There have been numerous pieces of civil rights legislation that have been passed by Congress and signed into law by the President. These laws attempt to be, with varying degrees of success, a bulwark against discrimination and oppression in many areas of American life, from voting to education to criminal justice. These laws, however, are only as effective if the government agencies and officials that are tasked to enforce them do so effectively.
If an administration disagrees with a law, or with its application to particular circumstances, but lacks the political capital to change the law, officials sometimes appear to underenforce or ignore the law, reinterpret its meaning to avoid enforcing it, or enforce it differently than Congress intended or the plain language demands.
Our panel will discuss the ways that administrations and administrative agencies can, have, and have not selectively enforced the laws designed to protect civil rights in the United States, and what consequences this discretion has on society and the polity.
Hon. Kenneth L. Marcus: -- former Assistant Secretary of Education for Civil Rights. But, before I do that, a word about the panel and our topic on "Selective Enforcement of Civil Rights Laws." It has been a pleasure, throughout the day, to hear aspects of this topic, more generally. I will say that, for me, having previously headed OCR during two Republican administrations, it's a topic that's been very much on my mind. For example, during the prior administration, OCR advanced cases involving racial preferences in higher education, involving transgender issues in women's sports, involving racial segregation of affinity groups.
And in each of these cases, the incoming administration is not advancing them, raising questions of whether the prior administration was over-enforcing, whether the current administration is under-enforcing, or whether the difference is an appropriate response to changing administrative priorities, or whether it's an abdication of law. At the same time, while I am aware that this administration has been harshly criticized by some for not pursuing certain claims available to it, it's also the case that prior Republican administrations have also been criticized.
For example, I certainly was publicly criticized for focusing on certain issues, like racial preferences in higher education or hostile environments for Jewish students, and not focusing on pursing claims against people who had not violated any laws. Here again, the question is, is this an appropriate response to limited budget, to changing priorities, or to the fact that some cases may seem more compelling, based on the evidence, than others?
In the case of my prior agency, the bulk of these cases were ones within a mandatory jurisdiction, that is to say, these were not cases that were pursued in a proactive way, but, rather, were a matter of enforcing cases brought to the agency by others. But, here again, the administrations take different views of what's required, whether a particular complaint states facts, which, if true, would violate the law or not. And there are different positions on this.
So I'm particularly interested today in different views on the question of selective enforcement, which could mean overenforcement, it could mean underenforcement, or it could mean rather dramatically changing enforcement, based on considerations that might be appropriate or might not be. And then there is the question of whether there are principled, non-politically-substantive criteria by which we must ask whether administrations must go after certain kinds of claims or not.
I'm pleased with this panel. I think we have three outstanding panelists. And I'm very proud, on behalf of the Civil Rights Practice Group, to introduce them. I think it's a balanced and complete panel. I've been asked to mention, though, that, if it is, in fact, a perfect and complete panel, that is the result of failure by The Federalist Society to entice certain other people. Because, just as Dean Reuter mentioned earlier today that there were some 50 progressives who had declined invitations, I will acknowledge that there were some 18 of them that we had asked if they would join this group, in an effort to have more progressive voices than we have here. And I mention that number, because I think that, once again, we have — through that number, 18 more than any other practice group — defeated the Litigation Practice Group, the Antitrust Practice Group, and the Administrative Law Practice Group. And that's really what it's about. So, well done, Civil Rights Practice Group.
In all seriousness, I want to commend the members of this panel for their willingness to participate in this and to model civil discourse. I have been proud of The Federalist Society for its, not just willingness, but eagerness to attract diverse voices and different perspectives on issues, which I think is very much for the benefit of our membership and our audience.
So, without going further, I am going to introduce our panelists today. Hans von Spakovsky is a Senior Legal Fellow and Manager of the Election Law Reform Initiative in the Edwin Meese Center for Legal and Judicial Studies at the Heritage Foundation. He was formerly a member of the Federal Election Commission, and was Counsel to the Assistant Attorney General for Civil Rights. Hans asked me to mention that he will need to leave somewhat before the end of this event, in order to catch a flight. For those of you who would otherwise be inclined to mob him for autographs, I have been authorized to sign his name to anything, including bar bills up to $100.
Samantha Harris is an attorney, a founder and a partner at Allen Harris, who has dedicated her career to protecting free speech and civil liberties. Her advice has guided students, faculty, and administrators on issues of free speech and due process on campus, for more than 15 years.
Professor Renee Landers is a Professor of Law at Suffolk University Law School in Boston, and former Chair of the Section of Administrative Law and Regulatory Practice of the American Bar Association. She served in senior positions in the Clinton administration, including as Deputy Assistant Attorney General in the Office of Policy Development at the U.S. Department of Justice. All of these panelists, as impressive as those credentials are, have a much wider list of accomplishments, available on various websites, including The Federalist Society. We will begin with our first speaker, Hans von Spakovsky.
Hans. A. von Spakovsky: Thanks, Ken. And thank you, Samantha and Renee, for coming. Renee, I should tell you, I do have a sister-in-law who went to Suffolk Law School. She does not share my political beliefs, but she did like the school. Look, we're talking here about selective enforcement of the Civil Rights Act. And I want to make two points about this. There is selective enforcement. And there is also an abuse of governmental power, under those same civil rights statutes.
The selective enforcement is due to the pervasive one-sided bias that exists, not only in the Civil Rights Division of the Justice Department, but also in the so-called civil rights organizations that have been around now for a long time. And what is the reason for that selective enforcement? Because they do not believe that the statutes, the Civil Rights Act, the Voting Rights Act, should be enforced the way they were written, which is on a race-neutral basis.
Both of those laws protect everyone from being discriminated on the basis of race. But, neither the career lawyers inside the civil rights divisions, except for a tiny percentage, believe that to be true — and I have personal experience with that — and neither do the vast majority of these civil rights organizations.
The abuse of power that also goes on is the same, for example, Civil Rights Division, using its supposed authority under those statutes to go after jurisdictions for things that aren't really violations of the law. But, instead, they are engaging in that, using the power of federal law enforcement — endless resources, in comparison, particularly, to individuals in small towns and counties — to achieve what I consider to be partisan political purposes. It certainly is not a lack of resources. Civil Rights Division today is, I think, the biggest it's ever been, has more employees than it's ever had.
You can see this in the education area. It is blatantly clear that the Ivy Leagues like Harvard, Yale, Princeton — even, unfortunately, my old school, MIT — are discriminating on the basis of race in their college admissions. They're doing it openly. As you know, there's a case before the Supreme Court about this. But it's also public schools like the University of North Carolina, which is also there. And this extends, now, down into the high school ranks. We just had a federal court decision against the Thomas Jefferson High School for Math and Science, which is considered one of the top schools in the country, where, by the way, my daughter graduated, years ago. And yet, the Civil Rights Division refuses to do anything about this.
Now, one of the main reasons for that is that the individuals who are in the career ranks — and, by the way, I was a career lawyer, not a political appointee, there — they do not believe in the race-neutral enforcement of the law. They see nothing wrong with these colleges discriminating to benefit some individuals and to hurt other individuals, in this case, particularly Asian Americans, who are being discriminated against on a massive basis. The current head of the Civil Rights Division has said publicly that she believes in that discrimination. And the moment she came into office, she dismissed the action that the Civil Rights Division had initiated against Yale University, without explanation.
In the voting area, it's exactly the same thing. In 2005, when I was a career lawyer there, we started getting phone calls from individuals in a county in Mississippi called Noxubee County. And these were actually White voters who said they were being discriminated against by a local Black official. Lawyers inside the division refused to work on the case. They did not believe that the Voting Rights Act should protect these White voters down there. And, in fact, when we finally found some lawyers who were willing to go down there, and, including, by the way, an African American paralegal in the department who volunteered to do this, and who was treated with unbelievable contempt and hostility by other career lawyers for being willing to work on this case. When they went down there and talked to the defendant, he basically said, "Well, the Voting Rights Act doesn't apply to me. I can do whatever I want."
And his discrimination was so open and so blatant that eventually a district court judge ruled against him. You should read the order. It's quite something. It was upheld on appeal. But the point was, they did not want to work on it. Now, the most interesting thing about this — and this tells you about the reporting on this — is you will read all these criticisms of the Bush administration, eight years of it, claiming that, "Oh, the only cases they filed to enforce the Voting Rights Act were on behalf of White voters." That is a blatant lie. In fact, the current Principal Deputy in the Civil Rights Division actually wrote a Law Review article some years ago that she published at Duke, in which she basically claimed that the Bush administration hadn't filed any other Section II lawsuits.
So I wrote a law review paper I will refer you all to, published by the University of Memphis Law Review, called, "The Enforcement Record of the Civil Rights Division," basically. When it comes to Section II of the Voting Rights Act — which is a great statute, prevents and bans racial discrimination in voting contexts — the Bush administration filed 16 cases in eight years, only one of which was on behalf of the White voters in Noxubee. All the rest were on behalf of African Americans, Hispanics, Asian voters. The Obama administration filed only four cases to enforce Section II.
Now, on abuse of power, and, by the way, one other quick example in the housing area. Muriel Bowser, the mayor of Washington, just announced on April 1, a $10 million "Black Homeownership Fund." Now that is a blatant violation of the Civil Rights Act to say that housing funds are going to be awarded based on your race. What has the Civil Rights Division at the Justice Department done about this? Absolutely nothing. They filed no action, they have sent no letter, they have made no press announcements, because they are not going to do anything about this.
Now, when it comes to abuse of power, as you all know, this got a lot of attention. Merrick Garland announced a task force made up, of all things, the Civil Rights Division, the Criminal Division, the FBI, and, of all divisions, the National Security Division of the Justice Department. I knew people in the National Security Division when I worked there. Their job is to go after terrorists. And why did he form this task force? To investigate parents who were showing up at school board meetings protesting about the Critical Race Theory propaganda being taught to their kids. He was unable to cite a single incident of violence that would fit within the definition of domestic terrorism, which is what the National Security Division is supposed to investigate, terrorism and espionage.
And it turned out this was all done at the behest of the National School Board Association. The point here is that even if there had been incidents of a parent getting out of hand and attacking a school board member, that would have been a local concern, dealt with by the local police. There was no basis for federal jurisdiction, whatsoever. And yet, he formed this intentionally, basically to deter and scare off parents all over the country. Similarly, I consider due process rights to be a fundamental civil right. The government, when they're going to prosecute you, has to go through very elaborate steps. You are innocent until proven guilty. You have a right to counsel. You have a right to confront your accusers and cross-examine witnesses.
And yet, the Obama administration put out rules going to schools, on campus sexual assault cases, getting rid of all that. These rules were so bad, that the law professors at Harvard University, who are not exactly a cadre of conservatives, protested about this. So did law professors at the University of Pennsylvania, who said that these rules did not afford fundamental fairness. And even the American College of Trial Lawyers protested at this violation of basic due process rights. Because the way they were rewritten was they were telling campuses, "Your new standard is guilty until proven innocent." The Trump administration, fortunately, pulled these back. And the Biden administration is right in the process of putting them back in.
All right. I will finish up with this. Look, I am the first to tell people that the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were needed laws. There was massive systematic discrimination going on, all across this country. But you know the best thing about those two statutes? They're probably two of most effective statutes ever passed by Congress. Mississippi, a state in which, in the 60s, the turnout and registration rates of African Americans was in the teens, if you look at census reports on their last three federal elections, not only did they have a turnout rate higher than New York, but African Americans in Mississippi voted at a higher rate than Whites in Mississippi, and, in fact, voted at a higher turnout rate than African Americans in New York State.
The Civil Rights Act not only outlawed discrimination, so that actual discrimination — the kind that kept African Americans and others from getting an education, earning a living, becoming a professional — has become very rare. And it has become, thank goodness, morally and socially unacceptable in our society, which is exactly the way it should be. That is quite a remarkable change. But all of that success is being endangered and damaged by the implementation and acceptance of discrimination in college admissions, the government hiring and contracting that hurts some individuals and some groups and benefits others, based entirely on their race, their color, and their ethnicity.
Individuals, particularly young students who had nothing whatsoever to do with what happened decades ago and weren't even alive, are now getting a taste of what discrimination must have felt like for Black Americans decades ago. Such discrimination is no less pernicious today than it was then. Those in favor of such biased, unequal, unfair treatment, which includes, unfortunately, the lawyers in the Civil Rights Division that I worked with and all the other civil rights offices within the federal government, are, once again, sowing the seeds of division and racial resentment, something that we have worked very hard to banish from our society. It is a tragedy in the making. Thanks.
Hon. Kenneth L. Marcus: Thank you, Hans. Our next speaker, Samantha Harris.
Samantha Harris: Thank you. I think I'm going to speak from here, if that is all right. So, as Hans said, our civil rights laws are supposed to protect everyone from discrimination. So, Title IX prohibits sex discrimination at educational institutions receiving federal funding. And that means those institutions can't discrimination against men or women. Title VI prohibits racial discrimination and other forms of discrimination in programs or activities receiving federal funding. And that means those programs can't discriminate against anyone, based on race. The agencies that enforce these laws are supposed to ensure that they are equally enforced. But what I've witnessed over the past decade or so is that how those laws are enforced often depends on the political pressures of the moment.
So, to take Title IX as an example, in 2011, following a groundswell of activism and an NPR report around the issue of campus sexual assault, and around the perception that colleges were not doing enough to address sexual assault, the Office for Civil Rights of the Department of Education issued a "Dear Colleague" letter that dramatically changed the way that schools handled sexual misconduct complaints. Now, just to back up a little bit, the reason that peer-on-peer sexual misconduct falls under Title IX is that, through a series of administrative and court decisions, if peer-on-peer sexual misconduct or sexual harassment is known to the school and is not remedied by the school, that can constitute a form of sex discrimination that violates Title IX.
So at the same time that they issued this "Dear Colleague" letter," the Office for Civil Rights also began aggressively investigating schools accused of not doing enough to address sexual misconduct. And the result was that many schools quickly dispensed with fairness and impartiality, in an effort to appear to be getting tough on allegations of sexual misconduct. And this led to processes that courts found discriminated against accused male students. So, in other words, OCR pressured schools to address discrimination against women, in ways that resulted in discrimination against men. And, in decision after decision, finding that schools had likely violated Title IX in their treatment of accused male students, courts pointed to these OCR regulations, themselves, as a factor.
I'm just going to read a quote from one judicial opinion. This was a case called Doe v Brandeis, in which the judge wrote, "In recent years, universities across the United States have adopted procedural and substantive policies intended to make it easier for victims of sexual assault to make and prove their claims, and for the schools to adopt punitive measures in response. That process has been substantially spurred by the Office for Civil Rights of the Department of Education, which issued a "Dear Colleague" letter in 2011, demanding that universities do so or face a loss of federal funding."
This dramatic pendulum swing from alleged underenforcement to extreme overenforcement of Title IX was moderated by the Office for Civil Rights in a rulemaking process that culminated in 2020, when OCR issued new regulations requiring institutions to balance the due process rights of the accused with their obligation to meaningfully address claims of sexual misconduct. But that was not before hundreds of accused students brought lawsuits challenging schools' unfair processes, and countless more students saw their lives dismantled, without even a shred of due process, without having a hearing, without knowing what the allegations against them were.
And, what's more, we are very likely to see that balance shift again. The Biden administration appointed the same OCR head, Catherine Lhamon, who oversaw the dismantling of due process under the Obama administration. And Biden's OCR is now going to be issuing new Title IX regulations, which many of us in the field fear will dismantle a lot of the due process protections of the 2020 regulations.
Another area where selective enforcement appears to be at work is in the context of racial discrimination allegations brought under Titles VI and VII. Many employers, in my estimation, have gone too far in their efforts to promote diversity and equity in the workplace, leaving some White employees to complain that they are now being discriminated against, and negatively stereotyped. So, just for example, one employee being pressured to sign a contract that said, "I own that all White people are racist, and that I am not the exception."
Racially segregated social and academic events are becoming more common at universities, university-sponsored events. And yet, despite clearly violating Titles VI and VII, these phenomena have raised little to no concern at the agencies tasked with enforcing those laws. Enforcement of federal anti-discrimination laws, as Hans said, should be evenhanded. Discrimination against one group of people should never be implicitly tolerated, much less, actively encouraged, as a means of addressing discrimination against another group of people. Yet, this is where we seem to find ourselves today, with these very fundamental rights dependent on the political vagaries of these unelected and unaccountable bureaucrats. And I look forward to discussing this more in our conversation.
Hon. Kenneth L. Marcus: Thank you, Samantha. Our third and final speaker will be Renee Landers.
Prof. Renee M. Landers: I think I'm going to sit here, too, to be a little bit more comfortable. So, I would agree that -- first of all, thank you for having me here. And I'm the designated foil for all of the other ideas that have been presented so far. But I'm glad to know that your sister-in-law, Hans, learned the lessons well, while she spent her time in Boston at our law school.
So I will say that I've written, recently, an article that's about to be published for a symposium issue at the Saint Louis Law Journal, about the impact of changes in presidential administrations on teaching in various fields, including, I wrote about constitutional law, administrative law, and health law, which are the fields in which I principally teach. I also teach privacy. But that seems a little bit beyond the scope of today's discussion.
But the important thing about the change in administrations, which, as panelists have acknowledged, and Ken did a good job of outlining in his opening remarks, is that, yes, that administrations do come in, depending on their political priority and their general ideological views, with a view about how to enforce the law. And that's what we have elections for, as has been even recognized by the Supreme Court in the State Farm case of 1978.
But the constraint is that, on the discretion that these officials have, is -- there are several constraints. So the first is there are procedural constraints. The Administrative Procedure Act provides procedural constraints. And administrations of both political parties sometimes struggle with adhering to those technical requirements. President Trump, for example, ran afoul, famously. It took several go-rounds to get the travel ban accepted.
The DACA revocation was deficient because of neglect of certain procedural requirements. The census question case, there was a little bit of not getting the timeline straight on what the justification was for adding the question about race -- excuse me, about immigration status, on the census form, and, arguably, a little bit of pretextual misrepresentation to the court, in that regard.
And then, finally, in the litigation over the Trump administration's revocation and enacting new rules to enforce the Section 1557 sex discrimination components of the Affordable Care Act, as the rules were about to go into effect, there was a Supreme Court decision by Justice Gorsuch, interpreting Title VII, actually, and the requirements of sex discrimination. And the agency issued its rules anyway, even though they were in direct conflict with that decision by the Supreme Court.
President Biden recently was tripped up a little bit on the transportation mask mandate case. There's the whole issue about the dictionary definition of sanitation, but that's another topic. But there was also that it would have been prudent to have done some notice-and-comment rulemaking on that requirement.
Then there's also the substance, the legislation that Congress adopts. And this is where some of these ideas that we're talking about today really come into play, because, however appealing, or however much an administration disagrees with particular Congressional enactments, those enactments actually control the broad outlines of how these laws should be enforced. So, for example -- and I'm going to talk about some examples that are not, strictly speaking, civil rights, but I think some economic rights should be considered civil rights, these days.
So, for example, the OSHA statute is about protecting workers, not maximizing profits for employers. And there is significant underenforcement of workplace safety requirements. One of the most recent, important examples was during the pandemic, the failure to enforce workplace safety regulations in meatpacking plants as the Coronavirus was spreading rampantly through the workforce, and racial minorities — largely, Hispanic workers, African American workers — work in those environments, a civil rights impact of that failure to impose those workplace safety laws.
Similarly, with the Voting Rights Act -- and I will address, toward the end, Hans' characterization of what some these civil rights laws are about, but there has been underenforcement. And it will be interesting to see what the Biden administration does about some of these new restrictions on voting: reducing the numbers of voting locations, making it more difficult for people to vote by mail and to use drop boxes, and things like that, significant civil rights implications there.
The Environmental Protection Agency and the environmental laws, the Clean Water Act, the Clean Air Act, they are about protecting the environment. Another example of environment, one of the oldest environmental laws, is the Migratory Birds Treaty Act, which was adopted at the turn of the last century, or near the turn of the last century. And for almost its entire history, it had kind of a strict liability standard for certain actions that resulted in devastation to migratory birds.
The Exxon Valdez, the Gulf of Mexico big oil spill, resulted in liability for the oil companies or the owners of the ships involved. And so the Trump administration took back that interpretation of the law. And the Biden administration has since rescinded it, and has reinstituted that requirement, in the interest of protecting the environment.
I could go on and on about the National Labor Relations Board perhaps taking an attitude that make it easier for people to unionize, and then similar underenforcement of certain Department of Transportation safety laws. The New York Times did an expose about crossing barriers for railroad crossings, which, the underenforcement there definitely had a rural and racially disparate impact.
So then we get into the questions that have been raised about equal rights in education. So, first of all, I want to say that, given my theory that these laws were adopted for a reason, and that agencies should respect the reasons for the Congressional enactments and the purposes of those enactments, that I would like to sort of set a different lens on what some of these laws are about.
In Justice Harlan's famous dissent in [Plessy v Ferguson], he talked about two different concepts of the equal protection, and a component of the Fourteenth Amendment of the Constitution. One of them was an anti-caste theory that really what the amendment was about was eliminating stigmatization by the enforcement and application of laws. The anti-caste theory, it seems to me, offers the potential to have race-based remedies for race-based problems, and gender-based problems, as well. And then his other theory was the colorblind theory, which has been talked a lot about today. But that is not the genesis of the Fourteenth Amendment.
The Supreme Court has consistently pointed out that these amendments had a particular context, which we've expanded somewhat, to protect other groups. But the idea of them is to protect disadvantaged people in society. And the last time I checked, if you look at any metrics of educational attainment, corporate executives, wealth, and household ownership, Black and Hispanic Americans are on the short end of the stick in almost all of those categories. So, having some remedies to address these problems that are deeply embedded in our culture is very important. So it's very interesting that Professor Hamburger said at lunch that the administrative state had racist origins. Well, if the administrative state has racist origins, let's have remedies for those kinds of racist origins.
The Thomas Jefferson High School case is a very interesting case, because the Supreme Court, in the Fisher litigation at the University of Texas, allowed the University of Texas to use this top ten percent plan to try to continue having some component of diversity, which they call the ten percent program, which is a race-neutral program. Thomas Jefferson High School is trying some version of that. And I'm not exactly sure that I agree that that's a race-neutral approach.
But if that is not a race-neutral approach, then we have no capacity for remedying these problems of the really excellent educational resources being available only to certain groups in this society. We have a similar high school in Boston, Boston Latin School, the oldest public high school in Boston, zip code assignments now, and this, of course, this policy is being challenged for the same reasons that the policy at Thomas Jefferson is being challenged. But it will be interesting to see if these race-neutral, at least on the surface, ideas are upheld by the courts.
Just today — then I'm going to move on to healthcare, and I'm almost finished — there's a publication of the Boston Globe that focuses on the pharmaceutical device industry. It's called Stat, very clever. And there's a recent study — it just appeared today, as I was thinking about this panel — that pointed out that states that have no possibility of using affirmative action have fewer medical graduates of color, after those laws go into effect.
There is copious research that healthcare providers of color disproportionately serve populations of color, and that is it very important in healthcare to actually try to build greater capacity in the system among healthcare providers of color. This is a disaster for healthcare, for African Americans and Hispanic populations and other racial and ethnic minorities in the country.
And then, I'm going to close with another healthcare example that goes back to what I said at the beginning about what is the purpose of the Congressional enactments, and how this needs to be taken into account, that administrations don't have completely free reign to exercise their discretion to ignore the purposes of statutes.
So, during the Trump administration, several states petitioned the Department of Health and Human Services — where, by the way, I was Deputy General Counsel in the Clinton administration — petitioned the Department of Health and Human Services, the Centers for Medicare and Medicaid Services to authorize the imposition of work requirements as a condition for having Medicaid benefits in their states. And they had all kinds of reasons that sound plausible. And these demonstration projects in the states, in several states, were authorized by and approved by CMS.
So these approvals by CMS were challenged. And Judge Sentelle — the last time I checked, not one of the weak-kneed progressives on the D.C. Circuit — said that the Medicaid statute was a healthcare statute, that the statute had nothing to do about requiring work in exchange for healthcare benefits, and struck down the authorization for these demonstration projects on work requirements. And this is the [Gresham v Azar] case, which, actually, the Supreme Court recently vacated because the Biden administration has taken back all these authorizations for work requirements. So, again, it's coming back full circle that the discretion can be used, have very different policy outcomes, but, at the root of it is respect for the Congressional statute and the purposes that Congress intends to be fulfilled by the statutes. Thanks so much for listening. I'm sure it was interesting for you.
Hon. Kenneth L. Marcus: Thank you all for excellent presentations. In a little bit, we'll have time for questions from the audience. I have some questions. But I also want to give you an opportunity, it you had any other comments in response to the other speakers. So let me start with a few questions. And feel free to add on to this brief remarks in response. I'm going to start with Hans. So, Hans, if I understand you, you have argued that one of the problems with the enforcement of Title VI by the Department of Justice is a failure to understand the race-neutral quality of the statutes that they are intended to enforce.
Now, Renee has pointed out that there is another way of looking at those same statutes, Title VI and others. And there may be officials in these agencies who view them under something like a caste theory, as she described, leaving the question, are we just talking about competing theories or understandings of these statutes? In addition, in my experience, there are many career staffers, certainly, but, perhaps, also politically appointed officials, who will say, "My view doesn't matter. Maybe I think it's a caste theory, maybe I think it's a race-neutral theory. But what matters is what is the meaning of the statute, as interpreted by the Supreme Court."
And the meaning, as interpreted by the Supreme Court, is subject to debate. So, for example, there are some in this administration who believe that, under Grutter, Gratz and other precedents, what's happening at Harvard, or UNC, or Yale, or other institutions is in line with these precedents. Now, maybe they're wrong. Maybe they're applying a different sort of standard.
It's also been argued by some that if we are now seesawing so rapidly from administration to administration, not just on the policy, but on what is required by these statutes, as interpreted by Supreme Court opinions, it is a sign that the current doctrinal structure is too vague and ambiguous, and needs to be changed. And that's one of the arguments that's been made, certainly by amici, in the Harvard case.
So what is your view on these Justice Department and other civil rights officials who are not viewing these statutes as race-neutral? And why is it they're wrong? And is it their fault, or is it the Supreme Court's?
Hans. A. von Spakovsky: The lawyers who work in the civil rights division, career lawyers, they are not legislators. It is not their job to try to look at the intent of the law or change it, in accordance with what they think it ought to or not ought to be doing. Their job, and the job of the executive branch, is to enforce the laws passed by Congress, as written. And those statutes, clearly, are race-neutral. If you want to see the difference, some years ago, California passed a Voting Rights Act. And it is not race-neutral. It only protects certain racial groups. That is not the Voting Rights Act. And this was raised in the Ike Brown case, U.S. v Brown. And the courts and the Eleventh Circuit upheld it. I think the Supreme Court refused to take the case, said, "These laws are race-neutral."
And no one, no one can, I think, legitimately argue, for example, in the case of college admissions, that because of what might have happened decades ago, that the son or daughter of a wealthy family, a wealthy lawyer, a wealthy doctor who happens to be African American or Hispanic, should be given preference over the daughter of an Asian American whose parents were Vietnamese, who fled Vietnam, who were boat people and came to this country with absolutely nothing, and has, again, absolutely nothing to do with what happened in the past. The idea that one group should benefit and the other not, is just fundamentally unfair.
One other point, if I could make it, that's something that came up. You were talking about this, about how things go back and forth between different administrations, depending on whether it's Republican or Democrat. That is not quite true, and the reason being that, for example, in the Civil Rights Division, 95 percent of the career employees there are extremely liberal. And I saw, when I was there, as a career lawyer — first of all, I was treated with great hostility, because they found out I was a conservative.
But the point is they did everything they could to prevent the White House and the Attorney General and the Republican administration from being able to carry out its priorities. And when I say, "Did everything to prevent it," it included everything from leaking privileged documents, engaging in very unethical behavior. There are numerous examples of that. We just saw something like that happen here. One of the reasons I got --
Prof. Renee M. Landers: -- But we don't know who did it.
Hans. A. von Spakovsky: One of the reasons I got promoted was because the political appointees realized I was one of the only lawyers whose opinions they could actually trust to be valid. And the reason for that was that, for example, I caught the chief of one of the sections writing a justification memo. A justification memo is the memo that a section chief at the Justice Department will write, in every division, to the political appointees, saying, "We ought to be filing a lawsuit in this case." And they go through the facts, they go through the law.
And I found that these very liberal section chiefs were basically lying and misrepresenting the facts and the laws in their legal memos. So my point is that, while, yeah, Republican administrations come in and they try to enforce their priorities, they often have a very difficult time doing it. And one of the reasons is that the career ranks, certainly within the Civil Rights Division, they engage in political hiring in the career ranks. And you don't have to take my opinion for this. Pull out the 2013 Inspector General report of the Justice Department on the Voting Section, in which he criticizes them for ignoring the resumes of well-qualified lawyers to hire all of their lawyers from just five organizations, the ACLU, the NAACP, MALDEF, La Raza, and the Lawyers Committee for Civil Rights.
And for anyone who thinks that kind of colluding is not still going on, I would refer you to an article that just came out from John Solomon, in which they have found that in the Georgia lawsuit filed by DOJ, they, apparently, have been colluding with the ACLU, the NAACP, the Lawyers' Committee for Civil Rights, to the point where they are refusing to turn over their documents and communications, claiming it's attorney-client privilege. And this is nothing new.
In the mid-90s, there was a case called Miller v. Johnson. It went all the way to the U.S. Supreme Court, another voting rights case. The department lost it, ended up having to pay $600,000 in attorney's fees and costs to the State of Georgia. You should read the court's opinion, it is scathing, about how the individuals, career lawyers, were colluding with the ACLU, acting as if they were the ACLU's in-house counsel. And there's a particular line in there from the Court, talking about how astonished they were that the Attorney General of the United States did not realize the complete inappropriateness of what they were doing. So things haven't changed.
Hon. Kenneth L. Marcus: Thank you. So I'm going to continue going around, unless, Renee, did you have anything you wanted to say in response to that. You looked, for a moment, as if you might.
Prof. Renee M. Landers: No, no. It's fine.
Hon. Kenneth L. Marcus: Samantha. So, you were discussing Title IX, including the approach of Catherine Lhamon, who has the dubious distinction of having been my successor, before she became my predecessor, before she became, again, my successor at OCR. And I've suggested to her that things may well change in a few years, and she may end up being the head of the Brandeis Center. I don't think she was pleased by that, but who knows.
You pointed out a big change in 2011, and significant due process concerns about some of the cases that arose from that. But let me ask you about another aspect of this. I oversaw Title IX enforcement after and before that. Before that, when people talked about Title IX, they thought that it was a discussion about sports. And they assumed that if I was dealing with Title IX, it's something that would end up on the sports pages. And they weren't entirely wrong. We had, during that period, very few sexual assault complaints being brought to ORC. And ORC, the U.S. Department of Education's Office for Civil Rights, is an agency that, while it does some proactive work, overwhelmingly responds to the 1000s of complaints that come to it.
And since there were very few complaints prior to this, of sexual assault, there were very few handled. Now, some might argue, well, it shouldn't be handling sexual assault in the first place. But others would argue, well, the Supreme Court certainly seems to have decided otherwise. So what should we make of the pre-Obama situation under either the Clinton administration, or the George W. Bush administration, or any of the other pre-Obama administrations? Was that underenforcement of Title IX, if there were very few sexual assault cases? It couldn't have been the case that there were very few sexual assaults in college, or that there were very few instances in which sexual assault was handled by colleges and universities in a way that failed to meet even the most minimum requirements of Title IX. What do we make of the situation, prior to that administration?
Samantha Harris: Well, I think that there are a few things. First, as you pointed out, it wasn't until 1999 that the Supreme Court conclusively established that peer-on-peer sexual harassment, which includes sexual misconduct, if it's sufficiently severe and pervasive and unaddressed by the school — and a school is what's called the standard, the legal standard is deliberate indifference — so, essentially, if a school is deliberately indifferent to reports of peer sexual misconduct, that that can actually amount to a form of discrimination by the school.
And it's important to, I think, remember, because of the way it's used colloquially, that the Title IX obligation accrues to the school, not to the individual. So, while we hear people say to other people things like, "I'm going to Title IX you," it's actually the school. A person, an individual cannot violate Title IX. It's an institutional obligation. So the standard is this deliberate indifference. And I think, if you think about it, speaking broadly, it makes sense.
If someone sexually harasses or sexually assaults someone in a campus setting, and then that person tries to get it addressed through the school, and that doesn't happen, and then the person has to sit next to someone who assaulted them in class, and I think we can all understand the reasoning behind the idea that that might actually interfere unreasonably with somebody's ability to function in an academic environment, such that, if the school knew about it, and just allowed it to continue, the school might bear some obligation there. So that's the reasoning behind that decision in 1999.
But, as you say, it was in the years leading up to 2011, there were 12 years in there where the Supreme Court had already decided that this could be a form of sexual discrimination prohibited by Title IX. Some of it had to do, I think, with greater attention to these issues on a national scale, with "Me Too," with greater reporting. I probably don't know enough to actually say whether there was underenforcement prior to 2011. Certainly, there were indications that schools were not necessarily paying enough attention to it. Whether that was actually being brought to the attention of OCR at that point is not something I'm super aware of.
But I still think that the schools probably don't pay enough attention to it when it benefits them. Because one thing I talk about frequently, when I talk about these issues of fundamental fairness and due process on campus is, I think, more often than not, universities are acting in their own interests. So if their interest lies in sweeping something under the rug, they'll do that. If their interest lies in throwing someone under the bus to appear to be getting tough on sexual assault, they'll do that.
So, as far as how much of what was happening on campus, and the perceived underenforcement of these regulations on campus was being made known to OCR, prior to 2011, I don't know. I think the dramatic increase in reports of sexual reports on campus, and then reports of campus underenforcement to OCR, certainly picked up during the "Me Too" movement. I think the overlap of those two things certainly had an impact. I feel like I have not really answered your question.
Hon. Kenneth L. Marcus: I think you definitely have answered it. Although there's still the question, at the end of the day, what do we think? Was there too little enforcement of Title IX, prior to this, or was there not? And, I suppose, if there was too little, maybe it's because of, prior to the "Me Too" movement, as you pointed out, there might have been less awareness. It might have been that wasn't until '99 that opinions started coming up and informing people.
But I think it's at least a question. What do you make of that state, there? Were we in a better position prior to 2011? Or were we in a position that was sort of complicated? There weren't the same violations of due process. But there also might not have been the same available remedies for people who faced what might have been Title IX violations under any of our understanding.
Samantha Harris: Certainly, if you look at the activism that motivated the 2011 "Dear Colleague" letter, it certainly seems as though there were people who were having, victims who were having very difficult experiences on campus with getting any kind of a response from the institution when they complained about having been victimized. The piece of it that I don't have the answer to is whether, if and when those people went to OCR, and prior to 2011, and said, "my institution is being deliberately indifferent to my claim of sexual assault," whether OCR was then underenforcing. That's the piece that I don't know. But I do think that, certainly, the reports of deliberate indifference by institutions was an issue. And, I think, in some institutions, continues to be an issue.
Prof. Renee M. Landers: I wanted to say two things. I totally agree that the "Me Too" movement probably was the progenitor of this big increase in complaints and, perhaps, the Obama administration action. One of the other parts of my biography is that I used to be on one of the governing boards for Harvard. And this issue of sexual assault on campus — and I, obviously, have worked at two other universities, as well — has been percolating under the surface for, I would say, 30 or 40 years. And so part of me thinks that, well, I do think that all of this focus on it now is actually very important.
I will say, however, that I agree with Samantha and Ken and others that the due process problems with the Obama "Dear Colleague" letter and rules were very problematic. And I'm not in favor of them. I wasn't in favor, entirely, of the Trump efforts to address them, because they sort of ruled, they said that the universities had no responsibility for what happened off-campus, including off-campus university-sponsored programs, like foreign exchange programs, and things like that. Well, that's just insanity, right? So I think that there is some middle ground here that we need to find. But I do think that the due process protections are very important.
The last thing I will say on this, though, is that this issue of how to deal with responsibility for sexual assault is one that continues to perplex all of our legal institutions. And part of me feels like the civil justice system, the criminal justice system, as well, which are set up to do these things, these are not the primary tasks of universities, colleges and universities. Yes, they have disciplinary processes and they, in theory, can do them. But, as a society, we need to grapple better with this issue of sexual assault.
Hans. A. von Spakovsky: Can I say something about this, quickly?
Hon. Kenneth L. Marcus: Sure.
Hans. A. von Spakovsky: And I know you're kind of surprised, but I agree with something, what you just said. I wrote a Heritage study about this a couple years ago. And one of the things I did was I talked with former prosecutors, state and federal prosecutors who had specialized in sexual assault cases. And the big mistake that campuses all over the country are making and, frankly, the mistake that both administrations, whether Republican or Democrat, are making, is university tribunals were set up to deal with honor code violations. Sexual assault is a crime.
And administrators and teachers and professors do not have the training or the experience to investigate and hold tribunals on these types of crimes. What universities ought to be doing is when they get a report of a sexual assault, that needs to be referred to prosecutors, the exact same way that, as you all know, every state has laws saying that when teachers in K-12, if they are suspicious that sexual assault or abuse of children is occurring, they have an obligation to report that.
The prosecutor that I know, in particular, who prosecuted these cases, says that the old claims that prosecutors were cavalier about this, that has basically changed. In fact, many DA's offices now have specialized units that deal with this. And not only is this fairer to the individuals involved, but, he said that he has seen cases where the mistakes made by school administrators in trying to investigate this hurt not just the defendant, but, frankly, revictimized the victim in these cases. And that is a big mistake. These kind of criminal violations should not be handled by the universities. They need to be referred to criminal law enforcement to handle.
Hon. Kenneth L. Marcus: We have a question from the audience.
Questioner 1: I want to shift a little bit from the universities to the federal government structure. I have been privileged to be an attorney on the Hill, an executive with EPA, and an attorney in the private sector. In each of those roles, we relied heavily on information from "interested parties" that were frequently given to us, not on a confidential basis, but the door was open. Particularly on the Hill and in EPA, people think the government is enormously staffed. You're not. You're almost like a sole practitioner or a one-, two-, three-person shop. So we were seriously reliant on information from others. And it was for us to figure out our way to vet it.
And here's where I'm heading. When I was with the census bureau, I was with the Office of the Director, this one was under Clinton-Gore. Under Clinton-Gore, one of our Division Directors boasted — really responsibly, I happened to like the guy a lot — that he had the fewest White males in any supervisory position than any of the other divisions. And he was rewarded with a significantly higher SES bonus than were his peers within the directorate.
By the same token, when I was with -- I worked with the Rs and the Ds, because I'm, frankly, not particularly political. I just want to get the job done. And we had those same kind of issues come out. How do you balance this informal information? How do you use it? How do you vet it? How do you do what you believe "is the right thing"? And, Dan, for example, was trying to correct for horrendous systemic, institutional racial bias in the census bureau. And I'm calm. You guys can go Google that. It was really, really, bad.
Here's where I'm ending up. I wanted to statement with Hans. But I'm really interested in others. When do you cross the line between having public information -- associations came up, when does it become collusion? And, in the example that you gave that the IG criticized the hires, based on organization, do you happen to know whether there was the predominance of one racial group over another in that series that was criticized?
Hans. A. von Spakovsky: Well the IG in that investigation didn't just look at the hires. They apparently looked at the resumes of individuals who were not hired. And so they were able to determine that many individuals who were qualified for those jobs were not hired. And it was clear, because they wanted to only hire from those particular organizations. I don't recall what the racial makeup of it was. But this problem -- and let me be very clear about this. I think discrimination is wrong. I don't care who you are, what your race or ethnicity is, what your gender is, if you're being discriminated against, it's wrong. And you should have a remedy for that, whether it's an individual suit, or whatever.
But I hate to tell you this, but this problem is about to get worse. The Biden administration has put out their Executive Order on Equity, and has ordered every cabinet department to come up with bringing equity considerations into all its decision-making. I just did an analysis of the equity plan for the Justice Department. And what they're basically doing is they're going to give individuals within the Justice Department what is, in essence, unlimited latitude to take into account the race of individuals, where they reside, in making their decisions about prosecutions, punishment, federal grants, and contracts.
In other words, the White House is giving executive departments a license to violate the Civil Rights Act in consideration of so-called equity. So what you're talking about, unfortunately, is about to get even worse. And anybody who doubts that, pull up one of the equity plans for one of the departments you're interested in, and take a look at it. This is exactly the same, in parallel to what universities have done to get around and be able to discriminate, which is, they all have put in what they call holistic review, which means no standards really. That means they can make these individual decisions that discriminate.
And, for anybody who doubts what's going on, I went, in great detail, through the discovery that was produced in the Harvard case. I wrote a paper about it. And it was very clear that the university was discriminating on the basis of race. They even had one of their research offices do an internal project, which concluded that they were discriminating against Asian American students in the admissions. And then, when the lawsuit occurred, Harvard did everything they could to hide these reports. And the directors of that particular office, when asked about it, suddenly developed amnesia in their discovery, because they just really couldn't recall or know anything about that.
Prof. Renee M. Landers: So I have two things. One is what we haven't talked about her, or what the criteria should be in making all of these decisions. So we could have criteria that say, let's just say, for example, to go to the Justice Department Civil Rights Division, or to the Census Bureau agencies, you had to have been to an Ivy League school, graduated magna cum laude. You could go on and on and on. Well, that's going to get you a very narrow pool of candidates.
But if you broaden the criteria, perhaps including race and gender, you might get a slightly different pool of applicants who will be equally qualified. No one has said that the fanciness of your resume or the scores on the SAT, within a range, or the people with the top ones, are the best people for any job.
The other point is that all of these places have limited opportunities. Harvard has limited opportunities — 1500 students a year, entering class a year, give or take — a limited number of positions in all of these places. You could probably fill them many times over with people with perfect-on-paper credentials. So the idea that some kinds of subjective considerations or valuing different kinds of qualities other than the paper credentials is never going to come into it is -- we're kidding ourselves.
Whenever I see that someone who is the very best person for the job, well, no, that was the best person that we became aware of who met all of the informal and formal criteria for the position. That is the person you hire. And, so, I think that this is the ultimate problem is with the litigation like the Harvard litigation and the UNC litigation, is that, at some point, other criteria, other than SAT scores and grades and where you went to high school are going to have to be part of the decision.
Samantha Harris: Yeah. I just wanted to briefly jump in. I was struck, Renee, by what you said about whether or not the Civil Rights Act actually contemplates race-based remedies for race-based problems. And, I think, on the one hand, we can look at it and say, "Yes, the law was passed because we have this particular history of discrimination in our country and we have to remedy that." But, at the same time, I think we have to recognize that the language of it is race-neutral because underlying the acknowledgment that we have this horrible history of racial discrimination is also an acknowledgment that racial discrimination is wrong.
And so I think the things that you're talking about, for example, broadening criteria to look beyond, to take a closer look at people beyond elite schools, because, perhaps, systemic discrimination has led to a lower percentage of minority candidates at those schools, I think that makes a lot of sense. And yet, the problem is that what I actually see happening, and, again, my work is fairly limited to the higher education area, so there may be things happening elsewhere that I'm simply not aware of, but, practically, what we're seeing is people being told behind the scenes, "You may not hire a White person," departments calling off, disbanding search committees when the final candidates do not meet a certain demographic profile.
And so I think the reality is that we talk about these holistic criteria, and I think they sound very nice. But I think what's happening behind closed doors is a lot more explicitly race-based. And I think we have to confront head-on the question of does that violate, does a directive not to hire a White person under any circumstances violate the Civil Rights Act? And I think it does. And I think we have to acknowledge that, at least in certain sectors, that is explicitly happening.
Hon. Kenneth L. Marcus: Thank you. We'll turn to the next question.
Jim Young: Thank you. Jim Young, National Right to Work Foundation. And I'm neither a member of the die [sp] cult, nor is it my deity. I'm old enough to remember when you were supposed to judge people by the content of their character, silly, silly me. And I deal a lot with my alma mater, Hampden-Sydney, class of '86. This will be relevant. My son is class of '24. And for those of you who are not familiar with Hampden-Sydney College, A, it's in Prince Edward County, Virginia, where they closed their schools for four years, rather than integrate them, the government schools. And they have a Title IX officer.
Hampden-Sydney is an all-male school. Now, I've never been able to get an explanation for why an all-male school would need a Title IX officer. There are no women students. But, if someone could explain that, it's probably for you, Samantha. And, I guess, as raised by the last answer, I can understand why Black candidates don't want to go on the faculty and move to lovely Prince Edward County, Virginia. Although it's changed a lot, there's a lot of history there, too. So, if someone has an answer for that question, why a single-sex college would need to have a --
Prof. Renee M. Landers: Do they have employees who are not all male?
Jim Young: I thought Title IX was directed at students.
Prof. Renee M. Landers: No.
Hon. Kenneth L. Marcus: Title IX does also have an employment piece to it. And OCR does have employment jurisdiction. So this could be a reason.
Jim Young: Okay. Thank you.
Hans. A. von Spakovsky: One thing I want to say about this is, Renee, I agree with you that acceptances shouldn't be based just on grades and standardized testing scores. But that's not what I'm saying. What I'm saying is that the person's race should not be one of the considerations. In the Harvard case, and this was very clear, what Harvard started doing was the Asian American students who were applying, who were being discriminated against, they were not just math and science drones. That's the terminology a former admissions dean at MIT once used.
They were heavily involved in extracurricular activities and community activities of all kinds. But in the individual ratings that the admissions officers gave, despite that, they basically repeated what they had done to Jewish students 100 years before. In the 1920s, Harvard started discriminating against Jewish students applying for admission, because they didn't want too many Jews in the student population. And the way they did that, because they all had outstanding grades and extracurricular activities, was to say that their characters, their personalities, were too dull, too defective. And that is the consistent thing that you can see in the Asian American kids who were turned down at Harvard, exactly the same. It's a repeat of what they were doing 100 years ago. And all of this is being done --
Prof. Renee M. Landers: So, it's totally a different thing. And it's not --
Hans. A. von Spakovsky: It is -- I'd like to finish.
Prof. Renee M. Landers: All right, fine. But you have been dominating this conversation. I'm just saying.
Hans. A. von Spakovsky: Well, I have answers. The other thing about this is all of this is being driven by folks saying, "We have to have diversity on campus." Well, that very concept, frankly, if you want diversity on campus, what you want is a diversity of views and opinions. What you are saying, if you're basing it on race, is you're engaging in racial stereotyping, because you are saying that individuals of particular races and ethnicities, why they have particular views that are tied to the groups that they are members of. And, I, frankly, find that extremely, patronizingly discriminatory. And I want to give you the last word, because I've got to go catch my plane. And I apologize for that. But thank you all for having me. So you get the last word on that.
Hon. Kenneth L. Marcus: Thank you, Hans.
Prof. Renee M. Landers: So I think that he's describing and he's painting in this very narrow one-place-at-a-time kind of factor. And I think that if Harvard really intended to make sure that it minimized the number of Asian American students on the campus, they have significantly failed in that exercise, because the proportion is quite large and quite substantial. Some of the other -- actually, I will not defend some of these things he was talking about that came out in some of the discovery about the comments about some of the applicants. But I think that, overall, the process operates very fairly. This year, despite the litigation, despite everything, Harvard had this bumper crop of applicants and the lowest percentage acceptance rate ever in its history. So I do think that students of all kinds see it as an environment that they want to be part of.
Hon. Kenneth L. Marcus: Thank you. I'd like to ask a question, for whoever wants it, about checks and balances.
Prof. Renee M. Landers: Back to the law. Oh my God.
Hon. Kenneth L. Marcus: Law, policy, however you like it. So some have argued, including on this panel, that, to some extent, enforcement has been less than optimal. For some things, over, for some, under, for some, just wrong. What checks and balances are there? And are they working well, or not? Renee mentioned the APA as one restraint. But I have some ideas that I'd first like to turn to you for thoughts on. Do we have checks and balances on civil rights enforcement? And why are they working or not working, and do they need to be different?
Prof. Renee M. Landers: Go ahead.
Samantha Harris: Well, I was just going to say, when I think in the Title IX context, I think the courts did provide an important balance there, because, as I said, in the years since 2011, there have been more than 600 of these lawsuits filed. And I think it's not so much that the lawsuits provided an explicit check on OCR in that the parties who were being found responsible for violating Title IX, or for violating due process rights, were the universities. But I think it, ultimately, in a broad scale, provided a check against what OCR, I felt, was trying to do, in terms of encouraging schools just to make it easier to find people responsible. So that's one way in which I think we've seen a check.
Prof. Renee M. Landers: This relates to one of the points that you made earlier, Ken, which was the point about kind of seesawing from one administration to the next. And I agree that that's a bad thing, because I think one of the things that's important for the law is for people to be able to organize their affairs with the hope of complying with whatever the law is, in some kind of consistent fashion, and that that is not possible if the rules change 180 degrees every four years.
So I think, I don't know, maybe this goes back to some of the things that Sally Katzen was talking about at lunch about really trying to find some kind of reasonable balance in the enforcement of these laws. And then, every administration is going to have its areas of emphasis, but not to really have the sand shifting out from underneath people who are trying to comply all the time.
Hon. Kenneth L. Marcus: So those are both valuable pieces. Let me throw out some other possible pieces and see what you both think of them, because a lot of people, maybe all of us, I don't know, think that there are times when the administrative state just goes out in the wrong direction, and there aren't checks and balances on them. My experience is that there is an enormous number of checks and balances on federal civil rights officials, simply an enormous number. If you are a civil rights investigator in the field, trying to do something dramatic to improve conditions, you've got a team leader that you're responding to, who's supervising your work. You probably have a regional legal structure to answer to, maybe a regional counsel, or, certainly, a regional chief. Both the investigative arm and the legal arm answer to oversight within the region.
The region, itself, seems all-powerful to some of the investigators. But the regional director answers to a variety of people in Washington, both in an enforcement structure, and a policy structure, that are sometimes aligned, but, often, act as checks against each other. Both of them, the enforcement and policy, will respond to sort of a layer of political oversight, which may report to a director or an assistant secretary, much of whose job is providing checks and oversight and balance. The assistant secretary might seem all-powerful to some of the folks below, but the assistant secretary is often subject to variety of checks and balances that might include, depending on the situation, the Office of General Counsel, it might include the Office of the Secretary, Undersecretary, Deputy Secretary.
All of them have oversight by various components of the White House that might be aligned or not, might be the Counsel's Office, might be domestic policy. Then, the whole thing is subject to various other checks, including the Inspector General's Office, GAO, various Congressional committees, lawsuits, the courts and the various public interest groups, using either legal action or FOIA, Office of Special Counsel, GAO, and so on, and so on, and so forth. Sometimes it seems that much of what you're doing is addressing checks and balances. And, I would, it seemed to me that often, even for a Senate-confirmed person, by the time you hit year two, you're spending much more time dealing with checks and balances than you are dealing with advancing the mission of the agency.
So, maybe you disagree that those aren't checks and balances, but, if there are, how is it that we have such a bewildering array of checks and balances, and yet, we also have various officials who seem to be going in directions that are inconsistent with the purpose of the statute, under under-enforcing, over-enforcing, or what have you. Do we need better checks and balances? What sorts of improvements can we have to make sure that there is something like the approach that Renee suggested, or whatever it is that Sam thinks is optimal?
Prof. Renee M. Landers: So, I agree with you that there are a lot of checks, formal and informal. The Congressional Review Act, which no one ever thought about very much until 2017, has become more prominent. Oh, IRA -- that was not on your list of oversight agencies, in terms of rulemaking, and maybe has some effect on any procedural approaches to deciding what kinds of cases to bring, and then, despite Hans' disdain for some of the people at DOJ, that is a constraint. When cases, either if agencies don't have independent litigating authority, they need to go to DOJ, and DOJ is going to decide whether it's worth their investment of time. That's a constraint. And, certainly, when things get to the appellate stage, the Solicitor General's Office will say, "We're not going forward," or give you the green light
So I think that those are other things. I think you're right about OIG. And then, the GAO, I would put in the category of part of the Congressional oversight process. That's a serious constraint. People — these officials that you were talking about, who have the decision-making authority — can get called at any time to speak to Congressional staffers, testify at a hearing. That's a constraint. What kind of policy are we willing to defend in that public forum?
And then, finally, I would say that -- and then it depends on what the president's tolerance for controversy is, in some of these situations. Because that's the ultimate check. President Obama told -- I can't think of her name. The woman who was the head of the EPA, in his first term. It'll come to me. That she absolutely could not do the emissions rules before the 2012 election, absolutely no. And then they did them after, right? So, that's a political check. And then, ultimately, I think the answer is people. It all comes down to who the people are, how honorable they are in fulfilling their responsibilities.
There's a great poem by Carl Sandburg — I grew up in Illinois — called "Government," that, basically, the point of it -- I have it quoted in this piece that I'm just about to publish -- "A Government is just as secret and mysterious and sensitive as any human sinner carrying a load of germs, traditions and corpuscles handed down from fathers and mothers away back. Government dies as the men who form it die and are laid away their graves and the new Government that comes after is human, made of heartbeats of blood, ambitions, lusts, and money running through it." So, it comes down to who the people are.
Hon. Kenneth L. Marcus: Thank you.
Samantha Harris: Well, I guess what I would like to do is sort of -- in case it has not already become obvious, I am like the Washington outsider on the panel. I have not served in government. So, in some ways, I am the least competent person to speak to any of these issues. But I also see how it appears from the outside. And then, so, in some ways, having heard what you said, which is really interesting, I'd like to kind of turn the question back to you a little bit, because, from the outside, as someone who is involved, for example, in advocating for changes to the Title IX regulations and everything, a lot of these agencies that you mentioned, these administrators, sound familiar to me.
I know when the final rule came out, you have the OMB review process, which is happening right now under the Biden administration's new regulations. You have that budget analysis to see whether it's okay that way. But, to someone who's watching it unfold, because those are all, seem to be, somewhat, internal checks, like other branch agencies, and things like that, it feels like, once this process is going, once this rule make is happening, or whatever, the train has left the station.
And a lot of it, externally, feels like they're not actually going to come back and say, "No, this isn't justified in the budget, "or, "No, OMB review is not actually going to change anything." So I guess that's the question. Are these checks by other agencies or other branches of the same agency actually functioning as checks and balances, or are the external ones really what's necessary to sort of fight any kind of abuses of the administrative state?
Prof. Renee M. Landers: Well, I think that people on the inside might differ with you about the fact that once things get to a certain point, it's just the green light all the way.
Samantha Harris: Yeah. And I'm not saying I'm right. I'm sort of saying what it feels like.
Prof. Renee M. Landers: I'm just saying, I think it feels differently, sometimes, to people on the inside. And I think both are important. I think the litigation, the external litigation challenging the policies is very important. Progressives have used that tool for a long time. And I think that that's a very important check. But I also think that the internal checks are very important as well.
Hon. Kenneth L. Marcus: I don't know that the moderator's views are particularly important, but, since you turned to me, I will say, first, I agree with what I think you might have suggested, which is that some of the checks and balances are somewhat illusory. They generate a great deal of paperwork and take a great deal of time, but they don't actually have the incentive or deterrent effect. Second, I think a lot of the answer has to be legal, including better drafted, clearer statutes.
Third, I think, instilling a greater fidelity to law, including statutes and regulations, are important. There probably are other tools that we could develop, that I'm not going to think of here. I think the Congressional Review Act was a great idea, and, perhaps, it could be retooled, somewhat, to be more effective. I do think that there is a need for better tools that don't just create the impression of checks and balances, but actually have a deterrent effect on lawless conduct. We have a, I think, last question.
Questioner 3: So this question follows on. It's both about external litigation, and about a check. In the Title IX context, one possibility would be lawsuits against Title IX officers who fail to recognize the civil liberties of folks who have been defendants.
Samantha Harris: I bring those.
Questioner 3: I do, too. Something that gets in the way of those lawsuits is qualified immunity, oftentimes. And I understand qualified immunity for people who have to make split-second decisions on the front lines. I don't understand qualified immunity for people who have all the time in the world to seek legal counsel and figure out whether or not what they're doing is violating someone's civil liberties or constitutional rights when they're engaging with them. So I guess my question is should we do away with qualified immunity for Title IX officers in the Title IX context?
Samantha Harris: Well, it's funny, because, after our initial remarks, I was like, "I'm the only person who didn't mention my law review articles." And now I get to mention my law review article, which was actually about qualified immunity reform. And I think one of the things, when I was researching, when I've been researching this issue of qualified immunity, because, also, in First Amendment law, and, of course, this applies to public universities, at private universities, it's a whole host of other things you could maybe go after them for.
But when it comes to these constitutional violations, obviously, we're talking about officials at public universities. And I agree, I do not think we should 100 percent do away with qualified immunity, because I do think there's a value in allowing public officials some room to try, in good faith, to do their jobs, without constantly being subjected to litigation. But I think what I realized, at least, what I've come to believe, and what the law used to be, is that this good faith piece is really important.
What we see time and again is that these officials knowingly violate the rights of students and of faculty for their own ends, whether it's to appear compliant with OCR regulations, or for whatever reason. And it used to be that the standard for qualified immunity was not just, okay, was this a clearly established constitutional right that was violated? It used to look at whether this was an action taken in good faith.
And in my law review article, I actually argued that we want to return to this good faith standard so that it doesn't have to be just, okay is there a case, because right now, it's like, if there's not a case exactly on point, if a cop tases somebody running away from them in the right butt cheek, and the case says it's cruel and unusual punishment to tase them in the left butt cheek, the court will say, "Well, we know that the left butt cheek isn't okay, but we don't know about the right butt cheek." I think that that's -- obviously, that's an exaggeration. But when you read the cases, it really is pretty infuriating, the degree to which it's like, well there's not an exactly factually analogous case, so we're going to grant qualified immunity.
And I would really like to see, because what I am struck by, time and again, when I handle these cases is the absolute bad faith of a lot of these administrators. Now, look, I also deal with a lot of administrators who are trying, in very good faith, to do their jobs. So I'm not maligning everyone. But when they decide not to try, in good faith, to do their jobs, they really do it, and they take people down with them in the process. And I think that this question of, "Was this a good faith action, or was this somebody just trying to serve their own ends?" is a really valid question. And if you look at the case law, there is this opportunity to return to this kind of good-faith doctrine. And that's where I would, personally, like to see the qualified immunity doctrine go.
Prof. Renee M. Landers: I agree with you about that. It also troubles me that the person sitting behind the desk would get immunity, and the person out on the street, maybe yes, maybe no. I do think the problem with the police is "shoot first and ask questions later" is the real problem. But, anyway, but I am not an anti-police person. So I would say that returning to some standard of good faith is actually really very important. I think the other thing — and maybe this will be a unifying theme in this room — is that one of the problems in agencies for kind of operation officials, and out in the world for people who have administrative jobs in organizations, is the disincentive to getting legal advice sooner rather than later.
And one of the reasons I really liked working for Donna Shalala was that every team that got put together to work on something at HHS had a lawyer from the get-go, because -- and she was not a lawyer, but her view was that you didn't want to get to the end, and then have the lawyers be the naysayers, again, that they needed to be of that process. And so I think that people really need to recognize when they need -- it's like if you're doing a corporate transaction, you need to know when you have to call in the tax specialist to finish the deal so you don't make a mistake. And I think it's the same thing in all of these things. So I think that maybe that's a contribution that we could make to the discussion of getting good legal advice, sooner rather than later.
Hon. Kenneth L. Marcus: A big thank you to our panelists.
Samantha Harris: And to our moderator.
Prof. Renee M. Landers: And the moderator, yes.
Hon. Kenneth L. Marcus: Thank you also to Ryan Lacey and the other Federalist Society staffers who made this possible. Let me know if you need my help getting Hans von Spakovsky to pay your bills. To everyone else, great seeing you. Thank you very much.