US Civil Rights Head Clarke Urged to Go Bold With Time Now Vital

There weren’t many TV cameras for Kristen Clarke’s visits in June to majority-Black public and majority-White charter schools in the small Mississippi Delta town of Indianola.

The same went for the Justice Department Civil Rights Division chief’s other stops in the state, including a courthouse in one of the nation’s poorest counties where she talked with community leaders about prison conditions and hate crimes.

Her “listening tour” this year to historically neglected southern cities is an abrupt change from the confrontational style Clarke embraced while leading a civil rights organization during the Trump era. That’s when Clarke sparred with Tucker Carlson on Fox News and posted viral tweets promoting her lawsuits against the Proud Boys and police departments.

Receding from the national spotlight, while not surprising for a DOJ leadership team that prefers to talk mostly in court, is a strategy that’s helped Clarke navigate a job made nearly impossible by hostility in Congress, a conservative-leaning judiciary, and rising polarization. While she’s credited for reviving the division from Trump administration dormancy, supporters want Clarke’s agency to get bolder in enforcing the nation’s anti-discrimination laws.

“We’re being pragmatic and know that there’s limits to all good things, but we all want to see more,” said Damon Hewitt, who succeeded Clarke as president of the Lawyers’ Committee for Civil Rights Under Law.

Clarke, the first Black woman to lead the division, arrived in the aftermath of George Floyd’s murder and mass racial inequality protests, as Attorney General Merrick Garland elevated civil rights to the top of the department’s priorities. Two years later, she’s made incremental progress on police accountability, voting rights, hate crimes, and more.

But time is running out before an election cycle that will only increase the division’s workload and serve as a potential deadline to cement lasting change that can endure a future Republican administration.

Clarke, who declined to be interviewed via a department spokeswoman, said in a prepared statement that the division has made “significant strides” but “there is more work that must be done.”

Behind the Scenes

Former colleagues say her quieter touch of late is consistent with her guarded yet determined demeanor.

Raised by Jamaican immigrants in Brooklyn, the Harvard College and Columbia Law School graduate devoted her earlier career to many of the same issues she now shepherds.

She started her legal career as a Civil Rights Division trial attorney, prosecuting hate crimes and voting discrimination, before running the New York civil rights bureau by her mid-30s and the Lawyers’ Committee from 2016 to 2021

The latter post is where she began appearing in-studio to debate Carlson over voter ID laws and diversity policies, and expanded her public profile with tweets on racism and police killings.

“But she shut all that down at the department,” said Jon Greenbaum, who worked for Clarke as her chief counsel at the Lawyers’ Committee. “She’s comfortable kind of in either mode—of either being a public figure” or “functioning within the government, tending to not say very much and it not being all that illuminating.”

Although she’s occasionally taken center stage, such as in announcing the launch of a sweeping misconduct investigation into the Memphis Police Department last month, Clarke has largely slipped into the background, deferring to other agencies or more senior DOJ officials.

Perhaps not coincidentally, Clarke’s made headway on numerous fronts without attracting nearly the level of GOP animus she received in her Senate confirmation, after a Carlson-fueled campaign portrayed her as a radical.

“If you just look at the fire Kristen had to walk through to be able to get to the role, I don’t think it should come as a surprise to anybody that she operates with a level of care and precision and deliberation that is commensurate with the amount of scrutiny that somebody in her role is always going to be under,” said Sharon McGowan, formerly the chief strategy officer at Lambda Legal and a Civil Rights Division appellate supervisor.

Policing, Voting

The restraint hasn’t stopped Clarke’s division from delivering promising results, even as she faces calls to press harder.

The Garland DOJ has started eight “pattern-or-practice” investigations of state or local police jurisdictions. This led to landmark reports and ongoing negotiations towards court-enforced consent decrees in Minneapolis, where an officer killed Floyd, and Louisville, site of the fatal police shooting of Breonna Taylor.

On voting, the Civil Rights Division has sued Texas, Georgia, and Arizona, accusing them of enacting illegally restrictive election measures. Separately, its challenging Texas’s redistricting plan. Those cases all remain pending.

Other accomplishments include a record $31 million redlining resolution with City National Bank for failing to underwrite mortgages in predominantly Black and Latino neighborhoods in Los Angeles as well as deals brokered with Houston and an Alabama county to stop pollution in communities of color.

While fears of setting statute-weakening precedents in venues dominated by conservative jurists have prevented additional court activity in some instances, the division hasn’t shied away from other hot-button matters, such as suing anti-abortion protesters for blocking access to reproductive health-care facilities.

More Visibility

Still, there’s pressure from public interest lawyers, advocates, and progressives on Clarke to ramp up legal filings and speak out more forcefully about the threats surrounding the 2024 election.

“We want DOJ, we want Kristen to actually use their bully pulpit to say, ‘This is how we interpret the law. Voting rights for people of color means something in this country,’” said LaShawn Warren, chief policy officer for the Southern Poverty Law Center.

The department has been willing to wade into election coercion matters by filing friend-of-the-court briefs, but a key test will be the extent Clarke spearheads the government’s own litigation.

The division filed a statement of interest backing a lawsuit against two men for sending racially-targeted robocalls warning Black voters against mail-in voting, an apparently novel use of the Voting Rights Act. Hewitt, whose organization brought the challenge, said he appreciated DOJ’s support in a case that’s already won a preliminary judgment, but hopes to see more such action as the campaign season heats up.

Numerous advocates have questioned why the division hasn’t sued more local and county governments for gerrymandered maps rather than dedicating resources to joining challenges against states, which nonprofits already have covered.

The division should also “lean into and be more engaged” in filing real estate discrimination lawsuits accusing tenant screeners of denying rentals to those with a criminal record, said Amalea Smirniotopoulos, senior policy counsel at the NAACP Legal Defense and Educational Fund.

And on policing, the National Urban League is awaiting action on its referrals for investigations in Kansas City, Mo., Akron, Ohio, and elsewhere. Civil rights leaders said launching and resolving more pattern or practice probes is vital to prevent future administrations from abandoning them, as Trump did.

“We remain steadfast in our commitment to using every tool at our disposal to protect the civil and constitutional rights of all Americans,” Clarke said in her statement.

Bureaucracy, Judiciary

Clarke’s performance can’t be fairly assessed without considering the bureaucracy she operates in, allies say.

Some civil rights lawyers said she’s gotten a raw deal—especially over funding at an agency with a workforce that’s plateaued as its mandate has grown.

“There was a public expectation she was going to get” a budget increase to hire attorneys across the division, “and she got completely screwed,” said Jonathan Smith, who was chief of the division’s special litigation unit from 2010-15. “It was a squandered opportunity.”

Despite Biden administration attempts to raise it, Congress flatlined her budget for her first full year in office, before giving the division a 17% bump for the current fiscal year. The White House is asking Congress to raise that by another 33% to $252 million for the spending cycle beginning this October—an unrealistic boost now that Republicans have the House majority.

Even if she did get extra spending flexibility, the judiciary branch nonetheless imposes serious hurdles to aggressive enforcement. US Supreme Court decisions have narrowed the lane for voting rights litigation.

And lawsuits targeting agency administrative guidance as executive overreach may limit Clarke’s ability to issue statements interpreting civil rights laws. That trend has implications for her agency’s ongoing development of a document on how race can still be relevant to college admissions policies after the Supreme Court’s affirmative action decision.

Plus as a caretaker of the government’s institutional interests, Clarke has been careful not to “succumb to or feed a narrative that the Civil Rights Division is politicized,” said Corey Stoughton, a former senior counsel at the division who now heads special litigation at the Legal Aid Society.

Squaring that interest with the need to enforce the law is challenging in a climate of “partisan warriors,” she added. The division’s traditionally collaborative culture in securing settlements now confronts state and local governments with “active antipathy towards the federal government, and this administration in particular,” Stoughton said.

One sign that Clarke has made progress internally is employee satisfaction and engagement survey scores, which have soared the past two years relative to the Trump administration, according to an analysis from the Partnership for Public Service.

Civil Rights staff also ranked 1st out of 410 federal agencies in 2022 in a category called “mission match,” which measures employees’ sense of accomplishment, the analysis found.

McGowan appreciates how Clarke has inspired her team, regardless of outside voices demanding more.

“The work really in many ways is what speaks most loudly,” she said, “even if Kristen herself isn’t speaking loudly.”