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 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 24, 2017
In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.
I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.
In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.
Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.
Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.
Other conservatives have spoken out, too. Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.
But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda. But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.
“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr. Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.
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.
Monday, November 14, 2016
Every new president flounders a bit during the first two years. This is not dissimilar to what most of us experience in new positions. The more complex the duties, the longer the adjustment. Some argue that we should give breathing room to Mr. Trump as he assumes the presidency. There may not be time to do so as he pledges to move quickly on issues such as health care and immigration. We will need to judge his performance when we see how and whether he actually attempts to implement the agenda promoted during his campaign. With a Republican congress, whose leaders are now ready to please Trump, some actions could be swift.
What we do not have to wait to see is the unleashing of the post-election vitriol by some of the Trump supporters.
Schools are reporting a rise in racist incidents.
As reported here earlier, the damage has been done. Disturbing reports are surfacing and many involve young students. One woman reports an African American female student being told by her white high school peers that "blacks will be the first ones sent back." While the statement is absurd, the threat is not. A spike in racial incidents has been reported on college campuses.
Middle and high school age students report misogynistic remarks directed at Secretary Clinton on social media. One young female student reported boys "Trumping" (grabbing) girls.
President Clinton influenced a generation of young men to believe that anything short of intercourse is not sex. That position became the mantra of many teens. President-elect Trump has taken anti-female actions to a new level. Mr. Trump's admitted sexual assaults demonstrate to young boys that similar assaults on their female peers are acceptable, hijacking any hope of ending misogyny. The disservice to young men is layered. Living in hate is an uncomfortable and unproductive place to be. Young men are particularly vulnerable to influences promoting their power and prowess. Those young men, however, are now more likely to end up on a sex offender registry for engaging in the very same actions normalized by their president.
Men and women have taken to protesting in numbers unheard of in recent political history. There is a new population of human rights advocates willing to take to the streets. Our challenge is to support those who are willing to publicly voice their opposition and keep the human rights discussion in play.
Wednesday, September 28, 2016
The Working Group of Experts on People of African Descent was established in 2002 by the Commission on Human Rights. Among the Group's 2008 charges were to study the problems of racial discrimination faced by people of African descent living in the diaspora and, to that end, gather all relevant information from Governments, non-governmental organizations and other relevant sources. The means of gathering relevant information include holding public meetings. The Group is instructed to propose measures to ensure full and effective access to the justice system by people of African descent.
The findngs document a US history of racial terrorism. Among the working group's findings are: "In particular, the legacy of colonial history, enslavement, racial subordination and segregation, racial terrorism and racial inequality in the United States remains a serious challenge, as there has been no real commitment to reparations and to truth and reconciliation for people of African descent," the report stated. "Contemporary police killings and the trauma that they create are reminiscent of the past racial terror of lynching."
Recognizing police killing of unarmed black men as having created a crisis, the Working Group reports that there is a sense of urgency to resolve this human rights crisis.
The Working Group made many suggestions that would go a long way in remedying institutional racism. Among the recommendations are:
Immediately abolish police in schools.
Police misconduct investigations to be conducted by independent investigators.
Misdemeanor laws that result in the over-charging and over-incarceration of people of color be abolished. One example given is South Carolina's law making a school disturbance a misdemeanor.
That younger prisoners be separated from adults and male prisoners from female ones.
The Group addressed reparations as one remedy. From apology and debt cancellation to educational and healthcare opportunities, the Group addressed steps that are critical to addressing the consequences of societal and institutional racism.
The problem with reparations is that in order to arrive at a place where Americans endorse them, the place where the culture is ready to recognize the harm must first be reached. We are a long way from there. Achieving recognition of the state's contributions to extreme suffering forced upon African Americans is not hopeless thanks to the new wave of activism, including Black Lives Matter. However, President Obama' election unleased racism across the country. Undermining the power of the first black president became the goal of those in the political and social systems. The fact that any new social legislation passed over the past eight years is nothing short of a miracle. The racism obvious in the current presidential election politics provides a vehicle for individuals to act on their persistent white supremacy beliefs. We will find out soon if political racism can be defeated in our upcoming elections.
But as the working group found, racial terrorism has created a crisis in America. Perhaps this crisis will collide with new wave activism and create a real opportunity for the country to admit the heinousness of the aftermath of slavery. One day it may be that a series of crisis or one horrendous crisis will result in a serious discussion on how to repair the damage we have done.
The findings are worth a read in their entirety. The Group brings to its report the clarity that often comes from outsiders looking in. The diagnoses of the problems is accurate and the suggested remedies thoughtful.
Sunday, September 25, 2016
Earlier this year, Michelle Alexander spoke at Union Theological Seminary as a Woman of Spirit. Now the newly resigned Ohio State law professor and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness is surrendering her legal gown for a theological one as she returns to Union Theological as a visiting professor and student. Prof. Alexander has been drawn to the study of the divine for some time. In 2013, she spoke at Yale Divinity School addressing mass incarceration but incorporating values of forgiveness and redemption. At that talk Prof. Alexander referenced the "spirit whispering in my ear".
Finding law insufficient to the task of creating a culture where each and every human being is valued, Prof. Alexander said "Without a moral or spiritual awakening, we will forever remain trapped in political games fueled by fear, greed and the hunger for power."
"This is not simply a legal problem, or a political problem, or a policy problem. At its core, America's journey from slavery to Jim Crow to mass incarceration raises profound moral and spiritual questions about who we are, individually and collectively, who we aim to become and what we are able to do now. "
Ms. Alexander joins the call of other spiritual leaders who recognize America's crisis as a spiritual one. All indications are that we can look forward to Ms. Alexander's transformation to a spiritual scholar to be as profound as her legal commentary. She shared her vision of a new world: "I would like to imagine that a wide range of people of faith and conscience who sing songs from different keys may be able to join in a common chorus that shakes the foundations of our unjust political, legal and economic systems, and ushers in a new America."
Sunday, September 4, 2016
Earlier this blog reported that several federal courts had struck down voting law provisions that attempted to restrict voting. Two of the states involved were North Carolina and Ohio. This week the US Supreme Court refused to hear an appeal by North Carolina that would permit that state to enforce its provision that would require voters to have a government issued id in order to exercise voting rights.
Ohio Democrats filed an emergency appeal seeking the court's order that Ohio's "Golden Week" be reinstated. As summarized by SCOTUS Blog's Amy Howe:
"The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself."
Golden week was instituted following the 2004 election when voters had to wait in lines often up to 12 hours to vote. The delays had a disparate impact on African Americans, who constitute a large percentage of the population of the bell-weather Hamilton County.
Last Friday, Justice Kagan asked the State of Ohio to respond to the Democrats' emergency appeal by this Thursday, September 8.
Sunday, August 7, 2016
July and August saw several states’ voting restrictions overturned. The voter ID laws, which would have required voters to produce photo identification prior to voting, were struck down. North Dakota’s law was the most recent, but other states, including Wisconsin, Kansas and Texas saw portions of their voting laws struck as discriminating against people of color. Earlier, Ohio passed legislation that eliminated “Golden Week” the voters’ rights to register and vote at the same location. Ohio has a history of attempts to limit voting by minorities and others who tend to favor the Democratic Party. In May, a federal court declared that the legislation violates the Voting Rights Act as well as the 14th Amendment.
A different federal court (4th Circuit) declared a North Carolina Voter ID law unconstitutional on several grounds. Like Ohio, North Carolina had eliminated same day registration and voting. But NC also prohibited out of precinct voting, as well as early voting. Both of these restrictions were overturned as well. The court found that the provisions “target African-Americans with almost surgical precision.” The court noted that the legislation addressed fictional problems.
In what was a surprise to many, the Supreme Court stopped implementation of a federal appeals court order that would have blocked the Virginia law requiring students to use the bathroom of the sex assigned at birth and not in accordance with their gender identity. The case is Gloucester County School Board v. GG. The surprise was Justice Breyer’s vote to grant the stay pending filing and decision on a petition for cert. He described this action as a “courtesy”. (And that means?) We can hope that the Justice promotes this issue being fully briefed in order to settle critical issues of gender identity, knowing that a split court will leave the lower court decision intact. Assuming the application for cert is granted, this case will test the limits of Justice Kennedy’s empathy toward the sexually diverse. Perhaps Justice Kennedy will extend his animus-dignity analysis to this minority that has far fewer champions than do gays and lesbians.
Sunday, June 26, 2016
The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This blog follows one covering the majority opinion. That blog is available here.
The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network. This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.
As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence. The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.
In this case, holistic consideration of race in university admission decisions is consistent with the United States’ treaty obligations as well as international practice, which makes the policy all the more compelling. Indeed, two treaty review bodies (the HRC and CERD) urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools. Other independent international law experts have counseled the United States to do the same. The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education. International treaties and practice support the University of Texas’s approach to admissions and the international obligations should be considered when assessing the process' validity under the Fourteenth Amendment.
The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994. CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination. The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2). Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination. In other words Parties are required to address not only intentional discrimination but discriminatory effects as well. (¶¶ 14 and 22.)
The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education. The U.S.’ policies on education have been the subject of concern for the Committee. While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools. Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution. In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.
The U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S. of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects. In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.
The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process. After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions. Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.
By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia. While the focus of its decisions on this topic have been on achieving diversity, and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties to which it is a party.
Thursday, June 23, 2016
In a 4-3 decision (Kagan, J. not voting), the Court ruled that the University of Texas race-based admission policy is lawful within the parameters of equal protection. Here is link to the Court's opinion.
By a 4-4 vote, the court let stand a lower court decision that President Obama lacked the authority to extend immigration protections. The lower court injunction against implementation of the Presidential orders stands. Here is the per curium decision.
Also by 4-4 vote, the Court left standing multiple lower court decisions affirming the authority of Tribal Courts to bring civil actions against non-tribal individuals and entities. The per curium decision may be viewed here.
Watch for posts analyzing these decisions in the human rights framework.
Tuesday, January 26, 2016
In July, a University of Cincinnati Police Officer shot Samuel DuBose to death. Mr. DuBose was black and he was unarmed. The white officer pulled Mr. DuBose over for an automobile violation (no front license plate) and the shooting was filmed on the officer's body camera. At the time that the killing became known, the University, in not its finest hour, cancelled classes and closed the campus. Whatever anticipated demonstrations or riots the school was anticipating never happened. What did happen was that Officer Ray Tensing was arrested and is waiting his trial for murder.
Despite its initial overreaction, the University President, Santa Ono, stepped up in negotiations with Mr. DuBose's family. President Ono has generally been considered a vibrant and effective leader. On Martin Luther King Day, as a result of settlement negotiations, he obligated the University to pay $4.85 million to Mr. DuBose's family. Settlement was reached after only two days of negotiations. While the University did not admit liability, the School will apologize to the family as part of the agreement. "Dr. Ono said the university felt a “civic responsibility” to go beyond the kind of cash settlement customary in police-involved deaths." The President went on to say that he wanted to be clear that the University cares not only about the DuBose family but about peace in the City, as well. It was one of Mr. DuBose's daughter, Raegan Brooks, who discussed the pain of the experience, including the negotiations that at times caused emotional disturbance of what felt like putting a price on her father's life. She also spoke of her prior intentions to attend UC, plans that changed after her father's death.
Since the killing, the University has established a community advisory council on which a family member of Mr. DuBose will sit.
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.
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
Wednesday, December 9, 2015
by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School
Is human rights law relevant to the Court’s consideration of UT Austin’s admissions selection policy? In Fisher v. University of Texas at Austin, the Court has the opportunity to reaffirm the importance of ensuring diversity and inclusion in higher education. Such a decision would be supported by international law: equal opportunity college admissions policies help the U.S. to fulfill its human rights commitments.
At issue in Fisher v. University of Texas at Austin is the university’s admissions policy, which considers race among many other factors as a means of ensuring a diverse and academically qualified student body. UT Austin’s admissions policy has two components. Most students (75%) are admitted through the school’s “Top Ten Percent plan,” which guarantees admission for Texas students in the top ten percent of their high school class. The school fills the remaining slots through a holistic multi-factor review of each applicant, considering over a dozen factors, one of which is race.
This is the second time the Court has heard arguments in Fisher. The case has a well-told procedural backstory.
Directly at issue in Fisher is UT Austin’s admission policy. But the ruling could have wider implications on the ability of colleges and universities to maintain policies that seek to ensure equal opportunity and racial diversity. As the New York Times noted last week, recent activism on college campuses has amplified the conversation around race and higher education, and the stakes in Fisher feel particularly high.
What does human rights add to the mix? As noted by Human Rights Advocates and other organizations joining an international human rights amicus brief filed in Fisher, UT Austin’s admissions plan helps the United States meet its human rights commitments. And it is in line with international practice. The brief was authored by Connie de la Vega at University of San Francisco School of Law, along with Neil Popović at Sheppard Mullin.
As the human rights amicus brief notes, two of the core human rights treaties ratified by the United States support the use of holistic considerations of race in higher education admissions decisions. In particular, the Convention on the Elimination of all Forms of Racial Discrimination (CERD), ratified by the U.S. in 1994, calls on countries to take affirmative steps to eliminate and prevent racially discriminatory practices. Article 2(2) of the Convention calls on countries to take “special and concrete measures” to guarantee and advance equality. The CERD Committee has elaborated on the meaning and scope of “special measures,” and in reviewing countries’ compliance with CERD, the Committee has emphasized their particular importance in the field of education. During the most recent review of U.S. compliance with the CERD, in 2014, the CERD Committee noted concern with policies and practices within the United States that have been adopted against the use of special measures in higher education, and recommended that the U.S. instead adopt and strengthen the use of such measures to eliminate persistent disparities.
The International Covenant on Civil and Political Rights (ICCPR), too, supports the use of holistic considerations of race in higher education admissions policies. In particular, Articles 2 and 26 of the ICCPR prohibit discrimination and guarantee effective protection against practices with discriminatory effects. The U.S. ratified the ICCPR in 1992. When it was reviewed by the U.N. Human Rights Committee in 2011, the U.S. noted that educational policies aimed at achieving racial diversity and avoiding racial isolation help the U.S. to implement the Covenant’s equality guarantees.
If any of the Justices do, in fact, consider international law in assessing the constitutionality of holistic considerations of race in college admissions, it would not be first time. In 2003, in Grutter v. Bollinger, the Court considered the University of Michigan Law School’s admissions policy and affirmed the school’s compelling interest in ensuring the educational benefits of diversity in higher education, emphasizing the advantages of diversity for all students and for the country as a whole. In a concurring opinion, Justice Ginsburg noted that the Court’s decision was consistent with international understanding of affirmative action, citing to CERD as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She similarly cited to CERD and CEDAW in her dissenting opinion that day in Gratz v. Bollinger.
Are Justices likely to cite directly to international law this time around? Perhaps not. Nevertheless, human rights can provide important context for their consideration of the case.
Sixty-seven amicus briefs were filed in Fisher in support of the university. These briefs note the benefits of diversity in higher education, the importance of expanding opportunity for students from all backgrounds, and the importance of preventing racial isolation in colleges and universities. Likewise, amici, including Fortune 100 companies and retired military and national defense leaders, urge the Court to consider ways in which a diverse university and workforce are in the national interest, and critical to America’s success. As the human rights amici note, ensuring equal opportunity in college admissions serves the important (and entirely consistent) function of helping to bring the United States in line with its human rights commitments, as well.
Tuesday, October 27, 2015
Higher education is considered one of the most reliable routes to higher pay. A recent study reported in a Federal Reserve publication suggests that how much higher one can climb up the pay ladder is race dependent.
William Emmons and Bryan Noeth report that higher education does increase income and wealth for all racial and ethnic groups. And protection from accumulated wealth increases, as well. The problem is that how much protection is afforded varies with Blacks and Latinos afforded lower rates of wealth protection. The study's findings suggest that advanced degrees, most available to whites and Asians, may be a protective factor in preserving wealth. Findings also indicate that in some ways, when economic crisis occurs college educated blacks and Latinos may fare worse, percentage-wise, in preserving their wealth than their less educated counterparts.
Nonetheless, all racial and ethnic groups studied improved their economic positions considerably by completing a course of higher education. Why there is disparity in wealth preservation when crisis occurs remains speculative, however. The authors conclude that the reasons for this disparity are likely complex and call for further studies on the sociological and societal reasons for the discrepancies.
Monday, September 28, 2015
The recently released Ferguson Commission report lays down a challenge to a nation torn apart by revelations of police abuse.
Missouri Gov. Jay Nixon created the commission last year in response to the fatal police shooting of Michael Brown, though the authors of the report note that they were not charged with investigating his death.
“We are not even suggesting that institutions or existing systems intend to be racist,” the commission states. “We are pointing out … that the data suggests, time and again, that our institutions and existing systems are not equal, and that this has racial repercussions.”
There are 189 policy recommendations in a portion the report describes as a “call to action.” There are a few that especially stand out.
First, and most importantly, the commission calls for comprehensive police reform. This includes more and better training for officers and the creation of a database on the use of force — all with the goal of decreasing violent confrontations.
Second, the commission takes mass incarceration head-on and presses for criminal justice reform. It urges an immediate change in sentencing laws and the elimination of incarceration altogether for some minor offenses. It pushes the police and prosecutors to change processes that include disregard of the fundamental rights of those accused of crimes. And it calls for the creation of community justice systems designed to address problems in a different way.
Third, the commission asks for a special effort to do more for the youth. It suggests better education and nutrition for young people, improved health outcomes, the reform of school disciplinary policies and practices, and more investment in early childhood education.
These recommendations are crucially important. An unarmed black person is twice as likely to be killed by a police officer as a white individual. The United States contains 25 percent of the world’s prisoners, even though the country only makes up 5 percent of the world’s population. The unemployment rate for black youth is 20.7 percent, according to the latest numbers. Young people of color face daily challenges.
There have been other significant reports in the past that have documented racial injustice and proposed constructive responses, but they have been largely ignored. Let’s not make the mistake of dismissing the Ferguson Commission report, which provides a blueprint for reform across the nation.
Editor's note: Prof. Gilmore wrote this piece for the Progressive Media Project and it first appeared in the Bangor Dailey News
Monday, August 10, 2015
For years, Washington University at St. Louis professor Mae Quinn and her students in the Juvenile Law and Justice Clinic raised constitutional and other legal concerns on treatment of juveniles in the St. Louis County Family Court and other Missouri youth justice venues. Prof. Quinn highlighted many of these problematic practices and experiences in her law review article, "The Other Missouri Model: Systemic Juvenile Injustice in the Show Me State."
Prof. Quinn and her students through in litigation and public education that the St. Louis County Family Court system failed to provide constitutional protections to juveniles.
In November 2013 the United States Department of Justice launched an investigation of the St. Louis County Family Court. Remarkably, clinic students were thereafter banned from appearances in St. Louis Courty's family court. This seemingly retaliatory action was noted in a report released by the Department of Justice affirming the concerns raised by Prof. Quinn and her students.
DOJ analyzed 33,000 juvenile court cases and found that black children are disproportionately represented in decisions to formally charge youth versus informal resolution. The Analysis of 33,000 juvenile court cases showed that Black children are disproportionately represented in decisions to formally charge youth versus handling matters informally. Black children were also more likely to be placed in state custody and in a secure facility., detain youth pretrial, commit youth to Youth Services custody pending trial and place youth in a secure Division of Youth Services facility post- conviction.
Among the constitutional violations cited in the report are:
- Failure to ensure youth facing delinquency proceedings have adequate legal representation;
- Failure to make adequate determinations that there is probable cause that a child committed the alleged offense;
- Failure to provide adequate due process to children facing certification for criminal prosecution in adult criminal court;
- Failure to ensure that children’s guilty pleas are entered knowingly and voluntarily;
- An organizational structure that is rife with conflicts of interest, is contrary to separation of powers principles and deprives children of adequate due process; and
- Disparate treatment of Black children at four key decision points within the juvenile justice system.
Prof. Quinn responded to the report saying:
I am heartened by the report by the United States Department of Justice, which sheds further light on many of the legal concerns and constitutional issues my clinic students and I have encountered and been challenging in local juvenile court systems over the last six years.
“While we have worked with many caring and committed judges, prosecutors, and probation staff during this time — we have also repeatedly been shocked by practices that work to undermine basic rights of due process, representation and zealous advocacy. More than this, the very structure of the system runs counter to basic constitutional separation of powers norms — where everyone but the child and her lawyer (when one is present) — is part of the same team. In such an environment and culture, it is very hard to meaningfully represent children — largely poor youth of color — who are already at risk in this community.
“I am hopeful that this document — like other recent findings and reports that have been issued by DOJ, the Ferguson Commission’s working groups, and others — will serve as a further platform for change in the region. And, as before, the Juvenile Law and Justice Clinic at Washington University School of Law stands at the ready — willing and able to represent kids in our courts and work collaboratively to rethink our juvenile justice system in the days ahead. At this point I believe there is plenty of good will and ability to bring about meaningful reform. I look forward to St. Louis County — particularly as it gets ready to open the doors on its new multi-million dollar youth justice center — serving as a model of best practices for youth justice across the country.”
Thursday, August 6, 2015
Prof. Margaret Drew introduces UMass Law 3L Michael McGeown-Walker who wrote the following post, a version of which earlier appeared in the Albany Times Union.
Earlier this summer, the state of South Carolina removed the Confederate battle flag from the Confederate Soldier Monument near the state's Capitol building entrance. The flag had been there since 2000, and before that, it waved atop the capitol building since 1961. Remarking on its removal to South Carolina Confederate Relic Room and Military Museum, the curator suggested that the action was a "gesture of chivalry" to hopefully bring some level of healing to the state after the abhorrent killing of nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston. The operative word in that quote is "gesture." While there is a measure of understanding in removing a flag from the grounds of the state Capitol, the action is largely symbolic. And that is what flags are: symbols. In this case, the Confederate flag became a symbol of an attitude of hatred. After that terrible event, many called for removal of the flag as a public response by the state. The gesture of removing the flag from the vicinity of the state's Capitol building was like putting a BandAid on a bullet wound: it may look alright for a moment, but BandAids don't heal wounds. What removing the flag does is make us feel better. Like electing a black president or ousting a racist owner of a basketball team, it makes us feel as though we are doing something to solve the problem, all the while sweeping the real problems under the rug. Racism is complex. It persists in so many forms. Men with white hoods have been replaced by mass incarceration, wars on the impoverished, and a vitriolic, kneejerk response to intelligence and education. Symbolic gestures, such as removing a flag, are only as useful in their ability to spur on movements that address racism in a comprehensive manner. If the removal of the Confederate flag from the Capitol grounds in South Carolina ignites action on issues such as mass incarceration, poverty and education, then perhaps this gesture will stand for something far greater. But until that time, it is nothing more than an underwhelming response to an overwhelming problem.