Tuesday, October 17, 2017
"The death penalty has no place in the 21st century" said UN Secretary Guterres as part of World Day Against the Death Penalty. The event took place at the United Nations and Mr. Guterres was joined by the Assistant UN Secretary for Human Rights, Andrew Gilmour. According to UN News Center, “Some governments conceal executions and enforce an elaborate system of secrecy to hide who is on death row, and why,” noted Mr. Guterres, underscoring that lack of transparency showed a lack of respect for the human rights of those sentenced to death and to their families, as well as damaging administration of justice more generally."
The News Center goes on to note that "The Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), now ratified by 85 States around the globe, requires its parties to abolish death penalty. It is the only universal international legal instrument that aims to end the practice."
Further coverage may be found at deathpenaltyinfo.com
Thursday, October 12, 2017
Those of us litigating intimate partner abuse cases have been privy to the tactic of false equivalencies as a means of protecting male privilege. One particularly vexing case I tried resulted in extensive findings of the husband's abuse of the wife. The judge found also that the wife had been inhospitable to her mother-in-law. The latter finding was justification for the judge to ignore the abuse in fashioning remedies. Consequently, the husband's abusive behavior remained unconsidered when the judge gave unfettered access to the children. This is not an isolated case. In both petitions for civil protection orders and family law decisions, courts fail to protect partners and children if the abused partner failed to behave in the perfect, mythical manner embedded in the judge's stereotypes. In these cases, false equivalency is used to protect white male privilege. The faulty premise can also be used as a sword.
The same discriminatory technique plays out in race cases, as well. A particularly shocking example happened this week in Virginia. A magistrate issued a warrant for DeAndre Harris, a black man who had been viciously beaten by white supremacists following a "Unite the Right" rally. Mr. Harris suffered spinal injuries and a head wound requiring ten stitches. Then a man who claims to be an attorney and a "Southern Nationalist" filed a police report and then a request for a warrant for the arrest of Mr. Harris alleges "unlawful wounding", a felony. In Virginia a magistrate may issue the warrant, even where, as in this case, a police investigation is complete. As in civil protection order hearings where abusers file retaliatory petitions for protection orders, the goal is to discredit the victim. An additional benefit is the victim's reluctance to appear in court given that the victim could have adverse consequences. Dropping the cross complaints is often the result, leaving the victim unprotected and reluctant to seek future help.
My sense is that this is the goal of the white supremacist. While three men have been arrested for beating Mr. Harris, cross charges will adversely impact any jury. Confusion and reluctance to convict will result.
This is the time for courageous prosecutors and police to step up and request dismissal of the charges for lack of evidence and because the allegations are retaliatory.
Thursday, September 28, 2017
The actions of African American football players kneeling during the national anthem had been noticed, but not so controversial, prior to Number 45's tweet. But post-tweet, "taking a knee" has become just another tool to divide the country along racial lines. Like it has for others who avoid examination and exploration of truth,use of diversionary tactics has been wildly successful for 45. But in this instance,
backlash has been swift. Football owners and players have "taken the knee" after the President angrily demanded that any football player who kneels should be fired.
Georgetown Law Center students and faculty joined the kneeling protests. Last week, Attorney General Sessions traveled down the road to Georgetown Law Center to extol the virtues of free speech and condemn its "attack" on campuses. Session remarked: “There are many ways these players, and all the assets that they have, can express their political views other than in effect denigrating the symbols of our nation, the nation that’s provided our freedom to speak and act,” Sessions said. Those resisting equality claim that free speech is supported by our constitution and it is just this form of protest that is inappropriate, or - the protest is unwarranted or premature (choose your descriptor). During the Obama campaign, and again during Hillary Clinton's, we heard "the country isn't "ready" for an African American, a woman (choose your noun). It is always the timing or tactic that is wrong. But that reasoning is hollow.
I was a Viet Nam war protester. At the time, I was uncomfortable with flag burning. I am not sure how I would respond today. I knew that the flag (and draft card) burning kept the anti-war issues in the public dialogue and the resulting court cases reaffirmed first amendment rights. And sometimes it is a violent act that wakes up resisters. But I saw, also, how flag burning created the diversion pro-war people relished. For those less willing to hear the protesters' reasons for their demonstrations, focusing on flag burning provided an effective rationale for not addressing the flawed underpinnings of the war.
Taking a knee is respectful protest. Kneeling is effective, as demonstrated by the response of teammates and owners. Kneeling incorporates the spiritual into the protest, giving it a level of credibility not seen in other forms of protest. Kneeling induces silence, making the protest more powerful.
Focusing on claimed disrespect to the flag is the diversion that will prevent many whites from considering the underlying reason for protest. The president couldn't care less about kneeling football players. He cares that the nation remains divided. Therein lies his power. And his demagoguery.
Tuesday, September 19, 2017
Silencing is a powerful tool of oppression. Creeping authoritarianism has reinvigorated silencing as punishment and a way to limit free speech.
On September 11th, 24 of 28 University of North Carolina trustees voted to ban the UNC Chapel Hill's Law School Center for Civil Rights from engaging in litigation. This ban follows the Center's long struggle to maintain academic integrity and freedom.
Trustee Steven Long, previously affiliated with a conservative think tank, spearheaded the vote. He claims that a state university should not be “hiring full-time lawyers” to sue anybody, much less the state government. He said that the center defines civil rights in a way that’s too political, and that its litigation efforts go beyond its academic mission. Of course, clinics and centers involved in litigation are a staple of US clinical legal education. The University's Board Chair, Lou Bissette, acknowledged that he was not aware whether the Center's work was consistent with the law school's academic goals. He simply felt that the law school should refrain from civil rights litigation because "people do not agree." Bissette went on to say that he understood that law school clinics can engage in litigation because they operate under the supervision of the ABA. Confused, perhaps, Bissette seems to have missed the point.
Silencing often back fires. The Center and its attorneys are privately funded. While litigation through the law school center may formally halt, the funders could decide to simply move the project offsite, where law students could still participate as clinic students or externs. Or, Chairman Bissette may have provided a more simple remedy. Dissolve the Center and create the Civil Rights Clinic. Either way, silencing could be the foundation for promoting an even louder voice for civil rights.
Thursday, September 14, 2017
Earlier this week, the Senate unanimously passed a joint resolution condemning hate groups. In an amazing show of bi-partisan collaboration, the Senate expressed its sorrow for those who were injured or killed at Charlottesville. The resolution, submitted by three Republican and three Democratic senators, calls upon the President and his cabinet to use all available resources to fight hate groups, including White supremicists, Neo-Nazis, and the Ku Klux Klan. The resolution has its origins in the Charlottesville terror and acknowledges the loss of life, as well as other injuries inflicted to both police and civilians.
The President's failure to condemn the racist attacks in Charlottesville offended the Senators as much as did the events themselves.
The resolution may be read here.
Tuesday, September 5, 2017
A federal court judge ruled last week that the descendants of former slaves of Cherokee Indians have the legal right to membership in the Cherokee Nation. At the time of the Civil War, some Cherokees kept slaves. When the Civil War ended, the Cherokee Nation signed a Treaty with the United States agreeing that "“never here-after shall either slavery or involuntary
servitude exist in their nation” and “all freedmen who have been liberated by voluntary act of their former owners or by law, as well as all free colored persons who were in the country at the
commencement of the rebellion, and are now residents therein, or who may return within six months, and their descendants, shall have all the rights of native Cherokees . . . .”
Trouble began when the Cherokee Nation changed its criteria for eligibility in 2006. The criteria was amended to recognize blood only. This precluded descendants of freed slaves from claiming membership in the tribe. This change disenfranchised approximately 2800 descendants of freed slaves. In rendering its decision, the court noted: Although it is a grievous axiom of American history that the Cherokee Nation’s narrative is steeped in sorrow as a result of United States governmental policies that marginalized Native American Indians and removed them from their lands, it is, perhaps, lesser known that both nations’ chronicles share the shameful taint of African slavery."
The federal court decision clarifies that the tribe must treat tribal members equally whether that membership comes by blood or freed slave descendency. The tribe has accepted the outcome. Cherokee Nation's Attorney General Tom Hembree said:
Thursday, August 31, 2017
Bail in the US court system has resulted in human rights violations for thousands of defendants. Anyone who watched 60 Minutes this past week would have seen the impact of bail requirements on the hundreds of detainees at the Cook County Jail and the efforts of its warden to remedy a broken system. Nearly all of the detainees were men of color and at least half of whom were being held on non-violent offenses such as driving without a license, stealing small amounts of goods. The warehousing of men of color was evident.
Bail has been used as a mechanism to ensure that those too poor to pay bail are further locked into poverty. US courts have historically required bond (bail) for misdemeanor charges. Even the lowest of bail, sometimes $100.00, is beyond the financial ability of many defendants.
Civil and human rights violations result. The Universal Declaration of Human Rights demands that each individual enjoy the right to work. Yet for the poorest among us, minor infractions can result in loss of work because of incarceration pending trial. Poor defendants' further decline into poverty is accelerated due to the resulting unemployment. Among other human rights violations, is the right to fair trial. Defendants forced to remain in custody are denied access to counsel. Even if counsel is appointed, which is not assumed at misdemeanor arraignments, those in custody are dependent upon the unpredictable visits of counsel. They are deprived of the ability to collect exculpatory evidence.
Not least among the violations is the lack of respect and dignity endured by some of our most vulnerable residents. Mothers accept plea deals so they can be reunited with their children. Fathers plea so they can return to their families, hoping to be able to continue supporting them through work and parenting.
Bail reform projects have been increasing across the country. In Texas, a civil rights lawsuit was filed challenging misdemeanor bail practices as due process violations. Federal District Court Judge Lee Rosenthal ordered Harris County to stop the practice of permitting defendants in misdemeanor cases to languish in jail pending trial because they cannot afford bail. Harris County encompasses Houston and should be a warning to other cities. The ruling on the temporary injunction is 193 pages long and details myriad constitutional violations. Given the extent f the court's deliberations and examination strongly portends Plaintiff's success on the merits. In Massachusetts, donations to bail organizations have resulted in hundreds of the incarcerated being released as the organizations post bail on behalf of the poor.
This sort of large-scale disruption has been a long time coming in the criminal justice system. Out of the chaos will come fiscal benefits to municipalities who no longer will incur the expense of housing indigent misdemeanor defendants. More locations are voluntarily reforming bail schemes. Colorado is reviewing its bail system while New Jersey eliminated most monetary bails.
At its annual meeting in August, the American Bar Association recommended major bail reforms.
Our bail system is one of our national human rights shames. Kudos to those creating change.
Monday, August 21, 2017
Law schools are reporting increased incidents of angry students making comments that parallel some of the current, public hate speech. Schools report race based incidents, a few reporting physical, or near physical, encounters.
Some professors believe they are dis-empowered to address classroom "discussions" where students not only express biased views, but do so in angry and disrespectful ways. Professors who view their dilemma solely from a "free speech" perspective limit themselves. The recent tour of "conservative" speakers claiming their voices are silenced on "liberal" campuses may have contributed to this faculty sense of dis-empowerment.
But there are other pedagogical considerations. Law schools train professionals. Reasoned civil debate is one goal of law school pedagogy. We teach students to view legal claims and facts from a variety of perspectives. We encourage them to recognize when to separate out the personal from the professional and likewise, when to consider the personal as inevitably intertwining with the legal. Underpinning our training is not just the ability for lawyers to objectively assess other perspectives, but the necessity of doing so. The practical consequences of failure to do so will result in our students being out-strategized by opposing counsel. More immediately, their inability to consider any merit of opposing arguments will have a negative impact on grading. In practice, inappropriate tone will cost lawyers business from clients who recognize the connection between professionalism and success. In law school, voicing opinions unsupported by reliable data or law impacts the professor's assessment of student performance.
So administrators and faculty need to broaden their own perspectives on the deterioration of professionalism within the law school community. A student's unwillingness to engage in civil debate is a choice. Disrespectful speech is unprofessional and when done within the context of classes is a grading consideration.
Freedom of speech is honored. But freedom of speech does not support disrespectful speech. Not in the professional school context.
Part of the reason administrators and professors focus only on freedom of speech is fear of lawsuits by those claiming their speech is unlawfully suppressed. This is not the time for fear based decision-making. This is the time to focus on our obligations as teachers to train our students in professionalism and the art of debate. Legal ethics demand professionalism.
Prof. Ho has written thoughtfully about pushback on "political correctness" as deflecting from underlying incivility. Incivility certainly has evidenced itself within and without the academy. This pushback is often an excuse for avoiding civil debate. I view current dialogue from an additional dimension. Pushback on "political correctness" often veils bias whether delivered in a civil or incivil manner. So before my students engage in disrespectful speech they will know two things. To the extent possible, political labels are eliminated from our discussion. We will focus on ideas and empirical evidence without regard to whether the speaker is Republican or Democratic. We leave the words liberal and conservative unspoken. Doing so forces attention on ideas and not on the speakers.
Secondly, students are aware that how they present their ideas is a professionalism issue that will be reflected in grading. I am confident that I and other professors are capable of distinguishing between passion for a topic and resistance to self-reflection.
Effective leaders do not throw up their hands and relinquish responsibility under the guise that free speech bars any proactive and protective action. Leadership finds ways to protect the dignity of all members of the community. Where are Human Rights? Eleanor Roosevelt asked. They are local, she instructed. They are in places that are not on any map. They are found in law schools, too.
Wednesday, August 16, 2017
Mr. Trump is at risk of impeachment, if not indictment. His advisers, former and current, including family members are at risk. Foreign leaders no longer trust Mr. Trump with confidential information. In short, we have a narcissist under siege. As anti-hate rallies are being held across the country, President Trump continues to appeal to the basest levels of human behavior. President Trump would consider the eruption of civil and international war righteous.
Mr. Trump is neither a clown nor a buffoon. He is a danger. His ego is not being fed, other than through weekly cabinet sessions where his minions sprinkle praise upon him. Lack of ego feeding, combined with resistance to him as a leader, has created conditions that will lead to destruction. The only question being his or ours.
If Mr. Trump cannot receive what he perceives as a deserved level of adoration, he will do what he can to cause the disruption of civil society. Disruption, if not destruction, of our society would be appropriate punishment from this narcissist's perspective.
Our governmental leadership parallels pre-war Germany. Our nation has the opportunity to defeat Trump-fascism. Haters are in the minority. Organized resistance must happen on the national and local levels and must be strategic and persistent. Subsequent posts will document how resisters are organizing and what tools seem most effective. We encourage our readers to share their experiences.
Thursday, August 10, 2017
The US record on gender equality is dismal. Rwanda, largely as a consequence of the loss of men in the 1994 genocide, has made significant progress in the legal status of women. At that time, the population of Rwanda was 70% female. The Rwandan constitution ensures gender equality in all matters. In the 2013 elections, 64% of the members of parliament were female. Women are guaranteed three months paid maternity leave.
By contrast, the US guarantees no paid maternity leave. In the recent health care discussions, some men wanted to remove health care coverage for maternity. 86% of Rwandan women participate in the work force compared with 56% of US women. However, despite Rwandan laws requiring equality for women, true equality has not been achieved. Women earn 88 cents for every dollar earned by men. Significantly, Rwandan women experience domestic violence at the high rate of 1 in 3. Recently progress has been made in enforcing laws against abusive men, but the most significant barrier to stopping violence against women universally is men's culture in opposing gender equality. In a story reported in WeNews, woman's advocate Peace Ruzage, of Aspire Rwanda, said "“The problem of violence against women in Rwanda, as with many African countries, is rooted in the cultural beliefs and notions of masculinity reinforced through generations.” True for the US as well.
Monday, August 7, 2017
Two opinion pieces were published this week that underscore the foundation of racism upon which the Trump Administration policies are built. Both pieces follow the "leak" this week of a memo outlining the Department of Justice's plans to pursue dismantling of affirmative actions programs. Both pieces point out the absurdity of portraying US whites as victims. Prof. Carol Anderson , is the author of White Rage, the Unspoken Truth of Our Racial Divide. She reminds us in her NYT opinion, white men benefit from flexible undergraduate admissions programs. If objective scores and grades were the predominant selection method, white males would be a distinct minority on campus. Flexible admissions policies that consider gender as a bona fide admissions factor, benefit white males as much as anyone else. But it is race of which whites most complain.
In his New Yorker piece, Jelani Cobb focuses on the heart of racist thinking. Whites view their economic status comparatively. One African American succeeding financially is an affront to less affluent whites. The underlying assumption that whites deserve to be successful in every way before any person of color "succeeds", (however that is defined), is the source of white resentment. Whiteness as the ideal standard is what Trump and many followers look to preserve.
Mr. Trump may not be a seasoned politician. He may be unable to deliver on his major campaign promises. But he knows how to stoke his base. Through feeding anger and irrationality, Mr. Trump has begun his re-election campaign.
Sunday, August 6, 2017
You may recall for Martha Davis' post on preemption, Missouri legislators overrode St. Louis' efforts to raise the minimum wage within city limits.
Missouri continues to lead the nation in disregard of human rights. In response, last week the NAACP issued its first ever state-wide travel advisory. The NAACP warns people of color to avoid the entire state of Missouri through August 28th. The warning comes after a disturbing series of events. Since the presidential election, an increase in race based incidents has been reported nation wide. Missouri was, of course, the scene of the notorious Michael Brown killing. Recently the Missouri Attorney General revealed that African-Americans are 75% more likely to be stopped by police. Derrick Johnson, interim NAACP president and CEO stated: “The numerous racist incidents, and the statistics cited by the Missouri Attorney General in the advisory, namely the fact that African Americans in Missouri are 75 percent more likely to be stopped and searched by law enforcement officers than Caucasians, are unconscionable, and are simply unacceptable in a progressive society."
Missouri Bill SB 43, signed by the governor on June 30th, virtually legalized individual harassment and discrimination in the state, while prohibiting self-defense by those who experience the harassment. This bill restricted the civil rights African-Americans and other vulnerable populations, including women and immigrants. The bill shifted the burden to the Plaintiffs to prove that their protected class was the "motivating" factor in the firing or other damaging action. Not only was the burden of proof shifted, but the amount of potential damages is capped. The governor disguised his discriminatory action by referring to this law as a "pro-business" move.
The NAACP issued the state-wide advisory partially in response to the implementation of the "Jim Crow" bill, SB 43.
Wednesday, August 2, 2017
Education Secretary DeVos has requested comments on de-regulation. Much recent controversy concerns which standard is to be used by schools in determining whether a student is responsible for sexual assault and other gender based harassment and discrimination under Title IX.
Many comments submitted to date are anti use of the “preponderance of the evidence” standard even though that standard is the one used in civil rights and other discrimination claims. Proponents of the use of a higher standard claim that when sexual assault is alleged, the risk of expulsion and damage to the accused’s reputation demands the use of “clear and convincing” or “beyond a reasonable doubt.” Survivor advocates defend the use of the “preponderance of the evidence” as necessary not only for consistency in discrimination claims, but because any higher standard makes successful hearings on the part of the survivor nearly impossible.
Over 100 law professors have signed a White Paper drafted by Profs. Kathleen Baker, Deborah Brake and Nancy Cantalupo. The White Paper explains the historic use of the “preponderance of the evidence” standard in discrimination cases.
Comments on whether de-regulation of Title IX is necessary or beneficial may be made here. Comments are due on before mid-night on August 21.
Those law professors posting are welcome to send their comments to the HRAH Blog editors who will organize them for publication on the blog.
Monday, July 31, 2017
Last week the Justice Department submitted a brief arguing that the anti-discrimination law Title VII do not protect LGBT employees. The administration filed an amicus brief in a New York case in which the government is not directly involved. The brief was filed on the same day that the President announced in a tweet that transgender individuals would not be permitted to serve in the military.
By filing, Justice Department has made it clear that the administration is withdrawing Obama era guidance that Title VII's provisions protect from discrimination based on gender identity.
The case before the court was brought by a man who was fired after disclosing to the a customer that he is gay. The circumstances were that Mr. Zarda, an employee who accompanied customers o parachute jumps, told a female customer with whom he was about to do a tandem jump that he is gay. The customer's husband complained to the employer, who then fired Zarda. Mr. Zarda sued under Title IX.
While courts are not mandated to follow Justice's guidance, many do. Mr. Zarda's case will be a test of whether the courts will be guided by the new administration's interpretations or will consider marriage equality and other changes in federal law sufficient to reinterpret the reach of Title VII. We have seen the importance and power of an independent judiciary over the past six months. How the court decides is not a slam dunk for Mr. Sessions.
Wednesday, July 26, 2017
In an effort to show his conservative base that he has not lost his way, on Wednesday President Trump announced that he is banning all transgender individuals from military service. President Trump hid behind medical expenses that he claims the government incurs in supporting trans military personnel. The PBS Newshour estimated that the transgender related medical costs incurred by the government is around $2,000,000 per year. The military spend approximately $10,000,000 per year on Viagra and related drugs. The New York Times reported estimates of fewer than 2,500 and later up to 11,000 transgender individuals on active duty. But the National Center for Transgender Equality places the number at 15,000.00. Trump said that he would not accept or allow trans soldiers to serve. While undefined at the moment, this language indicates that trans individuals on active duty will be forced to leave the service. The loss of 15,000 military personnel would be significant.
The trans community is among the most disadvantaged in our society. Trans and other sexually non-conforming individuals face a higher rate of sexual assault and other abuse than the general population. Housing, employment and other opportunities are limited due to discrimination. Now the president has banned trans individuals from one path to earning a living that was open to them. Further, the move implies that trans people are not capable of defending our country and of participating in work that is open to others. The pronouncement, and the public shaming that it triggers, is cruel.
This latest presidential move points out the ever expanding need for human rights advocacy at home.
To read more, here is commentary from the New Yorker
UPDATE- Military chiefs are refusing to implement Trump's edict unless ordered to by the Secretary of Defense.
Monday, July 24, 2017
Those advocating for the civil right to counsel have enjoyed a major victory. Last week, New York City's mayor DeBlasio signed a bill ensuring that low income tenants facing eviction will have counsel appointed. The legislation is the first in the country to mandate and fund appointed counsel for housing court eviction defendants. Manhattan Councilman Mark Levine said "The worst landlords have used housing court as a weapon, hauling tenants into court on flimsy eviction cases because they knew in the vast majority of cases, the tenant would not have a lawyer. "
The program will be phased in over five years and tenants in certain zip codes will be the first to receive the benefit of appointed counsel. The maximum income for qualification for appointed counsel will be $49,200.00 for a family of four. The program is expected to help 400,000 tenants per year.
John Pollock of the National Coalition for a Civil Right to Counsel commented: "New York City's historic step forward is a watershed moment for the national right to counsel movement, and already we've heard of cities and states lining up to be he next one to advance the critically important right to counsel in housing cases."
Wednesday, July 19, 2017
The animal welfare and animal rights movement in the US has accelerated during the past two decades. But the US is not close to expanding legal rights to animals as has been done elsewhere.
In 2008, the Spanish parliament extended rights to chimpanzees, gorillas, orangutans and bonobos. This animal measure was not the first for members of the European Union. In 2002, Germany extended rights to animals through its constitution. In 1999, New Zealand passed measures granting protective rights for apes. While some argue that legal rights should not be limited to human-like species, there is no question that these measures are light years ahead of any US initiatives.
Most of the US protections of animals comes from a perspective of correcting cruel human behaviors toward them. Statutes reflect the intention to restrain human actions toward animals, but they do not reflect the perspective that, like humans, animals have inalienable rights. Struggling to preserve the rights that we have, it is unlikely that rights for humans will expand during the next few years. Any movement to recognize, on a formal basis, inherent rights of animals is not likely to be successful in the near future.
In a 2014 essay, William Shultz, former director of the ACLU, acknowledged that he was wrong when he earlier argued that "no rational person would believe that animals could claim the same kinds of rights as humans." He called upon us to examine which creatures should have a claim to rights.
Given the current lack of understanding of human rights on the federal level, animal rights advocates, like human rights advocates, will continue to be most effective on the international and local levels.
At the recent G-20 meeting, for example, the leaders adopted "High Level Principles on Combatting Corruption Related to Illegal Trade in Wildlife and Wildlife Products". While again the principals seek to protect animals from human cruelties, continued recognition of their need for protection may lead to the dialogue on whether protective action is at the same time acknowledging innate legal rights of animals.
Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.
Tuesday, July 11, 2017
Any exploration of changing human rights advocacy starts with exploring the intentions of the advocate.
Most of my clients have experienced gender violence. Most typically my clients have additional barriers due to color, immigration status, disability and poverty. Their lives are burdened in ways that I can only imagine.
I, on the other hand, live very differently. Being a law school professor is a privileged life. I have the additional freedoms that whiteness brings. While empathy is important, effective advocacy for those unlike ourselves requires more.
I must be careful not to bring any arrogance to my advocacy; particularly where clients may not challenge me for fear of alienating the person who can navigate them through a complex and often hostile system.
So how has my advocacy changed? I am more mindful than ever to reflect on my own motivations. I am more mindful of the consequences of my actions, including my advice to clients. I must consider the newly changed circumstances of my clients' lives. My clients have become even more vulnerable. Immigrants are presumed to be undocumented and even those who are not experience harassment and violence. Risk of deportation has multiplied since January. Gender harassment has increased, as it has for all less powerful social groups. But what is causing much increase in my clients' underlying fear is that harassment and abuse are gaining acceptance as a cultural norm.
Fear in some form has been a near constant in my clients' lives. But the fear was more targeted: fear of reprisal from an estranged intimate partner or fear of being deported should they engage the legal system. While specific fears remain, a more generalized fear has sprouted from the uncertainty that the cultural shift has brought. Increased street harassment is a good example of one source of heightened generalized fear. So I must be mindful not to judge my clients' decisions made in light of these concerns and I must listen even more carefully to their words. Advising clients of what is or is not a reasonable fear has become more difficult. All of our experiences are shifting in the face of this unleashed hostility and incivility.
Mindfulness has never been more important in human rights advocacy.
Thursday, July 6, 2017
In prior posts, Martha Davis announced that Mountain View (CA) city council passed a resolution designating the municipality as a human rights city. Prof. Francisco Rivera, informed us of concerns and frustrations that arose during the city council debate and the important work that his students did in educating council members on the human rights framework.
In late May, Mountain View mayor, Ken Rosenberg, discussed the challenge of implementing the vision of a human rights city. In an op-ed opinion, Rosenberg announced that Mountain View would be home to an institute whose goal is to create 100 human rights cities all over the world “based on learning and integrating human rights into every aspect of our daily lives”. Beautifully said.
Mayor Rosenberg credited the work of The People’s Movement for Human Rights Learning for educating him and others to the human rights way of life. Mayor Rosenberg also acknowledges that The People's Movement has the expertise to implement the vision of the new institute.
You may read the complete op-ed here.