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Wednesday, May 02, 2012

DOJ Opens a New Front in the Battle Against Systemic Discrimination

More on Douglas in the next day or two.  Let me talk about a different matter today.  One of the great honors of my life was the opportunity I had, from 2009 to 2011, to serve as a political appointee in the Civil Rights Division of the U.S. Department of Justice, where I was Principal Deputy Assistant Attorney General for Civil Rights.  (I love how long government titles are!)  My boss in that job, Assistant Attorney General Tom Perez, has been incredibly aggressive in using all the tools available to the Division to address pressing civil rights issues that had not often received attention from DOJ in the past.

In the past several days, the Civil Rights Division has made two announcements that highlight its current aggressiveness.  Last week, the Division announced the findings of its investigation of the Shelby County, Tennessee, juvenile court system.  Those findings included some issues that had been the bread-and-butter of DOJ investigations of juvenile justice for years -- unconstitutional conditions of confinement for those in juvenile detention -- but other issues that break new ground.  Most notably, the Division found systematic race discrimination in Shelby County's juvenile justice system.  As the article I linked above summarizes the findings, "Black juveniles who were arrested in Memphis and surrounding Shelby County were twice as likely as whites to be detained in jail and twice as likely to be recommended for transfer to adult court, where a conviction generally brings harsher punishment, Perez said."  (You can download the whole findings report at this link.)

Yesterday, the Division announced the opening of a novel joint investigation of the University of Montana (under Title IV of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972), and the City of Missoula Police Department and the Office of the Missoula County Attorney (under the police misconduct provision of the 1994 Violent Crime Control and Law Enforcement Act and the antidiscrimination provision of the 1968 Safe Streets Act).  The investigation will assess whether the University and the local authorities violated the Constitution or civil rights laws by failing to protect women against sexual assaults.  In announcing the investigation, AAG Perez said that "[i]n the past three years, there have been at least 80 reported rapes in Missoula.   At least 11 sexual assaults involving University students are alleged to have occurred in the past 18 months."  This investigation seeks to vindicate the constitutional guarantee of equal protection of the laws in its core, original sense -- the guarantee that state and local law enforcement will protect all citizens equally against private depradations.

I should note that I played only a very minor role in the initiation of the Shelby County investigation, while the Montana/Missoula investigation entirely post-dates my time at DOJ.  More about what's novel about these investigations, and why DOJ is really the only entity that can vindicate the rights at issue, after the jump.

Let's start with Shelby County.  Since Congress enacted the police misconduct provisions in the 1994 crime bill, the Civil Rights Division has investigated and reached settlement agreements with law enforcement agencies across the country.  A fair number of these cases have involved allegations of race discrimination, but the alleged discrimination relates to on-the-street conduct by police officers and sheriff's deputies -- the classic "racial profiling" situation.  The Division's recent findings regarding the Maricopa County Sheriff's Office (another matter with which I had some involvement when I was at DOJ) are an example.  But Shelby County is the first matter of which I am aware in which the Division has alleged a pattern or practice of discrimination by prosecutors and judges.  (The police misconduct statute empowers the Division to reach conduct not just by law enforcement officers but also by "officials or employees of any governmental agency with responsibility for the administration of juvenile justice," which explains why DOJ has jurisdiction here.)

It is impossible to address the problem of race discrimination within the criminal justice system by focusing on on-the-street law enforcement conduct alone, because a great deal of discrimination occurs in the discretionary decisions of prosecutors and judges.  As Sasha Natapoff has shown with her recent work on misdemeanors, this is probably particularly true in the parts of the criminal justice system that are relatively shielded from public view and do not receive extensive formal process.  The juvenile justice system is often one of those out-of-sight, out-of-mind areas of criminal justice.

In the Montana/Missoula case, what breaks new ground is not the investigation of the University -- that's standard fare for Title IX investigations -- but the broader investigation of the local Missoula police and prosecutor's office.  This is the first Division law enforcement investigation of which I am aware in which the discriminatory failure to protect a class of victims of crime has been the main focus, and in which the Division has targeted prosecutors as well as police.  This is, as I said, an effort to vindicate the equal protection of the laws in its core, original sense.  Discriminatory failure to investigate and prosecute crimes has been a major problem for victims of sexual assault and violence against women (something the Supreme Court acknowledged, then disregarded, in United States v. Morrison).  And, as Randy Kennedy's work highlights, it has been a major problem for racial minorities who are victims of crime as well.  

And DOJ is basically the only entity that can challenge these sorts of systemic patterns of discrimination in court.  Discrimination is likely to be impossible to prove in any individual case.  In Shelby County, any individual juvenile defendant is likely to be unable to show that he was treated more harshly because of his or her race than because of the facts of his or her case.  And in Missoula, any individual victim is likely to be unable to show that the police or proseuctors responded less vigorously to her crime because of her gender rather than because of the individual facts.  Any effort to respond to these concerns by bringing the case as a class action would likely face a serious commonality problem.  And any effort by an individual or private class to seek forward-looking relief would have great difficulty overcoming O'Shea v. Littleton and Los Angeles v. Lyons.  (This is especially true in the Shelby County context -- in which the case would basically be identical to O'Shea -- but also likely true in the Missoula context.)

So DOJ is likely the only entity that can bring these sorts of claims into court.  I still wouldn't underplay the difficulties of proof here.  But the Civil Rights Division's efforts to attack the problems of systemic discrimination in juvenile justice and failure to protect crime victims are incredibly important.

Posted by Sam Bagenstos on May 2, 2012 at 10:52 AM in Constitutional thoughts, Criminal Law | Permalink


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I've got articles at http://ssrn.com/abstract=1100105 and http://ssrn.com/abstract=1100121 making the same argument, building on Rosenthal & tenBroek, among lots of others.

Posted by: Chris | May 2, 2012 10:49:07 PM


Thanks. I totally agree that this is the core historical meaning of equal protection of the laws. To get on one of my other hobbyhorses, this is a theme of some of Jacobus tenBroek's work, which people should read beyond his article with Tussman.

Posted by: Sam Bagenstos | May 2, 2012 10:09:19 PM


DOJ has just announced that it's beginning an investigation. It hasn't asserted any constitutional violation. The point of the investigation is to determine whether a violation of the Constitution or a federal statute has occurred. You're right that in order to show a constitutional violation DOJ will have to show intentional discrimination on the basis of gender (not so clear that's true under Title IX or the Safe Streets Act), and that's something the investigation will no doubt explore.

Just a couple of points about your description of the relevant law:

1. I would caution against overreading cases like Soto and Eagleston. They don't erect some unusual standard for failure-to-protect equal protection claims. Rather, they make clear that the basic Davis-Feeney standards that apply to any equal protection claim apply in this context. And the courts have been clear from the beginning (Davis, Arlington Heights, etc.) that disparate impact is one sort of evidence that may tend to support an inference of intentional discrimination. In this vein, Soto itself is explicit that the failure to enforce domestic violence laws is one piece of evidence that may support an inference of discriminatory intent. See, e.g., Soto at 1069 ("With Law 54, the legislature of Puerto Rico has expressed, through the democratic process, an intent to protect the female victims of domestic violence and has noted that enforcement agencies have been discriminatory and part of the problem. Thus, under-enforcement of Law 54 by those charged with administering the law may in fact be a subversion of majoritarian processes for individual, illegitimate motives. We believe, in this context, that action by officials leading to non-enforcement of Law 54 may be some evidence of discriminatory intent by those individuals."). The factual showings made by the individual plaintiffs in these cases were weak. That doesn't mean the law is any different here than it is in any other equal protection case.

2. DeShaney's a red herring, isn't it? There are lots of things that the government has no independent substantive duty to provide under the Due Process Clause or any other constitutional provision (schools, pools, disability benefits, police protection, etc.). But of course the Equal Protection Clause prohibits the state from discriminating when it chooses to provide them. I know of no law that says that super-difficult equal protection standards apply in cases -- which are the bulk of equal protection cases -- involving discrimination in the provision of services the government has no independent obligation to provide.

But again, this is just the initiation of an investigation. It's not the finding of any violation.

Posted by: Sam Bagenstos | May 2, 2012 9:47:45 PM

Some years ago, I published an article arguing that this kind of claim involves a paradigmatic violation of the Equal Protection Clause, at least in terms of its original, framing-era meaning. Today we tend to read the Equal Protection Clause simply as a guarantee of equality, as if the word "protection" did no particular work. In the framing era, however, there was enormous concern that the southern authorities were failing to protect freedmen and union sympathizers against private violence, and the Equal Protection Clause embodies this concern. To be sure, these kinds of claims may face daunting problems of proof, but it is strange that we have come to regard this type of equal protection claim as novel -- it is anything but. For anyone interested, my article can be found here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=926356

Larry Rosenthal
Chapman University School of Law

Posted by: Larry Rosenthal | May 2, 2012 9:44:11 PM

What's the basis for asserting a constitutional violation here?

In most circuits (perhaps the Ninth Circuit, which includes Montana, is different), even very inadequate and feeble responses to sexual assault or domestic violence are generally not deemed equal protection violations by the courts, unless the lack of response is MOTIVATED by gender animus. For a particularly striking case, see Soto v. Flores, 103 F.3d 1056, 1066 (1st Cir. 1997).

Since there is no duty to protect the general public AT ALL under the Supreme Court's DeShaney decision, it is not enough to show that the response was inadequate, but rather, it must be shown that the inadequate response was BECAUSE OF the victim’s gender (and not merely because the case involved sexual assault or domestic violence rather than some other crime -- see the First Circuit's Soto decision):

Here is a typical federal appeals court decision so holding, Eagleston v. Guido, 41 F.3d 865, 877-78 (2d Cir. 1994):

"Even were we to accept Mrs. Eagleston's interpretation . . .of the evidence actually introduced at trial, she establishes no more than that on average a claim of domestic violence is less likely to result in an arrest than a claim of violence between strangers. But a plaintiff alleging sex discrimination who seeks to predicate a prima facie equal protection claim on a policy that is not facially discriminatory must establish that the intent or purpose of the policy was to discriminate against one sex. Personnel Adm'r of Massachusetts v. Feeney, 442 U.S. 256, 274 (1979). The presentation of evidence that the purportedly neutral policy "has a disparate impact upon a group that has historically been the victim of discrimination" can be an "important starting point" in establishing the existence of a Constitutional violation. Id. at 273-74. However, viewed in the light most favorable to Mrs. Eagleston, her evidence . . . does not carry her beyond this starting point. "[T]he Fourteenth Amendment guarantees equal laws, not equal results," and "purposeful discrimination is the condition that offends the Constitution." Id. (citations and internal quotations omitted). Discriminatory purpose "implies that the decisionmaker ... selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Id. at 279. Mrs. Eagleston has not met her burden of proof on this issue. A directed verdict is appropriate in a domestic violence equal protection claim unless the plaintiff adduces evidence sufficient to sustain the inference that there is a policy or a practice of affording less protection to victims of domestic violence than to other victims of violence in comparable circumstances, that discrimination against one sex was a motivating factor, and that the policy or practice was the proximate cause of plaintiff's injury."

Posted by: Hans Bader | May 2, 2012 6:05:48 PM

Thank you, that's helpful. So insofar as DOJ is investigating the use of grants that it gives, it is discharging its responsibility under Title IX. Insofar as there is overlap here with the ED investigation, DOJ is coordinating with ED.

...so there is no DOJ investigation unrelated to underlying DOJ grants. That's helpful.

Posted by: AndyK | May 2, 2012 4:06:50 PM


Two points:

1. You are under the misconception that Title IX coverage is triggered only by funding from the Department of Education. But when DOJ is the agency that grants funds to an educational program, it has the power to investigate and litigate potential Title IX violations without a referral from ED. The DOJ notice letter to the University of Montana (available here: http://www.justice.gov/iso/opa/resources/527201251182241168071.pdf ) makes clear that the University does in fact receive federal financial assistance from the DOJ, not just ED.

2. The notice letter also makes clear that ED's Office for Civil Rights has received a complaint about the University's response to allegations of sexual assaults, and it represents that DOJ will coordinate with ED OCR in their respective investigations.

Posted by: Sam Bagenstos | May 2, 2012 3:08:18 PM

I see a primer on DOJ's website delineating its role in Title IX enforcement, here: http://www.justice.gov/crt/about/cor/coord/ixlegal.php#IX.%A0%20Department%20of%20Justice%20Role%20Under%20Title%20IX/

This action seems not to fall under any of those categories. So where does DOJ get the authority under Title IX to investigate and prosecute compliance with (optional, to receive funds) federal, ED promulgated standards of investigation? I understand the Feds can possibly look to other statutes and the common law (obstruction of justice, for example). But if ED OCR hasn't found noncompliance, what is the statutory role for DOJ in this allegedly Title IX context?

If there's a problem with uneven enforcement, shouldn't DOJ be investigating ED?

Posted by: AndyK | May 2, 2012 2:20:02 PM

Sam, thanks for the response. I agree that the absolute standard isn't appropriate: There's no discrimination if there is equal treatment. But I guess I'm puzzled as to how you can have an investigation into possible unconstitutional discrimination without first having an initial sense of what discrimination would even mean in that setting. If discrimination means treating two similar things differently, it seems a little odd to announce an investigation into practices, and, only later, to begin to consider what the similar things might be that might form a basis for considering if there is unequal treatment.

As for the remedy, I suppose the simplest and cheapest remedy would be for the local police to stop investigating other similar crimes as much, thus ensuring equality, at least once you identify what is "similar." I imagine that is not DOJ's goal. But if that's right, perhaps that is the difficulty with the investigation: It seems, at least at first blush, to be less about ensuring equality than about trying to influence the allocation of resources in state police offices in Montana based on what appears normatively desirable in Washington, DC. That's not necessarily an illegitimate goal -- DOJ grants to local police might properly do that, for example -- but using the Equal Protection clause here strikes me as an unsettling way to achieve that goal. Or at least that's my initial take: I'll be interested to see where this goes.

Posted by: Orin Kerr | May 2, 2012 2:16:27 PM


This is why I said I wouldn't underplay the difficulties of proof. Where the police and prosecutor's offices are concerned (leave aside the University, whose obligations to investigate and respond are defined by Title IX and the cases implementing that statute), the legal requirement is that they not discriminate on the basis of sex in violation of the Fourteenth Amendment or the Safe Streets Act. So I think that can't mean that there's a constitutionally required absolute standard of investigation; the question is whether they investigated these crimes to the same extent to which they would have if the victims were not women. As in all discrimination cases, comparators would be quite helpful but not essential to proving the relevant discrimination here. Police or prosecutors might have made statements indicating discriminatory intent, for example. But to the extent that such an investigation would look to comparators, you're right that there are interesting questions regarding what is the relevant comparison: assaults against men? sexual assaults against men? other crimes of similar severity? other crimes that require similar resources to investigate and prosecute? These are the kinds of issues that DOJ will have to grapple with as it pursues its investigation.

Of course, even if there is no constitutionally required absolute standard of investigation, a remedy (whether negotiated or litigated) could well include a requirement that all sexual assault cases be investigated to a certain extent. But that's really a different question than the one I think you're asking.

Posted by: Sam Bagenstos | May 2, 2012 1:09:46 PM


As I understand the press conference statement on the Montana investigation, the idea is that the United States Constitution requires state police and prosecutors to investigate certain crimes more vigorously than they have been investigating them. If I'm correct about that, what's the constitutional standard for how vigorously the states must investigate such cases? Is the relevant comparison sexual assaults of men and sexual assaults of women, so there must be equalization of the degree of investigation? Or is there some sort of constitutionally required absolute standard of investigation -- and, if so, what is that standard?

Posted by: Orin Kerr | May 2, 2012 11:55:09 AM

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