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S. HRG. 112–719 

CIVIL RIGHTS DIVISION OVERSIGHT 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

SEPTEMBER 13, 2011 

Serial No. J–112–40 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 
(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coons, Hon. Christopher A., a U.S. Senator from the State of Delaware ........... 1 

prepared statement .......................................................................................... 52 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 3 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 58 

WITNESSES 

Perez, Thomas E., Assistant Attorney General, Civil Rights Division, U.S. 

Department of Justice, Washington, DC ............................................................ 5 

QUESTIONS AND ANSWERS 

Responses of Thomas E. Perez to questions submitted by Senators Grassley, 

Cornyn and Sessions ............................................................................................ 28 

SUBMISSIONS FOR THE RECORD 

Delawareonline.com: 

September 7, 2011, article ............................................................................... 54 

September 5, 2011, article ............................................................................... 56 

Perez, Thomas E., Assistant Attorney General, Civil Rights Division, U.S. 

Department of Justice, Washington, DC, statement ......................................... 60 

U.S. Department of Justice, Ronald Weich, Assistant Attorney General, 

Washington, DC: 

September 20, 2011, letter to Hon. Joseph R. Biden, Jr., and attachment . 77 

September 20, 2011, duplicate letter to Hon. John A. Boehner not printed 

U.S. District Court for the Eastern District of Missouri, 

Plantiff v. Midwest Bank ................................................................................. 100 

Settlement Agreement ..................................................................................... 113 

Wisconsin DOT, July 1, 2011, Memo ..................................................................... 134 

(1) 

CIVIL RIGHTS DIVISION OVERSIGHT 

TUESDAY, SEPTEMBER 13, 2011 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 10:05 a.m., in room 

SD-226, Dirksen Senate Office Building, Hon. Christopher A. 

Coons, presiding. 

Present: Senators Coons, Durbin, Klobuchar, Franken, and 

Grassley. 

OPENING STATEMENT OF HON. CHRISTOPHER A. COONS, A 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator COONS. Good morning. It is my honor to call to order 

this hearing of the Senate Committee on the Judiciary. I would like 

to thank Chairman Leahy for the opportunity to chair today’s oversight hearing. We will hear today from Hon. Thomas Perez, Assistant Attorney General for the Civil Rights Division of the United 

States Department of Justice. 

It has been almost a year and a half since this Committee last 

conducted oversight of the Civil Rights Division, and among all the 

important work done by the Department of Justice, the work of 

this Division is uniquely, in my view, important. The Civil Rights 

Division is charged with enforcing our laws, providing the rights of 

all citizens, regardless of race, creed, religion, sex, or national origin, in order that they might more fully participate in our National 

civic life. It underpins our entire way of life as a Nation because 

where civil rights are not protected, equality, liberty, and the very 

pursuit of happiness are denied. 

As we all know, the Preamble of the United States Constitution, 

our National charter, states that the first two purposes of our Government are to form a more perfect union and to ensure justice, 

and I think there is no better shorthand for the core mission of the 

Civil Rights Division of the Department of Justice. 

The Civil Rights Division is responsible for ensuring voting 

rights for every American. It protects equal access to housing, lending, and employment, regardless of sex, race, religion, or national 

origin. It safeguards members of our armed services from any discrimination based on the hardships that accompany active duty 

and deployment. It provides that disabled Americans are not precluded from participation in civic life, from the marketplace or the 

workplace. And today, since the passage of the Matthew Shepard 

Hate Crime Prevention Act of 2009, the Civil Rights Division also 

protects the rights of gay, lesbian, and transgendered Americans to 
2 

participate as full citizens in our country without fear of violence 

born of bigotry. 

And so it should. Equality for all is supposed to mean equality 

for all. 

In my view, the struggle for civil rights for all Americans is a 

critical part of our National story. The 13th, 14th, and 15th 

Amendments established formal equality for all Americans by 

1870, but as we know, real-world equality sadly lagged far behind. 

It was not until the Civil Rights Act of 1964 and the Voting Rights 

Act of 1965 that Congress finally truly took up its charge to turn 

the promise of those Reconstruction constitutional amendments 

into real progress for African-Americans and, frankly, for Americans of many different backgrounds. And I will remind all today 

that it was truly through bipartisan efforts by both Republicans 

and Democrats that those two signature civil rights acts were 

passed and that both parties have a long and proud tradition of 

being actively concerned about and engaged in the enforcement of 

civil rights for our citizens. 

Since that time, we have made great progress even as we have 

expanded the mission of the civil rights laws beyond State action 

and into the broader economic sphere. Over the past few weeks, 

however, people in my home State of Delaware received a sad reminder that the battle against the sort of overt racism that marred 

this country in its past, a battle that many Americans hope and believe we have permanently won, still rages on at times. Over the 

Labor Day weekend, in my home town of Newark, Delaware, two 

teens placed a cross which read, ‘‘Burn in hell,’’ among other truly 

offensive racial epithets, on the lawn of an African-American family, the Parsons. Although police in New Castle County were quickly able to arrest two young suspects, the homeowner, with whom 

I spoke at length, was understandably not comforted by their arrest. He said, ‘‘I do not want this to continue to happen, especially 

in this neighborhood, in this State, or anywhere else. I want hate 

to go away.’’ 

Like that homeowner, Wayne Parson, I was caught off guard, 

deeply concerned and offended that this would happen in my home 

community. Incidents like these are not supposed to happen in our 

Nation today, but I was reminded that the vast majority, the overwhelming majority of our country has moved well beyond these 

senseless, careless, and criminal acts and attitudes, in large part 

due to the vigilant work of those who have come before us to testify 

about the great work of the Civil Rights Division. 

So, without objection, if I might, I would like to enter into the 

record articles from the Wilmington News Journal from September 

5th and September 7th describing these incidents in Newark. 

Thank you. 

[The articles appears as a submission for the record.] 

Senator COONS. Although the perpetrators have been caught, we 

cannot let that be the end of this particular tragic incident, especially in the area of hate crimes. I believe we need community leaders to stand up and say that these abhorrent acts do not represent 

us and they will not be tolerated and that is, in some critical, essential reason, why we are here today. Congress has an important 

role to play in oversight of all executive branch activities. But when 
3 

it comes to civil rights, it is critical that both branches are on the 

same page, that we are working together hand in hand to fight our 

way toward that more perfect union. So we will work on eradicating discrimination from our laws, and we need you, Mr. Perez, 

and all those who serve with you—the professionals and the attorneys, the support personnel, and everybody, the dedicated professionals in the Civil Rights Division—to work on stopping it in our 

communities. 

I look forward to hearing from Mr. Perez regarding the work he 

has done at the Civil Rights Division since being confirmed to that 

office almost 2 years ago. Mr. Perez inherited a Division that had 

undergone some significant upheaval, and I hope to hear Mr. Perez 

has moved toward hiring procedures strictly on the basis of merit. 

I hope to hear about the work of the Division in fighting some of 

the more insidious forms of institutional discrimination through 

disparate impact cases brought under Title VII of the Civil Rights 

Act. And I look forward to hearing what the Division has done to 

extend the promise of equality to all Americans regardless of race 

or sex, but also regardless of sexual orientation or gender identity. 

Finally, I want to hear about and spend some time examining 

what the Division is doing to make certain that our servicemen and 

-women, the people who risk their lives to defend our Nation and 

way of life, have the ability to vote without burden and are not discriminated against in housing, lending, employment, or elsewhere. 

I will now yield to the distinguished Ranking Member, Senator 

Grassley, for his statement. 

Senator Grassley. 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. I really appreciate oversight hearings because 

I do not believe Congress does enough oversight. The Civil Rights 

Division is well deserving of oversight. I think the Division has 

been pushing the envelope very far, and many of its decisions are 

questionable. The Division has brought numerous actions for alleged discrimination in lending. It has brought red-lining actions 

and anti-red-lining actions. It has used disparate impact analysis 

in questionable places and against economic reality. As a result, it 

appears to be pushing banks to engage in some of the conduct that 

led to the mortgage bubble and the subsequent financial crisis. And 

there is nothing wrong—in fact, we expect the Division to push 

hard where there is outright discrimination. But when a bank cannot make a judgment between a sound loan and a loan that is 

risky, it seems to me we are pushing ourselves to where we were 

in the 1990s and 2000s that brought us to the financial collapse. 

And when will Government learn from past bad policies? 

In addition, the Division has taken extreme positions in religious 

employment cases, seeking to make school districts accommodate 

teachers’ very disruptive and unreasonable demands for time off. It 

has brought action against school districts based on reading the 

term ‘‘sex’’ to mean ‘‘sexual orientation.’’ It has threatened universities with disability discrimination charges if they allow students 

to use Kindle if only sighted students could use that product. It has 

refused in the New Black Panther Party case to prosecute African- 
4 

Americans who allegedly engaged in voter intimidation. Sworn testimony exists that the Division believes that such laws apply only 

when African-Americans are victims and that it has no interest in 

enforcing the provisions of the motor-voter law to ensure that voting registration lists regularly remove ineligible voters. 

Despite OPR’s report, the Department has refused to turn over 

many relevant documents on this subject to the House based only 

on bogus generalized confidentiality theory, and it is odd to me because transparency brings accountability, and why does the Division not want to be transparent and accountable? 

The Assistant Attorney General has stated that the Division has 

eliminated politics in hiring. However, based on organizational affiliations listed on new hires’ resumes—and this was published not 

only in blogs but in the New York Times—it has hired 96 liberals 

and 0 conservatives. The Division responded recently to a letter of 

mine on this subject by claiming that its decisions are made without regard to politics and based solely upon civil rights experience. 

It would be more accurate to state that, to the Division, civil rights 

experience is limited to experience with liberal advocacy groups. 

And I have asked for the Inspector General to investigate that. 

It is not surprising that the Division has been subject to two 

oversight hearings in recent months. The House Judiciary Committee had an oversight hearing in June. But what is more interesting about these oversight hearings is that Republicans did not 

request today’s hearing, and it follows a Subcommittee hearing last 

week on State laws that have been passed to reduce voter fraud. 

These laws were also discussed by Democrats at the House oversight hearing. Viewing these State laws in context may be useful 

to understanding today’s hearing. 

Two years ago, we had the Northwest Austin Municipal Utility 

District v. Holder. The Supreme Court decided a case under Section 

5 of the Voting Rights Act. Under Section 5 some States and subdivisions must obtain preclearance from the Department of Justice 

before any changes in voting, no matter how innocuous, can go into 

effect. In the Northwest Austin case, the Court, in keeping with judicial restraint, decided the case on statutory grounds rather than 

on reaching the alternative argument that Section 5 was unconstitutional. 

Nevertheless, Chief Justice Roberts’ opinion for eight Justices 

contained six remarkable paragraphs. He stated that a number of 

Justices, including sitting Justices, have expressed serious misgivings concerning the constitutionality of Section 5. He said that 

past successes of statute is insufficient to justify its continuing constitutionality. He wrote that the statute differentiates between 

States in violation of their equal sovereignty and that the data underlying the disparate treatment of the States is more than 35 

years old. And the ninth Justice, Justice Thomas, was prepared 

right then and there to say that Section 5 was unconstitutional. 

We hear much in our Supreme Court confirmation hearings 

about the law being backward-looking about precedent and stare 

decisis. But the law was not these things to Justice Holmes. He 

said that the law was nothing more than a prediction of what 

courts will do. By that measure, after Northwest Austin it is an interesting question what the law is regarding the constitutionality 
5 

of Section 5. Until the Supreme Court has another Section 5 case, 

we will not know for sure. And when I have voted for the Civil 

Rights Act’s extensions at least three times since I have been in 

the Congress, obviously I felt that Section 5 was constitutional. 

At the same time that the Obama Civil Rights Division is bringing a number of questionable civil rights cases, it has filed exactly 

zero redistricting cases. It has backed away from a number of Section 5 cases when States have objected to possible enforcement action. It has filed numerous procedural motions on pending cases in 

which the constitutionality of Section 5 is at issue, which, of course, 

have the effect of slowing down litigation. Although I understand 

that all Senate Democrats signed a letter to the Attorney General 

demanding that the Department conduct a national investigation 

into State voter identification laws, this has not occurred. And, of 

course, that is all very interesting. 

Of course, so long as there is no court ruling, the 2012 redistricting and preclearance will occur under current law. Mr. Perez 

says that the Department is ‘‘vigorously defending the constitutionality of Section 5 in the courts.’’ More accurately, the Department, like St. Augustine, is vigorously defending Section 5 but not 

yet. 

I thank you for the hearing. 

Senator COONS. Thank you, Senator Grassley. 

Mr. Perez, before we proceed, it is the custom of this Committee 

that witnesses be administered the oath. Please stand, if you 

would, raise your right hand, and repeat after me: I do solemnly 

swear that the testimony you are about to give to the Committee 

will be the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mr. PEREZ. I do. 

Senator COONS. Thank you. Let the record show the witness has 

taken the oath. Please be seated. 

It is my honor now to introduce Mr. Thomas Perez, the Assistant 

Attorney General for the Civil Rights Division of the United States 

Department of Justice. Mr. Perez is a lifelong veteran of public 

service. Prior to his nomination, he served as the Secretary of 

Maryland’s Department of Labor, Licensing, and Regulation, where 

he was a principal architect of a sweeping reform package to address that State’s foreclosure crisis. Prior to that, in 2002 Mr. 

Perez was the first Latino elected to the Montgomery County Council, where he served until 2006. Earlier in his career, Mr. Perez 

spent 12 years in Federal public service, the majority of it as a career attorney in the Civil Rights Division. Mr. Perez received his 

B.A. from Brown University in 1983, a master’s of public policy 

from the Kennedy School at Harvard in 1987, and he holds a J.D. 

from Harvard Law School as well. 

Mr. Perez, please proceed, if you would, with your statement. 

STATEMENT OF HON. THOMAS E. PEREZ, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT 

OF JUSTICE, WASHINGTON, DC 

Mr. PEREZ. Thank you, Mr. Chairman, and thank you, Ranking 

Member Grassley. It is an honor to be back in front of this Committee. Good morning, Senator Franken, and thank you for coming 
6 

here today, and thanks to all of you for your interest in these 

issues. It is always an honor to be back in the place where I had 

the privilege of serving as a staffer to Senator Kennedy a number 

of years back. 

When I last had the opportunity to appear before you, just 6 

months after being sworn in, I spoke about our commitment to restoring and transforming the Civil Rights Division. I promised to 

revitalize the Division to boost morale, return to merit-based hiring, and to ensure aggressive, even-handed, and independent enforcement of all of the laws within our jurisdiction. 

Almost 2 years into my tenure, we have committed considerable 

energy to these efforts, and I am happy to report we have had 

great success thanks to the dedicated career professionals in the 

Civil Rights Division. We filed a record number of criminal civil 

rights cases in fiscal year 2009, and then we topped that record a 

year later. These cases include the largest human-trafficking case 

in Department history, charging eight defendants in a scheme to 

force 600 Thai workers to labor on farms across the country. These 

cases also include the most high profile police misconduct case 

since the Rodney King incident. When we secured the convictions 

of five New Orleans police officers for their role in the shooting on 

the Danziger Bridge in the wake of Hurricane Katrina and the subsequent cover-up. Five additional officers pled guilty in connection 

to that case. 

We have 17 open pattern or practice investigations of law enforcement agencies, more than at any time in our Division’s history, including our extensive and comprehensive reviews of the 

New Orleans Police Department, and last week the report we 

issued in Puerto Rico. We are working with New Orleans, Puerto 

Rico, and others to develop blueprints for sustainable reform that 

will achieve three goals: reduce crime, ensure respect for the Constitution, and restore public confidence in the police. 

On the housing front, we reached the largest-ever settlement to 

resolve claims of rental discrimination in a case involving discrimination against African-American and Latino renters. We obtained 

the largest ever amount of monetary relief in a Justice Department 

fair lending settlement to resolve claims that two subsidiaries of 

AIG discriminated against African-American borrowers. Our new 

Fair Lending Unit this year has filed more lawsuits under the 

Equal Credit Opportunity Act than in any year in at least a decade, and every settlement we reach in this case specifically provides a bank is not required to issue an unsafe or unsound loan. 

That is a provision in every decree that we enter into. 

In the last full fiscal year, the Division obtained consent decrees 

or favorable judgments in 42 fair housing cases, including 26 with 

pattern or practice claims, the most such settlements in 14 years. 

Our disability rights practice has been taken to new heights. We 

ramped up enforcement of the Supreme Court’s landmark 

Olmstead decision, which stands for the proposition that the unnecessary institutionalization of people with disabilities is a form of 

discrimination. We have joined or initiated litigation or issued findings letters to assure community-based services for persons with 

disabilities in more than 35 matters in 20 States. We reached a 

landmark settlement in Georgia and in Delaware, where in Dela-
7 

ware we are reforming, with the wonderful partnership of the 

State, the community mental health system. Comparatively, during 

the previous administration, one amicus brief was filed in an 

Olmstead case. 

We reached the largest-ever settlement under Title III of the 

ADA, which applies to places of public accommodation. Under this 

agreement Wells Fargo will ensure equal access to services for people with disabilities, including hearing impairments, including vision impairments. 

We have an active docket of cases on behalf of servicemembers. 

We reached the largest-ever settlement under the Servicemember 

Civil Relief Act, ensuring that Bank of America and Countrywide 

will pay $20 million to resolve allegations that they illegally foreclosed upon servicemembers without court orders. In the first 21⁄2

years of the administration, we have filed more cases under the 

Uniform Services Employment and Re-employment Act, USERA, 

than was filed in the entire 4 years of the preceding administration. 

In 2010, we completed an extensive program of enforcement of 

the MOVE Act to ensure access to the ballot for servicemembers 

and overseas citizens, obtaining agreements in 14 States or territories, the most enforcement actions under a single statute ever 

taken by the Voting Section leading up to a Federal election. 

We have doubled the rate of amicus briefs filed in Federal courts 

of appeals. We have opened up 20 civil investigations under the 

Freedom of Access to Clinic Entrances Act and filed 8 civil complaints under the Act compared to 1 civil FACE case in the 8 years 

of the preceding administration. 

We have received nearly 4,000 submissions for review under Section 5 of the Voting Rights Act, including more than 500 redistricting plans. 

We filed the first two lawsuits in 7 years under Section 7 of the 

NVRA to ensure that citizens have an ample opportunity to register to vote, as required by Federal law. The Voting Section is involved in 27 new cases this fiscal year, including affirmative and 

defensive cases as well as amicus participation, the most in any fiscal year in the last decade. This includes nine bailout cases filed 

by jurisdictions seeking to be removed from Section 5 coverage, the 

most bailout actions ever in a single year. 

I am exceedingly proud of these considerable accomplishments, 

and I could go on for another half an hour, which I will not. And 

I am exceedingly grateful to the dedicated career staff in the Division. But more important than the numbers are the people who 

have suffered from violations of civil rights laws and who have 

found some measure of justice in our work. I met with the victim 

in the recent hate crimes case in New Mexico, a 22-year-old man 

of Navajo descent, a person with a severe developmental disability. 

He was taken away by three defendants, three idiots. They lured 

him to their home. They literally took a hanger. They ignited the 

hanger on their oven, and they put a swastika on his arm. Every 

single day he wakes up he will remember what happened to him. 

Take the six women in Detroit who were subjected to severe and 

pervasive sexual harassment by a maintenance worker in their 

apartment, including in one woman’s case being required to have 
8 

sex with him in exchange for keys to the apartment. We took that 

case to trial because the property owner knew about it and did 

nothing, and a jury awarded monetary damages to the victims. 

Finally, take the nearly 180 members of the armed forces and 

their families who lost their homes because mortgage servicers, in 

violation of Federal law, foreclosed upon their home without first 

obtaining a court order. When people are serving our Nation 

abroad, we need to have their back at home, and that is precisely 

what they are doing. 

These victims and so many others, whether it is our bullying 

work, our work in Muslim outreach, these are the reasons why my 

colleagues and I get out of bed each morning. It is a remarkable 

honor to serve in this job every day and work with the dedicated 

career attorneys and professionals and support staff in the Division 

to protect and defend the rights guaranteed by some of our Nation’s most cherished laws. We take very seriously our responsibility to carry the torch of the great civil rights pioneers who 

fought for those laws, and we honor their legacy by enforcing these 

laws aggressively and even-handedly. 

I welcome the opportunity to tell you more about our work, and 

I look forward to answering any and all questions that you have 

here today. 

Thank you very much, Mr. Chairman, for this opportunity to 

speak. 

[The prepared statement of Mr. Perez appears as a submission 

for the record.] 

Senator COONS. Thank you very much, Mr. Perez. We are now 

going to begin 5-minute rounds of questions, beginning with myself. 

I would like to talk first, if I could, about your actions to protect 

the rights of service people, which you referenced at the end of your 

statement. I was struck by how active and engaged the Civil Rights 

Division has been around the 180 servicemembers who were inappropriately foreclosed upon. I would also be interested in hearing 

what actions you have taken to enforce the so-called MOVE Act, or 

the Military and Overseas Voter Empowerment Act of 2009, which 

acts to ensure that those deployed have access to ballots at least 

45 days before a primary or general election. Twelve States, as I 

understand, have failed to fully comply, and I would be interested 

in how the Civil Rights Division is protecting the rights of servicemen and -women under the MOVE Act. And then, second, as someone who was long active with the National Guard and Reserve in 

my community, it is the most sort of pressing concern many of 

them as to whether or not when they return they will be able to 

rely on the promise of employment that USERA, also under your 

Division in terms of enforcement jurisdiction, promises them. What 

sort of enforcement activities have you taken? In your opening 

statement, you suggested a very high tempo of enforcement activity, so I would like to start with some discussion of both of those, 

if I might. 

Mr. PEREZ. Thank you for that question. We have a very active 

program of enforcement of a wide range of civil rights laws on behalf of servicemembers. In the USERA context, as I said, we dramatically stepped up the pace of our enforcement. We do that in 

concert with the Department of Labor, and the Department of 
9 

Labor has been a very important partner. But we have already exceeded the number of cases brought from the preceding administration, so we brought more cases in 21⁄2 years than were done in the 

preceding 4 years. U.S. Attorneys are also very important partners 

in these cases. 

I am also going out to military bases to have outreach conversations. I will be in Fort Knox in a couple weeks talking about 

USERA, talking about the SCRA, because one of the things I have 

learned in this is that we need to prepare servicemembers before 

they deploy. Many of our cases involve national guardsmen and 

-women who are called up to active duty service, and we are really 

working harder to make sure there is that checklist of cases. 

The SCRA is a developing area of the law. We have been working 

hard to make sure that there is maximum opportunity for victims 

of these consumer protection violations to have access to courts, 

and we have been very successful in that regard. 

And, finally, in the MOVE Act, we had an unprecedented year 

of work in 2010. We reached either consent decrees or MOUs or 

other agreements with 14 different jurisdictions. And in the aftermath of that, we are continuing to work with them. A number of 

States have moved up their primary dates to address the fact that 

if you have a September primary date you may run into compliance 

problems. Other States we have actually extended consent decrees. 

And, in addition, we have done a lot of work thinking about the 

lessons of 2010, and we have actually a very exciting package of 

reforms. I look forward to working with a bipartisan group of Senators—Senator Cornyn and Senator Schumer and yourself and others were very involved in this. I would like to eliminate, for instance—there is a waiver provision in the MOVE Act. We believe 

that that provision should be eliminated. Senator Cornyn had suggested a private right of action. We agree with him. We think that 

that should be added. 

So we have a number of ideas about how to enhance the capacity, 

and I think they are ideas that will engender bipartisan support. 

Senator COONS. Thank you, Mr. Perez. In addition to the MOVE 

Act, last Congress also passed the Matthew Shepard hate crimes 

law which made two crucial updates to the hate crimes definition: 

first, expanding violent acts covered by the Act by removing a requirement that it be connected to the victim’s exercise of a federally protected right; and, second, expanded motivation for hate 

crimes to include crimes against gay, lesbian, and transgendered 

persons. 

Can you help me understand how the passage of that Act has 

changed the Division’s enforcement of hate crimes both in terms of 

prosecution and, as you mentioned, your vigorous and effective, I 

think, outreach to law enforcement and then to the broader LGBT 

community? 

Mr. PEREZ. It has transformed our ability to combat hate crimes 

in remarkable ways. It has removed unnecessary jurisdictional barriers in our racial violence and religious violence cases. I came to 

the Division in 1989 as a career prosecutor doing hate crimes cases, 

had a number of cases that were clearly hate crimes, but we were 

not able to prosecute them under Federal law because of the unnec-
10 

essary barrier that was eliminated in the Matthew Shepard/James 

Byrd, Jr. Act. 

In addition, there is nothing worse—I saw a lot of what I call 

‘‘equal opportunity bigots.’’ They hated African-Americans. They 

hated Jews. They hated people who were gay. They hated people 

who were Muslim. They hated, in short, people who were different 

from them in any way, shape, or form. And it was frustrating beyond all get-out to not have the ability to prosecute gay-bashing incidents, for instance. 

And then one of the really remarkably helpful ways that this has 

transformed our program is that it has facilitated additional cooperation with State and local authorities. We have trained over 

4,000 local law enforcement officers. I have participated personally 

in many of them. Our message is this: This is not a law simply for 

the Feds. This is everybody’s law. 

When the Matthew Shepard incident occurred, we had no jurisdiction, and, therefore, the Federal Government was unable to assist the jurisdiction in the investigation and prosecution of that 

case. It almost bankrupted the jurisdiction, Senator, and as a result, with this law we have renewed collaboration and cooperation. 

We are working together with the authorities in Newark on the 

hate crime case that you mentioned. I would predict that that case 

will be prosecuted locally, and that is in the best interest of the 

case. That always is the question presented. I do not measure the 

success of the Matthew Shepard Act by the number of Federal 

cases that we bring. I measure the Matthew Shepard Act by the 

quality of justice, writ large, whether it is Federal, State, local, 

whether it is preventive. 

We had a case in Arkansas. Two weeks after our training, we get 

a call from a trooper who identified a case that was a hate crimes 

case, and it ended up being the first case that went to trial. He 

called us up and said, ‘‘You know, I had this situation. I just went 

to this training. I think it is a hate crime.’’ We ended up with a 

remarkable collaboration, and the jury ended up, after a 59-minute 

deliberation, convicting those defendants in the first jury trial 

under this statute. So it has been transformational. 

Senator COONS. Thank you. Thank you for your testimony and 

thank you for your great work. 

Senator Grassley. 

Senator GRASSLEY. Mr. Perez—— 

Mr. PEREZ. Good morning, Senator. 

Senator GRASSLEY. Thank you. The Civil Rights Division would 

not preclear under Section 5 the request of the city of Kinston, 

North Carolina, that it could not change from partisan to nonpartisan elections. The request was approved by a referendum of 

city voters, including in most of the African-American precincts. 

The Division argued that the loss of Democratic partisan affiliation 

on the ballot would eliminate a cue that fostered cross-racial voting. It noted that cross-racial voting was more common in closed 

primaries than in partisan general elections as a basis for its decision, which, of course, has nothing to do with nonpartisan voting. 

Overall, the Division’s ruling seems to have more to do with protecting Democrats than protecting the voting rights of AfricanAmericans. 
11 

What is your view of whether or not nonpartisan elections conflict with Section 5? And would you preclear future requests for 

nonpartisan elections? 

Mr. PEREZ. The analysis, Senator, under Section 5 is twofold: the 

covered jurisdiction—and there are 16 jurisdictions, 16 States covered either in whole or in part. They bear the burden of showing 

that a proposed change—that there is an absence of discriminatory 

purpose and an absence of retrogressive effect or discriminatory effect. That burden is on the covered jurisdiction to demonstrate 

that. 

In the Kinston case that you mentioned, there was not a purpose 

objection raised, but the conclusion reached was that the proposed 

change had a retrogressive effect. And as a result, an objection was 

lodged. That matter is now in litigation so I cannot comment further, and it is actively in litigation right now. 

I can say as it relates to your question about nonpartisan elections, every submission will be fact specific, and we will look at it 

under the analysis that I outlined. Was the change motivated by 

discriminatory purpose or does it have a retrogressive impact? That 

will be the legal analysis that will govern every submission that we 

receive, and whether that is nonpartisan elections, whether it is 

partisan elections, that is the analysis. 

Senator GRASSLEY. On another point, two whistleblowers testified under oath that the Civil Rights Division supervisors scaled 

back prosecution of members of, officers of, and the New Black 

Panther Party itself because the supervisors were not interested in 

enforcing the Voting Rights Act in a race-neutral way. Instead, the 

Division would seek equality only for members of ethnic and racial 

minorities. 

The whistleblowers also testified—and, remember, under oath— 

that the Civil Rights Division supervisors indicated that they 

would not bring any cases under Section 8 of the motor-voter law 

which requires States to keep voting lists current by removing the 

names of the dead and those who have moved. 

Chairman Smith of the House Judiciary Committee received assurances that the Department would provide him with all relevant 

documents in this matter, but the Department has held back many 

documents based upon general ‘‘confidentiality’’ objections. And, of 

course, as I said in my statement, I do not think that is legitimate 

because I think the Department ought to be transparent. With 

transparency you get accountability. 

Would you commit to providing all documents on this matter to 

Chairman Smith in short order and to drop all objections based 

upon supposed confidentiality? 

Mr. PEREZ. Senator, we have provided hundreds if not thousands 

of documents to both the U.S. Civil Rights Commission, to Chairman Smith, and to others. I will also note in connection with the 

New Black Panther Party case that there was an extensive investigation by the Office of Professional Responsibility. They found no 

evidence—they did not find scant evidence or insufficient evidence. 

They found no evidence that decisionmakers were influenced by 

race, politics, or any other improper factor. They found that the decision to file the case and the decision to dismiss certain claims 

were based on a good-faith assessment of the facts and the law. It 
12 

was a very extensive investigation, and the report was provided to, 

I believe, both committees of—I know it was provided to the House 

Committee, and I believe it exists here. 

You mentioned Section 8 of the Voting Rights Act. I said before 

and I reiterate our commitment to the enforcement, the even-handed enforcement of all the laws. We actually have, I believe it is, 

nine current investigations under Section 8. The two people who 

lead those investigations, the career attorneys, are the same career 

attorneys that have been leading those types of investigations for 

a number of years. And I deliberately wanted that to be the case 

so that there would be continuity in our enforcement. And my instruction to them is the same instruction I give to every attorney 

in the Division: Follow the facts where the facts lead you. If the 

facts support prosecution, whether it is our civil jurisdiction or our 

criminal jurisdiction, let us go for it. If the facts do not support it, 

then we close the matter. And that is the commitment you have 

from me, Senator. 

Senator GRASSLEY. Well, I have to remind you, though, that everything you addressed would be accurate, but it is the documents 

that have not been produced that I was asking my question about, 

the documents that have not been produced. In other words—— 

Mr. PEREZ. Senator, I know that I—I personally testified before 

the Civil Rights Commission. We offered up—the Department 

months ago offered to have the deputy that oversees the Voting 

Section be interviewed by the House Members. We have provided 

quite literally hundreds of documents. 

Senator GRASSLEY. You are saying then to me—and I will stop 

with this. But you are saying to me that you produced every document that the House has asked for? 

Mr. PEREZ. I do not know that that is accurate, sir, but I do 

know that we have been incredibly responsive, in my opinion, to 

the requests of the House. 

Senator COONS. Thank you, Senator Grassley. 

Senator Franken. 

Senator FRANKEN. Thank you, Mr. Chairman. 

Mr. Perez, my understanding is that LGBT persons are protected 

under the Hate Crimes Act, as you talked about in your answers 

to Chairman Coons’ questions, and to the same extent as other 

groups like minorities and women. So this means that we need to 

protect LGBT Americans in the same way we protect other vulnerable groups. 

Following that principle, doesn’t it follow that we should protect 

LGBT students from bullying to the same extent that we protect 

other groups? 

Mr. PEREZ. We have a number of cases, Senator, involving bullying—actually, bullying of all types, bullying of African-American 

students, bullying—we had a case in the Twin Cities area involving 

the bullying of Somali students who were told, ‘‘Go home, you terrorists.’’ This is their home. They were born here. And the school 

district failed to take appropriate action. The bullying of Asian students in South Philadelphia High School, and the bullying of kids 

who are LGBT is probably the largest growth area in our docket. 

We reached a settlement that we did with the Office for Civil 

Rights at the Department of Education arising out of a case in 
13 

California, the tragic suicide of a boy named Seth Walsh. We did 

a case in Mohawk County, New York, under our Title IX authority. 

We have an investigation, obviously, in your neck of the woods in 

a matter, and this is about safety. Whether it is kids who are gay, 

whether it is kids who are Muslim, whether it is kids who speak 

English with an accent, whether it is kids with disabilities, as we 

had in Tennessee where we had a case involving the bullying of 

kids with disabilities, this is an emerging growth area, I regret to 

say. That is why the President had a day-long summit on bullying. 

That is why we have taken such an aggressive role. 

And I very much appreciate your leadership in this area. I very 

much support the goals behind your efforts in introducing the Student Non-Discrimination Act. The kids are dying. Kids are being 

brutally assaulted. Kids are scared. 

I was in Tennessee meeting with Muslim leaders, and they were 

telling me that their children do not want to go to school in the 

morning because they are getting beaten up for no good reason. 

And that is why we have such an active program of engagement. 

Senator FRANKEN. Well, I am glad to hear you say all that because, in Minnesota, in Anoka and Hennepin County, the largest 

school district in Minnesota, it was sued by the National Center for 

Lesbian Rights on behalf of a 15-year-old student who was a victim 

of harassment. The student, who I will call ‘‘E.R.,’’ suffered physical 

assault and pervasive bullying based solely on her sexual orientation and appearance. And I understand that the Department of 

Justice and the Department of Education are also investigating the 

district following claims of pervasive harassment. 

Bullying has gained national attention recently following a rash 

of student suicides linked to harassment at school. You mentioned 

the California case. Sadly, harassment of students for gender and 

sexual identity is frequent and disturbing, and while the Matthew 

Shepard Hate Crimes Act provides some protection against sexual 

orientation-based violence, it is clearly not doing enough for LGBT 

students. So thank you for mentioning my Student Non-Discrimination Act, and I then assume that you do agree that we need an 

explicit ban against discrimination in public schools based on sexual orientation. 

Mr. PEREZ. Again, our work that I have just described in the 

LGBT context, we proceed under a sex discrimination theory. It is 

well settled in the courts that gender nonconformity is one form of 

sex discrimination under Federal law, and so we are proceeding 

under that context. And that is in part because sexual orientation 

is not part of Title IX. 

Senator FRANKEN. Right. 

Mr. PEREZ. It is not part of Title IV. My first hearing here, where 

I had the honor of having a conversation with you, was when we 

testified about ENDA. It is not part of Title VII yet. 

Senator FRANKEN. Thank you. 

Thank you, Mr. Chairman. 

Senator COONS. Senator Klobuchar. 

Senator KLOBUCHAR. Thank you very much. Thank you for your 

good work. 

Mr. PEREZ. Thank you. 
14 

Senator KLOBUCHAR. I first just want to get your perspective 

over time as someone that has worked in this area for a long time, 

just where you see since early days when you were involved in civil 

rights issues, what is the changing level of discrimination. You 

were just talking with Senator Franken about what has been going 

on in our State with teenagers who have been bullied because they 

are gay or what you have heard about the Somali community also 

in our State. So what do you see as the national trends here with 

discrimination? I am certain that some of the methods may have 

changed with the Internet and those kinds of things, but what do 

you see is the status? Has there been improvement or not? 

Mr. PEREZ. I think we have made a lot of progress as a Nation 

in understanding and coming together that our diversity is indeed 

our greatest strength. But one of the questions I was asked, Senator, when I first came on the job is, ‘‘What are your first impressions? ’’ And one of my first impressions, quite honestly, was that 

the more things change, the more they stay the same. I prosecuted 

hate crimes for the better part of a decade. I continue to see all too 

many situations where the names have changed, the locations have 

changed, but the fact patterns remain all too frequent and consistent. 

So we have these what I call ‘‘timeless civil rights challenges’’ in 

the education context, school district cases where a school district 

in Monroe, Louisiana, had a high school—one was entirely segregated; the other was 57–43, 57 percent African-American, 43 percent white. In the integrated school, they had 85 gifted and talented offerings. In the segregated school they had five. Timeless 

civil rights challenges. 

But then we have these emerging challenges. The head wind of 

intolerance that we see in our hate crimes work focused in the 

Muslim community, in the Arab, Sikh, and South Asian community. We have a growing docket of cases there. 

Our docket of zoning cases under the bipartisan Religious Liberty and Land Use of Institutionalized Persons Act which was 

passed—it was a Senator Hatch and Senator Kennedy initiative of 

about 10 years ago. The vast majority of our cases involving Muslims have been within the last 16 months. We have had 16 cases 

in the zoning context in the last 16 months that we have opened. 

So we have these timeless challenges, but then we have the 

emerging challenges in the bullying context. We have the emerging 

challenges in this head wind of intolerance that often manifests 

itself in senseless acts of violence because of who someone worships 

or who someone sleeps with. And, frankly, business is booming, I 

regret to say. 

Senator KLOBUCHAR. Okay. With the limited—you know, we are 

all having issues with resources, and we want to make sure you 

are allowed to continue to do your work there. Where do you 

prioritize the work that you do? 

Mr. PEREZ. Well, we have been focused on trying to increase enforcement across the board. We have paid particular focus in the 

area of our criminal enforcement, especially our hate crimes enforcement, our work in terms of our new Fair Lending Unit, our 

work in the area of disability rights. And, again, these emerging 
15 

areas in the bullying context and in our Muslim engagement have 

been significant. 

One way we are doing more with less is that we have taken partnership to new levels. Our U.S. Attorneys are remarkably important partners. The U.S. Attorney in Minnesota, Todd Jones, has 

been a phenomenal partner in both our civil and criminal enforcement docket. We are working with the Department of Labor better 

than ever, Mr. Chairman, on our USERA work. The Department of 

Housing and Urban Development, we are working very hard with 

them. 

The bullying case we did in South Philadelphia we did with the 

local human rights agency in addition to the U.S. Attorney’s Office. 

So necessity is the parent of ingenuity, and I think ingenuity 

abounds in our work. 

Senator KLOBUCHAR. Very good. Your testimony mentions that 

the Department has issued the first major revision of its rules for 

accessibility under the ADA. Minnesota was one of the first States 

that did a lot of work for people with disabilities in terms of some 

of the accessibility issues, and so we are always—this is near and 

dear to our heart in our State. So could you talk about these rules, 

why they were needed and what the intended benefit—— 

Mr. PEREZ. Sure. Well, a year ago, late July, we celebrated the 

20th anniversary of the Americans with Disabilities Act, and we 

had a remarkable ceremony with Attorney General Thornburgh, 

Attorney General Holder, and others. And in connection with that, 

we issued the most sweeping set of regulations since the initial 

passage of the ADA. We needed to bring the ADA up to reflect the 

realities of the 21st century, and so we have really, I think, moved 

the ball forward in a host of ways, and we are not done. The conversations now are about things like the Internet. If you do not 

have access to an accessible Internet, how do you get a job. The unemployment rate for people with disabilities in most States is north 

of 50 percent. So trying to remove those barriers, the Internet is 

your best friend. Closed-captioning in movie theaters, there are all 

sorts of ways in which we are trying to ensure that the Americans 

with Disabilities Act is part of the fabric of our communities. 

Senator KLOBUCHAR. Thank you very much. I appreciate your 

work. 

Mr. PEREZ. Thank you. 

Senator KLOBUCHAR. Thank you. 

Senator COONS. Thanks, Senator Klobuchar. 

I will begin a second round of questions. Whether the laws you 

are seeking to enforce are 2 years old, 20 years old, or more than 

40, you have a very broad challenge, and as you said, I think eloquently, in pressing back against the head wind of intolerance. I 

just wanted to probe some about the range of tools you have got 

available to you. 

Drew Days, who preceded you in this role, was my own professor 

in law school, and I first heard about disparate impact cases and 

Title VII from him and from his own rich history of litigating. 

What is the Division doing at this point to use the tools of disparate impact analysis, long one of the most powerful tools the Division had against vestigial racism? And what are you doing to ensure full enforcement of the law against employment discrimina-
16 

tion, particularly in a world post-Dukes v. Wal-Mart, where there 

are real challenges to plaintiff class action suits nationally? What 

role do you see for the Division in lending and employment and in 

access to opportunity? 

Mr. PEREZ. We play a very important role, and you mentioned 

both the employment front and the fair lending front, and we have 

opportunities and active cases in both. 

In the employment front, one of our largest cases in the Division 

right now pertains to the Fire Department of New York. The men 

and women of the New York City Fire Department have done heroic work, and we just honored that great work over the weekend. 

The challenge that the department has confronted not just for a 

few years but literally for a few decades was the challenge of discrimination. Lawsuits have been pending against the New York 

City Fire Department for so long that the initial judge who handled 

them was a Truman appointee. There are less African-Americans 

and Latinos in terms of percentages on the New York Fire Department now than there were 30 years ago. 

In fact, the problem is so acute—and you contrast that with the 

New York Police Department, which has managed to hire the most 

qualified people and to reflect the diversity of the community. 

If you look at the Chicago Police Department, if you look at the 

Chicago Fire Department, if you look at Los Angeles, if you look 

at Houston, other places have managed to ensure that they are hiring the most qualified and have a pool of folks who reflect the diversity of the communities that they serve. 

The New York Fire Department is not, and the situation is so 

significant that the judge in that case granted summary judgment 

for the Government, not only on a disparate impact theory which 

we put forward, but also on a theory of intentional discrimination, 

ruling that the problems have been so bad for so long that it is evidence of intentional discrimination. And so we are working on that 

case. We would love to resolve that case, but it has been proving 

rather elusive. And so we will continue to do cases of that nature. 

In the fair lending context, as you know, disparate impact work 

is a linchpin of our fair lending work, and I will note there are 

some who argue that disparate impact theory is not viable. What 

is interesting about this is that every circuit that has ruled on the 

viability of disparate impact theory in the fair lending context, and 

every circuit but one, I believe, has ruled that disparate impact 

theory is viable. So there is no split in the circuit. It is a longstanding tool in the arsenal of the Civil Rights Division, and we are 

using just that. And the work we do, you look at our case in St. 

Louis involving a bank that had literally drawn a red line—there 

was a horseshoe around the African-American communities. They 

basically gerrymandered their service area so they did not have to 

serve African-Americans. The same thing in Michigan with Citizens Bank. 

One of the things we do in those cases, Senator, is we conduct 

what is called ‘‘peer review,’’ because there are critics who contend 

that you are forcing banks to lend to unqualified people. That could 

not be further from the truth, and I am happy to share with you 

our consent decrees that explicitly say that you do not have to 

make any unsafe or unsound loans. And what is interesting is 
17 

when you look at the peer review, other banks were doing great in 

those areas. They had significant market penetration in AfricanAmerican communities, and these banks did not. 

So what we are trying to do is get the mainstream, the good 

lenders, to lend to—to be in place in every community because 

when they do not, when they allow the color of a community as opposed to the content of the creditworthiness of the borrower to govern, then that opens the door for those unscrupulous lenders. 

So I agree wholeheartedly with those who contend that we 

should not force banks to lend to unqualified people. I completely 

and wholeheartedly agree with that statement. And our decrees 

and our use of disparate impact theory absolutely embodies that 

very important principle. 

Senator COONS. Thank you, Mr. Perez. 

Senator Grassley. 

Senator GRASSLEY. I have got to think here whether or not in 

your conversation with the Chairman if you answered my second 

question. I would like to start out, though, with another issue on 

immigration. You said last year, ‘‘Under our system of Government, 

there is one quarterback and only one quarterback when it comes 

to issues of immigration, and that is the Federal Government.’’ 

You made that statement in a context of the Justice Department 

filing against Arizona and arguing that its new law that affected 

immigration enforcement was preempted by State law. 

So based upon this argument that you use that the Federal Government—that immigration is a Federal responsibility and preempts any State law, when can we expect the Department of Justice to bring suit on preemption grounds against localities that 

have passed ordinances declaring themselves sanctuary cities for 

those who have entered the United States in violation of our Federal immigration laws? 

Mr. PEREZ. Well, Senator, as I said in that particular context of 

Arizona, the Federal Government is the quarterback on immigration issues, and they are the quarterback because immigration enforcement decisions have law enforcement consequences, they have 

humanitarian consequences, and they have foreign policy consequences. The district court agreed, the Ninth Circuit Court of Appeals agreed, and now the matter is before—I believe there is a 

cert petition that has been filed in connection with that case. In 

Utah, a court has put the Utah law on hold, and I think the laws 

in Georgia and Indiana have been put on hold, and the matter in 

Alabama is pending a decision by the court. And so those cases will 

move themselves along the court, and I expect that court process 

will move. 

Every situation is very fact dependent, and if you have a specific 

matter that you would like us to look into, I would ask you to bring 

it to our attention, and we will look at it and determine whether 

there is a—— 

Senator GRASSLEY. You know about sanctuary cities. They are 

pretty prevalent. In that local ordinance, isn’t that a—— 

Mr. PEREZ. I have not reviewed any of the local ordinances from 

any of the so-called sanctuary cities, so I would not be in a position 

to comment and compare them with Federal law. I certainly was 
18 

closely involved in the review of the other matters in Arizona, 

which is why I can speak with a more informed judgment. 

Senator GRASSLEY. I guess I am astounded that you do not have 

a view on that, but I will move on anyway. But I can understand 

why maybe you do not have a view on it, but I do not think it relates to your not having studied the local ordinances. 

The Civil Rights Division brought many lending discrimination 

cases against banks on disparate impact, and so I am going to refer 

to that Wall Street article. But first I am going to refer to the fact 

that the Wall Street Journal commented that this policy encourages lenders to lend to borrowers regardless of their ability to pay. 

And as you know, the issuance of mortgages to unqualified borrowers is one of the pillars of our current economic crisis. 

So you responded and stated that you focus on lending institutions that failed to lend to qualified borrowers, and you also state 

that, ‘‘A vacuum ready to be filled by predatory lenders could be 

created.’’ 

Are you aware of qualified residential mortgage rules proposed 

by the Federal Reserve in part to implement Dodd-Frank that requires lenders to retain some percentage of the loans that they 

bundle and sell as securities? If you are aware of that, what data 

are you using to determine that qualified borrowers are not able 

to obtain loans and that those denials are based on race? 

Mr. PEREZ. Well, one thing I would like to do, Senator, if I may 

for the record, I have the copies of our consent decrees in the Midwest and the Citizens Bank cases. I would like to submit them for 

the record, if I could, because, again, they go to the heart of Senator Grassley’s question about whether we are forcing banks to 

lend to unqualified borrowers. 

For instance, no provision of this order requires Midwest to make 

any unsafe or unsound loan. Midwest will offer qualified residents, 

qualified applicants. Throughout all of our consent decrees, this is 

about making sure that opportunity exists for people who are qualified. We saw the racial gerrymandering in the form of red-lining 

where a Community Reinvestment Act—and I will note that I believe both of these cases were referrals from our regulators, so we 

got these from the Fed, I believe. And they looked at it, and the 

banks themselves—these two cases are a case study in the need for 

banks to have internal compliance because the remarkable lack of 

attention to opportunity—and, again, when I talk about opportunity, the reason I know opportunity exists is because we conduct 

peer review. So that we look at the peers of Midwest, we look at 

the peers of Citizens, and what we see is they are not drawing that 

horseshoe around the African-American communities. They are, in 

fact, making money, and they are making good money, by not judging people by the color of their skin but, rather, by the content of 

their creditworthiness. And that is the essence of what we do in 

this work. We work very closely with the regulators. We have gotten more referrals from regulators in the last year on fair lending 

cases than we have ever gotten before. I am proud of that. Again, 

when I talked about partnership, Mr. Chairman and Senator 

Grassley, that is one example of working together. 

I believe that there is a false premise that is often put out there, 

which is we can either promote a sound business climate for lend-
19 

ers or we have consumer protections. We have seen in the abuses 

of the last few years that that is categorically inaccurate. Just as 

we can have secure communities and respect for the Constitution 

in the law enforcement context, we can have common-sense consumer protections and preserve a sound business climate for lenders. That is what we are doing in this work, and I am very proud 

of that work as a result. And we spend a lot of time working, Senator Grassley, with lenders to educate them. And I have spoken 

with lending groups, and I have put up the slides of the horseshoe. 

A picture tells a thousand words, and you see—and you asked the 

question: How is it that you could so obviously avoid African-American communities when your peers are doing well in those communities? That is what these cases are about—access to opportunity. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

Senator COONS. Without objection, the materials will be included 

in the record. 

Mr. PEREZ. Thank you. 

[The information appears as a submission for the record.] 

Senator COONS. Senator Durbin. 

Senator DURBIN. Thank you very much, Chairman Coons. 

Mr. Perez, thank you for contacting me last week from Puerto 

Rico and your prompt response to the concerns that had been expressed about abuse by law enforcement authorities on that island. 

I hope we can continue to work together to make sure that if there 

are problems, they are investigated thoroughly and acted upon to 

change the policy. Thank you for that. 

Mr. PEREZ. Thank you. 

Senator DURBIN. Last week I held a hearing in the Subcommittee 

on the Constitution, Civil Rights, and Human Rights about the new 

State laws that have been passed in seven or eight jurisdictions. 

They have raised concerns—I sensed the concerns personally, but 

they have raised concerns because they establish new requirements 

to vote: voter identification cards, photo IDs in some States, new 

standards for voter registration in other States, and reducing the 

period of early voting in many States. 

It troubles me because when it comes to early voting, in the last 

election 30 percent of Americans felt that was the best way to exercise their right to vote. And as we reduce access to early voting, 

it creates a hardship on those and many others. 

Some of the reduction of early voting also raises political questions in my mind. It appears that there has been a concerted effort 

by some groups to reduce early voting on the Sunday before the 

election. In Illinois, that is a day when many African-American 

churches finish their services and people go to vote. The same 

thing is true in the Hispanic community. And I do not think it is 

a coincidence that they are arguing that we should close down voting on Sunday. I think there are political motives behind that. 

The new voter registration law in the State of California is so onerous that the League of Women Voters has publicly announced 

that it is pulling out of voter registration in that State—in Florida, 

I am sorry. In Florida that has happened. And if I recall the testimony we received, if you should ask a person to register to vote in 

Florida under the new law and do not submit the paperwork within 

48 hours, you can be fined $1,000. Naturally, the volunteers of the 
20 

League of Women Voters are not interested in facing that penalty 

and have backed away from their traditional historic role of nonpartisan voter registration. 

The requirements on voter IDs are equally troubling to me. In 

many States there are thousands, in some cases hundreds of thousands, of eligible voters who do not qualify under the current new 

law to vote in the next election. They do not have the appropriate 

voter ID. 

For example, I was in Tennessee yesterday, in Nashville, and in 

that State I believe the number is 126,000 current driver’s license 

holders in that State do not have a driver’s license with a photo 

on it. So if they present that driver’s license to vote, they cannot 

under the new Tennessee law. 

There are over 200,000 people in the State of Wisconsin under 

their new law who would run into problems in voting. And for 

those who say, ‘‘Well, they have got time to get a new voter ID card 

or a new identification card,’’ it turns out there is only one DMV 

facility in the State of Wisconsin that is open on weekends—one— 

with over 200,000 people who are going to need some new form of 

ID. 

Mr. Chairman, I ask consent to at this point enter into the 

record a memorandum from one of the DMV offices in Wisconsin 

where—it is an internal memorandum given to the employees to 

address this issue about people now showing up looking for these 

new identification cards so they can vote. And they made a point 

under their law to say it is a free ID card; otherwise, they might 

face the charge of a poll tax. If you have to buy an ID to vote, it 

could violate some of our basic principles and law. 

[The memorandum appears as a submission for the record.] 

Senator DURBIN. But in this memo, internal memo, from the 

Wisconsin DMV, there is a statement here, which is highlighted, 

which says to the employees: ‘‘While you should certainly help customers who come in asking for a free ID to check the appropriate 

box, you should refrain from offering the free version to customers 

who do not ask for it.’’ 

It is an indication to me that the spirit of this is not to make 

it easier for people but to make it more difficult for them to vote. 

I cannot think of a worse development in a democracy than making 

it more difficult for people to vote. 

At the end of the hearing, reporters and others came up to me 

and said, ‘‘What is next?’’ And I said, ‘‘What is next is the Civil 

Rights Division of the Department of Justice.’’ 

Could you explain to me what your responsibility is now at the 

Department of Justice with the new State laws that I have just 

outlined? 

Mr. PEREZ. Sure, absolutely. We are obviously closely monitoring 

developments regarding the new laws, and we have two sets of 

statutes that are relevant to this analysis: Section 5 of the Voting 

Rights Act applies to all or parts of 16 States, and any of those covered States—Illinois not being one of them—is required whenever 

they make a change to either submit that change for preclearance 

to the Civil Rights Division, or they can file a lawsuit in a threejudge panel in the District of Columbia. In either situation we are 

involved in the Justice Department. 
21 

You mentioned Florida. I cannot comment, obviously, on the specifics. They initially submitted their plan for preclearance by the 

Department. We asked a number of questions. They withdrew the 

submission and then they filed in the DDC, which is their right. 

And so now we will be addressing those issues in the District of 

Columbia. And, similarly, there are other States with voter ID laws 

that are in the Section 5-covered States. 

The analysis under Section 5 is twofold. The covered jurisdiction 

has the burden—not the Government, not anyone in the private 

sector. The covered jurisdiction has the burden of demonstrating 

two things in connection with their changes: the absence of discriminatory purpose and the absence of retrogressive effect. So in 

those 16 jurisdictions, including but not limited to four counties in 

Florida, that framework applies. 

You mentioned Wisconsin and other jurisdictions that are not 

covered. We have obviously authority under Section 2 of the Voting 

Rights Act to file lawsuits, and the ‘‘we’’ in that sentence is not limited to the Department of Justice. Any private plaintiff can file suit 

under Section 2. And, in fact, any private plaintiff can file a constitutional challenge. The Indiana case that went to the Supreme 

Court a few years back was a constitutional challenge to the voter 

ID framework in the State of Indiana. 

So those are the three legal tools. Section 2 applies to any State 

in the United States, so we have been actively monitoring all the 

laws that have been passed. We will not receive submissions, obviously, from Wisconsin and other non-covered entities, but that does 

not mean we do not have the authority to review and take appropriate action. 

So that is the framework of analysis. A number of these matters 

have been submitted, and I obviously cannot comment further because they are actively under review by the Department. 

Senator DURBIN. I would like to ask you—and the question came 

up in the hearing—why this is happening. And I asked if there was 

evidence of increased voter fraud and the impersonation of voters, 

which is what the photo ID is all about. One of the witnesses who 

was trying to defend these laws said, well, they are really not 

worth prosecuting, these voter fraud cases, and very difficult to 

prosecute, the witnesses are not around, it happened in the polling 

place, things come and go and so forth. And it struck me as unusual that we are setting out to change the voting rights of millions 

of Americans over something that even a supporter has said has 

not warranted prosecution. 

Can you tell me whether there has been an increased incidence 

of voter fraud over the last several years, particularly the impersonation of voters, that might give rise to this growing political 

concern? 

Mr. PEREZ. Well, the why question, Senator, is in essence in our 

analysis one of the $64,000 questions that we have to answer because if you are analyzing a submission to determine whether 

there was discriminatory purpose, that is really the why question. 

And so in the work that we are doing now in connection with a 

number of submissions, that is a question. Whether it is a voter ID 

submission or whether you are changing the location of a precinct 

or whether you are doing any voter change subject to Section 5, 
22 

that why question very much animates the work that we do in connection with this. 

In the Supreme Court case, the Indiana case, there was evidence 

in that matter, if I recall correctly, of fraud in a 2003 mayoral election. I think it was in Gary. And the Court said—and there was 

no other evidence of that. But the Court noted that that was 

enough in that particular matter to justify what was put in place. 

We will follow the facts where the facts lead us. We will obviously be guided by the Supreme Court’s decision in the Indiana 

case, and we will undoubtedly be looking at the why question because the why question very much animates a lot of our work, really whether it is Section 5 or Section 2, because if there is a discriminatory purpose that underlies an action in any State, regardless of whether you are one of the 16, then that is obviously a fact 

of relevance. 

Senator DURBIN. One of the interesting elements in the Indiana 

case, as I understand it, was that the case challenging the Indiana 

voter ID law was filed before there was actually an election in 

which people were asked to use the ID. And many have said that 

the Supreme Court’s decision was premature, and even within the 

decision itself, there were statements by the Justices that if something comes up here that might be evidentiary and change basic 

elements of this case, we trust that it will be brought in a later 

case. 

So is that one of the elements as well to determine the hardship 

that is created on voters with some of these new voting rights 

laws? 

Mr. PEREZ. Well, I think the Court in that case discussed the balance that needs to occur and in that particular set of facts concluded that the balance tipped in favor of the law being constitutional. And so every case that we do is very, very fact dependent, 

and we will continue to follow the facts where the facts take us. 

Senator DURBIN. Let me ask, if I might, Mr. Chairman, one last 

question. Most of us were involved in 9/11 memorial activities at 

home and here in Washington, and almost without fail people 

noted that we have been blessed as a Nation not to have had a terrible terrorist event like 9/11 happen in the last 10 years. Credit 

needs to be given to a lot of people, to Presidents Bush and Obama, 

as well as law enforcement and our military intelligence community and so many others, and I want to preface my remarks by acknowledging that fact and thanking all of them for the wonderful 

job they have done keeping America safe. But in a free and open 

society like our own, that vigilance against terrorism can often 

come up against constitutional values and rights. 

Saturday night I visited with a friend of mine who is a businessman in Chicago. He is successful, very successful. He has a business. He is a chemist, Ph.D. in chemistry. He has a business making cosmetic products, and he has done very well for himself. A 

beautiful home, kids, daughter pursuing a Ph.D. in polymer chemistry, and his two sons were there, both of them going for advanced 

degrees in education. A really wonderful family that I am proud to 

call friends. He is Pakistani and Muslim. He cannot get on an airplane anywhere in America without being stopped, what he calls 

the four S’s which they stamp on your ticket, which means they are 
23 

going to call you in for special investigation and a special interrogation and a special examination. He has contacted our office, and we 

have gone to great lengths, at one point having him sit down with 

the FBI in the room where he said, ‘‘I will answer any question you 

have. I will provide any document you want. I do not know why 

you continue to do this to me.’’ And he travels a lot. 

He is not alone. Some of his friends who were there said, ‘‘We 

have gone through the same and similar harassment because of our 

names, because of our appearance, we think because of our ethnicity and religion.’’ 

I would like to ask you, Mr. Perez, what is being done to make 

sure that we give law enforcement the resources and leeway they 

need to keep us safe but at the same time to acknowledge that we 

can go too far and we have to be sensitive to the civil rights and 

constitutional rights of minorities among us, Muslim Americans 

and others, who believe at this point that law enforcement can go 

too far? 

Mr. PEREZ. Well, Senator, I, like you, categorically reject the 

false choice between safeguarding our borders and our communities 

or protecting the Constitution. We can, must, and should always 

strive to do both, and that is what we do in our work. 

We have a robust program of engagement that I am actively and 

personally involved in with leaders in the Muslim, Sikh, Arab, and 

South Asian communities, and those conversations are very productive. And sometimes they are tough conversations, and let me give 

you one brief example. 

In the aftermath of the attempted bombing of the airplane that 

was landing in Detroit in Christmas Day a couple years ago, DHS 

put in place some new protocols governing people from certain 

countries. In our next meeting we heard a lot from the community, 

and what we heard was that they were responding with a meat axe 

instead of responding surgically. And a couple months later, and in 

direct response to that communication that was underway, DHS 

changed its practice and became more surgical. 

We continue to have those dialogs. That does not mean we do not 

have tough situations. And so, in addition, we are constantly receiving specific requests, and if you have constituents that have 

specific concerns—I work very closely with the Office of Civil 

Rights and Civil Liberties at DHS. We have a very good partnership, and I know they would want to hear from people. 

We also have, frankly, an active program in our police work. We 

are involved—in terms of State and local law enforcement agencies, 

we have a number of cases involving allegations of racial profiling. 

So when we see that at a local level, we are taking action. When 

we see it among our Federal counterparts, you know, we are striving to make sure that we meet the twin ideals of security and respect for the Constitution. And we welcome your input and the 

input of any constituents on how they think we can do better. I 

look forward to hearing from them. 

Senator DURBIN. So under the Bush administration, the Justice 

Department issued guidance on racial profiling that included some 

loopholes. The guidance states: ‘‘In making law enforcement decisions, Federal law enforcement may not use race or ethnicity to 

any degree.’’ But the prohibition does not apply and this is not in 
24 

quotes. This is a conclusion. The prohibition does not apply to 

profiling based on religion, and it does not apply to law enforcement activities relating to national security or border security. In 

other words, the Department of Justice guidance prohibits profiling 

an African-American, for example, in a drug case, but it does not 

prohibit profiling a Hispanic American in an immigration case or 

a Muslim American in a terrorism case. 

The Bush administration guidance correctly concludes, I believe, 

‘‘Racial profiling in law enforcement is not merely wrong but ineffective.’’ I agree. But I wonder if that principle does not apply as 

well when it comes to religious profiling and national security and 

border security investigations. 

In May of 2009 when your confirmation was pending, I asked you 

if you would review this racial profiling guidance and get back to 

me. I wonder if you have had a chance to do that. 

Mr. PEREZ. We have participated in the working group that the 

Attorney General has assembled on this issue. I also mentioned we 

have a number of cases involving racial profiling. Our docket has 

expanded, and the cases include Maricopa County, Arizona; 

Alamance County, North Carolina; and others. Our findings in New 

Orleans included findings relating to racial profiling. I think racial 

profiling—we remain strongly committed, as you mentioned, to unbiased law enforcement. I am a big fan of community policing. The 

linchpin of community policing is building relationships of trust. 

When you profile, you undermine that trust. That is a fact, and 

that is why we continue to work, the Civil Rights Division, with a 

host of components throughout the Department. The FBI, the ATF, 

everybody is working together to try to address and produce revised guidance that will thread the needle that you have described 

here today. 

So we are continuing to work on that, and we expend a lot of 

time and effort in that. 

Senator DURBIN. Specifically, is religious profiling condoned? Allowed? 

Mr. PEREZ. You identified an issue in the 2003 guidance that is 

precisely the topic of the internal discussions, and at the same 

time, again, in our enforcement work, we have a robust docket of 

cases involving discrimination, whether it is the employment context, whether it is the hate crimes context, whether it is the education context. We have done a number of cases where people are 

judging people, whether it is by their sexual orientation or gender 

identity, their religion, their gender, their race, et cetera. We have 

a regrettably active docket of cases in those areas. 

Senator DURBIN. Thank you, Mr. Perez. 

Thank you, Mr. Chairman, for your indulgence. 

Senator COONS. Thank you, Senator. 

If I might, I have a few closing questions or comments I would 

like to offer. 

Mr. PEREZ. Sure, love to. 

Senator COONS. I lost everyone else from this hearing. 

Mr. PEREZ. Was it something I said, Senator? 

[Laughter.] 

Senator COONS. No, not all. 

Mr. PEREZ. OK, good. 
25 

Senator COONS. I am interested in—and we can in future hearings or future conversations—I think you have led some tremendous work in the Fair Housing Enforcement Act, and human trafficking is an area that I think is also worthy of further discussion, 

but I wanted to focus on just two things, if I could. 

One, the Matthew Shepard Act, you referred previously to your 

own work in enforcement of hate crimes and how the amendments 

were essential to allowing you to effectively as a Division take action against a broad range of violence based on bigotry. There are 

other Federal civil rights provisions that do not list or include either gender identity or sexual orientation as the basis for a civil 

rights violation, and I know you have been relying on case law for 

a definition of sex discrimination or Title IX or Title IV, I think, 

that include gender nonconformity. Can you describe other areas of 

Federal law that prohibit discrimination on the basis of, say, religion or race, as you were just talking about in terms of profiling, 

but that does not prohibit discrimination on the basis of orientation 

or identity and where you might urge that we consider some 

amendments or future action? 

Mr. PEREZ. Well, the first hearing I had after confirmation in 

this committee, Senator, was on the Employment Non-Discrimination Act. I was working for Senator Kennedy in the mid-1990s. The 

hate crimes bill was introduced in 1996. It took 13 years. And it 

was actually introduced a few years before that and is still pending 

action. So I certainly learned from Senator Kennedy that civil 

rights is about persistence, and I think that would be very helpful. 

You correctly identify that in our bullying work we apply longstanding principles of statutory construction relating to gender 

nonconformity as a form of sexual discrimination. It would obviously be much simpler—or you could expand the universe of cases 

involving people who have been victimized if you were to expand 

those definitions. So that is obviously another area, and Senator 

Franken has obviously been playing a vigilant leadership role in 

that area. 

So those are to me two examples that kind of jump off the page. 

Senator COONS. Well, it is my hope that we will take them up 

and move them forward, and I am grateful for Senator Franken’s 

line of questioning about bullying, an area that has long been an 

unfortunate part of our national culture and experience and is now 

getting broad and needed attention. 

Last, in your opening statement you referenced efforts to restore 

morale and to ensure that the Department—the Division, excuse 

me, has taken steps to ensure hiring based on merit, and in some 

cases there have been challenges or criticisms raised about your 

handling of hiring and promotions within the Division. I just wanted to give you an opportunity to speak to that. There were, of 

course, some very troubling investigations by the Office of Professional Responsibility and the inspector general previously that 

found inappropriate politicized hiring practices. I just wanted to 

give you an opportunity to address whether you are confident that 

you have restored the Division to hiring based on merit and expertise or experience in civil rights or whether in your view there was 

still some room to go. 
26 

Mr. PEREZ. I am quite confident that we have restored meritbased hiring. I had the privilege, Senator, of serving on the hiring 

committee in 1991, 1992, and 1993. I was hired by the Elder Bush 

Attorney General Thornburgh, and so I served on the hiring committee under Democratic and Republican administrations for the 

honors program. That is the entry-level program. 

Our instructions from John Dunne and Deval Patrick were identical: Hire the most qualified people. Merit was an article of faith 

in hiring career people, whether it was entry-level or experienced 

attorneys. And it was an article of faith for decades in the Division. 

And, regrettably, that article of faith was breached in horrific ways 

in the prior administration, and those are all documented in the 

OIG report. I talked to section chiefs who were told on a Thursday, 

‘‘You are going to have three new lawyers reporting to your office 

Monday.’’ They had no involvement in their hiring. They got their 

resume ́ on a Friday but had no involvement whatsoever. And that 

broke my heart because you should be judged by your merit, by 

your relevant experience, by your commitment to the even-handed 

enforcement of civil rights laws. And that is what we did. 

When I was confirmed on October 6th and started on October 

8th, one of the first things we did was a written memo restoring 

the career-driven hiring processes. And one of the things we put in 

place was a provision that said that if the Assistant Attorney General is to overrule any recommendation for a hire, he or she must 

do so in writing. And I put that in place so that there would be 

transparency in the process and to really hold myself and future 

AAGs accountable. I have not overruled any such recommendation. 

I am so proud of the dedicated men and women, some of whom 

have come in the last 2 years, some of whom have been around for 

many years. The restoration and transformation, all of the cases I 

have described, we would not be there without those committed career professionals. The people that we serve every day and the people that I work with, they are the folks that get me out of bed in 

the morning every day because they are a fantastic group. Many 

of them could go out and quadruple their salaries tomorrow if they 

want because they are so, so talented. But this is not any old job. 

This is carrying forth the legacy of John Lewis and others. And one 

of my proudest moments has been to restore that career-driven hiring process that has produced the remarkable cadre of people and 

has enabled us to take the Division to higher and higher levels. 

Senator COONS. Thank you, Mr. Perez, for that response and for 

those actions. You know, some have suggested after a review of 

who has been hired that, in fact, it is still politicized, and I reject 

that. The idea that folks can be identified as being Democrat or Republican, conservative or liberal, based on their identity or their 

membership in certain civil rights advocacy groups strikes me as 

ignoring, as I said in my opening statement, the best tradition of 

bipartisanship in caring about and advocating for civil rights. And 

the idea that based on someone’s identity, orientation, or participation in a group that advocates for the powerless or fights for civil 

rights that you can predict how they will work as career attorneys 

is offensive. 

Mr. PEREZ. I agree with you. We have hired people who have 

clerked for judges that have been nominated by every President 
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since Jimmy Carter. We have hired people from small firms, large 

firms, plaintiffs’ firms, defense firms. The person who heads our 

Employment Section, you have a keen interest in that. We just 

hired her recently. She was a defense lawyer. She defended employment cases. She was in the military before that. I have no idea 

who she voted for for President, and I do not care. I want her. She 

is the best qualified person, and she is phenomenal, and that is 

what it is about. And I think the New York Times headline kind 

of summed it up best, May 31st of this year: ‘‘In shift, Justice Department is hiring lawyers with civil rights backgrounds.’’ I plead 

guilty to that. I think relevant experience is indeed very, very helpful. 

My brother, the surgeon, hires surgeons in his surgical practice, 

and I think it is important to hire people who have that relevant 

experience, and that is really a linchpin of our success. 

Senator COONS. Well, thank you, Mr. Perez, for your testimony 

here, for your evident passion and persistence and engagement in 

the hard work of pressing back against the head winds of intolerance, and making real the promise of our Constitution. And my 

thanks to everyone in the Civil Rights Division for their difficult 

work in these demanding times. And as well, I would like to thank 

my colleagues for their participation in questioning today. 

The record will remain open for a week for members who wish 

to add any additional materials to the committee account of these 

proceedings, and this hearing of the Senate Committee on the Judiciary stands adjourned. 

Mr. PEREZ. Thank you. 

[Whereupon, at 11:31 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follows.] 
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