Monday, July 31, 2017
Last week the Justice Department submitted a brief arguing that the anti-discrimination law Title VII do not protect LGBT employees. The administration filed an amicus brief in a New York case in which the government is not directly involved. The brief was filed on the same day that the President announced in a tweet that transgender individuals would not be permitted to serve in the military.
By filing, Justice Department has made it clear that the administration is withdrawing Obama era guidance that Title VII's provisions protect from discrimination based on gender identity.
The case before the court was brought by a man who was fired after disclosing to the a customer that he is gay. The circumstances were that Mr. Zarda, an employee who accompanied customers o parachute jumps, told a female customer with whom he was about to do a tandem jump that he is gay. The customer's husband complained to the employer, who then fired Zarda. Mr. Zarda sued under Title IX.
While courts are not mandated to follow Justice's guidance, many do. Mr. Zarda's case will be a test of whether the courts will be guided by the new administration's interpretations or will consider marriage equality and other changes in federal law sufficient to reinterpret the reach of Title VII. We have seen the importance and power of an independent judiciary over the past six months. How the court decides is not a slam dunk for Mr. Sessions.
Sunday, July 30, 2017
While people around the country prepare for the once-in-a-lifetime solar eclipse on August 21, groups in Illinois, Kentucky and Nebraska, in the path of the total eclipse, are warning of increased risk of human trafficking during this singular event. According to Amy Leenerts, founder of the non-profit Free 2 Hope, law enforcement agencies are able to anticipate "when and where the crimes are likely to happen by tracking Backpage, a website often used to advertise sex for sale and other criminal activities." And, she reports, "[t]raffic on the site skyrockets during big events like the Kentucky Derby, Farm Machinery Show and NCAA events." She believes that the eclipse will follow this pattern.
Hundreds of thousands of individuals from around the world will be flocking to the path of the total eclipse, often to small towns that seldom receive that level of attention from tourists. Hopkinsville, Kentucky, for example, expects more than 100,000 eclipse watchers to pass through, and NASA predicts up to 500,000 people traveling to watch. According to Melissa Kometscher, a human trafficking specialist for the Salvation Army in Grand Island, Nebraska, people who travel to an event sometimes engage in activities that they wouldn’t try in their own hometowns.
In preparation for the eclipse, the Kentucky Attorney General is offering seminars on human trafficking intervention. Says Sabrina Bishop, an advocate in Hopkinsville, "[w]ith traffickers, they follow the people. They follow the money. They follow large crowds."
Thursday, July 27, 2017
Co-Editor Jeremiah Ho completes his three part series on civility with this post:
by Jeremiah Ho
Sometime between my second post on civility and this present one, things changed a bit regarding our need for civility in the national consciousness. First, we saw the shooting of Republican congressional leaders at a baseball field while practicing for the annual Congressional Baseball Game—a terrifying event, seemingly motivated by partisan hate, which resulted in the injury of Senator Steve Scalise, the House Majority Whip. Immediately after that incident, acknowledgment for civility in the politics and national debate of our times emerged—but only for a few days. Now, as the Senate is headed into this new chapter over heath care, the climate in politics is back to divisiveness.
Another event was the Supreme Court’s decision of the trademark disparagement case, Matal v. Tam, which involved an Asian-American rock band, “The Slants,” who had been denied official trademark registration of their name because the USPTO had decided that such a name disparaged Asian-Americans. The rock band disagreed with the rejection of their application, claiming that their use of “The Slants” was not intended to disparage but was a form of empowerment and cultural reappropriation over the racial slur. I had written about the case earlier this year after arguments were made at SCOTUS. In that post, I had expressed my hope that the law would be settled in a nuanced way that allowed similar kinds of critique and empowerment in trademark registration but would also recognize true disparagement and reject offending trademarks accordingly.
Now I don’t disagree with Justice Alito’s opening remark in his majority opinion in Matal v. Tam that “[s]peech may not be banned on the ground that it expresses ideas that offend.” Based on that principle, I also can rationalize how he rendered that the disparagement clause of the Lanham Act violates the First Amendment. His decision would ultimately allow “The Slants” to be registered as a mark, but also allow the Washington Redskins football team to continue to keep “Redskins” as its mark. But there’s a difference that’s amiss in the Matal v. Tam decision between protecting speech that offends and has little value (and I don’t mean value as in dollar signs here, which is what some would argue is ultimate deciding value that matters), and protecting speech that offends but has the potential to provoke new and worthy ideas and stimulate debate that a society invested in a liberal project would be naturally inclined to accept. With The Slants, their use of the racial slur as an Asian-American band gives them empowerment. The irony provides postmodern or critical legal scholars ample commentary about Asian-American visibility in the American society, past and present, and changes for that visibility, whether or not it is happening today, whether or not—borrowing from the LGBTQ world—“it gets better” or “is getting better.” With the Redskins, their use of the pejorative has much less critical power. It’s a brand, a moniker that has been used for decades with lots of economic capital tied to it. But it does not help us answer whether or not things for Native Americans have gotten better. It reminds us of the onerous past. Yes, it is offensive and mocking, but not contributing to a bigger social dialogue or to social value in general.
If trademarks that disparage can be permitted in the marketplace, then negative, anti-progressive sentiments, such as hate, prejudice, and bigotry, can be commodified much more easily. With the broadness of Matal v. Tam, there’s more permission now for that on such things like T-shirts, store fronts in shopping malls, and cans of beer at the grocery store. Prior to Tam, we saw a lot of positive corporate commodification on social issues such as same-sex marriage. The day that SCOTUS released Obergefell v. Hodges, many corporate entities, from national department store chains to credit card companies, placed “Love Wins” in their temporary marketing. Will we now see more of the opposite? I don’t know. But it’s possible now that SCOTUS has seemingly given permission for incivility.
As I see it, we are now more apparently within a situation that is similar to the old grammar-school lesson between the meaning and usuage of the words “may” and “can.” Just as you can do something, doesn’t mean you may do it. Or perhaps the situation is closer to the difference between “can” and “ought.” Just because you can say certain things, doesn’t mean you ought or should to say them.
If that’s the case, then in the aftermath of Matal v. Tam, again it’s civility and prudence in practice that’s the tiebreaker. There will be financial considerations for some businesses that will restrain them from creating disparaging marks. But an ethics of civility might also allow us to focus on what has social value or probe offensive ideas in ways that does not take us off track into hate and violence. It would help groups within the current population process through their strong, visceral emotions and get to a place where they don’t feel so left behind so that the only way to change is to lash out at others or pass laws that lash out on their behalf (see for instance, the Texas anti-LGBTQ Bill SB3).
Because one thing that civility encourages is the search for authenticity and it places authenticity over immediate, rash, and reactionary inclinations. Civility is what allows a writer and activist such as James Baldwin to say “I am not your negro” and to debate what that means in hopes to convince others to change existing inequalities in our world. Originally, this part three on civility was going to feature a review of the recent film I Am Not Your Negro based on Baldwin’s unfinished book, Remember This House. The importance of civility features in the background of the film—in part to show what happens when there is no civility in national debates but also the limitations of civility if it is not fully engaged in society. I wholeheartedly urge people to see this film if they have not already done so. The film is a good example of how civility fosters the authenticity of subordinated groups in expressing truth when they are often marginalized by the dominant group and when their journeys or statuses are mischaracterized inadvertently by the most well-intentioned progressives. Within diversity, civility plays a necessary element to allow authenticity that leads to transcendence. At the end of I Am Not Your Negro, Baldwin states to the camera in an interview clip that the future of race relations in America depends in part on a discussion within the dominant white culture on the constructed binary between whiteness (which Baldwin links to power) and blackness (which Baldwin characterizes with the “N” word). Baldwin hints that it would be a dangerous, incendiary, subversive dialogue. But the thought of that dialogue or rumination taking place in white culture—with the hope that it would result in some recognition of the wrongs against African-Americans in the past—implies that civility would play a part in starting that rumination and facilitating it toward a progressive end. Otherwise, such a dialogue is not a non-starter and you can’t reach authenticity. Thus, civility is what props up the continued underscoring of dignity in human rights debates. Without civility, there is singular chaos and violence, and dignity would not be perceived in ways that authentically allows for the inherent worth of human beings. Rather dignity would be defined relative to a hierarchy promulgated by a dominating group. Civility gives us hope.
Wednesday, July 26, 2017
In an effort to show his conservative base that he has not lost his way, on Wednesday President Trump announced that he is banning all transgender individuals from military service. President Trump hid behind medical expenses that he claims the government incurs in supporting trans military personnel. The PBS Newshour estimated that the transgender related medical costs incurred by the government is around $2,000,000 per year. The military spend approximately $10,000,000 per year on Viagra and related drugs. The New York Times reported estimates of fewer than 2,500 and later up to 11,000 transgender individuals on active duty. But the National Center for Transgender Equality places the number at 15,000.00. Trump said that he would not accept or allow trans soldiers to serve. While undefined at the moment, this language indicates that trans individuals on active duty will be forced to leave the service. The loss of 15,000 military personnel would be significant.
The trans community is among the most disadvantaged in our society. Trans and other sexually non-conforming individuals face a higher rate of sexual assault and other abuse than the general population. Housing, employment and other opportunities are limited due to discrimination. Now the president has banned trans individuals from one path to earning a living that was open to them. Further, the move implies that trans people are not capable of defending our country and of participating in work that is open to others. The pronouncement, and the public shaming that it triggers, is cruel.
This latest presidential move points out the ever expanding need for human rights advocacy at home.
To read more, here is commentary from the New Yorker
UPDATE- Military chiefs are refusing to implement Trump's edict unless ordered to by the Secretary of Defense.
Tuesday, July 25, 2017
When the constitutionality of the Affordable Care Act's Medicaid Expansion was on the line in the U.S. Supreme Court, the Leadership Conference on Civil and Human Rights filed an amicus brief that connected the dots between health care expansion, race, and the human rights norms of the UN Race Convention, to which the US is a party. As that brief pointed out, the ACA would have a particularly important and positive impact on the health of black families and individuals with incomes just above the poverty line. By the time the case arrived at the Court, the US government had already touted the ACA in international fora as an indication of US commitment to narrowing the race gap in health care; the international community had applauded the new law as evidence of progress. In the end, that progress continued. Supreme Court upheld critical aspects of the Medicaid Expansion and 32 states have adopted expanded Medicaid. The race gap in health care narrowed through 2014, and continued to narrow according to the latest data, though less than had been hoped because many of the 18 states that have not expanded Medicaid have relatively large black populations.
As the Senate turns to debating repeal of the ACA, little media has focused on the racial impacts of the proposed rollback of Medicaid expansion, particularly in local media markets. For example, one study found that Wisconsin newspapers had provide "little or no" information regarding racial impacts of ACA repeal.
It's not for want of evidence. In March 2017, at an early stage of the debate, the Center for the Study of Social Policy released a report examining the likely racial impact of cuts to Medicaid. According to the report, " [t[he progress made to date in drastically reducing the uninsured rate in through expanding Medicaid in States (“expansion states”) is now at stake." Many blogs have taken note of this troubling aspect of the repeal effort and urged greater attention to it. A report from the National Women's Law Center predicted that women of color would bear the brunt of an ACA repeal. Of the 8 million women likely to lose coverage upon repeal, the report concluded, two-thirds are women of color.
The Medicaid Expansion of the ACA has been helping the US move toward achieving its human rights commitments. In light of the human impact of repeal, it's cold comfort that, if the Republican party is successful in clawing back the Expansion, the administration will have to answer to the international community committee during the next review of US compliance with the Race Convention.
Monday, July 24, 2017
Those advocating for the civil right to counsel have enjoyed a major victory. Last week, New York City's mayor DeBlasio signed a bill ensuring that low income tenants facing eviction will have counsel appointed. The legislation is the first in the country to mandate and fund appointed counsel for housing court eviction defendants. Manhattan Councilman Mark Levine said "The worst landlords have used housing court as a weapon, hauling tenants into court on flimsy eviction cases because they knew in the vast majority of cases, the tenant would not have a lawyer. "
The program will be phased in over five years and tenants in certain zip codes will be the first to receive the benefit of appointed counsel. The maximum income for qualification for appointed counsel will be $49,200.00 for a family of four. The program is expected to help 400,000 tenants per year.
John Pollock of the National Coalition for a Civil Right to Counsel commented: "New York City's historic step forward is a watershed moment for the national right to counsel movement, and already we've heard of cities and states lining up to be he next one to advance the critically important right to counsel in housing cases."
Sunday, July 23, 2017
Many of our readers have students who want to launch a human rights career. Take note: the application deadline for the UN Young Professionals Program (YPP) is 11:59 p.m., EST, August 22, 2017. The YPP is a recruitment initiative for talented, highly qualified professionals to start a career as an international civil servant with the United Nations Secretariat. It consists of an entrance examination and professional development programs once successful candidates start their career with the UN.
YPP applications are limited to nations that are underrepresented at the UN Secretariat. The United States is among the countries listed this year, so US citizens are eligible apply for the program. To be eligible to apply:
- You must have the nationality of a participating country.
- You must hold at least a first-level university degree relevant for the exam subject you are applying for.
- You must be 32 or younger in the year of the examination.
- You must be fluent in either English or French.
More information is available here.
Thursday, July 20, 2017
The United Nations Human Rights Council has appointed Professor Fionnuala Ní Aoláin, Professor at the University of Minnesota School of Law, as the U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism.
In this role, Ní Aoláin will be charged with making recommendations on safeguarding human rights while countering terrorism and, at the request of states, providing advisory services or technical assistance on such matters; investigating and reporting on alleged violations of human rights and fundamental freedoms; identifying and promoting best practices on counterterrorism measures that respect human rights and fundamental freedoms; and reporting regularly to the Human Rights Council and the U.N. General Assembly, among other duties.
A recent article by Ní Aoláin, titled "The War on Terror and Extremism: Assessing the Relevance of the 'Women, Peace and Security Agenda,'" provides a thoughtful and critical assessment of feminist movements in this arena, perhaps a precursor to some of the thematic work that she will undertake as Special Rapporteur.
Wednesday, July 19, 2017
The animal welfare and animal rights movement in the US has accelerated during the past two decades. But the US is not close to expanding legal rights to animals as has been done elsewhere.
In 2008, the Spanish parliament extended rights to chimpanzees, gorillas, orangutans and bonobos. This animal measure was not the first for members of the European Union. In 2002, Germany extended rights to animals through its constitution. In 1999, New Zealand passed measures granting protective rights for apes. While some argue that legal rights should not be limited to human-like species, there is no question that these measures are light years ahead of any US initiatives.
Most of the US protections of animals comes from a perspective of correcting cruel human behaviors toward them. Statutes reflect the intention to restrain human actions toward animals, but they do not reflect the perspective that, like humans, animals have inalienable rights. Struggling to preserve the rights that we have, it is unlikely that rights for humans will expand during the next few years. Any movement to recognize, on a formal basis, inherent rights of animals is not likely to be successful in the near future.
In a 2014 essay, William Shultz, former director of the ACLU, acknowledged that he was wrong when he earlier argued that "no rational person would believe that animals could claim the same kinds of rights as humans." He called upon us to examine which creatures should have a claim to rights.
Given the current lack of understanding of human rights on the federal level, animal rights advocates, like human rights advocates, will continue to be most effective on the international and local levels.
At the recent G-20 meeting, for example, the leaders adopted "High Level Principles on Combatting Corruption Related to Illegal Trade in Wildlife and Wildlife Products". While again the principals seek to protect animals from human cruelties, continued recognition of their need for protection may lead to the dialogue on whether protective action is at the same time acknowledging innate legal rights of animals.
Tuesday, July 18, 2017
Last week, Education Secretary Betsy DeVos, met with selected groups to hear from stakeholders on Title IX processes when sexual assault is alleged. First she met with those who feel Title IX discriminates against males who are accused. The following day she met with survivor advocates who want the current state of hearings to continue. The controversy revolves around the "Dear Colleague" letter sent in 2011 to colleges and universities outlining a list of standards to be employed, and in some cases, aspired to, when universities deal with sexual assault complaints. Among other things, the letter instructed campuses to use the "preponderance of the evidence" language when deciding whether or not the accused student is responsible for the alleged behavior.
The letter gave other instructions, however, use of the lower standard of proof is the one most challenged by those who advocate for the accused. Criminal lawyers often demand that the "beyond a reasonable doubt" standard should be used at Title IX hearings. Title IX hearings are civil in nature and can have different goals than either the civil or criminal justice systems. The safety of the complaining students as well as the community, is paramount, as is education of the student found responsible in an attempt to avoid future troubling behavior. The process views itself as more remedial than punitive.
There is no doubt that some results of Title IX hearings are bewildering, and others have denied basic due process rights for the responding student. Those deficiencies must be corrected. But the problem is not the standard of proof. Nor is the answer to turn a quasi-civil proceeding into a criminal one. The answer to those deficiencies is to enforce training standards and have access to an effective appeals system. To raise the standard of proof to the criminal one is to revert to a system where the complaining student will rarely succeed.
So what do we expect from Secretary DeVos? We know that the Obama administration's guidance on transgender students was withdrawn. We know that DeVos initially opposed withdrawal of the regulation but ultimately ceded to Attorney General Sessions. We have a president who admits to sexually assaulting women. We cannot expect an objective assessment of what a fair Title IX decision making process would look like.
We can expect additional barriers to successful Title IX claims. Whether that will be accomplished through raising the standard of proof, creating a new one, or some other change, we can expect diminished rights for complaining witnesses. After all, before the ink was dry on his presidential appointment to head an education task force, Chairman Falwell announced that one target of his work will be to limit the federal government's reach into higher education's handling of Title IX obligations.
Secretary DeVos deserves credit for her defense of transgender policies and for any empathy she might have for survivors of campus assault. The predominant criticism of her is that she does not fundamentally understand Title IX. But no matter, the boys are in charge.
Monday, July 17, 2017
West Virginia College of Law has announced a new Appalachian Justice Initiative to take on a range of issues facing the region. Chief among the Initiative's concerns are environmental issues and workplace conditions, both of which have been framed as human rights issues by West Virginia faculty participating in the new Initiative.
In the April 2017 issue of the University of Miami Law Review, Professor Anne Marie Lofaso argued that the "natural human rights" standard should serve as a floor for labor practices. Her six-part analysis ranges from a historical review of labor law through an analysis of relevant international law and the meaning of citizenship.
Meanwhile, in a July 14, 2017 essay, West Virginia Professor Nicholas Stump asks the question "Is a health environment a human right?" Stump explains that "In my work, I have proposed reframing Appalachia's concerns as a struggle for "environmental human rights" – the idea that all people are entitled to a healthy environment. Characterizing these problems as violations of environmental human rights can open up new and more robust legal remedies. It also means that environmental harms will be viewed more vigorously as moral issues."
In announcing its new initiative, the College of Law stated that "Law schools have been at the center of a sustained—and often heated—debate concerning the relevance of legal education and scholarship. Moreover, this election cycle has cast a bright light on the decades-old fact that our economically disenfranchised neighbors, generally, and our Appalachian brothers and sisters living in poverty, specifically, have been left behind by the entire American political establishment."
The West Virginia faculty believe that "law schools, legal education, and legal scholarship can and should be relevant again” and that they have an important role to play in improving the welfare of the people of Appalachia. Kudos to the West Virginia law faculty as they make a commitment to human rights in their own backyard.
Sunday, July 16, 2017
By guest blogger Prof. Justine Dunlap
The value of an education has been proven time and again by those who have used it to climb out of poverty, escape violence, or as a ticket to a place, a job, or a life that exceeds that which might have been otherwise predicted. Moreover, the right to education is a fundamental human right.
The right to education is often lacking in impoverished countries and is particularly violated when it comes to educating girls. The international movement to educate girls received dramatic attention several years ago when the Pakistani teen Malala Yousafzai, in her refusal to be deterred in her determination to get an education, was shot in the head by Taliban gunmen. Malala’s on-going courage won her a Nobel Peace Prize and shone much-needed light on the need to educate girls.
In this country, notwithstanding our economic advantages and principles of gender equality, our public schools fail many of our children. And, frankly, progress does not seem nigh. Charter schools, once and still deemed by some to be the answer, have results that vary significantly from state to state. Further, additional policy changes are expected under current Secretary of Education, Betsy DeVos. The changes are not expected to favor public schools.
However, during this past term, the United States Supreme Court sent a ray of hope in the area of special education law. A unanimous Supreme Court ruled in favor of children and parents, and against the school district when interpreting a provision of the Individuals with Disabilities Education Act (IDEA).
Thirty-five years ago, in the seminal special education case Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, the Supreme Court declared that under the IDEA, an individualized education plan (IEP) must be reasonably calculated to provide the child with “some educational benefit.” Only then would the IEP satisfy the substantive right to the free and appropriate public education anticipated by IDEA.
This term, in Endrew F. v. Douglas County School District, the Court added clarity on how to determine whether an IEP is reasonably calculated to afford a child “some educational benefit.” In the decision being appealed in Endrew F., the 10th Circuit had interpreted “some benefit” to mean that an IEP was sufficient provided that it was calculated to let the child make progress that was “merely….more than de minimis.” In an interesting twist, this case came down during the Senate Judiciary hearings on Supreme Court nominee Neil Gorsuch, a sitting 10th Circuit judge who had applied the merely more the de minimis standard.
A unanimous Supreme Court reversed the 10th Circuit, holding that “merely…more than de minimis” was too low of a standard to satisfy the IDEA requirement of a free, appropriate public education. The Court said that a child’s IEP must reflect an educational program that is ”appropriately ambitious in light of [the child’s] circumstances.” This standard, the Court declared, while admittedly general, is “markedly more demanding” than the merely more than de minimis standard.
In so ruling, the Court raised the bar as to what the law requires to provide a free, appropriate public education for children with disabilities. That is a victory for children and their right to be educated.
Thursday, July 13, 2017
During the Obama administration, humanrights.gov served as a one-stop site to find US government statements and official documents involving both domestic and international US human rights initiatives. The stand-alone web address signaled that human rights was a significant focus of the administration's attention, and it increased awareness and transparency of US human rights stances.
Others may have noticed that since January 20, the site has been sluggish in responding and that the postings have slowed down considerably. Some content that was once on the site -- such as the US implementation plan for the 2010 UPR review -- has disappeared completely. Now we learn that on August 1, the remaining contents of the site will migrate to state.gov and Humanrights.gov will be no more. The new site is the State Department's Bureau of Democracy, Human Rights and Labor, headed by Virginia Bennett, Acting Assistant Secretary. It appears that the Humanrights@state twitter feed will continue, as will the Bureau's facebook page. Here's the complete announcement:
"Starting on August 1, 2017, you can find all U.S.-government related human rights content at state.gov/j/drl/. You can also follow us on Facebook (https://www.facebook.com/stateDRL/) and Twitter (https://twitter.com/State_DRL)."
Wednesday, July 12, 2017
We note two significant local human rights developments in recent weeks, NEITHER of them from the coasts:
First, on July 5, Dallas County became the first county in Texas, and only the second county in the United States, to declare itself a Human Rights County. According to Dallas County Judge Clay Jenkins, sponsor of the measure, “Human Rights abuses occur in our community, our country and our world every day. We must lead at the local level. We can’t do everything but we can all do something.” Dr. Rick Halperin, director of SMU's human rights program, added “The action taken by the county commissioners will mark a historic turning point in this County’s recognition of Human Dignity and Human Rights for all those who live, work, and visit here. This really puts us on the road to being the global jurisdiction we purport to be.” The resolution came one year after a historic Human Rights Dallas meeting, where local leaders met at SMU to discuss how human rights approaches might improve the welfare of Dallas residents, and how Dallas might take national leadership in expanding human rights,
Second, in May 2017, Athens, Ohio hosted its first ever "Ohio Human Rights Tribunal," addressing the human rights issues raised by fracking. Four judges heard over six hours of testimony from the community. Another tribunal hearing is expected in Ohio later in July. These hearings are held under the auspices of the Permanent Peoples' Tribunal on Fracking, which is gathering testimony to submit to the United Nations.
Tuesday, July 11, 2017
Any exploration of changing human rights advocacy starts with exploring the intentions of the advocate.
Most of my clients have experienced gender violence. Most typically my clients have additional barriers due to color, immigration status, disability and poverty. Their lives are burdened in ways that I can only imagine.
I, on the other hand, live very differently. Being a law school professor is a privileged life. I have the additional freedoms that whiteness brings. While empathy is important, effective advocacy for those unlike ourselves requires more.
I must be careful not to bring any arrogance to my advocacy; particularly where clients may not challenge me for fear of alienating the person who can navigate them through a complex and often hostile system.
So how has my advocacy changed? I am more mindful than ever to reflect on my own motivations. I am more mindful of the consequences of my actions, including my advice to clients. I must consider the newly changed circumstances of my clients' lives. My clients have become even more vulnerable. Immigrants are presumed to be undocumented and even those who are not experience harassment and violence. Risk of deportation has multiplied since January. Gender harassment has increased, as it has for all less powerful social groups. But what is causing much increase in my clients' underlying fear is that harassment and abuse are gaining acceptance as a cultural norm.
Fear in some form has been a near constant in my clients' lives. But the fear was more targeted: fear of reprisal from an estranged intimate partner or fear of being deported should they engage the legal system. While specific fears remain, a more generalized fear has sprouted from the uncertainty that the cultural shift has brought. Increased street harassment is a good example of one source of heightened generalized fear. So I must be mindful not to judge my clients' decisions made in light of these concerns and I must listen even more carefully to their words. Advising clients of what is or is not a reasonable fear has become more difficult. All of our experiences are shifting in the face of this unleashed hostility and incivility.
Mindfulness has never been more important in human rights advocacy.
Monday, July 10, 2017
Editor's Note: This is the second post in our Scholarly Voices symposium on the current state of human rights advocacy.
Sital Kalantry writes 'On Tyrany Lessons from the Twentieth Century"
Many people have read or heard about history scholar Timothy Snyder’s popular book, On Tyranny: Twenty Lessons from the Twentieth Century. Drawing largely from the history of the Nazi regime’s rise to power and brutal genocide campaign, he created a list of twenty concrete actions that can be taken by people living under regimes bordering on authoritarianism. Among other things, he invites readers to seek out the truth (both online and offline), be aware of dangerous language, defend institutions, and not obey the government in advance.
These are all pertinent lessons for us today. Most of his lessons are directed towards people in the “majority” group who would oppose an authoritarian government. For example, his Lesson #12 is that people should “Make eye contact and small talk.” Here Professor Snyder’s point is that during Nazi Germany and when fascism prevailed in Italy, oppressed groups reacted to how their neighbors treated them. Therefore, he advises his readers to “affirm everyone” because you cannot be sure “who feels threatened in the United States.”
Although Professor Snyder offers advice for the group of people who will not be the targets of the authoritarian regime, I would like to offer advice to those who will be. For immigrants, of whom I am one, I think we should “interact and educate.” Many Americans today fear that immigrants are taking away their jobs and committing crimes. Through broad executive action, many immigrants are being deported and foreigners denied entry into the United States. Most people who support the executive’s policies may never have met with or talked to an immigrant. However, many anti-immigration proponents resist deportation when their own community members are involved. Stories abound like the one involving a Trump-voting community that rallied around an undocumented restaurant owner who was threatened with deportation. It is easy to demonize people you do not know, but harder to demonize people you do know. While I would have resisted this burden at another point in my life, I believe today that we have to use every opportunity we can to positively interact and educate others in our communities to help breakdown stereotypes. I live in a diverse and liberal college community surrounded by rural New York. While I do not always follow this principle in my daily life, it is a goal to which I aspire. I think it will help to bridge the voids that divide our country.
Sunday, July 9, 2017
Editors' Note: This week we run a brief symposium on changes in human rights advocacy in the new era. We encourage contributions from additional law professors on this topic. We begin with this contribution from Lauren Bartlett.
Threats to human rights have reached a crisis point in the United States, especially for our most vulnerable communities. Recently, more than thirty “Anti-Sharia” or “Anti-Muslim” marches were held across the U.S., the Trump Administration threatened to withdraw from the U.N. Human Rights Council, and ICE raids continue at an alarming rate.
It is difficult to be strategic while attempting to function in crisis mode. There is too much to digest and react to on a daily basis, both on a professional and personal level. Moreover, many U.S. human rights advocates are central players in advocacy organizations and larger movements concentrating on specific legal issues and agendas. Repeatedly having to face daily emergencies creates immediate demands on advocates’ time and pulls resources away from a human rights focus.
Regardless of, and because of, these pressures, U.S. human rights advocates need to take the time to strategize about where to focus their limited time and resources in the coming months and the year ahead. Some advocates have been theorizing and writing on this topic. Yet there does not seem to be any consensus so far.
Some questions to consider in developing human rights advocacy priorities could be:
- What does effective advocacy for human rights in the U.S. look like in 2017—18?
- Which human rights strategies and methodologies will be most effective in the current environment?
- What should be the priorities in terms of collaboration among lawyers and other advocates?
- Which best practices and lessons learned are most useful in the current environment? Will the lessons learned from 2008-2016 be applicable, or would it be better to go further back and examine lessons learned during the reviews in 2005-2007 with the Bush Administration?
Below are my preliminary thoughts in response to these questions.
Priority should be given to lifting up the voices of those directly affected by human rights violations and continuing to build the human rights movement through education and advocacy campaigns. In addition, it is likely that the most effective human rights advocacy will occur at the local and state level.
The Trump Administration and the U.S. Congress are likely to ignore all recommendations from human rights bodies, and it is not likely that any Federal agency will embrace human rights, as was seen previously. On the other hand, civil society movements may flourish (with community education, leadership, and resources) around Federal rejection of the issues or recommendations. In addition to civil society, some city and state governments are showing a willingness to embrace international obligations and resist the Federal Government’s rejection of international obligations, which is a testament to the terrific groundwork laid by human rights advocates and others in recent years.
In terms of my immediate plans for my own human rights advocacy, physically situated as I am at a small law school in a small town in the heart of the conservative Midwest, I plan to focus on human rights education of law students, colleagues and courts, using the language and principles of human rights when citation to human rights instruments and laws is too off-putting. I will also focus on giving voice to those directly affected, through court cases and other advocacy, as well as building solidarity with individual clients and local community groups.
What are your human rights advocacy priorities for the coming months and why? It would be great to hear from a chorus of others.
Thursday, July 6, 2017
In prior posts, Martha Davis announced that Mountain View (CA) city council passed a resolution designating the municipality as a human rights city. Prof. Francisco Rivera, informed us of concerns and frustrations that arose during the city council debate and the important work that his students did in educating council members on the human rights framework.
In late May, Mountain View mayor, Ken Rosenberg, discussed the challenge of implementing the vision of a human rights city. In an op-ed opinion, Rosenberg announced that Mountain View would be home to an institute whose goal is to create 100 human rights cities all over the world “based on learning and integrating human rights into every aspect of our daily lives”. Beautifully said.
Mayor Rosenberg credited the work of The People’s Movement for Human Rights Learning for educating him and others to the human rights way of life. Mayor Rosenberg also acknowledges that The People's Movement has the expertise to implement the vision of the new institute.
You may read the complete op-ed here.
Wednesday, July 5, 2017
We join others in the civil and human rights community in mourning the death of our hero, Norman Dorsen. Distinguished professor at NYU Law School, former chair of the Lawyers Committee for Human Rights, founder of the Society of American Law Teachers, winner of the Eleanor Roosevelt Human Rights Award . . . these are only a few of Professor Dorsen's contributions to civil rights and human rights in the U.S.
For more reflections on his remarkable career as a scholar and advocate, we recommend the collection of tributes published by NYU Law School, available here. Hopefully, many readers will want to know more, perhaps pursuing historical scholarship on the movements and cases in which Dorsen was involved or to analyze more closely a lawyer's life well lived. For those readers, Professor Dorsen's papers relating to his political and scholarly work are in NYU's repository; a guide is available here.
Tuesday, July 4, 2017
This blog posted earlier about the psychologists who developed and promoted "enhanced interrogation techniques" at the request of the US government. We last reported that the suit survived a motion to dismiss. The suit is now in the discovery process, and depositions have begun. What is becoming clear is the perversion that has been used in both applying the torture and the use of shaming views of masculinity to coerce interrogators into using the techniques. One prisoner was placed underground in a plastic bag. Waterboarding, sleep deprivation, nudity, stress positions, placing men in small boxes for long periods of time and use of insects were some of the implemented tortures that yielded no useful or new information.
Those forced to implement the torture were themselves subjected to psychological abuse. Some soldiers conducting the torture were told that a nuclear bomb was about to be dropped on the United States and obtaining information was urgent. When one soldier resisted, after seeing the effects of the torture, he was called a p___y.
The defendant psychologists are claiming the defense of never having met those who were tortured. They claim that despite recommending the use of torture, they never designated the specific individuals to be subject to the torture. How then could they be liable to these men and to the estate of one man who died?
The case raises no new theories of liability but does speculate on whether the defendants will succeed in their use of Nuremberg-style defenses when the psychologists were not soldiers acting under military orders. The trial is scheduled to begin on September 5th in Spokane, Washington. You may click here to access The Daily podcast on this topic.