Human Rights at Home Blog

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.

The Irony of Asian-American Month: Part Two

Co-Editor Prof. Jeremiah Ho submits the second part of his writing reflecting on being Asian American during the time of COVID-19.

When President Trump and other politicians refer to Covid-19 as the “Chinese virus,” there is meaning and blame underneath that handy reference.  Simply put, one can say that what the world is dealing with is the “Chinese virus” because Covid-19 was known to have originated in Wuhan, China.  But adhering to that meaning is denying the phrase’s other slippery and sinister meanings—perhaps as a not-so-subtle gesture of the finger-pointing to China or to Chinese people as the cause of the virus; or an implication that Covid-19 is a virus inhabited and carried by Chinese people; or even worse, an implication that Chinese people are viruses.  As a parallel to The Plague, herein lies the moralizing that funnels the narrative of the pandemic into a narrative of blame.  In times of crises big or small, we all want to find the root cause and we all want to determine fault.  In law, this tendency to make meaning is a prominent, almost-daily ritual.  It’s only human. 

Yet, in this context, it’s also absurd; and unlike Camus, I am using that word here to discern.  Scapegoating and blaming Asians and Asian-Americans during this pandemic is a fall-back strategy for those interested in stirring up racial bias and hatred in order to make meaning in this crisis and permit them to usurp this moment to their advantage.  We saw this with the AIDS crisis with queer and gay people.  Within white supremacy, this type of othering conjures a false sense of security and control at the expense of a minority group. 

In part, the historical narrative of Asian-Americans has always been one that fluctuates between proving our worthiness and proving our loyalty for a sense of belonging in the American society.  The model minority myth plays into the meritocratic values of institutional and structural racism, making Asian-Americans appear as worthy of being recognized as the “good Americans” for working hard, keeping quiet, and abiding by dominant values.  The myth was originally imposed upon Asian-Americans but it also has been leveraged by Asian-Americans as part of the negotiation for acceptance by the dominant status quo.  At the same time, the yellow peril symbolism casts Asian-Americans as economic, physical, and national threats to American society so that individuals of Asian descent have to constantly prove their loyalties to the U.S. in order to gain security.  The treatment of Japanese-Americans by the U.S. government during World War II exemplifies this strand of that narrative.  In one quick month in 2020, we saw the materialism and meritocratic benefits of the Asian-American narrative replaced by the rise of yellow peril symbolism, breathed into the collective air by the antagonizing phrase “Chinese virus” and then quickly manifesting to displays of racial hatred and violence as the American public tries to find meaning in this crisis. 

What the model minority myth and yellow peril symbolism underscore for the Asian-American narrative is an idea that those embodying white supremacy want us to believe:  that people of Asian descent in the U.S. are perpetually foreigners.  They don’t belong here and they only cause trouble.  But Camus in The Plague would want us to find fault with this kind of blame during the pandemic.  Although the production of meaning is a human tendency, what is effectively and instrumentally meaningful in a time of collective crisis is not blame and descension, but common decency.  The main character in Camus’ novel a doctor who treats the diseased comes to realize this after months of treating patients and watching them die from plague.  The only meaning he finds in his work is not something as highly-charged as a kind of heroism but rather a sense of common decency.  It’s useless during the time of plague to uncover blame as a way to combat the sickness.  Rather, The Plague’s central character, Dr. Rieux asserts, “It may seem a ridiculous idea, but the only way to fight the plague is with decency.”  When asked to clarify the meaning of decency, he answers, “In general, I can’t say, but in my case I know that it consists in doing my job.”  In the novel, the way he externalizes his common decency to help fight the plague by working in solidarity to help those suffering from plague.  This present moment is one in which we need common decency to determine what will most equitably serve all of us.  We need to act with common decency in solidarity against this disease, rather than finger-pointing and creating fragmentation.  According to Camus, who wrote The Plague as an allegory about Nazi occupation in France during World War II, that common decency in solidarity is the needed resistance against a common pestilence—whether pathological or ideological, or both.     

In this pandemic, the leaders who are lacking serious epistemic responsibility are adhering to a narrative of American exceptionalism that is both absurd and dangerously untrue.  It can cost lives.  This is a moment to change that narrative by resorting together to find common decency to resist the urge to blame.  For Asian-Americans, and other minority groups, it is important to see where we all are in this system of white supremacy, to see how we are all being used, and to decide to reject the exclusion.  We matter.  We belong.  We don’t have anything for which to apologize.  Instead, we are in this together and we have work to do to help ourselves and others move beyond this searing disease.     

The Irony of Asian-American Month

by Prof. Jeremiah Ho

Prof. Ho writes this two-part post on the Asian American experience in the time of COVID-19

Last December, while I was searching for plane tickets for March spring break, the thought never crossed my mind that my one-week trip to visit family in my hometown just east of Los Angeles, would be extended indefinitely deep into the spring—and now likely summer—months.  At the time, I couldn’t imagine that we would all succumb to the effects of a significant virus; the world had not yet circulated the name “Covid-19”.  But very swiftly, the pandemic has made the catastrophic commonplace.  None of us have been immune to such physical and psychological terrors that have accompanied this health crisis.                 

The other thought that had not cross my mind last December was when, where, and how as an Asian-American, would I experience my next incident of racial hatred.  I know it’s coming.  It could be a confrontation and an epithet—tossed while I’m out in public when this is all over, catching me in a moment of surprise.  That sort of thing has happened before.  Or it could be a more subtle form of social denial or discrimination, where the perniciousness of the act is clearer only in hindsight.  There could also be violence involved.  Or it could be a combination of all these different types of hatred.  And it could happen more than just once.  All I know is that no immunity exists for such horror-laden moments.  Once the public health crisis arose, the number of racially motivated attacks on Asians both in the U.S. and globally also rose.  I’m expecting my turn.   

How swiftly the narrative has shifted for Asians and Asian-Americans in the U.S.from the dominant status quo’s regard as model minority citizens back so suddenly to yellow peril.  In my hometown just east of Pasadena, California where I grew up and have spent these months quarantining with family, the Asian-American population here has grown radically across the last four decades.  In the early 1980s, I was only one of three Asian-American children in my elementary school classroom, but by the time I graduated high school in the same town, Asian-American students comprised of more than 50% of the student population.  Today, my old high school counts Asian-Americans as nearly 70% of its students.  We are the majority—so much so that there is even a separate Chinese-American parents booster club.  Where the old Ralphs Supermarket used to be, a giant H-Mart Korean market now sells the most exotic (but mundane to us) Asian groceries.  In town, there are two outposts of the legendary Din Tai Fung Restaurant, the Taiwanese eatery famous among international foodies for its soup dumplings.  A handful of Asian banks dot the town’s business districts, and our city hall’s website has translated versions in traditional and simplified Chinese, in Korean, and in Spanish.  Take your pick.  Back before the health crisis had us quarantining, my retired parents never had to speak a word of English when they stepped out of the house to run errands.  And even in our time of safer-at-home, the Chinese language newspaper still delivers to our door every morning. 

My hometown is one of several cities in the San Gabriel Valley that have seen an Asian-American immigration boom.  But even so, when I take walks in my old neighborhood of quiet post-War single-family homes and I pass by white neighbors, I find that the practice of social distancing is both a practice of safety and suspicion.  It’s as if any social or political capital that’s been built on the material progress of Asian-Americans in our town has seemingly crumbled.  Every time I take my parents’ car out for its bi-weekly run and drive by the Santa Anita Race Track, a famous historical fixture in town that still hold professional horse-betting today, I recall that it was used as a Japanese-American detention facility during World War II.  And I’ve been reminded of this fact, especially so, while it’s been Asian-American Heritage Month these last several weeks. 

In Albert Camus’ The Plague, an extremely apt and salient novel to read (or re-read) during our pandemic, Camus demonstrates the human tendency to make meaning out of a natural world that has no concern for meaning.  In The Plague and other works, Camus associated this tendency with what he called “absurdism” because invariably, as he believed, the world defies meaning and is indifferent to our humanist struggle to make our lives and the world meaningful.  Contrary to the sound of the word, “absurdism,” to our ears, Camus does not judge our constant endeavors to search for meaning in life as a deficiency.  But rather, as seen in The Plague, it’s the type of meaningful response that we have when there’s an unexpected crisis, like a city-wide plague or a global pandemic, that matters for judgment.  In The Plague, the disease that unexpectedly asserts itself over the sleepy Algerian town of Oran prompts quarantine and then causes widespread suffering and death.  The plague is first interpreted by a Catholic priest in the novel as an outcome of human sin of the town’s inhabitants.  The plague is moralized and made meaningful in terms of blame. 

Supporting An International Anti-Corruption Court

Last week US Congresswoman Jackie Speier and Congressman Jim McGovern introduced a resolution that would support the creation of an international court to fight corruption. 

According to Human Rights Watch: "The World Economic Forum estimates that 5 percent of the world’s GDP is lost to corruption, and the International Monetary Fund blames it for US$1 trillion in lost tax revenue.  And corruption can rob people of their rights. It can lead to failing healthcare and education systems, lack of access to clean water – all problems that force countless people to leave their homes and countries in pursuit of better lives. It can also corrode government itself, as corrupt officials often shield themselves from accountability by hijacking the judiciary and abusively silencing critics."

An idea originally proposed by Judge Mark Wolf, any attempt to fight corruption on a global level is a first step toward addressing a serious and massive human rights problem. 

My Slant on Lee v Tam

by Jeremiah Ho

 

Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office.  (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.

Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.

What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.

Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “immoral, deceptive, or scandalous matter[,] or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.  

What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?        

Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)

Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.                

One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.

One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.

 

 

Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.

Honoring Elie Wiesel: On the Opposite of Love

Elie Wiesel was our conscience and our memory of the Holocaust.  He was voice for millions of the murdered because of the hatred and madness of one leader and his supporters.  But also the Jewish citizens died due to the overwhelming silence of others.  It is both easy and difficult to understand the fear of speaking out when neighbors are disappearing.  Consequences of disagreeing with Hitler, as with other dictators, were and are severe and usually fatal. But that begs the question on how dictators ascend to national control in the first instance.

Anyone who read Night was no doubt haunted by the inhumanity.   But one of the lessons Mr. Wiesel taught us was not to wait in confronting hateful conditions as they are developing. Politics rooted in hate can be powerful and, if not curbed,  lead to the sort of unimaginable suffering that Mr. Wiesel endured.   Not confronting hatred when it first appears permits inhumanity to grow.  Failure to confront hatred opens the door for demagogues.

As we celebrate July 4th, we might ponder how easily we could lose our independence through our silence.  As Mr. Wiesel taught: "The opposite of love is indifference."

                                                                                                                                                                                                                                                                    

 

 

 

 

 

 

 

 

 

 

 

 

 

Judge Gee Enters Her Final Order

In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to  respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.

On Friday, Judge Gee entered her order.  She ordered the release of immigrant children held at the detention centers.  More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania.  The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention. 

The government has until October 23rd to comply with the order.

One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement.  While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.  

The administration has not yet announced if it will appeal Judge Gee's decision.