Sunday, January 17, 2016
As we observe Martin Luther King Day, one reflection is on the enormous influence that Dr. King has had over decades of activists. The Black Lives Matter movement has extended, as well as incorporated, techniques employed by Dr. King.
For those whose youth was spent in political protests, followed by a comparatively passive period, the Black Lives Matter movement is heartening. Not only has effective advocacy been missing from the landscape in any widespread sense since the 1980's, at times Dr. King's techniques were considered outdated. The Black Lives Matter movement has proved those criticisms faulty. Black Lives Matter sparked national and international conversation. Protests with masked students holding signs reading "I can't breathe" and hundreds of young protesters marching with hands in the air were dramatic and effective. Microagressions and implicit bias are now discussed in a variety of settings and populations. There is a test for implicit bias on Harvard's website. Dr. King's leadership resulted in extraordinary civil rights accomplishments that have not been fully realized. Black Lives Matter has transformed the civil rights movement to a human rights movement in its continued search for dignity in both strategy and result.
Friday, January 15, 2016
The first phase of briefing in Whole Woman's Health v. Cole was completed last week. The petitioners' briefs and the 45 amicus submissions make clear how much is at stake for women, and what women will lose if the Supreme Court stands aside as the right to have an abortion is further compromised and eroded.
Given the Supreme Court's recent decisions grounded in concepts of human dignity, particularly the line of marriage equality cases, it is no surprise that human dignity has important place in a number of the briefs, including the briefs on behalf of Advocates for Youth and the National Women's Law Center.
However, only one of the amicus briefs brings to bear the human rights law invoked by such references to human dignity. The brief of the Latina Institute for Reproductive Health, represented by Counsel of Record Cynthia Soohoo (a Human Rights at Home blog contributor), argues that the U.S. Supreme Court should take special note of the international decisions concerning reproductive rights. Here is a relevant excerpt from the brief's Summary of Argument:
"The reasoning of international bodies when considering whether a state can erect barriers to access
lawful abortion services provides a useful perspective for the Court to consider. In particular, the European
Court of Human Rights (“ECHR”) has repeatedly held that once a country recognizes that women have a right
to abortion, it cannot adopt a legal framework that limits a woman’s ability to obtain one."
Finally, one amicus brief that has received considerable attention is the brief filed by 113 women lawyers and law students describing the circumstances of their own abortions. Unlike the pseudonymous Roes and Does and Moes that dominate reproductive rights case law, these women are sufficiently well-established and powerful (and indeed, also brave) to put their own names before the Court. Their names matter, since many of these women have reached the highest echelons of the legal profession -- pinnacles that they reached because, they state, they were able to control their own reproductive choices. These women lawyers offer their peers on the Court some insight into real world challenges facing not just low income "other" women, but the very women who argue Before the justices, who work as their clerks, who write the law review articles that they cite, and who are the first line readers and interpreters of the Court's decisions. It remains to be seen if Justice Kennedy will be moved by their stories. But by coming forward, these 113 women may have given women's human dignity a face that the Court will finally recognize.
Thursday, January 14, 2016
“Poetry has a lot to offer a world in crisis — and, in particular, in environmental crisis. For centuries, poets have given voice to our collective trauma: naming injustices, reclaiming stolen language, and offering us courage to imagine a more just world. In a world such as ours, poetry is an act of cultural resilience.” – Melissa Tuckey, “Introduction on Ecojustice Poetry”, Poetry Magazine, January 2016.
I want to gently urge you all to read the January 2016 issue of Poetry Magazine, which is dedicated to ecojustice poetry. The human right to a healthy environment feels clear, alive, and magical when you are in the midst of reading these poems and prose. Sitting in what seems to be the middle of this grey, frigid, winter landscape, finally arrived, I need inspiration to put on the several layers of clothes required to walk outside, let alone inspiration to seek environmental justice for all. While I have never thought of myself as a lover of poetry; it’s growing on me. I appreciate the celebration of language, the oddity of content and structure, the imagery, and the freedom of poetry. Also, I’m learning not to dwell on logic when reading poetry, which seems to be a good lesson for reading emails from my law students as well.
If you don’t know where to start or don’t have time to savor each and every poem, start with From “summer, somewhere” by Danez Smith, which more obviously than others touches directly on race, environment and justice. Maybe then read Crossing a City Highway by Yusef Komunyakaa to see the urban landscape come to life with its subtle references to severe environmental degradation. And don’t miss Water Devil by Jamaal May, who makes me feel like I can reach out and grab the things he is describing.
Wednesday, January 13, 2016
by Margaret Drew and Martha Davis
Last night President Obama gave what was billed as his last State of the Union Address. We review that speech to consider how deeply President Obama incorporated human rights themes into his vision of the American future.
Franklin D. Roosevelt set a high bar for State of the Union speeches in 1941 with his "Four Freedoms" speech. In that speech, President Roosevelt went beyond the Four Freedoms to also identify the foundations of a healthy and strong America: "Equality of opportunity for youth and for others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few. The preservation of civil liberties for all."
Sound familiar? In large part, the identical foundations were sounded by President Obama, who acknowledged Roosevelt during his own speech. An important difference is that Roosevelt's address was delivered at the beginning of his 3rd term, laying out an agenda that he would champion during the coming years. In contrast, President Obama largely presented these themes as challenges for the future, for the next 5 to 10 years, with few specifics about what his own administration's affirmative contributions might be over the next 12 months.
On the specific human rights challenges facing the nation, the speech was mixed. On one hand, the President identified some human rights goals that were accomplished, such as the Affordable Care Act -- certainly with its flaws, but on a path toward realization of the human right to health. He also praised the nation's contributions to ending the Ebola crisis and moves toward clean energy that help preserve human rights in the long run.
On the other hand, he identified several human rights goals that remain unachieved in the final year of his presidency. He cited the failure to close Guantanamo, as he has in all but one of his State of the Union addresses, but with no new ideas about how to gain its closure. The President also identified criminal justice reform and substance addictions as among the social issues yet to be tackled. A State of the Union address may not be the time for details, but some of President Obama's calls for human rights-related reforms were particularly blurry. For example, what does immigration "reform" encompass? Will fair processes be assured? Will meaningful legal representation be part of reform?
In the speech itself, President Obama followed President Roosevelt's 1941 outline. The first set of future challenges he addressed centered on equality of opportunity. He cited universal pre-K and more affordable higher education, key components of children's human rights and the human right to education. On the second major issue, economic opportunity, the president spoke of wage equity, portability of benefits, paid leave and a higher minimum wage as needed reforms to address a changing workforce and to ensure freedom from want.
Discussing security, President Obama focused internationally rather than domestically. Here, he departed from President Roosevelt's focus on wartime preparations and instead commented on international developments that have a profound effect on international human rights implementation, and indeed, the viability of the international human rights system. He decried isolationism, but at the same time observed that the role of the nation state has declined, and "the international system built after World War II is struggling to keep pace." Again, without offering any specifics, he urged that it is "up to the United States to remake that system." Yet in describing his administration's efforts to eliminate Osama Bin Laden and other terrorist groups and individuals, President Obama glossed over any human rights issues that his approach might raise.
Finally, in perhaps the most effective portion of the address, President Obama followed Roosevelt's lead and turned to "ending the special privilege for the few," and "preserving civil liberties for all." With veiled references to the Koch brothers, the president called for bipartisan efforts to reform campaign finance laws and ensure that elections are not controlled by a few wealthy families. He called on all Americans to champion the fundamental right to vote. And he decried broad political rhetoric that brands individuals based on religion and curbs civil liberties.
There were some notable omissions from President Obama's address. He did not, for example, dwell on issues of race, even though this was a year of significant racial tension in American cities. And he did not utter the phrase "human rights" even one time, though many of the themes that he sounded resonated in human rights terms.
In his first innaugural address, President Roosevelt delivered the famous admonition that "the only thing we have to fear is fear itself." President Obama's speech, though short on specifics, directly challenged the fears that motivate so many current debates over borders, voting, religious freedom and even social supports and climate change. America's economy is strong, he said, and our military is unsurpassed. President Obama urged us to reject fear, arguing that we are resourceful and creative, and we need not fear diversity. This effort to replace fear with hope as a basis for American domestic and foreign policy may be the biggest contribution that the 2016 State of the Union speech made to the cause of US human rights.
Monday, January 11, 2016
The United Nations Association of the U.S. (UNA-NCA) reports in a recent release:
"The year 2016 will be an important one for the Human Rights Program of the United Nations. Under the agreed rules for the UN's Human Rights Council, the United States will take a year off, without being a member, but will almost certainly be canvassing support for re-election in the fall when UN elections are held. Closer to home, the Office of the UN High Commissioner for Human Rights is expected to establish an office in Washington DC, and the High Commissioner and UN special rapporteurs will undoubtedly face challenges in the Middle East and beyond."
The UNA-NCA is sponsoring an important event to explore US perspectives on the 2016 UN Human Right Program on January 27, 6 - 8 p.m., at American Foreign Service Association, 2101 E Street NW Washington, DC. Key speaker will be here. More information is available
Sunday, January 10, 2016
According to Arizona state legislators some minority women abort fetuses because of their race. In 2011, Arizona passed a law prohibiting an abortion provider from performing an abortion on a woman who wants to abort her fetus because of its race and/or sex. The American Civil Liberties Union (ACLU) sued Arizona arguing that this law violates the Equal Protection Clause of the U.S. Constitution, because it stigmatizes minority women by suggesting that they discriminate against their fetuses (assuming that it is even possible to do that).
But just a few weeks ago, the United States Court of Appeals for the Ninth Circuit denied the petitioners in the case, the National Association for the Advancement of Colored People (NAACP) and National Asian Pacific American Women's Forum (NAPAWF), their day in court. The Court rejected the appeal on standing even before getting to the constitutional issues, because the ACLU did not bring forth a woman who wanted to abort her fetus due to its race and/or sex. Perhaps because few (if any) such women exist.
It is true that the rate of abortion among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Anti-abortion advocates argue that this occurs because abortion providers target minorities for abortion services in an attempt to reduce the number of people of color that are born. On the other hand, pro-choice advocates argue that the disproportionately higher rates are due to a lack of access to and failure to use contraception.
The logic of the Arizona race-selective ban is tortured because it is structured like its more popular cousin, the sex-selective abortion ban, which prohibits women from aborting their fetuses because of its sex. Sex-selective bans have been introduced in over half of the state legislatures in the United States and passed by eight states. On the other hand, Arizona is the only state in the United States that bans both race-selective and sex-selective abortion; eight other states and the United States Congress have considered and rejected race-selective abortion bans (although the majority of the U.S. House of Representatives voted in favor of both race-selective and sex-selective bans in 2012).
Proponents of sex-selective abortion bans argue that Asian Americans discriminate against the sex of their fetuses and this causes a disproportionate number of abortions of female fetuses. They further incorrectly argue that there are "missing women" in the United States. They then apply this logic to race to argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.
However, the analogy falls apart when the actors with the purported racist and sexist intent are brought into the picture. In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. To the extent sex-selective abortions are occurring in the United States, it would appropriate to argue that they occur because of a parent's desires for a child of a particular sex. On the other hand, it makes no sense to argue that women abort their fetuses because of a particular racial preference of their fetus. Yet, the Arizona law assumes that minority women abort their fetuses because they do not desire to have minority children.
The disproportionate rate of abortions among minority communities in the United States is an important concern that should be investigated, discussed, and solved. The Arizona law is not intended to do that. While it is unlikely that anyone will ever be prosecuted under the Arizona law, the statute itself is offensive. It also strains the patient-doctor relationship. By denying the appeal, the United States Court of Appeals for the Ninth Circuit has missed an opportunity to strike down state laws that use racial and gender equality as a ruse to restrict abortion rights.
Editor's Note: This piece originally appeared in The Huffington Post
Thursday, January 7, 2016
by Jeremiah Ho
It has been evident that within the last century, dignity has become a leveraging point for advancing challenges to human rights violations and restrictions within the law. Its post-Enlightenment, fundamental universality replaced previous versions of humanity and has been regarded as a normative individual entitlement. In addition, the broadness of its meaning and application allows different social movements to carve out particular nuances between the status quo and desired norms. Thus, dignity is a normative.
Even before Obergefell v. Hodges, the anti-gay rhetoric that stole dignity away from sexual minorities for decades was a way in which the denial of their civil rights was justifiable under the law. As others such as Martha Nussbaum have recounted (see Nussbaum, From Disgust to Humanity: Sexual Orientation & Constitutional Law 2010), challenges fought in court and state legislatures over gay rights in the past were lost by gay litigants and gay rights advocates partly because the dominant rhetoric against sexual minorities was couched within the politics of disrespect—that, for instance, gays were living in a lifestyle premised on a morally-blameworthy choice or they were susceptible to illnesses or that they practiced sexually-deviant, perverse acts.
To some waning degree, that rhetoric of disrespect still remains and are still being used by opponents of gay rights and marriage equality. But for the most part, we’ve moved toward recognizing that dignity exists in sexual preferences and away from a politics of disrespect. But a good question to ask in the recent shadow of Obergefell is whether the dignity recognized by the Court specifically accorded sexual minorities the respect that they should be entitled to for being who they are or whether the dignity rhetoric in Obergefell stopped short of this view and settled for addressing the respectability of choices of same-sex couples for wanting to participate in marriage. The nuance seems slight but in the age where we recognize micro-aggressions and find assimilationist politics confining, the use of dignity to leverage rights by characterizing it between respectability of choices that a sub-group engages in to fit into the dominant culture (e.g. same-sex couples trying to obtain marriages) is a significant distinction from using dignity to accord the respect that a sub-group deserves based on identity alone.
As we begin 2016 and progress (hopefully) toward nondiscrimination for sexual minorities, respect certainly seems like the winning route to take when it comes to using dignity to speak about elevating the status of sexual minorities to a protected class—whether judicially or legislatively. Respectability, in comparison, has the potential to elongate a conversation where LGBTQ individuals are considered as “the other.” Dignity as respect reframes the discussion away from choices and existence in a way that deprives the dominant culture opportunities to comment, and instead, places the subgroup in a light where such type of judgment is not allowed.
Wednesday, January 6, 2016
In Human Rights in Children’s Literature: Imagination and the Narrative of Law, Todres and Higinbotham identify the ways in which human rights discourse appears in children’s literature, and how children’s books thus teach children about their rights and the right of others. The authors conclude that children’s literature is an “important cultural transmitter” of human rights concepts to children. Todres, a law professor at Georgia State University School of Law (and a co-editor of this Blog), and Higinbotham, a Postdoctoral Fellow at the Georgia Institute of Technology, base their conclusions, in part, on a study they conducted with school aged children. In the study, they found that kids readily identify and grasp human rights messages contained in the books they read.
The book is prompted by Article 42 of the UN Convention on the Rights of the Child (CRC), which contains the obligation to make children’s rights “widely known,” as well as social science research indicating that human rights education has a positive impact on learning, civic engagement, and social behavior.
Throughout the book, the authors explore numerous examples of the ways in which both classic and more recent children’s books convey core concepts contained in the CRC. Dr. Seuss’ Horton Hears a Who! and Yertle the Turtle are examined for the important lessons they impart about dignity, the universality of rights, and children’s right to participation. The Day the Crayons Quit, by Drew Daywalt and Oliver Jeffers, illustrates the ways in which children’s literature can transmit and teach key human rights principles of best interests of the child and non-discrimination. The book contains counter examples, as well, including Cinderella and Curious George.
Interdisciplinary in its approach, Human Rights in Children’s Literature weaves together children’s rights law, children’s literature, human rights theory, human rights education and research, and literary theory. Chapters within the book are organized around the core rights and principles contained in the UN Convention on the Rights of the Child, including participation rights, non-discrimination, right to family and identity, children’s civil and political rights, the best interests of the child, and the right to life, survival, and development, among others.
For those working to bring human rights home, the book offers important and unique insights on the role that children’s literature can play in shaping a culture of human rights, near and far.
Tuesday, January 5, 2016
Approximately one-quarter of the U.S. population is restricted from voting in elections, entering freely into contracts, and exercising control over important decisions about their own health. These denials would offend the sensibilities of almost anyone if the population in question were adults, but because they are children, little objection is voiced.
Of course, children are different. The developmental nature of childhood necessitates a more nuanced understanding of children’s rights, balancing protection and care with emerging autonomy. Thus, the liberal rights tradition built on the autonomous individual is at times an awkward fit for children’s rights, especially in the case of young children. However, the fact that children’s rights are different does not mean they are non-existent. Rights are inherent. And too many children in the U.S. experience poverty, homelessness, maltreatment, and exploitation. These rights violations demand a response.
While the United States famously continues to be the only country in the world that has not ratified the U.N. Convention on the Rights of the Child, a home-grown effort is underway: a push for a national children’s bill of rights. Last Fall, Representatives Karen Bass (D-CA), Judy Chu (D-CA) and Luis V. Gutiérrez (D-IL) a House Resolution calling for passage of a Children’s Bill of Rights. The Children’s Bill of Rights, which First Focus—a bipartisan organization that advocates on behalf of children and families—has championed, would establish that every child in the U.S. is entitled to measures that ensure their physical, social, and emotional well-being. It also would establish that children are entitled to an education that would enable them to reach their fullest potential and be prepared as adults to contribute to their families and communities.
The Children’s Bill of Rights would cement our commitment to ensure that children have what all (or nearly all) parents would wish for their children anyway: protection from harm, a relationship with caring parents, access to a safe, quality learning environment, and appropriate health care when needed. It deserves everyone’s support.
So with the New Year, perhaps our collective resolution should be to guarantee that no child is left behind—not in the political slogan-sense of the word, but rather undertaking a genuine commitment to reach every child and secure his or her rights. A national Children’s Bill of Rights would be a good start.
Monday, January 4, 2016
Three Ohio legislators plan on filing a bill that would require women who miscarry or abort to cremate or bury the fetus. Significantly, the drafters made no attempt to appear gender neutral. They have placed the burden for cremation or burial exclusively on mothers. Misogyny undisguised. The legislators gave no thought to the trauma that women can experience when miscarriage occurs. Whether an abortion is spontaneous or planned, many women struggle with the often difficult decisions and emotions that surround both. Disregard toward women is exposed in this bill, as is the assumption that women alone are responsible for their pregnancies.
In what appears to be an unintended offense, the bill ignores the reality for many men, as well. Men often participate with their partners in decision making on whether or not to carry a pregnancy to term. Men also suffer when unwanted miscarriage occurs.
The legislators are not original, however, because Arkansas and Indiana have already passed similar laws. The legislators took up the cause once Attorney General Mike DeWine was proven wrong on his claims around Planned Parenthood's fetal donation program. Searching for a way to keep fetus disposal alive as a political issue, these legislators took up the cause in promoting the cremation or burial scheme. DeWine moved on to claims that Planned Parenthood is disposing of fetus in landfills. Planned Parenthood has had enough. The organization obtained an injunction against DeWine from taking any action to block its fetus disposal.
Perhaps these men are unable to see themselves as part of a global anti-female culture. The New York Times reported on the sexual and other violence against Syrian women refugees as they attempt to make a new life in another country. Women are victims of war in ways that men are not, notably because of the sexual violence they experience. Whether the abuse is sexual, physical or legislative, the ultimate impact, if not one goal, is to remove women's control over their bodies and their lives. It is all one.
Sunday, January 3, 2016
Recently, the U.S. Department of Justice (DOJ) launched an effort to combat practices of local criminal justice systems in which public officials, law enforcement officers, and judges collude to incarcerate people for minor offenses in order to generate revenue.
On December 2, 2015, DOJ lawyers convened a meeting of academics, state officials, and civil rights advocates to explore how the federal government can assist them in preventing these types of constitutional violations in state and local courts.
This follows the March, 2015, release of an extensive investigative report by DOJ’s Civil Rights Division, revealing that Ferguson, Missouri, officials has engaged in such practices. Yet, despite the recent scrutiny of Ferguson’s municipal court system, change in Ferguson and elsewhere has been incremental.
From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.
But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.
Across the United States, including here in North Carolina where I teach and practice law, people convicted of even minor criminal charges, such as loitering, littering, and unpaid traffic tickets, face an array of fees, court costs, and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment—and ultimately incarceration.
As I’ve written here before, these modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.
In North Carolina, these court fees have been steadily rising—far outpacing the rate of inflation—over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee, and a $25 criminal record check fee.
People of color and those with low-income are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.
In 1970, the U.S. Supreme Court concluded in Williams v. Illinois that extending a prison term for an inability to pay criminal-justice debt violated the Fourteenth Amendment’s Equal Protection Clause, and in 1983 in Bearden v. Georgia, it barred a court’s revocation of probation for failure to pay a fine without first inquiring into a defendant’s ability to pay. Yet, jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
With millions of low-level offenders filling U.S. jails and prisons due (both directly and indirectly) to unpaid LFOs, private probation companies and the state and federal corrections agencies to which they supply goods and services have all thrived while the inmate population has expanded. Likewise, private corporations such as Honda, Microsoft, Starbucks, and Target have increasingly relied on prison labor, as it is cheap and virtually liability-free for the employer. Even the privatization of youth confinement facilities is now widespread in the United States, with almost half of them privately operated, creating a built-in incentive for companies to increase the number of juveniles confined and lengthen the terms of their incarceration. In short, everyone wins—except the impoverished person unable to pay off her criminal justice debt.
The proliferation of court fees, and the costs incurred by the state to collect them, has prompted some judges, politicians, and lawmakers across the U.S. to question whether the practice has gone too far.
For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.
In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the state legislature has mandated that many fees, such as the application fee for a public defender, are not waivable.
It is encouraging that DOJ is making this issue a priority, although one hopes that they approach the issue aggressively and with purpose. Courts and lawmakers across the U.S. must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.
Friday, January 1, 2016
Happy New Year! As we start 2016, with high hopes for expanded human rights in the U.S., we look back at the top human rights blog entries of 2015. Our top five countdown included entries on the Fisher oral argument, refugee issues, developments in solitary confinement, commentary on the movie Selma, and perspectives on gay rights.
Now to the #1 blog story of 2015! In the very top spot are a pair of entries by Noah Novogrodsky commenting on the Obergefell v. Hodges oral argument and decision through the lens of international human rights law. These entries, posted within hours of the oral argument and the decision, provided among the first perspectives in the blogosphere on this important aspect of the Obergefell litigation. Though human rights was not explicitly mentioned during the litigation, Novogrodsky expertly explained the ways in which ideas of human dignity which motivated the majority decision draw from international human rights concepts.
Interest in Obergefell was high throughout the spring and summer, and a number of our bloggers -- including Jonathan Todres, Margaret Drew and Jeremiah Ho -- addressed aspects of the decision, all gaining high readership. And as Jeremiah Ho recently observed, Obergefell continues (and will continue) to have ripple effects across the LGBTQ community and the wider civil rights and human rights movement.
In sum, the blogs that interested our readers most during 2015 concerned a range of U.S. human rights issues, from marriage equality to prison conditions. Readers registered a keen interest in litigation efforts to address human rights, such as the Obergefell and Fisher cases, but also read deeply on issues that straddle law and social movements. We had a great year sharing these perspectives with you, and look forward to more in 2015. And certainly, we welcome feedback to improve the blog during the coming year. May 2016 be a year of even more discussion of and attention to human rights in the U.S.!
Wednesday, December 30, 2015
On this penultimate day of our Human Rights 2015 Countdown, we feature two popular blog entries in our # 2 spot for the year, both looking at the issue of solitary confinement. First, in a June 2015 entry titled Death Before Dying, Hope Metcalf provided thoughtful commentary on the U.S.'s continued failure to meet the UN's minimum standards of treatment. Second, JoAnn Kamuf Ward followed up in September 2015 with a blog titled Mandela's Legacy and Solitary Confinement: From Robben Island to . . . a Prison Near You?, describing the potential for international standards to move the US away from excessive reliance on this practice.
Though only a few months have passed, there are important updates on this issue. Both Metcalf and Ward described a growing social movement to reform the prison establishment's overuse of solitary confinement. In a victory for that movement, in December 2015, the New York Civil Liberties Union reached a settlement with New York State that will provide limitations on the discretionary use of solitary for petty prison offenses and establish more humane conditions for those who are still assigned to solitary confinement. The NYCLU has promised that it will be monitoring compliance with the settlement terms "like a hawk." The Mandela Rules, formally launched by the UN on October 2015, will provide an important global legal context for that monitoring effort.
In the 3rd place spot for Human Rights at Home blogs of 2015 is Risa Kaufman's cogent commentary on the briefing in Fisher v. University of Texas. Setting out the relevant human rights law, which amicus also presented to the Supreme Court, Kaufman notes that upholding Texas's modest affirmative action in university admissions would be completely consistent with the United States' international human rights commitments.
Kaufman's piece was posted the day of the oral argument in the case, December 9, 2015. While international human rights was not explicitly discussed in the argument, Justice Scalia did make international headlines when he suggested that black students might do better at "slower-track schools" than the flagship University of Texas. Both domestic and international reaction was swift. AlJazeera America opined that Scalia's comments, in conjunction with remarks from Justice Alito and Chief Justice Roberts, questioned the premise of integration and presaged a restructuring of race-related jurisprudence. Newspapers around the U.S. ran op-eds and editorials taking issue with Scalia's remarks.
During the oral argument, the counsel for the University of Texas responded to Justice Scalia by reminding him that the Supreme Court long ago rejected educational racial segregation as a violation of the equal protection clause. Justice Scalia might also be reminded that racial segregation was a foreign policy problem for the U.S., as the Justices considering Brown v. Board knew well. Before sanctioning a racially-identified two-track educational system, Justices Scalia and his colleagues would do well to read up on that history.
A new, but related, item for today: check out this fascinating resource from the Oxford Human Rights Hub comparing the development of US disparate impact law with the comparable British jurisprudence.
Tomorrow, we announce the #2 Human Rights at Home blog entry of the 2015 -- check back!
Tuesday, December 29, 2015
We continue our review of the top Human Rights at Home stories of 2015. In the 4th place spot for 2015 is Gay McDougall's moving commentary on the movie Selma, posted January 12. 2015. Growing up in the segregated south, McDougall attested to the basic truths depicted in the film. In the weeks and months following McDougall's commentary, the movie continued to encourage discussion of race and human rights in the U.S., with a highpoint at the Academy Awards. Though nominated, Selma did not win Best Picture. However, when Selma composer John Legend accepted the Academy Award for best song (for "Glory"), he took the opportunity to observe before an international viewing audience that "[t]here are more black men under correctional control today than there were under slavery in 1850." Along the same lines, Kairos Center Director Larry Cox has used Selma as a starting point for an analyzing the challenges of moving from civil rights to human rights.
McDougall's own work on human rights and civil rights also continues apace, and in July 2015, she was confirmed as a member of the UN Committee on the Elimination of All Forms of Racial Discrimination.
Turning to the news of the day: the Food Labor Research Center, the Berkeley International Human Rights Law Clinic, and the Restaurant Opportunities Centers United have released a comprehensive new report titled Working Below the Line: How the Subminimum Wage for Tipped Restaurant Workers Violates International Human Rights Standards. With case studies and in-depth analysis of the history of tipping and contemporary employment laws, the report makes a strong case for reform on the local and national levels.
Tomorrow, we highlight the blog entry in the #3 spot for 2015 -- check back!
Monday, December 28, 2015
What were the big US human rights stories of 2015? This week, in addition to reporting on breaking US human rights news, we will be looking back over the Human Rights at Home blog entries from the past 12 months that garnered the highest readership. As we review these top stories, we'll also provide updates.
Human Rights Countdown: #5
Tied for fifth place are two postings in November. One of the postings, the Human Cost of the Refugee Backlash, relates current refugee debates to the similar issues arising before and during World War II. At the time the post was written, several European nations were speaking out against border controls. Now, however, even Norway and Sweden have imposed border controls, and Germany, with Chancellor Angela Merkel at the helm, is leading European efforts to address the refugee issue in humanitarian terms. Merkel's singular leadership on the refugee issue was among the factors leading to her designation as the Time Person of the Year for 2015.
The second blog tied for 5th place is Utah and the Dignity Discussion, by Jeremiah Ho. The blog analyzes several attacks on same-sex relationships through the prism of Justice Kennedy's dignity and animus discussions in Obergefell v. Hodges. In the wake of this posting, a Utah man filed a federal lawsuit charging that he was discriminated against in his workplace based on his same-sex relationship. In his post, Ho argues that these incidents provide further opportunities for discussion, organizing and progress on equality.
In current news -- kudos to Professor Sarah Paoletti and her student team from the Transnational Legal Clinic who recently released a new video, Isolated By Force: Denying Migrant Farmworkers Access to Services. To view this powerful film, a model for both creative lawyering and innovative teaching, click here.
Come back tomorrow for more news, and to continue the Human Rights Top 5 Countdown with the #4 blog of 2015!
Friday, December 25, 2015
As year end rolls around, make sure that organizations committed to bringing "human rights home" are part of your year-end giving portfolio. Charitable giving is a widely practiced tradition in the US, and the US ranks favorably compared to other nations in the number of charitable donations as well as individual donations of time. Participation rates are high, whether you believe, as one recent survey reported, charitable giving in the US is declining, or whether you credit another survey recent indicating that giving has reached record high levels.
By giving even small amounts thoughtfully and strategically to US human rights non-profits, individuals can magnify the impact they make on issues that they care about. Without the core government support that is so often available to domestic non-profits in other countries, US Human Rights groups, from the smallest to the largest, need generous donors. The tax incentives that accompany charitable giving in the US -- again, something that is often not present in other countries -- makes it even more desirable to affirmatively allocate funds for non-profit donations. Directing some of your funds to US human rights groups will help ensure that the US keeps its human rights commitments to its own citizens and residents, will enhance the quality of life for all in the US, and will help keep human rights standards high worldwide.
Thursday, December 24, 2015
Moshe Temkin, a professor at Harvard's Kennedy School of Government, has posted a fascinating new article offering comparative insights on the US death penalty: "The Great Divergence: The Death Penalty in the United States and the Failure of Abolition in Transatlantic Perspective." The paper is available here and the abstract is below:
This essay analyzes the persistence of the death penalty in the United States--a topic that has long been the subject of debate among legal scholars, social scientists, and historians. Adopting a comparative framework by focusing on the United States and France (the last Western European country to abolish the death penalty), this essay argues that the best explanation for the divergence in the practice of the death penalty between the two countries can be found in the very different histories, meanings, and practical applications of death penalty abolitionism. Whereas abolition in France (as elsewhere in Europe) was a political, top-down process, framed in normative terms, decided at the national level, and enshrined in supranational treaties, the abolitionist cause in the United States has been primarily legal, procedural, and decentralized. This divergence should also be understood in the context of a broader divide–whereas in Europe, human rights have been a binding principle for policymaking and political belonging, in the United States human rights are applied for the wider world but not for domestic affairs. The essay concludes with implications for thinking about the relationship between the transatlantic history of abolition and its prospects in the United States, arguing that abolitionism should be understood, and proceed, in terms that are political and normative rather than legal and procedural.
Wednesday, December 23, 2015
by JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School
December has been a unique month for human rights in the United States. In the past weeks the federal government has demonstrated the impact, and relevance, of human rights advocacy on federal policy. Not once. Not twice. Three times. And in some unlikely places.
I have written previously on the importance of human rights language as a foundation for changing the way the government operates, focusing on the state and local level. Today, I shift the gaze to the federal government.
The Department of Justice is responsible for perhaps the most public invocation of human rights. The DOJ’s much anticipated guidance on gender bias in policing emphasizes that its goal is “to reflect and further the department’s partnership with the police leaders, line officers and detectives who work tirelessly to ensure that policing is free from bias and to uphold the civil and human rights of the communities they serve.”
Advocates have been pushing for affirmative DOJ guidance to address gender bias in policing for years, and this work has human rights roots. As the ACLU blog noted last week, the landmark decision by the Inter-American Commission in the case Lenahan (Gonzales) vs. the United States was an important catalyst for advocacy to reform the criminal justice response to gender-based violence.
The Guidance examines how gender bias undermines law enforcement’s efforts to respond to sexual assault and domestic violence, and offers a set of principles to advance awareness of the factors that can lead to bias (including implicit and explicit bias). It underscores that gender bias in policing constitutes discrimination. The Guidance further emphasizes law enforcement accountability as critical to prevent gender bias from occurring. These are welcome steps. But there is a large caveat in the Guidance as well: a clear statement that the document “is not intended to, and does not, create any right, benefit, trust or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees or agents, or any person.” Nevertheless, the explicit reference to human rights sends a strong signal about how DOJ conceives of its own work, as well as the Department’s expectations partner agencies working at the local level. It also opens the door to assess future law enforcement actions in light of international human rights standards related to gender based violence.
The Department of Health and Human Services has also been doing its human rights homework. In an interesting development that flew largely under the human rights radar, the Administration of Children and Families included the right to be free from violence and abuse in a new proposed rule. The background section of the rule quotes President Obama's 2014 Presidential Proclamation on Domestic Violence:
“Domestic violence affects every American. It harms our communities, weakens the foundation of our Nation, and hurts those we love most . . . we acknowledge the progress made in reducing these shameful crimes, embrace the basic human right to be free from violence and abuse, and recognize that more work remains until every individual is able to live free from fear.
The section goes on to note that the Family Violence Prevention and Services Act (FVPSA) is critical in the Administration's fight to end domestic violence. This rule aims to codify a number of existing standards, definitions, and practices to guide implementation of the Act.
Notably, the FVPSA was raised during the review of U.S. compliance with the ICCPR in 2014, where the Human Rights Committee called for “full and effective implementation of the Violence Against Women Act and the Family Violence Prevention and Services Act” to strengthen the U.S. approach to eradicating domestic violence. Several elements of the proposed rule align with the Committee’s recommendations to the U.S., including the call to fund prevention and assistance programs, and to take steps to increase survivor access to temporary shelters. The rule further underscores the priority on violence prevention programs and addressing, in particular communities that face disproportionate levels of violence and are historically underserved, including Native American communities and communities of color, something that U.N. experts have voiced concern over. Whether the rule will actually fulfill human rights in practice rests with its implementation.
Last, but certainly not least, the U.S. Inter-Agency Council on Homelessness continues to raise awareness of human rights and build the record on criminalization of homelessness as a human rights issue among federal counterparts. Earlier this month, USICH’s Executive Director published a brief piece in a federal agency newsletter highlighting U.S. participation in the U.N. Universal Periodic Review. The piece notes that the U.S. received a recommendation to “amend laws that criminalize homelessness,” and that the U.S. is taking action consistent with the recommendation.
This means that USICH, a 100% domestically-focused entity, is drawing attention to human rights recommendations to the U.S., as well as the government’s response, as evidence that the U.S. is working to break the cycle between incarceration and homelessness.
This is exactly the kind of dialogue that should be happening as a result of human rights reviews. Federal agencies should be talking about the recommendations, their relationship to current policies, and areas for improvement. The pivotal role of USICH in surfacing these issues is perhaps unsurprising. In 2011, USICH incorporated human rights into a policy-focused reports on criminalization and has also worked closely with human rights advocates to integrate human rights into its messaging.
These are small but important steps toward governance based on human rights principles. Yet, simply calling something a human right does not make it so. It is critical to breathe life into the DOJ Guidance, the HHS rule, and the actions of the U.S. Inter-Agency Council on Homelessness, and to ensure they are interpreted and applied consistent with human rights standards. As human rights advocates, the onus is on us.
[Author’s Note: Thanks to Eric Tars, the Director of Human Rights & Children’s Rights Programs at the National Law Center on Homeless and Poverty for sharing the DOJ COPS newsletter where the USICH piece was published].
Tuesday, December 22, 2015
On December 17, the UN General Assembly recognized that "the human right to sanitation entitles everyone, without discrimination, to have physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity." Over 2.5 billion people in the world lack sanitation access. Leo Heller, the UN Special Rapporteur on the Right to Water, hailed the consensus resolution (70/169), which recognizes the human right to sanitation as a distinct right, as "a significant step." Human Rights groups also praised the resolution as a much-needed clarification and a step forward in fulfilling the "right to an adequate standard of living." Among other things, the resolution includes recognition of the gender-specific human rights impact of inadequate water and sanitation.