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Hearing of the Constitution Subcommittee of the House Judiciary Committee - Reathurization of the Civil Rights DIvision of the Department of Justice

Location: Washington, DC

Federal News Service

March 2, 2004 Tuesday



REP. STEVE CHABOT (R-OH): The committee will come to order. This afternoon the Subcommittee on the Constitution convenes to review the progress of the Civil Rights Division of the Department of Justice for the purpose of the reauthorization of the department. The division has been in the forefront of protecting the civil rights of all Americans since it was created all the way back in 1957. The division's role in this effort is to enforce laws prohibiting discrimination on the basis of race, sex, handicap, religion and national origin. The Civil Rights Division lists many important accomplishments as well as new efforts to combat discrimination in areas as diverse as education, employment, housing, lending, public accommodations and voting.

I know the new assistant attorney general has worked hard to create strong policies and affirmatively develop initiatives to further the important work of the division. Beginning in 2001 the division added 52 new positions, which has allowed it to expand its work related to enforcement of the Americans with Disabilities Act, the Civil Rights of Institutionalized Persons Act, also known as CRIPA, the Voting Rights Act and its Trafficking In Persons Program. As a result, the division has opened 38 CRIPA investigations since 2001, which represents a 90 percent increase over the 20 investigations initiated over the preceding three years.

The division has authorized seven unemployment discrimination-or employment discrimination lawsuits since November 2003. Six have been filed so far in 2004, and in Fiscal Year 2004 the division has opened 49 investigations of alleged employment discrimination by state and local governments. The division has prosecuted 122 human traffickers, double the number of prosecutions as under the previous administration. The division has 146 pending human trafficking investigations and since 2001 has resolved over 1,000 disability related complaints, at least 354 through informal means, 131 through formal settlement agreements, and 13 with consent decrees, and over 500 through mediation.

Finally, on November 4, 2003, 160 federal observers and 39 Civil Rights Division personnel went to 15 counties in eight states to monitor state and local elections. These activities go hand in hand with the Voting Access and Integrity Initiative created by the attorney general in October 2001. The department-wide initiative is helping to enhance the department's ability to deter discrimination and election fraud and ability to prosecute violators vigorously so that all Americans will have access to the voting process.

I also want to highlight the division's continuing work related to the terrorist attacks of September 11, 2001, and incidents of discriminatory backlash. Since September 11, 2001, the division, the FBI and the U.S. Attorneys Offices have investigated 546 incidents of backlash discrimination. As a result of these investigations, federal charges have been brought in 13 cases against 18 defendants. All have been convicted. In addition, the department has contributed to approximately 121 backlash prosecutions in federal, state and local courts since September of 2001. Further, more than 250 town and community meetings have been held on backlash issues and best practices have been developed for law enforcement to prevent and respond to hate incidents against Arab Americans, Muslims and Sheiks.

I know that members of our subcommittee will have questions important to them regarding specific cases and policies. I look forward to hearing your testimony and the answers to all our questions. It's important for the division to continue to play an important role in safeguarding the civil rights of all Americans. We all look forward to examining the division's work over the past year this afternoon, and we welcome you here this afternoon, Assistant Attorney General Acosta. And I will now refer to my ranking member, Mr. Nadler of New York for the purpose of making an opening statement.


REP. CHABOT: Thank you.

REP. NADLER: And I ask for a unanimous consent statement, Mr. Chairman.

REP. CHABOT: Without object.

REP. NADLER: Mr. Chairman, I ask unanimous consent that all members have five legislative days to submit additional questions in writing for Mr. Acosta for written responses for the record.

REP. CHABOT: Without objection, so ordered.

REP. NADLER: Thank you, Mr. Chairman.

REP. JOHN CONYERS JR. (D-MI): Mr. Chairman?

REP. CHABOT: Yes, the gentleman from Michigan is recognized.

REP. CONYERS: Thank you very much. I would like to strike the record-a number of words and make an opening statement.

REP. CHABOT: The gentleman is recognized for five minutes.


REP. CHABOT: Without objection it will be included in the record, and the gentleman's time has expired.

Does the gentleman from Florida wish to make an opening statement?

REP. TOM FEENEY (R-FL): No, thank you, Mr. Chairman.

REP. CHABOT: Thank you. Any other opening statements? Okay. If not, we again welcome Mr. Acosta here this afternoon. R. Alexander Acosta was selected by President Bush to serve as assistant attorney general for the Civil Rights Division of the United States Department of Justice on August 22, 2003, last year. Prior to his service as assistant attorney general, Mr. Acosta served as a member of the National Labor Relations Board and has also served as principal deputy assistant attorney general in the Civil Rights Division.

After graduation from law school he served as a law clerk on the U.S. Court of Appeals for the Third Circuit, and then worked at the Washington office of the Kirkland & Ellis law firm, where he specialized in employment and labor issues. Mr. Acosta is the first Hispanic to serve as an assistant attorney general at the Department of Justice, is the 2003 recipient of the Mexican American Legal Defense and Education Fund's excellence in government service award, and the D.C. Hispanic Bar Association's Hugh A. Johnson Junior Memorial Award. He has also taught several classes on employment law, disability-based discrimination law and civil rights law at the George Mason School of Law, and we welcome you here for your testimony this afternoon, Mr. Acosta.

MR. RENE ALEXANDER ACOSTA: Thank you, Mr. Chairman, Ranking Member Nadler, members of the subcommittee. I want to thank you for your time this afternoon. I have a brief opening statement, if I could?


REP. MELVIN L. WATT (D-NC): Mr. Chairman, I'm having trouble hearing today.

REP. CHABOT: Yes. Could you pull the mike a little closer, please.

MR. ACOSTA: Certainly.

REP. CHABOT: Thank you very much.


REP. CHABOT: Thank you very much, and I'll recognize myself for five minutes for the purpose of asking questions. We appreciate your testimony here this afternoon, Mr. Assistant Attorney General. Number one, it's my impression that the division has been very aggressive in both its enforcement of the ADA and its efforts to educate government entities and members of the private sector about the rights of individuals with disabilities. However, there is some concern that the department is interpreting reasonable accommodation to mean wholly equivalent. Can you comment on the general principles the department uses in its own investigations of potential ADA violations and in defining the rights of individuals with disabilities in preemptive efforts? For example, what is the approach of the department regarding stadium style theaters, for example, the seating there?

MR. ACOSTA: Certainly, Mr. Chairman. Reasonable accommodation has been defined-is obviously a fact specific inquiry. Courts throughout the nation have looked at that term and have defined that term with reference to the facts of a case. With respect to stadium style seating there is a regulation that covers that matter and the department has for many years now had a litigating position that makes clear that what we expect is a comparable line of sight. There has been litigation on this matter. Some plaintiffs have taken the position that seating, for example, in the front row is acceptable. One federal judge called that Headache City, alluding, I would assume, to the angle-to the steep angle of view that an individual has in the front seat. We believe it is a comparable line of sight and we believe that's what's required.

Let me add if I could this: we're very sensitive to the cost of compliance and we are working with businesses to ensure both access and reductions in regulatory burden. As a quick example, we just signed an agreement with the state of Maryland whereby we certified the Maryland building code. We have the authority, if states submit a code, to review the code and to identify discrepancies between a local building code and federal requirements. By bringing a code up to specification-federal specification, all sides win.

In Maryland now every time a local inspector goes to inspect a building-once it is signed off by that local inspector, the builder knows that it is built rightly. And so we are very sensitive to vagueness issues. We're very sensitive to cost of compliance and are working with states and localities to certify business codes so that everyone knows what is expected of them.

REP. CHABOT: Thank you very much. Let me shift to another area. In your written testimony you state that you've opened investigations of 39 nursing homes and mental health facilities and also jails for violating the constitutional rights of their patients or inmates. What is the status of those investigations and can you say whether you anticipate filing suits in any of them? And finally, how has the division's approach to investigations under CRIPA changed since you've taken the lead?

MR. ACOSTA: Certainly, Mr. Chairman. As you alluded, we have opened 39 new investigations covering 46 facilities under the Civil Rights of Institutionalized Persons Act. In some cases we have signed agreements, some very recently. In other cases we have found it necessary to litigate. We have filed the first lawsuit under CRIPA in-quite honestly, I don't know in how many years.

I've asked my staff and they don't remember-the career staff does not remember the last time that a CRIPA lawsuit was filed, so in several years. That concerned a center-a juvenile detention center in Mississippi where children were being hogtied, where they were being pole-shackled where they are placed around a pole, their arms are tied behind their back and left on public display, where girls-suicidal girls were stripped naked, left in a windowless room with only a drainpipe to serve as a toilet. We are litigating that case and we will litigate it strongly.

One change that we have made under CRIPA is we are making very public our findings. The division previously had not publicly-they were public but they weren't widely circulated, the concerns with respect to certain facilities. The reason we have done this is when a finding is made public, when public attention is called on a wrongdoing, not only do we fix the problem at that particular facility but we set national standards. We make it clear not only to that facility but to other facilities that these types of actions are not constitutional and are not permitted. And so I feel very strongly that we need to disseminate our findings and make them quite public.

REP. CHABOT: Thank you very much. My time has expired. The gentleman from New York is recognized for five minutes.

REP. NADLER: Thank you, Mr. Chairman.


REP. NADLER: Let me simplify this since we're running out of time --

REP. CHABOT: The gentleman's time --

REP. NADLER: -- as a matter --

REP. CHABOT: -- has expired. The gentleman is granted an additional minute.

REP. NADLER: Thank you.


REP. NADLER: Okay, thank you.

I have one more question, if I may within the minute?

REP. CHABOT: Go ahead.


MR. ACOSTA: Congressman, absolutely.

REP. CHABOT: The gentleman's time has expired.

REP. NADLER: Thank you very much.

REP. CHABOT: The gentleman from Florida is recognized for five minutes.

REP. FEENEY: Thank you, Mr. Chairman.


REP. CHABOT: The gentleman's time has expired. The gentleman from Michigan is recognized for five minutes.

REP. CONYERS: Thank you, Mr. Chairman.

REP. CHABOT: The gentleman's time has expired. The gentleman from Virginia is recognized for five minutes.


REP. CHABOT: Thank you. The gentleman's time has expired.

Mr. Acosta, we thank you very much for your testimony here this afternoon. If there's no further business, the-the gentleman from New York is recognized.

REP. NADLER: Mr. Chairman, I ask unanimous consent that all members have five legislative days to revise and extend their remarks and to submit additional materials for the record. And I also think we said additional questions?

REP. CHABOT: Yes. Without objection, so ordered.

REP. NADLER: Thank you, Mr. Chairman.

REP. CHABOT: And if there's no further business to come before the committee, we're adjourned.


LOAD-DATE: March 5, 2004

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