Sunday, September 25, 2016
Earlier this year, Michelle Alexander spoke at Union Theological Seminary as a Woman of Spirit. Now the newly resigned Ohio State law professor and author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness is surrendering her legal gown for a theological one as she returns to Union Theological as a visiting professor and student. Prof. Alexander has been drawn to the study of the divine for some time. In 2013, she spoke at Yale Divinity School addressing mass incarceration but incorporating values of forgiveness and redemption. At that talk Prof. Alexander referenced the "spirit whispering in my ear".
Finding law insufficient to the task of creating a culture where each and every human being is valued, Prof. Alexander said "Without a moral or spiritual awakening, we will forever remain trapped in political games fueled by fear, greed and the hunger for power."
"This is not simply a legal problem, or a political problem, or a policy problem. At its core, America's journey from slavery to Jim Crow to mass incarceration raises profound moral and spiritual questions about who we are, individually and collectively, who we aim to become and what we are able to do now. "
Ms. Alexander joins the call of other spiritual leaders who recognize America's crisis as a spiritual one. All indications are that we can look forward to Ms. Alexander's transformation to a spiritual scholar to be as profound as her legal commentary. She shared her vision of a new world: "I would like to imagine that a wide range of people of faith and conscience who sing songs from different keys may be able to join in a common chorus that shakes the foundations of our unjust political, legal and economic systems, and ushers in a new America."
Sunday, September 4, 2016
Earlier this blog reported that several federal courts had struck down voting law provisions that attempted to restrict voting. Two of the states involved were North Carolina and Ohio. This week the US Supreme Court refused to hear an appeal by North Carolina that would permit that state to enforce its provision that would require voters to have a government issued id in order to exercise voting rights.
Ohio Democrats filed an emergency appeal seeking the court's order that Ohio's "Golden Week" be reinstated. As summarized by SCOTUS Blog's Amy Howe:
"The state implemented Golden Week in the wake of the 2004 presidential elections, when many voters encountered long lines at the polls that resulted in waits of up to twelve hours to vote. Ohio Democrats say that Golden Week “made a major contribution in alleviating congested voting lines and encouraging turnout” – especially for African Americans, who may face more challenges, because of constraints on their time and resources, in voting on Election Day itself."
Golden week was instituted following the 2004 election when voters had to wait in lines often up to 12 hours to vote. The delays had a disparate impact on African Americans, who constitute a large percentage of the population of the bell-weather Hamilton County.
Last Friday, Justice Kagan asked the State of Ohio to respond to the Democrats' emergency appeal by this Thursday, September 8.
Sunday, August 7, 2016
July and August saw several states’ voting restrictions overturned. The voter ID laws, which would have required voters to produce photo identification prior to voting, were struck down. North Dakota’s law was the most recent, but other states, including Wisconsin, Kansas and Texas saw portions of their voting laws struck as discriminating against people of color. Earlier, Ohio passed legislation that eliminated “Golden Week” the voters’ rights to register and vote at the same location. Ohio has a history of attempts to limit voting by minorities and others who tend to favor the Democratic Party. In May, a federal court declared that the legislation violates the Voting Rights Act as well as the 14th Amendment.
A different federal court (4th Circuit) declared a North Carolina Voter ID law unconstitutional on several grounds. Like Ohio, North Carolina had eliminated same day registration and voting. But NC also prohibited out of precinct voting, as well as early voting. Both of these restrictions were overturned as well. The court found that the provisions “target African-Americans with almost surgical precision.” The court noted that the legislation addressed fictional problems.
In what was a surprise to many, the Supreme Court stopped implementation of a federal appeals court order that would have blocked the Virginia law requiring students to use the bathroom of the sex assigned at birth and not in accordance with their gender identity. The case is Gloucester County School Board v. GG. The surprise was Justice Breyer’s vote to grant the stay pending filing and decision on a petition for cert. He described this action as a “courtesy”. (And that means?) We can hope that the Justice promotes this issue being fully briefed in order to settle critical issues of gender identity, knowing that a split court will leave the lower court decision intact. Assuming the application for cert is granted, this case will test the limits of Justice Kennedy’s empathy toward the sexually diverse. Perhaps Justice Kennedy will extend his animus-dignity analysis to this minority that has far fewer champions than do gays and lesbians.
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.
Thursday, June 23, 2016
In a 4-3 decision (Kagan, J. not voting), the Court ruled that the University of Texas race-based admission policy is lawful within the parameters of equal protection. Here is link to the Court's opinion.
By a 4-4 vote, the court let stand a lower court decision that President Obama lacked the authority to extend immigration protections. The lower court injunction against implementation of the Presidential orders stands. Here is the per curium decision.
Also by 4-4 vote, the Court left standing multiple lower court decisions affirming the authority of Tribal Courts to bring civil actions against non-tribal individuals and entities. The per curium decision may be viewed here.
Watch for posts analyzing these decisions in the human rights framework.
Tuesday, January 26, 2016
In July, a University of Cincinnati Police Officer shot Samuel DuBose to death. Mr. DuBose was black and he was unarmed. The white officer pulled Mr. DuBose over for an automobile violation (no front license plate) and the shooting was filmed on the officer's body camera. At the time that the killing became known, the University, in not its finest hour, cancelled classes and closed the campus. Whatever anticipated demonstrations or riots the school was anticipating never happened. What did happen was that Officer Ray Tensing was arrested and is waiting his trial for murder.
Despite its initial overreaction, the University President, Santa Ono, stepped up in negotiations with Mr. DuBose's family. President Ono has generally been considered a vibrant and effective leader. On Martin Luther King Day, as a result of settlement negotiations, he obligated the University to pay $4.85 million to Mr. DuBose's family. Settlement was reached after only two days of negotiations. While the University did not admit liability, the School will apologize to the family as part of the agreement. "Dr. Ono said the university felt a “civic responsibility” to go beyond the kind of cash settlement customary in police-involved deaths." The President went on to say that he wanted to be clear that the University cares not only about the DuBose family but about peace in the City, as well. It was one of Mr. DuBose's daughter, Raegan Brooks, who discussed the pain of the experience, including the negotiations that at times caused emotional disturbance of what felt like putting a price on her father's life. She also spoke of her prior intentions to attend UC, plans that changed after her father's death.
Since the killing, the University has established a community advisory council on which a family member of Mr. DuBose will sit.
Sunday, January 17, 2016
As we observe Martin Luther King Day, one reflection is on the enormous influence that Dr. King has had over decades of activists. The Black Lives Matter movement has extended, as well as incorporated, techniques employed by Dr. King.
For those whose youth was spent in political protests, followed by a comparatively passive period, the Black Lives Matter movement is heartening. Not only has effective advocacy been missing from the landscape in any widespread sense since the 1980's, at times Dr. King's techniques were considered outdated. The Black Lives Matter movement has proved those criticisms faulty. Black Lives Matter sparked national and international conversation. Protests with masked students holding signs reading "I can't breathe" and hundreds of young protesters marching with hands in the air were dramatic and effective. Microagressions and implicit bias are now discussed in a variety of settings and populations. There is a test for implicit bias on Harvard's website. Dr. King's leadership resulted in extraordinary civil rights accomplishments that have not been fully realized. Black Lives Matter has transformed the civil rights movement to a human rights movement in its continued search for dignity in both strategy and result.
Sunday, January 10, 2016
According to Arizona state legislators some minority women abort fetuses because of their race. In 2011, Arizona passed a law prohibiting an abortion provider from performing an abortion on a woman who wants to abort her fetus because of its race and/or sex. The American Civil Liberties Union (ACLU) sued Arizona arguing that this law violates the Equal Protection Clause of the U.S. Constitution, because it stigmatizes minority women by suggesting that they discriminate against their fetuses (assuming that it is even possible to do that).
But just a few weeks ago, the United States Court of Appeals for the Ninth Circuit denied the petitioners in the case, the National Association for the Advancement of Colored People (NAACP) and National Asian Pacific American Women's Forum (NAPAWF), their day in court. The Court rejected the appeal on standing even before getting to the constitutional issues, because the ACLU did not bring forth a woman who wanted to abort her fetus due to its race and/or sex. Perhaps because few (if any) such women exist.
It is true that the rate of abortion among African American women is five times higher than among Caucasian American women and for Latina women it is twice as high. Anti-abortion advocates argue that this occurs because abortion providers target minorities for abortion services in an attempt to reduce the number of people of color that are born. On the other hand, pro-choice advocates argue that the disproportionately higher rates are due to a lack of access to and failure to use contraception.
The logic of the Arizona race-selective ban is tortured because it is structured like its more popular cousin, the sex-selective abortion ban, which prohibits women from aborting their fetuses because of its sex. Sex-selective bans have been introduced in over half of the state legislatures in the United States and passed by eight states. On the other hand, Arizona is the only state in the United States that bans both race-selective and sex-selective abortion; eight other states and the United States Congress have considered and rejected race-selective abortion bans (although the majority of the U.S. House of Representatives voted in favor of both race-selective and sex-selective bans in 2012).
Proponents of sex-selective abortion bans argue that Asian Americans discriminate against the sex of their fetuses and this causes a disproportionate number of abortions of female fetuses. They further incorrectly argue that there are "missing women" in the United States. They then apply this logic to race to argue that race discrimination causes a disproportionate number of minority fetuses to be aborted.
However, the analogy falls apart when the actors with the purported racist and sexist intent are brought into the picture. In the case of sex-selective abortion bans, proponents argue that the sexist beliefs of Asian American parents cause them to obtain the abortions. To the extent sex-selective abortions are occurring in the United States, it would appropriate to argue that they occur because of a parent's desires for a child of a particular sex. On the other hand, it makes no sense to argue that women abort their fetuses because of a particular racial preference of their fetus. Yet, the Arizona law assumes that minority women abort their fetuses because they do not desire to have minority children.
The disproportionate rate of abortions among minority communities in the United States is an important concern that should be investigated, discussed, and solved. The Arizona law is not intended to do that. While it is unlikely that anyone will ever be prosecuted under the Arizona law, the statute itself is offensive. It also strains the patient-doctor relationship. By denying the appeal, the United States Court of Appeals for the Ninth Circuit has missed an opportunity to strike down state laws that use racial and gender equality as a ruse to restrict abortion rights.
Editor's Note: This piece originally appeared in The Huffington Post
Wednesday, December 9, 2015
by Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School
Is human rights law relevant to the Court’s consideration of UT Austin’s admissions selection policy? In Fisher v. University of Texas at Austin, the Court has the opportunity to reaffirm the importance of ensuring diversity and inclusion in higher education. Such a decision would be supported by international law: equal opportunity college admissions policies help the U.S. to fulfill its human rights commitments.
At issue in Fisher v. University of Texas at Austin is the university’s admissions policy, which considers race among many other factors as a means of ensuring a diverse and academically qualified student body. UT Austin’s admissions policy has two components. Most students (75%) are admitted through the school’s “Top Ten Percent plan,” which guarantees admission for Texas students in the top ten percent of their high school class. The school fills the remaining slots through a holistic multi-factor review of each applicant, considering over a dozen factors, one of which is race.
This is the second time the Court has heard arguments in Fisher. The case has a well-told procedural backstory.
Directly at issue in Fisher is UT Austin’s admission policy. But the ruling could have wider implications on the ability of colleges and universities to maintain policies that seek to ensure equal opportunity and racial diversity. As the New York Times noted last week, recent activism on college campuses has amplified the conversation around race and higher education, and the stakes in Fisher feel particularly high.
What does human rights add to the mix? As noted by Human Rights Advocates and other organizations joining an international human rights amicus brief filed in Fisher, UT Austin’s admissions plan helps the United States meet its human rights commitments. And it is in line with international practice. The brief was authored by Connie de la Vega at University of San Francisco School of Law, along with Neil Popović at Sheppard Mullin.
As the human rights amicus brief notes, two of the core human rights treaties ratified by the United States support the use of holistic considerations of race in higher education admissions decisions. In particular, the Convention on the Elimination of all Forms of Racial Discrimination (CERD), ratified by the U.S. in 1994, calls on countries to take affirmative steps to eliminate and prevent racially discriminatory practices. Article 2(2) of the Convention calls on countries to take “special and concrete measures” to guarantee and advance equality. The CERD Committee has elaborated on the meaning and scope of “special measures,” and in reviewing countries’ compliance with CERD, the Committee has emphasized their particular importance in the field of education. During the most recent review of U.S. compliance with the CERD, in 2014, the CERD Committee noted concern with policies and practices within the United States that have been adopted against the use of special measures in higher education, and recommended that the U.S. instead adopt and strengthen the use of such measures to eliminate persistent disparities.
The International Covenant on Civil and Political Rights (ICCPR), too, supports the use of holistic considerations of race in higher education admissions policies. In particular, Articles 2 and 26 of the ICCPR prohibit discrimination and guarantee effective protection against practices with discriminatory effects. The U.S. ratified the ICCPR in 1992. When it was reviewed by the U.N. Human Rights Committee in 2011, the U.S. noted that educational policies aimed at achieving racial diversity and avoiding racial isolation help the U.S. to implement the Covenant’s equality guarantees.
If any of the Justices do, in fact, consider international law in assessing the constitutionality of holistic considerations of race in college admissions, it would not be first time. In 2003, in Grutter v. Bollinger, the Court considered the University of Michigan Law School’s admissions policy and affirmed the school’s compelling interest in ensuring the educational benefits of diversity in higher education, emphasizing the advantages of diversity for all students and for the country as a whole. In a concurring opinion, Justice Ginsburg noted that the Court’s decision was consistent with international understanding of affirmative action, citing to CERD as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She similarly cited to CERD and CEDAW in her dissenting opinion that day in Gratz v. Bollinger.
Are Justices likely to cite directly to international law this time around? Perhaps not. Nevertheless, human rights can provide important context for their consideration of the case.
Sixty-seven amicus briefs were filed in Fisher in support of the university. These briefs note the benefits of diversity in higher education, the importance of expanding opportunity for students from all backgrounds, and the importance of preventing racial isolation in colleges and universities. Likewise, amici, including Fortune 100 companies and retired military and national defense leaders, urge the Court to consider ways in which a diverse university and workforce are in the national interest, and critical to America’s success. As the human rights amici note, ensuring equal opportunity in college admissions serves the important (and entirely consistent) function of helping to bring the United States in line with its human rights commitments, as well.
Tuesday, October 27, 2015
Higher education is considered one of the most reliable routes to higher pay. A recent study reported in a Federal Reserve publication suggests that how much higher one can climb up the pay ladder is race dependent.
William Emmons and Bryan Noeth report that higher education does increase income and wealth for all racial and ethnic groups. And protection from accumulated wealth increases, as well. The problem is that how much protection is afforded varies with Blacks and Latinos afforded lower rates of wealth protection. The study's findings suggest that advanced degrees, most available to whites and Asians, may be a protective factor in preserving wealth. Findings also indicate that in some ways, when economic crisis occurs college educated blacks and Latinos may fare worse, percentage-wise, in preserving their wealth than their less educated counterparts.
Nonetheless, all racial and ethnic groups studied improved their economic positions considerably by completing a course of higher education. Why there is disparity in wealth preservation when crisis occurs remains speculative, however. The authors conclude that the reasons for this disparity are likely complex and call for further studies on the sociological and societal reasons for the discrepancies.
Monday, September 28, 2015
The recently released Ferguson Commission report lays down a challenge to a nation torn apart by revelations of police abuse.
Missouri Gov. Jay Nixon created the commission last year in response to the fatal police shooting of Michael Brown, though the authors of the report note that they were not charged with investigating his death.
“We are not even suggesting that institutions or existing systems intend to be racist,” the commission states. “We are pointing out … that the data suggests, time and again, that our institutions and existing systems are not equal, and that this has racial repercussions.”
There are 189 policy recommendations in a portion the report describes as a “call to action.” There are a few that especially stand out.
First, and most importantly, the commission calls for comprehensive police reform. This includes more and better training for officers and the creation of a database on the use of force — all with the goal of decreasing violent confrontations.
Second, the commission takes mass incarceration head-on and presses for criminal justice reform. It urges an immediate change in sentencing laws and the elimination of incarceration altogether for some minor offenses. It pushes the police and prosecutors to change processes that include disregard of the fundamental rights of those accused of crimes. And it calls for the creation of community justice systems designed to address problems in a different way.
Third, the commission asks for a special effort to do more for the youth. It suggests better education and nutrition for young people, improved health outcomes, the reform of school disciplinary policies and practices, and more investment in early childhood education.
These recommendations are crucially important. An unarmed black person is twice as likely to be killed by a police officer as a white individual. The United States contains 25 percent of the world’s prisoners, even though the country only makes up 5 percent of the world’s population. The unemployment rate for black youth is 20.7 percent, according to the latest numbers. Young people of color face daily challenges.
There have been other significant reports in the past that have documented racial injustice and proposed constructive responses, but they have been largely ignored. Let’s not make the mistake of dismissing the Ferguson Commission report, which provides a blueprint for reform across the nation.
Editor's note: Prof. Gilmore wrote this piece for the Progressive Media Project and it first appeared in the Bangor Dailey News
Monday, August 10, 2015
For years, Washington University at St. Louis professor Mae Quinn and her students in the Juvenile Law and Justice Clinic raised constitutional and other legal concerns on treatment of juveniles in the St. Louis County Family Court and other Missouri youth justice venues. Prof. Quinn highlighted many of these problematic practices and experiences in her law review article, "The Other Missouri Model: Systemic Juvenile Injustice in the Show Me State."
Prof. Quinn and her students through in litigation and public education that the St. Louis County Family Court system failed to provide constitutional protections to juveniles.
In November 2013 the United States Department of Justice launched an investigation of the St. Louis County Family Court. Remarkably, clinic students were thereafter banned from appearances in St. Louis Courty's family court. This seemingly retaliatory action was noted in a report released by the Department of Justice affirming the concerns raised by Prof. Quinn and her students.
DOJ analyzed 33,000 juvenile court cases and found that black children are disproportionately represented in decisions to formally charge youth versus informal resolution. The Analysis of 33,000 juvenile court cases showed that Black children are disproportionately represented in decisions to formally charge youth versus handling matters informally. Black children were also more likely to be placed in state custody and in a secure facility., detain youth pretrial, commit youth to Youth Services custody pending trial and place youth in a secure Division of Youth Services facility post- conviction.
Among the constitutional violations cited in the report are:
- Failure to ensure youth facing delinquency proceedings have adequate legal representation;
- Failure to make adequate determinations that there is probable cause that a child committed the alleged offense;
- Failure to provide adequate due process to children facing certification for criminal prosecution in adult criminal court;
- Failure to ensure that children’s guilty pleas are entered knowingly and voluntarily;
- An organizational structure that is rife with conflicts of interest, is contrary to separation of powers principles and deprives children of adequate due process; and
- Disparate treatment of Black children at four key decision points within the juvenile justice system.
Prof. Quinn responded to the report saying:
I am heartened by the report by the United States Department of Justice, which sheds further light on many of the legal concerns and constitutional issues my clinic students and I have encountered and been challenging in local juvenile court systems over the last six years.
“While we have worked with many caring and committed judges, prosecutors, and probation staff during this time — we have also repeatedly been shocked by practices that work to undermine basic rights of due process, representation and zealous advocacy. More than this, the very structure of the system runs counter to basic constitutional separation of powers norms — where everyone but the child and her lawyer (when one is present) — is part of the same team. In such an environment and culture, it is very hard to meaningfully represent children — largely poor youth of color — who are already at risk in this community.
“I am hopeful that this document — like other recent findings and reports that have been issued by DOJ, the Ferguson Commission’s working groups, and others — will serve as a further platform for change in the region. And, as before, the Juvenile Law and Justice Clinic at Washington University School of Law stands at the ready — willing and able to represent kids in our courts and work collaboratively to rethink our juvenile justice system in the days ahead. At this point I believe there is plenty of good will and ability to bring about meaningful reform. I look forward to St. Louis County — particularly as it gets ready to open the doors on its new multi-million dollar youth justice center — serving as a model of best practices for youth justice across the country.”
Thursday, August 6, 2015
Prof. Margaret Drew introduces UMass Law 3L Michael McGeown-Walker who wrote the following post, a version of which earlier appeared in the Albany Times Union.
Earlier this summer, the state of South Carolina removed the Confederate battle flag from the Confederate Soldier Monument near the state's Capitol building entrance. The flag had been there since 2000, and before that, it waved atop the capitol building since 1961. Remarking on its removal to South Carolina Confederate Relic Room and Military Museum, the curator suggested that the action was a "gesture of chivalry" to hopefully bring some level of healing to the state after the abhorrent killing of nine African Americans at the Emanuel African Methodist Episcopal Church in Charleston. The operative word in that quote is "gesture." While there is a measure of understanding in removing a flag from the grounds of the state Capitol, the action is largely symbolic. And that is what flags are: symbols. In this case, the Confederate flag became a symbol of an attitude of hatred. After that terrible event, many called for removal of the flag as a public response by the state. The gesture of removing the flag from the vicinity of the state's Capitol building was like putting a BandAid on a bullet wound: it may look alright for a moment, but BandAids don't heal wounds. What removing the flag does is make us feel better. Like electing a black president or ousting a racist owner of a basketball team, it makes us feel as though we are doing something to solve the problem, all the while sweeping the real problems under the rug. Racism is complex. It persists in so many forms. Men with white hoods have been replaced by mass incarceration, wars on the impoverished, and a vitriolic, kneejerk response to intelligence and education. Symbolic gestures, such as removing a flag, are only as useful in their ability to spur on movements that address racism in a comprehensive manner. If the removal of the Confederate flag from the Capitol grounds in South Carolina ignites action on issues such as mass incarceration, poverty and education, then perhaps this gesture will stand for something far greater. But until that time, it is nothing more than an underwhelming response to an overwhelming problem.
Thursday, July 9, 2015
A recent interview with Rutgers' cultural historian Professor Bruce Franklin not only emphasized the need for prison transformation but made the explicit connection between anti-black and brown policies and voting manipulation.
Dr. Franklin pointed to voter disenfranchisement of those with felony convictions as benefiting George W. Bush's second presidential election. "This felony disenfranchisement was used to elect George W. Bush in 2000. In Florida alone, more than 400,000 citizens, mainly African-American were stripped of their vote, thus allowing Bush to win that state by 527 votes, thereby granting him the White House. The so-called “War on Drugs” is actually a War on the Poor, especially black and brown people."
Dr. Franklin goes on to address what he calls the "normalization of torture" in addressing U.S. prison policies. "To understand the depth of the both racial inequalities in the American prison system and how it has been used to normalize torture, it is necessary to recognize the roots of the prison system in African-American slavery." Dr. Franklin traces the history of torture, particularly how torture was a necessary tool for maintaining slavery. The culture of torture is evidenced in the modern day prison system.
"Sexual humiliation is the norm, and rape is endemic. A 1999 Amnesty International report documented the commonplace rape of prisoners by guards in women’s prisons. Prisoners are forced to walk around naked in front of guards of either sex. " Dr. Franklin then traces the direct line between sexual humiliation in prison practices and similar torture at Abu Ghraib.
To read the entire interview with Dr. Franklin, click here.
Tuesday, June 23, 2015
The New York Times published an article with the byline Obama Lowers His Guard in Unusual Displays of Emotion. Perhaps President Obama, nearing the end of his second term, is relieved. Now he can be more of himself. During his first campaign, the President addressed race in a well-received speech in Pennsylvania. Early in his first term, the President reacted to the police/Henry Gates encounter emotionally, no doubt compelled by his own knowledge of encounters between Cambridge police and African American students when he attended Harvard Law School. After that discussion, both race and emotion pretty much disappeared from the President's public persona.
Having experienced a sustained barrage of racially motivated responses to his presidency, and now unrestrained from re-election concerns, President Obama has the ability to be a black man who can address one of the most serious and deep rooted problems in the U.S. While the discussion will further poke the beast that is racial bias, expanded public discussion is necessary as a first step toward change.
The Charleston shootings are not merely proof of racism in the U.S., the shootings are evidence that as a nation we have capped racial "progress". Yes- no doubt Mr. Roof had some level of mental illness when he committed the horrendous murders- but the fact that he focused on black individuals, a black community, and a black church, lays bare the heightened level of racism in the 50 states. A person such as Mr. Roof does not focus his hatred on African Americans without cultural support to do so. Flying the confederate flag, not just in South Carolina, racist jokes, subtle racism and implicit bias reveal a country that is all too willing to leave racism unaddressed and in doing so, perpetuate it. Sometimes the anger that victims of all sorts feel most is not toward the perpetrator, but toward those who stood by without helping. Raise the topic of racism and many deny the problem. Some will shift focus of the conversation to "black on black" crime or "reverse" racism. Denial of race discrimination does not help.
The demonstrations following Ferguson were impressive. The country has experienced dozens of recent instances of unjustified aggression by police toward black men and women. Now we have a slaughter in an historically black church. We come together for memorial services, protests and other public demonstrations of support for our sisters and brothers of color. But how many of us examine the attitudes and actions - or lack of action- that contribute to racism's perpetuation.
When we permit school systems to ignore the history of race in this country and when we fail to demand fierce institutional change in order to eliminate the devastating consequences of bias, we become the covert perpetrators of racism.
As the President reminded us this week, simply not saying the "N" word in public is insufficient. The President is able to discuss race now. I hope he continues the discussion. What about the rest of us?
Monday, March 16, 2015
Prof. Risa Kaufman's and Prof. JoAnn Kamuf Ward 's students traveled to Alabama last week to participate in events commemorating the 50th anniversary of Bloody Sunday. The students provide us with their first hand account.
By: Glory Nwaugbala, Dan Pedraza, Ben Setel, and Audrey Son, Columbia Law School Human Rights Clinic
As members of Columbia Law School’s Human Rights Clinic, we have spent this academic year working to advance state and local implementation of human rights within the United States. We recently experienced the importance of this work firsthand over the course of a weekend in Alabama.
Many of the United States’ human rights obligations fall within the jurisdiction of state and local governments. Through the Columbia Law School Human Rights Institute, we have been working to develop and support state and local implementation of these obligations. As part of that work, we’ve been privileged to work with the Birmingham mayor’s office. We have been particularly excited to work with Birmingham, not only because of that city’s historical importance in the civil rights movement, but also because Birmingham Mayor William Bell has emerged as a champion for human rights, including through his participation on the United States’ official delegation to the CERD last summer.
On Friday, March 6th, 2015, Mayor Bell hosted a dialogue on local human rights concerns in advance of the upcoming review of the United States at the Universal Periodic Review, and in conjunction with the 50th anniversary of Bloody Sunday (when, as part of the Voting Rights Movement, unarmed demonstrators attempting to peacefully march from Selma to Montgomery were attacked by state troopers on the Edmund Pettus Bridge).
For this event, we helped plan a day of panels on a wide range of issues, including education, immigration, homelessness, and marriage equality. The panelists included state legislators, law enforcement officers, local advocates, community members, and other actors. A representative from the U.S. State Department attended, as well, and noted in his closing comments that “human rights are universal but are experienced locally.” He went on to say that this event was precisely the sort of local engagement that the State Department hoped to cultivate throughout the country. It was encouraging to hear such strong words of support for state and local engagement with human rights from a federal government representative.
Although the individual panelists may not have shared the same views or experiences, some common ground emerged. Where each had seen a gap in justice, each has worked to fill it. Despite the efforts of these individuals and their respective organizations, however, it was clear that more must be done to address critical social justice concerns in Birmingham. The dialogue among the panelists highlighted one of the major themes of the weekend: the promise of human rights in addressing local issues. As one panelist noted, Birmingham must transition from “the cradle of civil rights to the house of human rights.”
Human rights provide a valuable supplement to the traditional civil rights framework. The language of human rights makes clear the intersection and deep connection between economic, social, cultural, civil, and political rights. A human rights frame can better capture many contemporary issues, and pave the way for holistic solutions. It can empower individuals by explicitly acknowledging them as rights-holders. And such acknowledgement highlights that government actors have a responsibility to protect, respect and fulfill rights.
The following day, March 7th, 2015, marked the 50th anniversary of Bloody Sunday, the attempted march from Selma to Montgomery that sparked the passage of the Voting Rights Act. We travelled from Birmingham to Selma to hear President Obama, Congressman John Lewis, and others speak on the legacy of the march. As Congressman Lewis embraced our nation’s first African-American president, sharing a stage in this historic place, we were reminded that although the struggle for rights in the United States has been long and difficult, it is one that has made tremendous strides forward. President Obama's speech served as both a reflection on progress made and as a call to further action. Tens of thousands of people of all ages, races, genders, and sexual orientations gathered in Selma that day to rally around one idea: keep marching. As President Obama reminded us: “the most powerful word in our democracy is the word ‘We.’”
Throughout the weekend, we were struck by the way in which human rights themes permeated the discourse from the local level all the way to the President’s speech. While not everyone mentioned “human rights” explicitly, the principles were evident in their words and in their work. Human rights have a role to play in cities, in states, and at the national level, and they provide a roadmap for the achievement of the universal rights of all people.
Hearing those themes reflected in Alabama was particularly powerful. The story of civil rights in Alabama is as inspiring as it is unfinished. Knowing that tremendous progress has been made in the fight for civil rights—both in Alabama and across the United States—we have good reason to be optimistic about the promise of human rights. In order to realize this promise, however, we must keep marching.
Wednesday, March 4, 2015
A friend, who is in Lithuania to teach an international litigation course, recently shared photos of his visit to the Ninth Fort in Kaunas. The Ninth Fort was the site of Nazi executions of Jews and others. His photos reminded me of my visit to the Ninth Fort in 2004, when I was a visiting professor at Vytautus Magnus University School of Law. I taught a course on human rights law, and more than 100 students were enrolled. In addition to being professionally enriching, it was a profound experience personally: There I was teaching human rights and listening to students talk openly about their human rights concerns in the very place where just two generations earlier many of my relatives had perished during one of the worst human rights atrocities in history -- the Holocaust.
The students interest in and engagement with human rights was a reminder that there is progress. Often, as human rights advocates, we focus on all of the trouble spots. That’s both understandable and important to do. There are too many places where human rights violations persist and they demand our attention. While much work remains, it is worth reminding ourselves that in the 67 years since the adoption of the Universal Declaration of Human Rights, there has been great progress. Millions of lives have been saved, previously silenced groups now are allowed to participate in their countries’ governance, and tens of millions of marginalized individuals have secured access to the basic necessities of life (health care, education, housing, etc.).
Recognizing progress is important to sustaining our effort. When we pause to reflect, we also should recognize and honor the many brave individuals (both famous and largely unknown) who sacrificed greatly to improve human rights for all, around the globe and here in the U.S.
This coming weekend (March 5-9), Selma hosts a 50th anniversary commemoration of Bloody Sunday, the Selma-to-Montgomery March, and the Voting Rights Act of 1965. From the courts (Shelby County v. Holder) to the curbside (Ferguson and many other locales since), we see threats to a breadth of basic human rights. Significant challenges remain and require a sustained commitment to address, but we should not allow the work-to-be-done to completely overshadow the important achievements to date and the courageous individuals responsible for the progress we now enjoy.
Friday, February 27, 2015
Thank you, Patricia Arquette, for raising the issue of US women's equality. I agree. US women are in a sorry state. I remember the momentum to pass the women's equal rights amendment and the shock and disappointment when it did not. We are beyond our time for pressing this issue forward with the same intensity of the 70's feminists. And, as Martha Davis points out, this is an opportunity to breathe life into the campaign for the ratification of CEDAW.
Where Ms. Arquette lost her way was in assuming that her world view is the norm.
In her initial comments, Arquette managed to minimize the status of women who by choice or otherwise have not given birth. Presumably mothers of adopted children were also not included in this category addressed in her initial comment. In the U.S., mothers have cultural and employment barriers that others do not encounter. Organizations such as Mom's Rising bring attention to the special needs of mothers and children and the US policies that harm them.
We cannot minimize the role of childless women, including transgender women, whose leadership in the struggle for women's equality has been significant. But Arquette lumped those women, along with others, in with the general population of taxpayers and citizens which, by the way, excluded non-citizen immigrants and those women who are not working in paying positions.
And then, of course, Arquette, in her follow up remarks, called upon the LGBT community as well as people of color to support U.S. women's equality. In one sentence Arquette managed to change her earlier remarks from an "it's about time" whoop, to a view that promotes the rights and needs of straight, white women . The mistake of prior movements repeated. Far from her awareness was the recognition of thousands of lesbians, particularly lesbians of color, and brown skin women everywhere, who encounter barriers that white, cisgender, straight women never encounter.
What I find interesting in reading various responses is that many commentators responded from places that reflect their own world view. Lesbians pointed out their exclusion. Women of color did the same. Lesbians of color, well they recognized their exclusion even more deeply. A few raised the exclusion of women who have not given birth as well as women who are not paid for their work and those who are not citizens.
Here is my point: Arquette was on the right road in pressing for action on women's equality. Her world view caused her to take a wrong turn. Her critics must not do the same thing. A women is a sister, is a sister. Straight, lesbian, transgender, brown, white, religious or not, documented or native, we are all sisters. To exclude one is to offend us all. The white feminists who preceded us were courageous and successful. We can finish the job without repeating their exclusion of women of color, the gender diverse and others who live outside what many consider our cultural norm.
The feminine way is to embrace, rather than reject, those who falter. Let's thank Patricia Arquette for contributing to the cause and for igniting a new conversation. Then let's move forward together with leadership from those historically deprived of recognition.
Editors' Note: Today marks the one-year anniversary of the Human Rights at Home Law Professors' blog. Thanks to our readers and contributors for making this experiment a success! And here's to another year of commentary, analysis, resource sharing on human rights!
Monday, February 2, 2015
by Guest author Anita Sinha, practitioner in residence with the Immigrant Justice Clinic at American University's Washington College of Law.
Like millions of others others, I was an avid listener of the podcast “Serial.” Its “one story told week by week” was the true story of Adnan Syed, who is serving life in prison for the 1999 murder of his ex-girlfriend Hae Min Lee.
Adnan is Pakistani American, and Hae Min was Korean American. Their identities prompted some to say the podcast was an “immigrant story,” and criticize host Sarah Koenig for not getting many aspects of this narrative. I agreed, but did not think it compromised host Koenig’s role as a storyteller – until I neared the end of the podcast.
In Episode 10, Adnan’s mother tells Koenig that she believes her son was convicted because he is Muslim. Surprisingly, Koenig immediately responded that she did not believe her. Koenig seemed to retract by stating that prejudice may have “crept in…advertently or inadvertently.” She then gave examples of prejudice present throughout Adnan’s case, and exclaimed one can “stir stereotypes into facts, all of which gets baked into a story.”
But then Koenig downplayed the injustice that can come from such sordid story making, stating: “Reporting this story I found plenty of examples of casual prejudice against Muslims.” As an example, she presented former jurors’ claims that while they had stereotypes about Adnan’s religion, it “didn’t affect their view of the case.” However, Koenig stated that when she pressed, it seemed “stereotypes of Adnan’s culture were there, lurking in the background.” She played two jurors’ interviews explaining that assumptions of Muslim men’s misogyny influenced their peers.
That Koenig identified how stereotypes were present but then dismissed this as “casual” is troubling. Casual prejudice is not an actual phenomenon. It is not a defined phrase or term of art. There is, however, a proven concept called “implicit bias,” and it is part of our national discourse after the deaths of Michael Brown, Eric Garner, Tamir Rice, and other civilians of color killed by police officers. Referring to “the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner,” we are learning how implicit bias plays a role in police brutality. There is the language in Darren Wilson’s grand jury testimony describing Michael Brown as a “demon.” There is a report revealing that police perceive Black men to be less innocent than their White counterparts, and also older than they actually are (the officer who killed twelve-year-old Rice thought Rice was twenty). A Washington Post article flatly declared, “across America, Whites are biased and they don’t even know it.”
Koenig invokes “casual prejudice” to cast the bias of jurors and others as not dispositive. It is not clear how Koenig is so certain, but her characterization of the bias as “casual” calls into question her credibility. In my opinion, she never restores her credibility. Prejudice is conscious, or it can be implicit. It is pervasive. Prejudice in the U.S. incarcerates and kills people of color at disproportionate rates. What prejudice is not is casual.
A previous version of this blog was published in the Huffington Post.
Tuesday, January 27, 2015
by JoAnn Kamuf Ward, Human Rights Institute, Columbia Law School
The U.S. prides itself on free and fair elections. Indeed, the Constitution and federal law guarantee equality in voting: the “one person, one vote” standard was enunciated by the Supreme Court in the 1960s as a means to address vastly skewed voting power resulting from districts with unequal populations.
This simple phrase – “one person, one vote” – belies the complex nature of elections in the United States. In order to foster the idea that each person’s vote counts in our at large system, federal elections districts drawn “as mathematically equal as possible,” while state and local districts are supposed to be drawn through an “honest and good faith effort” to ensure equal populations. (The ACLU has explained these standards and the underlying case law here). But, in the majority of states, districting falls to legislators (in others, districting commissions have authority to draw districts). That means in most jurisdictions, those who are in charge of districting are individuals with a vested interest in maintaining power. This system is one rife with potential for abuse.
Indeed, it has led to rampant gerrymandering. In general, gerrymandering is the act of altering political boundaries with the intent to impact election outcomes. Perhaps the most well-known form of gerrymandering is racial. Indeed, the Voting Rights Act was developed to prevent the dilution of minority votes – yet its protections are unfortunately being chipped away. Another variation is partisan gerrymandering, i.e., the “practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength.” This slicing and dicing of districts to protect a particular party or favor a particular candidate is another way that districting curtails truly free and fair elections.
While much seems at stake, the Supreme Court has been reticent to step in to curtail these practices. Indeed, last year’s decision in Shelby v. Holder struck down some protections of the Voting Rights Act that address racially discriminatory gerrymandering. In the arena of partisan gerrymandering, the Supreme Court more or less thrown up its hands over a decade ago. In 2004, a plurality decision by Justice Scalia opined that there is “no judicially discernible and manageable standards” to adjudicate claims of partisan gerrymandering. This means that presently there is little recourse for those whose votes, and voices, are marginalized by partisan line drawing.
So, what can be done? Advocates are taking these concerns to the international human rights community to put pressure on the United States to ensure elections are truly representative. The relevant human rights protections are strongly worded. The Universal Declaration of Human Rights enshrines the right to “take part in the government of his country, directly or through freely chosen representatives” and guarantees a fundamental cornerstone of democracy, that “[t]he will of the people shall be the basis of the authority of government; [as] expressed in periodic and genuine elections.” The International Covenant on Civil and Political Rights echoes these protections and the Race Convention further guarantees the right to vote.
In its recent review of the United States’ human rights record, the CERD Committee expressed concern about the “obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws.” The Committee called for federal legislation to address discriminatory impact of voting regulations, voting rights for felons and DC residents and efforts to ensure indigenous peoples can effectively exercise the vote.
There are ongoing legislative efforts to address some of these concerns, including passage of the Voting Rights Amendment Act of 2014. Placing districting power in the hands of independent bodies rather than legislators is another proposal reform. Another recommendation to address partisan gerrymandering is removing discretion altogether and utilizing computer models to generate district maps.
Yet, it is unclear whether current legislative reforms or judicial intervention can truly foster compliance with human rights norms within our current winner take all election system (also known as “first past the post”). More drastic steps may be necessary to ensure the will of the people is the basis of the government and representatives are freely chosen.
Alternatives to “winner take all” models do exist. They are employed in countries around the world, as well as in some U.S. jurisdictions. One is Ranked Choice Voting, or Alternative Voting (AV), which is used in Cambridge, MA, San Francisco, CA and Australia. Another is Mixed Member Proportional Representation, the means for choosing representatives in Germany, New Zealand and others. These videos offer an introduction to Alternative Voting and Proportional Representation
What solutions would you propose?