U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

86–453 PDF 2003

S. HRG. 107–922

OVERSIGHT OF THE DEPARTMENT OF JUSTICE–

CIVIL RIGHTS DIVISION

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

MAY 21, 2002

Serial No. J–107–81

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MARIA CANTWELL, Washington 

JOHN EDWARDS, North Carolina 

ORRIN G. HATCH, Utah 

STROM THURMOND, South Carolina 

CHARLES E. GRASSLEY, Iowa 

ARLEN SPECTER, Pennsylvania 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

SAM BROWNBACK, Kansas 

MITCH MCCONNELL, Kentucky 

BRUCE A. COHEN, Majority Chief Counsel and Staff Director 

SHARON PROST, Minority Chief Counsel 

MAKAN DELRAHIM, Minority Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa, prepared 

statement .............................................................................................................. 85

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, prepared 

statement .............................................................................................................. 88

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

prepared statement .......................................................................................... 95

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

statement .............................................................................................................. 97

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 10

WITNESS 

Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights Division, Department of Justice, Washington, D.C. .............................................................. 3

QUESTIONS AND ANSWERS 

Response of Mr. Boyd to a question submitted by Senator Sessions .................. 33

Responses of Mr. Boyd to questions submitted by Senator Leahy ...................... 36

Responses of Mr. Boyd to questions submitted by Senator Kennedy .................. 37

Response of Mr. Boyd to a question submitted by Senator Durbin ..................... 56

Responses of Mr. Boyd to questions submitted by Senator Edwards .................. 57

Responses of Mr. Boyd to questions submitted by Senator Hatch ...................... 59

SUBMISSIONS FOR THE RECORD 

Boyd, Ralph F., Jr., Assistant Attorney General, Civil Rights Division, Department of Justice, Washington, D.C., prepared statement ........................... 61

Chattanooga Times, John Leo, March 1, 1999, article ......................................... 82

Wall Street Journal, Roger Clegg, December 14, 1998, article ............................ 99

(1)

OVERSIGHT OF THE DEPARTMENT OF 

JUSTICE–CIVIL RIGHTS DIVISION 

TUESDAY, MAY 21, 2002 

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

The Committee met, pursuant to notice, at 2:30 p.m., in room 

SD-226, Dirksen Senate Office Building, Hon. Edward M. Kennedy 

presiding. 

Present: Senators Kennedy, Feingold, Schumer, Durbin, Edwards, Kyl, and Sessions. 

STATEMENT OF HON. EDWARD M. KENNEDY,

A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. We will come to order. We are just winding 

up a vote, Mr. Boyd, on the floor, so the other Members will be 

coming in and out. 

I apologize to you for the delay. 

It is a privilege to welcome Assistant Attorney General Ralph 

Boyd to the Senate Judiciary Committee. Today’s hearing is part 

of the Committee’s important responsibility for conducting oversight of the Civil Rights Division of the Justice Department. 

Since the Division was established 45 years ago, it has been at 

the forefront of our Nation’s continuing struggle to guarantee equal 

justice for all Americans. Last year, in an address to the Convention on the Elimination of Racial Discrimination, Assistant Attorney General Boyd eloquently discussed the significant progress 

made over the last half-century toward ending discrimination and 

fulfilling the promise of equality. That progress came largely from 

a genuine and sustained commitment by the Division and its leadership to vigorously enforce the Nation’s civil rights laws, including 

the Civil Rights Act of 1964, the Voting Rights Act of 1965, the 

Fair Housing Act, the Americans with Disabilities Act, and the 

Civil Rights Act of 1991. 

We are proud of the progress we have made, but civil rights is 

still the unfinished business of the Nation. In recent months, many 

of us have become increasingly concerned about whether the Civil 

Rights Division is living up to its important mission and whether 

its rhetoric can be reconciled with the realities of the record on enforcement. 

In the past year, the Division has changed its substantive position on at least two significant employment discrimination cases, 

adversely affecting the interests of hundreds of women, African 

Americans, Hispanics, and Asians. In both cases, the Division’s acVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
2

tions raise serious doubts about the strength of its commitment to 

end all forms of discriminatory employment practices. Equally troubling, at a time when referrals from the Equal Employment Opportunity Commission continue to rise, the Division has drastically cut 

back on filing new cases in this area. In the last 16 months, the 

Division has filed only two new Title VII Cases, compared to an average of 14 cases a year since 1980. 

On another important civil rights issue, hate crimes, the Division 

has been reluctant to fully engage in the fight against these senseless acts of violence. Attorney General Ashcroft recently compared 

the fight against hate crimes to the fight against terrorism, describing hate crimes as criminal acts that run counter to what is 

best in America, our belief in equality and freedom. Yet, the Civil 

Rights Division has remained deafeningly silent on the bipartisan 

hate crimes bill in Congress that would provide it with greater 

tools to combat these senseless acts of violence. 

As a matter of fact, we are trying to bring that legislation up on 

the floor of the U.S. Senate and the majority leader requested that 

we be able to at least proceed to it. There has been an objection 

filed. Soon we are going to have to vote on cloture on hate crimes, 

if not at the end of this week, the vote will take place right after 

the Memorial Day recess. It is enormously important legislation 

which has passed with bipartisan support, 56 to 44, a year ago and 

passed the Senate actually unanimously before that time. 

Its position on hate crimes is in stark contrast to the Department’s vigorous call for the new and expanded enforcement authority to fight terrorism after September 11. 

These concerns are heightened by recent personnel moves and 

changes in longstanding hiring practices in the Division, changes 

that bear a disturbing resemblance to those called for in a recent 

National Review article, and that article states, and I quote: ‘‘Republicans should work to gain more control over the Civil Rights 

Division and its renegade lawyers. The forces of opposition have 

burrowed in and they are willing to wait out any GOP regime. Yet 

a few obvious steps would begin to address fundamental problems. 

Instead of putting a single section chief on what Boyd calls a temporary task force, the administration should permanently replace 

those it believes it cannot trust. Four or five new section chiefs 

would do a world of good. At the same time, Republican political 

appointees should seize control of the hiring process. They do not 

need to make sure that every new lawyer is a member of the Federalist Society. Simply hiring competent professionals who do not 

come from left-wing organizations would be an enormous improvement.’’ I can only hope that the Civil Rights Division is not and will 

not make policy and personnel decisions based upon the wishes or 

recommendations of the National Review. Fulfilling the promise of 

equal justice is too important a goal and too difficult a challenge 

to allow ideological considerations to influence the importance of 

the Nation’s civil rights laws. 

The Committee looks forward to Assistant Attorney General 

Boyd’s testimony today. We will continue to conduct regular oversight hearings on the Civil Rights Division in the future and I look 

forward to asking questions on a number of important issues. 

Mr. Boyd, we welcome you if you want to proceed. 

3

[The prepared statement of Senator Kennedy appears as a submissions for the record.] 

STATEMENT OF RALPH F. BOYD, JR., ASSISTANT ATTORNEY 

GENERAL, DEPARTMENT OF JUSTICE 

Mr. BOYD. Thank you, Senator. Senator, if I may, I would like 

to make a brief opening statement, if I might. 

Senator KENNEDY. All right, please. 

Mr. BOYD. Thank you, Senator Kennedy and Members of the 

Committee. I would like to thank the Committee for inviting me 

here today to discuss the important work of the Civil Rights Division of the Department of Justice. I appreciate this opportunity to 

let you know what the Division has accomplished, answer your 

questions about our work, and listen to your concerns about what 

I believe has been our thoughtful and vigorous enforcement of our 

Nation’s civil rights laws. I also want to thank your respective 

staffs, that is the staffs of many of the Members of this Committee, 

for the courtesies that they have extended in meetings with me 

prior to this hearing. 

Let me begin by saying that it is, indeed, a unique privilege to 

serve as the Assistant Attorney General for Civil Rights. The laws 

enforced by the Civil Rights Division reflect some of America’s 

highest aspirations, that is, to become a society that provides for 

equal justice under law, a society that effectively protects the most 

vulnerable among us, and a society whose citizens not only protect 

their own individual freedom and liberty, but also champion the individual freedom and liberty of others who may be different from 

them. 

As William Jennings Bryan once said: ‘‘Anglo-Saxon civilization 

has taught the individual to protect his own rights. American civilization will teach him to respect the rights of others.’’ And while the 

continuing need to enforce our civil rights laws confirms that we 

have not yet achieved a society free of prejudice and the discrimination it brings, there is no doubt in my mind that America is better off for making the journey, and I am, therefore, honored and 

humbled to be charged with the heavy responsibility of enforcing 

our Nation’s civil rights laws at the Department of Justice. 

Senator when I agreed to serve as Assistant Attorney General 

and the Senate saw fit to confirm the President’s confidence in me, 

I came to the job as a former prosecutor and a professional litigator 

by training and experience and it is from that perspective that I 

report to you on the work and the accomplishments of the Civil 

Rights Division. 

Let me first speak generally and say that the work of the Division goes forward carefully, but aggressively. I recall during the 

confirmation process that many Senators sought assurances that I 

would continue to enforce certain statutes. I told you then that I 

was committed to vigorous enforcement of the law and I can confirm today that the Division is doing precisely that. 

But I can also commit to something else, and that is not only are 

we aggressively using the tools at our disposal, but we are doing 

so with the professionalism and the care that Americans expect 

from their Federal law enforcement officials. As I am sure will become clear in this hearing today, there will no doubt be individual 

4

issues, individual cases about which the distinguished Members of 

this Committee will have questions or concerns and I look forward 

to addressing those questions and concerns. 

At the outset, however, let me say that, reviewed as a whole, the 

Division’s commitment, my commitment to protecting the civil 

rights of all Americans is clear. Looking at our enforcement record 

in its entirety, I believe it is inarguable that the Civil Rights Division has been aggressive, productive, and fair in its civil rights enforcement efforts to date. 

For example, last month, Attorney General Ashcroft presided 

over the signing ceremony for an unprecedented agreement between the Department of Justice and the city of Cincinnati that 

will effect major reform in the Cincinnati Police Department. A 

year ago, the city of Cincinnati, Ohio, was literally and figuratively 

smoldering in the wake of riots touched off by controversial police 

shootings of young African American men. One year later, after 

thorough investigation by the Civil Rights Division, led by the Special Litigation Section, and after intense negotiations, there is a 

positive outlook in Cincinnati. There is a framework for the healing 

that city thoroughly needs, a framework resulting from the coming 

together and the working together of many parties with differing 

views, parties like the ACLU, the Black United Front, and the Fraternal Order of Police, and Cincinnati is not an isolated case. 

Since 1994, when Congress passed the statute that we use to investigate patterns of police misconduct, there have been seven settlements between the Department and various police departments 

allowing for real reform in those departments. Four of these settlements were accomplished in the 6 years between 1994 and January 

20, 2001. Three were accomplished in the year and 4 months between that date and today. 

Other areas of enforcement tell a similar story. We enforce the 

Civil Rights of Institutionalized Persons Act, the primary Federal 

law protecting those who are among society’s most vulnerable, the 

elderly, the mentally ill, inmates, children, and others who reside 

in State-run institutions, and under this administration, the Civil 

Rights Division has authorized new investigations of 24 separate 

facilities under CRIPA. I have personally authorized 18 of those investigations since last July. By way of comparison, the Division initiated investigations of 15 facilities in fiscal years 1999 and 2000 

combined. 

I am also gratified to report that my Division’s efforts to combat 

backlash crimes against Arab, Muslim, Sikh, South Asian, and 

other Americans who may appear to be of Middle Eastern origin 

since the attacks on our country on September 11 have proceeded 

aggressively. As I have said in the past, our Federal civil rights 

laws are meaningless unless those they are designed to protect first 

the fundamental right to physical safety. 

The Civil Rights Division, working with the 56 FBI field offices 

and 94 U.S. Attorney Offices and State and local authorities across 

America has investigated approximately 350 incidents since September 11, ranging from the attempted firebombing of a mosque to 

outright murder. Through ongoing cooperation among Federal and 

State and local authorities, 80 criminal prosecutions have been initiated and they are bearing fruit. 

5

For example, 2 weeks ago, a defendant in Federal court in Seattle pled guilty to a case we indicted in the days following September 11. He stood accused of setting fires to cars at a mosque 

and attempting to shoot worshippers when they exited the building. These prosecution efforts have proceeded in tandem with our 

outreach efforts to communities and individuals affected by these 

backlash crimes. Since September 13, I have spoken out repeatedly, 

indeed, between 20 and 30 times in closed door sessions and in 

town hall meetings across America against violence and threats 

aimed against vulnerable people and affected communities. 

I could tell you, Senator Kennedy and Senator Feingold, about 

many other achievements, most of which are further detailed in the 

written testimony I have submitted for the record today. I could describe our continuing prosecution and our stepped-up prosecution of 

human trafficking cases or our continuing efforts to protect minority voting rights by scrutinizing, free of politics or other improper 

influence, almost 7,000 pre-clearance submissions under the Voting 

Rights Act since February of 2001, submissions containing over 

21,000 voting changes for the Civil Rights Division to review. I am 

proud to say that the hardworking Section V staff has never missed 

a deadline in this endeavor. 

I could also talk at length about the $500 million settlement we 

reached with the State of Mississippi to end segregation in its institutions of higher learning or the $300 million settlement we 

achieved with the city of Yonkers, New York, to close the education 

and achievement gap between minority and white students in that 

town. 

I could also talk about the sexual harassment cases we have initiated in our Employment Section, targeting a county fire department or a school district in the American Southwest, or the redlining cases we have approved in the Housing Section of the Civil 

Rights Division. There is also our role in the President’s New Freedom Initiative focusing on protecting the rights of the disabled. 

Senator Kennedy, Senator Feingold, I have been litigating cases 

for the better part of two decades, both as a prosecutor serving the 

American people and the citizens of the Commonwealth of Massachusetts, where I come from, and as a private lawyer. As a result, 

I have a sound basis, I think, from which to say that both the quality and the quantity of civil rights enforcement work coming out of 

the Civil Rights Division during the 9 months I have had the privilege of leading that division is exceptional by any fair and reasonable measure. 

But as you referred to in your opening remarks, Senator Kennedy, we can do more, we need to do more, and I am committed 

to doing more. I hope that today’s hearing will help us do that. I 

hope that today’s hearing will help in that effort. 

So with that in mind, I look forward to your questions and your 

concerns and I, again, thank you for giving me the opportunity in 

a public forum to talk about these very important issues. 

Senator KENNEDY. Thank you very much. We will include your 

entire statement in the record. 

Mr. BOYD. Thank you, Senator. 

Senator KENNEDY. Thank you very much. 

6

[The prepared statement of Mr. Boyd appears as a submission for 

the record.] 

Senator KENNEDY. If we could, I would like to draw your attention to the Brennan case, a rather notorious case involving discrimination in New York City. We have been joined by Senator 

Feingold and Senator Kyl. I ask if we might have 15-minute rounds 

to give us an opportunity to get into some detail. Then if we are 

joined by others, we can shorten that time so everyone gets a 

chance to speak. 

Let me quote from the brief that the Civil Rights Division of the 

Justice Department filed in the Second Circuit in the Brennan

case, a very important case in terms of discrimination: ‘‘The retroactive seniority provision is constitutional because it is narrowly 

tailored to serve the city’s compelling government interest in remedying the adverse effects caused by its civil service examination 

and recruitment practice.’’ Does the Department still hold the view 

that all of the relief that has been granted in the Brennan case, 

including the retroactive seniority provision, is constitutional? 

Mr. BOYD. The answer to that, Senator Kennedy, is that we certainly do with respect to 27 of the beneficiaries of the settlement 

agreement entered into between the Department of Justice and the 

Board of Education of the city of New York, which the Second Circuit has vacated but is continuing to be litigated vigorously by the 

United States through the Civil Rights Division, and let me explain 

the position fully, if I may, Senator. 

The Brennan case that you refer to is a case where the Board 

of Education of the city of New York used a screening test for applicants for permanent positions as custodial engineers in the New 

York City school system and that screening test had a disparate 

impact on minority applicants. That is to say, they did not do well 

under the terms of that screening test to the point at which the 

permanent hiring numbers were woefully deficient for the school 

board in those positions. 

The Civil Rights Division brought a civil suit against the city of 

New York and the New York Board of Education under Title VII, 

the disparate impact provisions of Title VII, arguing that that 

screening examination was not sufficiently job-related nor was it 

consistent with business necessity. The Civil Rights Division and 

the Department of Justice entered into a settlement agreement 

with the city of New York, an agreement that provided retroactive 

seniority for almost 60 individuals who were given permanent employment status and retroactive seniority under the terms of that 

settlement agreement. 

That settlement agreement was appealed by intervenors. That 

settlement agreement was vacated by the Second Circuit, which remanded the case to the District Court to allow the intervenors, who 

alleged that they had been harmed by the retroactive seniority 

given to the beneficiaries under the settlement agreement, to fully 

conduct discovery with respect to their claims and litigate their 

claims. 

Since that time, we have vigorously defended the relief in that 

case with respect to the 27 beneficiaries who actually took the examination and failed the examination and, therefore, were harmed 

7

by what we alleged were the discriminatory practices that the 

school board engaged in. 

Senator KENNEDY. If I can, in your brief before the Second you 

intervened on behalf of all of the figures——

Mr. BOYD. We brought the suit originally——

Senator KENNEDY. I have the brief right here. I can read it to 

you. It was on behalf of all those covered in the initial settlement. 

Mr. BOYD. The brief was on behalf of——

Senator KENNEDY. That has changed now. You changed your position with regards to the brief which covered all of those and now 

you are saying that you are only covering a part of them. 

Mr. BOYD. What we have said, Senator, is that we are aggressively defending the settlement agreement with respect to the 27 

individuals who actually took the exam and were harmed. With respect to the remaining 32, what we have told the court is because 

they did not take the examination and were not harmed, therefore, 

by the examination, that there has to be some other theory of entitlement in that at present, there is not a sufficient factual predicate in the record to demonstrate that they were actually harmed, 

and, therefore, there is not yet a sufficient factual basis to support 

a Title VII remedy of retroactive seniority, nor does the factual 

record at present support the constitutionality of that remedy with 

respect to the 32 who were not the test-takers and not harmed by 

the test. 

But let me make very clear——

Senator KENNEDY. Five minutes are already up and I have asked 

one question, the answer to which we now know is that in the 

brief. You initially defended all, and now you draw a distinction. 

That is a change of position. You gave the reasons for that. 

Mr. BOYD. Senator, if I may, just 20 seconds——

Senator KENNEDY. All right. 

Mr. BOYD [continuing]. But to be very clear, we have not dropped 

the remaining 32 who did not take the test. 

Senator KENNEDY. Who is defending them? 

Mr. BOYD. What we are doing and what we have said to the 

court is during the course of discovery in this case, we will work 

diligently and vigorously to try to develop a factual record that will 

demonstrate or would demonstrate that the remaining 32 were actually harmed and, therefore, entitled to relief. But what we have 

said is the record does not presently demonstrate that, so we cannot claim it. We have an obligation——

Senator KENNEDY. It did demonstrate that according to the Justice Department in its brief. We will let the record——

Mr. BOYD. That is——

Senator KENNEDY. I want to move on, Mr. Boyd. I have asked 

one question and it has taken seven-and-a-half minutes and I 

would like to see if we can get to the facts on this. In the April 

17 letter to the judge presiding over the case, the New York Corporation Counsel said, and I quote: ‘‘The Department has abruptly 

refused to be bound by the settlement that it proposed, signed, 

moved this court to approve, and defended on appeal before the 

Second Circuit.’’ I have the letter right here. 

It goes on to say that, ‘‘Until 3 months ago, your office was coordinating a defense with the city and then abruptly cut off comVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
8

munication on the day the papers were due to be filed in court.’’ 

Someone who is unknown to the corporation counsel contacted 

them and said the trial team was being removed from the case and 

you were no longer defending the relief granted to 32 of the 59 

beneficiaries. That is what you were just saying. 

I wonder, has the Department done anything to inform the 32 

beneficiaries that it no longer supports the relief that they have 

been granted? 

Mr. BOYD. Senator, we do not represent the 32. 

Senator KENNEDY. Do you know who is representing them? 

Mr. BOYD. I do not, Senator. Let me tell you this, and I want to 

be very clear about it. It may seem like a fine distinction, but it 

is an important one. We are defending that settlement agreement 

that the Second Circuit has vacated. It has been vacated by the 

Second Circuit, but we continue to defend it consistent with our obligations under the law as well as our obligations under the rules 

of professional responsibility and ethics that all lawyers, especially 

government lawyers, are bound by. 

So what we are saying is, with respect to part of the relief to the 

27 who took the test, we are flat out defending them. With respect 

to the 32 who the record does not currently demonstrate were 

harmed by any discriminatory practice, we are trying to develop 

that factual record so we can take the position that they are entitled to retroactive seniority. But the record does not yet reflect 

that. Now, a position——

Senator KENNEDY. Well, if I can, the Second Court did not vacate 

the joint defense agreement. It did not vacate that agreement. The 

Clinton Administration Justice Department found justification for 

coverage of all, which I have just illustrated here. The court did not 

vacate the joint agreement. You say that basically you have not 

changed the positions in the case. Then why did you remove the 

original trial team from the case, write a letter to the presiding 

judge telling him that a firewall has been erected to ensure that 

any information the city provided to the departmental attorneys 

previously assigned to these actions under any claim or privilege 

would not be compromised? 

There has only been one other instance of the Civil Rights Division implementing a firewall, and that was years ago. For what 

possible reason would the Justice Department effectively set these 

32 individuals who are being protected by the previous administration adrift? 

Mr. BOYD. Senator——

Chairman KENNEDY [continuing]. I have the documents here, if 

I had the chance. 

Let me ask you a specific question. Have you or anyone on your 

staff at any time had any contact with the Center for Individual 

Rights about the Brennan case? 

Mr. BOYD. I do not recall that I have, Senator. I do not know the 

answer to that question. I can find that answer out and get back 

to you, but they are——

Senator KENNEDY. You would remember that——

Mr. BOYD. My understanding——

Senator KENNEDY. You have got a superb memory. This is the 

other intervening group. You would know whether——

9

Mr. BOYD. Senator, I——

Senator KENNEDY. OK. All right. Fair enough. Fair enough. 

Mr. BOYD. Let me at least answer the question, if I may, respectfully, Senator. I would assume that we have, since they are a litigating party, so it would be hard for me to imagine that we would 

not have had some conversation with other litigants in the case. 

But let me say something very quickly. I did not remove anyone 

from this case. The prior litigating team—the trial team in this 

case forwarded a request to the Office of Professional Responsibility within the Department of Justice to say that because the position that they had taken essentially with respect to the status of 

the 32 offerees who we are now saying there is not sufficient evidence in the record at this time to support relief with respect to 

them, but we are trying to develop that factual record, because of 

that modification in our position, and it clearly is a change in position. I have to look at the record as is presented to me and look 

at it in view of the facts and the law and make an independent, 

straight call on that, and we have taken a different position with 

respect to those 32 offerees and we expect and hope to be able to 

defend relief with respect to them. 

But the Office of Professional Responsibility, having been petitioned by the trial team, the prior trial team in this case, gave the 

judgment that there should be a firewall between that trial team 

and the new trial team and that is the reason that counsel was 

changed. I did not remove them. I had nothing whatsoever to do 

with that, Senator, and it was perfectly proper for them, that is, 

the prior trial team, to raise the issue with the Office of Professional Responsibility. We do that when difficult ethical issues and 

responsibilities are raised and we follow their judgment. 

Senator KENNEDY. Well, it is puzzling that they would be dismissed, considereing the success they have had, but that is not 

where my question is. My question was the contact you had with 

the Center for Individual Rights about the Brennan case. I understand your answer is that you may have. 

Mr. BOYD. I suspect, Senator, that almost certainly we did. I just 

do not have firsthand knowledge of it, so I am not——

Senator KENNEDY. Will you provide for us when and where you 

had contact, and if the line attorneys on the case were aware or 

were involved? 

Mr. BOYD. I would be happy to, Senator, and again, I am not trying to be coy at all. It is just that I have not been involved in the 

day-to-day-litigation——

Senator KENNEDY. Fair enough. 

Mr. BOYD [continuing]. But the Center for Individual Rights is 

a litigant and I would imagine we would have talked to them. 

Senator KENNEDY. OK, if you can get us that information. Before 

moving into another subject, the New York Corporation Counsel 

may have said it best: ‘‘The change of administration in Washington does not entitle the Department of Justice to walk away 

from legal positions it espoused and the obligation it entered into 

under a previous administration.’’ I know that you do not agree 

with that. That was not my conclusion, that was theirs. 

Let me go to the employment cases. I notice, according to the 

Employment Litigation Section’s own website, which was last upVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
10

dated on May 6, the Division had only filed two complaints, Title 

VII cases, one on March 20, 2002, the other May 31, 2001. Yet, in 

your opening statement, you note that you have authorized eight 

new lawsuits that are in pre-suit negotiations. Can you tell us, 

when were the complaints were actually filed on the six new cases? 

Mr. BOYD. Not all of them have been filed, Senator. The way 

things work in several of our civil litigating sections, including the 

Employment Litigation Section, the Housing Section, is that lawsuits are authorized and then the trial teams engage in pre-filing 

negotiations. In most instances, what that results in is an agreedupon consent agreement or settlement agreement that is entered at 

the same time the suit is filed. So a suit can be authorized and 

then there can be several months that transpire between the authorization to bring suit and the time the complaint is actually 

filed. I can give you examples of some of those cases. 

Senator KENNEDY. As I understand from the website, there are 

only two filed complaints on Title VII. There is obviously an enormous number of increases. In your statement, you indicated: ‘‘I 

have authorized the eight new lawsuits that are in pre-suit that 

were not reflected on this.’’ Is there any reason, without getting 

into the numbers game, that you would have the few numbers that 

you have as compared as to the average for the last 6 or 8 years, 

of some 14 cases? 

Mr. BOYD. Senator, respectfully, I would take a different view of 

the numbers. I can only authorize suits. I do not control the timing 

of the filing of those lawsuits. I have been on duty for approximately 8 to 9 months and I have authorized the filing of eight new 

Title VII cases and I would say that that is consistent with the 

kind of numbers that were filed on an annual basis in the past. 

Moreover, as the Senator knows, we have been more than a little 

busy in the Civil Rights Division dealing with the aftermath of 

September 11, the 350 hate crime investigations in which we have 

been involved, the outreach efforts that we have mounted nationwide. I have, as I said, done between 20 and 30 town meetings 

across America and even in Canada in the wake of September 11. 

So I actually think that the numbers of suits that I have authorized is not a departure from the past, but, in fact, consistent with 

the task, both in terms of quantity and quality. 

Senator KENNEDY. Did you request any additional funding, if you 

are this hard pressed, to try and deal with these additional kinds 

of——

Mr. BOYD. Senator, we supported the budget that the President 

submitted to Congress. 

Senator KENNEDY. Seventeen minutes to the Senator from——

Senator KYL. Mr. Chairman, I got here late. I am going to have 

to leave in about 3 minutes, and therefore, I would like to just yield 

to Senator Sessions. 

Senator KENNEDY. That is fine. I apologize. 

Senator KYL. Thank you very much. 

STATEMENT OF HON. JEFF SESSIONS,

A U.S. SENATOR FROM THE STATE OF ALABAMA 

Senator SESSIONS. Mr. Chairman, thanks for calling this hearing. 

It is a very important subject, the oversight of the Civil Rights DiVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
11

vision of the Department of Justice. The 13th, 14th, and 15th 

Amendments to our Constitution changed the Constitution to provide for freedom, civil rights, and voting rights for all persons, regardless of race. Congress’s enactment of Civil Rights and Voting 

Rights Acts extended those protections. The judiciary’s courageous 

decisions in the 1950s, 1960s, and 1970s played a crucial role in 

transforming those abstract guarantees into real changes that affected people’s lives. 

Yet, it was enforcement by the Department of Justice and the 

lawyers from civil rights organizations that enabled the courts to 

act that protected our citizens that made civil rights a reality for 

poor minorities in the South and around the country. Indeed, we 

have countries all over the world that have remarkably wonderful 

provisions protecting civil rights, but have no civil rights at all. 

In America, discrimination on the basis of race, origin, religion, 

or gender has no legitimate place. Over the past several decades, 

the Civil Rights Division has played an important role in delivering 

on this promise by enforcing Congress’s civil rights laws in housing, employment, and in the voting booth. 

The men and women who work at the Department of Justice are 

outstanding professionals who can be proud of the role they played 

over the years in enforcing civil rights. That said, the role of the 

Civil Rights Division is different from that of Congress, who makes 

laws, and the judiciary, who interprets the laws. To be effective, 

the civil rights laws must be enforced vigorously, but there must 

be a consideration of balance. 

Under the tenure of Bill Lann Lee and the Clinton Department 

of Justice, the Department, I believe, occasionally did lose that balance. Mr. Lee, by all accounts a very fine person, did take some 

steps that I considered out of the mainstream and not based on 

sound law. 

For example, in 1999, the Civil Rights Division brought its tremendous resources to bear against a high school in North Carolina 

in order to force that school to drop its Indian mascot. In 1998, the 

Civil Rights Division targeted the city of Torrence, California, for 

allegedly discriminating against minorities in a written test for police and firefighting jobs. The city said the tests were fair and widely used around the country. The Civil Rights Division persisted, 

sued, and a Federal judge found the suit so unfounded and frivolous that she ordered the government to cover Torrence’s legal fees 

of approximately $2 million. 

Now, Mr. Boyd, you were talking with Senator Kennedy about 

having to have facts to back up the matters when you file a case 

in court, so I would suggest this decision in 1998 would indicate 

that the Clinton Department of Justice was not always right in its 

position. Do you feel a burden to make sure that when you sue a 

city or a business, that you have the facts and the law to justify 

it and that you are not, therefore, using the power or the authority 

or the august respect the Civil Rights Division has to in some way 

abuse that group? 

Mr. BOYD. Thank you for that question, Senator. I think it is an 

important question, and let me say this. I think what you said is 

true in every case, not just a case that we bring against a municipality or another sovereign. We have an obligation as Federal prosVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
12

ecutors, as government lawyers, to get it right and to do everything 

that we can to make sure that we put ourselves in as good a position as we can reasonably be in to get it right. 

We not only have as prosecutors in the Civil Rights Division of 

the Department of Justice great statutory authority, but we also 

have great moral authority. So when we say something, courts and 

the American people ought to be able to rely on that as an unvarnished plain statement of truth, as best we can discern it. 

So in every case, Senator, I insist on three things, regardless of 

the kind of case it is. The first is that every one of our legal claims 

be supported by well-settled legal principles. We are operating 

within a legal framework. We are law enforcers, so we should be 

seen not simply as just enforcing the law, but indeed following it 

ourselves and making sure that any claim that we bring is based 

on readily articulable legal principles. That is the first. 

The second is to say that there should be a good-faith factual 

basis supporting each and every one of those legal claims. That 

does not mean that we have trial level or trial quality evidence, but 

that means we have a good-faith factual basis for claiming what we 

claim and that also means, and I insist that it mean in each case 

that we bring or consider seriously bringing, that we have done everything that we can reasonably to find out as many facts as we 

can so that we can get it right. 

Now, that means different things for different litigating sections 

within the Civil Rights Division. Obviously, the criminal section 

has the opportunity to use a grand jury and compel witness testimony in the grand jury, so the criminal prosecutors have a better 

and more full opportunity to develop the facts. On the civil side, 

you do not have the grand jury, but we should still in civil cases 

do everything that we can reasonably do to make sure that we are 

getting the facts right and that we have a good-faith factual basis 

for everything we allege in a complaint. 

Finally, with respect to the relief side, each aspect of the relief 

that we seek should again be well-grounded in established legal 

principles and also have a sufficient factual predicate. Now, that 

determination, because the relief comes at the end of the case after 

a finding of liability, that does not so much have to occur at the 

front end, but it sure better occur before the relief is arrived at, especially when it is relief that we are asking the court to embrace 

in the context of a court-sanctioned settlement agreement or consent agreement. 

I insist or will insist on that in every case that we bring. I know 

some people have said there is a change in philosophy and ideology. That is not true. What there is a change in is the level of 

expectation and preparation that I expect with respect to everything we do as law enforcers. That is what the American people expect. That is what the courts expect. 

I had the opportunity recently to have lunch with several other 

members of the Department of Justice and a Supreme Court Justice and this Supreme Court Justice reminded us that more is expected of us, that what we say in our pleadings and orally in open 

court is viewed differently. There is an expectation that we be right 

and that we do everything we can to get it right and I am absolutely determined that we do that. 

13

We will be as aggressive as the law and facts allow us to be in 

every enforcement action we bring, but it is not rough justice by 

Boyd or rough justice by any member of the Department of Justice. 

It is justice according to the Constitution and the tools that Congress has given us. 

Senator SESSIONS. Well said, Mr. Boyd. I thank you for saying 

that and I think that is important. You are speaking correctly. 

The Civil Rights Division of the Department of Justice, when it 

takes on a city like Torrence, California, and accuses them of discriminating against police and firemen, that is a serious thing. 

That city, I am sure, had to wrestle very hard with whether or not 

to continue the litigation, whether or not just to give in and agree 

to changes because they did not want to continue to be accused by 

the United States Department of Justice as being discriminatory. 

They also had to ask whether they could afford the litigation. 

So it is a power that ought not to be abused, and there are cases, 

particularly like under Adarand that we have some disagreement 

with. One columnist in the Wall Street Journal in 1998 reported 

that the acting head of the Civil Rights Division has supported unconstitutional racial or gender quotas in over 20 actions in 1 year. 

Probably, there would be a dispute and disagreement among honest people over that definition, but some of these questions are 

pretty close. 

In 1997, the Circuit Court of Appeals rendered a stinging rebuke 

to the Civil Rights Division for its handling of an election dispute 

in Dallas County, Alabama. For 4 years, lawyers from the Civil 

Rights Division investigated and litigated in an attempt to prove 

racial discrimination in a local election. This was quite a challenge 

to the local county, but they resisted and defended and believed in 

their position and decided to see it through and take it to court. 

After reviewing the record, this is what the Court of Appeals 

said: ‘‘A properly conducted investigation would have quickly revealed there was no basis for the claim of purposeful discrimination 

against black voters.’’ The court pointed out that the actual placement of Dallas County voters within districts was made by the predominately black Board of Registrars. The court then ordered the 

Department of Justice to pay $63,000 in attorneys’ fees to the Dallas County Commission because the Department had forced the 

County Commission to defend a suit that was not justified under 

the facts or the law. 

I note that the opinion was written by a United States District 

Judge from California who was sitting by designation on the 11th 

Circuit panel. This judge said: ‘‘Unfortunately, we cannot restore 

the reputation of the persons wrongfully branded by the Department of Justice as public officials who had deliberately deprived 

their fellow citizens of their voting rights. We also lack the power 

to remedy the damage done to race relations in Dallas County by 

the unfounded accusations of purposeful discrimination made by 

the Department of Justice.’’ The three-judge panel suggested to the 

Justice Department that it be ‘‘more sensitive’’ in the future to ‘‘the 

impact on racial harmony that can result from the filing of a claim 

of purposeful discrimination.’’ The court said it found the Justice 

Department’s actions were ‘‘without a proper investigation of the 

truth unconscionable.’’ ‘‘Hopefully,’’ the court goes on to say, ‘‘we 

14

will not again be faced with reviewing a case as carelessly investigated as this one.’’ Is that something that you will monitor and 

try to make sure does not occur, Mr. Boyd? 

Mr. BOYD. Absolutely, Senator. I thank you for reminding us of 

kind of the obligations that I have been talking about that we have 

as Federal law enforcers. But as I listened to you, I also feel compelled to say a couple things about the Civil Rights Division and 

the lawyers in the Civil Rights Division. 

The overwhelming preponderance of lawyers in the Department 

of Justice generally and the Civil Rights Division specifically are 

extraordinarily professional, talented, dedicated, committed folks 

who are doing tremendous good for our country and for the rule of 

law, and I have said several times that since coming to this position, I have had the honor to see some of the incredible high quality of work and commitment that those very professional and talented and gifted lawyers have done. 

Last week, I had the opportunity to travel with the Attorney 

General to Albuquerque, New Mexico; Phoenix, Arizona, and Las 

Vegas, Nevada, and when we were meeting with the Federal judges 

in Albuquerque, one of the Federal judges right out of the box took 

about 5 minutes to talk about a case that Civil Rights Division lawyers had recently tried in front of him, a case that he described as 

a very difficult case, an uphill struggle, which they prevailed in, 

and he took great care to tell me how pleased and how remarkable 

he thought the professionalism of the Civil Rights Division lawyers 

was. 

So I think it is careful for us as we go forward with all of the 

moral and legal authority that we have, and you are quite right to 

remind us that when we accuse, it carries great weight and has 

very often cascading consequences for the party that we accuse, it 

is certainly appropriate that you remind us of that, Senator. But 

I also want to be very clear to say that of the thousands of matters 

that the Civil Rights Division deals with every year, the overwhelming preponderance of those matters we are dealing with in 

an incredibly professional, capable way. We have some very committed, experienced, dedicated, talented people and I think the people of America ought to know that and feel confident about that. 

Senator SESSIONS. I agree, and I know some of them and they 

do great work. It has changed the face of my area of the country, 

the whole legal landscape, and much of that was done by the Civil 

Rights Division of the Department of Justice. When I was a United 

States Attorney, it was said that I had blocked an investigation of 

the Civil Rights Division, but in truth, as I checked the record at 

that time, I signed and supported the pleadings at every pleading 

that was filed, and there were many, many cases pending at that 

time. 

I believe in the work that you do, but just because someone says 

it is civil rights, maybe they have not done their homework. Maybe 

they have not studied the facts or researched the laws quite 

enough, and I am glad to see that you will give everyone a fair 

chance. 

I am glad that you recognize the difficult position a business or 

a political institution or a governmental institution can be in when 

the Department of Justice says, we are going to file next month a 

15

lawsuit accusing you of racial discrimination, but if you will agree 

to this consent settlement and agree to do A, B, C, and D, we will 

not file that suit. We can reach an agreement. That is the way it 

ought to be done. I am not criticizing that procedure, but do you 

recognize that gives an awful lot of power to the Civil Rights Division and you have to wield it responsibly? 

Mr. BOYD. I do, Senator, very much, and let me say this, that 

the cause of victims of discrimination, which protecting victims of 

discrimination is our principal mission, and that mission is best 

served by us discharging our responsibilities, our law enforcement 

responsibilities in a highly professional way. 

The idea of aggressive civil rights law enforcement and being 

careful, taking care in how we do that, are not necessarily contradictory concepts. In fact, they ought to be complementary concepts, and that essentially summarizes my approach. We will be 

aggressive in protecting victims. That is our mission, that is our 

job, and I will tell you, that mission in the aftermath of September 

11 is as clear as it ever could be. But it also requires us, and that 

cause of protecting victims is best served if we do it right, and that 

is what we are going to try to do as best our skills and our experience will allow us to do, Senator. 

Senator SESSIONS. Right. You should be aggressive. You should 

not allow and tolerate racial discrimination in America. But at the 

same time, you want to be professional and balanced. I like your 

remarks and thank you for them. 

Senator FEINGOLD. [Presiding.] Thank you, Senator Sessions. 

We have a vote on, so I am just going to simply recess the hearing for about 10 minutes and I will be back to resume questioning. 

Mr. BOYD. I will look forward to it, Senator. Thank you. 

Senator FEINGOLD. The hearing is in recess. 

[Recess.] 

Senator FEINGOLD. I call the hearing back to order. By the Senate’s definition of 10 minutes, we are back. 

Mr. Boyd, it is good to see you again. I would like to thank you, 

and I, of course, want to thank the Chairman, Senator Kennedy, 

and the Chairman of the Committee, Senator Leahy, for their leadership and for holding a hearing on this subject. 

Mr. Boyd, you have already talked about this a bit, but we all 

have great respect for the hard work and the dedication of our Nation’s police officers, but on occasion, some of those responsible for 

enforcing the law engage in conduct that itself violates Federal 

laws and constitutional rights. For example, racially biased policing, also sometimes known as racial profiling, is certainly, in my 

mind, an unacceptable practice that has tarnished relations between a number of police departments and the communities they 

serve. 

As you well know, because I think I have at least discussed this 

in your presence last year, President Bush and Attorney General 

Ashcroft called for a ban on racial profiling and I and some of my 

colleagues have introduced legislation to implement and enforce 

such a ban. Just 2 weeks ago, Deputy Attorney General Thompson 

assured me that the Department still explicitly supports a ban on 

racial profiling and intends to work with us to get a bill to the 

President’s desk. 

16

Investigation of police departments conducted by the Civil Rights 

Division, such as the one recently settled in Cincinnati, play an important role in addressing this problem. I would like to first ask 

you, do you regard the settlement agreements in the Cincinnati 

case as a model for addressing this concern in other cities, and if 

so, can we expect to see Civil Rights Division investigations elsewhere lead to similar reform? 

Mr. BOYD. Thank you for asking that question, Senator, and let 

me just say, before I answer your question directly, I appreciate 

and I know the Attorney General appreciates the leadership role 

that you and Representative Conyers have taken with respect to 

this issue. The issue of racial profiling is certainly one of—if not 

the most important—issue on my plate as the head of the Civil 

Rights Division, and as you correctly pointed out, Senator, during 

the Presidential campaign, then-Governor Bush made it very clear 

that he thought that racial profiling was wrong and ought to be 

eliminated. 

The Attorney General has been very clear in saying, not only is 

it wrong, it is unconstitutional, and he has tasked the Deputy Attorney General, Deputy Attorney General Thompson, with the responsibility of reviewing and studying the issue in the context of 

Federal law enforcement with an eye toward us providing some 

useful guidance about the elimination, the ultimate elimination of 

racial profiling, and we in the Civil Rights Division have been in 

the boat rowing with the Deputy Attorney General to make sure 

that that is done and done as promptly as it can be. 

I am also, obviously, aware of the bill that you have introduced 

that deals with this issue and it certainly is a good start with respect to dealing with this issue. 

As to Cincinnati in particular, the Cincinnati settlement did have 

racial profiling issues that were present, but the principal issues in 

Cincinnati involved the use of force and the alleged excessive use 

of force as a matter of practice by Cincinnati police officers. So the 

gravamen, the overwhelming weight of that agreement was focused 

on issues regarding the use of force, use-of-force policies, training, 

and reporting with respect to the use of force. So that was the preponderant issue in Cincinnati. 

But in Cincinnati and elsewhere, we have dealt with this racial 

profiling element or discriminatory police practices. The Pittsburgh 

agreement, the consent decree in Pittsburgh reflects issues with respect to racial profiling and others. 

Senator FEINGOLD. Let me follow up on the Cincinnati situation 

a little bit. The Cincinnati settlement actually incorporates by reference a city ordinance, No. 88-2001, and requires enforcement of 

that ordinance. Now, Section 1 of the Cincinnati law bans racial 

profiling and defines it as ‘‘the detention, intradiction, or other disparate treatment of an individual using the racial or ethnic status 

of such individual as a factor, other than in the case of a physical 

description.’’ Do you endorse that definition of racial profiling? 

Mr. BOYD. Anything we ask of the Department is something—

anything we ask to be part of an agreement in which we enter into, 

in that context, we do, and I do. Senator, I think what that is trying to get at, and certainly what your proposed legislation seeks to 

deal with and what I think concerns all of us is really racial stereoVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
17

typing in law enforcement, that is to say, using race as a proxy for 

enhanced criminality, and I think that is what concerns us all and 

I think that is what we are trying to deal with effectively in a careful way that does not stop us from using race as a factor in circumstances where it is justified, and your legislation talks about 

suspect-specific situations. 

Senator FEINGOLD. Let me comment on that. I think that is fine 

as far as it goes, but I think I did hear you explicitly agree that 

the language I read you is something the Department supports, 

and I want to make it clear that that is basically the definition of 

racial profiling that we have in our anti-profiling bill. So, I hope 

that your endorsement of that definition makes it as easy as possible for us to reach agreement on a bill to end the practice once 

and for all. That is similar to the type of response I received from 

the Deputy Attorney General, who certainly did not equivocate on 

the point, either. 

Mr. BOYD. Senator, I would just say, as a law enforcement body, 

if we impose a requirement on a police department of one of our 

Nation’s significant cities, that we obviously embrace it in that context. I think when Deputy Attorney General Thompson was in 

front of you, he said our mission continues to be to eliminate racial 

profiling and that is my position, as well, you should not be surprised to hear. 

Senator FEINGOLD. Fair enough. Let me say on that point that 

I strongly believe that this is not an enforcement effort that should 

sort of wax or wane depending on who is running the Justice Department. I intend to work for enactment of a law that places a 

clear, workable definition of racial profiling in Federal law, that 

bans the practice, as both the Attorney General and, I might add, 

that the President not only said it during his campaign, but I was 

in the House chamber when he made one of his very first statements as President of the United States that racial profiling should 

be prohibited. The law should also create strong mechanisms to actually enforce that ban. 

I mentioned earlier the striking similarity between the Cincinnati law and my bill with respect to a ban on racial profiling. 

For a number of reasons, and some we have already discussed, regardless of what the major point of that agreement was, the fact 

is that it had this ban on racial profiling, but there are other similarities, as well, with this agreement. 

Both my bill and the Cincinnati settlement require the creation 

of citizen complaint procedures and data collection on stops and 

procedures. The ban on racial profiling, citizen complaint procedures, and data collection, in my view, are all good steps to address 

racial profiling and should be applied nationwide, so I am glad that 

you see this Cincinnati settlement as a success story, and again, 

I see it as a way in which we can come together to pass some important legislation. 

Let me move on to one of the most important responsibilities of 

the Civil Rights Division: ensuring that law enforcement agents 

carry out their duties within the bounds of the law. One of the key 

tools for carrying out that responsibility is Section 14141 of Title 

42 of the U.S. Code, which makes it unlawful for any law enforcement agent to engage in a pattern or practice of conduct that deVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
18

prives persons of rights protected by the Constitution and the laws 

of the United States. 

Mr. Boyd, during your time as head of the Civil Rights Division, 

how many new Section 14141 cases has the Department of Justice 

filed in court? 

Mr. BOYD. I do not believe we have filed any new cases in court, 

Senator. There have been—we currently have opened a formal 141 

investigation in a number of cities, including Portland, Maine, and 

Schenectady, New York. We have preliminary inquiries underway 

in several South Florida jurisdictions. 

I should say, just to give you a sense of the order of magnitude 

of these cases and the volume of these cases, since the statute was 

enacted by Congress in 1994, there have been seven settlements. 

Three of those settlements have been achieved during the last year 

in the Civil Rights Division. We continue to have open investigations that are public in Cleveland, Ohio; Detroit, Michigan; East 

Point, Michigan; New Orleans, Louisiana; Prince George’s County, 

Maryland; Riverside, California; Tulsa, Oklahoma; and Buffalo, 

New York. 

Senator FEINGOLD. That is about settlements that have occurred 

under this administration? 

Mr. BOYD. Those are open investigations. 

Senator FEINGOLD. Those are open investigations. You mentioned 

the settlements before. But let me just make sure we agree on 

what has happened since the start of the Bush Administration in 

terms of initiating new complaints. My understanding is that there 

have been no new complaints filed against State or local police departments for police abuse or misconduct. 

Mr. BOYD. There have not been lawsuits that have been filed. 

There have been formal investigations. 

Senator FEINGOLD. And then the four formal investigations, Cincinnati, Tulsa, Schenectady, and Portland, Maine. 

Mr. BOYD. Right, as well as a number of preliminary inquiries. 

Maybe it would be helpful if I briefly described how that 14141 

process works. 

Senator FEINGOLD. Let me just ask you one other thing first, and 

hopefully we will have time for that. In your opening statement, 

you said the following about the Cincinnati settlement: ‘‘This 

unique and historic arrangement achieved real reform without the 

need for protracted litigation or a consent decree.’’ Now, how does 

your Department determine whether to initiate a pattern or practice lawsuit against a police department under Section 14141? 

What are the factors or standards that you use and how is this approach different from or similar to the standard utilized by the 

prior administration? You may well have been heading in that direction. 

Mr. BOYD. Yes. 

Senator FEINGOLD. I want to be sure that those different pieces 

are answered that I just listed. 

Mr. BOYD. And please follow up if I am not responsive to one of 

your questions. The factors and standards are the same. We review 

the record that is available to us through witness interviews from 

pleadings or depositions or testimony in other fora to determine 

whether there is a pattern or a policy and practice of a police deVerDate Mar 21 2002 09:37 May 12, 2003 Jkt 086453 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 C:\HEARINGS\86453.TXT SJUD4 PsN: CMORC
19

partment that consequently causes repetitive constitutional violations on the part of police officers, whether it is racial profiling, 

whether it is the repetitive use of excessive force. 

If I could analogize for the lawyers, it would be kind of doing a 

1983 assessment with respect to situation after situation to make 

some assessment as to whether there is some formal policy or some 

unspoken practice that is leading to some level of repetitive unconstitutional uses of authority by police officers. 

Senator FEINGOLD. This has to do with whether to initiate a lawsuit, is what you are answering? 

Mr. BOYD. That is with respect to whether to file a complaint in 

the setting of a lawsuit, but it also has to do, Senator, with whether to open a formal investigation, and this is what I was talking 

about before. In our pattern and practice, we have essentially three 

stages. One is the preliminary inquiry, where we hear concerns 

about unconstitutional patterns and practices by police departments. We do what we can in terms of factual development to see 

if there, if you will, is a ‘‘there’’ there. And then if there is sufficient evidence, then it moves to the level of a formal investigation, 

at which point it becomes public. And then, if necessary, it proceeds to a lawsuit. 

But I should say, since 1994, the Civil Rights Division has never 

filed a pattern and practice lawsuit. The formal investigations that 

have been opened have always resulted, so far, anyway, in a settlement or a consent decree that is favorable in the view of the Department of Justice. That is, it takes care or remediates the problem that caused us to look at the police department. 

Senator FEINGOLD. So, is it your belief that this administration 

uses the same approach with regard to both the filing of the lawsuit and the filing of the investigation? 

Mr. BOYD. I think we are analyzing the law in the same way. I 

think that what we are trying to do is to go into a situation and 

early on gather all of the stakeholders, if you will, in the problem, 

from the community folk who are affected by police practices, government leaders, the command staff of the police department, as 

well as the rank-and-file police officers, with a view toward fixing 

the problem and not so much with a view toward fixing the blame. 

If blame has to be assigned at some point, we will do that, but 

our view is that everybody has an interest in acknowledging issues 

where improvement or reform needs to take place, and the more 

people who have to be a part of that process for it to work in the 

long run, the more they are consulted in a part of that process 

early on, the less of a likelihood we will get bogged down in litigation. 

Senator FEINGOLD. I appreciate that. 

Mr. BOYD. Senator, if I——

Senator FEINGOLD. I only have 1 minute left, so I want to ask 

one more question. I understand what you are saying and I appreciate it, but I am taking your answer to mean this does not change 

the standard for initiating a lawsuit or commencing an investigation despite the desire to try to resolve matters in a consensual 

way. 

Mr. BOYD. You are right, Senator. 

20

Senator FEINGOLD. Mr. Boyd, I understand that in the Schenectady case, U.S. Attorney Daniel French forwarded descriptions of 

more than a dozen alleged incidents of police misconduct or abuse 

to the Civil Rights Division, but it took 1 year for the Division to 

authorize an investigation. I understand that earlier this year, you 

recused yourself from that case, but I am concerned about how long 

it took for the Department to decide whether to proceed to investigation. 

Why does it take so long for the Department to authorize an investigation of a police department, and does the Civil Rights Division have deadlines for determining whether to proceed with investigation? 

Mr. BOYD. Senator, as you correctly pointed out, I am recused in 

that case so I cannot talk about the details of the Schenectady case. 

But I can say that these investigations take a lot of careful effort 

by the trial team, by the investigative team and the Special Litigation Section of the Civil Rights Division. They go out, they conduct 

interviews, they review court pleadings, they talk to as many good 

sources, original sources of information as they can, and then they 

sit down and they do the evaluations and do the assessments. 

The idea is that there is not a deadline at the front end and the 

more careful the work that is done at the front end, the more likelihood of success when something formal is submitted or filed. So I 

am not so much concerned about how long it takes. I am much 

more concerned about the quality of the ultimate product, the quality of our ultimate judgments. 

Schenectady, during the pendency of the referral of the matter 

from the U.S. Attorney to the Civil Rights Division, during that 

time, there were a number of Federal criminal prosecutions of 

Schenectady police officers. So to the extent that there was allegedly unlawful conduct going on, it was being dealt with in the first 

instance by the criminal prosecutors outside the context of the 

14141 investigation. But our key is to get it right and to do what 

is necessary in order to get it right at the front end so that we are 

more successful, ultimately, in fixing the problem. 

Senator I also told you, to my knowledge, no formal 14141 lawsuits had been filed. I was incorrect. I had forgotten that a formal 

suit was filed in the Columbus action, in Columbus, Ohio. That is 

a pending case and I had just forgotten that it was pending. 

Senator FEINGOLD. I am pleased to have that correction. My understanding is that the investigation of the Cincinnati case started 

pretty fast after the situation there, so I would just make note of 

that and my time is elapsed. 

Senator Schumer. 

Senator SCHUMER. Mr. Chairman, thank you and I appreciate it. 

First, I want to thank you for holding these important hearings. I 

want to thank Assistant Secretary Boyd for being here. 

I have other pressing business, but I have some questions in 

writing. I wanted to submit those and ask that you, Mr. Boyd, answer those within, say, a week or so. 

Mr. BOYD. I would be happy to, Senator. 

Senator SCHUMER. They deal with predatory lending, fair housing, discrimination in housing, which is an area that has concerned 

21

me, and I again thank you, Senator Kennedy, for running these 

hearings and thank my colleagues. 

Senator KENNEDY. [Presiding.] Senator Durbin. 

Senator DURBIN. Thank you very much, and Mr. Boyd, thank you 

for joining us today. 

I suppose that there are two or three areas that I would like to 

explore with you very briefly, and one of them relates to the whole 

question of staffing at the Division. I suppose what I have been 

reading suggests that there has been an effort to move career employees out of the Civil Rights Division to other assignments, both 

permanent and temporary. I can understand in light of 9/11 that 

the Department of Justice is trying to allocate its resources most 

effectively to protect this Nation, but I am anxious to hear your explanation in reference to several specific transfers and to the policy 

in your Division. 

First, I would like to ask you about the detailing of Katherine 

Baldwin, Section Chief of the Employment Litigation Section to the 

Civil Division. Was that a voluntary or involuntary detail? 

Mr. BOYD. I asked Ms. Baldwin to take the laboring oar with respect to that very significant employment discrimination task force 

that we had recently created in response to really a decades-old expression of concern from lawyers handling employment discrimination cases, both within main Justice, and more importantly, out in 

the 94 U.S. Attorneys Offices across the country. 

I asked her—but it was a directive, I am not being cute—because 

of her experience, her temperament, her expertise in this area of 

the law, the perspective that she brings as an experienced and aggressive civil rights enforcer, as well as her, what I had observed, 

what I would describe as excellent teaching skills, which is part of 

what this task force seeks to do. I thought that within the Division, 

the Civil Rights Division, that there was really no one else who 

was close in terms of all the qualifications we were looking for for 

the person that would really take the laboring oar on that task 

force. 

Senator DURBIN. So did this leave a gap in terms of the talent 

pool in the Civil Rights Division because of your decision? 

Mr. BOYD. It really did not, Senator. I am glad you asked the 

question because what it did, at least temporarily, was give me the 

opportunity to elevate to the Acting Chief position an experienced 

Hispanic American lawyer in the Civil Rights Division, David 

Palmer, and although I am delighted at the opportunity to be able 

to give that incredibly good and experienced and committed public 

servant an opportunity to serve as Acting Chief. 

I am sorry to say that Mr. Palmer is the first Hispanic American 

to serve as a section chief of one of the litigating sections in the 

45-year history of the Civil Rights Division, and so from my perspective, it was a win-win proposition. Ms. Baldwin was going to 

be taking the leading and the laboring oar with respect to a very 

important initiative of this Department. 

Senator DURBIN. Is hers a temporary reassignment? 

Mr. BOYD. It is, and I believe it is 120 days, or 240 days. 

Senator DURBIN. Is she going to return to her previous position? 

Mr. BOYD. My expectation is that she would, but I often get 

asked questions about future staffing decisions, Senator, and I try 

22

not to be cute, but I say it depends on all the important circumstances that are then present. But when I assigned her to this 

task force, the expectation was that it would be temporary. 

Senator DURBIN. Can you tell me, as of today, how many career 

Civil Rights Division attorneys have been detailed out of the Division? 

Mr. BOYD. I do not know the answer as I sit here, but very few, 

and let me say this, if I may, Senator. I am told—I was not here 

and I certainly was not keeping score, but I offer it just as a matter 

of perspective—I am told that in the prior administration, there 

were five section chiefs, five out of 11 section chiefs, five out of nine 

litigating section chiefs in the prior administration that were permanently reassigned. As a matter of perspective, I have reassigned 

temporarily one section chief. 

I would also say, Senator, that when I arrived in the Civil Rights 

Division, there were three front office personnel from the prior administration occupying senior front office positions—Deputy Assistant Attorney General, Counsel to the Assistant Attorney General—

from the prior administration, including the prior administration’s 

Chief of Staff. I kept all three of them on my front office staff either as Deputy Assistant Attorneys General or as Counsel to the 

Assistant Attorney General to me. So I cannot say that that is unprecedented, but I would be surprised if there were any prior administration that kept in the front office the previous administration’s Chief of Staff. 

Senator DURBIN. There are unconfirmed reports that about 20 or 

30 Division attorneys have been assigned to terrorism investigation 

and prosecution and that you are seeking additional attorneys to 

leave your Division for terrorism work. Is that correct? 

Mr. BOYD. I cannot verify the number, but there have been a 

number of attorneys who have volunteered to assist the Criminal 

Division in the really overwhelming burden they have of reviewing 

evidence and documents with respect to the terrorism investigation. So, yes, there have been not an insignificant——

Senator DURBIN. Do those numbers sound accurate? 

Mr. BOYD. They sound like a correct ballpark figure. 

Senator DURBIN. So has that had any impact on the quality of 

work in the Civil Rights Division? 

Mr. BOYD. It has had no impact on the quality, and I do not 

think, candidly, Senator, that I have at least seen or am aware of 

it having remarkably an impact on the quantity. I mentioned, and 

you were not here for it, when Senator Sessions was asking questions about the remarkable commitment and productivity of the 

lawyers who work with me in the Civil Rights Division, and I think 

what it has meant is that—it is just like when the star player gets 

injured or a number of star players are injured, other people pick 

up the slack. I think in large measure——

Senator DURBIN. I would think that the departure of 20 or 30 of 

your better attorneys to an important assignment, no doubt, would 

have some measurable impact, but I will take that at face value. 

Mr. BOYD. Senator, we have almost 400, and I am not sure that 

all those persons were attorneys. I think some may have been legal 

assistants. 

23

Senator DURBIN. Let me ask you about this. There seems to be—

I do not understand it and I am going to ask you to explain it—

there seems to be an interesting contrast here. When you have 

been asked about speaking directly to defendants in cases involving 

civil rights, like Adam’s Mark, you have argued that this kind of 

open dialog sometimes leads to progress being made and goals 

being achieved, and you do not think that that is necessarily in and 

of itself a bad idea. And yet we see reports, press reports, that career employees within your own Division are being cautioned not 

to speak to people on Capitol Hill or to the press or to organizations outside of the Department of Justice. 

Explain to me the standard that you are applying here, where on 

one hand it is a reasonable and thoughtful thing to have this dialog, and yet on the other hand it is dangerous for your employees 

to speak out of school. 

Mr. BOYD. Thank you for that question, Senator. I am glad you 

raised it, because it has come up in the media and I have not had 

a chance to address it, so I appreciate you giving me that opportunity. 

There is a clear distinction and it is this. I have a complete open 

door policy both within the Division and outside the Division. That 

is to say, any responsible voice who wants to weigh in on the merits of an issue that is before us, I am happy to hear from. It helps 

us get it right. 

It is why I have met probably on at least 20 to 30 occasions with 

representatives of the civil rights community with respect to a 

whole range of issues. I also repeatedly, in addressing the career 

attorneys in the Civil Rights Division, encouraged those attorneys 

to come talk to me about their cases, to come talk to me about 

pending issues that they feel strongly about, especially if they disagree with where they think an ultimate decision is going, and I 

should say that in the overwhelming preponderance of cases we 

have, over 99 percent of the cases, there is absolutely no dispute 

about what to do and there is consensus. 

In the less than 1 percent of the instances in which there is a 

difference in how we should proceed, I encourage our staff attorneys to come see me. What I often say is—fortunately, I do not 

need a lot of sleep, Senator. I come in at somewhere around 6 a.m. 

and I leave around 8 to 8:30 p.m. and I say my door is open, either 

on formal scheduled invitation or if you just show up during those 

hours, I will see you. 

Senator DURBIN. I accept that premise. Now let us go to the second part——

Mr. BOYD. Yes. The second part of the question is it is very simple in this respect, Senator. Internal deliberations, internal law enforcement deliberations that the Department engages in are deliberations about how to handle a pending law enforcement matter. 

These lawyers in the Department of Justice, by Justice Department 

rule and regulation, and also by rule and regulation of the sanctioning bodies of the bars of the several States, require that confidential information not be disclosed to outside parties. It is——

Senator DURBIN. So it is strictly limited to confidential information cannot be disclosed——

24

Mr. BOYD. It is attorney-client information, but it is the substance of our deliberations about pending law enforcement matters. 

Senator DURBIN. So there is no prohibition against your career 

employees or other Civil Rights Division employees having conversations about the policy, for example, of how civil rights laws 

are being enforced in the most general way without reference to a 

specific case? I think what we have here, and reports out of the 

Washington Post, the most recent article, suggest that some employees within your Division do not see this as being such a clear 

line that you have drawn. They feel that you have discouraged 

even the most basic dialog about the policy and enforcement of civil 

rights laws under the Bush administration’s Department of Justice, 

and that, of course, raises some troubling possibilities. 

So can you clarify that in terms of a memo that you are going 

to present to your employees so that there is no doubt that you are 

talking about conversations relating to specific cases before the 

Civil Rights Division? 

Mr. BOYD. Yes, Senator, and let me say this. If it were true, what 

you have suggested the Post has reported or some people have said, 

if it were true, it would be troubling. I am happy to be able to tell 

you it is not only not true, it is patently false. 

We have career attorneys in the Civil Rights Division who every 

week, if not every day, are speaking to a wide range of organizations, groups, symposia, town meetings about the very things that 

you are talking about. It happens literally every day. We have 

done, for example, with respect to our response to backlash discrimination in the wake of September 11, we have literally conducted hundreds of outreach meetings——

Senator DURBIN. Let me use one specific example, because this 

article relates to your September 28 memo, issued after some lawyers in the Civil Rights Employment Litigation Section voiced dissent internally over the government’s withdrawal from an employment discrimination case brought during the Clinton administration. Now, that clearly is not a pending case or would jeopardize 

attorney-client privilege, as I read it on its face, if this has been 

a decision by the Civil Rights Division under your leadership to 

withdraw from a case that was already being undertaken by the 

Department. 

So, you are saying, from your point of view, that is all right. You 

do not have a problem with people speaking out if they disagree 

with the policy in the Civil Rights Division? 

Mr. BOYD. No. People can offer whatever judgment they want 

about whether a particular decision is, on the merits, right or 

wrong. What they are not permitted to do is to disclose the internal 

deliberations in which they engaged as advising me. They are not 

allowed to—and this is well settled Department of Justice policy 

that dates back generations, it is also well settled lawyer professional responsibility ethics—you are just simply not allowed to discuss the details of client confidences or internal Department of Justice deliberations. 

Now, anybody in the world is free to say, Boyd was right or 

wrong in a particular discussion with anyone. I mean, Senator, believe it or not, I value, I value dissent. I value dialog. I value difference because it helps us get it right. 

25

Senator DURBIN. Let me just suggest, because my time is up, it 

might be, if that is your philosophy and your point of view, it might 

be worthwhile for you to consider another memo to the Division, 

because at least there is some uncertainty among the attorneys 

who serve with you. 

Mr. BOYD. Thank you, Senator, and I will, and if I can respectfully just say very briefly, the memo to which you refer is not a 

memo that I prepared or had any role in. It was a memo that was 

drafted at the request of a career lawyer within the Department of 

Justice, David Margolis, who is one of the most respected and revered members of the Department of Justice, who served many administrations, both Democratic and Republican, and it was prepared by a member of the Office of Professional Responsibility. So 

it simply dealt with very clear-cut professional and ethical obligations of lawyers. It has nothing to do at all with appropriate dialog 

or dissent about general positions. 

Senator DURBIN. Thank you very much. Thanks, Mr. Chairman. 

Mr. BOYD. Thank you, Senator. 

Senator KENNEDY. Senator Edwards. 

Senator EDWARDS. Thank you very much, Mr. Chairman. 

Mr. Assistant Attorney General, good afternoon. 

Mr. BOYD. Good afternoon, Senator. 

Senator EDWARDS. I want to talk with you about voting rights. 

As you know, there were a lot of problems in the 2000 election and 

none of us want to see those problems show themselves again in 

the upcoming election. 

Mr. BOYD. Sure. 

Senator EDWARDS. As you certainly know, the Justice Department has a lot of responsibility for stopping those problems, particularly since our election reform bill that has passed the Senate 

is in conference now and has not become law. 

In December of this last year, I wrote to the Attorney General 

and asked several questions, including whether the Justice Department initiated any enforcement actions based upon the problems in 

the 2000 election. In February, I received a response from the Justice Department. The response did not identify any enforcement actions. It said, and I am quoting now, that several investigations 

were ‘‘open and pending’’ and that ‘‘we expect to make final decisions in the near future.’’ It has now been over 18 months since the 

election of 2000. How many voting rights actions has the Civil 

Rights Division filed arising out of that election? 

Mr. BOYD. Senator, thank you for the question. This is an area 

that I thought we would get to sooner or later and I am glad we 

got to it. I thank you for raising the issue. 

We have not filed any lawsuits yet, and if I can perhaps, to answer your question more fully, just lay out as succinctly as I am 

able kind of the process and where things are. 

In the aftermath of the 2000 Presidential election, the Civil 

Rights Division received almost 11,000 complaints, inquiries, expressions of dissatisfaction about various things, people offering 

opinions about the election, the outcome, the judicial proceedings 

in the wake of the election, a whole variety of things. We retained 

and hired contractors to help us deal with that volume of calls, almost 11,000 calls. We also coordinated with the NAACP and the 

26

Florida Attorney General’s Office, who were also collecting information or complaints about the election or the election processes. 

By January of 2001, the career staff in the Voting Section of the 

Civil Rights Division had whittled all of that information down to 

12 live investigations, 12 potential cases, if you would. Later, two 

cases were added, so 14 in total out of the mass of 11,000 contacts 

or communications, and I should underscore that most of those 

communications were not substantive complaints. They were expressions of dissatisfaction or offering opinions or points of view 

about what was transpiring. So most of that did not fall within our 

enforcement jurisdiction. 

Since that time, those open investigations have been whittled 

down further, and I should tell you that kind of the range of issues 

that those 14 investigations dealt with were allegations of improper 

voter roll purges, registration problems, failures to provide accesses 

that the law requires for disabled voters, the failure to provide bilingual materials in covered jurisdictions, covered jurisdictions 

within the meaning of Section 203 of the Voting Rights Act, allegations that limited English proficient voters had been denied assistance which they are entitled to at the polls if they so seek it, and 

also some allegations of disparate treatment of some minority voters. So that is kind of the universe of what we were dealing with. 

Since that time, we have made great progress and I have authorized the filing of several lawsuits, both in Florida and outside of 

Florida. Because those are ongoing investigations, because they are 

the present subject of pre-filing negotiations, which is a typical 

practice in this area, I cannot really comment on them further. 

But it certainly was my hope that I would, by the time of this 

hearing, would be able to say more about it, but I simply will say 

that I have authorized the filing of some lawsuits, and the way it 

typically unfolds is that there are pre-filing negotiations, and very 

often, if the jurisdictions are cooperating, which I understand from 

our career Voting Section staff, the jurisdictions involved here, the 

subject jurisdictions are, in fact, working cooperatively with us to 

reach some enforceable agreements with respect to those identified 

problems. What will typically happen is the complaint will eventually be filed, but simultaneous with the filing of the complaint will 

be a settlement agreement or a consent decree that has the imprimatur of the court. 

Senator EDWARDS. Let me make sure I followed all that. So you 

have done some investigating. You have filed no lawsuits so far, is 

that right? 

Mr. BOYD. We have not filed any so far, that is correct, Senator. 

Senator EDWARDS. You yourself have personally authorized the 

filing of a number of lawsuits. Can you tell me how many? 

Mr. BOYD. That is correct. Senator, I would prefer to stay away 

from it at this point. We will, at the time the investigation and the 

negotiations are concluded, will certainly be prepared to make that 

as a matter of public record. 

Senator EDWARDS. What problem would there be in telling me 

how many you have authorized——

Mr. BOYD. I do not want to——

Senator EDWARDS. I am just trying to get some sense——

Mr. BOYD. No, I do not want to be coy, Senator. It is five. 

27

Senator EDWARDS. Five? 

Mr. BOYD. Five. 

Senator EDWARDS. OK. And out of those five lawsuits, in how 

many of those lawsuits are you engaged in what you would consider serious pre-filing negotiations? 

Mr. BOYD. Every single one of them, Senator. 

Senator EDWARDS. Do you have any expectation, based upon the 

present status of those negotiations, on the likelihood in each case 

of—I am not asking you to go one by one, but the likelihood in each 

case of actually reaching an enforceable settlement agreement prior 

to filing? 

Mr. BOYD. My hope, my aspiration, and my expectation is that 

in each of those, we will reach an enforceable agreement prior to 

the filing of the lawsuit. My understanding is that the jurisdictions 

have been cooperating, that they have acknowledged certain deficiencies that we have identified and that—and so my expectation—

of course, there are no guarantees, but my expectation is that at 

the time we file suit in each of those five instances, that we will 

have either agreed upon enforceable settlement agreements or consent decrees that have been assented to. 

Senator EDWARDS. Of course, you know that my concern, our concern about this is reaching some conclusion that is in effect by the 

2002 elections. Can you tell me what geographical areas are covered by these suits? 

Mr. BOYD. They all involve, with two exceptions, the State of 

Florida. Can you hold on for a second? 

Three of them are in Florida, Senator, and the others are in Missouri and Tennessee. 

Senator EDWARDS. OK. So the five suits you have authorized, 

three are in the State of Florida, two are in Missouri——

Mr. BOYD. One is in Missouri and one is in Tennessee. 

Senator EDWARDS. One is in Tennessee. The lawsuits in Florida, 

do they cover the entire State of Florida or are they isolated areas 

of the State? 

Mr. BOYD. No, they cover particular counties in Florida. 

Senator EDWARDS. OK. Are you able to tell me which counties 

are involved? 

Mr. BOYD. I am not. I am not, Senator. 

Senator EDWARDS. OK. 

Mr. BOYD. Although I know that you are a trial lawyer and you 

are doing the progressive cross examination to get to what I said 

I could not give you. I appreciate that, but I cannot, Senator. 

Senator EDWARDS. What about the States of Tennessee and Missouri? Are those also regional lawsuits? 

Mr. BOYD. They are regional specific. They are district specific. 

Senator EDWARDS. OK. 

Mr. BOYD. Municipality specific. 

Senator EDWARDS. Can you tell me what substantive issues are 

involved in the cases? 

Mr. BOYD. The issues that I talked about, failure to provide bilingual assistance and bilingual materials in jurisdictions that are 

covered by Section 203 of the Voting Rights Act. In at least one instance, there are allegations of disparate treatment of minority voters. In another instance, there is a failure to provide for access to 

28

disabled voters. And also, under Section 208 of the Voting Rights 

Act, the failure to allow limited English proficient voters to have 

assistance in voting at the polls. 

There is widespread misunderstanding among poll workers a lot 

of places that a voter cannot be helped by someone else in the voting process and that is a misconception. That is a misunderstanding of voting rights laws. I understand Section 208 of the Voting Rights Act, for English proficient people, they have a right to 

be assisted at the polls if they so choose. 

Senator EDWARDS. Can you tell me what the substantive issues 

are in the three Florida cases, not specific, one by one, but just in 

general, what issues are involved? Are they the ones you just mentioned? 

Mr. BOYD. Yes, the ones I just mentioned. 

Senator EDWARDS. OK, the same issues involving Florida? 

Mr. BOYD. It is Florida. 

Senator EDWARDS. OK. 

Mr. BOYD. There are, in some——

Senator EDWARDS. Missouri and Tennessee, are they different? 

Mr. BOYD. And some of the issues also involve, as I understand 

it, allegedly improper voting roll purges as well as NVRA—motorvoter—Act violations. 

Senator EDWARDS. I am sorry, could you give me the last part 

one more time? 

Mr. BOYD. Yes. The NVRA, which is the National Voter Registration Act, requires that voting jurisdictions make enrollment and 

registration materials available in certain public places and there 

are allegations of violations of that Act. 

Senator EDWARDS. Well, of course, what we need to make sure 

is that we take steps quickly enough to ensure that the problems 

that occurred in the last election do not occur in the next election, 

and I assume that would be your goal in this process, is that correct? 

Mr. BOYD. That is exactly right, Senator, and you missed my earlier dissertation. You were spared that dissertation. But one of the 

things I talked about is it is important for us to move promptly but 

it is more important that we proceed in a thorough and careful way 

to make sure that we get it right, and that is what we are really 

trying to do, and we are trying to get it right without regard to the 

political implications for anyone. 

We are, as I said during my confirmation hearing, we are going 

to follow the investigative trail, the evidence, wherever it goes, 

without regard to politics, and without regard to who, if anyone’s, 

ox is being gored, and that is precisely what we are doing in Florida and we are trying to take the time necessary to get it right. 

Senator EDWARDS. When will the lawsuits be filed? 

Mr. BOYD. I cannot give you a specific date. As I said——

Senator EDWARDS. Can you give me a timeframe? 

Mr. BOYD. You can draw a reasonable inference from the fact 

that I was hopeful that I would be able to announce them prior to 

today, but it will be, I am very confident, well in advance of the 

primaries for the November 2002 elections. 

Senator EDWARDS. Which means what, within the next 30 to 60 

days? 

29

Mr. BOYD. I would hope so. I would be surprised, disappointed, 

if we were not. But again, I do not want to be nailed down to a 

particular deadline, but I do not think that the date you have offered is unreasonable. I think that that is likely or probable. 

Senator EDWARDS. OK. So you think it is likely or probable that 

the lawsuits we are talking about will be filed in the next 30 to 60 

days, is that what you are saying? 

Mr. BOYD. Right, and it would be my hope that they would be 

filed contemporaneously with settlement agreements or consent decrees that are enforceable. 

Senator EDWARDS. Thank you very much. 

Mr. BOYD. Thank you, Senator. 

Senator EDWARDS. Thank you, Mr. Chairman. 

Senator KENNEDY. Senator Sessions, I have just one area in conclusion. Thank you. 

In the private meetings, you have indicated the Department is 

still studying the hate crimes bill. Has the Department finished its 

study of the bill and reached a conclusion about support for S. 625? 

Mr. BOYD. We have not, Senator, but I will say, I do not think 

I am disclosing any of our ongoing deliberations to say that we are 

happy with your continued leadership on this issue, the leadership 

of Senator Hatch. I know Senator Specter continues to be concerned about this issue. Certainly, we are happy to see provisions 

in S. 625 that recognize the role that all of the sovereigns, if you 

will, have in combatting hate crimes, State and local government. 

I note that S. 625 has provisions that would provide Federal investigative and prosecutive assistance to State and local jurisdictions 

who are dealing with hate crimes, that it also would permit the Attorney General to give grants to those jurisdictions and also provides for funding over the course of the next 2 years and I think 

we are very happy with those aspects of the bill and we continue 

to deliberate the important issues that the remainder of S. 625 

raise. 

But I can tell you, and the Senator has heard me say this before, 

my background is as a Federal prosecutor, as you know, and I can 

just say that the tools that you give us, that the Congress gives us, 

will be arrows in our quiver that we will use without hesitation, 

Senator. 

Senator KENNEDY. The leader has indicated that we will have 

this measure, S. 625, on the floor either at the end of this week 

or when we return, so I draw that to the attention of the Department for their consideration. 

On the hate crimes, and I conclude from what you have said that 

you still have not taken a position on the specific legislation? 

Mr. BOYD. That is correct, Senator. 

Senator KENNEDY. On May 2, you wrote a letter to me on the 

questions about the hate crimes. Excuse me, Daniel Bryant, the Assistant Attorney General, wrote to me about the important work. 

‘‘Thank you for meeting with Assistant Attorney General Boyd. 

This letter provides additional information your staff requested.’’ 

Point one makes the summary of the Civil Rights Division and 

point two is hate crime prosecutions that are unrelated to the 

events of September 11. ‘‘The Division has prosecuted 25 cases 

under the hate crimes statute since January 20, 2001,’’ and then 

30

it, in addition, has initiated hate crimes investigations, 327 since 

that date. 

Relating to the events of September 11, the Division has prosecuted ten cases and has investigated 350. Then you provide the 

list of the cases the Department has provided. In the list of the 

cases, of the ones that you have indicated of the civil rights enforcement outreach following September 11, only three of the ten 

are actually under the hate crimes statute. The rest of them are 

not. And of the 25 hate crimes, not including Attachment 2, the 25 

cases, there are only three cases that use 245, U.S.C. Section 241 

and 245. 

As I understand it, we were told the Division had prosecuted 25 

hate crimes in the last 16 months that are unrelated to September 

11 and an additional ten hate crimes stemming from September 11. 

Of the 25 cases unrelated to September 11, only three were 

brought under 245 and only three of the ten post-September 11 

prosecutions were brought up under 245. That means barely 17 

percent of the cases listed by the Department as hate crime prosecutions were actually brought under the Federal hate crimes statute. 

Mr. BOYD. Senator, I must confess, the numbers I am looking at 

are different. We had, and I think reported to you that we had in 

the wake of September 11 approximately 350 backlash hate crime 

investigations and the number of non-backlash hate crime investigations was, I believe at the time we spoke, 327, which I now understand is up to 343. 

But as I sit here, I cannot say with any kind of certainty with 

respect to which particular statutes those cases are charged under. 

But as the Senator knows, we have got a wealth of statutory authority, 241, 242, 245, 247, and certainly some of these hate crimes, 

particularly the backlash hate crimes, are brought under 247, 

which is damage or destruction to a place of worship, and in the 

backlash context, that would certainly cover the mosques that have 

been attacked either by fire or some other means. 

Senator KENNEDY. Well, there are two points that I want to mention. When asked about the prosecutions that are unrelated, the 

Division states it has prosecuted 25 cases under hate crimes statutes since, and ten cases of backlash discrimination as well as having investigated many others. Yet, only three used the statute. So 

at a time that Congress is trying to pass legislation, you are indicating to us that the numbers that you are able to use in terms 

of the hate crime statute are inflated. You are prosecuting them 

under other statutes. That is one of the points that we are getting 

to in terms of the hate crimes. It has to be under Federal activity 

under the existing statute, but under our bill, obviously, it is much 

broader. 

Mr. BOYD. Senator, let me just offer this——

Senator KENNEDY. This is an area that we are enormously interested in. In fairness, I want to give you a chance to look through 

this. This is a letter not from you, but it is from the Justice Department and it is dealing with hate crimes and it lists the numbers 

here. Rather than asking you to go on though, I would be glad to 

have you answer. 

31

Mr. BOYD. Senator, I am looking at the attachment that apparently accompanied what you are talking about and I am seeing—

I am not going to sit here and add each one of them up, but a 

plethora of cases that are brought under hate crimes statutes. I see 

a number that are brought under 42 U.S.C. 36–31, which is hate 

crimes in a housing context——

Senator KENNEDY. That is housing discrimination. 

Mr. BOYD [continuing]. Housing context, that is right. There are 

hate crime cases that are charged under 241, 245, and they go on 

and on. 

So I certainly concur with your point, Senator, that the proposed 

legislation that you sponsored, S. 265, is broader than Section 245 

of Title XVIII. That is inarguably true. I just simply want to make 

sure the record is clear that we are bringing and have brought a 

number of hate crime prosecutions. What I am looking at looks to 

be in excess of 30 cases laid out that are not related to September 

11 that are brought under a wide range of statutes from 245 to 247 

to 241 of Title XVIII and then Title 42, Section 36–31, as well. 

There are 27 since——

Senator KENNEDY. Let me ask, do you believe that the Federal 

Government and the Civil Rights Division has less of an interest 

in combatting hate-motivated violence against gays and lesbians 

than hate-motivated violence against individuals based on race or 

religion or national origin? 

Mr. BOYD. Senator, I believe that as a Federal prosecutor and as 

the head of the Civil Rights Division, our mission and our interest 

is in protecting all people against any kind of violence, especially 

bias-motivated violence that is based on some impertinent or immutable characteristic of a person. So with respect to the positions 

we take about your legislation, the Department will speak with one 

voice and I would respectfully decline until——

Senator KENNEDY. I am trying to get that voice to be here this 

afternoon. 

Mr. BOYD. No, I understand that, but I also know, Senator, that 

you understand that the Department speaks with one voice on a 

matter of policy and my positions are positions that I share and I 

can assure you I share with the Attorney General of the United 

States as we try to determine what our voice will be. 

Senator KENNEDY. Just finally, on the Brennan case, was there 

a written opinion on the Brennan case? Could you provide that to 

us? 

Mr. BOYD. I believe there was a written opinion, when the original trial team informed me that they had sought an opinion about 

their professional responsibilities and obligations in Brennan, that 

there was a written advisory from the Office of Professional Responsibility. 

Senator KENNEDY. Would you provide that? 

Mr. BOYD. Let me say this, Senator. If it is appropriate to provide it as a matter of policy, I would be happy to provide it. It 

would be helpful for your understanding fairly and accurately what 

went on here. I offer the following caution, though. As I think the 

Senator knows, it has been the longstanding policy of the Department not to——

32

Senator KENNEDY. It has been provided in the past, I would like 

to get that. 

Mr. BOYD. Senator, let me offer this. The Brennan case, in the 

work that we do to protect victims of discrimination, is really important and I would be delighted at any time at your urging to continue our conversation about our position in Brennan or any other 

case that we are in the process of dealing with. I am happy to have 

your input. I am happy to have the dialog. The more committed 

minds that are looking at an important issue, the better opportunity we have of getting it right. 

Senator KENNEDY. I will ask that Senator Leahy’s statement be 

included in the record. 

[The prepared statement of Senator Leahy appears as a submission for the record.] 

Senator KENNEDY. I have no further questions. I want to thank 

you very much, General Boyd. You have great responsibility in this 

area of civil rights and we want to work with you to make sure 

that this is done in a way which represents the intent and the letter of the law. Our Committee is grateful for your presence here. 

Senator SESSIONS. Mr. Chairman, may I offer for the record a 

statement of Senator Hatch, Ranking Member on the Committee, 

in which he praises Mr. Boyd’s leadership since he has been in the 

Civil Rights Division. 

[The prepared statement of Senator Hatch appears as a submission for the record.] 

Senator SESSIONS. Also, I would offer an article by John Leo referring to the lawsuit filed by the previous administration over the 

use of Indian nicknames by high schools, a case that I cited, U.S.

v. Williams, in which the Civil Rights Division awarded, I believe, 

$63,000 in fees for improper actions during the time before Mr. 

Boyd took over, and another article I referred to from the Wall 

Street Journal.

Senator KENNEDY. Fine. They will be included as part of the 

record. 

Senator SESSIONS. I would also ask that a statement from Senator Grassley be included in the record. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Senator KENNEDY. The hearing will stand in recess. 

[Whereupon, at 4:40 p.m., the hearing was adjourned.] 

[Questions and anwers and submissions for the record follow.]

33


86453.015
34


86453.016
35


86453.017
36


86453.018
37


86453.019
38


86453.020
39


86453.021
40


86453.022
41


86453.023
42


86453.024
43


86453.025
44


86453.026
45


86453.027
46


86453.028
47


86453.029
48


86453.030
49


86453.031
50


86453.032
51


86453.033
52


86453.034
53


86453.035
54


86453.036
55


86453.037
56


86453.038
57


86453.039
58


86453.040
59


86453.041
60


86453.042
61


86453.043
62


86453.044
63


86453.045
64


86453.046
65


86453.047
66


86453.048
67


86453.049
68


86453.050
69


86453.051
70


86453.052
71


86453.053
72


86453.054
73


86453.055
74


86453.056
75


86453.057
76


86453.058
77


86453.059
78


86453.060
79


86453.061
80


86453.062
81


86453.063
82


86453.064
83


86453.065
84


86453.066
85


86453.077
86


86453.078
87


86453.079
88


86453.067
89


86453.068
90


86453.069
91


86453.070
92


86453.071
93


86453.072
94


86453.073
95


86453.080
96


86453.081
97


86453.074
98


86453.075
99


86453.092
100

Æ


86453.093