Human Rights at Home Blog

Event 11/10: Constitutionalizing Economic, Social, and Cultural Rights Webinar

On November 10, 2023, from 12:00-1:30pm CST, join the Northeastern University Program on Human Rights and the Global Economy and the Human Rights Center at the University of Minnesota Law School for a webinar on Constitutionalizing Economic, Social, and Cultural Rights, as part of the UN Human Rights's Hernan Santa Cruz Dialogues Series on Economic, Social, and Cultural Rights.

This conversation will explore the various ways in which Economic, Social and Cultural (ESC) rights are (or are not) embedded in national or subnational constitutions. Speakers will share experiences with constitutional drafting as well as thoughts about constitutional construction, and the role of international human rights law in those processes. An overarching focus will be on the impacts of constitutionalizing ESC rights. 

The event will feature invited experts: Katie Boyle, Professor of Human Rights Law and Social Justice at the University of Strathclyde and constitutional lawyer with the Government Legal Service for Scotland; Denisse Córdova Montes, Acting Associate Director in the Human Rights Clinic at the University of Miami School of Law; Jacqueline Dugard, Senior Lecturer in the discipline of Human Rights and Political Science at the Institute for the Study of Human Rights and the Department of Political Science, Columbia University; and Domingo Lovera-Parmo, Associate Professor of law at Universidad Diego Portales in Santiago, Chile.

The panel will be moderated by Martha Davis, Northeastern University Distinguished Professor of Law, and Amanda Lyons, Executive Director, Human Rights Center at University of Minnesota Law School.

To register for this event, click here.

Toward a New Economic and Social Contract – Lessons from History

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

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

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

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

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

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

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

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

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

#PoorNotGuilty

Editors' Note: This post is contributed by Tamar Ezer, Associate Director of the University of Miami Law School's Human Rights Clinic and her student David Stuzin.

Last September, the  Human Rights Clinic at the University of Miami (UM) School of Law hosted a symposium on challenging petty offenses that criminalize poverty, marginalization, and gender non-conformity, in collaboration with UM Law Review, UM Social Justice Law Review, UM School of Communication, National Law Center on Homelessness & Poverty, and Open Society Foundations’ Human Rights Initiative. The symposium brought in leading legal practitioners, academics, and advocates from United States, Uganda, Sierra Leone, Nigeria, Malawi, Madagascar, Kenya, Jamaica, Israel, India, Hungary, Guyana, Guinea, and Ghana to critically examine the intersection of petty offenses and marginalization through a variety of perspectives. It provided an opportunity to connect local, national, and global conversations on criminal law and social justice and for learning across movements and countries. Speakers discussed a range of topics including the use of litigation; human rights advocacy at the local, national, regional, and international levels; and strategies for creative campaigning and new media engagement.

Moreover, a communications workshop prior to the symposium provided an opportunity for advocates to strengthen communication strategies and creative campaigning to complement legal advocacy. At the workshop, advocates developed a shared hashtag for work in this area: #PoorNotGuilty.

A report providing a synopsis of the symposium, as well as videos from the various sessions are now available. These materials can be reviewed for Florida Bar CLE credits.

Additionally, a special issue of the UM Law Review will capture lessons and reflections from the symposium. The first article on “Litigating to Protect the Rights of Poor and Marginalized Groups in Urban Spaces” is now available.

Lawyers For Tenants

 

 Recently Professor Brian Gilmore, of Michigan State University College of Law wrote on the need for lawyers for low and moderate income tenants facing eviction.  The piece was published in the New York Times.
Prof. Gilmore notes the frightening statistics in a report  by Princeton University’s Eviction Lab. Prof Gilmore confirmed what "housing advocates and public-interest housing law scholars have always known: Evictions from rental housing are a national epidemic."

Prof. Gilmore further noted that "Over two million United States families were forced from their homes in 2017, in big and small cities alike. In some states, like Virginia, which has five of the top 10 cities on the list of cities with most evictions, the number of renters who have faced eviction is jarring."

Calling eviction is the civil equivalent of capital punishment, Prof. Gilmore cites eviction as a major cause of homelessness.  Taking a human rights perspective, Prof. Gilmore describes those evicted as "suffering civil death in society.  They lose not only their housing but also their independence and dignity, often becoming isolated and hopeless."  

In a powerful advocacy piece, Prof. Gilmore calls for appointment of lawyers for those being evicted in an attempt to balance advocacy in a court process where 90% of landlords have lawyers while 10% of tenants have counsel.  

To read the entire opinion piece, click here. 

Race, Redemption and Restoration

The Public Welfare Foundation will hold a day-long forum:  A Conversation on Race, Redemption and Restoration.  The forum will be held on March 9, 2018 in Washington, D.C. 

The invitation states "We will dive into candid conversations about: advancing racial justice, particularly within the youth and criminal justice field, the steep barriers to opportunities facing individuals who transition back to communities from the justice system; and necessary strategies to restore communities experiencing crime, violence, and lingering impacts of the criminal justice system. "

While the conference is by invitation only, it may possible to secure admission by contacting the Foundation directly to explore availability.

Allies Along The Way

By Prof. Justine Dunlap

In the land of “who’da thunk it,” I find myself voluntarily associating with Arnold Schwarzenegger, Mitt Romney, and Charles Krauthammer. I hereby claim them as allies who are willing to stand against racism, anti-Semitism, and general moral vacuousness.

I recently gave a nod to tennis great Andy Murray as an ally in securing the recognition of women’s accomplishments in tennis---successes that should have been hard to ignore but had been overlooked nonetheless. The Murray shout-out was not much of a reach. However, it is important to find allies in the cause of equity anywhere we can, even if it is a stretch.

In this down-the-rabbit-hole time we live in, Schwarzenegger, Romney, and Krauthammer have all spoken out in different fora against Donald Trump’s post-Charlottesville truck with racists and bigots of all stripes. Although the President has been giving offense for a very long time, his recent assertions, first made after the Charlottesville rally and reiterated at his Phoenix campaign speech Tuesday night, have been both more egregious and led to wider condemnation.

Romney, in a Facebook post, declared that Trump’s words “caused racists to rejoice, minorities to weep, and the vast heart of America to mourn."   I mourn with you, Mitt.

Krauthammer made his views known on a Fox news panel on the same day that President Trump engaged with reporters at an infrastructure week event and made painfully plain his real views on the Charlottesville violence. No longer were the teleprompter-read words of his aides able to prevail. Trump’s comments were a “moral disgrace,” Krauthammer declared, not mincing words. Well said, Charles.

Schwarzenegger gets the prize with the longest and most personal appeal against the most recent and offensive presidential sentiments. In recorded remarks, he spoke directly to different audiences, including neo-nazis and President Trump. His comments to Trump showcased a bit of their rivalry over, inter alia, The Apprentice show ratings, as Schwarzenegger “helped” the President see how easy it is to script a speech that does not equivocate in its condemnation of hate. Schwarzenegger’s comments to neo-nazis were especially powerful, as he recounted growing up on post-war Austria. Go, Arnold, go.

Other conservatives have spoken out, too.  Senators Marco Rubio, John McCain, and, recently, Senator Bob Corker--a Trump friend—come to mind. But it is fair to say that many more have remained all too silent; no danger of running out of Profiles in Courage awards this month.

But I get it, conservatives. Commenting on everything would be a fulltime job and, after all, you do want to advance your legislative agenda.  But some things simply demand comment and condemnation. The President’s racially loaded remarks and—to my lights—his even worse indulging of the racists and anti-semites fall firmly in the category.

“In the end, we will remember not the words of our enemies, but the silence of our friends,” said Martin Luther King, Jr.   Schwarzenegger, Romney, and Krauthammer fit into neither category for me, but I am glad they spoke out and did so forcefully. As white supremacists and neo-nazis feel emboldened in the current climate, more and more people across our wide and divided political spectrum must denounce their execrable views.

Dispatch from Mexico City

The Law and Society Association conference, held this year in Mexico City, was the usual whirlwind of panels, roundtables and plenaries.  This year's theme was Walls, Borders and Bridges.  Nothing could better illustrate the Walls portion than the  fortress-like US Embassy directly across the street from the conference hotel. The Embassy appeared completely impenetrable. At the same time, it boasted a large rainbow Pride flag hanging out of some upper floor windows.  Perhaps there is life somewhere within the embassy after all, trying to make a connection with those outside.

The conference plenary sessions focused on populism and constitutionalism, with insightful talks on the US election, Brexit, and the Colombia peace referendum rejected by voters.  Human rights -- particularly issues of economic, social and cultural rights -- was a frequent theme of the individual sessions, which also reflected the confounding theme of US human rights exceptionalism.  Business and human rights also played a prominent role.   In a session on comparative water rights, one speaker noted the relevance of human rights to water litigation in India and South Africa.  Another panelist, providing an extensive analysis of the Flint, Michigan water crisis, focused on the growing popular movement in the US for water rights.  As she noted "water is power" and power will not shift in the US without pressure from people.  Other panels of relevance to the US addressed the continuing impacts of Washington v. Davis on civil rights and death penalty advocacy in the US; the experiences of undocumented immigrants within US borders; the jurisprudence of the InterAmerican system; and low wage workers' rights.  You can search the program and download papers here.

There is so much to absorb at an inter-disciplinary, international conference like this.   As the title of the conference suggests, the Law and Society Association is very much about building scholarly bridges to support the innovation that can come from such interchange.  But with an embassy closed-off to the outside, and government institutions that often refuse to engage with human rights norms, the task of building bridges between the US and others beyond the academy is harder than ever.  

 

Human Right to Social Security

"The right to social security is the right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly for children and adult dependents." – Committee on the Economic, Social and Cultural Rights, General Comment 19

The human right to social security is overlooked in US debate.  The topic was absent from the presidential discussion this election season until the final debate. Issues were largely ignored because personality and character flaws have dominated election discussion.  More recently funding mechanisms, raising the age of eligibility and privatization have been points of discussion.  Continuation of benefits is never assured by either party. 

None of the proposals raised by politicians secure human rights for those most in need.  A good example is the suggestion of raising the age of eligibility.  For those at or near retirement age now, eligibility for full benefits begins at age 66.  Some advocate raising that age to 68.  The proposed age may be possible for those of us privileged to work in academia and other non-physical positions.  But for the mechanic on his feet all day, 66 is a hardship.  For those whose ailments develop earlier because of sustained physical work, placing social security benefits further out of reach is a denial of dignity.

Any measure that removes responsibility for government supported financial security risks the financial survival of millions.

There is no shortage of funding sources for Social Security.  If the funds collected through payroll were invested for the sole use of payment of benefits, each recipient could collect thousands more a month than is paid now.  But the collected funds are used toward the general budget, which presently includes substantial funding of the forever war.  That was not the intention when the payroll tax was designed. 

 The solution to providing for those who are disabled or elderly is simple.  The next time a politician or others talk about the "drain" that social security is taking on our domestic budget, we might suggest segregating the social security payroll tax with the dedicated use being supporting those in financial need.   Dignity of those in need of financial security is not optional, particularly since those citizens have paid into the system through out their working lives with the expectation of receiving a pension.  We have the method of collection and we have the funding.  The government needs to make reparations to the depleted fund and prioritize the survival and dignity of those most in need.

 

 

The Transformation of Michelle Alexander: A Woman of Spirit

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." 

To read more, see the Union Theological press release and Paul Caron's report on Tax Prof Blog.

 

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."

                                                                                                                                                                                                                                                                    

 

 

 

 

 

 

 

 

 

 

 

 

 

Does the Right to Civil Counsel Include Effective Counsel?

The answer is:  not yet.  

SCOTUS is entertaining a cert petition that requests that the court address whether, when civil counsel is appointed, the party is entitled to effective assistance of counsel.   While your first response may be "Of course!" the answer may not be obvious in some jurisdictions, as reported on SCOTUSBlog.  While the Tennessee case in question is specific to termination of parental rights, if the US Supreme Court accepts the case for hearing, the court's decision could have a wide ranging impact on the quality demanded of court appointed lawyers in a range of civil cases.  As noted in yesterday's post, cases that address parental rights are those (at this juncture) that most easily are identified as triggering the right to counsel.  

The case is Vanessa G. v. Tennessee Department of Children's Services.  The statute in question is Tenn. Code Ann. Section 37-1-126(a)(2)(B)(ii)  which states in part "a parent is entitled to representation by legal counsel at all stages of any proceeding under this part in proceedings involving termination of parental rights[.]"  The Tennessee Supreme Court affirmed that parents are entitled to appointment of counsel in termination cases, but noted that nothing in SCOTUS' 1981 Lassister decision mandates that counsel be effective.  In so ruling the court also rejected the notion that the criminal standard of "ineffective assistance of counsel" must or need be imported to civil matters.  

With the concept of a civil right to counsel in matters involving fundamental human rights becoming more recognized, the Vanessa G. case, if accepted, could act as a guide to states as they struggle with redefining which civil cases demand the appointment of counsel and the level of skill litigants may expect when counsel is appointed.  We know what the answer would be in Massachusetts, which has already held that counsel must be competent.  But this may be the time for clarity on the national level.

When Access to Civil Counsel Becomes a Fundamental Right

As reported by John Pollock of the National Coalition for a Civil Right to Counsel, the Massachusetts Supreme Judicial Court in L.B. v. Chief Justice of the Probate and Family Court  recently ruled that parents have a due process right to counsel when seeking modification or termination of a guardianship of their children, provided that the parent "make a modest yet meaningful preliminary showing that he or she has a colorable case” for removal or modification.  This case was a followup to Guardianship of V.V., which recognized the constitutional right to counsel for establishment of such guardianships.  The NCCRC provided assistance to the petitioner and amici in both V.V. and L.B.

 

The decision expands the rights of parents to legal representation beyond cases of termination of parental rights or the appointment of a non-parent guardian.  The decision establishes the right to counsel when the parent seeks to change an existing guardianship, revisiting the possibibilty of the restoration of full parental rights or at least a modification of an exisitng guardianship.  The case sets out parameters for demonstrating the need for counsel and suggests specific guidelines for the lower court to consider to make the process of demonstrating need for counsel easier than what the Probate and Family Court had suggested.

 

The case advances the rights of litigants to appointed counsel in areas that have significant impact on their human rights and those of their families.  

 

For more information on the case, read here. 

 

 

 

 

 

MA case.

Russell's article.

The President, Human Rights and Dignity

One observation of President Obama as he completes his presidential term is amazement at his ability to remain spiritually centered during eight years of personal, hateful, attacks.  Over the course of the past eighteen months, the President has been less constrained in his comments on racial and gender inequities.   He is able to address, in action as well as speech, issues that he may have avoided or minimized when facing re-election.

But even if the President were not now loudly promoting equity for the culturally marginalized and other human rights, I would honor him for a significant personal and public achievement. Against odds, he is leaving office a centered man.

While sometimes his frustrations with the political process leaked through, grace has been his hallmark response when criticized or stonewalled. As with all presidents, he has aged notably. As with his predecessors , this President has experienced responsibilities that were not imagined during his first campaign. The responsibilities are humbling. President Obama acknowledged that daily briefings on the extent of terrorist activities has softened some of his criticisms of his immediate predecessor. Nursing the economy back to stability has taken patience and persistence in the face of public and congressional criticism.

While these pressures may seem extraordinary to us, they are ordinary for presidents.  What has been unusual for this President was the unreasonable, aggressive opposition he experienced not because of his political choices but because of who he is:  a black man in what is often considered the most powerful position in the world. Racism trumps reason.  Times over the past seven years when Congress came together to act in the best interests of the country can barely be sussed out.  For many, the exclusive agenda was to undo the black man.   Mission not accomplished.

Dignity has been a recurring theme on this blog.  Dignity is the cornerstone of human rights work.  Justice Kennedy's invocation of dignity in Obergefell v. Hodges has been pondered by our bloggers.  No matter what our political criticism and differences, we would be missing an opportunity to recognize personal dignity if we do not honor the President's ability to maintain his own under incredible pressure.  While no doubt the attacks have caused him personal strain, President Obama's centered leadership model in spite of the strain has been a singular accomplishment of his administration.   

As noted at the time, awarding the Nobel Prize for Peace early in his presidency was premature.  The sentiment supporting the award may have been for the singular and amazing accomplish of being elected while black. The award might have carried more significance if given at the end of the President's term for his ability to maintain peaceful leadership within our country despite what many consider a war on him.

Crowdsourcing Litigation for Tax Justice

Oxfam and the Tax Justice Network have announced a tax justice and human rights essay competition for law students and legal professionals. 

But this is not your average essay contest.  Oxfam and TJN are looking for actual complaints against tax-dodging corporations or those 62 rich people who control half of the world's wealth.  According to the organizers, "We’re inviting 3,500-word complaints to identify the plaintiffs, defendants, remedies sought, and arguments that are considered enforceable in an existing legal forum. We seek complaints that could form the basis of effective  advice to developing countries, or to groups of citizens in countries at any income level who have suffered, and want to know how they could best use law to protect their or their people’s human rights in the face of tax injustice."

Winners will be flown to London for TJN's annual research workshop, but more significantly, submissions to this competition will be considered for active litigation.

The deadline is March 13, 2016.  For more information, click here.

 

Fisher v. University of Texas at Austin, and the Relevance of Human Rights

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.

Ban the Box and Open the Door to Opportunity

by JoAnn Kamuf Ward  

18 states have done it.  Over 100 cities and counties have done it.  Walmart has done it.  Koch Industries has done it.  The critical question is:  will the federal government be next to “ban the box”?

On July 20^th, the US Department of State convened a human rights townhall as part of its engagement in the UPR process – an opportunity for advocates to discuss how the US federal government should respond to the more than 300 recommendations made to the US in May.  The Leadership Conference on Civil and Human Rights kicked off civil society interventions, urging the federal government to join the growing ranks of employers that have agreed to remove the question “Do you have a prior arrest or conviction record?” from employment applications.    

 The Leadership Conference’s recommendation echoes a growing call for the Administration to issue an executive order banning the box for federal agencies and federal contractors.  The national “Ban the Box” movement emerged from grassroots organizing by All of US or None to address the problem of “lifelong discrimination and exclusion because of a past arrest or conviction record.” 

 All of US or None considers itself a civil and human rights organization and this is clearly a human rights issue.  Most obviously, banning the box is responsive to UPR recommendation 274, which calls on the US to develop a national strategy to reintegrate “former detainees and to prevent recidivism.”  The practice of asking job applicants whether they have an arrest or criminal record has deeper human rights implications as well.  It runs afoul of the general prohibition of discrimination and places undue restrictions on the right to work as well.  Importantly, human rights not only place on obligation on governments not to discriminate, they require action to prevent discrimination by private actors, bolstering the call to ban the box across employment sectors.

 The fact that increasing levels of incarceration have a disproportionately negative impact on communities of color is clear. (According to DOJ statistics from 2012, Black men were 6 times more likely to go to prison than White men, while Hispanic males were two times as likely.  Black females ages 18 to 19 were three times more likely to be imprisoned than white females of the same age, while Hispanic 18-19 year olds had imprisonment rates almost double that of white women. 

 Placing a question about criminal records on employment applications exacerbates this inequity and severely restricts the opportunity for a second chance.  Indeed, when instituting “ban the box” protections in Virginia earlier this year, Governor McAuliffe highlighted that “[w]e all know this box has a disparate impact on communities of color.”  We all know, as well, that limiting access to gainful employment is a surefire way to ensure financial insecurity for individuals with criminal records in all communities.

 Just asking the question about criminal records can deter an individual from finishing a job application.  Applicants that do take the steps to complete an application, and check the box, run the risk of  being dismissed from consideration with no assessment of their individual skills, character, and qualifications.  The NY Times has reported that disclosing a criminal record has a clear negative impact, reducing the likelihood of a callback or job offer by fifty percent.  (To clarify, banning the box does not mean that a background check can’t take place –it means eliminating the threshold question of criminal records from the interview and screening stage).

 By removing the criminal record question, government employers foster equality and opportunity in the public sector.  While banning the box does not address the underlying factors that perpetuate mass incarceration, it chips away at the stigma that millions of Americans face as a result of coming into contact with the criminal justice system.  As others have reported, there is also evidence that keeping people with criminal records out of the labor market hurts the economy.  Notably, by increasing employment opportunities for those who have been arrested or convicted, governments can reduce the factors that lead to recidivism.

 When governments “ban the box” in public employment, they strengthen respect for the human right to be free from discrimination.  When governments go further and restrict questions about criminal records in private employment, they bolster human rights by protecting against discrimination by third parties.  San Francisco’s ordinance does just that, it prohibits public and private employers from asking about criminal records.   Minnesota revised its law in 2013 to do the same.  (Massachusetts, Rhode Island. Buffalo, Seattle, Philadelphia, Newark, and Rochester also “ban the box” for certain categories of private employers).

 Obama signaled support for banning the box in his speech at the NAACP conference last month.  His support builds on recommendations from the My Brother’s Keeper Taskforce, which called for hiring schemes that “give applicants a fair chance and allows employers the opportunity to judge individual job candidates on their merits.”  Guidance issued by the EEOC in 2012 on consideration of arrest and employment records also supports banning the box.  This Title VII guidance notes that it is a best practice for employers to “eliminate policies or practices that exclude people from employment based on any criminal record” and counsels towards “limit[ing] inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.“

 As the Leadership Conference recently stated: “By eliminating the litmus test that denies all applicants who have been in prison the opportunity to work, we ensure that … we are 'a nation that believes in second chances.'”   

It is not often that human rights advocates and the Koch brothers agree.  The ever-growing bipartisan support for banning the box should be a call to action – its fair, its smart, and it's a critical way to foster opportunity for the more than sixty five million Americans who have an arrest or conviction record. 

[Want to know more?   The National Employment Law Project tracks state-level efforts, as well as city and county legislation .  In 2010, NELP and the National League of Cities jointly developed a resource on promising reentry policies at the city level, which can spark further innovation at the local level.]