Ondray T. Harris (photo by Ryan J. Reilly / Main Justice).

The mandate of the agency known as the Justice Department’s “peacemakers” has expanded beyond its original goal of soothing racial tensions to extend to conflicts involving discrimination on the basis of sex, religion and disability, according to Community Relations Service Director Ondray T. Harris.

Harris said the Hate Crimes Prevention Act passed last year broadened the jurisdiction of the agency exponentially, adding five additional protected categories that can trigger the division’s involvement in an incident: gender, gender identity, sexual orientation, religion or disability.

“Our role historically has been someone reactionary in dealing with race, color, national origin matters,” Harris said in an interview last month. “Now we have more of a preventative role.”

The agency, which celebrated its 45th anniversary last August, was created under the Civil Rights Act of 1964. It is the only federal agency that exists to assist state and local governments, organizations and community groups in preventing and resolving racial and ethnic tensions.

“The underlying assumption of what CRS does is that when we get into a room and get single or multilateral talks with parties who have opposition to one another, that they will develop some understanding. At the core of all this is the faith in the American people,” Harris said.

Mediators come from a variety of backgrounds, said Harris, including lawyers, police chiefs, people with military backgrounds and those who have worked for civil rights organizations. Mediators do not force an outcome in reconciliations or negotiations. Instead they act as a third party, providing a process to allow communities to come together and reach an outcome that works for all parties, Harris said.

“It can be difficult in our culture, as we’ve gotten there through television and a lot of other media, that people think shouting at each other is always the answer,” Harris said. “That’s not what we need in a conciliator. We need someone who can show empathy but still be objective.”

Recently, U.S. Attorney for Arizona Dennis Burke asked the Community Relations Service to help with the civil rights forums. The agency also has been on hand at meetings with Somalian refugees in Colorado to help them integrate into the community. The agency was present when Justice Department officials informed the parents of a 14-year-old boy who died at a Florida boot camp that DOJ would not pursue civil rights charges in the case.

Map of CRS office locations (DOJ).

While its mission has expanded, over the past few decades the number of agency employees has shrunk. At one point, more than 350 employees worked for the agency. That number stood at around 100 in the early 1990s, but a budget cut in 1997 slashed the agency to just 41 employees. For the past several years, the agency has had about 59 employees. Today, a staff of 34 full-time employees man four field offices and 10 regional offices.

“They make a Herculean effort to get it done. My hats off to them, they do a great job, they make me proud,” Harris said. “Is it a challenge? Yes.”

Harris was nominated as Director of Community Relations Service by President George W. Bush in May 2007 and confirmed by the Senate in March 2008. The position is a four-year term. Before becoming director, Harris served as Deputy Chief of the DOJ’s Employment Litigation Section in the Civil Rights Division.

Secrecy, Impartiality Key to Success of CRS

The congressional mandate of the Community Relations Service includes a confidentiality agreement that bars officials from revealing the identity of parties taking part in negotiations without their permission, Harris said.

“Part of that is the reason that is some of those groups wouldn’t even come to the table if they feel that what they say to us or even that we’re talking to them will go public or will be shared with other federal agencies. Some of these groups aren’t very trusting of federal agencies,” Harris said.

That secrecy, Harris said, allows for frank and open discussion and participation. It also can ease the concerns of local elected officials who may worry how their work with the agency would be viewed by the public.

“They want to be seen as strong and not caving in to another side or a party, but they’re willing to talk behind closed doors to solve the issue,” he said. “They don’t want to read about it in the paper tomorrow that the mayor and the police chief met with civil rights activist X at the table with some federal agency.”

Not taking sides on an issue is also important to the work of the agency’s mediators. Harris said that lesson hit home when he traveled to Jena, La., in the summer of 2007 after a series of racial incident, including one where nooses were hung from a tree at a local high school. Six black teens were charged with attempted murder for beating a white teen, and they became known as the Jena Six.

“I didn’t go to Jena as a black man,” Harris said. “I went as the director or an agency working on an issue. I can’t afford to have a dog in that fight. It’s not about me, it’s not about the conciliators.”

Harris said some of the parties the agency works with would not agree to meet if they did not feel that the conciliators are objective.

“When you’re helping a community with a dispute, that’s not your fight,” Harris said. “So you cannot take into consideration your race, gender, national origin and side with one choice or another because as soon as you do that your impartiality is shot, your credibility is shot.”

Agency Adapting to New Issues, Expects Rise in Immigration Related Incidents

As the issue of immigration takes the national stage, the agency expects to see a rise in incidents tied to the debate, Harris said. The agency’s fiscal 2011 budget request states that if immigration reform moves forward, “experience suggests that we will see an increase in discrimination on the basis of race, color, or national origin” against either immigrants or those perceived to be immigrants.

CRS Director Ondray Harris with Rep. John Lewis at an event celebrating the 45th anniversary of CRS (Lonnie Tague/DOJ).

Immigration often masks other issues concerning race and national origin, according to Harris.

“We’re not really looking at the immigration question. We’re looking at the allegations of discrimination,” Harris said. “We’re comfortable with that because we have traditionally done race, color, national origin. So while we’re seeing an increase, the work itself isn’t new to us.”

As the agency reaches out to the Lesbian, Gay, Bisexual and Transgender community, there are lessons to be learned from how it handled outreach to Muslim and Arab-Americans communities in the aftermath of the Sept. 11 attacks, Harris said.

“Some of those communities, with reason, weren’t necessarily very trusting of state, local, federal government,” Harris said. “We don’t expect for it to happen overnight. But I think we’ve turned a corner in building rapport in those communities, and part of making it work with those communities is allowing them to have access to us and other federal agencies.”

Muslim and Arab-American communities in recent years have worked with the government to address their concerns instead of feeling ostracized, Harris said.

“Are there criticisms? Sure,” said Harris. “I’m not going to paint a picture that everything is perfect in those communities, but I think that most of those communities, if you talk to them, think that they can talk to the government, that the government is appreciative of them. The process that CRS provides allows them to come to the table.”

A Shift to Proactive Prevention

With the passage of the hate crimes law last year, the agency is reaching out to new communities.

“Disabilities are something we’ve haven’t done historically, because that overlaps with housing issues. Different communities see disabilities differently. Even the language, you have to be careful in how you address those communities because you don’t want to offend people in those communities,” Harris said.

The agency hopes to prevent hate crimes by facilitating educational meetings in response to conflicts or incidents. But predicting where hate crimes may occur “is not like reading the entrails of an owl” Harris said.

“There’s no barometer for measuring the tension. Generally we rely on the public,” Harris said. “It’s a little difficult in some of the rural communities in measuring the tension. It’s different if you’re talking about a city like New York City, for example, where there’s a civil rights or activist infrastructure in that community. You get into some of the rural areas, those communities don’t have the infrastructure.”

In the area of LGBT-related hate crimes, the agency has gotten high marks thus far. Mara Keisling, executive director of the National Center for Transgender Equality, said last month that DOJ has been conducting “spectacular” community education around the Hate Crimes Prevention Act.

Speakers (from left to right) U.S. Attorney Jenny Durkan, U.S. Marshal Sharon Lubinski, and Sen. Amy Klobuchar (D-Minn.) at the department's "Serving Openly, With Pride" event during LGBT Pride Month (photo by Channing Turner / Main Justice).

At an event in the Great Hall Monday honoring the contributions of the lesbian, gay, bisexual and transgender community, Attorney General Eric Holder said the Justice Department is working to “[live] up to its responsibility to provide a work environment where every employee is respected and given an equal opportunity to thrive.”

Holder also pointed to the Obama administration’s accomplishments on LGBT issues including the new federal hate crimes law — the Matthew Shepard and James Byrd Hate Crimes Prevention Act that the president signed into law in October — and the Justice Department’s recent decision that the Violence Against Women Act covers same-sex partners.

“We have much to celebrate today. In the year since we last gathered, our nation – and the Justice Department – have taken steps to address some of the unique challenges faced by members of our country’s LGBT community,” said Holder in remarks at the annual DOJ LGBT Pride Month event.

DOJ Pride was founded in 1994, and flourished when Janet Reno was Attorney General. Attorneys General John Ashcroft and Alberto Gonzales later banned the group from using Justice Department facilities. Attorney General Michael Mukasey welcomed DOJ Pride back to the Great Hall in 2008, and DOJ Pride President Chris Hook said the event has grown in size since the Obama administration took over in January 2009.

Budget Analyst and DOJ Pride President Christopher Hook receives the James R. Douglass Award at the "Serving Openly, With Pride" event (photo by Channing Turner / Main Justice).

During his remarks, Holder also touted the DOJ’s new Diversity Management Plan — which calls for greater diversity in such areas as hiring, promotions and retention — and the appointment of former acting U.S. Attorney for the District of Columbia Channing Phillips to manage the implementation of the plan as Deputy Associate Attorney General for Diversity.

“With this initiative, and with Channing’s leadership, we’re working to ensure that the department can effectively recruit, hire, retain, and develop a workforce that reflects our nation’s rich diversity, a department that welcomes and encourages the contributions of its LGBT employees,” Holder said.

Holder did not address some of the controversies that LGBT advocates have raised with the Department of Justice, such as the DOJ’s defense of the Defense of Marriage Act and the military’s Don’t Ask, Don’t Tell policy.

Assistant Attorney General for Civil Rights Thomas Perez introduced the keynote speaker, U.S. Attorney Jenny A. Durkan, the first openly gay federal prosecutor to head a U.S Attorney’s office.

“What a difference two years makes,” Durkan said. “Today I stand before you as the first openly gay U.S. Attorney. But I can promise you I’m not the last. In fact, today there are three Senate confirmed openly gay U.S. Attorneys in America.

“Two followed me. I started a trend. But I do want to point out, they’re all women. So guys, you need to step it up,” Durkan joked.

She also praised Holder’s work on the LGBT issues, saying that “there is nobody more committed to equality and justice across America than our Attorney General Eric Holder.”

Sharon Lubinski, the first openly gay U.S. Marshal, also spoke at the ceremony and was introduced by Sen. Amy Klobuchar (D-Minn.).

Officials in attendance at the event included Assistant Attorney General for the Civil Division Tony West; Assistant Attorney General Ignacia Moreno of the Environment and Natural Resources Division; U.S. Attorney for the Eastern District of Louisiana Jim Letten; U.S. Attorney for Minnesota B. Todd Jones; U.S. Attorney for New Jersey Paul Fishman; and Chris Dudley, Deputy Director of the U.S. Marshals Service.

DOJ Pride also gave out three awards, including to two local advocates for same-sex marriage. D.C. Councilmember David A. Catania, the force behind the law that made same-sex marriage legal in the District of Columbia, received the Gerald B. Roemer Community Service Award along with Maryland Attorney General Douglas F. Gansler. Gansler was an Assistant U.S. Attorney in the District of Columbia under then-U.S. Attorney Holder.

Hook received the James R. Douglass Award for his leadership of DOJ Pride. He took over in 2006, when the group had shrank dramatically during the Bush administration, but it has since grown back to the size it was during the Clinton administration.

Hook made it clear when he took over the organization in 2006 that DOJ Pride “did not intend to go into hiding,” said Marc Salans, Assistant Director of the Office of Attorney Recruitment and Management, who presented the award.

The event was sponsored by the Department of Justice, the Justice Management Division’s Equal Employment Opportunity staff and DOJ Pride.

Gay rights marchers rest at the National Equality March in October (file photo by Ryan J. Reilly).

Three pastors and the head of a family association have filed suit challenging provisions of the Hate Crimes law passed by Congress last year and signed by President Barack Obama. Those provisions, which protect people who are gay, lesbian, bisexual and transgendered from crimes motivated by bias against them, violates the religious leaders’ constitutional rights to speak out against what they say is immoral sexual conduct, the plaintiffs claim.

The lawsuit, listing Attorney General Eric Holder as the defendant, was filed in the U.S. District Court for the Eastern District of Michigan by lawyers from the Thomas More Law Center on behalf of Pastor Levon Yuille, Pastor Rene Ouellette, Pastor James Combs, and Gary Glenn, the president of the American Family Association of Michigan. It is the first constitutional challenge to the new hate crimes law’s provisions.

Lawyers for the religious leaders say that if they don’t prevail, they plan to appeal the decision all the way to the Supreme Court. A Justice Department spokesman told Main Justice that the government would “defend these vital protections in court.”

“The new federal hate crimes law protects Americans from perpetrators who turn prejudice into acts of violence,” said Alejandro Miyar. “Hate crimes seek to deny the humanity that we all share by victimizing whole communities.”

In their filing, the four conservatives say that the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act “elevates those engaged in certain deviant behaviors into a special, protected class of people under federal law.”

Citing George Orwell’s “Animal Farm” and Bible passages and making frequent references to the “homosexual agenda,” the lawsuit says that Yuille, a black radio host, takes offense to equating gay rights with the struggle for civil rights for African-Americans.

The suit says that Holder “encourages, endorses, promotes and supports the homosexual agenda in his official capacity as Attorney General of the United States.”

At a meeting with reporters in December, Assistant Attorney General for Civil Rights Thomas Perez said that his office was working to educate U.S. Attorneys about the protections included in the new hate crimes law. That law added additional classes of people who are protected from hate-based crimes. An earlier hate crimes law covered crimes against persons based on their race, color, religion, national origin or ethnicity.

A lawyer working on the Michigan lawsuit, Robert Muise, told Main Justice that he believed the hate crimes law would have a “chilling and inhibitory effect on the right to freedom of speech and freedom of religion.” He said the law will be used to silence the debate on homosexuality by equating it with race in the eyes of the law.

Because he was not aware of any lawsuits using the new protections that have been filed by the government, Muise said the case is a pre-enforcement challenge. “One of the hurdles we’re going to have is showing standing, and cases where you’re alleging that there is a violation of your right to freedom of speech, the rules for standing are relaxed. Obviously we want to ensure we have laws that don’t have a chilling effect on speech.”

Asked about the comparison between protecting religious beliefs and gender identity, both of which Muise believes are a choice, he said that was like comparing apples and oranges.

“I have no evidence that hate crimes [laws protecting] somebody because of their religion has been used to squelch speech, protected speech, of individuals like hate crimes that provide as protected classes sexual orientation and gender identity,” said Muise. “I don’t see the threat like I see in other jurisdictions.”

“I don’t think you can equate the two things,” said Muise. “When you’re dealing with sexual orientation, what you’re really dealing with is deviant sexual behavior which is contrary to moral law, and I don’t equate that with somebody preaching the bible.”

The lawsuit claims that “plaintiffs are targets for government scrutiny, questioning, investigation, surveillance, and other adverse law enforcement actions and thus seek judicial reassurance that they can freely participate in their speech and related religious activities without being investigated or prosecuted by the government or becoming part of official records because of their Christian beliefs.”

The lawsuit is embedded below.

Complaint Hate Crimes 2010

The Civil Rights Division has intervened in the case of a gay teen being harassed by his classmates (file photo by Ryan J. Reilly / Main Justice).

The Obama administration has intervened in a court case on behalf of a gay teenager by using a novel but not unprecedented interpretation of a law intended to ban gender discrimination.

For the first time since President Bill Clinton was in office, the Justice Department is arguing that the protections against sex discrimination laid out in the Title IX, a 1972 education law, apply to gender identity as well.

The documents were filed in the Northern District of New York in connection with a private lawsuit against a school district where a student was allegedly harassed because he is effeminate. The government said it had “authority to intervene to seek relief from denials of equal protection if the matter is certified as a matter of general public importance,” as certified by Assistant Attorney General Thomas Perez.

The student was teased and harassed by his classmates because he was had feminine characteristics, according to the lawsuit. The lawsuit alleges that school authorities did not do enough to intervene.

Title IX declares that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Critics said the Civil Rights Division’s interpretation in this case goes beyond the gender discrimination language of Title IX.

“The school has a duty to keep students safe when they’re at school,” said Roger Clegg of the Center for Equal Opportunity, calling the allegations of assaults troubling although he was not aware of the particular facts of the case. “That said, there’s a problem with DOJ’s interpretation of Title IX. I’m very skeptical about the argument,” Clegg told Main Justice.

Clegg said courts have rejected the argument that laws banning discrimination based on gender also ban discrimination based on sexual orientation.

Gay rights leaders, however, welcomed the government’s intervention.

“It’s a significant and welcomed returned presence by the Department of Justice to these issues,” Hayley Gorenberg of Lambda Legal told Main Justice. “There were before the Bush administration committees as well as individuals who had done significant work aimed towards the protection of LGBT people and their civil rights, and for years that has just laid fallow, and those efforts have been dormant. It is really exciting to see them come back to life, and this is an example.”

Gorenberg disagreed withe Clegg, saying that “there are strong interpretations of Title IX and other laws that prohibit sex discrimination that can be used to protect gay students.”

Such laws are “validly and powerfully read when there is evidence that discrimination against LGBT people is based on sex stereotyping and gender roles. We lack federal law specifically defending civil rights, so the protections need to be strong need to be put into place.”

Perez has testified in favor of the Employment Non Discrimination Act, which would outlaw employers from firing based on their employees sexual identity. He has also promised to fully enforce the recently passed hate crimes law which protects gay, lesbian, bisexual and transgendered people from bias motivated crimes. Gay Justice Department employees say they have seen progress and an “improved working relationship with this administration.”

The first time Title IX was used on behalf of a harassed gay individual came in 1998, when the Civil Rights Division reached a settlement with Fayetteville Public Schools in Arkansas. In 2007, a federal district court in Indiana ruled that a school can be liable under Title IX for its indifference to bullying of gay students. The court interpreted Title IX’s prohibition on sex discrimination to include discrimination against individuals because of their failure to conform to sex stereotypes.

Court documents filed this week say the Justice Department is intervening in the case because of violations of Title IX as well as the Equal Protection Clause of the Fourteenth Amendment, one count of negligent supervision, and violations of several provisions of New York human rights laws.

The teen, identified as “J.L.” in court documents filed by his father, Robert Sullivan, allege that the principal of Gregory B. Jarvis Jr./Sr. High School and the official charged with enforcing Title IX in the Mohawk Central School District in New York were indifferent to his harassment.

“J.L. is a fourteen year old male whose gender expression does not conform to male stereotypes. J.L. dyes his hair, wears make-up and nail polish, and engages in physical expressions that are stereotypically female, e.g., swinging his hips and singing in a high pitched voice,” according to court documents.

The complaint alleges that when J.L. was in seventh grade, students at the school subjected him to verbal sex-based harassment on a regular basis. His father complained multiple times to the school, but “the district failed to investigate, or conducted incomplete investigations of the allegations,” according to court documents.

Gorenberg said her group had been in serious, detailed discussions with the Civil Rights Division, and they are hopeful there will be action taken to support LGBT (lesbian, gay, bisexual and transgender) rights.

Civil Rights Division spokesperson Alejandro Miyar declined to comment.

Assistant U.S. Attorney William F. Larkin in New York worked on the case, as did lawyers Amy I. Berman, Whitney M. Pellegrino and Amanda M. Downs of the Educational Opportunities Section in the Civil Rights Division.

The government’s intervention in this case was first reported by Ari Shapiro, whose NPR story will be available online Friday evening.

Court documents from the case are embedded below.

Mohawk Memoradum of Law

Mohawk Complaint