Obama's Enforcer

by John Fund

  Ordinarily, the Justice Department would have no control over the course of the suit, since it was not a party; the dispute was between St. Paul and private parties. Similarly, Perez had no authority over the Civil Division litigation. However, in an unprecedented action, Perez told St. Paul’s lawyers that the Civil Division would agree to drop the False Claims Act claims in exchange for St. Paul dropping the slumlord case. As the Wall Street Journal summarized, Perez “intervened to undermine two civil complaints against the City of St. Paul in order to get St. Paul to drop a Supreme Court case that might have blown apart the legal rationale for his dubious discrimination crusade against law-abiding businesses.”15 Perez tried to hide the quid pro quo deal by directing the lawyers in the Civil Division not to mention the deal in their internal case files, and he used his own private email account to secretly arrange the deal with St. Paul’s lawyers in violation of the Federal Records Act (he apparently illegally sent hundreds of private emails on division business). Thus, his disparate impact theory stayed alive.

  The Civil Rights Division brought questionable cases in other areas as well. For example, Perez launched a series of abusive cases under the Freedom of Access to Clinic Entrances (FACE) Act that were intended to intimidate the pro-life movement. This federal law was passed to prevent physical obstruction or the use or threat of force outside abortion clinics. But the statute specifically protects the First Amendment right of “expressive conduct,” including peaceful demonstrations. In 2011, the division tried to get an injunction against a pro-life activist, Angel Dillard, who had merely written a letter to a doctor who was planning on opening an abortion clinic in Kansas. The federal court denied the request because Dillard’s activities were protected by the First Amendment. After two years of litigation, in August 2013, the judge dismissed the prosecution, finding that the government had produced no evidence of motive, intent, or wrongdoing that violated the law.

  Dillard’s letter simply tried to persuade the doctor that her actions were wrong based on “arguments from Scripture, appeals to conscience, and the practical disadvantages and difficulties associated with such a clinic” according to the judge.16 The Wichita Police Department had concluded there was no threat against the doctor and the FBI had also recommended against a Justice lawsuit. In fact, the FBI told the Justice Department “there was nothing there.” The FBI was “frustrated by the suit . . . they felt this was undermining the trust and the relationship that they were trying to develop with people who were not extremists but were still pro-life.” DOJ’s case, according to the judge, was “speculation piled on top of speculation” and “fatally flawed” because it lacked any proof.

  Another egregious FACE Act prosecution was against Mary Susan Pine, who was conducting peaceful sidewalk counseling outside an abortion clinic in Florida, something she had been doing for many years.17 The government in its complaint contended Pine obstructed access to the clinic, citing a witness who supposedly observed the obstruction. However, the witness turned out to have testimony totally opposite—that Pine did not obstruct anyone at the clinic. The division lawyers did not attempt to preserve videotape evidence from surveillance cameras outside the clinic that would have showed exactly what happened, and the recordings were destroyed by the clinic.

  In 2012, a federal judge in Florida threw out the case. The nearly total lack of evidence of any violation of the law and the “negligent and perhaps even grossly negligent” behavior by division lawyers in not preserving crucial evidence in the case led the judge to wonder whether the prosecution of Pine was the “product of a concerted effort between the government and the [abortion clinic], which began well before the date of the incident at issue, to quell Ms. Pine’s activities” rather than to enforce the statute. In other words, the judge believed that Pine may have been targeted for her political beliefs. “The Court is at a loss as to why the Government chose to prosecute this particular case in the first place,” the judge wrote at the conclusion of his ruling. American taxpayers were forced to pay $120,000 in attorneys’ fees and costs to Pine.

  Why would Eric Holder bring these frivolous cases? Because a pro-abortion ideology is driving enforcement of the FACE Act, not the objective, unbiased, nonpartisan interests of justice and equal protection under the law. The pro-abortion views of Holder and liberals inside the Justice Department led them to use a federal statute to attack these pro-life activists who were engaged in First Amendment–protected activity. Even though these particular suits were unsuccessful, this misuse of a federal statute intended to stop violence at abortion clinics may have achieved its goal. As the judge observed in the Kansas case, “due to a chilling effect of calls and visits from the FBI, and the filing of the present action by the Department of Justice . . . it is utterly unsurprising that Dillard has ceased political activity she might have otherwise undertaken.”

  In a similar vein, demonstrating the Obama administration’s antipathy to religious freedom, were the division’s dubious legal arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.18 The Justice Department tried to convince the Supreme Court that the religious freedom clause of the First Amendment did not protect the hiring decisions of a church. This was such an extreme position that all nine justices of the Supreme Court disagreed, finding the arguments made by DOJ “untenable.” The Court could not accept “the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.” Even the Obama administration’s former solicitor general, Justice Elena Kagan, joined a particularly powerful concurring opinion with Justice Samuel Alito rebuking the legal position advanced by the administration.

  In another example of the mismanagement of its enforcement responsibilities and the incompetence of too many of its newly hired political lawyers, the division was forced to pay the state of Arkansas $150,000 in attorneys’ fees and costs in 2012 for a failed prosecution under the Civil Rights of Institutionalized Persons Act.19 Once again, the judge found almost no evidence to support the division’s claims against the Conway Human Development Center, an institution for developmentally disabled individuals operated by the state of Arkansas. The suit was filed even though there had not been a single complaint by residents of the center or their families. But the suit followed the liberal view on “deinstitutionalization” that believes that all such state facilities should be closed. It is that same ideology that has led to the closing of many state-run mental institutions and the flooding of our streets with the mentally ill.

  The federal judge was harsh in his criticism of the division’s case, calling into question the basis for the lawsuit and assailing the caliber of the government’s witnesses—calling them “unpersuasive . . . [and] not qualified.” Concerned parents and guardians opposed the division’s lawsuit and the judge found that the government was “in the odd position of asserting that certain persons’ rights have been and are being violated while those persons—through their parents and guardians—disagree.” This meritless lawsuit was dismissed with prejudice. This case followed another lawsuit the division brought against Arkansas’s entire mental health system that was also dismissed because of the division’s failure to comply with the basic statutory requirements for filing.

  None of this is really a surprise. During the Clinton administration, the division was forced to pay more than $4 million in attorneys’ fees and costs in eleven meritless cases the division filed that were thrown out by federal courts. One of these cases demonstrates “the disappointing lack of professionalism” in the division. According to the U.S. Court of Appeals for the Eleventh Circuit:

  A properly conducted investigation would have quickly revealed that there was no basis for the claim that the Defendants were guilty of purposeful discrimination against black voters. . . . We can only hope that in the future the decision makers in the United States Department of Justice will be more sensitive to the impact on racial harmony that can result from the filing of a claim of purp
oseful discrimination. The filing of an action charging a person with depriving a fellow citizen of a fundamental constitutional right without conducting a proper investigation of its truth is unconscionable.20

  This did not happen during the Bush administration, when there were adults in charge who kept the radical career lawyers in the division in check—there was not a single such case that the division lost where it had to pay attorneys’ fees and costs. But in the Holder Justice Department, the political appointees are as radical if not more so than the career lawyers.

  The Holder Civil Rights Division has even twisted federal discrimination laws to go after school districts like the Mohawk Central School District in upstate New York for having a dress code that prevents boys from wearing makeup, nail polish, wigs, and high heels. This administration apparently believes that it is a violation of federal law for high schools to have a dress code that makes distinctions between what is appropriate dress for males and what is appropriate dress for females. Obviously, schools should not allow bullying or violence of any kind. But it is ludicrous to launch federal investigations of schools for having dress codes that differentiate between males and females or to equate such dress codes with sex discrimination.

  This unanchored reading of the law on sex discrimination extends to universities. The division (in conjunction with the U.S. Department of Education) sent a bizarre letter to the University of Montana in 2013 that tells the university how it is supposed to handle sexual harassment allegations. This letter is also intended to “serve as a blueprint for colleges and universities throughout the country”21 and goes so far that it would make asking someone for a date a federal crime. It lays out a legal rule that directly contradicts Supreme Court rulings that actionable harassment must be objectively offensive to a reasonable person. Instead, DOJ’s Orwellian letter dictates that universities must institute a policy that defines sexual harassment as “any unwelcome conduct of a sexual nature.”

  In 1999 the Supreme Court stated in Davis v. Monroe County Board of Education that, for a school to be liable for student-on-student sexual harassment, the conduct in question must be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Needless to say, one could steer a cruise ship through the vast gulf between the actual state of the law and the twisted policy being advanced by the Holder Justice Department.

  Under Holder’s rule, a single instance of conduct that is “offensive” to one individual would constitute a violation of the law, even if that individual’s reaction is totally unreasonable. DOJ also insists that sexual harassment includes “unwelcome” (not just offensive) conduct that is “verbal, nonverbal, or physical conduct.”

  The breadth of this new mandate, plucked from the mists occupied only by the most radical ideologues, is staggering. Under this definition, a student asking another out on a date could violate the law if the person being asked out found the question “unwelcome” and somehow believed it was the pretext to a sexual advance. If a student was taking a health class where biological reproduction was discussed, the teacher could be found guilty of sexual harassment if a student found the discussion “unwelcome,” even if no one else in the class and no reasonable person found it unwelcome or offensive. In other words, under this definition the most trivial conduct could be considered sexual harassment. And, get this—if a university did not take immediate and severe action to punish the “transgressor,” it could lose its federal funding.

  There is no question that sexual harassment is a serious issue and that schools should take appropriate steps to stop it. But this new DOJ policy is political correctness madness that essentially implements a zero-tolerance policy in colleges for any verbal conduct a hypersensitive listener deems unwelcome. It will have a severe impact on the First Amendment rights of students, restricting not just the dating routines on campus, but also free discussion and discourse on many different issues.

  But DOJ’s bizarre attitude gets worse, requiring universities to implement what amounts to a “guilty-until-proven-innocent” rule that is completely at odds with impartial justice and fundamental due process. Justice criticizes the University of Montana’s procedure for investigating sexual harassment complaints because it has “multiple stages,” including an appeals process! The fact that Eric Holder’s Justice Department is offended that a student might be able to go through several levels of review and appeal of an adverse decision is something that should scare all of us.

  Apparently, Eric Holder would prefer a Star Chamber that immediately slams the door on anyone accused of sexual harassment. How else is one to interpret the directive in the letter that an “appropriate step” by a university would include “taking disciplinary action against the harasser” before “the completion” of the investigation!? Holder appears to want universities to apply the Queen of Heart’s admonition in Alice in Wonderland to lop off the heads of anyone accused of sexual harassment before there has even been an investigation or hearing to determine whether the accusations are true.

  In the Davis case, the Supreme Court said it was not outlawing “insults, banter, teasing . . . and gender-specific conduct that is upsetting to students” and that it “trust[ed]” courts would not be misled to impose “sweeping liability.” But it is exactly that type of “sweeping liability” that ideologues serving in this administration are now trying to impose by administrative fiat.

  In another wacky view of the law that affects higher education, Eric Holder’s Civil Rights Division is suing universities over the food they serve in school cafeterias. Contrast this with the 1960s when there was real discrimination in American colleges and the Justice Department fought hard, serious battles to stop such civil rights abuses.

  But in 2013, like a scene out of a Monty Python sketch, Holder actually threatened to sue Lesley University in Massachusetts for supposedly violating the Americans with Disabilities Act for not adequately accommodating students with food allergies. Apparently, the school did not have enough gluten- and allergy-free “hot and cold” options in its cafeterias. In the view of Eric Holder, the university was preventing students from equally enjoying “the privileges, advantages, and accommodations of its food service and meal plan system.” So according to the Justice Department, what a university chooses to put on (or leave off its menus) could violate federal law and subject it to prosecution by the chief law enforcement agency of the U.S. government.

  Faced with expensive litigation, the university unfortunately settled the case with an agreement that not only defines what kind of food it can serve and how its kitchen facilities have to operate, but requires the university to let students “pre-order” their meals and provide them a restricted room to which only allergy “disabled” students have access—it even defines what equipment has to be in the restricted room ranging from a toaster to a freezer.

  No one minimizes the problems that some students may have with food allergies and universities should work with students and their families to accommodate such problems when they can. But a federal court in a case called Land v. Baptist Medical Center said that a food allergy is not a disability under the Americans with Disabilities Act since it does not substantially limit a student’s ability to engage in activity. The idea that this is a federal issue or that the Justice Department should burn up its resources investigating university dining halls is a complete absurdity and contrary to the law. It is another sign of the mindless mission creep that is a hallmark of the Holder Justice Department.

  Under this entirely warped view of federal disability law, the Perez-led division actually threatened to sue Princeton, Arizona State, and Case Western Reserve if they dared to participate in an experimental program that would have made the Amazon Kindle available for students to replace traditional textbooks.22 Perez claimed that allowing students to use Kindles would violate the Americans with Disabilities Act because while the Kindle has a text-t
o-speech audio feature, the menu that allows you to choose that option requires sight to use. The program was entirely voluntary and no student was forced to participate. According to Princeton, there wasn’t even anyone with a visual impairment in any of the three classes that would have been part of the initial program.23 In essence, Perez took the position that if blind students couldn’t use the device, then no student should be allowed to use it. In other words, sighted students needed to be punished under federal discrimination law that was intended to protect the disabled. As Russell Redenbaugh, a former member of the U.S. Commission on Civil Rights, and who lost his sight when he was a child, says, “it’s a gross injustice to disadvantage one group, and it’s bad policy that breeds resentment, not compassion.”24 Unfortunately, all of the schools gave in to the Justice Department’s intimidation and threats and agreed that no student would be allowed to use electronic books like the Kindle until they were all completely accessible to the blind.

  Even in areas of public safety, the division has used federal discrimination laws to try to impose racial hiring quotas and go after fire and police departments to eliminate racially neutral qualification exams. For example, the division pushed the New York Fire Department to hire firefighters who miss 70 percent of the questions on a fire academy entrance exam. It forced the Dayton, Ohio, police department to lower its testing standards because it claimed not enough black recruits were passing the recruitment exam, with the result that Dayton would have to hire individuals who scored an F. This was so outrageous that even the president of the local chapter of the NAACP, Derrick Foward, criticized the division, saying that he did “not support individuals failing a test and then having the opportunity to be gainfully employed.”