Wednesday, August 2, 2017
Education Secretary DeVos has requested comments on de-regulation. Much recent controversy concerns which standard is to be used by schools in determining whether a student is responsible for sexual assault and other gender based harassment and discrimination under Title IX.
Many comments submitted to date are anti use of the “preponderance of the evidence” standard even though that standard is the one used in civil rights and other discrimination claims. Proponents of the use of a higher standard claim that when sexual assault is alleged, the risk of expulsion and damage to the accused’s reputation demands the use of “clear and convincing” or “beyond a reasonable doubt.” Survivor advocates defend the use of the “preponderance of the evidence” as necessary not only for consistency in discrimination claims, but because any higher standard makes successful hearings on the part of the survivor nearly impossible.
Over 100 law professors have signed a White Paper drafted by Profs. Kathleen Baker, Deborah Brake and Nancy Cantalupo. The White Paper explains the historic use of the “preponderance of the evidence” standard in discrimination cases.
Comments on whether de-regulation of Title IX is necessary or beneficial may be made here. Comments are due on before mid-night on August 21.
Those law professors posting are welcome to send their comments to the HRAH Blog editors who will organize them for publication on the blog.
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.
Sunday, August 14, 2016
90 law professors signed a letter to the Justice Department supporting the use of the “preponderance of the evidence” standard in determining culpability in Title IX investigations.
As reported before, there has been a movement to raise the standard of proof to be used in on-campus sexual assault hearings brought under title IX. There are several lawsuits against the Department of Education, Civil Rights Division, for promoting use of the preponderance standard on campus. Plaintiffs claim that Justice imposed the standard on campus proceedings without going through proper channels, including promulgating the standard without an opportunity for comments.
According to an article in the Atlantic, prior to the 2011 “Dear Colleague” letter, schools set their own standards, some adopting some form of “clear and convincing”. The April 4, 2011 DOE letter clarified that the appropriate standard to be used in campus sexual assault hearings is the preponderance of the evidence. The letter noted that preponderance of the evidence is the standard used in civil rights hearing complaints.
Prof. Nancy Chi Cantalupo of Barry University Law School, organized the effort. She explained that “Many people seem to think of the law as just one kind of law: the criminal law, but there are many other kinds of law, including civil rights law.”
As the white paper points out, there are no complaints about the preponderance standard being used when race discrimination complaints are heard on campus. Only when sexual assault and other sex discrimination complaints are brought by students is the standard challenged. In many ways, women are the last frontier of discrimination. For whatever reason, challenges are still made to women's rights and women's credibility that we left behind, in the strict legal sense, for race matters.
To many schools the outcome of the legal challenges may be inconsequential. Many schools have already eliminated hearings in favor of investigations that result in an administrative determination outside of the hearing model. Whether or not the hearing model will be restored when the standard controversy is resolved remains to be seen. Also, unknown is whether the alternative investigative process itself will be challenged next.
Sunday, June 26, 2016
The U.S. Supreme Court upheld the University of Texas’ admission program that considers race as one of seven factors in the second part of its undergraduate admissions’ system. This blog follows one covering the majority opinion. That blog is available here.
The majority opinion by Justice Kennedy, which was joined by Justices Ginsburg, Breyer and Sotomayor did not raise the applicable treaty and international law that was raised in the amicus brief of Human Rights Advocates, the Poverty & Race Research Action Council, the Advocates for Human Rights, the University of Minnesota Human Rights Center, and the US Human Rights Network. This blog will address how the treaty and international law is applicable to the case and how it related to the majority opinion.
As Amici noted, international law and opinion have informed the law of the United States since the adoption of the Declaration of Independence. The Founders were greatly influenced by international legal and social thought, and throughout the history of the United States, courts have referred to international standards when considering the constitutionality of certain practices.
In this case, holistic consideration of race in university admission decisions is consistent with the United States’ treaty obligations as well as international practice, which makes the policy all the more compelling. Indeed, two treaty review bodies (the HRC and CERD) urged the United States to undertake special and remedial measures to eradicate de facto discrimination in schools. Other independent international law experts have counseled the United States to do the same. The European Court of Justice and the national courts of other countries have also upheld affirmative action measures in relation to addressing racial disparities in higher education. International treaties and practice support the University of Texas’s approach to admissions and the international obligations should be considered when assessing the process' validity under the Fourteenth Amendment.
The United States (U.S.) ratified the Convention on the Elimination of All Forms of Racial Discrimination (CERD) in 1994. CERD requires State Parties to take affirmative steps to achieve the goals of eliminating racial discrimination. The special measures taken for the purpose of securing advancement of racial or ethnic groups are not deemed racial discrimination under Article 1(4) and indeed are mandated under Article 2(2). Under General Recommendation No. 32, the laws or policies to address the situation of disfavored groups should be used to address both de jure and de facto discrimination. In other words Parties are required to address not only intentional discrimination but discriminatory effects as well. (¶¶ 14 and 22.)
The CERD Committee has raised the importance of special measures in its review of countries’ compliance with the treaty, particularly in the field of education. The U.S.’ policies on education have been the subject of concern for the Committee. While it cited Grutter as a positive step in addressing inequality in education in its 2007 review of the United States 6th periodic report, in its Concluding Observations in 2008, the Committee observed that the U. S. had not done enough to enact special measures to eradicate de facto discrimination in schools. Paragraph 17 of the Concluding Observations specifically framed this issue in the context of the “strict scrutiny” standards under the United States Constitution. In its Concluding Observations of the U.S.’ 7th-9th reports issued in 2014, the Committee reiterated its previous recommendations that the U.S. adopt and strengthen the use of special measures.
The U.S. ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992. In its 2006 review of the United States, the Human Rights Committee that oversees compliance with the ICCPR expressed concern over de facto racial discrimination in its public schools and reminded the U.S. of its obligations under articles 2 and 26 to guarantee effective protection against practices with discriminatory effects. In its report to the Human Rights Committee in 2011, the U.S. State Department acknowledged that special measures in higher education serve to uphold the “equal and inalienable rights” in the ICCPR.
The University of Texas argued throughout both Fisher cases that it seeks to admit a “critical mass” of minority students to its undergraduate programs through a holistic, individualized admissions process. After conducting studies to assess whether the University was obtaining the educational benefits of diversity that result from a critical mass of underrepresented minority students, it implemented an admission program that would consider race as one of the many factors in making admissions decisions. Amici argued that this program complied with CERD’s requirements that special measures be “appropriate to the situation to be remedied, be legitimate … [and] respect the principles of fairness and proportionality” as defined in General Recommendation No. 32, ¶ 16.
By upholding the University of Texas’ admissions program, the U.S. Supreme Court’s decision is in compliance with the U.S.’ obligations under both treaties as well as the practice of other jurisdictions such as the European Court of Justice and legal decisions and laws in countries such as Brazil, South Africa, India, Canada, New Zealand, and Australia. While the focus of its decisions on this topic have been on achieving diversity, and not necessarily achieving equality as required by the treaties, Fisher helps to promote the U.S.’ obligations under two treaties to which it is a party.
Wednesday, April 6, 2016
I recently returned from the Global Summit on Childhood in San Jose, Costa Rica, where hundreds of educators had gathered to explore innovative ways to foster child development and learning. Home to the UN-mandated University for Peace and the Inter-American Court of Human Rights, Costa Rica—which also abolished its armed forces constitutionally in 1949—was a fitting location to reflect on and exchange creative ideas about educating young people. And it provided numerous reminders of the importance of human rights education.
Though it often receives less public attention than human rights litigation and policy initiatives, human rights education has been a part of international human rights law since the adoption of the Universal Declaration of Human Rights. Article 26(2) of the Universal Declaration reads: “Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.”
Subsequent human rights treaties—from the International Covenant on Economic, Social, and Cultural Rights to the Convention on the Rights of the Child—all mandate and reinforce the importance of education aimed at strengthening respect for human rights, tolerance, and peace.
Human rights education, however, means more than educating about human rights. The UN Declaration on Human Rights Education and Training, adopted in 2011, establishes that human rights education encompasses three critical concepts:
(a) Education about human rights, which includes providing knowledge and understanding of human rights norms and principles, the values that underpin them and the mechanisms for their protection;
(b) Education through human rights, which includes learning and teaching in a way that respects the rights of both educators and learners;
(c) Education for human rights, which includes empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others
In short, creating rights-respecting learning environments and educating individuals in ways that empower them as human rights actors are as important as transmitting knowledge of human rights norms.
It is critical that human rights education receive greater attention and be incorporated more broadly in school curricula in the United States and elsewhere. Research on human rights education demonstrates its capacity to produce numerous positive outcomes for children and adolescents, including an improved sense of self-worth, increased empathy, and a reduction in bullying and harmful behaviors in classrooms. In the end, if people are not taught about their rights and the rights of others, how will they be able to realize their own rights or effectively advocate for others?
For additional resources on human rights education, click here.
Friday, October 2, 2015
Friday, August 21, 2015
During the 2015-2016 school year, Martha F. Davis will serve as the Distinguished Chair in Human Rights and Humanitarian Law at the Raoul Wallenberg Institute, Lund University, on sabbatical from Northeastern University School of Law. During her stint in Sweden, she will be developing a comparative study of local human rights implementation, contrasting the U.S. as a federal system with Sweden as a highly developed unitary system. As part of the study, she will utilizing a mapping tool developed by the NuLawLab at Northeastern Law School to illuminate the specifics of local human rights experiences in southern Sweden. Beyond points on a flat screen, the mapping tool supports photos, videos and other media to fill out the story of how local human rights initiatives develop and move forward.
This work builds on another recent project, a forthcoming book co-edited with Barbara Oomen and Michele Grigolo, titled Global Urban Justice: The Rise of Human Rights Cities (Cambridge Univ. Press). With several contributors from the US (JoAnn Kamuf Ward, Risa Kaufman, Cynthia Soohoo, Kenneth Neubeck) as well as other studies from around the world (Mexico, Austria, the Netherlands, Canada, Ghana), the book highlights the ways in which cities are increasingly responsive to human rights frames. Publication will be in 2016.
We wish you a wonderful academic year, Martha. Do come back!
Tuesday, August 4, 2015
For most U.S. children, summer is a time of fun, a break from school. While play is important for physical, cognitive, and emotional development, summer does have its downside: summer learning loss. Research consistently finds that during the course of the summer, students of all ages forget some of what they learned and regress. Evidence suggests that summer learning loss equates to at least one month of instruction assessed by grade level equivalents. Student knowledge declines more in mathematics than reading, perhaps attributable in part to the greater emphasis on summer reading lists in some areas. Equally important, the summer learning loss exacerbates the achievement gap: “The meta-analysis revealed that all students, regardless of the resources in their home, lost roughly equal amounts of math skills over summer. However, substantial economic differences were found for reading. On some measures, middle-class children showed gains in reading achievement over summer, but disadvantaged children showed losses. Reading comprehension scores of both income groups declined, but the scores of disadvantaged students declined more.” (see Harris Cooper).
This is not a call for year-round schooling. Rather the summer learning loss and achievement gap are important reminders of the many challenges we face in the human rights arena. Making human rights meaningful requires attention to subtle factors that have significant effects. Children have the right to education, which includes a mandate on the state to make primary education “compulsory and available free to all” and secondary education “available and accessible to every child” (CRC, article 28). In developing countries, waiving school fees makes education accessible for a huge number of children, yet more hidden costs – books, uniforms, transportation, etc. – can leave the most marginalized children still without consistent access to education. Similarly, here in the U.S., free public education might provide access during the academic year, but that education is made less meaningful if disadvantaged children are falling further behind their peers each summer. From a human rights perspective, this means that technical compliance with human rights treaty language might not capture all that is essential to children seeking to realize their education rights or other rights.
The nondiscrimination clause of human rights treaties is particularly relevant in this context. It imposes an obligation on states to ensure that all children have equal access to education and other opportunities. As human rights researchers and advocates, our job is to uncover the multitude of barriers—big and small—to the full realization of rights, especially for vulnerable populations, and to ensure that government responses to human rights treaty obligations go beyond technical compliance to secure the full rights of every individual.
Thursday, April 2, 2015
In her recent column on the importance of participation in budgeting, JoAnn Kamuf Ward writes, “Many lawyers are not numbers people, but we ought to be.” A critical reason for human rights lawyers to pay more attention to numbers is the nature of economic, social, and cultural rights: under human rights law, they are tied to the state’s obligation to use the maximum of its available resources.
Determining whether a government is meeting its obligation to use “maximum of its available resources” (ICESCR article 2) necessarily requires a review of state budget expenditures. For example, if the gross domestic product of a state obligated to ensure education rights is increasing each year, but the education budget is not, or if a country's defense spending increases by a significantly greater percentage than its education budget, the state might not be using the maximum of its available resources to achieve progressive realization of these rights and thus would be failing to comply with international human rights law.
Budget analysis can help monitor states' practices, ensuring that they do not use the resource qualifying language of economic, social and cultural rights as an excuse not to secure these rights for individuals subject to their jurisdiction. Budget analysis can also suggest areas in which there may be discrimination in the provision of services (of note, the prohibition on discrimination is not qualified by available resources). Additionally, it can highlight areas where government has failed to spend allocated funds. Fundar, working with international partners, produced some of the early research on budget analysis, assessing the Mexican Government's budget and identifying a number of issues regarding whether Mexico is meeting its international obligation to protect the health of its population using its maximum available resources. It offers a model for determining what a national or local government is required to do to secure economic and social rights for its population (see also IBP for additional resources on budget analysis).
Budget analysis has limitations. It will not necessarily reveal whether resources are used effectively or efficiently. That said, it can provide a starting point for determining whether a country is using its maximum available resources. Combining budget analysis with the content of specific provisions, such as health or education rights, can enable human rights scholars and advocates to assess, with greater precision, states' compliance with human rights law.