Thursday, April 28, 2016
Last week, the Carnegie Corporation announced this year's 33 Carnegie Fellows, winners of the so-called "Brainy Awards." The good news, as these awards reveal, is that many of the best brains in the country are focusing their work on issues that take human rights seriously here at home. Leading the way is Margaret Burnham, professor at Northeastern University School of Law and founder of the Civil Rights and Restorative Justice Project. A long-time civil rights advocate, Burnham has spent recent years developing research methods to uncover racially-motivated cold cases -- murders, lynchings, and other tragic crimes -- from the mid-twentieth century US. Having identified the cases and underlying facts, she and Northeastern Law students work with families and communities to bring some element of restorative justice. With her award, Burnham will create a digital archive to preserve information about these cases and individuals into the future.
Other awardees include Josh Dubler, a professor of religion at the University of Rochester who asks, "why not prison abolition?" Thomas Weiss, a professor at the CUNY Graduate Center, will develop ideas to make the United Nations more effective. Jains Hainmueller, a political science professor at Stanford, will conduct a quasi-experimental study on what works to promote refugee integration in the US and Europe. Also on the issue of human rights at home, but from a different orientation, Duke Law Professor Curtis Bradley, a long-time critic of judicial references to foreign law, will conduct a project on democratic accountability and foreign comparative law.
All in all, a brainy bunch, whose work makes clear that implementing human rights in the US remains a vital cause.
Wednesday, April 27, 2016
Last week the federal appeals court for the 4th Circuit ruled that a Virginia student could sue his school board for prohibiting him from using the bathroom matching his gender identity. The Court found that the prohibition imposed upon Gavin Grimm violated Title IX. The ruling, in what is generally considered a conservative state, may have influence in other states that are resistant to endorsing bathroom use by gender identity. Among the states struggling to prevent gender identity from deciding which bathroom is used are: South Dakota, Illinois, Texas and Mississippi. A pathway for the issue to arrive at the US Supreme Court perhaps?
And let's not forget North Carolina where activists against the newly enacted law restricting the rights of LGBT individuals were arrested for refusing to leave a state building where a demonstration was taking place. However, the arrests could have been a major breakthrough for the activists. Whether intended or not, the situation is not without its irony, if not humor. Mara Keisling, director of the National Center for Transgender Equality, was among those arrested. Not only did she describe the arresting officers as respectful, Ms. Keisling reported that transgender men were put into cells housing males while transgender women were housed in the women's cell. Also, at the jail, arrestees used bathrooms that matched gender identity.
All to prove that you cannot make this stuff up.
Tuesday, April 26, 2016
by By JoAnn Kamuf Ward, Lecturer-in-Law, Columbia Law School & Associate
Director of the Human Rights in the U.S. Project at the Law School's Human Rights Institute
Approximately one in every three U.S. adults has a criminal record – roughly the same number of people that hold a four year college degree. The impacts are staggering. The ongoing punitive effects of a criminal record permeate almost every aspect of life, and severely hinder the efforts of individuals who have “served their time” to make a fresh start.
Upwards of 600,000 individuals will be released from prison this year, only to face a complex web of restrictions on their ability to access housing. Under federal law registered sex offenders and individuals convicted of manufacturing methamphetamine are prohibited from living in federally funded housing. In addition to these two categorical bans, federal law leaves broad discretion to property owners and managers to screen potential tenants. An array of state and local laws and policies also govern access to municipal housing, and can include both vague and broad standards for reviewing applicants. The net result is that individuals with criminal records are often excluded from consideration for reasons untethered to legitimate safety concerns or their ability to pay the rent. Depending on where you live, there may be categorical bans related to misdemeanors, bans on accepting tenants until they have been out of incarceration for over a year, and prohibitions on accepting tenants who engaged in “immoral conduct.” Additionally, in many jurisdictions, arrest records have served as the basis for denying housing to individuals and as grounds for evictions, despite the fact that an arrest is not a reliable indicator of criminal conduct. The practice was so widespread that HUD released guidance last year to underscore that reliance on arrest records is out of step with the Fair Housing Act.
A criminal record, and even an arrest record, can serve as a kind of scarlet letter, and has consequences well beyond housing. Felon disenfranchisement is one example from the political sphere. Criminal records can also impede access to education. Barriers to employment, too, are well-documented. Taken together existing obstacles make re-entry and reintegration an uphill battle.
Yet, there are signs that change is on the horizon as Michelle Alexander, the author of The New Jim Crow, stated in a great interview this weekend. This hope emanates from the work of the communities who have faced barriers to achievement and inclusion for decades and are fighting to remove them. As Alexander reported:
Formerly incarcerated people are organizing for their basic human rights — the right to work, the right to shelter, the right to health care and drug treatment — basic human rights that we should be able to take for granted in a nation as wealthy as ours, and a nation that advertises ourselves to the rest of the world as the land of the free and a place of opportunity, equality, and inclusion.
This organizing has had tangible results. Just last week, Virginia Governor Terry McAuliffe took executive action to restore voting rights for convicted felons in the state, reflecting a broader trend to ease restrictions on political participation for people with criminal records. The national movement to “ban the box” has led public and private sector employers to limit the use of criminal records in hiring, as detailed in a past blog. As a result of the momentum around these efforts, “ban the box” has become synonymous with the employment context, but the housing arena has seen progress as well.
A number of cities are on the forefront of banning the box in housing. Newark, New Jersey was a first mover. The city’s 2012 ordinance places limits on when a landlord can inquire about criminal record, and lays out the factors that should govern the individualized assessment of potential tenants, including evidence of rehabilitation. In 2014, San Francisco followed suit, with a law that applies to city-subsidized affordable housing. Legislation has been introduced in Los Angeles, and Washington, D.C.
The federal government has also taken intentional steps to improve access to housing for formerly incarcerated individuals and their families. In November of last year, the President announced a series of measures to ease the burden of re-entry. Key components on the housing front are new funding to support permanent housing, and the guidance on arrest records noted above.
This month, HUD went a step further and issued new guidance on the ways that the Fair Housing Act (FHA) protects individuals with criminal records from discrimination:
While having a criminal record is not a protected characteristic under the Fair Housing Act, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another (i.e., discriminatory effects liability. Additionally, intentional discrimination in violation of the Act occurs if a housing provider treats individuals with comparable criminal history differently because of their race, national origin or other protected characteristic (i.e., disparate treatment liability).
The guidance makes clear that blanket bans on tenants with a criminal background violates the FHA, and reiterates that arrest records alone are not proper basis for rejecting a housing applicant. This 2016 guidance also lays out the type of balancing test that landlords should apply to assess whether an applicant with a criminal record can be justifiably excluded from tenancy. It calls on landlords to evaluate a range of factors on a case-by-case basis: the nature and severity of the underlying crime, the time lapsed since the crime, and what the applicant has done since the conviction. It also places the onus on landlords to prove that a decision to exclude an applicant is justified under the circumstances (i.e. “necessary to achieve its substantial, legitimate, nondiscriminatory interest”) if the decision is challenged.
It is well documented that adequate and affordable housing is integral to economic viability for individuals and communities. It is time to remove legal impediments to basic economic, social and political rights. Developing policies that foster inclusion for those that have already “done their time” is a step in the right direction. Impacted communities are leading the charge for reform. Policymakers need to take action.
Monday, April 25, 2016
Sunday, April 24, 2016
The United States is one of a dwindling number of countries worldwide that lack a National Human Rights Institution. It is easy to imagine the niche that a US NHRI would fill -- from monitoring the human right to potable, affordable water to coordinating follow-up on US compliance after UN reviews.
A new article by Katerina Linos and Tom Pegram, titled Architects of Their Own Making: National Human Rights Institutions and the United Nations, provides insights into how NHRIs maintain accountability through a transgovernmental system of independent monitoring. This system has lessons not only for US supporters of an NHRI, but also for those interested in exploring ways of strengthening other human rights institutions, such as human rights cities.
Here is an abstract of the article, forthcoming in the Human Rights Quarterly:
Abstract: The United Nations promoted a novel idea in the 1990s: National Human Rights Institutions (NHRIs). Their codification in the Paris Principles and subsequent UN General Assembly endorsement precipitated a global norm cascade. We demonstrate that NHRIs have spread rapidly. Furthermore, we document that structures established after UN endorsement had just as many institutional safeguards as earlier NHRIs. What explains this compliance pull? A transgovernmental NHRI network operating a system of independent monitoring of NHRIs is an important part of the explanation. We examine how this network has interacted with the UN system to create incentives for governments to strengthen NHRIs.
Thursday, April 21, 2016
by Sital Kilantry, Cornell Law School
American anti-abortion advocates invented race-selective abortion bans and they are based on the absurd idea that minority women are racially discriminating against their own fetuses.
You may have never heard of the word PRENDA before.
But the U.S. House of Representatives Judiciary Committee held a hearing on it on April 14.
PRENDA stands for the Prenatal Nondiscrimination Act of 2016.
If enacted, the bill would subject medical professionals to up to five years imprisonment for performing an abortion on a woman who wants to abort the fetus because of its race or sex. A similar bill was defeated in the House of Representatives in 2012.
Sex-selective bans have been introduced in over half of the state legislatures in the United States and have been passed by eight of those legislatures.
But in addition to banning sex-selective bans, this federal bill reaches further, banning race-selective abortions as well. Arizona is the only state to ban race-selective abortions. Eight other states and the United States Congress have considered and rejected race-selective bans.
The rationale behind sex-selective abortion bans is tied to countries such as India and China.
It is widely known that there is a male-surplus in India and China and it is attributed to sex selection. India has attempted to curb the practice by prohibiting medical professionals from revealing the sex of the fetus and several countries ban sex selection through IVF and other pre-conception or pre-implantation methods.
But PRENDA only restricts abortion.
In the United States, reproductive rights advocates have long argued that sex-selective abortion bans are “wolves in sheep’s clothes.” I have also authored and co-authored a number of academic papers on sex-selective abortion bans in the United States.
While sex-selective abortion bans have received much attention, fewer people have written about race-selective abortion bans. American anti-abortion advocates invented race-selective abortion bans. Supporters argue that they are designed to address the disproportionate rate of abortion among minority communities. They believe abortion providers target minority women for abortion. Catherine Davis, on behalf of the National Black Pro-Life Coalition, testifying in the subcommittee hearing argued that PRENDA was needed to “hold Planned Parenthood accountable.” The reality is that instead of addressing the real reasons for the disproportionate rate of abortions among some minority groups, PRENDA accuses minority women of racially discriminating against their own fetuses. This, as Rep. John Conyers (D-MI) put it in his statement, “is absurd on its face.”
The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, this analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture.
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 massive numbers of “missing women” in the United States. They then apply the same logic to race and argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.
In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. But supporters of race-selective abortion bans believe that it is the racist views of abortion providers that cause a disproportionate number of abortions among minority communities. Yet, the text of the bill prohibits medical professionals from performing an abortion if the patient is seeking it on the basis of “color or race of the child, or the race of a parent of that child.”
It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. Yet, PRENDA rests on exactly that assumption. The point that the concept of “race” is itself is socially constructed is beyond the scope of this piece.
It is true that the among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Some point out that the disproportionately higher rates are due to a lack of access to and failure to use contraception.
This imbalance is an important concern that should be studied, discussed and solved.
PRENDA is not intended to do that. Instead, as Miriam Yeung, executive director of the National Asian Pacific American Women's Forum testified it will lead to racial profiling and will strain the doctor-patient relationship.
Wednesday, April 20, 2016
Guest blogger Erin Smith of the Columbia Law School Human Rights Institute posts today on a new resource on how U.N. reviews of U.S. human rights are relevant to state and local governments. Erin writes:
In the last three years, the United States has undergone reviews of compliance with the core international human rights treaties it has ratified—the Race Convention, the Torture Convention, the Covenant on Civil and Political Rights, and the protocols to the Children’s Rights Convention addressing child soldiers and child trafficking and child pornography—as well as the more recently established Universal Periodic Review (the UPR) at the Human Rights Council. These reviews culminated in an array of recommendations for improving human rights protections in the United States, addressing many issues squarely within the jurisdiction of state and local governments, including housing, employment, criminal justice, and the rights of children.
While many state and local governments actively work in these areas, including through the efforts of mayors, city councils, and human rights agencies, the human rights frame helps governments to more effectively and proactively identify and address discrimination and inequity, including policies or programs that may not be intentionally discriminatory but that nonetheless have a disparate impact.
To foster greater awareness of the human rights recommendations, and their relationship to the work of human rights agencies, Columbia Law School’s Human Rights Institute published a new resource this week. This resource summarizes the recent human rights recommendations that are most pertinent to the work of state and local human rights agencies. It provides examples of some of the ways state and local agencies can use these recommendations in their work and can be read in conjunction with a 2011 toolkit on the UPR.
Federal compliance with human rights norms—as well as federal support for state and local governments to engage in human rights work—is key, as the recent U.N. reviews emphasize. And the federal government has been taking some action in line with recommendations from treaty bodies and the UPR, including in the areas of criminalization of homelessness, employment, and criminal justice.
The federal government is also working to include both civil society and state and local governments in its implementation efforts. Indeed, earlier this year, the State Department announced its initial steps toward more coordinated implementation of U.N. recommendations, announcing a new structure of working groups to address the recent recommendations:
- Civil Rights and Discrimination
- Criminal Justice
- Economic, Social, and Cultural Rights, Indigenous Peoples, and the Environment
- National Security
- Immigration, Migrants, Trafficking, Labor, and Children
- Treaties, International Mechanisms, and Domestic Implementation
Led by federal agencies and departments, the working groups are slated to meet with civil society at least once a year, and their role is reportedly to review the UPR and treaty body recommendations and to identify actions the U.S. is taking to respond, as well as further opportunities to do more. The first meeting, scheduled for April 27th, will focus on Treaties, International Mechanisms, and Domestic Implementation. The State Department, charged with leading the group, has invited civil society as well as state and local government representatives to participate in the meeting.
State and local governments could offer a vital contribution to these working group dialogues. As the U.S. has repeatedly acknowledged, state and local governments stand at the “frontlines” in the fight to ensure human rights are respected and protected.
Significant progress in strengthening the U.S. human rights record will require federal, state, and local governments to establish greater coordination and cooperation around human rights, through the UPR working groups and beyond. This new resource offers a starting point for these efforts.
Tuesday, April 19, 2016
A recent Note in the Harvard Law Review examines the differences between US and European judicial treatment of international law. In particular, the Note analyzes two recent constitutional court decisions, Kadi v. Council of the European Court of Justice (ECJ), and Judgment 238/2014 of the Constitutional Court of Italy (CCI), contrasting the approaches there with, for example, the US Supreme Court's decision in Medellin v. Texas. The Note concludes that although European courts generally share the US' approach to constitutional supremacy, there are important differences. In particular, "whereas U.S. jurisprudence makes no distinction between different constitutional provisions vis-à-vis international law, the CCI and ECJ have designated fundamental rights as 'extraordinary' constitutional principles that -- unlike 'normal' constitutional principles, necessarily supersede constitutional norms."
Monday, April 18, 2016
by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law Columbia Law School
How can the United States truly universalize the new global anti-poverty agenda, and ensure its impact at home? With its pledge to “leave no one behind” and its grounding in human rights, the 2030 Sustainable Development Agendaoffers important opportunities for U.S. human rights advocates to deepen their work and measure progress on profound economic, social, and environmental challenges within the United States. The Agenda provides the United States government, too, with a significant opportunity to address issues of equality and poverty in the U.S., through the lens of human rights. This week, a group of human rights NGOs urged five principles to guide the U.S. government’s plan for domestic implementation, follow up, and review of the 2030 Sustainable Development Agenda.
- Human Rights Integration
In a significant improvement over the Millennium Development Goals, the Sustainable Development Goals (SDGs) are grounded in human rights, including the Universal Declaration of Human Rights and international human rights treaties. Human rights should thus form a basis for the U.S. government’s understanding of its SDG commitments and guide its overall implementation, follow up, and review of the Goals. In doing so, the United States can draw on resources developed by the Danish Institute for Human Rights and the UN Office for the High Commissioner for Human Rights.
Furthermore, in developing national level indicators for measuring progress on the SDGs, the United States should take into consideration the recent recommendations it has received from the human rights treaty bodies, the UN special procedures, the Universal Periodic Review, and the Inter-American Commission on Human Rights. By using these human rights recommendations as a basis for creating national indicators, the United States can measure its progress towards addressing recognized domestic human rights concerns.
- Participation and Transparency
The 2030 Agenda makes clear that implementation of the SDGs should be based on the principles of participation, inclusion, and transparency. Civil society should play a crucial role in a follow up and review process that is “open, inclusive, participatory and transparent for all people.”
To operationalize the principles of participation and transparency, the U.S. should engage in robust and meaningful consultation with civil society to both develop national indicators for the SDGs and the national process for reporting and review. And it should offer a strong role for civil society in data collection and in the reporting and review process itself. As in the treaty review and UPR processes, the United States should offer a formal role for civil society to offer perspectives on whether and how the U.S. is making progress in achieving the SDGs by providing ample space for civil society to present data, including citizen-generated and qualitative data, for consideration during the national reporting and review cycle.
- Non-discrimination and disaggregated data
To adhere to the SDG’s mandate to “leave no one behind,” and to assess gaps in implementation, the United States should ensure that national indicators call for the collection of disaggregated data. National indicators should call for data to be disaggregated according to gender, race, income, ethnicity, national origin, disability, age, and by urban, rural, metro areas, as well as other factors linked to inequality and rights violations.
- Subnational outreach and implementation
The SDGs are meant to be implemented at every level of government, including the subnational level. Goal 11 calls for inclusive, safe, resilient, and sustainable cities. As with the human rights treaties, state and local governments are essential partners in implementation of the SDGs. Cities such as Baltimore and New York have already taken up the mantle. The federal government can further these efforts and encourage others by engaging in education and outreach to state and local officials about the U.S.’ commitments under the SDGs, and engaging state and local officials in national and local indicator formation, as well as reporting and review.
- Private sector engagement
The 2030 Sustainable Development Agenda recognizes the role of the private sector in implementation of the SDGs.Core to its implementation of the SDGs, the United States should seek to measure whether and how private companies conduct themselves consistent with their human rights responsibilities, including as articulated by the UN Guiding Principles on Business and Human Rights. The United States should incorporate a regular review of the sustainable development impacts of large businesses into its national reporting and review process, including an assessment of the impact of U.S. companies within the United States.
By modeling participation and transparency, ensuring the collection of disaggregated data, engaging in strong outreach to and engagement with state and local officials and the private sector, and integrating human rights principles into every aspect of implementation, the United States can offer a global model for implementation of the SDGs, and ensure that a universal anti-poverty agenda tackles the pressing problems of poverty and inequality at home.
Sunday, April 17, 2016
While supporting transgender advocates working to repeal North Carolina laws discriminating against sexually diverse individuals, I reflect on the public support that corporations have experienced since refusing to do business in the offending (and offensive) state. Similar support was given by major corporations in Georgia. This leads to a chronic and unanswered question: why do the same entities deny support to women and racial minorities in their discrimination issues?
Might it be that discrimination against women and racial minorities is so pervasive that to object might disqualify the businesses from operating in all U.S. jurisdictions? I don't think that the answer is that simple. Most of the corporations supporting the transgender community have, and continue to, discriminate against women and racial minorities.
In 2013, Bank of America agreed to pay $39 million dollars to women who experienced discrimination in its related corporation, Merrill Lynch. Immediately before that settlement, the Bank paid $160 million to black brokers. In 2012, 16 racially diverse workers brought a discrimination claim against Coca Cola claiming aggressive and untempered discrimination in two of the company's New York firms. These claims came well after Coke agreed to settle a race discrimination suit in 2000 for $192.5 million dollars. Similar lawsuits are settled every year, often against major corporations.
An easy answer might be that corporations that have paid millions to settle discrimination suits are trying to stay ahead of similar claims based on sexual identity. A more cynical explanation could be that the transgender corporate workforce is perceived as being incredibly small and claims more easily managed. If corporations were to acknowledge widespread wage inequities, settlements would be incredibly large. And with equality would come at least a modest power shift.
Corporate support of CERD and CEDAW would be a good start in ending workplace discrimination. When corporations decide to stop tolerating hateful and discriminatory language, and decide to pay equal wages and provide respectful working environments, corporations might discover that having a satisfied workforce is indeed good for profits.
Thursday, April 14, 2016
Apparently Bruce Springstein's decision to cancel his North Carolina concert was the tipping point for Governor McCrory in compromising his position regarding safeguards for the LGBT community. And in breaking news, Ringo Starr has done the same.
As reported earlier, North Carolina passed a bill that would protect those who discriminate against those whose sexual identity differs from the purported North Carolina norm. The Boss' decision came on the heals of Pay Pal and Duetsche Bank's decisions not to expand in North Carolina because of the new law. Facing millions in lost revenue, Governor McCrory signed an executive order in an attempt to remove the economic backlash.
The Governor restored protections for LGBT state employees and he said that he would ask the legislature to restore the right to sue for discrimination. But the Governor fell short. He did not stop implementation of the law's harsh provision that demands people use only the public bathroom that corresponds to the sex assigned at birth.
Sarah Preston of ACLU (NC) said Governor McCrory's actions today are a poor effort to save face after his sweeping attacks on the LGBT community, and they fall far short of correcting the damage done when he signed into law the harmful House Bill 2, which stigmatizes and mandates discrimination against gay and transgender people.
We will see if businesses are pacified by half-measures.
Wednesday, April 13, 2016
The American Association for the Advancement of Science (AAAS)’s Science and Human Rights Coalition released a Human Rights Campus Event Toolkit last fall, and I recommend that you check it out and share it with your students. The Toolkit is designed to help students and professors plan and hold events focused at the intersection of science and human rights. Possible topics suggested for such events include: protecting the human rights of scientists, engineers, and health professionals; applying science and technology to human rights research and documentation; scientific associations as a constituency for human rights; professional ethics and human rights; and the human right to enjoy the benefits of scientific progress and its applications.
The Toolkit includes very useful and practical tips for planning a campus event, including a timeline for event planning, sample invitation emails, advice regarding reserving space to hold the event, sample agendas, sample discussion questions, a sample survey and other tools for evaluating the success of such an event, and more. Moreover, the Toolkit includes ten short (~1 min 30 second) videos which are aimed at helping to start a conversation among participants at the campus events.
Tuesday, April 12, 2016
The Webby nominees are up! The 20th Annual Webby awards honor the best social media campaigns, websites and other innovative uses of the web. And best of all, we, the people, choose the winners.
Of particular interest to this blog's readers are the nominees in the law-website category. Here's the site where you can check out the nominees and place your vote. One of the nominees is the Institute for Justice, a champion of conservative causes started with seed money from the Koch Brothers -- no surprise, they can afford a nice website, and they definitely don't need your vote!
My own favorite is the NuLawLab -- a scrappy upstart visionary innovation lab at Northeastern Law School (full disclosure, I teach there). One of the NuLawLab's recent projects pairs mapping technology and story-telling with original research from Södertörn University and the Raoul Wallenberg Institute to chronicle Sweden's treatment of informal Roma settlements. The map and research received national attention in Sweden when they were launched last week, demonstrating the potential for this marriage of media and human rights analysis to reach policymakers and change the dialogue. Other NuLawLab projects include collaborations with Connecticut Legal Services on game technology for unrepresented litigants, and work with Pine Tree Legal Assistance to improve outreach to women veterans. So vote early, vote often, and please consider voting for the NuLawLab!
Monday, April 11, 2016
Looking ahead to April 15 . . . or rather, April 18 this year (and April 19 in Massachusetts)? Of course, it's tax season in the U.S.
The Center for Economic and Social Rights has pulled together an impressive collection of resources on taxes and human rights, including material from the International Bar Association and the UN Special Rapporteur on Extreme Poverty. Additional insights are available from the video of a 2014 conference at McGill University on tax justice and human rights and the recent essay from the IBA's Human Rights Law Committee on taxation as a human rights issue.
It's fascinating reading, but don't get so absorbed that you forget to file!
Sunday, April 10, 2016
Recently, a former West Point cadet filed suit based upon sexual harassment and sexual assault she suffered during her time at the academy. The complaint describes not a system of neglect in failing to safe guard female cadets, but a deliberate failure to protect cadets from sexual assault while placing the burden of prevention on women.
An amicus brief filed by Sandra Park of the ACLU outlines the lack of administrative response to sexual assault and other gender based harassment and violence. Among the practices engaged in at the academy are the following:
Permitted sexist chanting and comments directed toward female cadets.
Provided sexual assault training that placed the burden on women.
Required mandatory testing for sexually transmitted diseases for female cadets only.
Ignored the Department of Defense's directives on sexual assault reporting.
Fostered a system of retaliation against sexual assault survivors who filed complaints.
In 2010, the Department of Defense found that 51% of female cadets experienced gender related harassment.
The same study found that 94% of female cadets experienced sexist behavior.
In the same year, 9% of female cadets reported experiencing sexual assault.
94% of those women reported their assailant as a fellow cadet.
The Defendants in the case, both of whom were responsible for cadet conduct and sexual harassment prevention, are, in the words of the amicus brief, "subject to suit for creating the policies and customs that caused or permitted the violation of Doe's equal protection right to an education free from sex discrimination." The court has permitted this equal protection complaint to proceed. The government has appealed, which resulted in the amicus brief filed on behalf of the ACLU and others.
Citing human rights law, the ACLU argues that "the right to state protection from gender-based violence and a government's concomitant due diligence obligation to effectively prevent, respond to, and remedy such violence is now so universally accepted that it has acquired the status of customary human rights law."
Indeed, "gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of [CEDAW]."
One question asked at one of the presidential debates is whether or not the candidates favored including women in any potential draft. The answer that none of the candidates gave is that until the military protects members of vulnerable populations from sexual assault, the question is premature.
Thursday, April 7, 2016
By Martha F. Davis
April 8 is designated as International Roma Day every year, a day to celebrate and increase awareness of Roma culture. "Roma" are not a single group, but a collection of communities with languages and cultures that share common roots. In addition, Roma share a history of discrimination. In Europe, Roma are the largest and most visible minority, yet Roma children still experience school segregation and Roma communities still face challenges in obtaining even such basic amenities as water. Advocacy groups such as the European Centre for Roma Rights are engaged in impact litigation strategies on a number of fronts in an effort to combat these persistent inequalities.
In the United States, however, Roma are largely invisible. Because the US census does not inquire about Roma identity, there are no certain numbers, though many estimates put Roma at about 1,000,000 strong in the US. The few media reports on American Roma stress the group's efforts to blend in, and keep a low profile. According to Roma scholar Ethel Brooks, there can be advantages to this invisibility, which is made easier because of the relative diversity of the U.S.
But the invisibility of real, everyday Roma in the US also opens the door to manipulation and misrepresentation in the media. When My Big Fat American Gypsy Wedding premiered in 2012, many were dismayed that the producers seemed intent on reinforcing stereotypes. A counter to these stereotypes are two short films made by Voice of America in 2011 about the challenges facing American Roma as members of the community question what the impacts of further assimilation might be on the future of Romani culture in the U.S.
Wednesday, April 6, 2016
I recently returned from the Global Summit on Childhood in San Jose, Costa Rica, where hundreds of educators had gathered to explore innovative ways to foster child development and learning. Home to the UN-mandated University for Peace and the Inter-American Court of Human Rights, Costa Rica—which also abolished its armed forces constitutionally in 1949—was a fitting location to reflect on and exchange creative ideas about educating young people. And it provided numerous reminders of the importance of human rights education.
Though it often receives less public attention than human rights litigation and policy initiatives, human rights education has been a part of international human rights law since the adoption of the Universal Declaration of Human Rights. Article 26(2) of the Universal Declaration reads: “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.”
Subsequent human rights treaties—from the International Covenant on Economic, Social, and Cultural Rights to the Convention on the Rights of the Child—all mandate and reinforce the importance of education aimed at strengthening respect for human rights, tolerance, and peace.
Human rights education, however, means more than educating about human rights. The UN Declaration on Human Rights Education and Training, adopted in 2011, establishes that human rights education encompasses three critical concepts:
(a) Education about human rights, which includes providing knowledge and understanding of human rights norms and principles, the values that underpin them and the mechanisms for their protection;
(b) Education through human rights, which includes learning and teaching in a way that respects the rights of both educators and learners;
(c) Education for human rights, which includes empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others
In short, creating rights-respecting learning environments and educating individuals in ways that empower them as human rights actors are as important as transmitting knowledge of human rights norms.
It is critical that human rights education receive greater attention and be incorporated more broadly in school curricula in the United States and elsewhere. Research on human rights education demonstrates its capacity to produce numerous positive outcomes for children and adolescents, including an improved sense of self-worth, increased empathy, and a reduction in bullying and harmful behaviors in classrooms. In the end, if people are not taught about their rights and the rights of others, how will they be able to realize their own rights or effectively advocate for others?
For additional resources on human rights education, click here.
Tuesday, April 5, 2016
Everyone has the right to recognition everywhere as a person before the law.
Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
These familiar words are reflected in Articles Six and Twenty One of the Universal Declaration of Human Rights. This week, the US Supreme Court considered how states organize voting districts and who is included in the population that will form the basis of voting districts. Following Shelby v Holder, many were concerned that the efforts to exclude minorities and immigrants from voting access would be successful. There is reason to be concerned, as some states have closed voting locations, manipulated voting districts and taken other measures or attempted measures that effectively limit the ability to vote.
Counterbalancing some voter restriction efforts, on Monday the US Supreme Court announced its opinion in Evenwel v. Abbott, affirming one person, one vote triggering a collective sigh of relief for human rights advocates. The controversy was Texas' anticipated implementation of a rule that only voting eligible individuals would be counted in determining population in organizing a voting district. The effect of this formula would have been to enhance the voting power of rural areas because the population counted in urban areas would be diminished through the elimination of non-citizens, children, those formerly incarcerated for felony convictions, and others who do not have status to vote. Since urban areas reflect larger populations of groups whose members do not vote, the political influence of cities (and minorities and other groups) would diminish.
In a unanimous opinion authored by Justice Ginsburg, and in which Justices Alito and Thomas concurred, the Court rejected the conservative challenge to ‘one person-one vote’ -
“What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.”
Creating an originalist bridge that connected a range of legal interpretive philosophies, Justice Ginsburg wrote “As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote.”
The Court failed to address, or hint at, formulae that it would approve for population counting, although most states use census based ones. But in keeping the decision narrow and reaffirming the fundamental one person-one vote principle, the court achieved unanimity. And that was a much needed expression of the court's ability to work together when fundamental human and civil rights are in play. I can think of another branch of government that could learn from the judiciary.
Monday, April 4, 2016
Last week, on March 29, a California federal judge dismissed claims that the Nestle and Hershey companies should put information about slave labor used in their manufacturing processes on their labels. As is required for a motion to dismiss, the judge credited the claims against the chocolate manufacturers, noting that almost two million children work in cocoa-related industry in Ghana and the Ivory Coast. Many of the children are sold into slavery by their parents. The plaintiff, Elaine McCoy, argued that by failing to including labeling information to this effect, both companies had violated California's unfair competition law and consumers legal remedies act, and engaged in false advertising. The court, however, found that there were no legal claims and that, while child labor was unethical, it was beyond the province of the court to say what information should go on a label other than consumer safety information.
For more general information about slavery in the chocolate industry, click here.
These hotly contested cases, which have already been up to the U.S. Supreme Court once before, will likely be appealed.
Sunday, April 3, 2016