal Year:
All Cases:
Fiscal year: 2001: 14;
Fiscal year: 2002: 16;
Fiscal year: 2003: 11;
Fiscal year: 2004: 9;
Fiscal year: 2005: 11;
Fiscal year: 2006: 18;
Fiscal year: 2007: 20;
Fiscal year: Total: 100.
Source: GAO analysis of ICM data.
Notes: Percentages rounded to nearest whole number. Percentages do not
sum to 100 due to rounding.
Hours that provide the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[End of table]
Of the total time spent on cases shown in table 55, the Section
reported spending approximately 85 percent on cases in which it was the
plaintiff and about 12 percent on cases in which it was a defendant.
[Footnote 225] The total time the Section reported it spent on
plaintiff cases fluctuated during the 7-year period with over 40
percent of the time reported in fiscal years 2006 and 2007.
Table 55: Percentage of Time the Voting Section Spent on Plaintiff
Cases from Fiscal Years 2001 through 2007, by Fiscal Year:
Plaintiff cases:
Fiscal year: 2001: 15;
Fiscal year: 2002: 14;
Fiscal year: 2003: 11;
Fiscal year: 2004: 8;
Fiscal year: 2005: 12;
Fiscal year: 2006: 21;
Fiscal year: 2007: 20;
Fiscal year: Total: 100.
Source: GAO analysis of ICM time reporting data.
Notes: Percentages rounded to nearest whole number. Percentages do not
sum to 100 due to rounding.
Hours that provide the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[End of table]
The time spent on defendant cases, as shown in table 56, also
fluctuated during the time period. Seventy percent of the total time
spent on defendant cases during these years was reported from fiscal
years 2002 through 2004, over half of which was reported in fiscal year
2002 alone.
Table 56: Percentage of Time the Voting Section Spent on Defendant
Cases from Fiscal Years 2001 through 2007 by Fiscal Year:
Cases:
Fiscal year: 2001: 6;
Fiscal year: 2002: 36;
Fiscal year: 2003: 16;
Fiscal year: 2004: 18;
Fiscal year: 2005: 5;
Fiscal year: 2006: 5;
Fiscal year: 2007: 14;
Fiscal year: Total: 100.
Source: GAO analysis of ICM time reporting data.
Notes: Percentages rounded to nearest whole number.
Hours that provide the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[End of table]
Voting Section Resources Available from Fiscal Years 2001 through 2007:
According to data provided by the Division, the staff resources
available to the Voting Section fluctuated from fiscal years 2001
through 2007. As shown in table 57, the total number of permanent
positions available in the Section was highest (105) during each of the
first 4 years and then declined to a low of 98 in fiscal year 2007.
Voting Section officials confirmed the fluctuations in staff,
explaining that the Section has the largest number of positions during
the periods when it is reviewing redistricting plans after a census.
After the Section completed this work, it lost positions, which DOJ
transferred to its Civil Division.
Table 57: Voting Section: Historical Track of Available Resources:
Resources: Permanent positions;
Fiscal year: 2001: 105;
Fiscal year: 2002: 105;
Fiscal year: 2003: 105;
Fiscal year: 2004: 105;
Fiscal year: 2005: 102;
Fiscal year: 2006: 102;
Fiscal year: 2007: 98.
Resources: Salaries and expenses;
Fiscal year: 2001: 12,158;
Fiscal year: 2002: 13,242;
Fiscal year: 2003: 13,596;
Fiscal year: 2004: 14,123;
Fiscal year: 2005: 13,720;
Fiscal year: 2006: 11,758;
Fiscal year: 2007: 11,810.
Source: Civil Rights Division, DOJ.
Note: Salaries and Expenses, dollars in thousands.
[End of table]
As shown in table 58, the number of Voting Section staff on board at
the end of each fiscal year also fluctuated over the 7-year period. The
number of attorneys reached its lowest levels in fiscal year 2005--the
year in which the Division granted voluntary early retirement authority
along with a voluntary separation incentive payment of $25,000. The
number of professionals in the Section declined steadily, reaching a
low of 20 in fiscal year 2007, half the number of professionals in
fiscal year 2001.
Table 58: Number of On-board Staff for Voting Section by Position and
Fiscal Year:
Position: Attorneys;
Fiscal Year: 2001: 41;
Fiscal Year: 2002: 43;
Fiscal Year: 2003: 39;
Fiscal Year: 2004: 36;
Fiscal Year: 2005: 33;
Fiscal Year: 2006: 34;
Fiscal Year: 2007: 38.
Position: Professionals;
Fiscal Year: 2001: 40;
Fiscal Year: 2002: 35;
Fiscal Year: 2003: 32;
Fiscal Year: 2004: 31;
Fiscal Year: 2005: 28;
Fiscal Year: 2006: 26;
Fiscal Year: 2007: 20.
Position: Clerical;
Fiscal Year: 2001: 16;
Fiscal Year: 2002: 16;
Fiscal Year: 2003: 15;
Fiscal Year: 2004: 16;
Fiscal Year: 2005: 15;
Fiscal Year: 2006: 14;
Fiscal Year: 2007: 13.
Position: Total;
Fiscal Year: 2001: 97;
Fiscal Year: 2002: 94;
Fiscal Year: 2003: 86;
Fiscal Year: 2004: 83;
Fiscal Year: 2005: 76;
Fiscal Year: 2006: 74;
Fiscal Year: 2007: 71.
Source: Civil Rights Division.
Note: Staff on-board reflects the official numbers as of the last day
of each fiscal year.
[End of table]
In addition, the attrition rates for Section staff, shown in table 59,
fluctuated over the 7-year period. The rate for Section attorneys was
highest in fiscal years 2005 through 2007, reaching its highest level
in 2005. The Division noted that in fiscal year 2005, it was granted
voluntary early retirement and voluntary separation authority, which
contributed to the rate of attrition that year.
Table 59: Percentage of Attrition for Voting Section by Position and
Fiscal Year:
Position: Attorney;
Fiscal year: 2001: 6;
Fiscal year: 2002: 7;
Fiscal year: 2003: 19;
Fiscal year: 2004: 15;
Fiscal year: 2005[A]: 31;
Fiscal year: 2006: 27;
Fiscal year: 2007: 21.
Position: Professional;
Fiscal year: 2001: 5;
Fiscal year: 2002: 20;
Fiscal year: 2003: 20;
Fiscal year: 2004: 31;
Fiscal year: 2005[A]: 13;
Fiscal year: 2006: 32;
Fiscal year: 2007: 35.
Position: Clerical;
Fiscal year: 2001: 13;
Fiscal year: 2002: 0;
Fiscal year: 2003: 6;
Fiscal year: 2004: 13;
Fiscal year: 2005[A]: 6;
Fiscal year: 2006: 13;
Fiscal year: 2007: 14.
Source: Civil Rights Division, DOJ.
Notes: The Section's attrition rates include employees who had
separated from the Division (i.e., resignation, transfer to another
federal agency, retirement, etc.) and those reassigned to another
section within the Division.
Numbers have been rounded to nearest whole number.
[A] In fiscal year 2005, the Division granted voluntary early
retirement authority along with a voluntary separation incentive
payment of $25,000.
[End of table]
[End of section]
Appendix V: Special Litigation Section:
Statutes Enforced by the Special Litigation Section from Fiscal Years
2001 through 2007:
The Special Litigation Section was responsible for the enforcement of
federal civil rights statutes in four major areas--institutional
conditions, the conduct of law enforcement agencies, access to
reproductive health facilities and places of worship, and the exercise
of religious freedom of institutionalized persons. Specifically, the
Section enforced provisions in the following statutes:
Civil Rights of Institutionalized Persons Act:
The Civil Rights of Institutionalized Persons Act (CRIPA)[Footnote 226]
provides the Attorney General with the authority to bring lawsuits
where there is a pattern or practice of egregious and flagrant
conditions that deprive institutionalized persons of their federal or
constitutional rights. These institutions include facilities for
individuals who are mentally ill and developmentally disabled, nursing
homes, juvenile correctional facilities, and adult jails or
prisons,[Footnote 227] which are owned or operated by, or on behalf of,
state and local governments. Before commencement of a suit under CRIPA,
the Attorney General is required to take several steps. Among other
things, at least 7 days before an investigation begins, the Attorney
General is to notify, in writing, the appropriate state officials of
the intention to commence an investigation and, during that time, the
Attorney General is required to make efforts to consult with the
jurisdiction about assistance from the United States to correct the
conditions and encourage the appropriate officials to take corrective
actions. Forty-nine days before filing any complaint, the Attorney
General is to notify the appropriate state or local government of the
alleged unlawful conditions, and minimum necessary remedial measures.
Lastly, the Attorney General must personally sign the complaint. The
Attorney General has the authority to obtain equitable relief in a
lawsuit, which is carried out through the Special Litigation Section.
Violent Crime Control and Law Enforcement Act of 1994:
The Violent Crime Control and Law Enforcement Act of 1994 (14141)
[Footnote 228] authorizes the Attorney General to bring suit for
equitable and declaratory relief where there has been a pattern or
practice of conduct by law enforcement or officials responsible for the
administration of juvenile justice or the incarceration of juveniles to
deprive persons of their rights under the Constitution or federal law.
As such, the Special Litigation Section has the authority to obtain
identical relief under CRIPA and this act with respect to incarcerated
juveniles. Actions under this statute regarding conduct by law
enforcement can involve, among other issues, systemic problems such as
excessive force, false arrest, and discriminatory harassment, stops,
searches and arrests.
Title III of the Civil Rights Act of 1964:
The Special Litigation Section is responsible for enforcing Title III
of the Civil Rights Act of 1964,[Footnote 229] which prohibits
discrimination in public facilities on the basis of race, color,
religion, or national origin.
Omnibus Crime Control and Safe Streets Act of 1968:
The Omnibus Crime Control and Safe Streets Act of 1968[Footnote 230]
authorizes the Attorney General to bring suit to remedy a pattern or
practice of discrimination based on race, color, religion, national
origin, or gender by law enforcement agencies receiving federal
financial assistance. Relief may include, among other things, the
repayment of federal funds.
Freedom of Access to Clinic Entrances Act of 1994:
The Freedom of Access to Clinic Entrances Act of 1994 (FACE)[Footnote
231] prohibits the use or threat of force and physical obstruction that
injures, intimidates, or interferes with a person seeking to obtain or
provide reproductive health services and to exercise the First
Amendment right of religious freedom at a place of religious worship.
The Act also prohibits intentional damage or destruction of a facility
providing reproductive health services or a place of religious worship.
The Attorney General is authorized to seek various forms of civil
relief against violators of FACE, as may persons who are injured by the
unlawful activities.
The Religious Land Use and Institutionalized Persons Act of 2000:
The Special Litigation Section is involved in enforcing section 3 of
the Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA),[Footnote 232] which protects the rights of free exercise of
religion for institutionalized persons. Section 3 prohibits a state or
local government from imposing a substantial burden on the religious
exercise of an institutionalized person, unless the government can
demonstrate that the imposition furthers a compelling interest and is
the least restrictive means available to further that interest. DOJ is
authorized to bring an action for injunctive or declaratory relief;
private individuals may also seek remedies for violations of RLUIPA.
Although RLUIPA was enacted in 2000, the Section was involved in
enforcing similar provisions of the Religious Freedom Restoration Act
of 1993[Footnote 233] before it was declared unconstitutional by the
Supreme Court.
Reasons the Special Litigation Section Closed Matters:
We were unable to readily determine the reasons why the Section closed
over 700 matters[Footnote 234] using ICM data because this information
is not maintained in the system. However, interviews with agency
officials and our review of 51 randomly selected Special Litigation
Section typically closed matter files provided information on the
reasons why the Special Litigation Section closed matters. According to
Section officials, the primary reasons matters were closed were lack of
sufficient evidence to show a pattern or practice of unlawful
conditions, no current evidence of problems, or corrective action had
been taken by the relevant jurisdiction. Our review of 51 Special
Litigation Section closed matter files identified examples of each of
these reasons. The most frequently recorded summary reason to close a
matter as identified in the file documentation was "no further action
warranted" (12). Accompanying documents usually provided further
explanation of why no further action was warranted and this information
reflected the specific reasons to close identified by Section
officials.[Footnote 235]
Special Litigation Section officials further explained the Section's
use of these reasons to close matters within the context of the
statutory prerequisites that it was required to meet to open an
investigation. They noted that evidence might be insufficient to show a
pattern or practice of discrimination or misconduct because it was
difficult to gather evidence of systemic problems. Furthermore,
officials said that if the Section received dated information but had
no evidence of recent problems (e.g., if in 2009 an investigator were
to receive evidence of three suicides that occurred in a jail in 2005),
the Section would consider this information to be an indication that
there possibly had been a problem. Accordingly, they would close the
matter, but keep monitoring the situation (e.g., by using online news
alerts) to identify evidence of current allegations of problems. In
addition, with regard to preliminary investigations, officials said
that the Special Litigation Section would close the investigation if
officials believed that a jurisdiction recognized a problem existed and
fixed it (e.g., the jurisdiction fired the sheriff, provided funds to a
nursing home, or implemented an initiative to stop certain behaviors
within an agency). In such instances, the Section would close the file
and monitor the jurisdiction to ensure that reform was effective.
Special Litigation Section's Work on Cases Filed Prior to Fiscal Year
2001:
From fiscal years 2001 through 2007, the Special Litigation Section
continued to participate in 66 cases in which the complaint or brief
had been filed prior to 2001 and remained open for at least part of the
7-year period.[Footnote 236] As shown in table 60, these cases involved
three of the Section's areas of responsibility--institutional
conditions, the conduct of law enforcement agencies, and access to
reproductive health facilities and places of worship. The largest
number of cases (47 of 66) involved institutional conditions; 14 cases
involved access to reproductive health facilities and 4 involved the
conduct of law enforcement agencies.
Table 60: Special Litigation Section Cases Filed Prior to Fiscal Year
2001 by Facility Type:
Facility type: Institutional conditions: Developmental disabilities
facility;
Total: 14.
Facility type: Institutional conditions: Mental health facility;
Total: 6.
Facility type: Institutional conditions: Nursing home;
Total: 2.
Facility type: Institutional conditions: Jail;
Total: 13.
Facility type: Institutional conditions: Prison;
Total: 7.
Facility type: Institutional conditions: Juvenile correctional
facility;
Total: 4.
Facility type: Institutional conditions: Juvenile justice system[A];
Total: 1.
Facility type: Institutional conditions:
Total; Total: 47.
Facility type: Access to reproductive health facilities and places of
religious worship: Clinic;
Total: 14.
Facility type: Conduct of law enforcement agency[B]: Law enforcement
agency;
Total: 4.
Facility type: Unable to determine;
Total: 1.
Facility type: Grand Total;
Total: 66.
Sources: GAO analysis of ICM data and Special Litigation Section
documentation.
[A] This case involved the entire juvenile correctional system of a
state.
[B] The area of responsibility conduct of law enforcement agencies
includes one facility type in ICM--law enforcement agency. Therefore,
the numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[End of table]
The Section participated as plaintiff in 56 (of 66) cases, as plaintiff
intervenor in 6 cases, and as amicus curiae in 4 cases. As shown in
table 61, the Section filed complaints, as plaintiff, in cases
involving three of its four areas of responsibility and diverse
facility types. Five of the 6 cases in which the Section participated
as plaintiff intervenor fell under institutional conditions--3 involved
prisons and 2 involved facilities for persons with developmental
disabilities--and the sixth case involved a clinic under the Section's
responsibility for access to reproductive health care facilities. The 4
cases in which the Section filed amicus briefs involved institutional
conditions in facilities for persons with developmental disabilities
(2), a mental health facility, and a nursing home.
Table 61: Special Litigation Section Cases Filed Prior to Fiscal Year
2001, by Government Role and Facility Type:
Facility type: Institutional conditions: Developmental disabilities
facility;
Government role: Plaintiff: 10;
Government role: Plaintiff Intervenor: 2;
Government role: Amicus: 2;
Government role: Total: 14.
Facility type: Institutional conditions: Mental health facility;
Government role: Plaintiff: 5;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: 1;
Government role: Total: 6.
Facility type: Institutional conditions: Nursing home;
Government role: Plaintiff: 1;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: 1;
Government role: Total: 2.
Facility type: Institutional conditions: Jail;
Government role: Plaintiff: 13;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: [Empty];
Government role: Total: 13.
Facility type: Institutional conditions: Prison;
Government role: Plaintiff: 4;
Government role: Plaintiff Intervenor: 3;
Government role: Amicus: [Empty];
Government role: Total: 7.
Facility type: Institutional conditions: Juvenile correctional
facility;
Government role: Plaintiff: 5;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: [Empty];
Government role: Total: 5.
Facility type: Institutional conditions: Total;
Government role: Total: 47.
Facility type: Access to reproductive health facilities and places of
religious worship: Clinic;
Government role: Plaintiff: 13;
Government role: Plaintiff Intervenor: 1;
Government role: Amicus: [Empty];
Government role: Total: 14.
Facility type: Conditions of confinement: Law enforcement agency;
Government role: Plaintiff: 4;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: [Empty];
Government role: Total: 4.
Facility type: Unable to determine;
Government role: Plaintiff: 1;
Government role: Plaintiff Intervenor: [Empty];
Government role: Amicus: [Empty];
Government role: Total: 1.
Facility type: Grand Total;
Government role: Plaintiff: 56;
Government role: Plaintiff Intervenor: 6;
Government role: Amicus: 4;
Government role: Total: 66.
Sources: GAO analysis of ICM data and Special Litigation Section
documentation.
[End of table]
All 66 cases were open for some period during our review. According to
the ICM data, as of May 28, 2008, the files for 45 cases were closed;
19 cases were being monitored for compliance; and for 2 cases the
parties agreed to a settlement and the file remained open.
Time Spent on Matters and Cases from Fiscal Years 2001 through 2007:
Aggregate data on time spent by Special Litigation staff on matters and
cases from fiscal years 2001 through 2007 showed that the Section spent
the greatest percentage of time on those matters and cases involving
institutional conditions. However, the proportion of time varied by
facility type within this area of responsibility and in relation to the
time spent enforcing laws related to the conduct of law enforcement
agencies.
Aggregate time data for matters:
According to aggregate time data spent on matters from fiscal years
2001 through 2007, the Section reported spending the greatest
percentage of time on matters involving institutional conditions in all
facility types (62 percent). The remaining percentage of the time was
spent on matters involving the conduct of law enforcement agencies.
Table 62: Percentage of Hours Spent on Matters by Facility Type and
Fiscal Year:
Area of responsibility: Conditions of confinement;
Fiscal year: 2001: 53;
Fiscal year: 2002: 51;
Fiscal year: 2003: 54;
Fiscal year: 2004: 61;
Fiscal year: 2005: 63;
Fiscal year: 2006: 69;
Fiscal year: 2007: 75;
Fiscal year: 2001-2007: 62.
Area of responsibility: Conduct of law enforcement agencies[A];
Fiscal year: 2001: 46;
Fiscal year: 2002: 47;
Fiscal year: 2003: 43;
Fiscal year: 2004: 39;
Fiscal year: 2005: 37;
Fiscal year: 2006: 31;
Fiscal year: 2007: 24;
Fiscal year: 2001-2007: 39.
Area of responsibility: Total;
Fiscal year: 2001: 99;
Fiscal year: 2002: 98;
Fiscal year: 2003: 97;
Fiscal year: 2004: 100;
Fiscal year: 2005: 100;
Fiscal year: 2006: 100;
Fiscal year: 2007: 99;
Fiscal year: 2001-2007: 101.
Source: GAO analysis of ICM time reporting data.
Notes: Deleted facility group home (CRIPA), jail/prison (RLUIPA
matters), and clinic (FACE) where were hours less than .05 percent and
other, which involved CRIPA, but facility type was not identified and
combination of hours was less than 1 percent in any fiscal year.
Percentages rounded to nearest whole number.
Hours that provided the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section. Percentages do not sum to 100 due to rounding.
[A] The area of responsibility--conduct of law enforcement agencies
includes one facility type in ICM--law enforcement agency. Therefore,
the numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[End of table]
The time spent on matters involving institutional conditions (62
percent) varied by category and facility type by fiscal year. Among
these matters, the Section reported spending the greatest percentage of
time on matters involving adult corrections (26 percent) during the 7-
year period, as shown in table 63. Time spent on matters involving
jails was about 27 percent of total time reported for fiscal year 2007,
the highest percentage of time for any facility type that year. Taken
together, the time reported spent on matters involving facilities for
persons with developmental disabilities, mental health facilities, and
nursing homes totaled 23 percent for the 7-year period, but fluctuated
from year to year. Section officials explained that time spent on these
matters involved investigating a particular facility, drafting findings
letters, and engaging in settlement negotiations during the
investigatory stage, as the majority of these matters were filed as
cases. The time reported spent on conditions in juvenile correctional
facilities peaked at 14 percent in fiscal years 2001 and 2004.
According to Section officials, time spent on juvenile matters usually
occurred during the investigatory stage, but relatively little time was
spent on juvenile justice matters. Rather, a significant amount of time
was spent litigating or monitoring compliance on filed cases,
information that would be recorded in the case time data. Generally,
Section officials stated fluctuations in the percentage of time spent
on these matters across fiscal years may reflect the ebb and flow of
complaints received in a year, the nature of the allegations, and the
type of investigations recommended and approved in any given year.
Table 63: Percentage of Hours the Special Litigation Section Spent on
Institutional Conditions Matters, by Facility Type and Fiscal Year:
Category: Adult corrections;
Facility type: Jail;
Fiscal year: 2001: 17;
Fiscal year: 2002: 11;
Fiscal year: 2003: 13;
Fiscal year: 2004: 15;
Fiscal year: 2005: 18;
Fiscal year: 2006: 24;
Fiscal year: 2007: 27;
Fiscal year: 2001-2007: 17.
Category: Adult corrections;
Facility type: Prison;
Fiscal year: 2001: 5;
Fiscal year: 2002: 4;
Fiscal year: 2003: 9;
Fiscal year: 2004: 10;
Fiscal year: 2005: 10;
Fiscal year: 2006: 12;
Fiscal year: 2007: 10;
Fiscal year: 2001-2007: 9.
Category: Adult corrections;
Facility type: Total;
Fiscal year: 2001: 22;
Fiscal year: 2002: 15;
Fiscal year: 2003: 22;
Fiscal year: 2004: 25;
Fiscal year: 2005: 28;
Fiscal year: 2006: 36;
Fiscal year: 2007: 37;
Fiscal year: 2001-2007: 26.
Category: Health and social welfare;
Facility type: Developmental disabilities facility;
Fiscal year: 2001: 3;
Fiscal year: 2002: 7;
Fiscal year: 2003: 3;
Fiscal year: 2004: 4;
Fiscal year: 2005: 10;
Fiscal year: 2006: 10;
Fiscal year: 2007: 13;
Fiscal year: 2001-2007: 7.
Category: Health and social welfare;
Facility type: Mental health facility;
Fiscal year: 2001: 2;
Fiscal year: 2002: 10;
Fiscal year: 2003: 3;
Fiscal year: 2004: 2;
Fiscal year: 2005: 2;
Fiscal year: 2006: 5;
Fiscal year: 2007: 7;
Fiscal year: 2001-2007: 5.
Category: Health and social welfare;
Facility type: Nursing home;
Fiscal year: 2001: 11;
Fiscal year: 2002: 13;
Fiscal year: 2003: 13;
Fiscal year: 2004: 12;
Fiscal year: 2005: 12;
Fiscal year: 2006: 7;
Fiscal year: 2007: 6;
Fiscal year: 2001-2007: 11.
Category: Health and social welfare;
Facility type: Total;
Fiscal year: 2001: 16;
Fiscal year: 2002: 30;
Fiscal year: 2003: 19;
Fiscal year: 2004: 18;
Fiscal year: 2005: 24;
Fiscal year: 2006: 22;
Fiscal year: 2007: 26;
Fiscal year: 2001-2007: 23.
Category: Juvenile corrections;
Facility type: Juvenile correctional facility;
Fiscal year: 2001: 14;
Fiscal year: 2002: 6;
Fiscal year: 2003: 8;
Fiscal year: 2004: 14;
Fiscal year: 2005: 11;
Fiscal year: 2006: 11;
Fiscal year: 2007: 12;
Fiscal year: 2001-2007: 11.
Category: Juvenile corrections;
Facility type: Juvenile court;
Fiscal year: 2001: 1;
Fiscal year: 2002: 0;
Fiscal year: 2003: 5;
Fiscal year: 2004: 4;
Fiscal year: 2005: 0;
Fiscal year: 2006: 0;
Fiscal year: 2007: 0;
Fiscal year: 2001-2007: 2.
Category: Juvenile corrections;
Facility type: Total;
Fiscal year: 2001: 15;
Fiscal year: 2002: 6;
Fiscal year: 2003: 13;
Fiscal year: 2004: 18;
Fiscal year: 2005: 11;
Fiscal year: 2006: 11;
Fiscal year: 2007: 12;
Fiscal year: 2001-2007: 13.
Category: Total;
Fiscal year: 2001: 53;
Fiscal year: 2002: 51;
Fiscal year: 2003: 54;
Fiscal year: 2004: 61;
Fiscal year: 2005: 63;
Fiscal year: 2006: 69;
Fiscal year: 2007: 75;
Fiscal year: 2001-2007: 62.
Source: GAO analysis of ICM data.
Notes: Deleted facility group home (CRIPA), jail/prison (RLUIPA
matters), and clinic (FACE) where hours were less than .05 percent and
other, which involved CRIPA, but facility type was not identified and
combination of hours was less than 1 percent in any fiscal year.
Percentages do not sum to 100 due to rounding. Percentages rounded to
nearest whole number.
Hours that provided the basis for the percentages include time of all
section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
[End of table]
During the 7-year period, 39 percent of the total reported time spent
on matters involved law enforcement agencies, the highest for any
single facility type for those years (see table 62). Section officials
said that matters involving law enforcement agencies were highly
technical, resource-intensive, generally more time-consuming as
compared to the Section's other areas of responsibility, and required a
thorough review by the Division at all stages from pre-investigation
through resolution. They added that such matters involved significant
and time-consuming reviews of documents and databases and required that
Section staff work closely with expert consultants, who review numerous
documents and reconstruct specific incidents to arrive at conclusions
about the appropriateness of the level of force used in any given
incidents. Additionally, Section staff might conduct on-site interviews
and "ride-along" with police officers. Officials stated that in these
matters, unlike its work involving institutional conditions, the
Section is required to present objective evidence to demonstrate a
factual basis for each issue in technical assistance letters and
settlement agreements. The time data show that the percentage of time
spent each fiscal year on these matters declined during the period.
According to Section officials, this change in the percentage of time
spent might have been due to fluctuations in the number of complaints
received; the number of institutional conditions matters received that
were egregious, resource intensive, and required more of the staff's
attention; or the additional review of police misconduct
recommendations by the Division's Front Office.
Aggregate time data for cases:
As shown in table 64, of the total reported time spent on cases for the
7-year period, the Section spent the greatest percentage of time (81
percent) on cases involving institutional conditions. In addition, 17
percent of the time spent on cases was spent on cases involving the
conduct of law enforcement agencies. However, the proportion of time
spent on each of these two areas of responsibility varied during the
time period.
Table 64: Percentage of Hours the Special Litigation Section Spent on
Cases, by Area of Responsibility and Fiscal Year:
Area of responsibility: Institutional conditions;
Fiscal year: 2001: 58;
Fiscal year: 2002: 72;
Fiscal year: 2003: 83;
Fiscal year: 2004: 84;
Fiscal year: 2005: 90;
Fiscal year: 2006: 88;
Fiscal year: 2007: 92;
Fiscal year: 2001-2007: 81.
Area of responsibility: Conduct of law enforcement agencies;
Fiscal year: 2001: 40;
Fiscal year: 2002: 26;
Fiscal year: 2003: 15;
Fiscal year: 2004: 15;
Fiscal year: 2005: 10;
Fiscal year: 2006: 9;
Fiscal year: 2007: 7;
Fiscal year: 2001-2007: 17.
Area of responsibility: Access to reproductive health;
Fiscal year: 2001: 0;
Fiscal year: 2002: 1;
Fiscal year: 2003: 2;
Fiscal year: 2004: 0;
Fiscal year: 2005: 0;
Fiscal year: 2006: 0;
Fiscal year: 2007: 1;
Fiscal year: 2001-2007: 1.
Area of responsibility: Immigration appeals;
Fiscal year: 2001: 0;
Fiscal year: 2002: 0;
Fiscal year: 2003: 0;
Fiscal year: 2004: 0;
Fiscal year: 2005: 0;
Fiscal year: 2006: 3;
Fiscal year: 2007: 1;
Fiscal year: 2001-2007: 1.
Area of responsibility: Total;
Fiscal year: 2001: 98;
Fiscal year: 2002: 99;
Fiscal year: 2003: 100;
Fiscal year: 2004: 99;
Fiscal year: 2005: 100;
Fiscal year: 2006: 100;
Fiscal year: 2007: 101;
Fiscal year: 2001-2007: 100.
Source: GAO analysis of ICM data.
Notes: Hours that provide the basis for the percentages include time of
all section staff any, including section chief, deputies, special
counsel, attorneys, support staff, legal assistants, law clerks, and
any staff unique to a section.
Total percentages may be less than 100 percent due to exclusion of
facility type mental retardation and mental health where hours were
less than .05 percent. Percentages do not sum to 100 due to rounding.
[End of table]
As shown in table 65, the time spent on cases involving institutional
conditions (81 percent) varied by category and facility type by fiscal
year. Over 40 percent of the time was spent on cases involving health
and social welfare facilities. The greatest percentage of that time (27
of 41 percent) was spent on cases involving facilities for the
developmentally disabled. During the 7-year period, the percentage of
time spent each year on cases involving juvenile correctional
facilities reached a high of 44 percent in fiscal year 2007. Section
officials explained that while the Division's emphasis on juvenile
justice may have been a factor, a more significant factor contributing
to this increase was the Section's involvement in contested litigation
related to juvenile justice practices in two states and in regular
contempt proceedings in another case.
Table 65: Percentage of Hours the Special Litigation Section Spent on
Institutional Conditions Cases by Facility Type and Fiscal Year:
Category: Health and social welfare;
Facility type: Developmental disability facility;
Fiscal year: 2001: 27;
Fiscal year: 2002: 32;
Fiscal year: 2003: 38;
Fiscal year: 2004: 33;
Fiscal year: 2005: 20;
Fiscal year: 2006: 23;
Fiscal year: 2007: 18;
Fiscal year: 2001-2007: 27.
Category: Health and social welfare;
Facility type: Mental health facility;
Fiscal year: 2001: 10;
Fiscal year: 2002: 12;
Fiscal year: 2003: 13;
Fiscal year: 2004: 11;
Fiscal year: 2005: 11;
Fiscal year: 2006: 12;
Fiscal year: 2007: 9;
Fiscal year: 2001-2007: 11.
Category: Health and social welfare;
Facility type: Nursing home;
Fiscal year: 2001: 1;
Fiscal year: 2002: 3;
Fiscal year: 2003: 2;
Fiscal year: 2004: 2;
Fiscal year: 2005: 3;
Fiscal year: 2006: 4;
Fiscal year: 2007: 8;
Fiscal year: 2001-2007: 3.
Category: Health and social welfare;
Facility type: Total;
Fiscal year: 2001: 38;
Fiscal year: 2002: 47;
Fiscal year: 2003: 53;
Fiscal year: 2004: 46;
Fiscal year: 2005: 34;
Fiscal year: 2006: 39;
Fiscal year: 2007: 35;
Fiscal year: 2001-2007: 41.
Category: Juvenile corrections;
Facility type: Juvenile correctional facility;
Fiscal year: 2001: 9;
Fiscal year: 2002: 17;
Fiscal year: 2003: 18;
Fiscal year: 2004: 26;
Fiscal year: 2005: 37;
Fiscal year: 2006: 27;
Fiscal year: 2007: 44;
Fiscal year: 2001-2007: 26.
Category: Adult corrections;
Facility type: Prison;
Fiscal year: 2001: 4;
Fiscal year: 2002: 2;
Fiscal year: 2003: 4;
Fiscal year: 2004: 5;
Fiscal year: 2005: 5;
Fiscal year: 2006: 10;
Fiscal year: 2007: 4;
Fiscal year: 2001-2007: 5.
Category: Adult corrections;
Facility type: Jail;
Fiscal year: 2001: 7;
Fiscal year: 2002: 6;
Fiscal year: 2003: 8;
Fiscal year: 2004: 7;
Fiscal year: 2005: 14;
Fiscal year: 2006: 12;
Fiscal year: 2007: 9;
Fiscal year: 2001-2007: 9.
Category: Adult corrections;
Facility type: Total;
Fiscal year: 2001: 11;
Fiscal year: 2002: 8;
Fiscal year: 2003: 12;
Fiscal year: 2004: 12;
Fiscal year: 2005: 19;
Fiscal year: 2006: 22;
Fiscal year: 2007: 13;
Fiscal year: 2001-2007: 14.
Category: Grand Total;
Fiscal year: 2001: 58;
Fiscal year: 2002: 72;
Fiscal year: 2003: 83;
Fiscal year: 2004: 84;
Fiscal year: 2005: 90;
Fiscal year: 2006: 88;
Fiscal year: 2007: 92;
Fiscal year: 2001-2007: 81.
Source: GAO analysis of ICM data.
Notes: Hours that provide the basis for the percentages include time of
all section staff, including section chief, deputies, special counsel,
attorneys, support staff, legal assistants, law clerks, and any staff
unique to a section.
Total percentages may be less than 100 percent due to exclusion of
facility type mental retardation and mental health where hours were
less than .05 percent. Percentages do not sum to 100 due to rounding.
[End of table]
The percentage of time spent on cases involving the conduct of a law
enforcement agency was highest in fiscal year 2001 (40 percent)
followed by fiscal year 2002 (26 percent) (See table 64). According to
Section officials, during these two years the Section was engaged in
highly contested litigation that involved racial profiling claims and
required intensive document analysis. Since this was the first
contested police department litigation under the Section's police
misconduct authority, officials said that each issue that arose
required significant attorney time.
Special Litigation Section Resources Available from Fiscal Years 2001
through 2007:
According to data provided by the Division, the number of permanent
positions available to the Special Litigation Section from fiscal years
2001 through 2007 increased from fiscal years 2001 through 2002 and
then remained relatively constant. However, Section officials stated
that while the official budget data indicated minor fluctuations in
staff resources, the Section had a number of vacancies for a number of
years during the 7-year period.
Table 66: Special Litigation Section: Historical Track of Available
Resources:
Resources: Permanent positions;
Fiscal year: 2001: 63;
Fiscal year: 2002: 73;
Fiscal year: 2003: 73;
Fiscal year: 2004: 73;
Fiscal year: 2005: 72;
Fiscal year: 2006: 72;
Fiscal year: 2007: 72.
Resources: Salaries and expenses;
Fiscal year: 2001: 7,500;
Fiscal year: 2002: 8,920;
Fiscal year: 2003: 9,799;
Fiscal year: 2004: 10,048;
Fiscal year: 2005: 10,233;
Fiscal year: 2006: 12,096;
Fiscal year: 2007: 12,656.
Source: Civil Rights Division, DOJ.
Note: Salaries and Expenses, dollars in thousands.
[End of table]
As shown in table 67, the number of Section staff on board at the end
of each fiscal year increased from fiscal years 2001 through 2004, and
then declined in fiscal years 2005 and 2006. Section officials
confirmed that fewer staff were available in the later years of the 7-
year period, as the number of onboard Special Litigation staff--
attorneys, professional, and clerical--decreased in fiscal years 2005,
2006, and 2007, from higher staff numbers in fiscal years 2003 and
2004.
Table 67: Number of On-board Staff for Special Litigation Section by
Position and Fiscal Year:
Position: Attorneys;
Fiscal year: 2001: 33;
Fiscal year: 2002: 47;
Fiscal year: 2003: 47;
Fiscal year: 2004: 48;
Fiscal year: 2005: 41;
Fiscal year: 2006: 39;
Fiscal year: 2007: 39.
Position: Professionals;
Fiscal year: 2001: 12;
Fiscal year: 2002: 13;
Fiscal year: 2003: 14;
Fiscal year: 2004: 16;
Fiscal year: 2005: 12;
Fiscal year: 2006: 10;
Fiscal year: 2007: 11.
Position: Clerical;
Fiscal year: 2001: 7;
Fiscal year: 2002: 9;
Fiscal year: 2003: 9;
Fiscal year: 2004: 9;
Fiscal year: 2005: 8;
Fiscal year: 2006: 8;
Fiscal year: 2007: 10.
Position: Total;
Fiscal year: 2001: 52;
Fiscal year: 2002: 69;
Fiscal year: 2003: 70;
Fiscal year: 2004: 73;
Fiscal year: 2005: 61;
Fiscal year: 2006: 57;
Fiscal year: 2007: 60.
Source: Civil Division, DOJ.
Note: Staff on-board reflects official numbers as of the last day of
each fiscal year.
[End of table]
In addition, the attrition rates for Section staff varied over the 7-
year period. The rate for Section attorneys was higher in fiscal years
2001, 2005, and 2006. The Division noted that in fiscal year 2005, it
was granted voluntary early retirement and voluntary separation
authority, which contributed to the rate of attrition that year.
Table 68: Percentage of Attrition for Special Litigation Section by
Position and Fiscal Year:
Position: Attorney;
Fiscal year: 2001: 26;
Fiscal year: 2002: 3;
Fiscal year: 2003: 17;
Fiscal year: 2004: 17;
Fiscal year: 2005b: 31;
Fiscal year: 2006: 24;
Fiscal year: 2007: 18.
Position: Professional;
Fiscal year: 2001: 0;
Fiscal year: 2002: 8;
Fiscal year: 2003: 8;
Fiscal year: 2004: 7;
Fiscal year: 2005b: 31;
Fiscal year: 2006: 25;
Fiscal year: 2007: 10.
Position: Clerical;
Fiscal year: 2001: 0;
Fiscal year: 2002: 14;
Fiscal year: 2003: 44;
Fiscal year: 2004: 0;
Fiscal year: 2005b: 11;
Fiscal year: 2006: 13;
Fiscal year: 2007: 38.
Source: Civil Division, DOJ.
Notes: The Section's attrition rates include employees who had
separated from the Division (i.e., resignation, transfer to another
federal agency, retirement, etc.) and those reassigned to another
section within the Division. Percentages were rounded to the nearest
whole number.
In fiscal year 2005, the Division granted voluntary early retirement
authority along with a voluntary separation incentive payment of
$25,000.
[End of table]
A July 2, 2008, joint report by the DOJ Office of the Inspector General
and Office of Professional Responsibility addressed staffing issues
confronted by the Special Litigation Section, which occurred within the
period of our review. The report describes the results of an
investigation into allegations that political or ideological
affiliations were considered in hiring, transferring, and assigning
cases to career attorneys in the Division, including the Special
Litigation Section. Specifically, it cites issues raised by the Section
Chief that attorneys were unqualified to work in the Section and the
Division management changed the attorney assigned to a case. According
to Section officials, these decisions affected the morale of the
Section and managers had to take on the work of attorneys.
Subject Values Used by the Special Litigation Section:
The Special Litigation uses the ICM subject field to describe the types
of issues and allegations under investigation in matters initiated and
cases filed. Table 69 provides a list of the subject values that the
Section used and descriptions of these values. According to Special
Litigation Section officials, the information presented describes what
the code was supposed to mean when it was originally devised by the ICM
team.
Table 69: Special Litigation Section Subject Values for Matters and
Cases Recorded in ICM:
Subject: Abuse/neglect;
Description of subject: In the Section's CRIPA health care cases and
CRIPA/14141 juvenile justice facility cases, this refers to staff's
physical abuse of residents or staff's failure to properly care for or
supervise a resident.
Subject: Access to courts;
Description of subject: In the Section's CRIPA/14141 juvenile justice
facility cases and CRIPA jail and prison cases, this refers to the
failure of a facility to provide juveniles, detainees, or prisoners
with an adequate ability to exercise their legal rights with respect to
the court system.
Subject: Accessibility (ADA);
Description of subject: In the Section's CRIPA cases, except for
prisons and jails where CRIPA does not permit the Section to enforce
federal statutes, this refers to the failure of a facility to provide
adequate accommodations so that residents with disabilities can access
facilities or programs.
Subject: Active treatment;
Description of subject: In the Section's CRIPA cases involving
facilities for persons with developmental disabilities, this refers to
the failure of a facility to provide a program of specialized and
generic training, treatment, health services, and other services
directed toward the acquisition of skills necessary for the residents
to function with as much self-determination and independence as
possible, and to prevent regression and loss of function.
Subject: Coercive sexual misconduct;
Description of subject: In the Section's CRIPA cases and juvenile
facility cases under both CRIPA and 14141, this refers to sexual acts
by staff or peers perpetrated on residents, detainees, or inmates
without consent.
Subject: Community placement;
Description of subject: In the Section's CRIPA health care cases, this
refers to enforcement of the integration mandate of the ADA that
residents be served in the most integrated setting appropriate to their
needs and which they do not oppose; most often, if a resident is not
being served in the most integrated setting, a transition from an
institution into the community is the remedy.
Subject: Correctional staffing;
Description of subject: In the Section's CRIPA cases involving jails
and prisons, this refers to the direct staffing on the cellblocks;
the issue usually comes up that detainees or inmates are not adequately
protected from harm due to insufficient direct staffing and
supervision.
Subject: Dental care;
Description of subject: In all of the Section's CRIPA cases and
CRIPA/14141 juvenile justice facility cases, this refers to a
facility's inadequate provision of dental care services to the
residents of the facility.
Subject: Diet/nutrition;
Description of subject: In the Section's CRIPA cases, this refers to a
facility's failure to provide an adequate diet or nutrition to
residents who need a specialized diet due to a health condition such as
diabetes or high blood pressure, or, where inmates are only being
served one meal a day. In the Section's RLUIPA cases, this refers to a
facility's failure to provide a diet required by a person's religion,
such as kosher diets or vegetarian diets.
Subject: Environment;
Description of subject: In the Section's CRIPA cases, usually involving
jails and prisons, it often finds egregious environmental health and
safety issues, such the presence of vermin or human waste, or an
environment with insufficient ventilation, which can cause medical
issues.
Subject: Excessive force;
Description of subject: In the Section's CRIPA cases, the Section
encounters this issue, which involves the use of more force than is
necessary under the circumstances. The Section sees this issue in many
of its CRIPA investigations, particularly involving jails, prisons, and
juvenile justice facilities. The Section does not use this issue code
when it encounters this issue in its Police Misconduct work, where it
uses a separate issue, below.
Subject: Face-obstructive activities;
Description of subject: In the Section's FACE cases, this issue
involves efforts by a citizen to block a woman's right to access
reproductive services.
Subject: Face-property damage;
Description of subject: In the Section's FACE cases, this issue
involves any damage to a clinic by a citizen who is trying to impede a
woman's right to access reproductive services.
Subject: Face-violence/threats;
Description of subject: In the Section's FACE cases, this issue
involves the use of physical force or verbal threats made by a citizen
to a woman seeking reproductive services at a clinic.
Subject: False Claims Act;
Description of subject: In the Section's CRIPA health care cases, this
legal action involves a jurisdiction billing the Department of Health
and Human Services for services it did not, in fact, render to an
institutionalized person, or to services that were billed that deviated
so substantially from accepted professional care such that the services
could be characterized as a failure of care. The Special Litigation
Section does not pursue False Claims Act cases. Instead, when the
Section suspects that there may be False Claims Act issues in a matter,
the Section refers it to the Civil Division, the component which
enforces this statute.
Subject: Feeding practices;
Description of subject: In the Section's health care cases involving
nursing homes and facilities for persons with developmental
disabilities, the Section often encounter feeding practices that
endanger institutionalized persons, such as improperly feeding someone
who cannot feed him or herself, such that food is aspirated into a
lung, causing aspiration pneumonia that after repeated episodes often
leads to death.
Subject: Fire safety;
Description of subject: In the Section's CRIPA cases, the Section often
finds dangerous fire safety issues, such as the lack of sprinklers,
expired fire extinguishers, or an insufficient avenue of egress in the
event of a fire.
Subject: First Amendment;
Description of subject: This is the primary issue code in all of the
Section's RLUIPA cases, which involve the free exercise of religion
issues. The Section's also use this, sometimes, in its CRIPA cases. In
those cases, there are times when a jurisdiction refuses the Section
access to speak with the residents of a facility during its
investigation. In those circumstances, the Section takes the position
that the jurisdiction is violating the residents' First Amendment right
to access their government to make a complaint.
Subject: Grievance;
Description of subject: In the Section's CRIPA cases involving jails,
prisons, and juvenile justice facilities, residents have a right to a
system to make their complaints known.
Subject: Inmate violence;
Description of subject: In the Section's CRIPA cases involving jails
and prisons, this issue arises when there is a systemic level of
violence as a result of inmate-on-inmate fights.
Subject: Isolation/seclusion;
Description of subject: In the Section's CRIPA work, the Section often
finds that residents are improperly placed in a locked room by
themselves, often for a very long period of time, without access to
adequate services.
Subject: Juvenile administration;
Description of subject: Under 14141, the Section's can investigate the
administration of juvenile justice in a jurisdiction where the Section
has reason to believe that the is infringing on juveniles' civil
rights.
Subject: Juvenile facility;
Description of subject: In both the Section's CRIPA and 14141 work, the
Section investigates juvenile detention centers, where youth are held
before they are adjudicated, and juvenile training centers, where some
youth are sent following adjudication.
Subject: Law library;
Description of subject: In the Section's CRIPA work, detainees in jails
and inmates in prisons are legally entitled to access to certain legal
materials that may assist them in their efforts to challenge their
detention or for other related legal matters.
Subject: Mail tampering;
Description of subject: In the Section's CRIPA work, particularly in
jails and prisons, residents have legal rights to use the mail;
institutions have rights to monitor the mail for security risks. The
Section has received allegations, in certain matters, that inmate mail
is tampered with so that outgoing information is impermissibly not
allowed to leave the facility or that incoming mail was impermissibly
searched or confiscated.
Subject: Medicaid regs;
Description of subject: In the Section's CRIPA health care work, the
Section often cites as the professional standards regulations issued by
Department of Health and Human Services, Centers for Medicare and
Medicaid Services regarding the requirements that a facility must meet
in order to maintain federal funding.
Subject: Medical care;
Description of subject: In all of the Section's CRIPA work, the Section
typically evaluates the medical care provided to the residents of a
facility to assess whether it is legally sufficient.
Subject: Mental health services;
Description of subject: In all of the Section's CRIPA work, the Section
typically evaluates the mental health care services provided to the
residents of a facility to assess whether it is legally sufficient.
Subject: Most integrated setting (ADA);
Description of subject: In the Section's CRIPA health care work, the
Section typically assesses whether residents of a facility are being
served in the most integrated setting appropriate to individual needs,
as required by the Americans with Disabilities Act (ADA) and confirmed
by the Supreme Court in Olmstead v. L. C., 527 U.S. 581 (1999).
Subject: Numbers of professional staff;
Description of subject: In all of the Section's CRIPA work, the Section
evaluates whether there are enough professional staff to provide the
services that are legally required in the particular facility.
Subject: Numbers of trained direct care staff;
Description of subject: In all of the Section's CRIPA work, the Section
evaluates whether there are enough trained direct care staff to
adequately and safely supervise the residents of the particular
facility.
Subject: Nursing care;
Description of subject: In all of the Section's CRIPA cases, the
Section typically evaluates, as part of the medical care, whether the
nursing care at the facility is legally sufficient.
Subject: Occupational therapy;
Description of subject: In the Section's CRIPA health care work,
particularly with respect to facilities serving persons with
developmental disabilities, the Section evaluates whether a facility is
providing adequate services to increase an individual's ability to
engage in supported employment. Most often, the Section assesses
communication services under this issue.
Subject: Overcrowding;
Description of subject: In the Section's CRIPA work, the Section often
encounters facilities that house more residents than were intended to
be housed in the facility.
Subject: Physical therapy;
Description of subject: In the Section's CRIPA health care work,
particularly with respect to facilities for persons with developmental
disabilities, the Section evaluates whether a facility is providing
adequate physical therapy services to individuals who need them as a
result of a physical disability.
Subject: Police-canine;
Description of subject: In the Section's Police Misconduct work, the
Sections evaluates whether a police force is using dogs in a legally
permissible manner.
Subject: Police-city;
Description of subject: In the Section's Police Misconduct work, the
Section uses this issue code when it is investigating a city police
force.
Subject: Police-Civilian Complaint System and Discipline;
Description of subject: In the Section's Police Misconduct work, the
Section uses this issue code when it is evaluating whether the civilian
complaint system is legally sufficient;
it also uses this issue code when it is evaluating whether an officer
is appropriately disciplined as a result of a finding that a citizen's
rights were violated.
Subject: Police-coercive sexual conduct;
Description of subject: In the Section's Police Misconduct work, the
Section uses this issue code when it is investigating whether officers
are impermissibly coercing sexual conduct from the citizens they are
interacting with.
Subject: Police-county;
Description of subject: In the Section's Police Misconduct work, the
Section uses this issue code when it is investigating a county police
force.
Subject: Police-discriminatory highway stops;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating whether officers are
impermissibly stopping cars on the highways due to discriminatory
factors, such as race.
Subject: Police-discriminatory pedestrian stops;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating whether officers are
impermissibly stopping pedestrians due to discriminatory factors, such
as race.
Subject: Police-discriminatory urban traffic stops;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating whether officers are
impermissibly stopping cars on city streets due to discriminatory
factors, such as race.
Subject: Police-excessive force;
Description of subject: In the Section's Police Misconduct work, it
uses this issue code when it is investigating whether officers use more
force than is necessary to subdue a citizen.
Subject: Police-false arrest;
Description of subject: In the Section's Police Misconduct work, it
uses this issue code when it is investigating whether officers are
arresting citizens for pretextual reasons that have no basis in the
facts.
Subject: Police-improper searches/seizures;
Description of subject: In the Section's Police Misconduct work, it
uses this issue code when it is investigating whether officers are
searching or seizing property in a way that violates the law.
Subject: Police-other discriminatory policing;
Description of subject: In the Section's Police Misconduct work, it
uses this issue code when it is investigating allegations of
discrimination by officers that do not fit into the other codes already
described.
Subject: Police-retaliation;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating allegations that someone has
been retaliated against for cooperating with the Special Litigation
Section while the Special Litigation Section was conducting its
investigation.
Subject: Police-sheriff;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating the sheriff and his/her
officers, often used in connection with investigations of conditions in
the lock up cells in a jail.
Subject: Police-state;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating state police officers.
Subject: Police-supervisory measures;
Description of subject: In the Section's Police Misconduct work, it
uses this code when it is investigating whether the measures that a
police force uses to supervise its officers is adequate.
Subject: Police-training;
Description of subject: In the Section's Police Misconduct work, it use
this code when it is investigating whether officers are adequately
trained to do their jobs.
Subject: Protection from harm;
Description of subject: In all of its CRIPA cases, the Section uses
this very broad term to determine whether the residents of a facility
are provided with adequate safety. This term can encompass whether
there is staff abuse, whether there is too much resident-on-resident
violence, whether residents are adequately supervised, and many other
areas.
Subject: Psychiatric services;
Description of subject: In the Section's CRIPA work, this issue is a
bit narrower than the term "mental health services." Psychiatric
services are provided to residents who have been diagnosed with a
serious mental illness, whereas mental health services are provided to
any resident who needs help with a mental health problem, even if there
hasn't been a psychiatric diagnosis.
Subject: Psychological services;
Description of subject: In the Section's CRIPA work, especially with
respect to matters involving facilities for persons with developmental
disabilities, this issue relates to the services to persons who have
challenging behaviors and to the services provided to all residents in
order that they learn skills designed to help them function better in
their living situation.
Subject: Psychopharmacology;
Description of subject: In all of its CRIPA work, the Section evaluates
the psychoactive medication practices at a facility to ensure that
dosages are correct, that the medications actually can treat the
diagnosed problem, the medication error rates, whether particular
residents are taking many different medications to treat the same
problem, and whether residents are experiencing negative side effects
without intervention by the facility.
Subject: Rehabilitation services;
Description of subject: In the Section's CRIPA work involving
psychiatric hospitals, nursing homes, and juvenile justice facilities,
it evaluates whether the facility is providing adequate services to
address the problems that required the resident to be institutionalized
in the first place.
Subject: Restraints-chemical;
Description of subject: In all of its CRIPA work, the Section evaluates
whether psychoactive medications are impermissibly being used for the
convenience of staff to sedate residents, instead of treating the
underlying problem; this issue can also be used when an institution
uses mace on residents to subdue them when there was no imminent threat
to the resident or to others.
Subject: Restraints-physical;
Description of subject: In all of its CRIPA work, the Section's
evaluates whether a facility is using undue or unnecessary physical
restraints on facility residents. Physical restraints include such
things as soft leather strips used to tie psychiatric patients to
hospital beds; mittens used to cover the hands of a self abusive
person; helmets used to prevent a person from banging his or her head
on the wall; or take down procedures where staff hold a resident on the
resident's stomach on the floor until calm.
Subject: Sanitation;
Description of subject: This issue arises in some of the Section's
CRIPA work, particularly in jails and prisons, but can arise in its
health care work. The Section investigates issues such as whether
laundry is properly cleaned so that it does not spread infection;
whether dishwashers are using water hot enough to prevent food borne
illnesses from being spread on dishes and utensils; or whether toilets
and showers are properly cleaned to prevent the spread of disease.
Subject: Special Education (IDEA)[A];
Description of subject: In the Section's CRIPA health care where there
are residents under the age of 22 and in its juvenile justice work, the
Section investigates whether youth with learning disabilities are being
provided education in accordance with the requirement of this federal
statute.
Subject: Speech/Language Therapy;
Description of subject: In its CRIPA cases involving persons with
developmental disabilities and in its juvenile justice cases involving
youth entitled to related services under the IDEA, the Section
investigates whether appropriate individuals are provided adequate
services to address disabilities related to the individuals' ability to
communicate.
Subject: Substance abuse treatment;
Description of subject: In its CRIPA psychiatric hospital cases and in
its juvenile justice cases, the Section investigates whether residents
with substance abuse diagnoses are being provided adequate substance
abuse treatment to address their needs.
Subject: Suicide prevention;
Description of subject: In all of its CRIPA cases and in its juvenile
justice cases, the Section investigates whether facilities are
adequately protecting residents with suicidal or self harming behaviors
from harm, making sure that environments where suicidal residents are
housed are free from suicidal hazards and that mental health services
are provided in an appropriate and timely manner to prevent harm.
Subject: Vocational training;
Description of subject: In the Section's matters and cases where there
are IDEA violations, the Section investigates whether youth are
provided with adequate vocational training, as required by IDEA.
Subject: Word Trade Center/Pentagon attacks;
Description of subject: The Special Litigation Section does not use
this issue in its ICM data base. This code was added as a value to all
sections of the Civil Rights Division not long after the September 11,
2001 attacks.
Source: Civil Rights Division, Special Litigation Section.
[A] Refers to the Individuals with Disabilities Education Act, 20
U.S.C. § 1400 et seq.
[End of table]
[End of section]
Appendix VI: GAO Contact and Staff Acknowledgments:
GAO Contact:
Eileen Larence, (202) 512-8777 or larencee@gao.gov:
Acknowledgments:
In addition to the contact named above, Maria Strudwick, Assistant
Director, and Barbara Stolz, Analyst-in-Charge, managed this
assignment. David Alexander, Jennifer Andreone, R. Rochelle Burns,
Michele Fejfar, Emily Hanawalt, Gloria Hernandez-Saunders, Lara Kaskie,
Jan Montgomery, Joy Myers, and Janet Temko made significant
contributions to this report.
[End of section]
Footnotes:
[1] A case is defined as an activity that has been assigned an
identification number that has resulted in the filing of a complaint,
indictment, or information in court. A matter is defined as an activity
that has been assigned an identification number, but has not resulted
in the filing of a complaint, indictment, or information in court--for
example, the investigation of a complaint or an allegation of
discrimination referred by another federal agency. A complaint outlines
the facts and legal claims for relief from damages caused, or wrongful
conduct engaged in, by the defendant. An indictment or information is
the formal charge made by a prosecutor to initiate a criminal
proceeding against the accused.
[2] The Division has 11 sections--10 program-related sections and an
Administrative Management section.
[3] A jail is a place of confinement of persons, held in lawful custody
under the jurisdiction of a local government (e.g., a county), who are
awaiting trial or convicted of minor offenses. A prison is a state or
federal place of confinement for persons convicted of serious crimes.
[4] GAO, Civil Rights Division: Selection of Cases and Reasons Matters
were Closed, [hyperlink, http://www.gao.gov/products/GAO/GGD-00-192]
(Washington, D.C.: September 2000).
[5] GAO, Civil Rights Division: Policies and Procedures for
Establishing Litigation Priorities, Tracking and Managing Casework, and
Disseminating Litigation Results, [hyperlink,
http://www.gao.gov/products/GGD-00-58R] (Washington, D.C.: February
2000) and [hyperlink, http://www.gao.gov/products/GAO/GGD-00-192].
[6] A nongeneralizable sample may be either a nonprobability sample
where observations are selected in a manner that is not completely
random, or a probability sample where random sampling is used, but the
sample size is too small to allow the results to be generalized to the
broader population.
[7] Pub. L. No. 85-315, 71 Stat. 634.
[8] 42 U.S.C. §§ 1971, 1973 to 1973bb-1.
[9] 42 U.S.C. §§ 1973ff - 1973ff-6.
[10] H.R. Rep. No. 99-765 at 5, 12 (1986).
[11] 42 U.S.C. §§ 1973gg - 1973gg-10.
[12] 42 U.S.C. §§ 15301-545.
[13] Pub. L. No. 88-352, 78 Stat. 241; Pub. L. No. 90-284, 82 Stat. 73.
[14] 38 U.S.C. §§ 4301-35.
[15] Pub. L. No. 93-508, 88 Stat. 1578.
[16] 42 U.S.C. §§ 1997-1997j.
[17] Pub. L. No. 100-430, 102 Stat. 1619.
[18] H.R. Rep. No. 100-711, at 13 (1988). Color is a valid protected
class under various statutes (e.g., Title VII and the Fair Housing
Act), although separate claims of color discrimination are rare. Such
claims are usually brought with and subordinated to race discrimination
claims; for example, in a case of unlawful discrimination on the basis
of color where an individual has been treated differently on the basis
of skin tone.
[19] 15 U.S.C. § 1691 et seq.
[20] Pub. L. No. 93-495, § 502, 88 Stat. 1500, 1521.
[21] Pub. L. No. 90-321, 82 Stat. 146 (1968) (codified as amended in
scattered sections of 15 U.S.C. and 18 U.S.C.).
[22] 42 U.S.C. § 2000cc et seq.
[23] 521 U.S. 507 (1997).
[24] 146 Cong. Rec. S6678-02, S6687-88.
[25] H.R. Rep. No. 102-242, at 138 (1991).
[26] The Professional Development Office is within the Office of the
Assistant Attorney General. This office was established by the
Assistant Attorney General in 2005 to enhance the training
opportunities for new and experienced Division attorneys.
[27] The Employment Litigation Section is legally required to notify
the charging party when it is not going to pursue a charge so that the
charging party can pursue private litigation. This notification is made
by means of a letter from the Division to the charging party or his or
her attorney and is referred to as a right-to-sue letter. 42 U.S.C. §
2000e-5(f)(1).
[28] As used by the Employment Litigation Section, the term charge
refers specifically to those allegations of discrimination referred to
by the EEOC. The Department of Labor (DOL) also refers USERRA
complaints to the Employment Litigation Section. We use the term
referral to refer to HUD, EEOC, DOL, and other regulatory agency
referrals. The more general term allegation of discrimination will be
used to describe other instances of alleged discrimination.
[29] By statute, the Employment Litigation Section can investigate and
file suit in matters involving an individual instance of discrimination
under section 706 only after receiving a referral from the EEOC.
[30] In USERRA matters handled by the Employment Litigation Section, a
recommendation about whether to offer representation to the claimant is
made.
[31] The Special Litigation Section does not notify all appropriate
parties if it decides not to recommend an investigation.
[32] A complaint filed in court is the initial formal statement that
starts a lawsuit and that sets forth the allegations made by the
plaintiff against the defendant and the plaintiff's demand for relief.
[33] The Special Litigation Section does not notify a defendant by
letter of DOJ's intent to file a lawsuit.
[34] Settlement discussions can occur at any time during the process.
Negotiations held prior to the filing of a formal complaint to initiate
the lawsuit are referred to as presuit settlement discussions.
[35] GAO, DOJ's Civil Rights Division: Opportunities Exist to Improve
Its Case Management System and Better Meet Its Reporting Needs,
[hyperlink, http://www.gao.gov/products/GAO-09-938R] (Washington, D.C.:
Sept. 30, 2009).
[36] The Employment Litigation Section considers all EEOC charge
referrals and Department of Labor USERRA referrals as matters even if
an investigation is not opened. However, the section does not consider
requests for right-to-sue letters as matters. While a charging party is
required to file a charge of discrimination with the EEOC, according to
Section officials, some charging parties may prefer to initiate
litigation on their own and, in such instances, will request that DOJ
provide a right-to-sue letter as obtaining a right-to-sue letter is a
precondition to filing a Title VII claim in federal court. According to
Employment Litigation Section officials, the section honors such
requests and issued 14,608 such letters from fiscal years 2001 through
2007. (Appendix II includes information on the number of right-to-sue
letters issued each fiscal year by the Section.)
[37] [hyperlink, http://www.gao.gov/products/GAO-09-938R].
[38] Individual cases can involve multiple protected classes and
subjects.
[39] African American refers to the protected class "black or African
American."
[40] One of the cases the Housing and Civil Enforcement Section filed
was as plaintiff intervenor against multiple defendants. When the
Section entered into a consent decree with some of the defendants, it
created an additional Department of Justice (DJ) number--a unique
identification number assigned by DOJ when a matter or case is first
entered into ICM--so it could track both the settlement and the
remaining ongoing litigation; however, the Section treats this as one
case, as there was one complaint.
[41] This includes FHA either solely or in combination with ECOA and
RLUIPA.
[42] Rental matters involve discrimination in property that is listed
for a fee, and can involve issues such as eviction, the discriminatory
provision of services and facilities occupancy restrictions, and the
assessment of rental fees based on the number of occupants.
[43] Seven matters involved both a language minority and a racial
minority group and in one matter the specific protected class was not
identified.
[44] Two cases involved both racial and language minority groups.
[45] The Division's time data show that from fiscal years 2001 through
2007, the Section's professional staff charged about 20 percent of
their time to matters, about 47 percent to cases, and about 33 percent
to other activities, such as professional development and outreach.
According to Section officials, the Section Chief and the six deputies
charge all their time to other activities. Appendix II provides
information on the time charged to cases and other activities by fiscal
year.
[46] In addition to information maintained in ICM, the Section also
maintains information on USERRA referrals in a word processing file.
According to the Section, the information generated from the word
processing file identified that the Section received 262 USERRA
referrals--122 in fiscal year 2005, 81 in fiscal year 2006, and 59 in
fiscal year 2007. For purposes of this report, we are reporting on the
information from ICM--the Division's official case management system.
[47] According to Employment Litigation Section officials, section 707
matters are assigned a Department of Justice (DJ) number--a unique
identification number assigned by DOJ when a matter or case is first
entered into ICM--and recorded in ICM only after an attorney has spent
4 hours on them.
[48] About 220 additional matters were initiated by the Employment
Litigation Section prior to fiscal year 2001. The Employment Litigation
Section authorized an investigation for about 90 of these approximately
220 matters and they remained open during some part of our review
period.
[49] We could not determine the number of matters referred to the U.S.
Attorney's Offices because the Employment Litigation Section does not
track this information in ICM.
[50] [hyperlink, http://www.gao.gov/products/GAO-09-938R].
[51] An additional 20 section 707 matters were initiated by the
Employment Litigation Section from fiscal years 2001 through 2007.
However, because those matters were still open at the time of our
review, given sensitivity concerns, we did not review certain types of
information related to these matters, including protected class data.
[52] According to ICM data, 6 of the matters involved claims of race
discrimination against whites and 3 against Asians. Information on
protected class was not included in ICM for 9 of the section 707
matters. Each matter can involve multiple protected classes (e.g.,
race).
[53] The Section closed approximately 3,300 matters from fiscal years
2001 through 2007, of which about 200 were initiated prior to fiscal
year 2001.
[54] According to the Employment Litigation Section, size refers to
both the size of the employer and the parameters of the claim. For
example, a matter is considered small in size if the employer is small
and/or the nature of the claim is narrow (e.g., a claim for 1 week of
back pay). Limited impact refers to the nature of the relief obtainable
and whether such relief would have an impact on anyone other than the
charging party.
[55] [hyperlink, http://www.gao.gov/products/GAO-09-938R].
[56] As previously discussed, because our samples were not
representative, we were unable to generalize the results to all closed
matters investigated by the section during the period of our review.
Nevertheless, our file reviews provided examples of why the section
closed matters.
[57] According to a Section Deputy Chief, for a period of time
following the September 11 terrorist attacks, the Division had an
attorney coordinator who reviewed all complaints of religious backlash.
[58] The Employment Litigation Section referred one section 706 case to
the U.S. Attorney's Office for the Southern District of New York from
fiscal years 2001 through 2007--U.S. v. City of New York and New York
City Housing Authority filed on May 31, 2001.
[59] Individual cases can involve multiple protected classes and
subjects.
[60] One of the 11 cases involving claims of race discrimination was a
lawsuit the Division filed in June 2003 alleging that the University of
Guam discriminated against 11 individuals by discharging them, denying
them promotion, and/or retaliating against them on the basis of their
race and/or national origin. The complainants included eight non-
Chamorro Caucasians, a non-Chamorro Native American, a non-Chamorro
African American, and a non-Chamorro Filipina.
[61] The complaint the Division filed in court did not specify the race
of the complainant. According to the Employment Litigation Section, the
complainant was an African American female.
[62] The complaint also alleged that the city of Indianapolis
discriminated against two males on the basis of sex with respect to
promotions to the lieutenant position.
[63] The Employment Litigation Section referred three pattern or
practice cases to the U.S. Attorney's Office for the Southern District
of New York--U.S. v. New York City Department of Parks and Recreation
filed on June 19, 2002; U.S. v. New York City and New York City
Department of Transportation filed on March 12, 2007; and U.S. v. New
York City Department of Correctional Services filed on March 15, 2007.
[64] According to Section officials, pattern or practice cases are
resource-intensive and complex given that multiple plaintiffs are
involved; whereas section 706 and USERRA cases typically involve an
individual plaintiff.
[65] Employers are liable for employment practices that are
intentionally discriminatory, as well as those that have the effect of
being discriminatory, for instance, a physical fitness test that
eliminates more female than male candidates.
[66] The two cases alleging sex discrimination against males are the
same two discrimination cases cited previously regarding white males.
[67] According to the Employment Litigation section, four USERRA
referrals were settled but not filed in federal district court.
[68] The protected class for all USERRA cases is military.
[69] Three of these cases were related and alleged that the District of
Columbia government discriminated against three pregnant females on the
basis of their sex.
[70] In addition to the HUD election cases, the Housing and Civil
Enforcement Section also receives other referrals from HUD involving
allegations of a pattern or practice of discrimination or allegations
of discriminatory land use and zoning practices, as well as matters
involving the enforcement of a HUD order, decision, or conciliation
agreement. The Section receives pattern or practice referrals involving
alleged violations of ECOA from bank regulatory agencies, such as the
Federal Deposit Insurance Corporation and the Federal Reserve Board.
[71] According to Housing and Civil Enforcement Section officials,
referrals from other agencies are automatically included in ICM as a
matter and assigned an official DOJ tracking number; self-initiated
work becomes a matter after 2 hours of work.
[72] This includes FHA either solely or in combination with ECOA and
RLUIPA.
[73] The remaining 10 percent of the FHA matters involved the
following. Eighteen of these instances involved nondiscretionary
referrals (election investigations). In 1 instance, the Section was a
defendant in impending litigation. In 9 instances, the Section was
preparing to act as amicus curiae. In 9 instances, the Section
indicated that the matter was related to research. In 14 FHA
investigations, the Section was involved in an enforcement role,
ensuring that a HUD order, decision, or conciliation agreement was
implemented. In 10 matters, the Section was preparing to take prompt
judicial action to involve the court in preventing the enforcement of
or forcing compliance with a decision of the court.
[74] Time data include all matters initiated and ongoing from fiscal
years 2001 through 2007. Additionally, the data include time charged by
all section professional staff, including the section chief, deputies,
special counsel, attorneys, legal support staff, legal assistants, law
clerks, and any staff unique to a section.
[75] We derived information on the reasons why the Housing and Civil
Enforcement Section closed matters through interviews with Section
officials and a review of a nongeneralizable sample of 60 closed matter
files. However, the Division does not capture data in ICM or other
Section-level information systems on the reasons why matters were
closed. Therefore, we could not systematically identify the Section's
reasons for closing matters, including the number of instances in which
the Section recommended to proceed with a case and Division management
did not approve the Section's recommendation.
[76] GAO, Fair Housing: Opportunities to Improve HUD's Oversight and
Management of the Enforcement Process, [hyperlink,
http://www.gao.gov/products/GAO-04-463] (Washington, D.C., Apr. 21,
2004), and Fair Housing: HUD Needs Better Assurance That Intake and
Investigation Processes Are Consistently Thorough, [hyperlink,
http://www.gao.gov/products/GAO-06-79] (Washington, D.C. Oct. 31,
2005).
[77] The Fair Housing Act defines a disability, or handicap, as a
mental or physical impairment that substantially limits one or more
major life activities; a record of such impairment; or being regarded
as having such an impairment. The term mental or physical impairment
may include conditions such as blindness, hearing impairment, mobility
impairment, HIV infection, mental retardation, alcoholism, drug
addiction (other than current illegal use of a controlled substance),
chronic fatigue, learning disability, head injury, and mental illness.
[78] Each matter can involve multiple protected classes; therefore,
percentages do not total 100.
[79] The FHA requires that certain multifamily dwellings constructed
for initial occupancy after March 1991 be accessible for persons with
disabilities. The FHA accessibility requirements generally include: (1)
accessible building entrance on an accessible route, (2) accessible and
usable public and common use areas, (3) usable doors, (4) accessible
route into and through the covered dwelling unit, and (5) light
switches, electrical outlets, thermostats, and other environmental
controls in accessible locations.
[80] Olmstead v. L.C., 527 U.S. 581, 607 (1999).
[81] The Assistant Attorney General began the multifamily housing
access forum in 2005 to provide information to those who might be
defendants in cases on how to design and construct facilities so that
they do not conflict with the law.
[82] Each year the section provides information to Congress on
referrals through a document, entitled The Attorney General's Annual
Report to Congress Pursuant to the Equal Credit Opportunity Act
Amendments of 1976.
[83] Home Mortgage Disclosure Act of 1975, Pub. L. No. 94-200, 89 Stat.
1124 (codified as amended at 29 U.S.C. §§ 2801-10).
[84] 12 C.F.R. pt. 203 (commonly known as Regulation C).
[85] Housing and Civil Enforcement Section officials also reported that
the Section had developed three redlining cases since 2004 using Home
Mortgage Disclosure Act data. Redlining is the refusal of lenders to
make mortgage loans on an equal basis in certain geographic areas based
on the racial or ethnic composition of the neighborhood. According to
Section officials, these are complex cases, requiring significant
resources.
[86] According to the Attorney General's 2007 Annual Report to Congress
Pursuant to ECOA, nine of the bank agency referrals the Section
continued to investigate at the end of calendar year 2007 involved race
or national origin discrimination--one of which involved allegations
that a mortgage company engaged in redlining on the basis of race.
Additionally, those nine referrals included seven that involved lender
discrimination on the basis of race in the pricing of mortgage loans.
[87] According to data maintained in ICM, from fiscal years 2001
through 2007, the section also participated in 150 lawsuits that were
filed prior to fiscal years 2001. (Appendix III provides additional
information on prefiscal year 2001 cases).
[88] Of the seven cases the Section participated in as amicus, six
involved FHA and one involved RLUIPA. The case for which the Section
served as intervenor on behalf of the plaintiffs involved the FHA.
[89] Of the 277 cases in which the Housing and Civil Enforcement
Section participated, 73 were litigated primarily by a U.S. Attorney's
Office, 204 primarily by the Housing and Civil Enforcement Section.
When an election case complaint is referred to DOJ, the Section is to
review the referral to determine whether it should be handled by the
section, or if it should be handled by the local U.S. Attorney's
Office. According to Section officials, they usually keep a complaint
if it seems as though they will be able to add to it a pattern or
practice claim. If the complaint is novel or involves a difficult legal
issue, the section might handle it even if it is not a pattern or
practice case. Another factor considered by the Housing and Civil
Enforcement Section is the experience of a U.S. Attorney's Office in
handling housing cases, as some attorneys have more experience than
others. All election complaints and settlements, including those
handled by a U.S. Attorney's Office, are to be approved by the
Assistant Attorney General (AAG). A Housing and Civil Enforcement
Section reviewer is involved in guiding the U.S. Attorney's Office
through the approval process.
[90] This includes cases filed either solely under the FHA or in
combination with RLUIPA, ECOA, or section 504.
[91] The 31 election cases that the Section filed in fiscal year 2001
and the 12 such cases filed in fiscal year 2003 include election cases
with an additional allegation of a pattern or practice of
discrimination.
[92] The relatively large number of allegations of disability and
rental discrimination also appears in the type of complaints received
by HUD and Fair Housing Assistance Program (FHAP) agencies. According
to HUD's Fiscal Year 2007 Annual Report on Fair Housing, the most
common basis of complaints received by HUD and FHAP agencies was
disability and the most common allegation was discrimination in the
terms and conditions of the rental or sale of housing.
[93] Nineteen (17 FHA and 2 Title II) testing cases were litigated by
the Section and 1 FHA testing case was litigated by a U.S. Attorney's
Office.
[94] Even when an individual test reveals what appears to be unlawful
discrimination, that alone may not be sufficient to support a lawsuit
by DOJ. Absent a referral from HUD pursuant to 42 U.S.C. § 3612(o),
based upon a complaint and investigation, the Attorney General has
jurisdiction to commence a lawsuit to enforce the Fair Housing Act in
federal court only when there is reasonable cause to believe that there
has been a "pattern or practice" of discrimination or a denial of
rights to a group of persons that raises a matter of general public
importance. See 42 U.S.C. § 3614(a). The Supreme Court has held that to
establish a "pattern or practice" of discrimination, the government
must show "by a preponderance of the evidence that racial
discrimination was the company's standard operating procedure--the
regular rather than the unusual practice." Int'l Bhd of Teamsters v.
United States, 431 U.S. 324, 336 (1977). Proof of one instance of
unlawful discriminatory conduct, standing alone, is often not
sufficient to prevail in a pattern or practice case. See id. at 336
n.16. And in the context of fair housing testing, multiple tests may be
necessary to show a pattern or practice or denial of rights to a group
of persons. See, e.g., United States v. Balistrieri, 981 F.2d 916, 930
(7th Cir. 1992), cert. denied, 510 U.S. 812 (1993); United States v.
Garden Homes Mgmt. Corp., 156 F. Supp. 2d 413, 422 (D.N.J. 2001).
[95] A single test can involve multiple issues and bases of
discrimination.
[96] According to Housing and Civil Enforcement Section officials, the
Section offered contracts to local groups to do the testing, creating
local scenarios that are more credible and enabling access to hard-to-
reach areas in the community. Section officials stated that under Home
Sweet Home they may target a particular area based on need; for
example, Section officials noted that they had targeted testing efforts
in areas affected by Hurricane Katrina where displaced persons may be
looking for housing.
[97] Four of the 9 complaints included allegations of discrimination
both on the basis of race and national origin.
[98] According to Voting Section officials, the Section initiated a
matter when an inquiry or fact finding involved either travel or more
than 4 hours of attorney time. Once a matter was open, it received a DJ
number and remained in the Voting Section as a matter until such time
as the Section went forward to the Division with a justification
memorandum recommending the filing a complaint to initiate a lawsuit or
closed the matter. However, not all the work of the Section becomes a
matter.
[99] According to Section officials, the process for opening an
investigation has changed since the period of our review. In December
2007, the Division's Front Office implemented an Investigatory
Memorandum (I-memo) requirement. Under this new procedure, if the
initial review indicated that the allegation was reasonably likely to
result in an investigation, it became a matter upon the approval of a
reviewer with the Section. Before proceeding with an investigation by
contacting state or local officials, the Section was to prepare a short
memorandum to the Deputy Assistant Attorney General and receive
authorization from the Division's Front Office. Officials said this
process was intended to avoid the situation in which the Division
learned of such an investigation from the media. In August 2009, this
process changed again. While Section officials are required to receive
authorization from the Division's Front Office before contacting local
officials, the reviewing Deputy Assistant Attorney General advised the
section that a formal I-memo was not necessary and that authorization
could be obtained by an email outlining the information on which the
Section based the recommendation to proceed with an investigation.
Section officials stated that this change was intended to make it
easier for the section to initiate investigations. However, if an
allegation is quickly resolved, no DJ number is assigned and the
allegation does not become a matter.
[100] The Section engages in election monitoring, which refers to the
assigning of (1) federal observers by the Office of Personnel
Management, upon notification of the need by the Attorney General, to
monitor polling place activities in counties that the Attorney General
has certified under VRA and counties authorized by federal courts and
(2) Justice Department attorneys and professional staff to monitor
election-day activities in local jurisdictions throughout the United
States, whether or not the locations have been certified under VRA, to
investigate possible voting rights violations. Election monitoring
information is not kept in ICM, but in a separate database. Sections 3
and 8 of the VRA provide authority to the federal courts and the
Attorney General, respectively, to authorize federal observers to be
assigned to political jurisdictions to monitor the voting process. 42
U.S.C. §§ 1973a,1973f.
[101] An at-large election system is one in which a public official is
selected from the whole of a political unit or election district rather
than from a subdivision of the larger unit.
[102] Matters may be initiated under more than one statute.
[103] These matters were initiated under sections 2, 4(e), 4(f)(4),
11(b), 203 and 208 of the VRA. Seven of these matters also involved
allegations of racial discrimination.
[104] Coverage under section 203 is determined by a coverage formula
contained in that section. There are three ways that a jurisdiction may
be covered: (1) more than 5 percent of the voting age citizens of a
state or political subdivision are members of a single language
minority group and are limited-English proficient; (2) more than 10,000
of the voting age citizens of a political subdivision are members of a
single language minority group and are limited-English proficient; or
(3) a political subdivision is covered if there is located within its
borders all or any part of an Indian reservation, in which more than 5
percent of the voting age American Indian or Alaska Native citizens are
members of a single language minority group and are limited-English
proficient. In all three cases, it is additionally required that the
illiteracy rate of the language minority citizens is higher than the
national illiteracy rate. 42 U.S.C. § 1973aa-1a; see also 28 C.F.R. §
55.6. The requirements of section 203 take effect upon publication in
the Federal Register of the requisite determinations of the Director of
the Census. Such determinations are not reviewable in any court. 28
C.F.R. § 55.4.
[105] Eighteen of these matters were initiated on behalf of more than
one language minority group.
[106] According to Voting Section officials, the reference "203" was
used in ICM to designate matters initiated pursuant to sections 203 and
4(f)(4), as well as section 4(e) of the VRA; therefore, we were unable
to distinguish under which of these provisions a matter was initiated.
Coverage under section 203 is determined by a coverage formula
contained in that section that takes into account factors such as the
percentage of voting age citizens of a state or political subdivision
who are members of a single language minority group and are limited-
English proficient, as well as illiteracy rates of such citizens, among
other factors. 42 U.S.C. § 1973aa-1a; see also 28 C.F.R. § 55.6. The
coverage determination under section 4(f)(4) is related to the formula
for determining jurisdictions subject to the preclearance requirements
of section 5 of the VRA, which are those evidencing discriminatory
voting practices, based upon a triggering formula as defined in section
4 of the VRA. 42 U.S.C. § 1973b(f)(4); see also 28 C.F.R. § 55.5.
During this time, the Section also did not have a separate ICM subject
value for matters initiated under section 208 on behalf of voters who
were blind, disabled, or unable to read or write. Section officials
stated that issues related to Section 208 would ordinarily be added to
matters initiated under the minority language provisions.
[107] Two of these matters were also initiated pursuant to an
allegation of intimidation and 8 were with allegations under section
203, one of which also involved an NVRA-related allegation.
[108] Two of these matters were in combination with section 2.
[109] Seven matters involved both a language minority and a racial
group. For purposes of describing cases and matters under the VRA,
cases and matters involving Hispanics are included with the protected
class of race.
[110] An at-large election system is one in which a public official is
selected from the whole of a political unit or election district rather
than from a subdivision of the larger unit. This type of election can
dilute the strength of minority voters. For example, when all the of
the voters within a jurisdiction vote on all members of the city
council, with the result that racial minorities who live in a
particular part of the city, and might be able to elect one or more
representatives if the city council members were individually elected
from smaller districts, are regularly outvoted by the white majority.
In analyzing claims that at-large systems violate section 2 by giving
minorities less opportunity to elect representatives of their choice,
courts engage in an intensive analysis of the effects of the election
system and of the racial history of the area in question, and have been
guided by a list of factors identified in the legislative history of
the 1982 amendments to the Voting Rights Act and articulated by the
Supreme Court.
[111] One matter did not identify a particular protected class, but
referred to voters.
[112] Section 11(b) of the VRA.
[113] One matter involved both a language minority and racial minority
group and one matter involved two racial groups, thus accounting for 25
of the 27 matters. ICM data did not identify the specific protected
class of two of these matters.
[114] One matter involved both provisions of HAVA and the NVRA and
three matters involved HAVA and the VRA.
[115] One matter involved both provisions of HAVA and the NVRA and
three matters involved both the NVRA and the VRA.
[116] We could not determine the subject for six of these matters
because the information was not contained in ICM.
[117] We derived information on the reasons why the Voting Section
closed matters through interviews with Section officials and a review
of a nongeneralizable sample of 51 closed matter files. However, the
Division does not capture data in ICM or other Section-level
information systems on the reasons why matters were closed. Therefore,
we could not systematically identify the Section's reasons for closing
matters, including the number of instances in which the Section
recommended to proceed with a case and Division management did not
approve the Section's recommendation.
[118] Timing may be relevant where, for example, a new census is
occurring that would allow for the redrawing of districts. For example,
in one matter, the section received a letter regarding efforts to
obtain single member districts for a city council, to which the section
responded it would revisit the issue after census data was released 4
months later.
[119] Four cases involving Spanish-speakers involved one or more other
language minority.
[120] All five of these cases were filed in conjunction with other
statutes or other provisions of the VRA. Two of these cases also
alleged claims of the denial or abridgment of the right to vote on
account of race, on behalf of Hispanic voters.
[121] This case was originally filed in 1993, but an amended complaint
realleging claims under sections 203 and 2, as well as new claims
pursuant to HAVA and the NVRA, was filed in 2007.
[122] Six cases were in combination with other statutes and/or in
combination with other provisions of the VRA, including sections 4(e),
11(b), 203, and 208 of the VRA, and HAVA and the NVRA.
[123] As described previously, for purposes describing cases and
matters under the VRA, cases and matters involving Hispanics are
included with the protected class of race.
[124] Two cases involved both race and membership in a language
minority, as noted above.
[125] Eight of these cases were filed in conjunction with claims under
other statues, such as the VRA and the NVRA.
[126] Four of these cases also included claims under other statutes,
such as HAVA and the VRA.
[127] Two cases involved both kinds of claims.
[128] The Voting Section has an entire system--Submission Tracking and
Processing System, referred to as STAPS--to track preclearance
requests, including the origin of the request and the outcome. The
system is independent of all other Voting Section computer programs and
databases. When the Section receives a section 5 submission from a
jurisdiction, the submission is assigned a unique submission number.
Information that the Voting Section maintains for each submission is:
state, county or subjurisdiction, as applicable; staff assignments;
date of submission, Section response due date; pertinent census data;
list of related submissions (if any); type and description of change;
state or local act or ordinance number, as applicable; and Section
action taken and dates of action. All documents related to each
submission are scanned into a database. Such documents would include
the submission from the jurisdiction, public comment (if any), internal
Section analysis and memoranda, memoranda of telephone communications,
and correspondence to and from the jurisdiction.
[129] One matter did not specify the type of section 5 matter or a
specific protected class.
[130] The 544 matters, initiated from fiscal year 2001 through 2007,
were closed as of August 8, 2008, the date on which the Division
provided the data to us.
[131] Just prior to the start of this period, on September 22, 2000,
the President signed into law the Religious Land Use and
Institutionalized Persons Act (RLUIPA). The Justice Department
delegated responsibility for enforcing provisions protecting the rights
of free exercise of religion for institutionalized persons to the
Special Litigation Section. However, Section officials said that its
RLUIPA responsibilities were not new because the Section had previously
been involved in enforcing similar provisions of the Religious Freedom
Restoration Act of 1993 before the act was declared unconstitutional by
the Supreme Court. Pub. L. No. 103-141, 107 Stat. 1488 (1993),
invalidated by City of Boerne v. Flores, 521 U.S. 507 (1997).
[132] According to Special Litigation Section officials, the Section
maintained a phone log and had phone tree duty. For example, they
estimated that in 2006 that they had received about 700 phone calls.
[133] A matter was considered a "pre-investigation," and not an
"investigation," until the Assistant Attorney General approved the
justification memorandum for an investigation (S10) submitted by the
Section.
[134] According to agency officials, matters initiated includes both
preliminary inquiries (preinvestigations) and "actual investigations."
Before 2003, preliminary inquiries were opened with minimum standards.
After 2003, further management controls were introduced so that
preliminary inquiries were only opened after a staff person spent 2
hours on the particular matter and the matter was actively supervised.
Thus, the number of preliminary inquiries declined after 2003; this
resulted in a corresponding decline in the total number of matters
initiated.
[135] Aggregate data on the time spent by the Section on cases and
matters show that in each fiscal year during the 7-year period the
Section spent a greater percentage of time on cases than matters.
However, in fiscal years 2001, 2005, and 2006, the Section reported
spending a lower percentage of time on matters relative to cases than
in other fiscal years. Appendix V includes additional information on
the time the Section reported spending on matters and cases.
[136] The Section reported the following on-board staff numbers at the
end of each of the 5 fiscal years: 2003--70, 2004--73, 2005--61, 2006--
57, and 2007--60. According to the Division, in fiscal year 2005, the
Division was granted Voluntary Early Retirement Authority along with a
Voluntary Separation Incentive Payment of $25,000. Appendix V includes
additional information on the Sections staff resources from fiscal year
2001 through 2007.
[137] The remaining 149 matters were still open at the time of our
review, and given sensitivity concerns, we did not review certain types
of information related to these matters.
[138] Seventeen of the 544 closed matters were identified as other.
These matters are not included in the overall counts for each area of
responsibility. For 6 of the 17 matters there was sufficient
information to be able to categorize them and they are reported in
footnotes to the appropriate text.
[139] The Division also provided information on 169 matters that the
Section initiated prior to fiscal year 2001, but remained open and were
then closed during the 7-year period. Division officials said, and our
review of the data confirmed, that these data were not always complete.
Accordingly, we did not include an analysis of these data in our
review.
[140] The area of responsibility conduct of law enforcement agencies
includes one facility type in ICM--law enforcement agency. Therefore,
numbers reported for the area of responsibility conduct of law
enforcement agencies are the same as those reported for the facility
type law enforcement agency.
[141] Special Litigation Section officials said that prisons and jails
do not constitute the universe of its RLUIPA work. We identified one
additional RLUIPA matter for which the facility was identified as
other; therefore, we could not determine the facility type. One of the
18 RLUIPA prison matters also involved CRIPA, but is only counted in
the RLUIPA total.
[142] A single adult correctional facility may include both jail and
prison facilities.
[143] Under CRIPA, the Attorney General must notify, in writing, the
appropriate state officials of the intention to commence an
investigation and, during that time, the Attorney General is required
to make efforts to consult with the jurisdiction about assistance from
the United States to correct the unlawful conditions and encourage the
appropriate officials to take corrective actions. 42 U.S.C. § 1997b.
[144] Pub. L. No. 104-134, § 802, 110 Stat. 1321, 1321-66 (1996).
[145] In addition to other provisions, in particular, the act provides
that a federal court shall not order prospective relief in a prison
conditions lawsuit unless the court makes written findings that such
relief is narrowly drawn, extends no further than is necessary to
correct the violation of the federal right, and that it is the least
intrusive means necessary to correct the violation. These requirements
also apply to consent decrees, but not private settlements. As such,
federal courts cannot sanction consent decrees in which the parties
agree to remedies beyond the constitutional minimum. Moreover, in
support of the consent decree, state officials must agree that the
relief addresses a violation of a federal right, which means that they
must admit that there has been a violation. The act was in effect for
the entire period of our review; however, according to Section
officials, of four cases that remained open during the review period,
three were filed with consent decrees before the enactment of the act
and one was filed after its enactment, together with a memorandum of
agreement that was not filed in court. (See app. V.)
[146] The 78 matters involving conditions in prisons under CRIPA do not
include 1 matter initiated under CRIPA and RLUIPA. This matter is
included in the RLUIPA matters.
[147] Section officials provided additional information on the number
of current matters involving jails and prisons. They reported that as
of July 2, 2009, the Section had 25 open matters involving jails and 3
involving prisons--2 of which where being investigated and one was
settled with a memorandum of agreement.
[148] According to Section officials, group foster homes usually have 8
beds or less and, therefore, it is usually not fiscally justified for
the Special Litigation Section to investigate a group foster home
unless the situation is very bad.
[149] These matters involved the integration mandate provision under
the Americans with Disabilities Act, also known as the Olmstead
Initiative, after the Supreme Court case, Olmstead v. L.C., 527 U.S.
581 (1999), which held that individuals with mental disabilities are
required to be moved out of unnecessary institutionalization into
community-based living arrangements, where appropriate. Executive Order
13217 required the Attorney General, among other agency heads, to
ensure that the Olmstead decision was implemented in a timely manner.
[150] The Section reported in ICM that the case was dismissed from
court pursuant to Federal Rule of Civil Procedure 41(a)(2),which allows
a complaint to be dismissed by the court at the plaintiff's request.
[151] As part of the Section's focus on juveniles, the Section
initiated and closed an additional 5 matters involving access to
counsel in juvenile court (identified under other), under its 14141
authority.
[152] In a letter to the House Subcommittee on the Constitution, Civil
Rights, and Civil Liberties, Committee on the Judiciary, dated July 30,
2007, DOJ reported having successfully resolved 14 pattern or practice
police misconduct investigations involving 11 police departments from
2001 to 2006. According to the Special Litigation Section, 9 of these
investigations were initiated or opened prior to 2001.
[153] We derived information on the reasons why the Special Litigation
Section closed matters through interviews with Section officials and a
review of a nongeneralizable sample of 51 closed matter files. However,
the Division does not capture data in ICM or other Section-level
information systems on the reasons why matters were closed. Therefore,
we could not systematically identify the Section's reasons for closing
matters, including the number of instances in which the Section
recommended to proceed with a case and Division management did not
approve the Section's recommendation.
[154] The 21 states were Arkansas, Arizona, California, Georgia,
Hawaii, Iowa, Indiana, Kentucky, Louisiana, Maryland, Michigan,
Mississippi, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania,
Tennessee, Texas, Vermont, and Wyoming.
[155] See 42 U.S.C. § 12132.
[156] In one case in which a settlement was reached, the case had been
previously dismissed by the court at the request of the section,
pursuant to Federal Rule of Civil Procedure 41(a)(2).
[157] The aggregate time data included time reported spent for all
matters on which the Special Litigation Section staff worked from
fiscal years 2001 through 2007, including matters initiated during the
7-year period and matters initiated prior to fiscal year 2001 that were
still open during the 7-year period. (Appendix V includes additional
information on these matters.)
[158] The aggregate time data included time reported spent for cases on
which the Special Litigation Section staff worked from fiscal year 2001
through fiscal year 2007, including cases in which the Section filed
complaints during the period, cases in which the Section was a
defendant or defendant intervener, and cases that remained open during
the 7-year period. (Appendix V includes additional information on these
cases.)
[159] A case is defined as an activity that has been assigned an
identification number that has resulted in the filing of a complaint,
indictment, or information in court. A matter is defined as an activity
that has been assigned an identification number, but has not resulted
in the filing of a complaint, indictment, or information in court--for
example, the investigation of a complaint or an allegation of
discrimination referred by another federal agency. The complaint
outlines the facts and legal claims for relief from damages caused, or
wrongful conduct engaged in, by the defendant. An indictment or
information is the formal charge made by a prosecutor to initiate a
criminal proceeding against the accused.
[160] We obtained the spreadsheets, by section, from December 2007
through March 2008.
[161] According to the Division, case management data kept prior to
2001 were tracked in a number of other auxiliary systems and field
formats did not conform to the current ICM database structure.
[162] A nongeneralizable sample may be either a nonprobability sample
where observations are selected in a manner that is not completely
random, or a probability sample where random sampling is used, but the
sample size is too small to allow the results to be generalized to the
broader population.
[163] GAO, Civil Rights Division: Selection of Cases and Reasons
Matters were Closed, [hyperlink,
http://www.gao.gov/products/GAO/GGD-00-192] (Washington, D.C.: Sept.
27, 2000).
[164] The Division does not capture data in ICM or other Section-level
information systems on the reasons why matters were closed. Therefore,
we could not systematically identify the Sections' reasons for closing
matters, including the number of instances in which the Sections
recommended to proceed with a case and Division management did not
approve the Sections' recommendation.
[165] While ICM includes fields for collecting these data, the Division
has not required sections to do this because, according to Division
officials, when planning for ICM's implementation with section
officials, the Division did not consider requiring sections to provide
these data.
[166] One of the cases the Housing and Civil Enforcement Section filed
was as plaintiff intervenor against multiple defendants. When the
Section entered into a consent decree with some of the defendants, it
created an additional Department of Justice (DJ) number so it could
track both the settlement and the remaining ongoing litigation;
however, the Section treats this as one case, as there was one
complaint.
[167] Nineteen (17 FHA and 2 Title II) testing cases were filed by the
Section and 1 FHA testing case was litigated by a U.S. Attorney's
Office.
[168] We reviewed two reports that the Division was required to submit
to Congress, including a report on DOJ's activities under the Civil
Rights of Institutionalized Persons Act, which DOJ submits annually to
Congress pursuant to 42 U.S.C. § 1997f, for each year 2001 through
2007, and DOJ's annual report to Congress on the administration of its
functions under the Equal Credit Opportunity Act, pursuant to 15 U.S.C.
§ 1691f.
[169] We met with the individuals serving in the position of Acting
Assistant Attorney General for the Division in August 2008 and March
2009.
[170] 42 U.S.C. § 2000e et seq.
[171] 42 U.S.C. § 2000e-5.
[172] The section is required under Title VII to notify the charging
party of their right to file a private lawsuit.
[173] 42 U.S.C. § 2000e-6.
[174] 38 U.S.C. § 4301-35.
[175] Employers are liable for employment practices that are
intentionally discriminatory, as well as those that have the effect of
being discriminatory, for instance, a physical fitness test that
eliminates more female than male candidates.
[176] Title VI of the Civil Rights Act of 1964 states that "[n]o person
in the United States shall, on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity
receiving Federal financial assistance." 42 U.S.C. § 2000d. Title VI
requires each federal grant agency to implement this principle of
nondiscrimination "by issuing rules, regulations, or orders of general
applicability." 42 U.S.C. § 2000d-1.
[177] There was 1 section 707 plaintiff case for which the Section did
not monitor compliance because the Section did not obtain a favorable
outcome in that case.
[178] The time data include time Section staff spent working on cases
that were filed in court prior to fiscal year 2001, but were still
ongoing (e.g., monitoring compliance with consent orders) at some point
during fiscal years 2001 through 2007.
[179] Nearly 50 percent of the total time charged to other activities
was charged to administrative matters during the period of our review.
According to Section officials, the Section Chief, all six Deputy
Chiefs, program analysts, and administrative staff all charge time to
administrative matters, including time spent reviewing EEOC charge
referrals and other information related to matters and cases.
[180] In Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995), the
Supreme Court ruled that federal affirmative action programs to benefit
minorities must meet the same "strict scrutiny" standard that applies
to state and local programs. To survive strict scrutiny, federal
programs must serve a compelling governmental interest and be narrowly
tailored to meet that interest. Previously, the court had subjected
congressionally mandated affirmative action to a lesser standard of
review in light of Congress's broad authority to enforce equal
protection guarantees.
[181] Table 1 on page 11 of this report provides information on
available permanent positions and salaries and expenses for the
Employment Litigation Section from fiscal years 2001 through 2007.
[182] 42 U.S.C. § 3601 et. seq.
[183] 15 U.S.C. § 1691 et seq.
[184] Pub. L. No. 90-321, 82 Stat. 146 (1968) (codified as amended in
scattered sections of 15 U.S.C. and 18 U.S.C.).
[185] 42 U.S.C. §§ 2000a to a-6.
[186] 42 U.S.C. § 2000cc et seq.
[187] 50 U.S.C. App. §§ 501-96.
[188] A bill is pending in Congress that would give the Attorney
General explicit authority to bring actions under the SCRA. See
Servicemembers' Rights Protection Act, H.R. 2696, 111th Cong. (2009).
[189] The Section was assigned responsibility for the SCRA in 2006 and,
according to Section officials, it took some time before the Section
began receiving allegations of violations. Officials reported that they
were able to resolve several SCRA matters without filing complaints by
obtaining repayment for servicemembers from potential defendants.
Officials reported that their first case involving the SCRA was filed
in December 2008 and, as such, is outside the time period of our
review; they also noted that they expect data from fiscal year 2009 to
show an increase in matters and cases under the SCRA.
[190] One of these matters also involved Title VI.
[191] 29 U.S.C. § 794.
[192] One of these matters also involved section 504.
[193] 42 U.S.C. § 2000d et seq.
[194] 42 U.S.C. § 3631.
[195] Of the 1,070 closed matters, 211 were initiated prior to fiscal
year 2001 and the remaining 859 were initiated from fiscal years 2001
through 2007.
[196] Five cases involved both ECOA and the FHA.
[197] The subject matter of two cases was not identified in ICM data.
[198] Sixteen cases involved both pattern or practice and election.
[199] Two enforcement cases were also pattern or practice cases.
[200] 42 U.S.C. §§ 1971, 1973 to 1973bb-1.
[201] 42 U.S.C. § 1973.
[202] 42 U.S.C. § 1973aa-1a.
[203] 42 U.S.C. § 1973b(f)(4).
[204] The coverage determination under section 4(f)(4) is related to
the formula for determining coverage for the preclearance requirements
of section 5 of the Voting Rights Act. Coverage under section 203 is
determined by a coverage formula contained in that section that takes
into account factors such as the percentage of voting age citizens of a
state or political subdivision who are members of a single language
minority group and are limited-English proficient, as well as
illiteracy rates of such citizens, among other factors. Section 203(b);
see also 28 C.F.R. § 55.6.
[205] 42 U.S.C. § 1973b(e).
[206] 42 U.S.C. § 1973c.
[207] The jurisdictions targeted for "coverage" are those evidencing
discriminatory voting practices, based upon a triggering formula, as
defined in section 4 of the Voting Rights Act. 42 U.S.C. § 1973b. The
Attorney General and the Director of the Census have responsibility for
determining which jurisdictions are covered by the triggering formula,
and their determinations are not reviewable in any court and are
effective upon publication in the Federal Register. Id.
[208] 42 U.S.C. § 1973aa-6.
[209] 42 U.S.C. § 1973i(b).
[210] 42 U.S.C. §§ 15301-545.
[211] 42 U.S.C. §§ 1973ff - 1973ff-6.
[212] 42 U.S.C. §§ 1973gg - 1973gg-10.
[213] Except for those states that have no registration requirements or
that permit election-day registration with respect to federal
elections. 42 U.S.C. § 1973gg-2.
[214] The first matter was on behalf of Native Americans and involved a
possible violation of section 2 of the VRA based on a county's use of
an at-large election system; the second matter involved a state's
potential violation of UOCAVA; and the third matter was on behalf of
African Americans and concerned a possible violation of section 11(b)
of the VRA (intimidation) by state officials in the course of a voter
fraud investigation.
[215] Three of these cases were related.
[216] According to data maintained by the Voting Section, there were an
additional three cases in which the Section participated as defendant.
Section officials reported that in one instance, a VRA case naming the
United States as a defendant was closed after the court dismissed it
for failure of the plaintiff to prosecute it. The United States was not
served with the complaint and did not file any pleadings in the case.
With respect to the second two cases, pro se plaintiffs had asserted
challenges to HAVA and UOCAVA, but the Voting Section did not handle
the cases. Division officials made the determination for the Civil
Division and relevant U.S. Attorney's Office to participate in the
case. While the Section reviewed relevant documents, the officials
reported that the amount of time spent was minimal.
[217] A "declaratory judgment" declares the rights of the parties or
expresses the opinion of the court on a question of law without
ordering anything to be done.
[218] Redistricting and reapportionment are often used interchangeably
to refer to the division or drawing of districts within a state;
however, under the Constitution, apportionment is the division of
congressional districts among the states according to population.
[219] In addition to the cases mentioned, the cases filed pro se
included two cases involving the preclearance provisions of section 5
of the VRA, as discussed above, three related cases involving claims
arising out of HAVA, and one case involving plaintiffs' attempts to
obtain party status for the Non-Affiliated Voters Party.
[220] According to data maintained by the Voting Section, there were an
additional six cases in which the Section participated as amicus.
However, upon further review, Section officials reported that the
Section did not file an amicus brief in any of the six cases.
Specifically, in three cases, the Section appeared in court, but did
not file any documents; in two cases, briefs were filed by the
Division, not the Section, but appear in ICM because the Section may
have reviewed the matter initially or assigned staff to analyze and/or
monitor it; and, in one case, the Section sent a letter to the court of
its willingness to participate if the court desired, but was never
asked to participate.
[221] Section officials noted that many of the cases that the ICM data
reported as being open during the time period were not active, so data
reported may overrepresent the number of cases for which the Voting
Section had ongoing responsibilities during the time period.
[222] One case involved both sections 2 and 5 of the VRA.
[223] One of these cases was in combination with section 5 of the VRA.
[224] According to Voting Section officials, the reference "203" was
used in ICM to designate cases and matters under sections 203 and
4(f)(4), as well as section 4(e) of the VRA; therefore, we were unable
to distinguish under which of these provisions a case was filed.
Coverage under section 203 is determined by a coverage formula
contained in that section that takes into account factors such as the
percentage of voting age citizens of a state or political subdivision
who are members of a single language minority group and are limited-
English proficient, as well as illiteracy rates of such citizens, among
other factors. 42 U.S.C. § 1973aa-1a; see also 28 C.F.R. § 55.6. The
coverage determination under section 4(f)(4) is related to the formula
for determining jurisdictions subject to the preclearance requirements
of section 5 of the VRA, which are those evidencing discriminatory
voting practices, based upon a triggering formula as defined in section
4 of the VRA. 42 U.S.C. § 1973b(f)(4); see also 28 C.F.R. § 55.5.
During this time, the Section also did not have a separate ICM subject
value for matters initiated under Section 208 on behalf of voters who
were blind, disabled, or unable to read or write. Section officials
stated that issues related to Section 208 would ordinarily be added to
matters initiated under the minority language provisions.
[225] The remaining 3 percent was spent on other roles including
amicus, investigator, plaintiff intervener, or defendant intervener.
[226] 42 U.S.C. §§ 1997-1997j.
[227] With respect to prisons, jails, and correctional facilities,
under CRIPA, the Section is authorized to seek relief for
constitutional violations only. 42 U.S.C. § 1997a(a).
[228] 42 U.S.C. § 14141.
[229] 42 U.S.C. § 2000b.
[230] 42 U.S.C. § 3789d.
[231] 18 U.S.C. § 248.
[232] 42 U.S.C. § 2000cc-1.
[233] Pub. L. No. 103-141, 107 Stat. 1488 (1993), invalidated by City
of Boerne v. Flores, 521 U.S. 507 (1997).
[234] The more than 700 closed matters included matters initiated or
open as of October 1, 2000, and closed as of August 8, 2008.
[235] According to Special Litigation Section officials, since 2003 the
Section's closed matter files are to include a closure memo for all
closed pre-investigations and investigations. Prior to 2003, closure
memorandums were cursory forms. Our review of a random selection of
matter files closed between 2001 and 2007, while limited, suggested
that this policy was being implemented. We found closing memorandums or
explanations of why matters were closed in 12 of the 14 files reviewed
for matters initiated from fiscal years 2004 through 2007.
[236] An additional case identified in ICM indicated that the Section's
role was investigator. According to Section officials, the Section's
role was investigator because the defendant in the case was under a
permanent injunction and if the defendant violated the injunction, the
Special Litigation Section would return to court as it had done in the
past. The case involved FACE and access to a reproductive health
clinic.
[237] These data included cases on which the Special Litigation Section
staff worked from fiscal years 2001 through fiscal year 2007, including
cases in which the Section filed complaints during the period, cases in
which the Section was a defendant or defendant intervener, and cases
that remained open during the 7-year period.
[238] U.S. Department of Justice, Office of the Inspector General, An
Investigation of Allegations of Politicized Hiring and Other Improper
Personnel Actions in the Civil Rights Division. (Washington, D.C.: July
2, 2008), released publicly January 13, 2009.
[End of section]
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