Human Rights at Home Blog

Human Rights Countdown 2015, Day 4!

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.

Related articles

New York agrees to settlement on solitary confinement

Countdown Continues: The Top 3 Human Rights Stories of 2015

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!  

 

 

Human Rights 2015 Top 5 Countdown Continues

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!

 

 

Related articles

Keep Marching: From Civil Rights to Civil and Human Rights

Human Rights 2015 Top Five Countdown

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!

 

 

Supporting Human Rights at Home through Charitable Giving

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.

The Great Divergence: The Death Penalty in Transatlantic Perspective

 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.

Human Rights Hat-Trick

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].

Sanitation: A Distinct Right

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. 

Coming Soon to a Supreme Court Near You

Last week, a Massachusetts state judge ruled that a Catholic high school discriminated against a gay man when it rescinded a job offer upon learning that the candidate's spouse is male.  The decision is believed to be the first in the nation employment discrimination case since the enactment of marriage equality.  The candidate, Matthew Barrett, accepted an offer as food service director.  But when he listed his husband as his emergency contact in completing employment forms, the school withdrew its offer. 

Mr. Barrett is represented by GLAD attorney, Ben Klein.  Judge Douglas Wilkins, in deciding the case, rejected the school's argument of a religious exemption under the Massachusetts' anti-discrimination law.  The school argued that it was justified in not hiring Mr. Barrett because his marriage was inconsistent with the school's religious teachings.  Judge Wilkins based his decision on several findings.  Noting that the school was entitled to control its message, he said that right is limited to those in a position to shape the message, including teachers, ministers and spokesperson. Justice Wilkins noted that Mr. Barrett's position was not in a message shaping catagory and Mr. Barrett has not been an advocate for same sex marriage.  In what is a disappointing ruling for those asking to have sexual identity acknowledged as a protected class, Judge Wilkins noted only that Mr. Barrett was subject to gender discrimination when he was denied employment to which a woman applicant married to a man would have been entitled. As previously discussed in this blog, a protected class analysis has been lacking in the same sex and sexual identity cases that have come before a variety of U. S. courts.

This decision is ripe to wend its way to the U.S. Supreme Court.  Advocates for conservative Catholic organizations, such as the Catholic Action League of Massachusetts, are already voicing dismay over the decision. That statement may be said too lightly.  The group's website headline says that it "condemns" the decision.  I suspect that those advocating for the acknowledgement of sexual identity as a suspect classification would welcome this case being accepted for cert.  The facts are favorable for consideration of the protected class argument that was avoided in Obergefell.  On the other hand, those who believe that this case is wrongly decided may be cautioned against appeal if the consequence might be a ruling that not only affirms the trial court but expands constitutional protections on sexual identity grounds. 

Stay tuned! 

Human Rights MOOCS Now Enrolling

Need a refresher, want to round out your human rights knowledge or even gain a new credential?  Try a MOOC -- "Massive Open Online Course"!  Upcoming courses, now enrolling, include International Human Rights Law in Comparative Perspective, taught by Olivier De Schutter, former UN Special Rapporteur on the Right to Food, and International Law in Action, taught by faculty at the University of Leiden.  Last fall, Amnesty International mounted its first MOOC -- on the right to freedom of expression -- and Stanford  recently concluded its MOOC on international law and women's health and human rights.   More human rights MOOCS are coming on line all the time.  As noted by one blogger, "Human rights education is key to addressing the underlying causes of injustice around the world.  The more people know about their rights, and the rights of others in society, the better equipped they are to protect them."  MOOCS contribute to making this knowledge much more widely accessible, at both introductory and expert levels.

Measuring Transnational Human Rights in U.S. Courts

 

Courtelyou C. Kenney, who recently completed a fellowship at Stanford Law School, has published a fascinating article, Measuring Transnational Human Rights, in the December 2015 issue of the Fordham Law Review.  Using quantitative methods, she evaluates broad claims regarding the successes or failures of transnational human rights claims in U.S. courts and finds that the reality lies somewhere in between.  The abstract is below.

 
  Abstract:     

Over the past three and a half decades, hundreds of transnational human rights civil suits — i.e., suits seeking monetary compensation for atrocities committed abroad ranging from torture and extrajudicial killing to forced labor and human trafficking — have been filed in the United States. Exhaustive qualitative research chronicles plaintiff “successes” and “failures” as defined by how frequently plaintiffs win, the magnitude of judgments and settlements they obtain, and the extent to which judgments and settlements are enforced. The prevailing wisdom is that while some cases have proven runaway successes along these axes, in general, transnational human rights suits constitute “a modest enterprise akin to personal injury or mass tort suits.” Certain commentators argue that hostility stemming from “foreignness” and reliance on international law is responsible for this underwhelming performance and, in particular, the low win rate in transnational suits. Commentators point to “avoidance doctrines” — such as personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality — perceived as the most common means of shunting transnational cases as evidence of courts’ “isolationism.” Other thinkers take the argument a step further, claiming hostility toward international law portends the demise of human rights in federal courts following the U.S. Supreme Court’s 2013 decision Kiobel v. Royal Dutch Petroleum Co. (Kiobel II) that fundamentally changed the landscape against which these suits are litigated. But no scholar to date has undertaken a systematic, quantitative examination of such conclusions to determine whether the numbers actually bear them out.

This Article fills that gap. It collects a new dataset of all cases and opinions filed from 1980 to the present under the two predominant human rights civil statutes to scrutinize these claims and lay the groundwork for future quantitative analysis. The data support three findings. First, the transnational human rights enterprise is modest both in terms of how frequently plaintiffs prevail and how much money they are entitled to and actually do obtain, but not as modest as believed. Second, any modesty is not evidence of courts’ isolationism. The real doctrines most commonly employed to end civil suits prior to Kiobel II suggest that courts do not use domestic law avoidance mechanisms designed to prevent consideration of, and de facto shun, the application of international law. Rather, courts apply international law, including human rights law, but are conservative in their interpretation of it — protecting only certain types of harms committed by certain types of actors. Third, a core group of claims has weathered significant doctrinal shifts over time. Plaintiffs bringing these claims are poised to circumvent Kiobel II and are on track to be as “successful” or “unsuccessful” as ever.

 

The Right to Water and Sanitation for Informal Settlements

A case pending before the European Court of Human Rights, Hudorovic and others v Slovenia, provides an opportunity for that Court to clarify the clarify the scope of protection afforded by the European Charter of Human Rights in contexts of tolerated informal settlements characterized by unsanitary conditions.  The case may have resonance for homeless  communities facing similar challenges in the United States. 

At issue is the treatment of an informal, but longstanding, Roma settlement in Slovenia.  As explained in the court's summary of the matter,

    "The applicants live in a caravan and have no access to basic infrastructure such as water, sewage, sanitation and electricity.     They collect water from the cemetery or the nearby polluted water stream or else they acquire it from other houses.     Moreover,  due to the lack of sanitation services, the applicants have to use the area around the caravan for defecation;     hence, they cannot maintain their privacy, dignity or an appropriate level of hygiene, all of which contributes to frequent     health problems."

The case passed the initial admissibility threshold and the Court asked the parties to address whether positive steps to provide drinking water and sanitation to the community are required under Articles 3, 8 or 14 of the European Convention on Human Rights.

In August 2015, the European Roma Rights Center intervened in the case to provide information about similar treatment of Roma camps throughout Europe, and to set out its analysis of the affirmative obligation to provide water and sanitation access.  The Human Rights Centre of Ghent University also submitted written comments, asking the Court to use the case to elaborate the scope of positive duties in the field of equality and non-discrimination.

The question of whether there is an affirmative obligation to provide water and sanitation is a persistent one, with wide relevance to homeless populations worldwide.  This is a case worth watching, both for its significance in Europe and for its relevance to the U.S.

Important New Research on Torture and Human Rights

Two important new publications address aspects of torture: its effectiveness as an investigative technique, and the impact of treaties barring torture. 

First, Professors Cosette Creamer and Beth Simmons have posted a new article on SSRN:  "Do Self-Reporting Regimes Matter? Evidence from the Convention Against Torture."  Here's the abstract:

Abstract:      

Self-reporting on implementation is common in international regulatory agreements, yet we know almost nothing about how (or whether) it works. We argue self-reporting provides information for international and domestic audiences, with the potential to create pressure for agreement compliance. Using original data on the quality and responsiveness of reports submitted to the Committee Against Torture, we test for the influence of the review process on the pervasiveness of torture. Adopting a dynamic approach to strengthen our ability to draw inferences, we find that the review process in fact does help to reduce the incidence of torture in reporting countries. Moreover, local media attention spikes during the review process, consistent with a domestic mobilization mechanism. This is the first study to evaluate the effects of self-reporting on torture outcomes. Since many international agreements are based on self-reporting, the results have broad significance for international relations.

 

Second,  Harvard University Press has published a new book, Why Torture Doesn't Work, by Shane O'Mara.  According to the publisher,

"Torture is banned because it is cruel and inhumane. But as Shane O’Mara writes in this account of the human brain under stress, another reason torture should never be condoned is because it does not work the way torturers assume it does.

In countless films and TV shows such as Homeland and 24, torture is portrayed as a harsh necessity. If cruelty can extract secrets that will save lives, so be it. CIA officers and others conducted torture using precisely this justification. But does torture accomplish what its defenders say it does? For ethical reasons, there are no scientific studies of torture. But neuroscientists know a lot about how the brain reacts to fear, extreme temperatures, starvation, thirst, sleep deprivation, and immersion in freezing water, all tools of the torturer’s trade. These stressors create problems for memory, mood, and thinking, and sufferers predictably produce information that is deeply unreliable—and, for intelligence purposes, even counterproductive. As O’Mara guides us through the neuroscience of suffering, he reveals the brain to be much more complex than the brute calculations of torturers have allowed, and he points the way to a humane approach to interrogation, founded in the science of brain and behavior.

Torture may be effective in forcing confessions, as in Stalin’s Russia. But if we want information that we can depend on to save lives, O’Mara writes, our model should be Napoleon: “It has always been recognized that this way of interrogating men, by putting them to torture, produces nothing worthwhile.”

Read more about O'Mara's book here.

 

 

 

Related articles

Creamer & Simmons on Self-Reporting & the Convention Against Torture

Hate Speech, Education for Tolerance, and Counter-Speech

By Lauren E. Bartlett

A few days ago I listened to Ted Cruz talk about the difference between Islamism and the Islamic faith, and “carpet bombing” in response to ISIS.  Earlier this week I saw my first Trump for President shirt at a local mall and the next day Donald Trump called for a ban on Muslims entering the U.S.  Also, along my drive to work through rural Northwest Ohio, I pass no fewer than five Confederate Flags.  I acknowledge that terrorism is extremely frightening, as are perceived threats to your way of life, but this bombardment of racism is offensive, deeply saddening, and pisses me off.   

 Some part of me wants to argue that all of that is racist hate speech and should be banned, but I believe that argument should fail from the start.  I wholeheartedly agree with U.N. High Commissioner on Human Rights Prince Zeid who said that “Trump is grossly irresponsible for stoking Islamophobia and hatred”, and notice how carefully he chose the word “stoking” as opposed to “inciting”.  But that is as far as I actually want to go in terms of limiting this speech.  True to my U.S. legal training, I love our broad interpretation of the First Amendment.   I am a firm believer in the fundamental right to freedom of opinion and expression as necessary for transparency and accountability to further each and every human right.  If I was not presented with all of the Confederate Flags, I may not have realized that I live and teach in one of the most racist parts of the U.S.  If I did not hear what the presidential candidates really think about my Muslim friends, perhaps I would vote for them.  If we do not hear the true opinions of others, it is easy to get lulled into thinking that there are no problems. 

The U.N. Committee on the Elimination of Racial Discrimination stated in its General recommendation No. 35 on Combating racist hate speech that “especially effective antidotes to racist hate speech include education for tolerance, and counter-speech.”   That is my plan.  I am going to fill the void and make sure that counter expressions in support of freedom from discrimination are prolific, in my own community. 

I am going to talk about the Confederate Flag in my classes when we tackle lawyering across cultural differences.  I plan to discuss the Flag as a war memorial to fallen soldiers, as a symbol of States’ rights and autonomy, but also as a symbol of racism, denial of slavery (comparing our treatment of denial of slavery with denial of genocide laws in Rwanda and other countries), and the anti-civil rights movement (I may use this radio show released a couple of weeks ago to introduce the topic).  During the same series, we will also talk about Black Lives Matter, and anti-Muslim rhetoric and its effects on Muslim Americans among us.  I may get some ideas from the U.S. Holocaust Memorial Museum’s Lesson Plans on propaganda and otherwise.  Facilitating this conversation among my majority conservative law students may push my buttons and stretch my patience, but isn’t it my job as an educator to demonstrate respect and understanding?  To show respect and provide space for dignity for all, lawyers need to be able to demonstrate tolerance with our clients—tolerance to be able to discuss different cultural beliefs, tolerance of misunderstandings, and even racism. 

I have already reached out to each of my Muslim students to tell them that they are awesome, that lunch is on me any time they wish it, and that I will serve as a resource if they would like.  I am trying to support an event here on campus to provide support to the many Muslim students on campus, and I am going to register voters for the upcoming elections.  Let me know in the comments section if you have any additional ideas for me and/or others.  

 

Anti-Female Statutes Deny Women Their Human Rights

Following up on Cindy Soohoo's post earlier this week, this post examines the ongoing denial of autonomy to women.  The denial is promoted by the federal and state governments. 

In yesterday's post, Prof. Soohoo mentioned a particularly brave abortion provider in Alabama.  This past week, representatives of the Working Group on Discrimination Against Women in Law and Practice visited Birmingham.  As reported by Amy Yurkanin, Committee members made the stop to explore abortion restriction, criminalization of drug use during pregnancy and restrictions on contraception.

The committee noted that women are denied access to reproductive choice not by directly outlawing abortion, but by making access so restrictive as to create virtual abortion bans. Yurkanin quoted Frances Raday of Israel saying "America looks as though it is joining the regional plague. They are doing it by making abortion not accessible instead of illegal."  This term, the Supreme Court will address restrictions that lead to abortion clinic closures in the case of Whole Woman's Health v. Cole.

As Yurkanin further reported, "Lucia Hermo of the ACLU of Alabama described the laws that have been passed to restrict abortion, including one that would assign lawyers to the fetuses of pregnant teens seeking abortion without parental consent. That law is under review by a federal judge."  While Alabama seems eager to appoint counsel for a fetus an underage teen seeks to have an abortion, should that child be born, the state will not provide counsel for either the child or the child's mother when protection from an abusive father is sought or when the child is in the middle of custody dispute.   

The widely accepted substitution of the medically correct term "fetus" for "unborn child" has created the climate where state prosecutors manipulate laws designed to protect living children into tools of female prosecution. Both Tennessee and Alabama are enforcing their chemical endangerment of a child statutes by arresting and prosecuting women who use drugs during pregnancy.   In Wisconsin, a similar law has been in effect since 1998, and is used in cases where pregnant women with a history of drug use are arrested and confined against their will.  In a phrase that rejects treating all with dignity, those women are referred to as "cocaine moms."  The enforcement against pregnant women discourages them from disclosing past drug use and seeking help for current addictions.

We have sanitized the discussion.  Many hold sincere religious beliefs that are the source of their moral opposition to abortion.  But those beliefs do not justify laws that result in disparate gender impact and does not excuse legislators who lack the courage to oppose legislation based in the promotion and imposition of  those beliefs.  Likewise, community religious beliefs do not eliminate the obligation of lawyers and judges to begin any analysis with the gender discriminatory impact of laws that purport to promote health.  Reproductive rights restrictions and other legislation targeted toward women, and in particular mothers, are not gender neutral and must be redefined in the broader framework of the ongoing oppression of women.  Any other rationale is a disguise.

 

 

The Human Right to Personal Security: Guns and Friedman v City of Highland Park

Article 3 of The Universal Declaration of Human Rights addresses the right to personal security.  At the moment, many Americans believe that our government is not sufficiently focused on making its residents secure, at least when it comes to the risk of gun violence. 

This week the U.S. Supreme Court was the first branch to take effective steps toward addressing individual security. And those steps were noted in what the Court refused to do.

The U.S. Supreme Court refused to hear a case challenging a Chicago suburb’s ordinance banning the possession of assault weapons.  According to a NY Times article, the ordinance specifically bans AR-15s and AK-47s. But the ordinance also generally bans possession of "assault weapons, defining them as semiautomatic guns that can accept large-capacity magazines and have features like a grip for the nontrigger hand. Large-capacity magazines are those that can accept more than 10 rounds." Since a federal assault weapons and high capacity magazines ban expired in 2004, the nation has been plagued by mass murders.  The Highland Park ordinance was enacted in response to the Sandyhook slaughter and Highland Park's opposition to the court's granting cert was based on the danger posed by assault weapons to the general public, exemplified by notorious recent public mass killings.  Relying on language in Heller that no right is unlimited, the Town argued that because only a certain category of weapons were banned under the ordinance, no violation of the second amendment existed.  

Those challenging the ordinance relied upon the right to protect self and family members, as well as Heller's affirmation of the right of individuals to keep handguns in their homes, as encompassing the sort of automatic weapons prohibited in Highland Park.  Two chilling statements are found in the questions posed in petitioners' brief requesting cert.  The first is that the automatic weapons banned by Highland Park are among the most popular weapons in the United States and secondly, that the ammunition magazines in question make up over half of the nation's privately owned ammunition stock.  

While the Petitioner argues that the ordinance bans responsible, law-abiding adults from possession of automatic weapons, the petitioners also define the problem.   To date, the government has been unwilling to impose screening requirements sufficient to determine who is responsible and law-abiding.  To do so adequately would require mental health screening and certainly take much longer than 3 days, a time limit beyond which Congress has been unwilling to extend for background checks.

Apparently the Supreme Court has recognized the dilemma.  In denying cert the Court has also signaled that it is not willing to affirmatively wade into the gun controversy at a time of intense social debate.  But in refusing to grant cert, the Court has weighed in. 

 

Bringing Human Rights Education to US Classrooms

December 10, Human Rights Day, commemorates the UN General Assembly's adoption of the Universal Declaration of Human Rights on December 10, 1948.  A guiding force in defining human rights, the Declaration's Article 26(2) addresses human rights education, providing:

    Education shall be directed to the full development of the human personality and to the strengthening of     respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and     friendship among all nations, racial or religious groups, and shall further the activities of the United Nations     for the maintenance of peace.

Human rights education in the U.S. has been limited at best.  Many NGOs and faith-based groups such as Amnesty International and the American Friends Service Committee engage their constituents in human rights education, but the Universal Declaration is intended to speak to government institutions.  A handful of school systems, such as Minnesota's, have developed material for school-based human rights education, but few US students are exposed to this material before high school, or even college or graduate school!  More typical is the conclusion reached by Idaho's Wassmuth Human Rights Center when they began examining the issue: "Trends in Idaho will make it extremely difficult to establish human rights education as a separate subject area for which distinct curriculum standards would be appropriate."

A new book, edited by two professors at the University of San Francisco, aims to respond to the UDHR's challenge.  According to the publishers, Bringing Human Rights Education to US Classrooms, edited by Susan Katz and Andrea Spero, "presents ten research-based human rights projects powerfully implemented in a range of U.S. classrooms, from elementary school through community college and university. In these classrooms, the students—primarily young people of color who have experienced or witnessed human rights abuses such as discrimination and poverty—are exposed for the first time to thinking about their own lives and the world through an empowering human rights lens. Unique in integrating theory and classroom practice, and in addressing human rights issues with special relevance for communities of color in the US, Katz and Spero provide indispensable guidance for those studying and teaching human rights." 

For more resources on human rights education, see Human Rights Education Associates, Minnesota's Human Rights Resource Center, the Connecticut Dodd Center's human rights lesson plans, and Idaho's Wassmuth Center for Human Rights.

 

Fisher v. University of Texas at Austin, and the Relevance of Human Rights

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.

Abortion Providers Are Human Rights Defenders

 

By Cynthia Soohoo 

Has anti-choice propaganda led to an increase in violence and attacks on abortion clinics?  Following last week’s tragic attack on the Colorado Springs Planned Parenthood, the news has focused on the impact of videos released by the Center for Medical Progress and political rhetoric targeting Planned Parenthood.  Meanwhile, the New York Times and Washington Post have published pieces trying to figure out what motivated Robert Dear, Jr. 

But, regardless of how the media depicts this latest act of violence, it’s clear that there’s a long and well-documented history of attacks on abortion clinics and providers.   The Colorado shooting should remind us of the dedication and bravery of abortion providers who daily face intimidation, threats and harassment designed to prevent women from accessing health services and rob them of their right to make their own reproductive rights decisions.  For their work, abortion providers are often stigmatized, but they should be acknowledged as human rights defenders.

In an op ed in the New York Times, Dr. Willie Parker describes how he gave up his OB practice in Chicago and moved to Alabama to provide abortions full-time.  He explains “[i]n public health, you go where the crisis is. If there is an outbreak and you have the ability to relieve suffering, you rush to the site of the need. This is why, a year and a half ago, I returned to my hometown, Birmingham, Ala., to provide abortions.” 

Despite physical threats and threats to their livelihood, abortion providers remain committed to providing care to women.  A recent article in Rolling Stone profiled a doctor who was bombarded with harassing calls and “veiled threats online (‘I wonder if someone will shoot the new provider...’).”  She eventually gave up her family medicine practice after anti-choice activists picketed her practice and pressured the building where the practice was located. “I wasn't about to let awful tactics like that work, because that would just encourage them to keep doing that to others. So the ultimate effect was that I became a full-time provider of abortion care.” 

Mother Jones describes the heroic efforts of abortion providers to keep clinics open in the face of new and frequently arbitrary requirements and regulations imposed on them by anti-choice legislatures each year.  And Pro Publica describes the constant barrage of personalized harassment providers face, including picketing of private homes and the targeting of families for harassment.  To avoid harassment and threats of violence, providers register their homes in their spouses’ names; they change their path to work; they buy bullet-proof vests.  All to ensure that women are able to make their own reproductive health decisions.

The international community has recognized that medial and health services professionals are human rights defenders when they provide services to ensure that women can exercise their reproductive health rights.  In 2010 the Special Rapporteur on Human Rights Defenders, a U.N. human rights expert who monitors and speaks out about attacks on human rights defenders, stated that “[i]n certain countries . . .  health professionals, as a result of their work, are regularly targeted and suffer harassment, intimidation and physical violence.” The report recognizes that attacks have led to “killings and attempted killings of medical professionals.”

Last month, the Special Rapporteur on Human Rights Defenders, joined by five other human rights experts, issued a statement emphasizing the need to protect sexual and reproductive rights defenders in the Americas.  The statement recognized that sexual and reproductive rights defenders “face the same risks as many other activists, but they are further exposed to retaliation and violence because they challenge power structures based on patriarchy and deeply-held gender stereotypes about the role of women in society.”

For their commitment to women’s rights and the challenges that they face to provide services, abortion providers should be recognized as human rights defenders.  Let’s change the dialogue and recognize them as the heroes they are.

The Human Right to Literacy

In a new book, From Small Places: Toward the Realization of Literacy as a Human Right, Jo-Anne Wilson-Keenan brings to bear her long history of literacy work in Springfield, Massachusetts and asks the question, "What would happen if people across the world viewed education and literacy as human rights?"  In doing this, she builds on international work on the human right to literacy.   Indeed, the UN stresses a close relationship between literacy and peace, and annually designates September 8 as International Literacy Day.  

Illiteracy in the United States is a serious problem, and the Literacy Foundation reports that 44 million American adults are not able to read a simple story to their children.  In looking at US literacy challenges through a human rights lens, Wilson-Keenan challenges us to take on the hard work of promoting human rights in "small places, close to home."