Human Rights at Home Blog

June Medical: Reason or Politics?

by Professor Aziza Ahmed, Northeastern University School of Law, guest contributor

The June Medical Services v Russo decision is a victory for reproductive justice (RJ) advocates.  The decision strikes down a Louisiana admitting privileges law which required abortion providers to register with a hospital within thirty miles of the abortion clinic where services are being provided.  In an earlier SCOTUS blog post I asked whether the court would be validating pretextual claims by Louisiana who claimed that the law was actually passed to benefit women.  These laws, commonly called TRAP laws – or the targeted regulation of abortion providers – were called out by Justice Ginsburg in Whole Women’s Health v Hellerstedt.  As many reproductive rights scholars have now noted, these laws have the façade of protecting women’s health but, in fact, are designed to limit women’s access to abortion. 

With the June Medical decision, which follows the precedent of Whole Women’s Health, Breyer carefully balances the benefits and burdens of the Louisiana law. Relying on evidence presented by the parties as the case passed through the lower courts, the plurality found that the law confers a greater burden than benefit on women as they seek to access abortion. In turn, Louisiana’s law was found to be unconstitutional.  Justice Breyer noted that poor women who are least likely to be able to absorb the costs of increased travel are those most likely to be burdened.  These facts helped solidify that the legislation was unconstitutional. (Although the court does not mention race, many of the women whose right to abortion would be disenfranchised under the law would be people of color, primarily Black and Latinx.)

But how do we assess facts presented to the court? While the plurality treated this as a straightforward exercise – carefully parsing facts in order to ascertain whether or not there was a substantial obstacle in the path of a woman receiving an abortion, Chief Justice Roberts felt differently.  In his concurrence, Roberts’ states that while he supports the plurality in finding the Louisiana law unconstitutional because of precedent he critiqued the use of the undue burden standard in its current form.  Roberts states that after Casey, courts were to assess whether a law had the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a non-viable fetus.”  After Whole Women’s Health the Court was to compare the burdens and benefits of a law.  This is reiterated in June Medical.  Roberts takes issue with the balancing test now required.  He describes the problems of the balancing test:

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy,” Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.” (citations omitted).

In essence, Roberts questions whether possible to do a benefit/burden analysis in the context of abortion without acting as legislators.  The attempt to do so would simply be politics disguised as neutrality.  By putting some space between his own reasoning and that of the plurality, Roberts critique of the undue burden standard seems to provide room for him to adjudicate differently that he did in June Medical.  He could decide in a later case that the undue burden’s balancing test is no longer appropriate for the neutral assessment of law that needs to occur.  Some will read this as the way that Roberts will correct his stance on abortion in a later case allowing the Court to find restrictions on abortion constitutional.

Although there remains a faith in the power of liberal legalism as a means to save abortion rights, any reproductive justice advocate would tell you that Roberts is not entirely incorrect.  The right to an abortion is political.  It was taken out of the domain of health services where women’s health advocates would like to keep it and is volleyed about as a political tool from elections to Supreme Court nominations, costing lives, health, and well-being in the process.  And, though Justices, including Roberts in this instance have acted with restraint due to the idea of stare decisis, abortion advocates know that we cannot rely on the principles of law to preserve abortion access with Conservative justices in the majority.

STARE DECISIS ANYONE?

The holding in Whole Women's Health survived.   Today's release of the US Supreme Court's opinion in June Medical Services v Russo relied on differing legal interpretations.   In striking down Louisiana's restrictive abortion law, Justice Breyer noted that the Louisiana law was practically the same as the Texas law struck down by the Supreme Court in Whole Women's Health.  Both Texas and Louisiana sought to require doctors performing abortions to have privileges at local hospitals, an impossible process for the doctors named as Plaintiffs in the June Medical Services cases, as they proved during the pendency of the case. 

Justice Breyer focuses on the standard of review for Appellate Courts in reviewing a District Court order.  He emphasized the limited availability for courts to reinterpret the lower court's findings.  Those findings were, as noted, were more extensive than the findings made in the Texas case.  He also noted that when the 5th Circuit Court of Appeals reversed the Louisiana District Court's holding that the law was unduly burdensome on women seeking abortions they did so by criticizing the lower court findings.  Justice Breyer observed that the Appeals Court cannot reinterpret the lower court's findings and the Appeals Court should not have done so.  "In light of the record, the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support and are not clearly erroneous. Thus, the court’s related factual and legal determinations and its ultimate conclusion that Act 620 is unconstitutional are proper."

Justice Roberts took a different approach.  The Chief Justice, who dissented in Whole Women's Health, wrote in his concurring opinion "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents."

The anti-choice legal strategists did not anticipate this result.  They rushed to move June Medical Services through the system in order to reach the Supreme Court.  One concession they made in the lower court was to stipulate that the Plaintiff doctors had standing to bring the case.  The strategy focused on speed, getting the case before the Supreme Court as soon as possible after securing what the strategists perceived as a majority "anti-abortion" justices. The strategists presumed that the decision would come down to the justices' personal preferences.  What the anti-choice lawyers failed to properly assess was Justice Robert's commitment to the rule of law and his dedication to maintaining the integrity of the Court. What they thought was an opportunity for Chief Justice Roberts to turn his Women's Whole Health dissent into a majority opinion resulted in his commitment to preserving one of the court's fundamental legal concepts. 

The anti-choice strategists will return.  June Medical Services is a stumbling block but not an insurmountable one. In future anti-choice laws will be crafted without mimicking other laws that have failed. Then stare decisis may not be invoked. 

Making the UPR Count – Including the Impacts of COVID-19

By JoAnn Kamuf Ward, Director of the Human Rights Project, Columbia Law School Human Rights Institute

As many readers of this blog know, the Universal Periodic Review (UPR) of the United States, originally scheduled for May 11, has been postponed until November of 2020.  The UPR is a peer human rights review mechanism established in 2006 by the U.N. Human Rights Council.  Since its inception, the UPR has served to document the human rights records of all U.N. member states – and provided a vital platform for securing recommendations to governments that foster compliance with the full panoply of human rights.  

The U.S. UPR will be based on three main inputs:  stakeholder reports (from civil society), a U.S. government report, and a compilation of all the recommendations already made by U.N. human rights bodies.  In October of 2019, advocates gearing up for the review submitted 139 stakeholder reports, sharing an array of perspectives on the United States’ human rights record.  Since civil society reports were initially submitted, COVID-19 has ravaged communities around the world, and upended life for everyone.  U.N. experts and regional human rights have commented extensively on the human rights implications of coronavirus, and global ngos, as well as national and local U.S. groups are documenting the impacts.

The UPR process was established to improve human rights compliance and “designed to prompt, support, and expand the promotion and protection of human rights on the ground.”  For this goal to be achieved in the context of the current global pandemic, the review must address the impacts of the COVID crisis, and assess recovery and relief measures that governments around the world are employing.  To ensure that the November UPR cycle includes coronavirus, human rights advocates from around the world are seeking the chance to make supplemental submissions that provide up to date information to shape the November review.  On May 21^st, 87 signatories joined a letter making this request to the Office of the High Commissioner and the Human Rights Council.  This advocacy has been coupled with calls for the U.S. federal government to include information on how federal, state, and local governments are responding to COVID-19 in it's own report.  (Notably, the United States’ UPR report was due in February of 2020, but has yet to be made publicly available).

Government accountability is a defining aim of human rights advocacy and organizing.  In the current divisive moment, the need for collective action is essential.  In the past months, the Human Rights Institute has been privileged to work closely with grassroots members of the U.S. Human Rights Network (USHRN) already engaged in UPR advocacy, the ACLU, and many other advocates to ensure that U.N. human rights mechanisms, and our own government, address the immediate human rights violations emanating from coronavirus, as well as their root causes.  More on the collective advocacy by U.S. human rights organizations is detailed in this recent piece on Just Security:  Human Rights Cannot be Put on Hold.  

Bostock’s Implications for the Affordable Care Act

Prof. Shirley Lin sends along this post from 2020 New York University Law graduate Kathryn Evans who is an incoming Civil Rights Fellow at Katz, Marshall, and Banks, LLP. 

.The Supreme Court’s decision in Bostock v. Clayton County, Georgia is a victory for LGBTQIA workers that will no doubt reverberate beyond the employment sphere. Justice Gorsuch sought to keep the majority’s ruling limited, writing that it held only that firing someone because they are transgender or homosexual violated Title VII’s prohibition on sex discrimination. But, as the dissenting justices point out, its logic will almost certainly extend to other federal statutes that prohibit sex discrimination. Bostock explicitly held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” This seems to foreclose any argument that another statute forbidding discrimination “because of” or “on the basis of” sex allows differential treatment of someone based on their sexual orientation or gender identity. And because it analyzed the claims under but-for cause, its holding will bear upon claims under a variety of analogous federal statutes.

One such statute is the Affordable Care Act (ACA). Section 1557 of the ACA, 42 U.S.C. § 18116, provides that any health care entity receiving federal funds through the ACA cannot exclude, deny benefits to, or otherwise discriminate against any patients “on the ground prohibited under . . . title IX of the Education Amendments of 1972.” Title IX prohibits discrimination “on the basis of sex” in federally-funded educational programs. Federal courts generally look to Title VII to interpret similarly worded portions of Title IX, because both outlaw sex discrimination. Thus, an interpretation of Title IX—and therefore of the ACA—that is faithful to Bostock’s reasoning would say that those statutes forbid federally-funded education and healthcare programs from discriminating against someone based on their LGBT status.

The Trump administration announced a final rule interpreting Section 1557 just days before the Supreme Court’s Bostock ruling. The new rule is designed to undo a 2016 Obama administration rule that had interpreted Section 1557’s nondiscrimination requirements broadly, amongst other things, specifically including gender identity and sexual orientation as protected categories within “sex.” Finding that definition to be too broad, the new rule removes any definition of sex from the regulations implementing Section 1557, instead deferring to “relevant existing regulations and the relevant case law with respect to [Title IX], as applied to the health context.”

Bostock thus appears to negate the intended effect of the rule change. While the Trump administration removed explicit prohibitions on gender identity and sexual orientation discrimination from the regulations in order to “conform to the plain meaning of the underlying civil rights statutes” in Section 1557, the Court has now determined that both forms of discrimination are prohibited by the plain meaning of the statute. Rather than finding protection in the regulations that implement the ACA, LGBT individuals will almost certainly be protected by the ACA itself, a much more durable kind of protection that cannot be altered by the executive alone. But what exactly will the law require? Some obvious cases are analogous to firing an employee, such as an insurance company refusing to insure the transgender community or a doctor refusing to see any lesbian patients for routine check-ups. But what services would those insurers have to cover and would those doctors provide?

Take for example, breast surgery. UnitedHealthcare, the largest health insurer in the US, covers mastectomies for any individual with breast cancer. It also considers breast reconstruction to be medically necessary after a mastectomy, noting “the importance of postsurgical psychological adjustment.”  It also acknowledges that gender confirmation surgery can be effective treatment for gender dysphoria, depression, and anxiety, so it considers many surgeries to be medically necessary for individuals diagnosed with gender dysphoria. One such covered surgery is a total mastectomy for transgender men. But breast enlargement for transgender women is not covered. Thus, this policy pays for gender-affirming top surgery for transgender men, but not transgender women. The insurer also pays for cisgender women to augment their breasts after a mastectomy, but not for transgender women to augment their breasts, although both would relieve psychological distress which is caused by a biological condition — either cancer or gender dysphoria.

Courts will soon address Bostock’s impact on the ACA. For example, an appeal to the Fifth Circuit in Franciscan Alliance, Inc. v. Azar, a case challenging the 2016 Obama regulation’s interpretation of “sex” as overbroad, was recently stayed pending the decision in Bostock after plaintiffs successfully argued that it would “have a direct bearing on this case,” given that the ACA incorporates Title IX’s prohibition on sex discrimination, which itself is analogous to Title VII. Although Bostock does not provide all of the answers, it provides those arguing for greater protections for LGBT individuals with firmer ground to stand on.

 

The Supreme Court makes news again … DACA this time

by Professor Irene Scharf, UMass Law School. Director of the school's Immigration Law Clinic.

The Supreme Court continues to release significant decisions affecting our human rights. Last week, it released a monumental decision supporting the rights of gay and transgender workers to be free from discrimination at the workplace. The second significant decision released last week, issued June 18, has triggered vast celebrations among several hundreds of thousands of Dreamers and their families, friends, and supporters. In a 5-4 decision in Department of Homeland Security v. Regents of the State of California, penned by Chief Justice John Roberts, the Court rejected the Trump Administration‘s attempt to repeal DACA (Deferred Action for Childhood Arrivals), a program created towards the end of the Obama Administration that both prevented the removal (deportation) of foreign-born children in the United States and allowed them to receive both driver’s licenses and school tuition benefits.

While surely the decision is a welcome one, it should not be seen as a panacea. Supporters of Dreamers should be certain that the Trump Administration will try to use this victory to its benefit in the court of public opinion – it already has started to do that. Dreamers will not be safe in this country until federal legislation is passed to permanently regularize their status, something nearly certain to not happen during this Administration, and something that will only happen in a subsequent one if the immigration rights movement maintains extreme pressure on the next president and Congress. Even in the next months, security for Dreamers is not assured, as the Supreme Court has, as it did in the Muslim Travel Ban cases, permitted the Administration to articulate a new reason for attempting to rescind DACA that the Court might find to be valid.

The opinion, based on doctrines of administrative -- not constitutional -- law, determined that, in its initial 2017 rescission, the Administration did not adequately consider ways of minimizing the hardships to befall DACA recipients following rescission. The Court held that the action was invalid because, when the Department of Homeland Security (DHS) acted upon its decision that DACA was unlawful, it failed to consider whether the program’s limit on deportations was a legitimate exercise of prosecutorial discretion.

The Trump Administration attempted to justify DACA’s rescission on two separate occasions, once in 2017 through Attorney General Sessions and later, in 2018, after courts had found the initial rationale wanting, through Acting DHS Secretary Nielsen. General Sessions stated that DACA was unlawful and unconstitutional as a unilateral exercise of executive power inconsistent with the Immigration and Naturalization Act’s authority over the admission of immigrants and their right to remain in the U.S. Secretary Nielsen’s explanation affirmed the claim of unlawfulness while adding a list of policies supporting rescission, including DACA’s broad eligibility criteria rather than the case-by-case decisions preferred by the DHS. But the Court stated that the agency failed to “defend its actions based on the reasons it gave when it acted,” inconsistent with the type of "reasoned decisionmaking" required by the Administrative Procedure Act (APA).

This is key, as when an agency's asserted rationale for a decision does not logically support the decision itself, this evidences that the stated reasons could be a pretext for a rationale that would not justify the decision. (In the census case of last term, for example, Justice Roberts reached the same conclusion, finding that the Administration’s asserted reason for attempting to add a citizenship question to the census was pretextual.) Justice Roberts cited to established principles of administrative law that agencies’ initial rationale for their actions is that against which a decision will be tested; fairness dictates that subsequent justifications made after an action is challenged could be unfair to both challengers and to the courts reviewing the actions. Thus, Justice Roberts found that Nielsen’s 2018 statement could not be relied upon to justify the rescission; only the 2017 rationale could be used.  

Summing Up the Past Two Weeks

Our mini-Symposium on George Floyd and racial violence generated an unprecedented level of interest and readership.  We offer this digest of the blog entries to aid folks who may want to draw these postings for teaching or other purposes:

We posted two official statements, one from Cornell Law School’s BLSA and another from the Washington State Supreme Court.  In addition, Amanda Lyons of the University of Minnesota provided a reflection from the human rights community there.  We also posted links to several on-line discussions of the issues.

A trio of blogs provided a perspective from Europe. Michael McEachrane, a visiting researcher at the Raoul Wallenberg Institute of Human Rights and an expert on Afro-Nordic issues, offered a Love Letter to the Protesters. Gerard Quinn, a leading disability law scholar, looked to history for lessons on the way forward.  Morten Kjaerum, Director of the Raoul Wallenberg Institute, expressed the hope that events in the U.S. would encourage Europeans to confront their own racist history.

U.S.-based law professors offered their own perspectives. In Racism and the Asian American Divide, Margaret Woo reflected on the position of Asian Americans in current events.  In Dialogue Rather than Danger, Jeremiah Ho wrote about decades of racial violence and responses, calling for a move beyond superficial gestures to transformative change. Jeff Baker drew on international law norms to examine on George Floyd’s murder through a human rights lens.  Juneteenth was the subject of Justine Dunlap’s timely blog of the same date.  Margaret Drew remembered feminists’ call that men “get their feet off our necks,” a parallel to current calls for justice.   

Finally, Gay McDougall, a leading human rights activist and scholar, offered her own report and assessment of the UN’s response to George Floyd’s murder.

While our mini-Symposium is ending, this is not the end of our postings on these issues.  More is to come.

"Get Your Knees Off Our Necks"

Law professors and moviegoers may associate the phrase "Get your feet off our necks" with Justice Ruth Bader Ginsberg.  In both the documentary "RBG" and the movie "On the Basis of Sex" we hear Justice Ginsberg say "I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks."  Many readers may not appreciate that Justice Ginsberg was quoting Sarah Grimke, a 19th century southern abolitionist who relocated to Philadelphia along with her sister, Angelina.  Following the end of the Civil War, Ms. Grimke turned her attention to feminist issues.  In that context, she said: "But I ask no favors for my sex. I surrender not our claim to equality. All I ask of our brethren is, that they will take their feet from off our necks, and permit us to stand upright …”

The current demonstrators incorporated the slogan substituting "knees" for "feet".  Appropriately so.  While the Grimke sisters were dedicated abolitionists, who themselves were criticized and threatened, they did not promote equality between Blacks and Whites.  Paraphrasing Sarah's statement expands the work of the Grimke sisters.  The revised phrase is apt.  Not only does the Floyd video show the perpetrator's knee as the deadly weapon, but more reports have surfaced supporting that police have used the same deadly technique on other black people.  

Demonstrators using the paraphrased words of Sarah Grimke to reflect current reality may finish what the abolitionists left undone.  Enslaved people were legally freed but then the law was used to continue their enslavement in different forms.  Equality and equity were never achieved.  Now is the time to make this right.

The UN Makes Unprecedented Response to George Floyd’s Murder

Editors' Note:  We continue our symposium in the aftermath of Mr. Floyd's death with this post on the United Nation's response.

By Guest Contributor Prof. Gay McDougall

Senior Fellow and Distinguished Scholar-in-Residence
Leitner Center for International Law and Justice/Center for Race, Law and Justice
Fordham University School of Law

Former Vice Chair, UN Committee on the Elimination of Racial Discrimination 

Former UN Special Rapporteur on Minorities

This week governments and civil society around the world joined forces to pressure the UN to adopt a resolution responding to the murder of George Floyd and other unarmed African Americans.  The resolution passed on June 19^th, 2020, celebrated by Black Americans as the day of emancipation from enslavement, was historic in many ways and in some ways disappointing. 

The original draft that was introduced by the African Group at the UN Human Rights Council in Geneva, was a response to a letter from the families of George Floyd, Breonna Taylor, Michael Brown, and Philando Castile, together with Black Lives Matter, the NAACP and over 670 rights groups led by the American Civil Liberties Union, the U.S. Human Rights Network, and myself as Senior Advisor, wrote a Coalition Letter to the United Nations Human Rights Council appealing that it swiftly convene a special session to investigate the escalating situation of police violence and repression of protests in the United States.

“Mamie Till Mobley made a decision to open the casket of her son Emmett Till so the world could see the atrocities Black people faced in America. I want people across the world and the leaders in the United Nations to see the video of my brother George Floyd, to listen to his cry for help, and I want them to answer his cry,” said Philonise Floyd, brother of George Floyd. “I appeal to the United Nations to help him. Help me. Help us. Help Black men and women in America.”

The Coalition Letter warned of an “unfolding grave human rights crisis” in the United States and describes the recent police killings of unarmed Black people as well as police use of excessive force to suppress protests as violations of United States obligations under international law. It called on the U.N. to mandate an independent inquiry into the killings and violent law enforcement responses to protests, including the attacks against protesters and journalists. The letter also calls for a U.N. investigation into President Trump’s order that maximum force be used.

“We are greatly concerned that rather than using his position to serve as a force for calm and unity, President Trump has chosen to weaponize the tensions through his rhetoric, evidenced by his promise to seize authority from Governors who fail to take the most extreme tactics against protestors and to deploy federal armed forces against protestors (an action which would be of questionable legality).”

“Our greatest concern is that the violence and counter-violence are diverting the gaze of the global community away from the pain being expressed by a nation in mourning over the callous manner of the 8 minutes and 46 seconds that ended George Floyd’s life while a group of police stood and watched, about the death of more than 100,000 souls from the coronavirus – disproportionately killing Black, Brown and Indigenous people – and about how injustice never ends and equality never comes. There is serious concern that the tear gas and police-induced havoc will obscure the legitimate passion of these demonstrations. The voices of the demonstrators must be heard. Their demand is that the endemic racism, hatred, fear and disparity finally be confronted.”

The call for a meaningful response from the UN Human Rights Council was joined by other human rights officials: United Nations Secretary-General António Guterres stated that “we need to raise our voices against all expressions of racism and instances of racist behavior.” The UN High Commissioner on Human Rights Michelle Bachelet, called for serious action to halt US police killings of unarmed African Americans and a Joint statement by 45 Special Procedures Experts of the HR Council said “[t]he uprising nationally is a protest against systemic racism that produces state-sponsored racial violence, and licenses impunity for this violence.”

The CERD Committee issued a very strong statement under its Early Warning and Urgent Action Procedures expressing grave concern over the “horrific killing of George Floyd” and calls for accountability and immediate and appropriate reforms aimed at eliminating racially disparate impacts or structural discrimination in the police and the criminal justice system.

In a joint OpEd signed by all the Under-Secretary Generals of the UN, they committed to take effective actions that will go beyond words.

And the African Group (which represents 54 UN Member States from the African continent) requested an “urgent debate” during the Human Rights Council session “on the current racially inspired human rights violations, systemic racism, police brutality and the violence against peaceful protest.”

In an unprecedented move, the Human Rights Council session began with a video appeal from the Special Rapporteur on Racism, Tendayi Achi---, that broke with all traditions of diplomatic double-speak in challenging the Council to not miss this chance to be on the right side of history. That was followed by an impassioned appeal by video from the brother of George Floyd.

As negotiations started on the strong draft resolution submitted by the African Group, it became clear that we were up against formidable headwinds. We were told that representatives of the US were “bullying” delegates: for example, threatening to impact the foreign assistance to their countries unless all references to the US is deleted along with the call for the establishment of a commission of inquiry—even demanding the name of George Floyd be deleted. Over the next few days, the forces against us succeeded in watering down the resolution until only its bare bones remained. 

Still, the final resolution calls on the High Commissioner to prepare a comprehensive report on systematic racism, policing practices such as that led to the killing of George Floyd, violence against protesters, and related incidents globally.  This is a significant step forward in a continuing struggle.

On-Line Events Emphasizing Racial Inequities

African American Policy Forum -Under The Blacklight Series

 

If you did not have an opportunity to participate live in discussions organized by the African American Policy Forum it is not too late to hear the amazing speakers.  All ten of the presentations are available on YouTube.  Prof. Kimberle Crenshaw of UCLA is the moderator of this timely and informative series.  The series began prior to George Floyd's murder, and by a week after, with demonstrations in progress nationwide, over 7,000 participants tuned in to hear from those whose professional and personal experiences informed their views intersectional vulnerabilities. This week an 11th session was recorded addressing #SayHerName.   If you subscribe to the email list, you will receive timely notice of future events and updates of AAPF's work.  The AAPF also hosts #SayHerName. The website is worth reviewing. Among other information, you will find a Primer on Intersectionality.

 

Envisioning the Future Series:  Advancing Human Rights in a Time of Crisis

University of Minnesota Human Rights Lab and Center for Global Health and Social Responsibility

Online Event

Addressing Racial Inequities in Health Outcomes during COVID and Beyond

Wednesday, June 24, 2020

1:00 – 2:00 pm Central Time

Join us at: z.umn.edu/EFwebinar

Speakers:

Prof. Tendayi Achiume, UN Special Rapporteur on Contemporary Forms of Racism, racial discrimination, xenophobia and related intolerance, UCLA School of Law, Promise Institute of Human Rights

Dr. Rachel Hardeman, University of Minnesota School of Public Health

Dr. Sirry Alang, Lehigh University, Sociology and Health, Medicine, & Society

Moderator:

Dr. Shailey Prasad, Director, University of Minnesota Center for Global Health and Social Responsibility

This webinar is part of a series entitled “Envisioning the Future: Advancing Human Rights in a Time of Crisis.” The aim is for us to not only address the immediate impacts of this crisis, but to use this historical moment to look beyond the events unfolding on a daily basis, identify the gaps in protection, and propose legal and policy changes that will advance human rights in the long run.  

Co-hosted by the University of Minnesota Human Rights Lab and the Center for Global Health and Social Responsibility. Join us at: z.umn.edu/EFwebinar

Juneteenth

Editors' Note: Continuing our symposium on Black Lives Matter, we publish this post for Juneteenth

By Co-Editor Prof. Justine Dunlap, UMass Law School

In the 7-10 days before Juneteenth, it has gotten a good deal of attention. For this increased awareness, we have President Trump’s scheduler to thank. That person initially selected this date for Trump’s first height-of-Covid rally in Tulsa, OK.  This choice was particularly problematic because of the Tulsa race massacre that killed many black people in the affluent black neighborhood of Greenwood in Tulsa in 1921.

Much outcry ensued over this scheduled event and now a lot more white people know a lot more about Juneteenth, the real emancipation day for enslaved African-Americans. It occurred on June 19^th, 1865, when news of Lincoln’s January 1863 Emancipation Proclamation reached and was read to enslaved people in Galveston, Texas. Many of us, regardless of race, had been taught that Lincoln’s document did the trick, with an occasional hint that there were some problems with that interpretation of history. Imagine being free but not being informed of that freedom for 2 & ½ years.

Once celebrated officially primarily in Texas, Juneteenth is an official state holiday in 46 states and is celebrated by parades and other festivities befitting a joyous day of independence.  Juneteenth.com contains much information about this critical yet under-celebrated day.  Spend some time today exploring it. It also contains the poem below by Kristina Kay Robinson.

“We Rose”

From Africa’s heart, we rose

Already a people, our faces ebon, our bodies lean,

We rose

Skills of art, life, beauty and family
Crushed by forces we knew nothing of, we rose

Survive we must, we did,
We rose

We rose to be you, we rose to be me,
Above everything expected, we rose

To become the knowledge we never knew,
We rose

Dream, we did
Act we must

Toward a New Economic and Social Contract – Lessons from History

Editor's Note: Continuing with our symposium on racial injustice, Gerard Quinn brings us this comparative perspective. Professor Quinn is Raoul Wallenberg Chair of Human Rights and Humanitarian Law.

Pinning someone to the ground until their life expires is hardly a model for good community policing.  There is something universally repulsive in such a gratuitous act of violence.  All right-thinking people everywhere in the world recoil from it.  

But violence takes many shapes.  To a certain extent, the violent death experienced by our brother George is just the tip of the iceberg.  That is why the clamour for change includes but goes far beyond policing.  In truth, George is the latest victim of a deeper malaise that has so far defied meaningful change.

The malaise I speak of has to do with deep structural economic violence based on race.  It can and does reach across the generations and leave a lasting imprint over time.  The missteps of the past never really go away.  They are literally encoded and embodied in how people experience their own lives.  

Sometimes it is important to stand back from the familiar to assess what might have been -and what still might be with sufficient political will.  The many badges of inferiority inserted into the Constitution, and implied into by it by wayward courts, were always strikingly at odds with the philosophy of the Revolution – the inherent equality of mankind.  Franklin was acutely aware of the contradiction from the very beginning.  What held it in place was the burgeoning economic system and the dependency of the South on cotton and the exploited labour of people of colour.  The growing clamour to make ‘freedom national’ came from the move toward ‘free soil and free labour’ – an effort to deconstruct the economic models of the 1860s and to turn toward a much more radical (though classically conservative) free market model.  Even before anyone heard the name Hayek, a link was being drawn between economic freedom and political liberation.  

A crucial moment came and went.  Toward the end of the Civil War there was a clamour to break up the landed estates (plantations) and distribute the land to those who toiled in the fields (‘forty acres and a mule’).  This was no less a call to end the economic system that sustained slavery in the first place and to replace it with a system that assured some measure of basic income and employment – and the independence that normally goes with that.  Some estates were broken up.  But the process was thrown into sharp reverse once Andrew Johnson assumed the Presidency.  The cruelty of throwing people out of the land they had only just acquired must have been extremely painful.

Things could have been quite different.  At around same time (1860s-1890s) Britain dealt with a similar problem quite differently.  Ireland suffered a massive famine in the late 1840s.  The famine was not due primarily to a lack of food on the island. Food was plentiful – but the Government insisted that it be exported.  A laissez faire policy was followed regardless of its callous impact on the majority of the people who worked the land.  Mass children’s graveyards can still be seen in my neighbourhood as a result.  Most of the land was held in large estates.  The people were treated no better than legal serfs.  Over time – and due to the franchise (limited though it was) pressure grew on the British Government to break up the big estates, compensate the landowners and distribute the land to those who worked in the fields.  This was done through a series of Land Acts in the 1870s – at exactly the same time that former slaves in the US were being forced back onto the land in dire circumstances. 

Of course, this was never going to be enough to halt the clamour for political independence in Ireland.  But this act by the British set in train (admittedly over time) a positive dynamic of change that has been largely absent for former slaves in the US.  First of all, a system of national primary education (i.e., not funded by the local tax base) meant that every child could dream big and was encouraged to do so.  Secondly, a stern commitment to universal suffrage meant there was no room for suppression of the vote.  Third, the social model was changed from the odious Poor Law which stigmatised and blamed the poor for their own situation.  Last, the policing system was re-designed to be as close to the community as possible (and crucially unarmed).

The moral of the story:  Civil and political rights need to be respected.  But they depend on economic and social justice to give them reality.   The failure to break up the plantations and distribute the land in the aftermath of the Civil War was a culpable disaster.   As the British showed in Ireland it could have worked – or at least provided a foundation for further development.  A new economic and social contract is now urgently needed partly to compensate for the past and to build a more inclusive future.”

A Victory For Equality and The Rule of Law

Guest Blogger Professor John Rice, UMass Law School, shares his thoughts on Bostock v Clayton County, Ga.

On June 15, 2020, the Supreme Court announced its opinion in the Title VII trifecta—Bostock v. Clayton County., Ga.; Altitude Express, Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At the outset, I acknowledge the roles that Aimee Stevens and Donald Zarda played in this litigation. Both litigants passed away prior to the Court’s ruling in their cases. I thank both of these individuals for their courage and veracity in bring these suits, and I offer warm wishes of peace and comfort to their loved ones.

 This opinion has been hailed—rightly—by many as a significant civil rights victory, particularly regarding equality for the LGBTQIA+ community. Captioned Bostock (Bostock was the first of the three cases docketed), the Court considered whether the prohibition of “discrimination on the basis of . . . sex” set forth in Title VII of the Civil Rights Act of 1964 extended to prohibit discrimination of the basis of sexual orientation or gender identity. The Court presented what it characterized as a simple answer to a simple question: “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex[.]” Thus, an employer who engages in such discrimination violates Title VII.

I receive this victory with cautious optimism. Much should, can, and will be written about the “next” issues arising and the inherent limits of the moment. The Court was construing Title VII, which only applies to employers who have more than 15 employees and from which religious organizations are exempt. Relatedly, it’s hard to avoid noticing that Justice Gorsuch allocated almost two pages (out of thirty-three) discussing what issues are not before the Court, including any purported tension between non-discrimination and an employer’s religious convictions. Indeed, a case in the Court’s pipeline—Fulton v. City of Philadelphia—will soon explore that precise issue. Additionally, Bostock only addressed the term “sex” in the context of a single statute; it remains unseen whether the term “sex” likewise encompasses sexual orientation and gender identity for purposes of heightened constitutional scrutiny. Likewise, across the country, the federal executive and state governments are engaged in a barrage of attacks against the LGBTQIA+ community, including rolling back healthcare protections and permitting adoption discrimination. Without doubt, the fight continues. But for now, let us take a moment to celebrate and breathe a sigh of relief.  

I join with those who offer praise for the Court’s ruling. While, for most, the jubilation is over the victory for the equality movement, we should also celebrate this opinion as significant in advancing the rule of law and promoting public confidence in the judiciary. The principles underlying the rule of law can generally be framed as three core values: first, that no one is above the law and no one is beneath it; second, that law is formed through a public and transparent process—there is no such thing as “secret” law; and finally, that the institutions that make, interpret, and enforce our laws are consistent and predictable. In Bostock, the Court fulfilled each of these promises.

Most notably, Bostock is about statutory interpretation. Here, the Court engaged in one of its most foundational duties and employed familiar canons of statutory construction to arrive at its conclusion. While acknowledging that the statute’s drafters may not have anticipated this particular application of the law, the letter of the law still necessitated the conclusion. In fact, the majority reasoned that adoption of the employers’ positions would be a deviation from the plain language of the statute. Despite sharp criticism from the dissents that the Court was expanding the plain language of the statue, “legislating from the bench,” the majority made it clear: “homosexuality and transgender status are inextricably bound up with sex.” Thus, discrimination based on sexual orientation or gender identity is discrimination based on sex, which is prohibited by Title VII.

            Next, Bostock was consistent with the Court’s precedent and offered an analytical framework for moving forward. The Court primarily relied on three of its past Title VII rulings: Phillips v. Martin Marietta Corp., L.A. Dept. of Water & Power v. Manhart, and Oncale v. Sundower Offshore Services, Inc. Each of these cases involved “sex plus” discrimination—that is, discrimination on the basis of sex “plus” something else (e.g., having young children, a longer life expectancy, or being of the same sex as one’s harasser). Although the discrimination may have been primarily motivated by the non-sex factor, each instance nevertheless still involved sex, and was therefore prohibited under Title VII.

            Similarly, Bostock offered a framework for legal analysis in future cases. Unlike some of the Court’s past monumental opinions, Bostock did not rely on evasive principles such as “dignity,” “intimate association,” “[safeguarding] children and families,” or “the Obergefell v. Hodges, 576 U.S. 644 (2015), or United States v. Windsor. Of course, this may be attributable to Bostock’s presentation of a different sort of legal issue, one that is more technical and separate and apart from issues of fundamental rights under the Constitution. But still, Bostock offers sound insight into how courts may in the future analyze other prohibitions of discrimination based on sex, such as in the context of healthcare, education, or adoption.

            Finally, the Court soundly rejected the notion of “secret” law or the idea that a legislature’s subjective intent—or perhaps even just the subjective intent of a few legislators—could supersede the plain language of a statute. Certainly not. In a line that sent chills up my spine, the majority reminded us: “Only the written word is the law, and all persons are entitled to its benefit.”

Indeed, your Honors. Indeed.

George Floyd's Human Rights

Editors' Note:  Prof. Jeff Baker sends this post from Pepperdine's Caruso Law School, reflecting on Mr. Floyd's human rights.

The murder of George Floyd is a moral outrage that violated his human rights. Like countless Black people before him, a state agent summarily and brutally executed Mr. Floyd with no legal justification, due process, or expectation of accountability. The police officer, knowing he was on camera, acted with supreme confidence that he had the power to kill a Black man in the street. 

Americans often discuss human rights abuses as events that happen elsewhere. We are apt to discuss civil rights at home, even while we’re quick to critique other nations’ human rights abuses. This may be due to convictions about sovereignty, suspicions about international organizations, or an assumed moral superiority, but I suspect we do not look to human rights principles because we have made sure our international human rights obligations are rarely legally operable. That is, the U.S. has not consented to meaningful enforcement of international human rights laws. We have chosen to trust ourselves and to reject accountability outside our vaunted sovereignty.

Human rights arise from ineffable conscience that transcends positive law, but human rights laws codify some of those ideals in operable language. The U.S. has signed and ratified a few conventions that create international human rights law, so by ratifying them, the conventions become part of the constitutional, supreme law of the land. Notwithstanding weak enforcement mechanisms, they are law, so the U.S. must reckon with its obligations.

The Universal Declaration of Human Rights founds modern iterations of human rights on a bedrock: “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Every convention enumerating human rights builds on this precept, including the Convention Against Torture and Other Forms of Cruel, Inhuman and Degrading Treatment or Punishment, ratified by the U.S. in 1994.

Under the Convention, torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official. . . “

The state obligation is “to take effective legislative, administrative, judicial or other measures to prevent acts of torture.” “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel . . .  who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.”

These rights are non-derogable, and “[s]tates parties are obligated to eliminate any legal or other obstacles that impede the eradication of torture and ill-treatment; and to take positive effective measures to ensure that such conduct and any recurrences thereof are effectively prevented. . . .”

Did the Minneapolis Police violate the Convention? Have our governments done enough to eradicate torture and ill-treatment by public officials?

For nearly nine minutes after being restrained in handcuffs, a uniformed police officer ground George Floyd into the asphalt, even as Mr. Floyd begged for his life, gasped for air, called out for his mother, and stopped breathing and moving. The State of Minnesota charged the police officer with murder and the attending officers with related crimes, but, by these officers’ actions, the State very likely violated human rights law against ill-treatment. Per the Convention:

States bear international responsibility for the acts and omissions of their officials. . .  acting on behalf of the State, in conjunction with the State, under its direction or control, or otherwise under colour of law. Accordingly, each State party should prohibit, prevent and redress torture and ill-treatment in all contexts of custody or control. . . .

These abuses are common in our history, certainly no mystery to Black people. As social media and smart phones force all of us to bear witness, again and anew, they shock our collective conscience because these murders by state actors are affronts to indispensable human dignity. They always have been, but now we cannot look away, diminish or evade our collective burden to confront and eliminate them.

The state obligation is the people’s obligation. Because formal enforcement of international human rights laws is so weak, the bulwarks for human dignity are our democracy, politics, and the conscience of our people. Our governments must protect human rights. If we remain a self-governing republic, then we all bear a profound obligation to vote, speak, and govern to defend the inherent dignity of every person.   

SCOTUS’ Landmark Reading of Title VII “Sex” As Encompassing Sexual Orientation and Gender Identity

Parallel to our symposium on Mr Floyd's death and the aftermath, we are running posts on this term's Supreme Court decisions having human rights and civil rights implications.  Prof. Shirley Lin of NYU Law School discusses an unexpected result.

In a historic opinion that reenvisions Title VII as “sweeping” and “expansive,” the Supreme Court ruled that hostility against an individual for “being homosexual or transgender” is sex discrimination in Bostock v. Clayton County, Ga.  One of the broadest readings of Title VII in decades, the 6-3 opinion implicitly honored the courage and perseverance of plaintiffs Aimee Stephens and Donald Zarda, whose cases were consolidated with Gerald Bostock's but who unfortunately passed away before hearing the opinion issued.  The Court recognized their dedication to their employers and, using accessible language, acknowledged their gender identity and sexual orientation with dignity.

The cases hinged upon Title VII’s statutory language, which states simply that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual . . . because of such individual’s . . . sex.” 42 U.S.C. § 2000e–2(a)(1).  Relying upon reasoning that alternated between textual, plain meaning, and a concerning debut of “ordinary public meaning” as to a remedial civil rights statute, Justice Gorsuch wrote:

"An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision; exactly what Title VII forbids."

Bostock represents a major shift in how courts analyze discriminatory intent in Title VII cases.  By providing a categorical rule that one’s status, “trait or actions” related to sexual orientation or gender identity, is “sex”-based, the opinion is a landmark victory for LGBTQIA+ communities that further eases the burden judicial interpretations had until now made very difficult in proving claims that raise the social traits of race, color, national origin, and religion.  The opinion acknowledges that but-for causation “can be a sweeping standard” that “often [includes] multiple but-for causes,” but the sea change lies in the following passage:

Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

Among the remarkable aspects of Bostock is its elevation of multiple motives in its broadened description of but-for causation while ignoring the less-preferred alternative called “motivating factor.”  It implicitly responds to a doctrinal correction as to causation instigated by lower courts that read the statute’s plain text to include any subordination of a worker beyond the Court’s gratuitously narrowed articulation of but-for causation over the last two decades.  Those courts read the protected trait of “sex” through social construction evidence, which the Court did in the above passage through a comparative argument.

Notably, because the circumstances of all three plaintiffs did not involve non-binary gender presentation the Court sidestepped having to define “sex” conclusively and left the question for a future case in stating that it “proceed[ed] on the assumption that 'sex' [in 1964] signified what the employers suggest, referring only to biological distinctions between male and female.”  The majority acknowledged “nothing in [its] approach to these cases turns on the outcome of the parties’ debate” over whether sex’s meaning includes “norms concerning gender identity and sexual orientation.”  But implicitly, the Court for now viewed both statuses as a “plus” in the vein of its sex-plus precedent, rather than as subsets of “sex.”  It also reserved for another day the application of religion objections brought by both religious employers, exceptions for ministerial employees, and claims under the Religious Freedom Restoration Act, as none of those issues were raised on appeal.

Not content with the majority’s imputed meaning of sex “in 1964,” in a dissent joined by Justice Thomas, Justice Alito accused the majority of judicial legislating, and Justice Kavanaugh separately wrote: “Seneca Falls was not Stonewall . . . . [T]o think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology.”

Particularly in light of the Trump Administration’s relentless assault on the legal rights of LGBTQIA+ communities, the decision has potent implications for Title IX, which is viewed as analytically identical to Title VII and yielded equally momentous public-school student victories that propelled public support for communities nationwide to affirm transgender students’ gender identity.  Today’s decision indeed marked a euphoric moment for the triumph of principle over ends-driven interpretation.

Thank You For Helping Europe

Editors' Note: Continuing views from Europe, Prof. Kjaerum sends this post.

Morten Kjaerum, Adjunct Prof., Aalborg University Law School, Denmark

Director of Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Sweden

Former member of UN Committee on the Elimination of Racial Discrimination

“For 400 years, we have been suppressed. Now it is time for change.”  The Afro-American community with supporters from many other communities across the US are sending clear messages about change. The message is so clear that it is picked up at the root of the historical injustice in Europe. The statue of slave trader Edward Colston in the harbor of Bristol which has stood there for 125 years, was finally pulled down by demonstrators and absorbed by the water. Suddenly, it is a mystery to everybody that it has had such a prominent position in Bristol for so many years without protests. During these weeks, this scenario is repeated across Europe.

The neglect of the historical wrongdoings and the profound unwillingness to address them should be seen in the light of studies across Europe that unanimously show that Afro-Europeans are the most discriminated against people in Europe. The European Union Fundamental Rights Agency published in 2019 a study, “Being Black in the EU” that in great detail and depth describes a high level of discrimination in most EU countries. This report together with previous reports go un-noticed.

In the report, 30% of the respondent say they have been racially harassed. One fourth have been stopped by the police. A majority (63 %) of victims of physical racist attacks by a police officer did not report the incident to anybody, either because they felt it would not change anything or because they do not trust the police.

The European situation is less grave than the one in the US, or as expressed by a French sociologist: “in the US the police kill people, in France they only mutilate them”.

In light of this, the resounding call for change in the US can be a wakeup call for Europe before it spins out of control. The timing is good. The call from the American movements could merge with the Covid-19 call from the UN Secretary General: Build back better. Reports are now being released recognizing that in many European countries the Afro-Europeans and ethnic minorities have suffered disproportionally in the Covid-19 crisis. Not because they could not read or because they follow traditional customs as often claimed by populists, but rather because they were in frontline functions as nurses, taxi-drivers, and shop stewards trying to assist as best they could. They again paid a higher price than others, but this time it has become visible. This fact has finally been understood and picked up thanks to the mirror provided by the demonstrations in the US.

The economic aid-packages linked to the Covid-19 crisis are already linked to climate and environmental issues. In some countries, they are also linked to issues related to tax havens. The question is if these packages can be used as a lever for more inclusive societies, with the aim of bringing those that are left behind or discriminated against to the forefront. These disempowered groups should be supported and profound reforms insisted on. EU labels itself as a human rights front runner, so this is an obvious approach to building back better.

In this process, obvious partners are the many human rights cities across Europe and in all continents. The inclusive city is a place where everybody feels safe and welcome. It is a city without slave traders and other perpetrator statues, and instead a city using its historical past as an inspiration for creating a better city for all.

Observed from Europe, it is inspiring to follow the actions taken by some cities in the US addressing the unrest and the demonstrations. In particular, Minneapolis stands out by taking steps to dismantle the police force to create a new security system based on trust and human rights values. It has the potential to become a source of inspiration for similar changes in all continents struggling with powerful police forces far from a human rights-based approach to their work.

So, with this, a huge thanks to the protest movement across the US for assisting Europe in opening its eyes to its own history and challenges with racism. There is a vast agenda for everybody to contribute to turning the tide. There is no time to waste if the right to a future shall be realized for everybody. To paraphrase the German thinker Ulrich Beck; ‘this should not be a gradual change, nor a revolution but a metamorphosis’. 

 

Reflecting on our Role as a University of Minnesota Human-Rights Community

Editors' Note:  In our continuing symposium we hear from Minnesota through a Human Rights framework.

By guest blogger Amanda Lyons  

Executive Director at the Human Rights Center, University of Minnesota Law School

                                                                   


In Minnesota we find ourselves grieving and challenged by yet another horrific act of racialized state violence. In the fallout, our “Minnesota Paradox” has been dramatically exposed to the world. The voice and clarity of racial-justice advocates in our community, and the incredible groundswell of support, compels us to take greater action to live up to our human-rights identity and ideals.

Out of a desire to speak out with a shared voice, the University of Minnesota Human Rights Lab published a brief statement to condemn the killing of George Floyd, to denounce the pervasive racial inequalities in our community, and to call for a rights-based response at all levels. We sought signatures from our community of 80+ human-rights faculty across campus, and the statement swiftly received over 4,000 endorsements system-wide.

In response, an alumnus shared that as a member of the Black American Law Student Association (BALSA) in the early 1980s he had worked with Prof. David Weissbrodt to research and report on the racist killings of black people by the police in the U.S. They made two submission to the U.N. Subcommission on the Prevention of Discrimination and Protection of Minorities (in 1982 and 1983) and elicited a formal response from the U.S. government.

At first I was moved by this pioneering “human rights at home” work as a testament to the University of Minnesota’s long legacy of inspiring and preparing students to engage with international human rights to advance individual rights and social justice. But it is devastating to acknowledge that nearly 40 years later, our 2020 Black Law Students Association has to lead on the same issue.

Despite the intractability of these injustices, it does seem that in this unique moment and confluence of events, the movements have created an opening for real change. Amidst the grief and turmoil here in Minneapolis, we are seeing the uprising, outpouring, and activism lead to unprecedented institutional steps:

• The Attorney General took over the case from the county prosecutor, all 4 ex-police officers were arrested, and additional charges were brought.
• The Minneapolis City Council banned chokeholds and impose an affirmative duty on police officers to intervene in the case of excessive use of force.
• The Minnesota Department of Human Rights announced it will open a Commission of Inquiry to “address systematic discriminatory practices” over the past 10 years.
• In what the Police Chief calls part of “transformational” reforms, he has withdrawn from contract negotiations with the police union and its controversial president.
• The Minneapolis Public School Board voted unanimously to terminate their contract with the MPD
• The Minneapolis City Council voted to disband the police and pursue alternative models.

The day after George Floyd was killed University of Minnesota student body president, Jael Kerandi, demanded that the University cut ties with the MPD and called for a response by University leadership within 24 hours. The next day University President Joan Gabel shocked many by announcing the University was taking immediate steps to change its relationship with the MPD and would no longer contract for additional law enforcement support. Many welcomed the announcement as a sign of bold leadership and a building block for real change.

Since then, prominent Minneapolis cultural institutions have also pledged to cut ties with the MPD, including the Minnesota Orchestra, Minneapolis Institute of Art, Walker Art Museum, and beloved First Avenue, which said it will “instead work with local organizations who represent our community, and who will protect and affirm Black and Brown lives.”

These steps reflect and contribute to the growing support for reallocating funding away from policing and into services and models designed to respect and promote human rights, address root causes, and take on systemic disparities. The recent statement led by UN Special Rapporteur on Racism, Prof. Tendayi Achiume lays out the strong human-rights underpinnings for this call, as do our friends at the Minneapolis-based Advocates for Human Rights.

Despite our history of racialized police violence here in Minnesota, including the killing of Philando Castile, there has never been such a resounding demand for change. Until just a few weeks (or even days) ago, calls to radically alter our relationship with the police and policing were unimaginable for most.

We see the importance to act as a University human-rights community in support of these historic efforts to advance racial and social justice in our state and country. We are committed to advocating human-rights values in our own institution and to pushing on questions of legacy and building names, diversity and equity, and the role for the University in advancing human rights in our state. In the face of a toxic national climate of violence and bigotry, the vision, energy, anger, and leadership of our students (like many before them) compels us to see the chance of real change where we thought impossible.

A Love Letter To The Protesters

Editors' Note:  In our ongoing series on the impact of George Floyd's death, we post a perspective from Europe.

By guest blogger, Michael McEachrane

Visiting Researcher at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law

Dear Protesters,

I love you all. I could never have imagined that protests against systemic racism of this magnitude would erupt during my lifetime and not only in the US, but here in Europe and across the world. Last time, just a few years ago, bigots and confused individuals wanted to dismiss #BlackLivesMatter with propositions that “all lives matter”—as if morally, politically and legally that was not precisely the point. However, this time it is different. I see young Black people taking the lead as they should, but also that the crowds of protesters seem very mixed, include many white protesters and now in every corner of the world. As if to say that these issues should concern us all and are about what kind of societies and world we want to see. “No justice, no peace!” Indeed, indeed. I’m delighted that hundreds of thousands of you are recognizing that systemic racism is real, has a long history (toppling the statue of “slave trader” Edward Colston in Bristol and throwing it in the river was a clear statement of this) and that our societies are in grave need of transformation if they are to be based on principles of human dignity, equality and non-discrimination.

However, dear protesters, I also have one concern with these mass protests. And it is not the display of police brutality, even against peaceful protests. Nor the occasional looting of even small businesses. My greatest concern is that these massive pandemic defying and awe inspiring displays of solidarity for racial and social justice, eventually will blow over without a trace and merely leave a sweet (maybe even, with the passing of time, bitter-sweet) memory of unrealized potential.

Dear protesters, I’m praying that policy- and law-makers across the world will heed your urgent calls for reform. However, judging from the many past protests in developed countries in recent decades that have come and gone without a trace of substantial change, I’m not hopeful. I do not mean to put down what you are doing or to burden you in any way, still, the crux of the matter is that it seems to be mostly up to you protesters and activists to find creative ways of translating your protesting into policy-making, reform and institutional transformation. At the end of the day, without such translation, your massive protests in all their grandeur, expressiveness and beauty of spirit, may amount to little if anything at all.

Dear protesters, as much as I love you and what you’re doing, this worries me.

A related concern is that these protests will end up merely being an insignificant ripple on the surface of a sea of historically amassed racial injustices and inequities within societies in the “New World” across the Americas, throughout the developed world, including Europe, New Zeeland and Australia as well as between developed and developing countries in the organization of the global economy, who produces what, how, for who’s consumption and profit and to whose environmental costs, who-owes-who-what-and-why, the lack of democracy at the United Nations, the World Trade Organization, World bank and International Monetary Fund, who has the greatest freedom of movement in the world and who the least, who has the most access to resources, human rights, freedom from want, education, health care and so on.

Dear protesters, I’m hoping that as many of us as possible will find it in us to take your calls as a wakeup-call for the extensive work that needs to be done to create social and international orders that truly “leaves no one behind” and are guided by a sustained, thorough, meticulous care for the dignity of the human person without distinction or discrimination.

Dialogue Rather Than Danger

by Co-Editor, Prof. Jeremiah Ho, UMass Law School

One lucid memory from my Southern California childhood was that of watching from our family living room the live TV newscasts of civil unrest in the days following the verdict of the first Rodney King beating case.  Koreatown and South Los Angeles stretched some considerable, and yet short miles west from where we lived in the valley.  So out of an abundance of caution, school was cancelled during the Los Angeles riots, and my younger sister and I, both in junior high school then, were under strict parental orders to stay indoors at home.  The endless news footage of revolt-turned-rampage became the regular daytime programming we absorbed continuously from our living room couch during those stay-at-home days.  We watched with our homework laid out on our laps and with questions of whether such violence might end up at our doorsteps superstitiously suppressed within our imaginations. 

Twenty-eight years later, while still sitting on the edge of the same living room couch that my parents have kept in our living room since the 1990's, and locked down in the same house during these new stay-at-home days, I viewed with eerie, heightened familiarity as an incident of police brutality and racial violence then resulted into days of outrage, protest, fire, and destruction that spread not only to the streets of Los Angeles but worldwide as well.  I blinked in 1992, and now decades later, my eyes open only to pick up watching the same live narrative.  The single patently obvious distinction seemed to be that these images of urban fire, ruin, and anger were now unfolding from the digital tablet on my lap.   

In the immediate days after the L.A. Riots, Rodney King wearily pled for peace on television by asking, “Can we all get along.”  He exhorted this sentiment after having been beaten on the side of a freeway in 1991, after watching the officers who had assaulted him dodge criminality in the first trial, after the fires in the city were finally smoldering down.  After Mr. King died in 2012, that famous question was set on his grave.  In raised metallic, all-cap letters, “Can we all get along” was bonded distinctly without a question mark at the very bottom of his gravestone plaque, deliberately rhetorical and open-ended, reminding us specifically of what Mr. King imposed upon our humanity in his televised soundbite.  Without the interrogative punctuation, “Can we all get along” also seems, in a disembodied way, to urge us imperatively to grasp for unity in our current world.  In 2020, that question (or directive) is being implored from a lonely grave in a Hollywood Hills cemetery to a world alive with (or dying from) vast income inequality, tribalist politics, alternative facts, social media hate-mongering, and selfish individualism.  I want to believe in a hopeful answer to Mr. King’s question.  I want to believe that the affirmative is possible.  

In order to get to that affirmative, we must first demand that the brutality against African-Americans and other people of color, as exemplified in the past and present incidents of Rodney King, George Floyd, and many others, was wrong and must end.  Racism and racial violence nullify a just and equal society.  From the unrecorded deaths of millions of enslaved people in our common history to the horrific lynching of African-American men during the 19^th and early 20^th centuries, we’ve had enough.  The riots I watched as a child in 1992 was not the first for Los Angeles.  Had I been alive in 1965, I would have witnessed the Watts Riots, an incident of civil unrest that also began with a police stop of a black man that went awry. 

And while we’re demanding an end to racial violence and overt acts of racism, we must also confront deeper obstacles keeping us from fully getting along.  At this juncture, the brutal conversation about white supremacy fueled by privilege must finally arise, even if it feels uncomfortable (as it should), even if it chokes us for the moment (unlike George Floyd or Eric Garner, we’ll survive, I promise).  A few days after George Floyd’s death, the heated Central Park exchange between Amy Cooper and Christian Cooper illustrates just how our racial tensions and inequality are multi-layered.  And so we must arrive at finding fault with the more subtle and entrenched ways our society disregards and devalues people based on differences such as skin color, gender, sexual preference, national origin, disability, income, class and the like—a practice so habitually pernicious that it is, in fact, institutional, structural, and systemic. 

In terms of race, white supremacy is not defined solely by deplorable acts of racial dominance and hatred that extremist groups such as the KKK exert against different people.  It also exists subtly in the deep-seated, privileged determination for a white person to not have to see color, and thus permitting the default norms of racial hierarchy to provide cover for that choice—to afford protection under the shield of plausible deniability that, for example, using the phrase “color-blind” seem to convey about a so-called tactic of egalitarian political correctness.  What actually happens when we purport not to see color under this paradigm?  More likely than not, we unconsciously dial our attention back to seeing the way things ought to be from the vantage point of whiteness because that has been the default normative perspective all along.  That’s what the plausible deniability is protecting: that we do end up seeing color and that color is white.  At heart, this is the innocent presumption of whiteness—the benefit of the doubt­ that society would have been more prone to bestow upon Amy Cooper had she falsely cried harassment against Christian Cooper in Central Park and had no contradicting smartphone video existed to protect him.

The same plausible deniability can also attempt to justify a white person’s choices to see color when it conveniently serves a purpose.  Ignorance cannot be blissful here.  It’s not enough to black out your Facebook or Instagram profile photo for Black-Out Tuesday only to replace it the following Wednesday morning with a selfie because the short-lived moment of respect and acknowledgement for the cause has appeared to have metabolized and you think you’ve done your part for racial justice.  As long as race construction continues to separate us, the ability to choose when to see color only reflects the privilege that veils and obscures deep insensitivity.  Until we abolish race construction in our politics, every day ought to be a Black-Out Day.  True virtue here can’t be earned through social media gesturing or other comparable shallowness, but rather through actively sustaining works of contrition and alliance by continually understanding our biases and confronting them before we again consciously or unconsciously marginalize based on race. 

As it is turning out, the fiery images from last week’s initial street violence isn’t repeating of the riots saga of 1992.  This time, it’s a little different.  Across the country, the numerous and widespread rallies that have outlasted the store-front wreckage and fire-bombed cars signal that it might not be danger that has arrived at our doorsteps, but dialogue and acknowledgement about race, including the subtleties of privilege that contribute to racial disparity and white supremacy.   Together, we must learn how to unravel these nuanced forms of racism so that we can all finally give Mr. King, and ourselves, an overdue response.      

The Judiciary Speaks

Editors' Note: Various state supreme courts have issued statements in the wake of George Floyd's death.  Members of the Washington State Supreme Court's letter is particularly introspective.

Dear Members of the Judiciary and the Legal Community:

We are compelled by recent events to join other state supreme courts around the nation in
addressing our legal community.

The devaluation and degradation of black lives is not a recent event. It is a persistent and
systemic injustice that predates this nation’s founding. But recent events have brought to the
forefront of our collective consciousness a painful fact that is, for too many of our citizens,
common knowledge: the injustices faced by black Americans are not relics of the past. We
continue to see racialized policing and the overrepresentation of black Americans in every stage
of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of
slavery: Jim Crow laws that were never dismantled and racist court decisions that were never
disavowed.

The legal community must recognize that we all bear responsibility for this on-going injustice,
and that we are capable of taking steps to address it, if only we have the courage and the will.
The injustice still plaguing our country has its roots in the individual and collective actions of
many, and it cannot be addressed without the individual and collective actions of us all.
As judges, we must recognize the role we have played in devaluing black lives. This very court
once held that a cemetery could lawfully deny grieving black parents the right to bury their
infant. We cannot undo this wrong⸺but we can recognize our ability to do better in the future.
We can develop a greater awareness of our own conscious and unconscious biases in order to
make just decisions in individual cases, and we can administer justice and support court rules in
a way that brings greater racial justice to our system as a whole.

As lawyers and members of the bar, we must recognize the harms that are caused when
meritorious claims go unaddressed due to systemic inequities or the lack of financial, personal,
or systemic support. And we must also recognize that this is not how a justice system must
operate. Too often in the legal profession, we feel bound by tradition and the way things have
“always” been. We must remember that even the most venerable precedent must be struck down
when it is incorrect and harmful. The systemic oppression of black Americans is not merely
incorrect and harmful; it is shameful and deadly.

Finally, as individuals, we must recognize that systemic racial injustice against black Americans
is not an omnipresent specter that will inevitably persist. It is the collective product of each of
our individual actions—every action, every day. It is only by carefully reflecting on our actions,
taking individual responsibility for them, and constantly striving for better that we can address
the shameful legacy we inherit. We call on every member of our legal community to reflect on
this moment and ask ourselves how we may work together to eradicate racism.
As we lean in to do this hard and necessary work, may we also remember to support our black
colleagues by lifting their voices. Listening to and acknowledging their experiences will enrich
and inform our shared cause of dismantling systemic racism.
We go by the title of “Justice” and we reaffirm our deepest level of commitment to achieving
justice by ending racism. We urge you to join us in these efforts. This is our moral imperative.

Racism and the Asian American Divide

This is the second in our symposium of posts reflecting on the murder of George Floyd and subsequent events.

by Guest Blogger Professor Margaret Woo, Northeastern University School of Law

Racism has always found its strength in divisions.   When I heard about the murder of George Floyd in police hands, my heart sank in grief.  When I heard that one of the three police officers involved was Asian-American, my heart sank even further.  What does this say about Asian Americans in America’s battle for racial equality?  How was I, an Asian American, to reflect and react?

Racism only works if it divides.  Rather than unity, racism finds its strength in dividing and conquering.  It has been successful in driving a wedge between working class whites and blacks when these two groups could and should have joined together to combat economic inequity.  It has also been used in dividing one racial group from another. Asian Americans have always been the foil in the racial divide, a group held up as proof of a meritocratic America, when the group’s image suits the narrative and rejected when it does not.

Asian Americans have faced discrimination since the late 1800’s from racial stereotypes such as “the yellow peril” to blanket structural discrimination exemplified by the Chinese Exclusion Act.   But the years since the 1960’s saw the evolution of the “model minority myth.”   Pointing to Asian Americans’ educational and economic achievements, politicians self-congratulate to conclude that America must not be racist because of how well Asian Americans have done in our country.  “If Asians could find success within the the system,” politicians asked, “why couldn’t African Americans?”  If Asian Americans can climb the social and economic ladder, why haven’t the African Americans?

The problem is that the “model minority” is a myth.  First, not all Asian Americans have  “made it” as many continue to face the proverbial “bamboo ceiling.” Asian Americans remain rare in upper echelon corporate and political positions.  Furthermore, the “model minority” myth hides the diversity of Asian groups that have immigrated to the U.S.  Those more educated from Taiwan or mainland China came to the U.S. to pursue higher education and were therefore inherently more equipped to take advantage of economic opportunities.  But there were also those Asian refugees who came via boats and refugee camps from the war-torn countries of Cambodia and Vietnam who were ill-equipped to deal with the challenges of language and or the skills required for a transition to a new country.  Some of these immigrants continue to face social problems of poverty and crime.

Second, the “model minority” myth is also problematic because it assumes that all racial groups face discrimination in the same way with the same history.  Absent the shackles of slave history, Asian Americans have always had a “home country” and an identity to turn to.  Discrimination against Asian Americans, while severe, was never on the same level as the discrimination faced by African Americans who experienced hundreds of years of subjugation.  Finally, despite the “model minority” myth, anxieties about Asians have never gone away.  Today, Asians are portrayed as global and political competitors.  Terrorist stereotypes placed on South Asians reflect the geopolitical anxieties of Americans, and the Chinese origin of the recent COVID-19 pandemic has led to a rise in anti-Asian violence.

But most problematic of all, the “model minority” myth may have led to the conduct of Officer Tou Thao, the Asian officer who stood by as George Floyd died, and that is, the incorrect assumption that race discrimination does not affect Asians at all, and that a place at the table requires joining into discrimination against African Americans.  Having fought for the same sliver of economic pie, Asians and African Americans have had an uneasy relationship in sharing the landscape of deprivation.  Buying into the “model minority” myth to get ahead has meant that some of us have forgotten to be anti-racist allies and in failing to remember, have become complicit in racism itself.  

In truth, each of us can be an anti-racist ally.  We can educate ourselves about the history of racism in the United States and initiate conversations about racism within ourselves and our communities.  And beyond self-education and dialogue, being an anti-racist ally also includes actively identifying and fighting racist practices and policies when we see them and speaking up when it is clearly needed.  Maybe it is the culture of the “blue wall of silence” that most needs to change, but Asian Americans too must now recognize the truth of these words enshrined in the Holocaust Museum in Washington D.C.:

First they came for the socialists, and I did not speak out—
     Because I was not a socialist.

Then they came for the trade unionists, and I did not speak out—
     Because I was not a trade unionist.

Then they came for the Jews, and I did not speak out—
     Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.