Michael Selmi is the Samuel Tyler research professor at George Washington University School of Law.

Civil rights leaders and community activists cheered when Attorney General Eric H. Holder Jr. announced on Thursday that the Justice Department would be investigating the Ferguson Police Department for possible civil rights violations—a move prompted by the August 9 shooting death of an African-American teen at the hands of one of the St. Louis suburb’s white police officers.

The reaction is understandable. The Justice Department’s civil rights division—which is investigating whether Ferguson’s police force engaged in a pattern and practice of abuses—has for decades been instrumental in pursuing justice in matters and places where local action would have been unlikely. Think voting rights and desegregation in the Deep South of the 1960s.


Under President George W. Bush, the division was plagued by scandal, largely due to leadership that was intent on keeping “commies” and “crazy libs” off the staff, as a 2009 inspector general report documented.

“[I]t will take some time for them to fully heal,” Holder told the New York Times early in his tenure, vowing that the division will be “getting back to doing what it has traditionally done.”

Yet even under a historic black president and attorney general—two long-awaited firsts—the record of Obama administration’s civil rights division is mixed and modest, at best. For all this White House talks about taking “executive action” to get around a do-nothing Congress, it is hardly making good use of all available tools to pursue its agenda, even in a nation—as Ferguson proves—still roiled by deep racial divisions.

Indeed, a comprehensive review of all available records shows that the nature of the cases brought by the division has not differed much from the Bush administration. In some areas the number of filings in traditional civil rights cases appears to be down—in some areas down significantly. The vast majority of the cases the division pursues involve individual victims of discrimination and very few major reform-oriented cases have been filed over the last six years. The administration has been an important voice in supporting civil rights cases brought by others, primarily through “friend of the court” briefs. In this respect, it has a far better record than recent administrations, including Bill Clinton’s, which often waffled on taking unequivocal pro-civil rights positions in court. And as the Washington Post notes, the division appears to have opened more cases focusing on police departments than its immediate predecessor.

But much of the time, the vaunted Obama-Holder civil rights division has been reactive—responding to complaints filed by outside parties, rather than initiating investigations on its own.

My account of the Obama administration’s civil rights record is based on all existing publicly available information, though this is likely to be an incomplete picture because for many years the civil rights division has failed to provide any meaningful reports on its activities. Until recently, the only available information was provided in the context of congressional oversight hearings, and those reports typically read more like a highlight reel than a comprehensive account of the division’s activities.

The civil rights division is divided into sections that specialize in certain areas of the law—traditionally employment discrimination, voting, housing and education. In the Reagan era, when sentiment against affirmative action was strong, the employment litigation section, which polices state and local government employers, was the center of controversy, and the administration frequently changed litigation positions and shuffled in politically supportive personnel to concentrate on employment cases. In today’s environment, the section is all but dormant and the controversy has shifted to the voting rights section.

This shift may come as little surprise since the voting rights section involves issues that go to the core of any administration’s interests, namely elections and re-election. The voting rights section has long been active in redistricting disputes, primarily with a focus on ensuring that redistricting efforts do not discriminate against black voters, particularly in the South. With time, the racial redistricting issues have faded and more recently voter identification laws have come to the forefront.

A number of states—mostly those controlled by Republican legislatures—have instituted voter identification requirements, ostensibly as a way of controlling voter fraud. These laws are likely to have a significant adverse effect on African-American and older voters—some of whom may not have IDs or for which obtaining identification may be particularly burdensome.The Justice Department has challenged those laws as violating the Voting Rights Act. Two of DOJ’s challenges—in Texas and South Carolina—arose during the last election cycle and were successful, but the Supreme Court in June of last year invalidated the provision of the act that had provided the department oversight authority in certain states and jurisdictions. Undaunted, the Justice Department has filed new challenges to voting restrictions imposed in North Carolina and Texas even though the Supreme Court decision will require those challenges to turn on proving discriminatory intent—a much tougher hurdle—than merely discriminatory effect. These cases, particularly the most recent ones, represent the very kind of cases the Justice Department should be bringing.

Yet they are all too rare. Indeed, it is difficult to identify many substantial cases the division has brought over the last six years. Most of the housing claims were long ago transferred to the Department of Housing and Urban Development. Housing—despite America’s history of practices like “redlining” and overt examples of discrimination—has always been the least prominent of the traditional civil rights areas. The education section has done little more than monitor long-standing desegregation decrees, most of which were filed in the 1970s. The office of civil rights within the Department of Education has taken a particular interest in the issue of excessive school discipline of African-American students and the Justice Department has pursued claims against two small school districts for their disciplinary policies. As is true in many of these areas, the initiative and directive provided by the Department of Education has been impressive, while the litigation by Justice has been sparse. The civil rights division has also settled a trio of lending discrimination cases, two of which came on the heels of the financial crisis and settled for sizable sums. But a comprehensive review of the filings of those sections reveals very little groundbreaking or cutting-edge work, resulting in roughly the same number and kinds of cases that sections have brought over the past two decades.

This is also largely true of the employment litigation section, which traditionally has been one of the most active. Today the section has fallen into irrelevance: During the entire Obama administration it has not filed a single major case—though it’s hard to believe that employment discrimination in the public sector has essentially evaporated. Ironically, the one case that it highlights in its various reports—the challenge to the entry-level hiring practices of the New York City Fire Department—was originally brought by the Bush administration.

The dormancy of the employment section has a particular connection to the events in Ferguson, where 95 percent of police officers in this predominantly African-American city are white. From its inception, the section has sought to use litigation to diversify police departments. In the 1970s, the police departments in most major cities were sued by the civil rights division for discrimination in their hiring and occasionally promotion practices. This led to long-term decrees designed to change the demographics of the departments. Many of those cases were quite successful, particularly in bringing African Americans and Latinos into the departments, and in the 1980s the emphasis shifted to many of the suburbs that surround large cities. Those cases have mostly vanished, though many police departments—like Ferguson’s—remain far different from the communities they serve.

For the past two decades, the division has also had authority to investigate police departments for a pattern or practice of unconstitutional or discriminatory activity. The investigations are typically triggered by events that then lead to complaints filed with the department, and can take years to complete. The civil rights division has been active on this front, recently reaching settlement agreements aimed at reforms with Albuquerque, Newark, New Orleans, Seattle and Puerto Rico. The division had a long-standing consent agreement in place with Los Angeles that spelled out reform actions the department would take. The agreement was recently lifted and many believe it played a significant role in transforming the practices within the city’s historically troubled police department.

In many ways, the civil rights division now operates like a local United States attorney’s office, where most of the docket arises as a result of complaints they receive rather than as result of the division’s own investigations. Where the division differs is in matters of policy, and here the Obama administration has clearly made a difference, particularly when measured against the Bush administration. On virtually every issue that touches on civil rights, Holder’s Justice Department has been closely aligned with civil rights advocates, including on the contentious issues of affirmative action, school desegregation, disparate impact standards applied to housing, same sex marriage, the Voting Rights Act, the recent amendments to the Disability Statute and a slew of related employment cases. It has made its presence felt primarily in court cases, including those at the Supreme Court, by filing “friend of the court” briefs.

But a display of support for a litigant is not the same as direct action by the most powerful law enforcement agency in the country.

It is hard to know why the civil rights division become so docile—particularly when another enforcement agency, the Equal Employment Opportunity Commission, has embarked on an ambitious agenda that includes pushing the law forward in many areas of employment discrimination. It may be that there are no political gains to be made by having an aggressive civil rights division, given that such an approach would only appeal to the Obama administration’s core constituency. There has also been a clear desire to avoid controversy, and the Justice Department has long operated with an excessive amount of caution, which explains why an investigation into the Newark Police Department can take three long years to complete. Civil rights matters, generally, have also not been top-of-mind for most Americans, but as the events in Ferguson remind us, it is not because the work has been complete. Far from it, as President Obama and Attorney General Holder probably know all too well. But the question remains: What are they prepared to do about it?