In a Bureaucratic Bind


Washington Times, August 22, 2002

On Aug. 8, the Department of Housing and Urban Development (HUD) and the Equal Employment Opportunity Commission (EEOC) were sued by plaintiffs represented by the Center for Individual Rights. The lawsuit claims that the agencies violated the civil rights laws that prohibit employment discrimination based on race, ethnicity and sex. This lawsuit, which is likely to create a significant legal precedent, puts the Department of Justice in an awkward position.

When the federal government is sued for discrimination in its capacity as an employer, the Justice Department has an obligation to represent the government in court. But the Justice Department also has an obligation to enforce the civil rights laws, and arguments made in its capacity as the government’s defense counsel can undermine its ability to serve as civil rights enforcer. There is an inevitable tension here. There is no way that the department can be 100 percent effective in both jobs at once.

The best way for the Justice Department to strike the appropriate balance is by asking itself what the right answer is as a matter of law – that is, what the applicable statutes and other laws actually mean. Private law firms don’t have to ask themselves how a case ought to come out; their job is to represent their clients and let the courts decide. But if the lawyers at the Justice Department determine that a client agency has acted in a way inconsistent with the civil rights laws, they should not defend that behavior in court.

For instance, HUD is accused of hiring and promoting in a way that uses preferences based on race, ethnicity and sex. The Justice Department’s civil rights enforcement ability is not undermined if it simply argues, as a matter of fact, that no such preferences were used. So far, so good.

But it’s not good if the Justice Department argues as a matter of law that a “goal” is not a racial classification, or that remedial preferences are justified whenever there is an imbalance in any job subcategory, or that there is a “diversity” (as well as a remedial) exception to Title VII of the Civil Rights Act of 1964. Then it is making arguments and encouraging the development of case law that will be used by future discriminators – the very people against whom the department would otherwise seek to enforce the civil rights laws. The Civil Division (which defends federal agencies) should not make such arguments on HUD’s behalf unless the department would accede to them if they were made by a state defendant that had been sued by the Civil Rights Division (which enforces the civil rights laws).

Consequently, the leadership at the Justice Department needs to focus now on delineating acceptable and unacceptable legal arguments to make in employment discrimination cases involving affirmative discrimination. In addition to the Civil and Civil Rights Divisions, the solicitor general (who coordinates the department’s appellate litigation) ought to be involved, since these issues are a staple of litigation before the federal courts of appeals and the Supreme Court.

The bureaucracies at HUD and the EEOC may complain that they are the “clients” and that “their” lawyers at the Justice Department must stick by them. Sorry, but when the Justice Department is forced to choose between enforcing the civil rights laws and helping out bureaucrats caught breaking those laws, it’s not a close question.