Assistant Attorney General Kristen Clarke Delivers Remarks at the American Bar Association Annual Meeting Thurgood Marshall Award Dinner

Remarks as Prepared for Delivery

Thank you, John for that kind introduction. Greetings to Chair Juan Thomas and Chair-elect Robin Runge, to ABA President Deborah Enix-Ross and President-Elect Mary Smith and to my DOJ colleagues, U.S. Attorney Cole Finegan and Rob Weiner.

It is a great privilege to be with you today, especially because the host of this event is the ABA Civil Rights and Social Justice Section. The ABA is the voice of the legal profession, the guardian of the rule of law. And CRSJ is the conscience of the ABA, the hub for civil rights lawyers, and the prime mover for projects that address some of the most important issues of our time.

I’m also thrilled to be here as the Section honors John Echohawk, a steadfast champion of Native American rights. Congratulations, John, and thank you for all that you do.

I would be remiss this evening if I did not say a word about Charles Ogletree, a legal giant who passed away on Friday. ‘Tree,’ as he was affectionately known, was a brilliant scholar, a tireless advocate who believed deeply in the right to counsel for the poor, the son of migrant workers who used the law as a tool to protect victims of injustice, an advocate for survivors of the Tulsa race massacre and a civil rights lawyer molded in the finest traditions of Justice Thurgood Marshall. Ogletree stood before you all as a keynote speaker for the Thurgood Marshall Award in 2001.

Now, I am humbled to address you this evening because Justice Thurgood Marshall is one of my heroes.  I have two portraits of him in my office. I previously worked at the NAACP Legal Defense and Educational Fund, which he founded in 1940. Justice Marshall was a trial lawyer, appellate advocate, strategist, spokesperson and civil rights leader. He used law to weave justice into the fabric of our nation.    

Justice Marshall put his life on the line repeatedly, venturing into the most violent, virulently racist jurisdictions, places where challenging racial apartheid could get you killed, where Black defendants almost always were convicted by all-white juries, where Marshall’s mere presence as a Black lawyer was regarded as a serious provocation, especially to law enforcement.

But Marshall took those threats in stride. He told a story about being chased by a lynch mob – but not just any lynch mob. The leaders of this one were the local sheriff and his deputies.

He also recounted how, when he was trying a case in a Southern town, the local newspaper printed on the front page, “We don’t advocate violence, but for those interested, NAACP lawyer Thurgood Marshall is staying at the following address.”

And Marshall described the time a deputy sheriff warned him that he’d better be on the next train out because no Black person – and that wasn’t the word he used – had ever survived the night in that county.  As Marshall put it, “So I packed up my constitutional rights and got on the very next train.”

Justice Marshall talked about growing up in segregated Baltimore. Once, as a teenager, he was downtown and found that there was no bathroom a Black person was allowed to use. He had no choice but to get on a bus and go all the way back home. He only made it to his front steps. Decades later, Marshall bitterly described that event – not the attacks, the abuse or the death threats he had endured – as the most humiliating of his life.

I tell that story because it conveys in the most primal way, the indignity and inhumanity inflicted by racism. The cumulation of those abuses fueled Marshall’s burning sense of justice, his commitment to the intrinsic worth of every human being, and what he called in Brown his “dedicated belief” in a colorblind Constitution.

In my time with you this evening, I want to briefly describe what we are doing in the Civil Rights Division to the U.S. Department of Justice to carry on the legacy of this work. I take seriously our role as the highest civil right law enforcement agency in the country. As we all know, far too many people in this country still confront the stigma and sting of racism, discrimination and even violence simply because of who they are, where they come from, what they look like or who they love. While this work is challenging, I want you to know that the Civil Rights Division remains as resolute as ever.

I’ll start with one of the major cases of this term – Students for Fair Admissions v. Harvard (SFFA) – the recent decision on race-conscious college admissions. Several Justices debated Marshall’s legacy regarding a colorblind Constitution. Of course, Marshall had far too much experience with the harsh realities of racism and massive resistance, he had represented far too many doomed clients, appeared in far too many kangaroo courts, to view colorblindness as a near-term mandate rather than an ultimate objective. By 1978, in his dissent in Bakke, his long struggles led him to a sober assessment:

The civil rights victories in the 1940s and 50s, Justice Marshall said,

“did not end segregation, nor did they move [Blacks] from a position of legal inferiority to one of equality.  The legacy of years of slavery and of years of second-class citizenship in the wake of emancipation could not be so easily eliminated.”

“For far too long,” Marshall continued, “positions of influence, affluence, and prestige in America” were closed to Black people. “If we are ever to become a fully integrated society, one in which the color of a person’s skin will not determine the opportunities available to him or her, we must be willing to take steps to open those doors.”

SFFA was about diversity as a basis for considering race as one among a number of factors in college admissions. The Court dismissed the universities’ assessment of the educational benefits – or even the relevance – of racial diversity in that setting. But, as Justice Jackson observed in her dissent, the notion “permeat[ing]” the decision was “that it is unfair for a college’s admissions process to consider race as one factor in a holistic review of its applicants.” Justice Jackson’s powerful refutation of that notion echoed Justice Marshall’s reflections in Bakke. She said that:

“Our country has never been colorblind. Given the lengthy history of state-sponsored race-based preferences in America, to say that anyone is now victimized if a college considers whether that legacy of discrimination has unequally advantaged its applicants fails to acknowledge the well-documented ‘intergenerational transmission of inequality’ that still plagues our citizenry.

The SFFA opinion was a disappointment. But this moment has reinforced our fervent commitment to promoting equal educational opportunities for all students, addressing barriers to diversity in higher education, and to doing so within the legal boundaries set by the Court. SFFA may make it harder to expand opportunity and diversity, but while the path may be difficult, in the civil rights community we are used to “difficult.” We must rededicate ourselves to achieving equal opportunity and diversity on college campuses and in society.

Right now, the Department of Justice and the Department of Education are developing a resource document that we will issue soon advising colleges and universities, students, and other stakeholders on how to seek the benefits of diversity and equal opportunity within the limits set by SFFA. For example, schools can align their admissions policies with the attributes they most value – hard work, achievement, and potential—including consideration of how race affected an applicant’s life. In SFFA, the Court stated that a university could consider “a student whose heritage or culture motivated him or her to assume a leadership role or attain a particular goal” when it is “tied to that student’s unique ability to contribute to the university.”

This moment also presents an opportunity for universities to examine admissions preferences and policies broadly, to confirm whether these preferences and policies directly relate to an applicant’s individual merit or potential, and to ensure that existing metrics or criteria do not exacerbate existing inequality or disparities. For much of our nation’s history, most institutions of higher education excluded Blacks, Latinos, Native Americans and other people of color, and we acknowledge the steps that some schools have taken to open their doors and seek out qualified and capable applicants of all races.

Our work in the Civil Rights Division, of course, encompasses more than higher education. We are deeply focused on the crisis of hate crimes and bias-motivated violence gripping our nation.  FBI statistics show that hate crimes increased nationwide by more than 11% from 2020 to 2021. Since January 2021, we have charged more than 90 defendants with bias-motivated crimes in more than 80 cases. That includes charges against the man who killed 10 Black people with an assault weapon at a Tops grocery store in Buffalo, New York, because Black people were supposedly trying to replace whites in this country. That includes our prosecution of three white men in Georgia men who killed Ahmaud Arbery just because he was Black. That includes the defendant sentenced to 90 consecutive life terms for killing 23 people and wounding 22 more at a Walmart in El Paso, Texas, because of their Hispanic identity and their national origin. That includes the defendant recently found guilty for the anti-Semitic attack on the Tree of Life synagogue in Pittsburgh that resulted in the loss of 11 lives.

To take another example, we obtained a seven-year sentence against a neo-Nazi in Washington state for plotting to intimidate journalists and advocates who worked to expose antisemitism. A Texas man received 25 years for a knife attack on an Asian family he believed was Chinese and thus responsible for the COVID-19 pandemic. And on Wednesday, a Missouri man was sentenced to 16 years in prison for setting fire to an Islamic Center on the first morning of Ramadan. In all, since January 2021, we have convicted more than 70 defendants for hate crimes.

There is urgency behind this work. No American in our country should be killed, subject to violence, or threatened with violence based on race, religion, national origin, sexual orientation or gender identity.

We have also made it a high priority to hold law enforcement officers accountable when they violate civil and constitutional rights. Such misconduct erodes the public trust that is essential to effective law enforcement. We secured federal convictions against Derek Chauvin, the former Minneapolis officer who killed George Floyd, and the three other officers who stood by and failed to intervene or to render medical care – actions that may have spared Mr. Floyd’s life. It includes four officers whom we recently indicted for their role in the tragic death of Breonna Taylor. And it includes several officers who pleaded guilty this past Thursday in Rankin County, Mississippi for the heinous, brutal assault and torture of two Black men. One of those Black men grew up singing in his church choir but will likely never sing again after one officer rammed a gun in the man’s mouth for a mock execution, resulting in the discharge of a bullet that tore the man’s tongue, broke his jaw and exited through the back of his neck. Since January 2021, we have prosecuted more than 50 cases of police misconduct and obtained more than 40 convictions. A core principle guides this critical work: No one is above the law in our country. Period.

In addition, we are working to promote constitutional policing. Just over a week ago, we launched a pattern and practice investigation into the Memphis Police Department, where the killing of Tyre Nichols signaled potentially broader issues. And in June, we announced our findings that the Minneapolis Police Department had engaged in a “pattern or practice” of misconduct by using excessive force, discriminating against Black and Native American people in enforcement, retaliating against protestors and journalists exercising their First Amendment rights, and discriminating against people with behavioral health disabilities when responding to calls for assistance. We are now negotiating a consent decree to institute the reforms necessary to cure these issues.

We announced similar findings in March for Louisville, Kentucky. Several other pattern or practice investigations are pending across the country, including in Phoenix, New York City, and Louisiana.

All Americans deserve policing that is fair, non-discriminatory and constitutional.

Lastly, I want to mention our work to safeguard the right to vote – the most important civil right in our democracy. In Texas, we challenged a law that impairs the rights of Blacks and Latinos to vote absentee and to receive help in the voting booth from assistors they choose. This week, we begin trial in Galveston, Texas, where we are challenging a discriminatory redistricting plan that denies Black and Latino voters an equal opportunity to elect candidates of choice. In Arizona, we sued to stop unlawful restrictions on voter registration. And last month, we challenged a new Mississippi law mandating appointment of hand-picked special judges and prosecutors by white Mississippi state officials in majority-Black Hinds County and the City of Jackson. We allege that Mississippi unconstitutionally created a new, two-tiered system of justice, displacing elected Black officials and populating a new system with judges and prosecutors appointed by white state officials. This thinly veiled State takeover singles out Hinds County’s predominantly Black electorate for adverse treatment imposed on no other voters in Mississippi, shifting power and resources away from officials democratically elected by Black voters.

Countless Americans – civil rights leaders and ordinary citizens – fought and died to secure the right to vote.  They stood up to brutal assaults and even lynchings. We can’t forsake the sacrifices of these heroes.  We can’t break faith with them by abandoning the progress we’ve made. We will fight to ensure that every eligible American can exercise the right to vote and have voice in our democracy.

Tomorrow, August 6, marks the 58th anniversary of President Johnson’s signing of the Voting Rights Act – a moment to reaffirm our collective commitment to eradicating voter suppression and voting discrimination.

There is more that I could say about the Civil Rights Division – about our new efforts to advance environmental justice, our work to combat modern-day redlining by banks and other lenders, our fight to protect the rights of people with disabilities including the announcement of our recent proposed rulemaking to address website and mobile app accessibility for people with disabilities, our work to address unconstitutional conditions in our jails and prisons, our efforts to ensure that our workplaces, schools and local communities are free of discrimination and more. It suffices here to reiterate our determination to stand up against discrimination wherever it rears its ugly head and to fiercely defend the civil rights of all people in this country.

Thurgood Marshall was a brave and valiant champion of these civil rights. In giving this award to John Echohawk tonight, we rekindle the inspiration of Marshall’s example. We draw strength from Marshall’s faith in the rule of law and in his belief that lawyers can make a difference. And we remind ourselves that while we stand on his shoulders, we have to keep rising.

The challenges we face are formidable. The murderous forces of hate and bigotry are stubbornly entrenched. And the half-life of discrimination spans many generations. But, as Congressman John Lewis reminded us,

“Ours is not the struggle of one day, one week, or one year. Ours is not the struggle of one judicial appointment or presidential term. Ours is the struggle of a lifetime, or maybe even many lifetimes, and each one of us in every generation must do our part.”

If all of us in this room tonight – judges, attorneys, policymakers, advocates and citizens concerned about protecting our democracy and ensuring equal justice under law– approach these challenges with courage and conviction, with fidelity to the constitution, and with empathy for those who are suffering, there is no doubt that we will bring about the better future that all Americans deserve. Thank you for having me this evening.