Monday, August 21, 2017
Law schools are reporting increased incidents of angry students making comments that parallel some of the current, public hate speech. Schools report race based incidents, a few reporting physical, or near physical, encounters.
Some professors believe they are dis-empowered to address classroom "discussions" where students not only express biased views, but do so in angry and disrespectful ways. Professors who view their dilemma solely from a "free speech" perspective limit themselves. The recent tour of "conservative" speakers claiming their voices are silenced on "liberal" campuses may have contributed to this faculty sense of dis-empowerment.
But there are other pedagogical considerations. Law schools train professionals. Reasoned civil debate is one goal of law school pedagogy. We teach students to view legal claims and facts from a variety of perspectives. We encourage them to recognize when to separate out the personal from the professional and likewise, when to consider the personal as inevitably intertwining with the legal. Underpinning our training is not just the ability for lawyers to objectively assess other perspectives, but the necessity of doing so. The practical consequences of failure to do so will result in our students being out-strategized by opposing counsel. More immediately, their inability to consider any merit of opposing arguments will have a negative impact on grading. In practice, inappropriate tone will cost lawyers business from clients who recognize the connection between professionalism and success. In law school, voicing opinions unsupported by reliable data or law impacts the professor's assessment of student performance.
So administrators and faculty need to broaden their own perspectives on the deterioration of professionalism within the law school community. A student's unwillingness to engage in civil debate is a choice. Disrespectful speech is unprofessional and when done within the context of classes is a grading consideration.
Freedom of speech is honored. But freedom of speech does not support disrespectful speech. Not in the professional school context.
Part of the reason administrators and professors focus only on freedom of speech is fear of lawsuits by those claiming their speech is unlawfully suppressed. This is not the time for fear based decision-making. This is the time to focus on our obligations as teachers to train our students in professionalism and the art of debate. Legal ethics demand professionalism.
Prof. Ho has written thoughtfully about pushback on "political correctness" as deflecting from underlying incivility. Incivility certainly has evidenced itself within and without the academy. This pushback is often an excuse for avoiding civil debate. I view current dialogue from an additional dimension. Pushback on "political correctness" often veils bias whether delivered in a civil or incivil manner. So before my students engage in disrespectful speech they will know two things. To the extent possible, political labels are eliminated from our discussion. We will focus on ideas and empirical evidence without regard to whether the speaker is Republican or Democratic. We leave the words liberal and conservative unspoken. Doing so forces attention on ideas and not on the speakers.
Secondly, students are aware that how they present their ideas is a professionalism issue that will be reflected in grading. I am confident that I and other professors are capable of distinguishing between passion for a topic and resistance to self-reflection.
Effective leaders do not throw up their hands and relinquish responsibility under the guise that free speech bars any proactive and protective action. Leadership finds ways to protect the dignity of all members of the community. Where are Human Rights? Eleanor Roosevelt asked. They are local, she instructed. They are in places that are not on any map. They are found in law schools, too.
Friday, June 3, 2016
Among this term’s cases that were not deadlocked due to a missing 9th justice, is Foster v. Chatman.
Mr. Foster is a cognitively challenged black man who has been imprisoned nearly thirty years waiting execution following a murder conviction. The issue before the court was whether Mr. Foster's right to trial before a jury of his peers was defeated through the prosecution’s manipulation of the juror selection process. Mr. Foster, who is African American, argued that the prosecutor impermissibly eliminated black jurors thus creating a biased jury pool. The court, in a seven to one opinion, determined that the prosecution demonstrated racial bias in jury selection and remanded the case to the lower court.
The legal impact of the decision will be limited. Mr. Foster’s lawyers gained access to the thirty-year-old prosecutor’s file which showed, among other discriminatory evidence, a “b” written next to the names of the black prospective jurors. Such blatant evidence is rarely available. With progressively more focus on criminal justice practices that limit or deny civil rights protection to people of color, it is likely that written documentation of exclusionary jury practices no longer appear in prosecutor’s notes. The case is unlikely to influence future discrimination cases except in one regard: it is possible that some judges will scrutinize more closely the Batson claims of prosecutors that there were “ legitimate reasons” for eliminating black jurors. But under the current status of case law favoring prosecutors even enhanced scrutiny is not likely to change discriminatory practices.
In addition, two justices noted, there may be procedural barriers beyond the bias issue that prevent Mr. Foster from receiving a new trial.
But will the prosecutor in question benefit from the passage of time thereby avoiding disciplinary action?
ABA Model Rule 3.8 emphasizes the special duty of prosecutors to assure justice, in addition to their duties to be competent lawyers on behalf of the state. Under the rule, prosecutors have a duty to seek and preserve justice as well as to prosecute individuals deemed a threat to the public. Commentary to the rule reads in part: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate." This includes an obligation to ensure that the defendant receives "procedural justice".
Unlike other model rules, as adopted by the various states, there are relatively few disciplinary decisions sanctioning prosecutors for behavior that frustrates or thwarts justice. The apparent lack of discipline for prosecutors (think of the lack of discipline for the now notorious prosecutor in Making of A Murderer) ignites vigorous law classroom debate. Many disciplinary complaints allege conduct as concerning as that found in the documentary. But even when the facts of the complaint are acknowledged, often no or mild discipline follows.
The ethics discussion typically progresses from one concerning individual cases to the larger problem of whether or not the lack of discipline results from a bias to protect the state. What is the fear behind disciplining wayward prosecutors? Are ethics boards concerned about a flood of complaints that might result in a mirroring of the justice systems overcrowded dockets? If so, that fear must be insufficient to prevent disciplinary boards from applying their independent judgment. Adverse collateral consequences to legal systems must not be a factor in determining whether justice has been manipulated by a key state actor.
My prediction is that among the consequences of holding prosecutors to their dual obligations will be the cheering of those many prosecutors who take their larger responsibilities of ensuring justice to heart.
Saturday, August 29, 2015
The Center for Human Rights & Humanitarian Law at American University Washington College of Law announces the deadline for submissions for the Fifth Annual International Humanitarian Law (IHL) Student Writing Competition. The competition is sponsored jointly with the American Society of International Law (ASIL) and the American Red Cross.
The theme of the 2015 Competition is “The Intersection of International Humanitarian Law and Gender.” Papers should focus on ways in which IHL intersects with gender issues, such as the role of women as combatants, the gendered use of sexual violence during times of armed conflict, the impact of gender stereotyping on international humanitarian law, etc.
The Center asks that we share this information with our students. A link to the competition website is provided.
Wednesday, May 27, 2015
Radical Teacher, a "socialist, feminist, and anti-racist journal on the theory and practice of teaching," is soliciting proposals for an issue on teaching about human rights." Past journal issues addressing human rights themes include the current issue on Teaching Across Borders, the 2014 issue on Radical Teaching and the Food Justice Movement, and the 2013 issue on Occupy and Education.
The new Call for Papers on "teaching human rights" explains:
"We imagine a range of responses from exploring how teaching about human rights can be accomplished from a radical point of view to critiques of how and why some human rights education programs, or human rights discourse in general, sideline radical perspectives. We are primarily interested in essays/articles but would also consider interviews, poetry, and other types of submissions."
Submission guidelines are available here.
Monday, March 23, 2015
If anyone has doubts about the ability of determined individuals to control intellectual thought and speech, then s/he need only examine what is happening to faculty at the University of North Carolina. A new era of intolerance arrived some time ago, but recent actions have a different, more damaging twist.
To recap, the state’s governor, Pat McRory, announced two years ago that the state should not be “subsidizing” courses such as those on gender and those teaching Swahili. “Subsidizing” in this context means that the state university should not offer such courses. As do many driven by personal agenda, McRory cloaks himself in the rhetoric of the public good. Reminiscent of those who cannot tolerate dissention, McRory accused his targets of the very behavior he engages in. He stated: “Our universities should not be used to indoctrinate our students to become liberals or conservatives, but should teach a diversity of opinions which will allow our future leaders to decide for themselves.” He then proceeded to shut down three voices of what he perceived as “liberal” voices, seeking to eliminate diversity of opinion on campus.
In a move designed to implement his thinly disguised agenda, the state recently announced the closing of three University Centers, all of which promote interests that are not in line with the administration’s agenda. The three disbanded centers addressed environmental concerns, voter engagement and poverty. A New Yorker article focuses on the law school’s Center of Poverty, Work and Opportunity, directed by Prof. Gene Nichol, as the primary target of the state’s actions.
I will not describe the administration’s agenda as “conservative.” This form of divisive labeling does not help. Labeling by political perspective paints those who may advocate more restrained fiscal policy with individuals who, like Governor McRory, use the power of the state to destroy those who simply have a perspective different from his. McRory is not conservative, he is intolerant. Let’s not confuse the two.
A more accurate description of McRory and his kind is that they do not believe in or support the bill of rights to the U.S. constitution. Free speech is replaced by state propaganda. Disagreement with the state is grounds for punitive action.
At the heart of the closings was Prof. Nichol’s public criticism of state policy. Nichol had written a series of opinions published in the Raleigh News and Observer in which he criticized what he described as the state’s “war on poor people.” According to reports, these published opinion pieces were followed by communications by legislators to the law school’s dean threatening closure of the Center on Poverty, Work and Opportunity if the newspaper pieces did not stop. Then in January, the President of the University was fired.
This is not a post on tenure protections, although the described actions emphasize the need for tenure and academic freedom. There is an alarm ringing for all of us. Major movements whose goals have been to suppress individual opinion in favor of state propaganda have often started with actions designed to silence university professors. 20th century examples of this sort of state action abound in our studies of human rights deprivations. But this is not 20th century history. We cannot distance ourselves from what is happening in North Carolina. The state action to suppress diversity of opinion there is an immediate human rights crisis. How will we respond?
Monday, March 16, 2015
Prof. Risa Kaufman's and Prof. JoAnn Kamuf Ward 's students traveled to Alabama last week to participate in events commemorating the 50th anniversary of Bloody Sunday. The students provide us with their first hand account.
By: Glory Nwaugbala, Dan Pedraza, Ben Setel, and Audrey Son, Columbia Law School Human Rights Clinic
As members of Columbia Law School’s Human Rights Clinic, we have spent this academic year working to advance state and local implementation of human rights within the United States. We recently experienced the importance of this work firsthand over the course of a weekend in Alabama.
Many of the United States’ human rights obligations fall within the jurisdiction of state and local governments. Through the Columbia Law School Human Rights Institute, we have been working to develop and support state and local implementation of these obligations. As part of that work, we’ve been privileged to work with the Birmingham mayor’s office. We have been particularly excited to work with Birmingham, not only because of that city’s historical importance in the civil rights movement, but also because Birmingham Mayor William Bell has emerged as a champion for human rights, including through his participation on the United States’ official delegation to the CERD last summer.
On Friday, March 6th, 2015, Mayor Bell hosted a dialogue on local human rights concerns in advance of the upcoming review of the United States at the Universal Periodic Review, and in conjunction with the 50th anniversary of Bloody Sunday (when, as part of the Voting Rights Movement, unarmed demonstrators attempting to peacefully march from Selma to Montgomery were attacked by state troopers on the Edmund Pettus Bridge).
For this event, we helped plan a day of panels on a wide range of issues, including education, immigration, homelessness, and marriage equality. The panelists included state legislators, law enforcement officers, local advocates, community members, and other actors. A representative from the U.S. State Department attended, as well, and noted in his closing comments that “human rights are universal but are experienced locally.” He went on to say that this event was precisely the sort of local engagement that the State Department hoped to cultivate throughout the country. It was encouraging to hear such strong words of support for state and local engagement with human rights from a federal government representative.
Although the individual panelists may not have shared the same views or experiences, some common ground emerged. Where each had seen a gap in justice, each has worked to fill it. Despite the efforts of these individuals and their respective organizations, however, it was clear that more must be done to address critical social justice concerns in Birmingham. The dialogue among the panelists highlighted one of the major themes of the weekend: the promise of human rights in addressing local issues. As one panelist noted, Birmingham must transition from “the cradle of civil rights to the house of human rights.”
Human rights provide a valuable supplement to the traditional civil rights framework. The language of human rights makes clear the intersection and deep connection between economic, social, cultural, civil, and political rights. A human rights frame can better capture many contemporary issues, and pave the way for holistic solutions. It can empower individuals by explicitly acknowledging them as rights-holders. And such acknowledgement highlights that government actors have a responsibility to protect, respect and fulfill rights.
The following day, March 7th, 2015, marked the 50th anniversary of Bloody Sunday, the attempted march from Selma to Montgomery that sparked the passage of the Voting Rights Act. We travelled from Birmingham to Selma to hear President Obama, Congressman John Lewis, and others speak on the legacy of the march. As Congressman Lewis embraced our nation’s first African-American president, sharing a stage in this historic place, we were reminded that although the struggle for rights in the United States has been long and difficult, it is one that has made tremendous strides forward. President Obama's speech served as both a reflection on progress made and as a call to further action. Tens of thousands of people of all ages, races, genders, and sexual orientations gathered in Selma that day to rally around one idea: keep marching. As President Obama reminded us: “the most powerful word in our democracy is the word ‘We.’”
Throughout the weekend, we were struck by the way in which human rights themes permeated the discourse from the local level all the way to the President’s speech. While not everyone mentioned “human rights” explicitly, the principles were evident in their words and in their work. Human rights have a role to play in cities, in states, and at the national level, and they provide a roadmap for the achievement of the universal rights of all people.
Hearing those themes reflected in Alabama was particularly powerful. The story of civil rights in Alabama is as inspiring as it is unfinished. Knowing that tremendous progress has been made in the fight for civil rights—both in Alabama and across the United States—we have good reason to be optimistic about the promise of human rights. In order to realize this promise, however, we must keep marching.
Wednesday, February 25, 2015
As students start selecting topics for spring semester papers or Notes, many will want to explore the burgeoning issues around land grabbing. Don't let them re-invent the wheel! Jootaek Lee, of Northeastern Law School, has written a useful and timely research guide on land grabbing. The paper, titled "Contemporary Land Grabbing, Research and Bibliography," will appear in the forthcoming Law Library Journal, v. 107 (Spring 2015). Meanwhile, the complete paper can be downloaded from SSRN. Here is the abstract:
Thursday, February 19, 2015
Did you first learn about human rights issues at a Model United Nations?
According to the U.S. United Nations Association, more than 400,000 students participate in Model United Nations programs each year. Through Model UNs, students practice skills like drafting, advocacy, negotiation and public speaking. Importantly, they are also exposed to human rights issues on a global and national scale as they research the policy positions of their assigned countries and evaluate possible alliances with other nations. Prominent Americans who participated in Model UNs range from Supreme Court Justice Stephen Breyer to famous "first child" Chelsea Clinton to actor Samuel L. Jackson.
With support from Newman's Own Foundation, in 2010 the U.S. United Nations Association created a special human rights curriculum to be used in conjunction with a Model UN program in a middle-school or high school classroom setting. Special topics in the curriculum include children's rights, free expression and universal primary education.
Interestingly, though Model UN is a huge driver of human rights education at high schools and universities across the U.S., its origins are obscure and it operates as a loose, decentralized and student-powered network. Further, the legal academy has virtually ignored the role of Model UNs in shaping Americans' views of human rights and global politics. Legal scholars only occasionally note the role that Model UN programs play in expanding American awareness of transnational perspectives. A deeper analysis of the ways in which Model UNs have served as a decades-long forum for developing Americans' global perspectives -- perhaps reinforcing exceptionalism or alternatively, straining against it -- would be a fascinating contribution.
Thursday, January 8, 2015
Teachers everywhere look for vivid and multifaceted case studies to drive their lessons home. Tragic as the situation is for residents of Detroit, the events of the past year -- the city's bankruptcy, the municipal water shut off, the UN Special Rapporteurs' efforts to intervene, the local organizing on the ground -- provide an excellent case study for teaching about the human right to water in particular and the status of economic and social rights in the U.S. more generally.
There is plenty of reading material that can be assigned as background for this case study, including the series of letters submitted to the UN Special Rapporteurs, the resulting UN statements, and the reports on the bankruptcy court's bench ruling rejecting a human rights analysis.
For teachers who want to provide additional context while adding some visuals, a new series of two reports on RT America (Russian television) are particularly noteworthy. The RT series Breaking the Set, hosted by alternative journalist Abby Martin, has just posted two 30-minute segments focused on Detroit. In the first segment, titled Extinguishing the Homeless and Shutting Off Human Rights, Martin goes on the scene in Detroit to interview residents about the impact of the water cut-offs, including an extensive discussion with Beulah Walker, a leader of the Detroit Water Brigade. The second segment, titled Bankrupcy Dictatorship and Foreclosed Futures, includes a fascinating driving tour of Detroit's fragile neighborhoods and abandoned factories, and in-depth interviews of two Detroit activists -- Rev. D. Alexander Bullock and Michele Oberholtzer -- who are working to address fundamental inequalities in the city. In both segments, Martin asks repeatedly about the human rights frame, pressing the activists on how such a frame might be meaningful in the Detroit context. The answers are telling and provide provocative fodder for classroom discussion about whether and how human rights matter in the U.S.
Martin closes the second segment by expressing a strong point of view about the national, state and municipal priorities which have allowed Detroit to sink into bankruptcy. A teacher might decide to turn the tape off before that point to allow students to reach their own conclusions. But whether or not you make it to the end, these segments provide many moments that will stimulate discussion and reflection.
Tuesday, December 23, 2014
Unfortunately, Jeannie Suk’s recent New Yorker posting on Teaching the Law of Rape misses the point. She writes that criminal law professors are considering not teaching the law of sexual assault because of student concerns that the topic may be “triggering.” The problem is not whether the topic should be discussed in the classroom. The issue is whether the instructors are creating an appropriate atmosphere for discussion of what for many men and women is a real and devastating event.
The question is not whether the law of rape is taught, the question is how is the law of rape being taught? As Vivian Huelgo, chief legal counsel for the American Bar Association’s Commission on Domestic and Sexual Violence commented, the issue is responsible teaching.
Just because students are voicing concerns that rape and other sexual assault topics can be triggering and re-traumatizing does not justify professors resolving those concerns by eliminating the topics. That may be tempting as an easy solution, but it is an extreme one. Rather, professors must consider their pedagogical approach to sensitive topics and to the impact of their teaching on students.
I, too, have heard student complaints.
Those complaints center on both the insensitivity of the instructors as well as the retriggering of traumatic events. One law student complained that a film shown in his criminal law class depicted a graphic rape while adding nothing to academic debate. That film was shown without warning. Others complain of “discussions” that amount to nothing more than victim blaming and that those comments are neither challenged nor defused by the instructor. Others complain of the failure of the professor to respond to misinformation, such as the myth that sexual assault complainants have a high rate of false reporting.
The academy is not exempt from employees who are either misogynists or, more commonly, lack empathy. Most often, professors lack knowledge on how to address serious and sensitive topics with which they might be uncomfortable. Consequently, some might avoid those topics, as many did post-Ferguson.
Sexual assault has devastating consequences for the survivors. Survivors struggle with loss of a sense of safety, fear of attacks being repeated, high rates of depression and for some, symptoms of post-traumatic stress disorder. Student concerns on how classes on rape are conducted and whether warnings should be given are valid and must be addressed.
In other contexts, professors would offer solutions. For example, would a film or history professor who intends to show “Hurt Locker” in class not consider the potential impact on the one third of his class that are recent returning war veterans? If no warning was given to the class of what was about to happen, would the resulting re-triggering of traumatic symptoms be unexpected? In Trauma and Recovery, Dr. Judith Herman documented the commonality of responses between intimate partner abuse survivors and returning war veterans. For whatever reason, when gender is added to the discussion, the sensitivity factor diminishes.
Unlike the returning veteran, the sexually assaulted student in the criminal law classroom might have her assailant sitting nearby.
Perhaps the real dilemma is the instructor’s lack of information on the frequency of sexual assault. While sexual assault rates cannot be accurately stated as the crime is under-reported,we know that 25-33% of US women report having been sexually assaulted. Nearly that many gay or disabled men report the same. Other marginalized individuals, such as transgender women, report even higher rates of assault along with women of color, particularly immigrant, African American and Native women. Men and women serving in the military, as well as the incarcerated, report frequent sexual assaults. Armed with this information, any professor can anticipate stronger than usual reactions to a discussion of rape.
The result is not perverse. These are necessary conversations.
Solutions are not difficult. Adverse consequences should not result from a student’s election to forego classes that address rape. Professors must be prepared to curb any “jokes” on the topic and quickly debunk and otherwise address any myths and stereotypes that are voiced during discussion. Sensitivity in how questions are framed is essential. While having students argue positions with which they do not personally agree is a sound pedagogical method, classes that address sexual assault may not be the appropriate setting for the method.
The solution is not to forego teaching the law of rape. For many reasons, the information is important for all law students, and especially so for any considering careers in criminal defense or prosecution.
The solution is responsible teaching.