Remarks as Prepared
Thank you, Dean Newton, for the invitation and opportunity to join you here at the University of Miami School of Law. It is an honor to serve as this year’s speaker for the Becker Poliakoff Preeminent Lectures.
Being here on this beautiful campus in Coral Gables, in this lecture hall, after two years of meetings on Zoom screens, feels celebratory. It also brings back memories of my time as a law student. No doubt many of you have your own recent or more distant memories of classes, clinics or professors. Children and Youth Advocacy Clinic, the Health Rights Clinic, the Environmental Justice Clinic, the Human Rights Clinic, Tenants Rights Clinic, Innocence Clinic which has secured some major victories over the past few years. The Historic Black Church Project which has been driving suits around environmental justice. The Hope Public Interest Initiative which helps bring social justice driven students to the law school. The Civil Rights Law Practicum where are addressing issues like online bullying and harassment. Criminal Civil Rights Investigation and Prosecution course where students are learning about hate crimes and police misconduct cases. The Public Interest Law in the Private Practice where students got to work with law firms on systematic litigation. And then there are a host of amazing student-led organizations like Miami Law Women and their work to advance gender justice and Outlaws that are addressing LGBTQ issues right here in the city. These experiences have given you a glimpse into lawyering and a sense of the power of the law outside the classroom.
For me, one of those moments came with a class that focused on “civil rights lawyering” with Professor Ted Shaw. Some of you may know of Ted Shaw as a great civil rights attorney from his work at the NAACP Legal Defense Fund. He worked there for over 26 years, litigating cases related to elementary, secondary and higher education, housing, voting rights and capital punishment and directed LDF’s education docket. He also taught civil procedure and other classes at Columbia Law School, where I was a student. His civil rights lawyering class brought the law to life.
I had known for a long time that I wanted to be a civil rights lawyer. I remember a field trip in high school where we visited a courtroom and sat in on a hearing concerning school desegregation in Hartford, Connecticut. As a young Black student, I was in awe of the powerful legal advocacy and compelling arguments being made for racially integrated schools. Years later, in this civil rights lawyering class, Professor Shaw would tell war stories of his cases, describing his work in the trenches as an LDF lawyer traveling all over the country in pursuit of justice. I was inspired and intrigued by his accounts and his dedication. Like me, he had gone to Columbia Law School. And he had started his career as a trial attorney in the honors program of the Justice Department’s Civil Rights Division – something to which I also aspired. His class and his war stories gave me a context from which to start truly reflecting on the power of the law. These lessons have remained with me throughout my career.
I have been at the helm of the Civil Rights Division since last May, and, let me tell you, it has been an exciting and productive year at the division. Before I talk about some of the critical work that we have done recently, especially in the areas of racial and gender justice, I’d like to start by discussing a piece of civil rights history from right here in Florida. Florida was home to some of the civil rights movement’s most pioneering activists, such as Mary McLeod Bethune and James Weldon Johnson, and the struggle for civil rights remains an important part of this state’s history. In 1964, Dr. Martin Luther King, Jr. came to St. Augustine to protest segregation—during that summer of ‘64, it was a major battleground leading up to the enactment of the Civil Rights Act of 1964.
As with so much history related to civil rights, this particular case is not one with a happy ending. It is a case that Florida’s Legislature in 2017 has called “a shameful chapter in this state’s history.” Supreme Court Justice Jackson referred to the case as “one of the best examples of one of the worst menaces to American justice.” A criminal case that brought Thurgood Marshall and the NAACP Legal Defense Fund to Florida.
Maybe some of you have heard of the case of the “Groveland Four” –4 young Black men identified and accused of having raped a young white woman in 1949, in Jim Crow-era Florida. The case is full tragedy: there were doubts about Norma Padgett’s testimony from the outset, but in the era of Jim Crow, one of the accused never even made it to a courtroom. Ernest Thomas was hunted down and shot to death by a mob of about 1000 men – his body was riddled with over 400 bullets. A jury quickly convicted all three surviving defendants despite evidence presented at trial that none of the three men were nearby at the time of the crime. The youngest, Charles Greenlee, was 16 years old and received a life sentence. The other two defendants, Samuel Shepard and Walter Irwin, were 22, and received death sentences.
Enter Thurgood Marshall and the NAACP Legal Defense Fund. Thurgood Marshall, known at the time as “Mr. Civil Rights,” represented the two capital defendants on appeal, and in a 1951 per curiam opinion for all nine justices, the Supreme Court overturned their convictions and returned the case to the state for a retrial. In a concurring opinion, Justice Jackson pointed to “prejudicial influences outside the courtroom” and noted that “the conclusion [was] inescapable that these defendants were prejudged as guilty, and the trial was but a legal gesture to register a verdict already dictated by the press and the public opinion which it generated.”
This was only the beginning of a lengthy and complicated legal saga, which I can only give you a short glimpse into today. Even after that resounding victory, justice was not easy to come by for the accused men. While Shepard and Irwin were being transported from state prison to the local jail for a hearing after their convictions were overturned by the Supreme Court, they were shot by the local Lake County sheriff, Willis McCall. Shepard died on the side of the road, but Irwin survived. Despite testimony from Irwin, Sheriff McCall was acquitted for the shooting of the Shepard and Irwin, and Irwin was again convicted on retrial and again sentenced to death.
Sheriff Willis McCall would be repeatedly re-elected, serving as sheriff until 1972, and was never convicted for multiple violent incidents against Black men. His prejudice extended beyond how he treated criminal defendants: the Orlando Sentinel noted that he “kept the trappings of segregation long after the rest of the South had integrated,” and it wasn’t until 1971, when the Nixon administration stepped in and sued to integrate the Lake County Jail, that Lake County’s restrooms removed the “colored” and “white” signs. He lived a long life in retirement before his death in 1994.
Marshall’s legal advocacy, though not enough to sway the jury on retrial, stuck with the state prosecutor, and gnawed at him. Eventually Irwin’s death sentence was commuted by Governor Collins when he took office in 1954, and Irwin was released from prison in 1968.
Many years later, in 2017, the Florida state legislature passed a resolution formally apologizing to the families of the Groveland Four for “gross injustices.” Norma Padgett continued to stand by her accusations, but in 2019, Governor DeSantis pardoned all four of the defendants, remarking that the “ideals of justice” were “perverted, time and time again,” in this case. At the same time, the Orlando Sentinel also apologized that its news coverage of the case “lent credibility to the cover-up and to the official, racist narrative.” And finally, just this past November, a judge exonerated them, vacating the convictions of Greenlee and Irvin, and dismissing Thomas and Shepard’s indictments.
And despite these significant changes and necessary steps to acknowledge injustice, we know that some of individual harms cannot be repaired. Two lives were lost to murder and vigilantism. The survivors, Irwin and Greenlee, spent much of their lives wrongfully incarcerated.
It is hard to read about, or talk about, moments in our history like this. They are painful reminders of bias and hate-motivated crimes committed by law enforcement and then facilitated by the justice system and the electorate. But they also show what thoughtful, determined legal advocacy can do. It can convince the Supreme Court to overturn convictions from the Jim Crow south in 1951. It can stand up to law enforcement when a sheriff and his office are not serving the interests of justice or upholding the constitution. This determination remains critical today, as it was back then.
It is striking, when you reflect on such a tragic part of our recent past, that at that time, the Civil Rights Division that I now oversee did not yet exist. Created as part of the Civil Rights Act of 1957, the division is nearly 65 years old and was borne of the activism and organization of the early Civil Rights Movement. We now have incredibly powerful civil rights laws to use as tools to fight against racism and other forms of harmful discrimination. It doesn’t mean there is less to work to do, but it does mean we are better equipped to meet these challenges.
And of course, this is but one example from Florida’s long civil rights history. There are many key civil rights struggles to make real the promise of equality in this state: embattled efforts to desegregate schools, “wade-ins” at swimming pools and beaches, campaigns of bus boycotts and lunch counter sit-ins. Many of these efforts were led by students and young people. Students like Patricia and Priscilla Stephens, Florida A&M students who were lead organizers with the Tallahassee Congress of Racial Equality (known as “CORE”). Using strategies they learned at a CORE workshop here in Miami, they organized a sit-in at a Woolworth’s lunch counter in Tallahassee in 1960. They were arrested for disturbing the peace. Rather than pay their fines, eight of these students chose jail time. Patricia wrote a letter from prison about her experience. Her letter reached civil rights leaders like Martin Luther King, Jr. and Jackie Robinson. And King wrote a telegram back: praising their “determined courage” and “righteous protest.” He concluded with the recognition that “you bring all of America nearer the threshold of the world’s bright tomorrows.” Students and young people here in Florida stepped up. They sharpened our sense of what was at stake, formed the focal point of so much of this nation’s important history, and drove so much positive change in the direction of that horizon “of the world’s bright tomorrows.” We still seek that threshold. We continue to work to get closer.
A career devoted to civil rights work means you take stock of victories that push us towards a more equitable society – the successful prosecutions of hate crimes and unconstitutional policing, the systemic investigations and resolutions against police departments, landlords, employers, banks, and more – but you also notice the gaps, the spaces that still need to be filled in. We can be grateful, but far from satisfied, that McCall is no longer sheriff of Lake County, for there is much work to do to confront the problems of bias in policing and in the criminal justice system and to uphold laws that protect the rights of all to participate fully in our civic and social life.
So now I’d like to talk about some of the major ways that today’s Civil Rights Division is continuing the fight for racial justice and equity.
From the account of the Groveland four, and the central, awful role that a sheriff’s office played in that tragedy, it’s probably easiest to draw a connection to our policing work. Indeed, our work upholding constitutional and lawful policing practices, and our work investigating and prosecuting individual law enforcement officers who violate individuals’ rights, is a central focus for the division, and for me.
Where there is evidence of systemic violations of civil rights laws, we have powerful tools available to address patterns of misconduct. These investigations are known as “pattern or practice investigations,” and they reflect a unique and critically important authority vested in the Department of Justice to examine and investigate, and, where appropriate, enforce key civil rights statutes to ensure constitutional policing. In the last year, the department opened pattern or practice investigations of the police departments in Louisville, Minneapolis, Phoenix and Mount Vernon, New York, including investigating whether these departments engage in discriminatory policing. That work is ongoing. As you can tell from the geographic locations of these open policing investigations: this work is necessary and keeps the division busy in jurisdictions across the nation.
Racial justice also requires that the people are able to trust the individual police and law enforcement agents who serve them. That is why the Civil Rights Division has worked to hold individual police officers accountable for misconduct. In the past year, we secured convictions of four former Minneapolis police officers for federal civil rights violations in the death of George Floyd. George Floyd’s killing, and how to hold the offenders to account, has captured our nation’s psyche since May 2020. Those convictions sent a clear message to police departments across the country that they must use only reasonable force and that individual officers have a proactive duty to protect the constitutional rights of all Americans.
We also have a significant role to play in the prosecution of hate crimes. We recently secured guilty verdicts on hate crime charges against the three men who killed Ahmaud Arbery in Georgia, another nationally recognized case involving racism and violence. The evidence at trial revealed that the defendants had strongly held racist beliefs that led them to make assumptions and decisions about Mr. Arbery because he was a Black man. For instance, the evidence showed that one defendant had referred to his daughter’s Black boyfriend as a “monkey” and used the “n-word,” that a second had made deeply racist comments, including that he wished that Julian Bond, a prominent Black civil rights leader, “had been put in the ground years ago,” and that “those Blacks are nothing but trouble,” and that the third had expressed on social media and in text messages that he associated Black people with criminality and wanted to see them harmed or killed.
Ahmaud Arbery’s killing illustrates why robust enforcement of our federal hate crimes laws is essential. Enforcing hate crimes laws sends a powerful message to those who are affected, and to the broader community: that they are valued, that their communities are important, and that the federal government will not stand by idly when they are targeted.
And of course, racial justice work is not limited to criminal justice and policing, or to holding racially motivated offenders to account. A more equitable society means equal access to social and civic institutions that provide access to housing, to credit, to voting, to schools. Our work to confront racism in those institutions is paramount.
I could talk at length about the division’s meaningful work in so many of these areas, but since April is fair housing month, I will share some recent work on the Fair Housing Act.
Everyone deserves equitable access to housing, and to information about renting or purchasing a home. This was true in the late 1960s and 70s, when fair housing groups would send “housing testers” out to see how a prospective landlord treated a pair of white people posing as prospective tenants, compared to a similarly situated group of Black people, also actors, also posing as prospective renters. This simple method of fair housing “testing” was an effective method of uncovering race discrimination in many housing markets across the country. Now that many of us look for housing online, the search for housing looks different: the field of housing options is broader, landlords don’t interact as often face to face, and discrimination may not be as overt as it once was. That doesn’t mean that discrimination isn’t there; it just means we have to know where, and how, to uncover it.
Last month, the division filed a statement of interest in an ongoing lawsuit where the plaintiffs, a Black couple, sought to refinance their home. When the appraiser visited their home the first time it was valued around a million dollars. However, they took a page out of the fair housing testing playbook and had their house re-appraised a few weeks later, this time with their white friend posing as the homeowner. The same exact house, was now appraised nearly a half million dollars more. This discrimination is prohibited under the Fair Housing Act.
Racial justice has always been a priority in my own career, and to the Civil Rights Division, and it remains so to this day. And yet it’s important to remember that much civil rights work requires challenging more than one kind of discrimination, or one kind of bias. The ability to connect with people of different identities, different backgrounds, and different experiences is invaluable in this work.
We should think about whom we are willing to believe as victims, and why, and how we approach connecting with people who experience sexual assault and violence. We must learn from the mistakes of history.
To that end, recognizing and fighting against gender bias and gender-based violence is another priority of the Civil Rights Division. The division enforces civil laws that prevent sex discrimination, including harassment, and we also prosecute criminal violations: human trafficking laws, including sex trafficking, and prosecute state and local government actors who abuse their authority by engaging in sexual assault or misconduct under color of law.
“Gender-based violence” is violence “rooted in structural gender inequalities and power imbalances.” It includes the use or threat of physical violence and coercive control, sexual assault, and stalking. It also includes human trafficking, online abuse and harassment, and child sexual abuse.
Gender-based violence is a form of sex discrimination. Law enforcement responses to complaints of gender-based violence can either perpetuate or help address this form of discrimination. And this is true in our own federal investigations, and with the law enforcement agencies that we investigate: how officers, agents, and lawyers approach, interview, and connect with victims of gender-based violence affects what happens in the cases. Is the victim taken seriously, treated with respect they deserve, and given the resources they need? Do investigators treat all victims with respect, or only those who fit an officer’s image of what a victim should look like, or say?
We have taken this work seriously for years, and our work addressing gender-based violence remains as crucial as ever. For example, in the division’s case against the Baltimore Police Department, we uncovered and reported serious concerns with gender bias in the BPD and the BPD’s approach to gender-based violence. Nearly six years ago, we reported that “officers fail[ed] to meaningfully investigate reports of sexual assault, particularly for assaults involving women with additional vulnerabilities, such as those who are involved in the sex trade,” women who may already be more vulnerable to rape and assault. There were failures of evidence collection and analysis for sexual assault complaints, and inadequate review of these reports. We reported concerns that “officers’ interactions with women victims of sexual assault and with transgender individuals display unlawful gender bias,” including mis-gendering transgender women who complained of assault. BPD detectives asked sexual assault victims questions such as “Why are you messing that guy’s life up?” and referred mockingly to victims they didn’t believe in their internal communications.
These examples from our report show how difficult it would be for a victim to come forward and report a sexual assault in that environment. Five years later, with a lot of work and engagement, significant progress has been made. We reported last week that we have laid a strong foundation to achieve effective and constitutional policing in Baltimore.
Gender-based violence, and the importance of thoroughly investigating claims of sexual assault, also extends to our work on behalf of another vulnerable population: incarcerated individuals. People who are restricted in terms of movement and liberty have constitutional rights, including the right to be free from sexual abuse from staff. This past summer, after investigating a women’s correctional facility in New Jersey, we entered a settlement with the New Jersey Department of Corrections requiring the Edna Mahan facility to implement new policies and practices that will protect incarcerated women from sexual abuse, including policies around reporting, rules against retaliation for reporting sexual abuse, and improved measures ensuring that staff are held accountable for sexual abuse.
Our investigation into Edna Mahan found a decades-long pattern of sexual abuse by correctional officers against incarcerated women. This pattern included not only sexual abuse of prisoners by staff, but inadequate systems for preventing, detecting, and responding to sexual abuse. Multiple correctional officers pleaded guilty to state criminal charges and admitted to serial, repeated instances of sexual abuse of prisoners. At sentencings for the underlying sexual assaults, several judges remarked on a “pervasive culture” of abuse of authority at Edna Mahan and assault on “a vulnerable population.”
Further exploiting vulnerabilities, we learned that prisoners with limited English proficiency had no way to report sexual abuse or other issues without seeking assistance from other prisoners, which compromised confidentiality. Spanish-speaking prisoners at Edna Mahan reported that they could not submit grievances without the assistance of English-speaking prisoners because prison staff would not respond to requests written in Spanish. During our investigation, an Edna Mahan correction officer opined that the Spanish-speaking prisoners “don’t really need help” because he believed they all could speak English and were only pretending not to in order to seek special treatment.
Every prisoner deserves to be safe from sexual assault and other forms of sexual abuse by staff, and to be protected from retaliation for reporting abuse. The settlement agreement we entered addresses head-on the systemic issues related to gender-based violence that plagued the Edna Mahan facility — issues that go beyond correctional institutions and that also affect how other law enforcement and municipal state actors address claims of sexual assault.
As you can tell from the different cases, investigations, and recent division priorities that I’ve described today, much of the Civil Rights Division’s most critical work involves advocating for, investigating, and enforcing laws on behalf of underserved and vulnerable populations –including people that belong to multiple protected classes. This includes where discrimination occurs at the intersection of identities – gender, race, disability, and others. Yes, gender-based violence disproportionately affects women, but it also disproportionately affects people populations more likely to be lower-income, rural, women, LGBTQI+, transgender or non-binary. We know that gender-based violence disproportionately affects Black and Indigenous women and other people of color.
Some of the Civil Rights Division’s cases must directly confront discrimination on multiple grounds. For example, last month, our criminal prosecutors obtained a guilty plea against a defendant who had made threatening communications to a Black woman and her family. In his plea agreement, the defendant described using a mobile phone application to send an anonymous, threatening message to a Black woman. The defendant used racial epithets to describe the victim and her family, and he threatened to come to their home and do physical harm, including stating that he was “coming to rape [her] family.” The racial epithets and the threat of “rape” were particularly vicious because of the identity of the victim as a Black woman in this case. Acknowledging these pieces of her identity was crucial to developing a rapport with her as our investigators and prosecutors worked up the case.
Even where intersecting discrimination is not a specific part of a case, it may be an important part of the overall context. For instance, Black, Latino, and Native people are overrepresented in prisons. In New Jersey, where the Edna Mahan correctional facility is based, 77% of the state prison population is Black and Latino. As described earlier, prisoners at Edna Mahan with limited English proficiency were further victimized, further discriminated against: they were unable to report their experiences of sexual assault. The pattern of sexual abuse at Edna Mahan was therefore also a pattern of sexual assault against women of color and against women with limited English proficiency.
Every person deserves to be treated equitably and with respect. Part of the duty, and privilege, of being a civil rights lawyer is noticing and acknowledging, and talking about, where discrimination happens. This includes directly acknowledging intersectional bias. So that we are better equipped to confront discrimination in all its forms, and better able to advocate for our clients and pursue justice and equity for all aggrieved persons. And I challenge you all, whether you pursue a public interest career or not, to approach your work with the same awareness and sensitivity. Whether working on a discrimination case or a contract, a pro bono case or a real estate closing, you will be connecting with other people. With a client, with corroborating witnesses, with opposing counsel, with a judge or a jury. Developing a greater appreciation of and respect for people’s identities can give you new insights and take you far.
I have talked a lot today about the challenging, ongoing work of confronting discrimination in our past and present. This is a difficult, weighty project that must continue for the Civil Rights Division and for all of us.
But I’ll end by sharing a recent joyful experience. On April 8, I had the honor of representing the Civil Rights Division at the White House, as we celebrated the Senate confirmation of Judge Ketanji Brown Jackson as our next Supreme Court justice. It was a beautiful, sunny day. I was deeply moved by all of the speakers and ceremony. Vice President Harris remarked that with this historic confirmation, we will all see “for the first time, four women sitting on that Court at one time.” And not just a woman: it is remarkable that, in the future Justice Jackson’s own words: “It has taken 232 years and 115 prior appointments for a Black woman to be selected to serve on the Supreme Court of the United States. But we’ve made it.” Remarkable in that it has taken so long, and remarkable that we are able to celebrate that it has now happened.
So, let’s take note of the major victories, the successful cases, the settlements, the historic nominations and appointments. They can lift us up when the day-to-day work feels hard, when the weight of history feels heavy.
I thank you again for your invitation and for the opportunity to share a small piece of the great work of the Civil Rights Division with all of you.