ENFORCING CIVIL RIGHTS: RACE, DISCRIMINATION AND THE DEPARTMENT OF JUSTICE by Brian K. Landsberg.  Lawrence, Kansas: The University Press of Kansas, 1997. 276 pp. $35.00 Cloth. ISBN 0-7006-0826-5.

Reviewed by Harrell Rodgers, Department of Political Science, University of Houston.
 

Brian Landsberg spent twenty-two years as an attorney in the Civil Rights Division of the Department of Justice. He began his career in January of 1964 just as President Johnson bolstered the foundation of the civil rights movement by launching a successful campaign to convince Congress to pass the Civil Rights Act of 1964. Landsberg’s career spanned the most turbulent, dramatic, and ultimately successful periods in the nation’s struggle to end the racial caste system in America. By the time Landsberg left government service in 1988, the Civil Rights division had played a major role in eradicating many of the most overt barriers to Black equality and its jurisdiction had been expanded to fight numerous other types of discrimination.

Landsberg’s focus is on the evolution of this rather small division within the Department of Justice. He skillfully analyzes the political and social forces which shaped its evolving role, the delicate, confusing and sometimes self-defeating division of civil rights enforcement authority within the federal government, Congress’s concerns about giving too much authority to any one agency, the sharing of responsibilities with private groups and aggrieved individuals, and the setting and implementation of priorities to further the primary goal of ending racial discrimination. Two particularly interesting chapters examine how litigation policy was developed to lay the foundation for continuing progress in eliminating discrimination, and the relationship between career attorneys and political appointees within the Civil Rights Division during the five administrations in which Landsberg served. The final chapter reflects on the future of the Civil Rights Division at a time when many believe that most overt racial discrimination has been eliminated and when many are predicting and even working toward the closure of affirmative action.

Landsberg was clearly a trench soldier in the most profound, even dangerous, periods in which evidence of overt discrimination were documented in the field and then successfully eliminated by enforcement of the civil rights laws. He also served in administrations, which varied in their commitment to civil rights objectives, ranging from the uncompromising Johnson administration, to the confused and ambivalent Ford Administration, to the ideological opposed Reagan administration. Nevertheless, this book does not focus on individual acts or attempt to settle any scores with opponents. Landsberg does not shy away from pointing out instances when judgment and policy failed, but he brings a scholarly objectivity to the task of examining how effective policies and priorities were developed, and in identifying those operational and legal approaches which were most effective in accomplishing goals at various times in the division’s history.

Landsberg’s insights into the development of policy and priorities by the leadership of the Division are particularly interesting. Not surprisingly, the division early decided to focus not on individual cases but on broader structural barriers to equality, taking guidance from the famous CAROLENE PRODUCTS footnote. Attorney General Robert Kennedy, serving at perhaps the most critical period in the development of policy, decided to focus on cases that clearly could end broad systematic violations, while encouraging private groups like the NAACP to bring individual cases. Kennedy and other officials also agreed that the civil rights laws would be more likely to take root if voluntary compliance could be obtained. Kennedy believed that the failure of the civil rights laws after the Civil War was, in part, the result of the perception in the South that an alien federal government had imposed them. Therefore, when the civil rights laws became comprehensive enough to give local officials no further loopholes for evasion, Kennedy gave local officials prudent opportunities to obey the law before taking federal action. For example, under the 1965 Voting Rights Act, Kennedy sent federal registrars into enough counties to make it clear that the law would be enforced, but sent letters to most county officials asking for voluntary compliance. The strategy worked, with most minority registration taking place in counties where local officials were left in charge.

Over time, litigation policy followed a systematic pattern. A core principle such as nondiscrimination would be developed. The principle would then be refined by a period of compliance effort based on litigation. Litigation both helped define standards of relief and then applied these new standards. As time passed experience often led to adjustments in principles and standards. The key to making this process work was ultimate fidelity to eliminating racial discrimination, while being cognizant of other values such as federalism, and the rights of third parties. The mix of values often blended into the political arena, but statutes and case law generally restrained administration policies. Thus, litigation strategies and priorities reflected an intricate interplay within the legal and political framework.

Landsberg’s lifelong commitment to racial equality is particularly clear and unequivocal in the final chapter. While he agrees that great progress has been made, he fears that subtle and sophisticated forms of racism may never be eliminated unless the federal government, and particularly the Division of Civil Rights, continues to be active and vigilant. Landsberg cautions that the Division may have grown too rapidly in recent years for careful supervision and quality litigation. He emphasizes that it must employ high-quality staff attorneys who can be counted on to do the type of meticulous work that proved so invaluable throughout the Division’s history. He would like to see Congress now give the Department of Justice the general authority to sue for injunctive relief and civil penalties against a pattern or practice of racial discrimination that violates the Constitution or laws of the United States. Additionally, he believes that it is now timely for Congress to make it a crime to engage in intentional racial discrimination in violation of the Constitution or laws of the United States.

Given the current mood in Congress and justifiable skepticism about proving criminal intent in these types of cases, Landsberg’s proposals are not likely to find much support. The policy emphasis in Washington is primarily focused on eliminating the black underclass through welfare and education reform and economic growth. Still, Landsberg’s insights are worth careful consideration. Sophisticated discrimination can certainly undermine the most enlightened policies and complacency
or a premature declaration of victory can lose much of the progress that has been achieved.