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March 7, 2025Blog / UncategorizedBy: Lillian Perez
Last semester, one of our blog staff editors, Lillian Perez, set out to discover what CUNY Law students think about being law students in this day and age.
A conversation with CUNY Law Students:
I interviewed 8 CUNY Law students, and I asked them the question that had been looming in the back of my mind since this semester started…how are you a law student while the world seems to be burning? The heaviness of the world had felt unbearable, and I thought I was the only one feeling it. I could not sit in my classes learning about the nuances in the law without thinking: What’s the point? Everything in the world feels egregious, and absolutely nothing seems to be changing. I am tired. I feel defeated.
Lucky for me, I wasn’t the only one feeling this way. Hearing about their experiences and emotional disposition over the last few months has helped me navigate my internal sentiments.
Here are eight things I have learned while conducting these interviews with some brilliant CUNY Law students that have, quite frankly, changed my life. If you have been feeling inundated or suffocated by the state of the world, their perspectives might help you, too, or at the very least, make you feel less alone.
Eight things I learned from 8 CUNY Law Students
Compassion Fatigue is real.
The world is not getting worse. It has always been abhorrent.
Imperialism and colonialism have, on every occasion, been the standard of accumulating power at the expense of indigenous people. The American educational system, for example, indoctrinates children at a young age to believe the one-sided history written in their textbooks without asking any questions. There is a culture of praising explorers and navigators while conveniently leaving out the organized genocides that led to their self-proclaimed power.
It is a life skill to learn how to be one with the world while simultaneously learning how to operate in a world that is run on a broken system.
It is easy to get overwhelmed, and it is hard to be present when you are constantly being reminded of how inherently broken the legal system is. It is important to be thoughtful and reflect on what is triggering you.
You can ground yourself by asking: What are my triggers? What do I feel most susceptible to? How do I mitigate that so I am not swallowed by my environment?
There is a difference between action and reaction: When you take the time and energy to figure out both what it is you are most concerned about and delineate that from what is in your control versus what is out of your control, you are left with this reserved configuration. This is what is significantly impacting you, and this is something you can actively try to dismantle. By leaving out everything that is out of your control, you will have enough energy to strategize how to organize around your passions. There is great power in functional strategy. This is the sweet spot where you can help those who are being affected without depleting your own energy source.
Acting in honorarium for those who are no longer with us is powerful: One of the students I interviewed had experienced a tremendous amount of loss this semester. When I asked them how they could navigate their emotions while being an active community organizer and staying on top of their schoolwork, they said, “I am guided by the people who would otherwise be encouraging me to be present. If they would be present, I should be too.”
It is hard to focus on anything when you know your classmates are hurting.
Grief is a beast. It is okay to acknowledge your grief even when law school doesn’t give you the space to do that. Law school can wait. Your grief cannot.
Showing up is enough, even when it feels hard to.
“If I show up and do the work, I can get through this, and hopefully, if I keep showing up, I can use the law to help other people.”
My main takeaways from the conversations:
Sharing this experience with my classmates has provided me with enough hope, love, and guidance to persevere through any challenges forthcoming in my near future. I have experienced the complete force that comes from dialogue. These interviews have revealed the unequivocal importance of engaging in these small conversations.
Safeguarding these conversations with one another can be just as impactful and motivating as any other form of grassroots or social activism. Dialogue can inspire anything, and it is these conversations with one another that sustain us amid revolution. Change does not come in one big wave. Extraordinary change is rooted in community and conversation with one another.
While the world may feel like it is burning, it is within one another that we will find a rejuvenating lifeline that will loosen the grip of the world that we are dedicated to reforming. [...]
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March 5, 2025BlogJared M. Trujillo
In 2005 as a high school senior in Chicago, I found myself locked in a debate with my government teacher about gay marriage. He smugly declared “It’s not discrimination! Illinois’ marriage ban prohibits gay and straight people alike from marrying someone of the same sex.” I stared at him in disbelief with a dropped jaw and furrowed brow, as I thought I was doomed to fail the AP exam with the man who made that argument as my teacher. He mistook this look as defeat. Little did I know his “equal application theory” argument had a long pedigree stretching back to Pace v. Alabama in 1883, where the Supreme Court upheld an anti-miscegenation law because it equally punished Black and white participants.
Unfortunately, equal application theory is not a relic of the past. This September, in Corbitt v. Secretary of the Alabama Law Enforcement Agency, the U.S. Court of Appeals for the Eleventh Circuit explicitly used equal application theory to uphold an Alabama law against a Fourteenth Amendment Equal Protection challenge that prohibits transgender people from changing the gender designation on their driver’s licenses without a specific surgery under the guise that the law equally applies to cisgender and transgender people, and people of all sexes. Of course, the law is targeted at transgender people, and they are the only Alabamians negatively impacted by the policy. While the Corbitt Court was particularly blunt in its use of equal application theory, the Eleventh Circuit is not alone in this logic. Supreme Court Justice Kavanaugh entertained similar arguments on December 4th during his oral arguments in United States v. Skrmetti, a challenge to a Tennessee law that restricts minors from accessing puberty blockers, hormone therapy, and testosterone treatment only for gender-affirming care while enabling youth to continue the same treatments for reasons other than to affirm one’s gender.
This essay briefly examines the evolution of equal application theory from a Jim Crow-era tool to perpetuate white supremacy to its current iteration as a weapon of war on the transgender community’s right to exist. As the legal landscape for transgender rights continues to evolve, it is more important than ever to advocate for a substantive understanding of equality. While the fight against equal application theory could mean life or death for transgender people in legislative halls and court cases like Corbitt, the battle against this theory is also a fight for the very meaning of equal protection under the law. We are all stakeholders.
Equal Application Theory Has Always Been a Smokescreen for Discrimination
The Equal Protection Clause of the Fourteenth Amendment promises equal treatment for all under the law. However, equal application theory has always been a smokescreen for the subjugation of vulnerable groups and one of the most egregious perversions of the Fourteenth Amendment’s promise. The premise of equal application theory is that if a law or policy imposes equal consequences and equal suffering on empowered groups and vulnerable groups, courts need not apply heightened scrutiny in their Equal Protection analysis. Heightened scrutiny requires the government to clear a high bar before making distinctions between groups of people, thus making it easier for groups to challenge discriminatory laws. The Court has long applied heightened scrutiny for race and gender-based distinctions. Similarly, discrimination against transgender people is prima facie gender-based discrimination, as discrimination because of transness is inherently on the basis of an individual’s nonconformity with gender expectations and noncompliance with gender stereotypes. Many Circuit Courts, including the 11th Circuit, apply heightened scrutiny in cases of discrimination based on a person’s transness. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). However, the equal application analysis allows courts to avoid applying heightened scrutiny because the discrimination is not purportedly about gender or someone’s transness, but a neutral law.
Whether a court applies heightened scrutiny is often the most essential factor in determining whether the court will strike a discriminatory law, an adverse employment decision based on animus, or discriminatory practices in housing, benefits, education, foster care, or any systems people regularly navigate. Yet, under equal application theory, courts would not have to apply heightened scrutiny because the discrimination is not discrimination at all, as all groups suffer equally. According to this flawed logic, restrictions on transgender people changing their driver’s license gender designations are not bans targeting transgender people because they also proscribe cisgender people from changing the gender marker on their driver’s licenses. Gay marriage bans are not discriminatory because straight men are prohibited from marrying men as well. Anti-miscegenation laws were not prejudiced because they treated Black and white participants equally. Because these statutes affect all groups equally, equal application theorists claim, courts need only apply the lowest tier of scrutiny rather than heightened scrutiny. The lowest tier of scrutiny is the most deferential to the government, and it gives vulnerable groups little recourse when governments target them with discriminatory policies.
Equal application is a potent tool that enables courts to pay no heed to the subjugation of vulnerable populations, which is why it has been such a popular weapon for those with oppressive desires since before the ink dried on the 14th Amendment. Yet proponents of the theory fail to realize (or at least fail to acknowledge) that the purported formal equality does not nullify the disproportionate harm that equal application laws have on vulnerable groups, nor does it recognize that the underlying reason for these policies is often animus against a vulnerable group. Equal application theory is an attempt to dodge heightened scrutiny under the guise that all groups suffer the same harm because they are proscribed from doing the same activity, when in reality only the marginalized group is harmed. For instances, cisgender people do not have the same interest in changing the gender designation on their license as transgender people, just as heterosexuals do not have the same interest in same-sex marriage as same-sex couples.
In Pace v. Alabama, state law authorized up to six months of incarceration for “living together for the purpose of adultery or fornication” between members of the same race, but the law mandated two to seven years of incarceration or carceral labor for both parties if one party were Black and the other party white. When a Black man, Tony Pace, argued that his sentence under the antimiscegenation statute violated the Equal Protection Clause because he was subjected to a substantially longer sentence solely due to the race of the person with whom he cohabitated, the Court applied equal application theory, and found the law constitutional as the law “applie the same sentence to both offenders, the white and the lack.” Similar antimiscegenation statutes were common in the United States until McLaughlin v. Florida (1964), and Loving v. Virginia (1967). In Loving, the Court struck an antimiscegenation ban that punished white and non-white participants in interracial relationships equally, finding that “the fact of equal application does not immunize the statute from the hefty burden of justification required of classifications based on race.” Yet, despite Loving, remnants of equal application theory persisted.
The late Justice William Rehnquist, who was Chief Justice when I debated my government teacher, used equal application theory in his dissent in Batson v. Kentucky (1986). While the majority held that the Equal Protection Clause proscribed prosecutors from striking potential jurors based on race, Justice Rehnquist wrote: “There is simply nothing ‘unequal’ about the State’s using peremptory challenges to strike blacks {sic} from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so on.” His argument ignored the disproportionate harm racialized peremptory challenges have on Black accused persons due to structural inequities in the criminal legal systems, and the racist history of striking Black jurors not as a means of seeking equality, but of ingraining racial subordination. Notably, as a law clerk Justice Rehnquist allegedly wrote and signed a memo to his boss, which argued for the Court to decide against the plaintiffs in Brown v. Board of Education (1954), and uphold Plessy v. Ferguson’s (1896) command of “separate but equal” facilities for Black and white Americans. “Separate but equal” policies are the doctrinal sibling of equal application theory. Both argue that facial class-based distinctions are constitutionally permissible if all groups face facially equal discrimination.
Equal application theory is not limited to race-based discrimination. In Geduldig v. Aiello (1974), the Plaintiffs argued that a California disability insurance program that excluded from coverage disabilities resulting from pregnancy violated the Equal Protection Clause because the law targeted a condition that almost exclusively applied to women. The Court upheld the law, noting that it did not discriminate against women, but that it treated people equally regardless of gender as it categorized people into the groups of pregnant people not covered, and non-pregnant people who were covered. Effectively the Court held that men and women were treated equally, while ignoring that pregnancy is a condition for which only women were claiming disability in 1974.
Equal application theory has also been used to justify discrimination against lesbian, gay, and bisexual (LGB) persons. In Lawrence v. Texas (2003), the Court invalidated a state law that criminalized same-sex sodomy, but not sodomy between opposite-sex participants. While the Court’s decision did not rely on the Equal Protection Clause, nevertheless, Justice Scalia argued in dissent that the Texas law did not discriminate based on sex because men and women were equally proscribed from same-sex sodomy. Three years later in Hernandez v. Robles (2006), New York’s highest court held the state’s law that prohibited same-sex marriage did not violate the state constitution’s equal protection clause because “regardless of sexual orientation, any person can marry a person of the opposite sex.” These uses of equal application theory attempt to hide the government’s discriminatory intent under the facade of purported formal equality.
Equal Application Theory and Transgender Rights
In Corbitt, the state prohibited transgender persons from changing the gender marker on their driver’s licenses unless they had proof of obtaining a specific type of gender-affirming surgery approved by the state. However, the surgery may not be recommended by the individual’s healthcare provider, it may be cost-prohibitive, or the individual may simply not want it. Importantly, obtaining identity documents that conform to a transgender person’s gender identity can help prevent that person’s transgender status from being “outed” to third parties. “Outing” can jeopardize the individual’s employment, and housing, and subject the person to violence from law enforcement officers and within the individual’s community. An estimated 320 transgender people were killed in 2023, with a majority of those people being transgender women and Black or brown people. As noted by the Corbitt plaintiffs, many medical and mental health professionals recommend states provide transgender people with conforming identification documents without subjecting the individual to an inquisition about their medical history.
In rejecting the Plaintiffs’ Equal Protection claim, the Corbitt Court used the same flawed logic as my government teacher. The Court held that the Alabama law was not a sex-based distinction because it did not draw distinctions between those assigned male at birth, and those assigned female at birth. By refusing to recognize the discrimination as gendered, the Eleventh Circuit did not apply intermediate scrutiny. This onerous standard requires the state to prove that distinctions between classes of people are substantially related to an important government interest. Rather, the court applied the lowest level of scrutiny, which is more deferential to the state and only requires the government to prove the distinction is rationally related to a legitimate government interest.
The historical context of the Eleventh Circuit’s decision makes it particularly worrisome, and it may be a bellwether for increasing hostility toward transgender people. Thirteen years ago, the Eleventh Circuit rejected equal application theory in Glenn v. Brumby (2011), finding that the state violated the Equal Protection Clause when it fired a transgender employee solely due to her gender identity. In Glenn, the Eleventh Circuit determined that discrimination based on transgender status was discrimination because of sex and entitled to intermediate scrutiny. However, unlike in 2011, 2024 saw a record number of anti-transgender bills introduced in statehouses throughout the country, and partisan groups spent an estimated $215 million on ads attacking transgender identities in the 2024 presidential election. As transgender people take the mantle as a favorite target of those who wish to sow division and hurt vulnerable groups, courts like the Eleventh Circuit seek ways to enable harm to this group, even if it contradicts their prior decisions. Enter equal application theory. While courts can bury their heads in the sand and refuse to call anti-transgender bias what it is, transgender people must navigate systems that punish them for merely having the audacity to exist as their authentic selves. Unfortunately, suicidality is an epidemic for transgender teens, and states that passed anti-trans laws saw suicide attempts for transgender teens increase by up to 72 percent.
Trans Folks are the Canaries in the Coalmine. The Resurgence of Equal Application Theory Should Concern Everyone
While not mentioned by name, a version of equal application theory was present during oral arguments at the Supreme Court in U.S. v. Skrmetti. Justice Kentaji Brown Jackson drew parallels between Loving v. Virginia and the Tennessee law at issue. Meanwhile, Tennessee argued that the law did not draw distinctions based on gender because it treated children the same regardless of whether they were assigned male or female at birth. Naturally, the United States and the attorneys representing the transgender children vigorously argued the opposite, asking the Court to apply intermediate scrutiny. However, it is unlikely that President Trump’s administration would take a similar position. In the first two weeks of his term he passed numerous executive orders to erode rights for transgender people, including an order that prohibits schools from using transgender children’s preferred pronouns while simultaneously requiring educators to out those students to their parents, a ban on transgender military service, and in his war against Diversity, Equity and Inclusion (“DEI”) Pres. Trump rescinded a Biden-era policy that included sexual orientation and gender identity in sex discrimination protections.
It is unclear if the Corbitt decision will be appealed to the Supreme Court. Thus, Corbitt may remain good law and directly impact the lives of people living in Alabama, Georgia, and Florida – more than eleven percent of the country’s population.
If equal application theory becomes entrenched in contemporary jurisprudence, the implications could be devastating for trans rights. The argument that laws treating people based on their sex assigned at birth apply equally—without recognizing the unique impact on transgender individuals—could be used to justify a wide array of discriminatory policies. This reasoning could extend beyond gender marker policies to healthcare, employment, and education, where transgender individuals already face significant disparities.
Moreover, transgender people are not the first group subjected to equal application theory, and there is no reason to believe that they will be last. There is no reason to think that oppressive forces will not weaponize equal application theory to chip away at rights for groups that have long felt protected by the Fourteenth Amendment’s Equal Protection Clause. It is imperative that advocates consistently reject equal application theory for all marginalized groups. Litigators and policy advocates must consistently work to ensure laws recognize disproportionate impact and equity. Formal equality is not enough. If we give equal application theory room to grow, many marginalized groups may live in a world of my government teacher’s dreams. [...]
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June 14, 2024Blog / UncategorizedWe, the 2024-2025 CUNY Law Review Editorial Board, stand in solidarity with the Editorial Board of the Columbia Law Review, in their publication of novel legal scholarship by Palestinian lawyer, Rabea Eghbariah. Eghbariah’s article, Toward Nakba as a Legal Concept, offers a legal analysis of “Nakba” and directly addresses the horrific history of the Nakba and the plight of the Palestinian people. We commend the student editors at Columbia for their editing and publication of a work that centers the Palestinian experience and the violence Palestinians have suffered under Zionist colonization.The article importantly speaks to the genocide that has been unfolding before our very eyes.
Given CUNY Law Review’s explicit social justice mission, it is our moral obligation to stand in solidarity with oppressed people and speak up when efforts to bring visibility to that oppression are met with censorship. Legal scholarship has historically silenced the most vulnerable and marginalized people. Censoring writers like Eghbariah is reflective of that system of oppression. We condemn the actions of Columbia Law Review’s Board of Directors in censoring and silencing the Editorial Board and Eghbariah.We also condemn the Board of Directors’ disclaimer statement and support the strike of their student editors. Shutting down the website in response to the publication of Eghbariah’s article was not only contrary to principles of academic freedom and free speech, but also contributes to the erasure of Palestinian voices amidst the genocide of their people and destruction of their land.
Censorship is a hallmark of oppression and cowardice, and it will not stifle the movement for Palestinian liberation. We acknowledge the courage of Columbia Law Review as we move forward and continue our mission of centering voices which propel social justice. Palestinian voices matter and have the right to be published. Please read the article here. [...]
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May 6, 2024BlogJuliet Romeo, Esq.*
Your Honor
I hate it when you ask me
whether this argument holds water
The ocean has no container
and it is the truest thing I have ever seen
Judgment
She stands over the body
drenched in blood and wine
red slipping through the cracks of
teeth and lips and floorboards
insecurely confident above her kill
looking down on love
Screaming
I was right
I was right
I was right
Roe
I laid between the sheets
naked
I had to scrub the day off of me
Defiant in my bed
Marching on against yet another
infinitesimal man’s
big opinion
*The author, a public defender and CUNY Law alumnus, is publishing under a pen name. [...]
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February 3, 2024BlogNick Leiber
John Boston is one of America’s leading prisoners’ rights litigators and co-author of the bestselling Prisoners’ Self-Help Litigation Manual, which has aided countless incarcerated individuals and attorneys navigating the U.S. civil litigation system. As the former director of the Prisoners’ Rights Project of the Legal Aid Society of New York City, Boston helped bring landmark cases against officials who violated the rights of incarcerated people in New York State’s jails and prisons. Boston’s other book, PLRA Handbook: Law and Practice Under the Prison Litigation Reform Act, helps incarcerated litigants avoid pitfalls imposed by the federal statute. He is working on a fifth edition of the Prisoners’ Self-Help Litigation Manual with co-author Dan Manville. Boston, who joined Legal Aid in 1976, retired in 2016, and continues as a volunteer, spoke with CUNY Law Review Digital Editor Nick Leiber about his life’s work, strategies for obtaining justice for incarcerated individuals, and what brings him hope. This interview has been edited and condensed for length and clarity.NL: Was there an experience before law school that made you want to get involved in this work or did that happen in law school?JB: A little of both. I went to college in the late 1960s and graduated in 1970. I worked for a couple of years and had to decide what I was going to do. I kept reading in the newspapers about promising things that were happening mostly in the federal courts—judges striking down arbitrary rules and abusive practices in prisons. Law seemed to me like the way to do something politically useful that was more congenial to my somewhat academic temperament than politics itself.NL: So you went to law school?JB: Practicing law—practicing civil rights law and poverty law—seemed to be a possibility for me. And of course one of the more abusive institutions in American life has long been the criminal justice system. I got involved in some litigation about the criminal justice system while I was in law school. And it was interesting and worthwhile, even though we lost at every stage.NL: And after law school?JB: When the opportunity to apply to the job at the Prisoners’ Rights Project came up, it was right in the center of what my interests were, although I could have gone into litigation concerning other kinds of institutions—welfare, school systems, etc. But the opportunity was inviting and when I got there, it turned out to be what I wanted to do. So I then did it for essentially the rest of my career.NL: How did you get involved with the book?JB: James Potts, a formerly incarcerated man working at the American Civil Liberties Union’s National Prison Project (NPP), and Alvin Bronstein, NPP’s director, were the authors of the first edition. It was published in 1976. Dan Manville, who himself had served time in prison and then gone to law school, got involved with trying to get out a second edition while interning at the NPP. One of the people there suggested he call me. This was exactly the kind of thing I was helpful with because I had made a compendium of organized case law.The second edition of the book, which was the first one I was involved in, came out in the mid-1980s. Dan Manville was listed as the author. I was listed as the editor. We continued. The third edition came out in 1995. We released a fourth edition in 2010. We are currently working on the fifth edition. The manual is the single most valuable thing I’ve been involved in. More so than any single piece of litigation. Although if you compare the totality of all the litigation I’ve been involved in, you might get a different answer.
NL: What is the book’s goal?JB: There are two things going on. The overt mission is to tell prisoners how to litigate for their civil rights in a way that is understandable to them; and the other was to make it complete enough that it’s useful to lawyers doing prisoners’ rights work.NL: Why did the book resonate?JB: It’s a tool for people who want to try both to make their immediate situation a little bit better and to cultivate different ways of thinking about that situation. It puts your day-to-day life in prison into the context of a legal structure that has its roots outside of the prison. It gives you a very sharp appreciation of the extent to which the legal system has institutionalized a great deal of abusive treatment simply by setting standards that don’t say it’s fine to abuse people, but do set the bar for showing unconstitutional abuse at such a high level, that even if you prove your case, you lose.NL: Can you offer a sense of who is using the book?JB: It’s widely distributed and widely known. At one point, I was having an exchange with someone at the publisher about the importance of getting moving on the fifth edition. They said, “we sell more copies of your book to prisoners than we do the Bible.” Of course, there are plenty of other places where people can get the Bible, so it’s not quite a fair comparison.I went to a conference probably in 2010 or 2011. It was at a law school, but it was open to the public. At the end of whatever presentation I was on, this guy walked up. He had a big three-ring binder. He said, “I wanted to meet you and thank you. This is my Self-Help Litigation Manual that I had with me through the years I was in prison.” It was now falling apart. The pages were all punched through for the binder and incredibly dog-eared. This was something that had seen a huge amount of use. He asked me to autograph it for him, which I did with great pleasure. I don’t get that kind of feedback very often, but I know it’s widely used, and widely appreciated among prisoners.
NL: What does it take to reform a prison or jail that regularly harms incarcerated individuals? Asked another way, what is a good example of how to put together a compelling pattern and practice case?JB: Fisher v. Koehler, which was decided in federal district court in 1988 and affirmed on appeal, illustrated better than anything else we’d done in writing, how you have to construct institutional litigation. The case concerned violence in New York City’s misdemeanor jail on Rikers Island—both violence by staff against prisoners and violence between prisoners, which was out of control for what was essentially a low-security population—I mean, these were misdemeanants and people serving very short sentences. It’s a case that went to trial and the judge wrote a very long and detailed opinion that allows you to see how it was put together. You don’t always get that, even when cases go to trial. And most of these cases don’t go to trial. Most of them are eventually settled.
NL: What are the mechanics of these kinds of institutional reform cases?JB: Most have to be built layer by layer. You read that Fisher decision and you see, first, on the bottom level, that people came into court and testified as to bad things that happened to them. Second, you see a lot of paper evidence from the prison’s own records showing that these were not isolated incidents; that there was a great deal of this kind of conduct. Many, many people were involved in violent incidents and suffered significant injuries. And many of the incidents involved the same assailants; both staff and prisoners over a period of time and nothing was being done to curb the conduct of those individuals. You can glean this by poring over the records, which I did for many, many months.Then, on top of the paper discovery, there is the testimony of experts about, first, what the evidence meant to them in terms of the gross number and severity of the incidents that were happening and, second, the reasons that it seemed to be happening based not just on reading the records that my colleagues and I had pored over but also visiting the facility, reading depositions, talking to some of the staff and the administration in the jail.
On top of all of that, the next layer is fitting all the facts into a legal framework and trying to come up with proposed remedies that were responsive, not just to the severity of what was happening, but also to the reasons that it was being allowed to happen. In other words, what are you going to do about this?The litigation process in these kinds of cases also involves educating the defendants. By that I mean educating the defendants’ lawyers, who if they’ve been listening to their clients, don’t necessarily have much of an understanding of what’s going on. And, very often, their clients don’t have an understanding of what’s going on, at least at the level that we did from making a concentrated study of the operations of the institution. The defendants’ bureaucratic institutions are not necessarily reflective. They have ways of doing things. There are interests that have to be negotiated within the institution between the people in charge and the people who do the work on a daily basis and that creates a culture that has inertia.
NL: Beyond translating the law into books that are helpful to incarcerated people, how do you see your role as an attorney?JB: I like to say I work as a “human rights mechanic” because the job is not just to expose terrible things that are happening and yell about them but to come up with ways of doing something about them—often ways that the people in charge of the institutions are reluctant to implement. Otherwise, they would have implemented them already and we wouldn’t be having this conversation in court with witnesses, experts, documents, and so forth.
NL: How did your work change after the Prison Litigation Reform Act (PLRA) was enacted in 1996? The statute has been described as “slamming the courthouse door” on incarcerated people.JB: The 2003 Second Circuit decision Benjamin v. Fraser gives an idea of what the playing field is like for prisoner litigation after the PLRA. The case was not affirmative litigation. It was the other end of the process. We were defending consent judgments that we had obtained in the 1970s and some additional later orders against efforts by New York City to terminate them on authority of the Prison Litigation Reform Act, which says if there is no continuing and ongoing violation of federal law, defendants can move to have judgments terminated.The big story here is that while we lost a lot of our ability to correct certain kinds of things and latitude in proposing remedies, we are not out of business yet. The reason for that is no matter how low the constitutional floor is set or how weakened the means of correcting violations are, prison officials still manage to go below it. It’s still a growth industry, unfortunately.NL: What’s it like to work on these prison reform cases?JB: We didn’t take cases so much as we built cases. We had good contact with the client populations. It was enhanced by the fact that we were within Legal Aid, which had a criminal defense practice, so they could tell us things that were going on or things they were hearing from the clients. We would try to come to an understanding of what the needs are and what kinds of things presented possible fuel for litigation. And then how to do it. How to frame the case. Where to file it. What its scope should be.That is what I spent almost all of my entire working life doing. I was very happy that I did. But I had a much more academic, intellectualized approach to things. I do things much less from the gut. I’m much less engaged with humanity on a moment-to-moment basis than a lot of people. The job that I had is not one that everybody would like.
NL: As part of a parole project, I’ve been speaking to an incarcerated man who has been in New York’s prison system for 25 years. He describes a flood of young people entering who lack hope and aren’t interested in participating in educational programs to get high school and college degrees. At the same time, he’s seeing many young correction officers entering who sometimes behave pretty sadistically. Does his perspective track with what you’re hearing?JB: His observations about the change in the prison population over the years are exactly congruent with my own observations from talking to prisoners over many, many years. When I first started out in the late 1970s, there were a lot more people who didn’t really feel they belonged in prison—it was an unfortunate detour in their lives but they were going to get through it. Meanwhile, they maintained their interests in things that were going on outside the walls of the prison.Over the years, the number of people who seem to think that way has diminished to old-timers. My observation about the younger prisoners is that they seemed more fixated on prison life with the sort of implicit understanding that there was a good chance that that was going to be their life.NL: A 2017 opinion piece in the Los Angeles Times suggested that to improve the criminal legal system, all of us should spend three to 90 days in a maximum-security facility every decade—what do you think of this idea?JB: If we’re building a utopia, it’s worthy of serious consideration. I think that if people actually understood the system rather than just bloviating without understanding, society would operate a lot better.Another variation on that idea that I heard long ago is that no one should become a judge who hasn’t been a criminal. It’s a slightly more radical proposition, but I think there’s some merit to its radicalness. It might be more difficult to operationalize than the one you’ve suggested.NL: In terms of how society treats incarcerated individuals today, what, if anything, gives you hope?JB: One of the things that we’ve been seeing now for a number of years is in cases of death or other serious mistreatment of prisoners—disabling brutality, lack of medical care—there have been some massive jury verdicts. I mean, seven figures, eight figures coming out of places like Oklahoma. The idea that you can’t bring these cases in really red states because they all hate prisoners is changing.A weaker version of the thought experiment you just mentioned is when you take some people out of their ordinary civilian life and you make them sit there and hear the evidence of what it’s like that led to somebody dying gasping for breath in their cell, or led somebody to go into prison on their feet and come out quadriplegic, or paraplegic, or blind, or deaf, or some other disability because of the way they were treated or neglected. If they have to approach it in that up-close-and-detailed way, and not just in the world of bloviation, you can get to a focus on human beings; you can get past the layers of prejudice.
NL: Any other thoughts for people who want to do the kind of work you do?JB: Don’t forget state courts. Don’t forget state legislatures and administrative agencies. When I started this work, in about everywhere but California, people had written off state courts as being helpful to people doing litigation on behalf of prisoners and for prison litigation generally—except for matters where there was no federal law claim.But over the years, attorneys doing this work have become more comfortable with the idea that it is possible to get state courts and administrative agencies with some sort of jurisdiction to make rules and decisions that are helpful.
I think there could potentially be a lot of niches in the system of government below the federal level. Where if you learn the territory, even if you’re not practicing law—say you are in an agency or on legislative staff—you might see an opportunity to make a difference by getting agencies and others to make decisions that are helpful with much less effort than it takes to get a statute out of Congress or a decision out of the Supreme Court.NL: What advice might you offer someone who is contemplating law school in the hopes of fixing broken legal systems (or at least helping to improve one of them)?JB: If I were giving career advice to somebody nowadays, I would probably say, think seriously about politics—at least as seriously about politics as you do about practicing law, because that’s going to be the only thing that saves us from authoritarianism. In the past, people had relative faith that the courts would do that. And who, with any sense, really believes that now? That doesn’t mean I would have necessarily made a different decision myself. I would not have been very good at, or very happy, at doing direct political work. But for those who are a little less ivory tower-ish than I am as a matter of personality, give more thought than I did to the political fray.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.
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January 12, 2024BlogLeora Johnson and Salimah Khoja* Editors-in-Chief, CUNY Law ReviewIt has been a devastating few months for all human beings invested in collective justice, liberation, and freedom–from Palestine and Israel, to our very own neighborhoods across the U.S. and the world.
These moments simultaneously prompt our sustained solidarity with Palestinian life and liberation in the face of occupation, distinct from any endorsement of Hamas’s attacks on October 7, 2023; grief and outrage over the killing of more than 1,200 people in Israel and kidnapping of 240 more in those attacks; further grief and outrage over Israel’s military assault in Gaza and recently in the West Bank, killing more than 23,000 Palestinian people, with many more presumed dead, injuring over 59,000 more, and displacing over 90% of Gaza’s population of 2.3 million at grave risk of genocide; grief and outrage at the upsurge of antisemitic and Islamophobic violence and rhetoric across the world; and grief through a continued reckoning with more than 75 years of historical and political context.
We believe in the possibility of holding these multiple and intertwined griefs at once. The totals of those killed are not separate tallies; they are not numbers. They are full human beings lost to a draconian militarization that will not yield Palestinian and Jewish safety and thriving life. It is this very connectedness that grounds the CUNY Law Review’s past and present solidarity with Palestinian liberation. It is a solidarity that mandates Palestinian freedom and self-determination, and the protection and thriving of all our communities–Jewish, Muslim, and beyond. And it is one rooted in the journal’s mission to produce public interest-oriented legal scholarship that works towards the exposure and dismantling of oppressive systems.
Nevertheless, members of the CUNY Law Review, like many progressive communities and even other organizations on our campus, struggled immensely with one another over when and how to demonstrate this solidarity as we disagreed over a call to cosign the particular content of another campus group’s statement issued just after October 7. These tense disagreements generated discussion and writing to each other internally, as well as exploring how human rights lawyers and experts are navigating the ongoing crisis in Gaza. Even so, the seeming impasse and interpersonal toll inspired many of us to seek space for solidarity and grief elsewhere. Accordingly, it was challenging for the CUNY Law Review to find additional ways to speak externally in that moment on the points that do hold us together. Still, the moments to speak up continue.
These differences do not change the underlying and sustaining mission that guides our work. It is our quest to hold steadfast to this very mission that sustains our continued solidarity with Palestinian people; a call and hope to end the U.S.-backed Israeli military assault and staggering devastation in Gaza; and for sustainable, human- and liberation-centered political solutions and dialogue that can eclipse the layers of violence we have witnessed before, on, and after October 7. Of course, there is little consensus about what that solution actually looks like. But no path to liberation, justice, and peace exists without a reckoning of the structures and systems that have made such liberation unrealized up to now.
In this spirit, we revisit CUNY Law Review’s November 22, 2023 blog post exploring the perspectives of human rights attorneys and scholars on “the promises and failures of domestic and international law in addressing the atrocities and their aftermath” in Gaza. As law students, we also grapple with the questions of war crimes and violations of international humanitarian law, and the stymieing of voices that are speaking up for Palestinian human rights.
The CUNY Law Review–with its place in legal scholarship–is one tool in an ecosystem of work towards collective freedom, equality, and dignity. We believe it is a useful one, as this journal maintains a tradition of publishing scholarship that addresses and incorporates legal issues in Palestine and Israel, and within Palestinian organizing. These are necessary perspectives, and the Law Review is committed to their free expression.
We speak up here to not only mourn the dead, but to sustain life and collective humanity in the first place.
*Leora Johnson and Salimah Khoja, CUNY Law Class of 2024, are co-editors-in-chief of the CUNY Law Review. They offer this statement in their individual capacities. [...]
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December 6, 2023BlogThe editors of this journal have come together with the editors of journals across the country to demand compensation for the work we do to publish legal scholarship. Our demand rests on one fundamental principle: Uncompensated labor is wrong. In the below, Journal Work Essay, we expand on this argument and present other important supporting principles.
We are all students at institutions that purport to educate in the furtherance of justice. Our journals believe compensated labor is a core tenet of justice, and we hope our schools share this belief. Despite the American Bar Association’s urging for journal members to receive credit or compensation, and despite a growing list of schools who have done so in recent years, many of our institutions remain woefully behind.
We publish this editorial to shed light on how uncompensated labor affects students, journals, the legal industry, and academia. We want to highlight the profound contradictions between the beliefs law schools espouse with respect to justice and diversity and the academic world they have created. At its core, this statement is a call for solidarity and action—from universities, journals, and others.
Our demand is simple: each and every journal worker should receive credit, compensation, or both. Each school could, for example, pledge to do this for the 2024-2025 academic year and retroactively compensate current students for their work.
We call on journal boards to join our coalition across journals and across institutions. This coalition will work in solidarity towards compensation. To that end, we join with the signatory journals to publish this statement, and pledge that:
We will publish the journal compensation practices of each of our universities on a continuing basis.
We hope this serves as a guide for prospective students and provides transparency for journals organizing in solidarity towards compensation.
We call on other journals to submit the compensation practices of their schools even if they cannot commit to joining our coalition.
We will recruit other journals and students at our institution and beyond to join this coalition.
We call on anyone and everyone to:
Follow this link and sign on to this editorial in support.
Journal Work Essay
The coordinating, editing, curating, writing, and publishing we do as editors is labor, and much of it goes uncompensated. Even the American Bar Association has recently recognized the injustice of this uncompensated labor, by adopting a resolution at the 2023 Annual Meeting that “urges all law schools to adopt policies . . . to permit students to obtain either academic credit or monetary compensation for their participation as editors of law reviews and other academic law journals.” In other fields, workers or professors do this work for pay. Within legal academia, students who do similar work, for example as research assistants, often receive credit or compensation. Courts across the country cite the product of our labor in their administration of justice. Research services rely on our labor to provide a steady stream of publishable scholarship. Without our labor, legal academia would cease to function, and professors would be unable to publish their articles and meet their tenure requirements. Yet, the legal industry and legal academia fail to recognize much of this essential labor. At almost every school, students are not compensated in any form for the work they do in their first year as journal editors. At many schools, editors never receive any compensation. These law students work for free in exchange for the supposed personal prestige that journals add to resumes, but law schools and professors reap the reputational, professional, and financial advantages generated by our labor.
In addition to our principled commitment to compensated labor, we hold these convictions because uncompensated labor hurts journal workers, students, and the journals themselves. Law students face intense demands on their time and capacity. As journal editors, we either forgo or juggle other academic, professional, and personal opportunities and responsibilities. Journal editors work long hours, often sacrificing time dearly needed for their other responsibilities to meet the needs of their journals. We are expected to balance that workload with clinics, classes, externships, jobs, caretaking responsibilities, personal relationships, and more. We should be compensated for these efforts.
Working as a journal editor prevents students from working to support themselves while in school, and this in turn serves a powerful gatekeeping function in legal academia. Students face a debt crisis, and, in a country that has built its educational system on the profit interests of corporate loan providers and servicers, this reality pushes financially precarious students away from journal work. This leads to less diverse journals turning out blinkered legal scholarship. For students, this means only those who can afford to work on journals are granted the reputational prestige it confers for clerkships, firm associateships, and other competitive legal positions. The students who do join journals face greater financial burdens, which disincentivizes them from future public interest work. The commitments our universities have made to diversity and inclusion and the public interest are simply irreconcilable with uncompensated labor.
CUNY Law Review
Georgetown Environmental Law Review
Georgetown Immigration Law Journal
Georgetown Journal of Gender and the Law
Georgetown Journal of Law & Modern Critical Race Perspectives
Georgetown Journal on Poverty Law & Policy
Georgetown Law Technology Review
Journal of National Security Law & Policy
NYU Environmental Law Journal
NYU Review of Law and Social Change
Stanford Environmental Law Journal
Stanford Law & Policy Review
Stanford Law Review
UCLA Law Chicanx-Latinx Law Review
UCLA Law Disability Law Journal
UCLA Law Review
Yale Law & Policy Review [...]
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November 22, 2023BlogNick LeiberThe current situation in Gaza is horrifying and dire, even more so than it has been over the last several decades. Following Hamas militants killing over 1,200 people in Israel and taking roughly 240 people hostage on Oct. 7, Israel’s military has killed more than 12,000 Palestinians, NPR reported. United Nations experts are warning of “a genocide in the making.” The history of Israel’s occupation of Gaza and the West Bank adds crucial context.CUNY Law Review’s central mission is to publish legal scholarship to “address the consequences of structural oppression, and to challenge these structures.” As a CUNY Law Review editor helping to realize this mission, I see it as aligning with Palestinian self-determination and opposition to the occupation and Israel’s warfare. With this in mind, and to help me understand the promises and the failures of domestic and international law in addressing the atrocities and their aftermath, the work of legal scholars and practitioners has been helpful.
While legal advocacy is just one of many tools to effect change, exploring experts’ views of the legal context may be useful to other students at a time when law professors across the U.S. are warning about damaging efforts to chill student speech about the crisis. What follows is a non-comprehensive list of analyses, lawsuits, and other work from human rights attorneys and legal scholars addressing the ongoing reality in Palestine. This is not a definitive list–it is a starting point I offer in an attempt to inform conversations about available legal tools. The law review’s future work will attempt to add related scholarship, and it encourages submissions. Item 1: “Gaza in Context”“Israel pursues a settler-colonial project. It removes Palestinians and replaces them with Jewish Israelis. And it does so through dispossession, displacement, and concentration towards all Palestinians regardless of where they live or what legal jurisdiction governs their lives. Israel achieves its goals using civil law in Israel, martial law in the West Bank, a mix of martial and administrative law in East Jerusalem, and all-out warfare in the Gaza Strip.”This 20-minute 2016 documentary, co-directed and co-written by human rights lawyer, associate professor at Rutgers University, and author Noura Erakat, offers historical and legal context to today’s crisis. It is available to stream for free on YouTube; its footnoted script is available here. Erakat emphasizes the need for a political solution to the crisis in her Oct. 13 interview with Boston Review.Item 2: “The Harvard Law Review Refused to Run This Piece About Genocide in Gaza”
“Some may claim that the invocation of genocide, especially in Gaza, is fraught. But does one have to wait for a genocide to be successfully completed to name it? This logic contributes to the politics of denial. When it comes to Gaza, there is a sense of moral hypocrisy that undergirds Western epistemological approaches, one which mutes the ability to name the violence inflicted upon Palestinians. But naming injustice is crucial to claiming justice. If the international community takes its crimes seriously, then the discussion about the unfolding genocide in Gaza is not a matter of mere semantics.”
“The UN Genocide Convention defines the crime of genocide as certain acts ‘committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ These acts include ‘killing members of a protected group’ or ‘causing serious bodily or mental harm’ or ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.’”This Nov. 21 article in The Nation offers analysis from Rabea Eghbariah, a human rights attorney completing his doctoral studies at Harvard Law School.Item 3: “More Than Genocide”“Regardless of any legal question of genocide, Israel’s supporters find themselves tacitly condoning the ongoing slaughter of thousands of Palestinian civilians. A considerable portion of their publics understandably reject this outrageous state of affairs. They are unimpressed by legal hairsplitting about the UNGC requirement that people are killed ‘as such,’ meaning solely on the grounds of their identity—the genocidal intent of destroying the enemy—rather than by the military logic of defeating them. For the fact is that whether Israel is committing genocide or erecting a new ‘iron wall’ of defense, masses of Palestinians are being killed and possibly expelled. It is a distinction without a difference for the victims.”“Seen in this light, the protest movement’s allegation of genocide can be understood as a symptom of the ‘utter failure of international law in responding to war crimes and crimes against humanity (including apartheid),’ as legal scholar Itamar Mann has observed. The claim also reflects the ‘truth’ of the victim’s perspective. Since genocide is a synonym for the destruction of peoples, whether the killing and suppression of their culture is motivated by destruction ‘as such’ or by deterrence, the experience is the same: a destructive attack on a people, and not just random civilians. But the UNGC does not reflect the victim’s perspective. It protects the perpetrators: states that seek permanent security.”
This Nov. 14 Boston Review article by A. Dirk Moses, international relations professor at the City College of New York, editor of the Journal of Genocide Research, and author of the 2021 book The Problems of Genocide: Permanent Security and the Language of Transgression, digs into the contested term. Item 4: “Palestine and the Limits of the Law”“The problem here is that for those of us like myself, who would like to use the law as a way of bringing about change–and I had dreams when I went to law school of, you know, working in the human rights field and making the world a better place–you slam kind of hard into the realities of power, and the fact that sometimes power doesn’t listen even if you try to make a principled argument.”
“So, for example, there is a law in the United States named after the senator who spearheaded it: The Leahy Law, which says that weapons sent abroad by the U.S. military to other countries’ militaries should not be used in the violations of human rights. That’s never been applied against the Israelis. Ever.”In this public lecture on Nov. 7, Wadie Said, a professor at the University of Colorado School of Law, describes Palestine’s legal battles across decades of conflict. (Wadie Said is the son of the literary critic Edward Said, whom he references during the lecture.)
Item 5: “Palestinian Groups Ask ICC to Arrest Israeli PM Benjamin Netanyahu for War Crimes & Genocide in Gaza”“And so, here we are pushing the to either hold Israel to account in what is an ongoing genocide, where the leaders of it have told us very much that they have the specific intent to destroy a Palestinian people, in whole or in part, and demonstrated the specific underlying acts in order to effectuate it, or demonstrate for us that this is actually a moment where the ICC demonstrates . . . that it’s not effective, that it is actually part of punishing a Global South and letting Western countries move forward with impunity.”
On Nov. 10, Democracy Now interviewed Erakat about a lawsuit filed with the International Criminal Court on Nov. 7 that seeks to hold Israel accountable over the war in Gaza.On her website, Erakat describes her 2019 book, Justice for Some: Law and the Question of Palestine, as narrating “the Palestinian struggle for freedom as told through the relationship between international law and politics during five critical junctures between 1917-2017 to better understand the emancipatory potential of law and to consider possible horizons for the future.”Item 6: “Israel’s War in Gaza Is Not a Valid Act of Self-Defence in International Law”
“pproaching Israel’s current military action in Gaza as if it is an isolated incident of the use of force, and asking whether Israel has a right to self-defence in international law justifying this action, is to fundamentally mischaracterize the situation. Israel’s current action is actually a re-configuration of the existing use of force it has exercised, in the form of the blockade (with episodic bombing and land incursions) and before that in its original boots-on-the-ground, and settlements, manifestation, adding new means and methods. To say that Israel has somehow a right to do this new, amplified form of an existing use of force in self-defence because of violent acts of resistance to the earlier form of the same use of force, even when such acts are illegal because they target civilians, and/or are indiscriminate attacks that risk harming civilians, and/or involve the kidnapping of civilians, is circular logic.”***“None of this means that the deliberate targeting of civilians, or indiscriminate attacks that risk harming civilians, or the taking of civilian hostages, are legally justified; as indicated, these are illegal. But such illegal actions do not justify, legally, the continuation and, within this, the ratcheting up, of Israel’s use of force in the Gaza Strip and the West Bank, given that this use of force is illegal.”In this Nov. 9 analysis, Ralph Wilde, a member of the Faculty of Laws, University College London, University of London, shares his perspective on various self-defense arguments.Item 7: “What is the rule of proportionality, and is it being observed in the Israeli siege of Gaza?”“Under , civilian objects – such as homes, apartment blocks, hospitals and schools – cannot be directly attacked. This is because they, unlike munitions factories and command and control centers, do not effectively contribute to military action.” “There is a caveat, however. If enemy forces take up positions in these civilian structures, then they become military objectives and can be lawfully bombed if the raid would yield the attacking party a definite military advantage.” “That said, the stipulation does not allow unlimited license to attack such structures. The civilians located in those buildings are not lawful targets. As such, they retain the benefits of what is known as “the rule of proportionality” as it relates to collateral civilian casualties – that is, deaths that are not intended by the attacking party but nonetheless result from their actions.”
In this Nov. 9 explainer, Robert Goldman, an expert on international humanitarian law at American University Washington College of Law, shares his insights on the “rule of proportionality” and the “laws of war.”Item 8: “Palestinians Sue Biden for Failure to Prevent Genocide, Seek Emergency Order to Stop Military and Diplomatic Support for Israeli Government’s Assault on Gaza”“The United States has been obligated, from the time it learned of the specter of genocide of the Palestinian people, to exercise its clear and considerable influence on Israel to prevent this grave crime from unfolding. The President and the Secretaries of State and Defense have not only been failing to uphold the country’s obligation to prevent a genocide, but have enabled the conditions for its development by providing unconditional military and diplomatic support – disavowing any constraint or “red lines” on Israel’s military campaign even in the face of numerous Israeli governmental statements reflecting a genocidal intent. Defendants have refused to even initiate internal processes to assess whether there is a genocide unfolding in Gaza, or to monitor how U.S. weapons are used there.”In this lawsuit filed filed by the Center for Constitutional Rights in Northern California federal district court on Nov. 13, the organization alleges the U.S. is complicit in genocide, among other allegations. In a press release the same day, the CCR noted that courts have identified “the providing of weapons and other materials to the perpetrators of genocide as a form of complicity. To be culpable, the provider need not share the recipients’ genocidal intent.” CCR senior attorney Katherine Gallagher, CUNY Law Class of 2000, spoke to Democracy Now on Nov. 16 about the lawsuit’s demands and reasoning.Item 9: “The UN Human Rights Council Tried to Silence Craig Mokhiber, He Resigned”“As a human rights lawyer with more than three decades of experience in the field, I know well that the concept of genocide has often been subject to political abuse. But the current wholesale slaughter of the Palestinian people, rooted in an ethno-nationalist settler colonial ideology, in continuation of decades of their systematic persecution and purging, based entirely upon their status as Arabs, and coupled with explicit statements of intent by leaders in the Israeli government and military, leaves no room for doubt or debate. In Gaza, civilian homes, schools, churches, mosques, and medical institutions are wantonly attacked as thousands of civilians are massacred. In the West Bank, including occupied Jerusalem, homes are seized and reassigned based entirely on race, and violent settler pogroms are accompanied by Israeli military units. Across the land, Apartheid rules.”***“Decades of distraction by the illusory and largely disingenuous promises of Oslo have diverted the Organization from its core duty to defend international law, international human rights, and the Charter itself. The mantra of the “two-state solution” has become an open joke in the corridors of the UN, both for its utter impossibility in fact, and for its total failure to account for the inalienable human rights of the Palestinian people. The so-called “Quartet” has become nothing more than a fig leaf for inaction and for subservience to a brutal status quo. The (US-scripted) deference to “agreements between the parties themselves” (in place of international law) was always a transparent slight-of-hand, designed to reinforce the power of Israel over the rights of the occupied and dispossessed Palestinians.”
In his Oct. 28 resignation letter to the New York Office of the High Commissioner for Human Rights at the United Nations, human rights attorney Craig Mokhiber (the Office’s former director) detailed criticisms and offered 10 “essential points” for the United Nations to regain its ability to meaningfully protect human rights and international law. Mokhiber’s Nov. 10 interview with the Foundation for Middle East Peace expands on some of his ideas.
Again, this is not a definitive list–it is a starting point I offer in an attempt to share perspectives from human rights attorneys and scholars to inform our ongoing conversations. I hope to encourage related work that expands on this list as time goes on.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.
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October 23, 2023BlogNick LeiberHow can attorneys, activists, and others work together to fight more effectively for social justice? An upcoming panel discussion at CUNY Law School seeks to answer this question as the realities of potential genocide in Gaza, climate crisis disasters around the world, and the gun violence epidemic in the U.S. spark despair, anger, and action. Panelists will share examples of collaboration that made a difference against seemingly intractable problems.
As a law student, I am excited about this conversation because I will be able to hear directly from movement lawyers who have fought the good fight around the globe and can share the good, the bad, and the ugly about what collaboration means in practice. I hope to ask questions about what has and hasn’t worked well for them.
The panel will feature contributors to The Revolution Will Not Be Litigated: People Power and Legal Power in the 21st Century. This collection of 25 essays offers reflections from lawyers and activists on “the complex, and often-awkward dance between legal reform and social change,” the book’s website explains. Its thesis seems to be that the relationship between movement-building and legal strategy is interdependent, and legal advocacy is just one of many tools to effect change. Harold Hongju Koh, an international law professor at Yale, describes the tension this way: “If you say you want a revolution, this stirring volume teaches what every human rights lawyer learns the hard way: lasting victories are only won through an ‘inside-outside’ game, where lawyers fight in court for what activists fight in the streets.”
The scheduled panelists include Alejandra Ancheita, founder and executive director of the Mexico City-based NGO ProDESC (The Economic, Social and Cultural Rights Project); Baher Azmy, legal director of the Center for Constitutional Rights; Justin Hansford, professor of law and executive director of the Thurgood Marshall Civil Rights Center at Howard University School of Law; and Katie Redford, executive director of Equation Campaign and the book’s co-editor. Vince Warren, executive director of the Center for Constitutional Rights and CUNY Law’s 2023-24 W. Haywood Burns Chair in Human and Civil Rights, will lead the discussion.
You can register for the panel discussion on CUNY Law’s website. It’s free! It takes place at CUNY Law in Long Island City on Thursday, Oct. 26, from 6 pm to 8 pm. Registered attendees will receive complimentary copies of the book, while supplies last. (Summaries of all 25 essays are also available here on the book’s website.)
For those who can’t make it to campus on Thursday, we plan to add a link to the video recording of the discussion to this blog post once it’s available. For those who couldn’t make it to the discussion and want to watch it, this is the recording.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.
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October 12, 2023BlogPhoto credit: Adam Schultz Creative Commons/FlickrNick Leiber
As we are reminded by headlines such as “A School Bus Crosses U.S., Linking Families of Mass Shooting Victims” and “Teens buying ‘ghost guns’ online, with deadly consequences,” our gun violence nightmare doesn’t seem to be ending. More Americans died of gun-related injuries in 2021 than in any other year on record, according to the Centers for Disease Control and Prevention. Perhaps most disturbingly, firearms are now the number one cause of death for children in the U.S., surpassing motor vehicle deaths and those caused by any type of injuries or illness.
Before I started law school, I worked as a journalist. While I did not cover guns regularly, the few times I did stayed with me. I wrote about online firearms marketplaces that enabled private sellers to skip background checks. I interviewed a father working to prevent gun violence after his son was murdered at Parkland, as well as a university administrator who told me parents’ safety concerns were affecting enrollment. (While we were speaking, she was dealing with her own campus being threatened with mass shootings.) I tried to wrap my brain around the statistic that there are more privately-owned firearms than people in the U.S. The number has been increasing, spurred by the COVID-19 pandemic, the 2020 protests, and mass shootings, which drive sales because of fears about legislators enacting new regulations. Ghost guns are the latest gun violence phenomenon that concerns me. I started to research them in the summer of 2022, when I assisted on a lawsuit and an injunction aimed at preventing businesses from selling them in New York. In a major report released earlier this year (the first of its kind in 20 years), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) identified a “dramatic rise” in ghost guns recovered by law enforcement. Not only have sellers exploited gaps in existing regulations, the new standard imposed by last year’s Supreme Court decision in New York State Rifle & Pistol Association Inc v. Bruen requiring that gun safety laws be consistent with the country’s “historical tradition of firearm regulation” might add another hurdle to controlling their proliferation.
The Emerging Threat of Ghost Guns
Ghost guns derive their name from their lack of serial numbers and background check requirements, making them virtually untraceable. In other words, they generally cannot be traced back to their original owner if they are recovered after a killing or another violent incident. They can be bought without background checks, enticing those who are barred from buying guns or want to do so anonymously.
Ghost guns are sold online and can be assembled at home in under an hour. They come in a variety of forms, from pistols to AR-15-style semiautomatic rifles, and can also be made with 3D printers. Everytown for Gun Safety calls ghost guns “the fastest-growing gun safety problem facing our country,” noting that they “are also the thread connecting a recent increase in gunfire on school grounds.” The group maintains a sobering database of ghost gun shootings and recoveries from across the country.The Giffords Law Center explains that ghost gun manufacturers have generally “left the parts just unfinished enough to escape the definition of ‘firearm’ under state or federal gun safety laws.” In 2020, four cities and Everytown, in the first lawsuit over the regulatory failure on ghost guns, sued the ATF to try to close that loophole. Then, last year, the Biden administration took action by modernizing the legal definition of a firearm to stop them from being sold without serial numbers or background checks. The ATF issued a rule in April 2022 preventing gun sellers from selling kits of parts lacking serial numbers and requiring background checks on buyers.
But even after the rule went into effect in August 2022, businesses figured out a way to circumvent it by selling gun parts separately, as opposed to in kits. In an amended complaint filed in October 2022 in federal district court in California, Giffords, two individuals whose children were murdered by a school shooter with a ghost gun, and the State of California sued the ATF to close the new loophole to ensure gun parts are sold with serial numbers and buyers undergo background checks. “The ghost gun industry now recognizes the obvious: the Final Rule contains a massive loophole,” the lawsuit pointed out.
Just after Christmas 2022, the ATF issued new guidance through an open letter to the firearms industry and the public. It explained that ghost gun sellers must treat pistol frames—the lower part of the pistol that a shooter grips—the same as finished pistols, meaning sellers must include serial numbers on them and buyers must undergo background checks. The New York Times reported that administration officials anticipated the guidance would be challenged in federal court on the grounds that it violates the Gun Control Act of 1968 (GCA).The GCA requires gun makers to inscribe serial numbers on every firearm they make. The law also requires buyers to undergo a background check before gun dealers sell them a firearm. The trouble with GCA’s language was that many businesses operated as if ghost gun parts–frames and receivers–were not considered firearms. (The GCA lacks statutory definitions for frame and receiver.) The ATF’s new rule and recent guidance was supposed to end the ambiguity.That didn’t quite happen. As predicted, ghost gun sellers and others filed multiple lawsuits challenging the rule. In early July, U.S. District Judge Reed O’Connor of Texas blocked the rule nationwide in his VanDerStok v. Garland order, reasoning that the ATF had exceeded its authority in adopting it. The Justice Department asked the Fifth Circuit to freeze O’Connor’s order as it appealed his decision but the appeals court refused. Then, in late July, the Supreme Court temporarily froze O’Connor’s order after the U.S. Solicitor General filed an emergency application to stay it while the federal government appeals. The Court temporarily stayed a similar O’Connor order earlier this month.
Using Bruen’s New “Historical Tradition” Standard to Undermine Public Safety
Future lawsuits against the ATF’s clearer definitions may try to apply the “historical tradition of firearm regulation” standard created by the Supreme Court in Bruen. The Court changed the previous test for evaluating gun safety laws, holding that if the plain text of the Second Amendment protects the activities the laws are regulating, “the government must affirmatively prove that its firearms regulation is part of the historical tradition” to set boundaries on gun use. Justice Breyer’s dissent in Bruen took issue with the problematic nature of the test: “he Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and neither do our precedents.”Many others identified shortcomings of the new test, too. “This Court is not a trained historian,” U.S. District Judge Carlton Reeves of Mississippi wrote in an order last October. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.” One legal commentator derided Bruen, saying it “invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy.”Bruen may make it difficult for state laws meant to stop ghost guns to survive constitutional challenges. A federal district judge in Delaware used Bruen’s historical tradition standard to temporarily enjoin parts of the state’s ghost guns law in September 2022 because the defendant did not demonstrate they were “consistent with the Nation’s historical tradition of firearm regulation.” The following month, another district judge in West Virginia used Bruen to overturn a federal law barring the removal of serial numbers from guns, reasoning that serial numbers were not required when the Second Amendment was ratified in 1791 and were not widely used until the GCA in 1968.Bruen also surfaced in February, when the Fifth Circuit overturned a federal ban on gun possession by individuals under domestic violence restraining orders. The case, U.S. v. Rahimi, involved a man subject to an order that prohibited him from possessing a firearm after his alleged assault of his ex-girlfriend. The court found that “the lack of a distinctly similar historical regulation addressing is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. The Supreme Court plans to hear the Justice Department’s appeal of the Fifth Circuit’s ruling in November. The outcome could help to address the chaos resulting from Bruen by clarifying how lower courts are supposed to evaluate the constitutionality of gun regulations.
The Good NewsHowever, the good news regarding ghost guns is there are many post-Bruen cases indicating that serialization and self-manufacture laws easily pass Bruen. For example, in Morehouse Enterprises, LLC v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the district court found the ATF’s final rule on frames and receivers to be consistent with the Second Amendment, reasoning the rule “does not infringe on any individuals’ or business’ ability to completely manufacturer a firearm for personal use, nor does it restrict the ability to obtain the weapon kits at issue . . . simply requires serialization of a firearm, when in the stream of commerce, so that it may be tracked in the event a crime is committed with the firearm.” The court noted the “longstanding distinction between the right to keep and bears arms and commercial regulation of firearm sales.”
Similarly, the district court in United States v. Holton, in upholding a ban on defaced gun possession, explained that it “does not believe that a law requiring serial numbers on firearms infringes on the right to keep and bear arms.” District courts in United States v. Reyna and United States v. Tita reached similar conclusions, both noting that a serial number is a “nonfunctional characteristic” of a gun.And Justice Kavanaugh’s concurrence in Bruen indicates that commercial regulations will generally remain in effect. He noted that “roperly interpreted, the Second Amendment allows a ‘variety’ of gun regulations” and quoted District of Columbia v. Heller for the point that nothing in its holding “should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.”As ghost guns have entered the public consciousness, pushes for gun violence prevention have included a call by the American Medical Association for state legislatures and Congress to subject ghost guns “to the same regulations and licensing requirements as traditional firearms.” On a practical level, one question for our society, if not the conservative supermajority at the Supreme Court, is simple: Should Bruen make it possible for anyone with a credit card and internet to assemble their own AR-15 by buying untraceable components without a background check?As a parent with kids in school, gun violence both scares and angers me. It scares me for obvious reasons: I don’t want my kids or their peers to be killed, maimed, or traumatized in a school shooting. I don’t want teenagers to be able to buy ghost guns when they are upset. I don’t like how we’ve normalized lockdown drills—there is nothing normal about gun violence being so out of control that we need kids to practice for someone walking through their classrooms trying to shoot them. I’m angry that we treat school shootings as unpreventable tragedies when we should be treating them as preventable atrocities. We should be holding the gun industry more accountable for its deadly products and its efforts to gaslight us into thinking that buying more guns will make us safer.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.
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October 6, 2023BlogHirsha Venkataraman
It’s 2023, and here in the United States, we–or at least some of us–still can’t decide whether or not we want to be on the right side of history. The Supreme Court has gutted abortion rights that existed for decades and allowed a business owner to discriminate against a homosexual couple due to “free exercise of religion.” Will the Court soon be allowing far-right religious zealots to dictate how we treat some of our most vulnerable and marginalized? I am talking about the proliferation of anti-trans legislation sweeping our nation, particularly against transgender athletes and, even more specifically, youth transgender female athletes.
After Republicans put on a disastrous showing in the 2022 midterm elections, they have turned to desperation. What do cynical politicians do when they fail on policy and desperately need to rile up their base? They create a scapegoat, and transgender athletes, predominantly transgender female athletes, are now the target of choice. Undoubtedly, GOP candidates will employ this strategy inside and outside of the 2024 GOP presidential debates, with one candidate already having referenced it as “the women’s issue of our time” and going as far as falsely attributing suicide among cisgender girls to the mere presence of transgender girls in locker rooms. Other GOP candidates have adopted similarly hateful rhetoric, railing against gender-affirming care and floating federal bans against such care. Transgender youth are now faced with a matter of life and death as a result, with the risk of suicide looming over those who are unable to receive the care they need. Our country must defend what is right. We must start by allowing transgender athletes to play on teams in accordance with their gender identity.
It speaks volumes about the current state of the U.S. when the population targeted for the sake of cheap political points happens to be already marginalized and historically discriminated against. However, that has not stopped legislators of over 20 states from banning transgender athletes from participating in accordance with their gender identity. What makes this situation a travesty and exposes the true motivation behind this wave of legislation is that, in almost every instance, bill sponsors cannot cite a single instance of transgender female athlete participation causing a problem. This means only one thing: the bans were introduced or enacted not for the purpose of saving women’s sports, as Tennessee Governor Bill Lee disparagingly claimed back in February 2021, but solely to demonize transgender female athletes for existing, all for a few more votes under the guise of “fairness.” It is worth noting that presidential hopeful and longtime opponent of LGBTQ+ rights, Ron DeSantis, signed into law a bill barring transgender females from playing on public school teams that he claims are solely intended for student athletes biologically born as female on the first day of Pride Month in 2021. He was quoted as saying, “In Florida, girls are going to play girls sports and boys are going to play boys sports.” (I accept, Ron, but maybe not in the way you’re thinking).
The fervor came to a boiling point after the cases of Soule v. Connecticut Association of Schools and Hecox v. Little, each concerning transgender girls looking to compete as the gender with which they identify, came into the national spotlight. The efforts led against the respective trans-inclusionary policy in Connecticut and in support of the transgender athlete ban in Idaho were spearheaded by none other than Alliance Defending Freedom (ADF), the far-right Christian fundamentalist legal advocacy organization that has long been fighting against the LGBTQ+ community. Categorized as a hate group by the Southern Poverty Law Center, ADF has contended that LGBTQ people are more likely to engage in pedophilia, continues to constantly misgender transgender people, and has been the architect of legislation upon which anti-trans bans across the nation have been modeled. ADF is using these cases, along with many others, to scare the public into thinking that transgender female athletes do not belong on teams or are in competition with cisgender female athletes–and that ADF’s efforts are in place for the purpose of protection and fairness. However, given the complete lack of evidence of any negative impacts on girls’ sports (with existing evidence proving the contrary) and the rarity of transgender participation in sports generally (with only roughly 50 transgender athletes out of the total 200,000 competing in NCAA women’s sports), ADF’s efforts are clearly nothing more than fearmongering propaganda and should be ignored by legislators, leaders, and citizens.
The plaintiffs in Soule, four cisgender female athletes, alleged that the Connecticut Interscholastic Athletic Conference (“CIAC”) policy permitting high school students to compete on gender-specific athletic teams consistent with their gender identity was in violation of Title IX of the Education Amendments of 1972 as well as a failure to provide equal competitive opportunities for girls. The District Court of Connecticut dismissed both claims. The Second Circuit Court of Appeals affirmed the lower court’s holding while additionally citing the Supreme Court’s decision in Bostock v. Clayton County to conclude that, based on the Court’s interpretation of Title VII, the CIAC policy that prohibits discrimination based on a student’s transgender status does not fall “within the scope of Title IX’s proscriptions.”
Conversely, Hecox concerned a challenge to Idaho law H.B. (“House Bill”) 500, otherwise known as the “Fairness in Women’s Sports Act,” which banned transgender female athletes (and many intersex athletes) from competing in accordance with their gender identity. Specifically, the plaintiff, Lindsay Hecox, alleged violations under the Equal Protection Clause, Due Process Clause, and Title IX and requested a preliminary injunction of the bill. The District Court of Idaho granted the preliminary injunction, and the Ninth Circuit Court of Appeals affirmed, holding that Hecox “was likely to succeed on the merits of her Equal Protection Claim.”
These cases are only two of the many challenges set in motion as a result of transgender athlete bans, and litigation is in progress to fight many of them. Perhaps one sign of hope came (somewhat unexpectedly) from the Supreme Court, which on April 6, 2023, rejected an effort (temporarily, for now) by the West Virginia legislature to ban transgender girls from playing on girls’ sports teams. The plaintiff contended, similar to Hecox, that the West Virginia law, H.B. 3293, violated her constitutional right to equal protection under the law. This holding may represent a light at the end of a very long, dark tunnel, but only if a permanent solution can be litigated by way of the Fourteenth Amendment or Title IX. Until then, there will likely continue to be efforts by both individual state legislatures and the currently Republican-led House of Representatives to push harmful, discriminatory legislation at the state and federal levels.
The reality is that we must not only embrace inclusion of transgender athletes in youth sports but also fight aggressively against anti-trans legislation so that transgender youth can avoid the trauma of being needlessly ostracized from an early age. Time and time again, including but not limited to the periods of slavery, racial segregation, absence of women’s suffrage, and the current barriers to the well-being of the LGBTQ+ community, the United States has been faced with civil rights issues, and discrimination has run rampant based on falsehoods and stereotypes. If we allow ourselves to succumb to baseless claims about the transgender population, we will be doomed to repeat our mistakes unnecessarily. It is a matter of life and death. Exclusionary measures only further the existing harms suffered by transgender children, such as increased suicidality, lower self-esteem, and decreased well-being, according to the Center for American Progress. By allowing transgender female athletes to compete and by fostering welcoming and inclusive environments, we not only benefit trans female athletes but girls’ sports in general. Where inclusive policies exist, participation increases in girls’ sports, and trans athletes experience lower rates of depressive symptoms, higher levels of psychological well-being, and are less likely to have suicidal thoughts.
The conclusion is simple: by discriminating against transgender youth athletes, we are still discriminating against youth. Can we live with that? Have we come to a point where we do not consider transgender youth as part of American society? Are they not owed the same rights as everyone else? Are we so afraid of even trying to understand their plight that we would rather ignore it and put these kids in a corner? I hope not. Transgender children, especially girls in sports, have suffered the most from these bans–and, given the evidence illustrating the struggles they already experience, we do not need to make things worse.
Now is the time to make things right, and there are many ways we can join the fight. These include contacting our legislators directly and voicing our concerns, organizing our communities, showing up to vote when legislators choose to be complacent, volunteering with groups supporting trans rights, and communicating with (and especially listening to) friends and family who may not be privy to the issue or may simply be in denial of the direness of the situation. These steps will help to ensure that accurate information is provided to voters despite the loudness of misinformation being shouted by opponents of trans rights. There is no better time than now.
Hirsha Venkataraman (CUNY Law ‘23 ) is a Reproductive Justice Fellow at If/When/How. [...]
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October 3, 2023BlogAnnie Seifullah and Jillian Bowen
The First Amendment of the United States Constitution protects freedom of speech, but this protection is not absolute. True threats, which our courts have identified as statements that frighten or intimidate someone into believing that they will be harmed, are an example of speech that is not constitutionally protected. Because social media, tech platforms, and smart devices are so embedded in the ways humans communicate and connect, what actually constitutes a true threat has become not only a more prevalent inquiry in our courts–but also a more difficult question to answer.
The Supreme Court has held that true threats of violence fall outside of First Amendment protections and violate the law under the justification that it is important to protect people from the fear of violence, the disruption that flows from such fear, and the possibility that the threatened violence will occur. Counterman v. Colorado presented the Supreme Court with a unique opportunity to distinguish the nature of true threats in the context of technology-facilitated abuse; unfortunately, the Court failed to seize this opportunity so when it issued its decision on June 27.
At its core, Counterman is not about free speech–it is about stalking. Billy Raymond Counterman refused to take no as an answer from a woman (C.W.) whose attention he felt entitled to. So, he targeted C.W. with thousands of unwanted messages, some of which were extremely alarming–to the point that C.W. did not feel safe leaving her home or continuing to show up to her work. She changed her routines, bought a gun, and lived in constant fear and anxiety of her stalker. When Counterman was convicted for his threatening conduct, he claimed it was protected by the First Amendment. And his defense worked.
The Backdrop
For more than 50 years, the Court has been careful to protect speech–even threats–where the speech was hyperbolic or meant as a political statement. The “true threats doctrine” was born from the decision in Watts v. U.S. (1969), where the court sided with Robert Watts, a teenager who opposed the draft (“if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J”). In Watts, the court considered the context of the threatening statements and the credibility of the threat from the point of view of the targeted audience and held, rightfully, that speakers like Watts deserve protection from criminal prosecution.
Since Watts, the Court has been careful to carve out even more protections for speech, even when it might be perceived as threatening–especially if the speech was not likely to lead to violence. The Court has expanded true threats doctrine to protect, for example, political activism like protesting wars or promoting economic boycotts, as we saw in Hess v. Indiana (1973) and NAACP v. Claiborne (1982). The Court has also found that even opinions that an overwhelming majority find offensive and abhorrent deserve protection, as we saw in Brandenburg v. Ohio (1969), where the Court held that the speech of the Ku Klux Klan was inflammatory but did not rise to the level of imminent harm.
Prior to Counterman, the Court took up a similar question relating to true threats and online speech in Elonis v. United States (2015). In that case, Anthony Douglas Elonis posted violent and threatening rap lyrics on Facebook, which were directed at his wife and others. Elonis was arrested for these threats but claimed his words were merely creative/artistic expressions of his lived experience as a rapper and that he had no intent to threaten or harm. The Court overturned his conviction but did not fully resolve the issue of when online statements rise to the level of “true” threats, leaving the current Court with an open question.
Previously, in cases like Watts, Courts applied the objective standard to determine if a speaker’s statement could be regarded as a true threat. This standard focuses on whether a reasonable person would regard the speaker’s statements as a true threat of violence. A Colorado jury convicted Counterman under this standard because it believed that C.W. reasonably regarded Counterman’s conduct as threatening. Counterman challenged the standard and argued that applying an objective standard (based on what the receiver of speech reasonably felt) was unlawful because it did not appropriately consider mens rea (what the speaker intended by the speech).
The Supreme Court vacated and remanded the jury’s conviction and sided with Counterman, holding 7-2 that the “true threat” should be replaced by a subjective recklessness standard, which requires proof of the speaker’s mental awareness. This new standard requires the speaker to understand that others could regard his statements as threatening, but he made them anyway.
In this decision, the Court failed to distinguish the importance of protecting victims of technology-facilitated abuse, especially in the context of gender-based violence, from the value of protecting bona fide political and artistic expression. While both the threatening speech in Counterman and Elonis was made on Facebook, the speech was in the form of publicly posted rap lyrics in Elonis, whereas in Counterman the language was in the form of direct messages to one person (C.W.) with content that was interpreted as threatening and intimidating.
Distinguishing Free Speech from Tech Abuse
The National Resource Center on Domestic Violence (NRCDV) defines technology-facilitated abuse (or “tech abuse” for short) as the use of tech to monitor, surveil, bully, intimidate, or stalk a person. Regardless of whether one agrees with the outcome in Counterman, there is no question that cases involving tech abuse of the Counterman type should be treated differently than political or artistic speech. Although those forms of speech may be abhorrent or threatening to some, they do not rise to the level of being a true threat to one, as tech abuse does.
Billy Raymond Counterman’s speech was abuse targeted at one woman. It was an obsessive method of power and control that was amplified and enabled by his use of digital platforms.
When it comes to threats of stalking and persistent harassment, especially those enabled by technology, the stakes could not be higher for victims. Stalking victims report dramatic changes in their lives as a result of being stalked, with one in seven being forced to move as a result of being stalked, one in eight losing time from work, and one in four contemplating suicide. Research shows that stalking is more likely to lead to physical violence against a woman in the context of intimate partner violence. Indeed, more than half of female homicide victims reported being stalked or harassed by their abusers prior to their deaths. This is possibly why, in response to Counterman, Colorado Attorney General Phil Weiser issued a statement warning: “his decision will make it more likely that victims of threats—mostly women—will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”
Because of the lack of civil remedies available to address such serious misconduct, victims such as C.W. often resort to asking law enforcement to intervene. But the criminal justice system inadequately addresses stalking, and carceral-centered solutions do not actually make victims safer. In fact, victims face an increased likelihood of violence during the days after their abuser is released from jail/prison.
Ironically, the State’s prosecution of Billy Raymond Counterman was a rare example of law enforcement taking measures to protect a victim and successfully prosecute a relentless stalker. Cases like these seldom make it as far. Even in instances where women do report their stalkers, police often take no action to investigate (18.8 percent of reported cases) and only sometimes make arrests (roughly 7 percent of reported cases).
While the new subjective “reckless” standard implemented by the Court may provide a sufficient framework for explicit threats, the underlying facts of Counterman highlight the complexities of evaluating threats that arrive in the context of technology-facilitated stalking–particularly where one determined person uses tech to stalk and harass a target without end.
Requiring that a victim prove her attacker’s state of mind creates a burden that many victims cannot meet. Hypothetically, it also provides a loophole through which a stalker can avoid accountability by claiming that they simply did not know their conduct was unwelcome. In a case where the stalker is particularly delusional, or obsessed to a point beyond reason, this defense could very well work–leaving the victim of stalking without any protection.
Tech Abuse Masked as Free Speech Deserves a Rule of Its Own
This blog post proposes that, by tailoring a rule specific to this type of tech abuse, the Court can protect victims of truly threatening stalking and harassment without compromising the First Amendment rights of individuals and groups whose speech deserves the highest protection. And this can be achieved by applying a test such as the one used in Watts, where the Court considers: (1) the context of the speech; (2) the conditional nature of the threat; and (3) the impact of the speech on the victim/target.
The context of the speech. This factor considers the full context of the speech that the target perceives as threatening. This is the who and what of the speech.
The conditional nature of the speech. This factor takes into account the extent to which the threat is explicit or implicit. This is the when, where, and how of the threatening speech. And it takes into consideration that multiple implicit threats–while not specific as to time and place–can amount to threatening speech when taken as a whole.
The impact of the speech on the victim/target. This factor reinstates a consideration into how the threatening conduct is impacting the victim.
To breathe some life into these three factors, let us apply them to Watts (where the true threats doctrine failed, rightfully) and Counterman (where the true threats doctrine should prevail):
Watts
Counterman
The context of the speech
Watts, a teenager speaking at an anti-war rally, says “if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”
Counterman, an adult man, is obsessed with C.W. They had never met, so C.W. did not know what he looked like, but he made it clear through messages that he knew her and even was possibly surveilling or stalking her in real life.
The conditional nature of the speech
One statement, hypothetical and hyperbolic in nature, made during an anti-war rally. Directed publicly at an elected official–the President of the U.S.
He sent hundreds of messages over the span of multiple years, some which were innocuous and some that were menacing and implicitly threatening. Counterman lived in proximity to C.W., a private individual. C.W. blocked him on social media, but he continued to contact her by creating new accounts that bypassed the blocking feature.
The impact of the speech on the victim/target
Likely, none. It is hard to imagine that President Lyndon B. Johnson felt threatened by Watts.
C.W. changed her daily habits, stopped performing in shows publicly, bought a gun, and experienced severe distress and anxiety. Her personal relationships were affected.
When compared side by side, it is clear how distinctly different the context and nature of the political speech in Watts, which contained hyperbolic threatening language made publicly at a rally and directed at an elected official, is from the unwanted, relentless, and threatening conduct of Counterman to C.W. Further, the degree of harm evidenced by the third factor highlights the life-changing impact Counterman’s stalking campaign had on C.W., while there was clearly no tangible impact from Watts’ statement on his target (L.B.J.). This comparison highlights how the Court’s analysis of the true threats doctrine overlooked the distinctly different nature of stalking as a specific form of nonconsensual, unwanted conduct that warrants no First Amendment protections.
Looking Forward
The Counterman decision cast a bleak foreshadowing on the potential outcome of another case the Court has announced it will be hearing this term: United States v. Rahimi. Rahimi involves a domestic abuser’s right to bear arms under the Second Amendment. This case stems from the Fifth Circuit, which struck down a federal law that had been in effect for nearly 30 years that prohibited firearms possession by people who are subject to domestic violence protection orders. Unfortunately, the Court’s demonstrated lack of understanding of the experiences of victims of stalking in Counterman likely foreshadows its willingness to protect the rights of abusers over the safety and lives of victims in Rahimi–and underscores the need for a new rule tailored to stalkers who abuse social media.
Annie Seifullah (CUNY Law ‘19) is a civil litigator and anti-violence advocate at C.A. Goldberg, PLLC, a woman-owned, woman-led law firm in Brooklyn that specializes in representing survivors of violence, both online and off. Annie is the co-chair of the New York Cyber Abuse Task Force, a coalition of agencies, attorneys, and advocates working to end technology-facilitated abuse.
Jillian Bowen is a rising 4L evening student at CUNY Law and is working on a forthcoming article on how the law can better address the specific harms of technology-facilitated abuse. She is eager to work in victim advocacy after graduation. [...]
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August 28, 2023BlogNick LeiberOn May 12, CUNY Law School graduate Fatima Mohammed gave a roughly 13-minute commencement speech to her graduating class as a student-selected speaker at CUNY Law’s graduation ceremony. In it, she shared reflections, offered gratitude, and criticized Israel, the New York Police Department, and the legal system itself. Despite her words clearly meeting First Amendment speech protections, a bullying campaign led to a torrent of negative coverage in right-wing media characterizing her words as antisemitic, calls for depriving CUNY Law of public funding, and public concerns for her safety.
By First Amendment speech protections, I’m talking about the right to articulate opinions–including unpopular ones–without censorship, interference, or retaliation from the government. The Supreme Court has held that the First Amendment protects a wide variety of speech and conduct, including burning a flag, peacefully protesting, and making statements many find abhorrent. In its 1989 decision Texas v. Johnson, the Court famously held: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Earlier Supreme Court cases made clear that the First Amendment protects students expressing themselves at their public high schools and state colleges and universities. In 1969, the Court in Tinker v. Des Moines Independent Community School District found that school officials could not censor student speech unless it disrupted the educational process. Three years later, in Healy v. James, the Court affirmed First Amendment protections on public college and university campuses: “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”As a public law school, CUNY Law is a public institution, and there are arguably few CUNY spaces that provide more of a public forum than a school’s commencement ceremony.In June, Fatima gave her first interview since the bullying campaign began; she was unwavering in her declaration that she would make the same speech again. I admire Fatima’s bravery, and I, along with many students, alumni, faculty, and others, including the National Lawyers Guild, PEN America, and the Center for Constitutional Rights, support her. As a current CUNY Law student, I’m disappointed with CUNY’s Board of Trustees and Chancellor for enabling the personal attacks against Fatima. Their May 30 statement only abetted the campaign against her by erroneously characterizing her remarks as “hate speech,” asserting they “fall into the category of hate speech as they were a public expression of hate toward people and communities based on their religion, race or political affiliation.”One problem with the Board calling Fatima’s commencement speech hate speech is that it was not hate speech, as hundreds of professors inside and outside CUNY Law and the CUNY system make clear in their letter to the Chancellor and Board. The professors urged CUNY to withdraw its statement and issue an apology to Fatima and the entire CUNY Law Class of 2023. They rebutted the Board’s assertion, explaining that:
No reasonable interpretation of the student speaker’s remarks would suggest it was “hate speech,” given that none of the student’s comments attacked any persons or protected classes, but at most commented on nations and state institutions that are incontrovertibly causing harm to people domestically and internationally. Moreover, the May 30th Statement’s suggestion that hate speech includes “political affiliation” as a characteristic similar to race or religion is wildly inconsistent with long-standing and legal definitions of the concept of hate speech. Indeed, the implication that an elected-student speaker at an institution devoted to social justice and human rights was applauded by her peers, faculty, and attendees for engaging in “hate speech” is an affront to both the student speaker and our entire community. This casual and inappropriate characterization also undermines the identification of actual hate speech and state-sponsored bigotry that is sadly on the rise in the United States and often targets many of us in the broader CUNY community. Needless to say, the student speaker’s remarks were heartland First Amendment protected speech.
Another problem with calling Fatima’s words “hate speech” is that the term lacks a legal definition under U.S. law and is protected by the First Amendment, according to this explainer about free speech on campus. While there are very narrow exceptions that allow schools to impose limitations on student speech, such as incitement of illegal activity, Fatima’s words do not fit within these exceptions.On June 12, CUNY’s Professional Staff Congress–a union representing thousands of CUNY faculty and staff across CUNY campuses–echoed yet another problem with the Board’s statement about Fatima’s speech: “Mischaracterizing expression protected by the First Amendment as hate speech has a chilling effect in the context of public higher education, whose bedrock must be free speech and academic freedom.”
Meanwhile, CUNY Law’s Jewish Law Students Association, along with more than a dozen other student groups, offered a statement of support for Fatima that noted the history of “harassment campaigns against Palestinian and Muslim law students at the CUNY School of Law.”
For those unfamiliar with the CUNY system, it may be helpful to know that CUNY is comprised of 25 public institutions across New York City that includes the law school. An entity known colloquially as CUNY Central, in addition to the Board of Trustees and Chancellor, oversee the system. The Board has taken controversial actions before when a speaker has dared to criticize Israel, including shelving an honorary degree for Pulitzer Prize-winning playwright Tony Kushner. Last month, the New York City Bar Association weighed in, condemning the discriminatory harassment and threats of bodily harm directed towards Fatima and urging CUNY leadership to “reconsider its position and affirm its commitment to the principles of free speech and expression.” The City Bar’s report expressed concern that the CUNY Trustees’ statement “risks deterring law students and recent law graduates from practicing and learning how to have difficult conversations on topics about which there is disagreement.” It also urged CUNY to consider the ramifications of a powerful institution criticizing a “young immigrant woman of color at the outset of her career.”
The bottom line: The message that CUNY’s Board of Trustees is sending to CUNY Law students and professors (and many others) enables bullies and devalues both the importance of supporting free speech and combating hate.The recording of the full commencement is available on on YouTube. Fatima’s speech starts around 1:15:00.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review. [...]
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July 4, 2023BlogLast week, the United States Supreme Court released a series of critical decisions on ending affirmative action in higher education programs—other than military academies—, blocked student loan forgiveness, and expanded a business owner’s right to refuse services to same-sex couples.
The City University of New York Law Review (“CUNY Law Review”) is committed to centering historically and presently marginalized perspectives. We prioritize a lens that highlights the realities and consequences of structural oppression and collaborates with those seeking to upend these structures. As such, we are deeply disappointed, but unfortunately not surprised, by the Supreme Court’s decision in these cases.
In Students for Fair Admissions, Inc.v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, a 6-3 majority ruled that race-conscious admissions programs at both universities are unconstitutional, effectively overturning nearly 50 years of affirmative action precedent in the United States. This decision by the Court’s conservative supermajority will have sweeping effects for colleges and universities across the country, and for the many students of color looking to pursue higher education at these institutions.
The majority opinion lacks a basic understanding of the very processes it has deemed as violating the Fourteenth Amendment—arguably enacted as one of the most race-conscious amendments—and it attempts a rewriting of law and history. Most significantly, it brazenly ignores the United States’ long history of anti-Blackness and racial discrimination in education and ignores the fact that students of color face persistent systemic barriers to educational access. This blow to affirmative action is only the beginning. These reverberations of ignorance will increase pay disparity and underrepresentation in leadership positions, homogenize workplace composition, and exclude talented individuals with diverse perspectives that add to a richer, more inclusive society.
Thus, we believe in and will continue to highlight the work of those committed to creative solutions for what we can do, despite the decision. We are inspired by the powerful dissents of Justices Sotomayor, Jackson, and Kagan, as well as the many organizations who have clarified just how wrong and ahistorical this decision truly is. Most importantly, we are in solidarity with all students of color who have been historically and presently excluded from and marginalized in educational institutions. Our collective future depends on centering these voices. It depends on a creative resolve to develop and use all possible tools to expand access and opportunity to counter the detrimental impact of the decision; to soar beyond it, to reaffirm that we are here, we will not be erased, and we will continue to thrive.
We also believe it is crucial to not lose sight of the disingenuous efforts of the organizations behind these lawsuits. SFFA’s founder has initiated and supported litigation to challenge racial justice accomplishments across all areas of life, from voting to education. The initial complaint in these cases sought to address the disparate treatment of Asian American students in Harvard’s admission scheme compared to white students, not other students of color. There was ample evidence of potential discrimination against Asian American students as compared to white students. Nevertheless, SFFA eventually framed the conflict between Asian American students versus other students of color and weaponized the model minority myth to attack race-conscious measures aimed at combating institutional racism. In the end, this decision gutted affirmative action for all but white students. This was by design.
As many allies across these organizations have acknowledged, SFFA’s efforts are part of a multi-faceted and powerful attack on gains in equality and rights for Black, Indigenous, and all people of color. They are an effort to keep our communities out of institutions of learning and seats of influence, and to deny the full and dynamic reality of our communities, past and present. They are connected to whitewashing and exclusion of Black presence in history lessons for students at all levels. They are connected to Executive Orders banning diversity training and positing a false and incomplete history of the United States. They are intertwined with the suppression of voting rights for Black people and all communities of color. They are linked to banning books by authors who are people of color and LGBTQ+.
These efforts are also linked to the Court’s attempts in Biden v. Nebraska to overstep its own limited power, take policymaking into its own hands, and ignore the racialized impact of the student loan debt crisis. And, they are enmeshed with the Court’s harmful decision in 303 Creative LLC v. Eleni to further legalize discrimination against queer people, restrict expression, and undermine dignity for all in the public marketplace. This decision encourages the legitimacy and expansion of “Don’t Say Gay” bills and other explicitly anti-LGBTQ+ legislation that perpetuate bigotry and stigma in and out of the classroom.
There is a clear throughline in all of these rulings: diminishing the rights of marginalized communities and undoing decades of collective progress, organizing, and activism. Yet, this Court’s decisions need not be deemed final nor go unchallenged. The communities we align with, who are most impacted, will not be silenced.
At CUNY Law Review, we remain vigilant as ever in our mission to uplift marginalized voices and call out systems of oppression. We denounce these attempts to use law, culture, and institutions to deny—rather than expand—space, voice, and political power to an increasingly diverse and multiracial country. We will continue to fight alongside all communities seeking to dismantle systems that embolden these antidemocratic decisions. [...]
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May 1, 2023BlogFellow CUNY Law students,
We encourage you to pause from studying for finals to scream into the wind and learn more about joining us this fall as staff editors working together on social justice scholarship.
You can stop by our tabling sessions on the second floor of the law school from May 1 through May 10 or join us on Zoom by clicking https://bit.ly/LRSEF23. Staffing permitting, we will be at the tabling sessions and on Zoom from 12:30-1:30 pm and 5:45-6:45 pm.
Applications are due by June 1. We look forward to chatting! [...]
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April 24, 2023Blog / DobbsChaumtoli Huq
Miki Jourdan CC/Flickr
“There is no such thing as a single-issue struggle because we do not live single-issue lives. Our struggles are particular, but we are not alone.”
Audre Lorde
While the United States Supreme Court’s reversal of Roe v. Wade, which had guaranteed federal constitutional protections of abortion, was a tremendous legal setback, it correctly shattered the myth that the right to bodily autonomy exists under our legal, political, and capitalist systems. It does, however, provide an opportunity to advance an emancipatory vision of bodily autonomy long articulated by Black, Indigenous, and Global South feminists, which brings together a diverse coalition of grassroots social movements to articulate radical politics around life and livelihood.
In this piece, I briefly outline emancipatory concepts of bodily autonomy in contrast to the dominant liberal feminist ones underlying the reproductive rights movement. This broader framing, drawn by reproductive justice movements led by women of color, provides an opportunity to draw connections with other social movements, such as labor, immigration, LGBTQ rights, environmental justice, and racial justice. Such a framing allows those movements to advocate for demands through organizing that affirms life, ensures livelihoods, and secures a sustainable future.
Emancipatory Concepts of Bodily Autonomy
Bodily autonomy has been narrowly conceptualized in the U.S., which can be popularly understood in phrases like “right to choose” or “our bodies ourselves.” It presupposes an individual, atomized self, disconnected from any social identities or part of any communities. Individualism obscures more collectivist perspectives of the self and body as unbound to one form, person, or identity. Collectivist approaches, often emerging from Indigenous and non-European cultures, view the self as interdependent, connected to other life forms, and view family/kinship based on relational ties rather than biological ones. Thus, collectivist principles of rights, security, and safety of the body is all-embracing, not circumscribed by heteronormative biological reproduction.
A broader definition of bodily autonomy emerges from an understanding of what scholar bell hooks describes as white supremacist, capitalist patriarchy, and imperialist structures of power. This individualized notion of bodily autonomy, solely about owning one’s own body, is rooted in Eurocentric values. Even though the right over one’s body is foregrounded in feminism, gender equity, and mainstream human rights, the rightsholder is envisioned as cis-gendered, white, property-owning, and from the Global North.
An understanding of interlocking systems of oppression gives specific political content and context to principles of choice, integrity, dignity, safety, and security. For marginalized communities, this means being free from different forms of state-sanctioned and economic violence. As such, under an emancipatory framework, communities resist a narrow framing of bodily autonomy, and offer alternative life-affirming values that are anti-racist, anti-capitalist, and anti-patriarchal. The Combahee River Collective statement of 1977, written by Black feminists who were part of the feminist and reproductive rights movement, found that the focus by liberal white feminists on abortion excluded the issues of Black women and other women of color. They articulated a feminist politic that included all oppressed peoples. They write: “We realize that the liberation of all oppressed peoples necessitates the destruction of the political-economic systems of capitalism and imperialism as well as patriarchy.”
Decades after the Combahee River Collective statement, its ideas reverberate in Sister Song’s mission. Founded in 1997 by 16 organizations of women of color from Indigenous, African American, Latina, and Asian American communities, Sister Song seeks to to improve policies that impact the reproductive lives of marginalized communities. They write:
All oppressions impact our reproductive lives; is simply human rights seen through the lens of the nuanced ways oppression impacts self-determined family creation. The intersectionality of is both an opportunity and a call to come together as one movement with the power to win freedom for all oppressed people.
Sister Song defines reproductive justice as “the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” However, historically, hegemonic and colonial forms of feminism have sought to narrow our conception of feminist issues, particularly in the area of reproductive justice to the single issue of abortion. This limited vision excludes other ways in which our systems of patriarchy, capitalism, and racism cause violence and deny bodily security for many members of our communities. Even when the issue of abortion is narrowly conceived, transgender and non-binary persons who can become pregnant are excluded, revealing that it is not about protecting a particular form of reproductive right, but about protecting that right for certain individuals–white and cis-gendered.
One of the reasons the Supreme Court gave in Dobbs v. Jackson Women’s Health Organization for why abortion is not a constitutionally protected right is that the text and history of the Constitution does not state so. Indeed, if we view the formation of the U.S. as a gendered settler-colonial and racial-capitalist project, as Black and Native American feminisms urge us to do, then we would expect the omission of any rights for Black and Native women in the text. In Killing The Black Body, scholar Dorothy Roberts discusses how “Black procreation helped to sustain slavery” and how through slavery and reproduction enslaved persons were subjugated. Native American feminists discuss how the formation of the U.S. sovereignty was predicated on the annihilation of Indigenous communities and conducted through various violent and legal reproductive policies.
Thus, control over reproduction to subjugate certain communities was very much central to the U.S. Constitution and formation of the American nationhood. Roberts aptly writes, “he American legal system is rooted in this monstrous combination of racial and gender domination.” The judicial authority of the U.S. settler-colonial state, and therefore the Constitution, was predicated on the genocide of Native Americans and the control of Black women’s reproduction for the maintenance of slavery.
As such, limiting our understanding of the text of the Constitution as giving or not giving individual rights distracts us from the larger legal and political project of denying life to a vast segment of the population. It limits our legal strategies to formalist ones, including reforms to the Supreme Court. Black, Indigenous, and Global South feminisms understood that a formalist framing of reproductive rights focused on the Constitution or, in the case of Dobbs, a narrow legal interpretation, would not lead to any reproductive rights or rights for marginalized communities. As Audre Lorde’s quote at the start of this piece, from her essay Learning from the 60s notes, we do not live single-issue lives, and so our struggles should be interconnected.
What is remarkable and prescient of the Combahee River Collective statement, and Sister Song’s mission, is that they are not limited to narrow biological reproductive issues such as abortion, contraceptives, and choices around family formations. They push us to transcend our issue areas to forge radical politics for all oppressed peoples to come together. It is this emancipatory vision of bodily autonomy that I spotlight here, which provides social movements the vision to explore strategies that are not limited to formal political and civil equality. Such broader concepts of bodily autonomy allow fractured social movements to come together to build a global grassroots multi-racial economic justice movement.
Reproductive Justice and the Fight Against Social Control
Reproductive justice is most attuned to the ways in which we biologically and socially reproduce ourselves, including social identities such as gender, race, and other structures of inequality. This is often referred to as social reproduction. Biological reproduction ensures a future workforce for capitalism, and the reproduction of social inequalities that regulate that workforce to extract labor and maintain the profits of a capitalist economy. Care and affective work by domestic workers, home-health aides, and unpaid caregivers enable other workers to be available for the capitalist economy. Gender and race become useful tools to create hierarchies between types of work to justify low wages in predominantly feminized workforces.
Because reproductive justice is not only concerned with biological reproduction or the decision not to reproduce, but concerns socio-economic conditions that limit the choice of reproduction or determines who constitutes a family, it becomes an important space through which to address multiple forms of inequalities. For example, a narrative around choice obscures how racism in maternal health impacts Black women’s access to reproductive health-care or the exclusion of transgender persons from reproductive healthcare.
Economic factors are not the sole determinants for reproduction. Nor does having a choice to reproduce mean that all persons are able to exercise that choice equally. As such, social reproduction is not a mechanical process, instrumentalized for capitalism, but rather a dynamic one, often reinforcing gender and other social inequalities such as racism and transphobia. An expansive framing of bodily autonomy also allows other issues, including economic justice, to be considered which seeks to disrupt the reproduction of various systems of oppression.
Roe, emerging out of the feminist movement of the 1970s, was followed by a period of neoliberal globalization that led to a wide wealth disparity, feminization of labor, and the abdication of the public health responsibilities. Now the denial of abortion as a federally protected right signals a profound crisis in our ability to live (literally) and work. All facets of human life are being constrained, denied, and made dead. The conservative appropriation of the right to life is ironic when social movements are fighting for precisely that–to live. Dobbs is part of a series of legal attacks on marginalized communities too numerous to list but includes the challenges of workers to organize, denial of universal health care and other safety nets as workers experience increased precarity, continuation of racial, xenophobic violence, and hate crimes.
In my own work on transnational labor, the slogan “No One Should Die for Fashion” by garment workers across the globe, many of whom are women who produce apparel for multinational companies, speaks to the linkages of exploited gendered labor and life. Garment workers in Bangladesh who experienced the horrific and tragic death of over 1,100 workers in the 2013 Rana Plaza factory collapse rallied that no one should die for fashion. Locally, New York City taxi drivers were committing suicides at alarming rates due to oppressive taxi medallion debt structures, exploitative independent contracting arrangements in the taxi industry, and predatory practices of rideshare companies like Uber. Some of the reasons given for these tragic deaths is that drivers worried they were unable to provide for their families. Reproductive justice, which seeks to create conditions that enable people to support their families, invariably involves issues related to economic justice.
Forging Links With Other Social Movements
To date, the calls to investigate the Missing and Murdered Indigenous Women go unheeded. Militarism and U.S. imperial foreign policies around the globe have destabilized countries and their democracies. The Bureau of Investigative Journalism (“BIJ”) documented U.S. strikes in Afghanistan, Pakistan, Somalia, and Yemen from 2002 to 2020 that killed between 10,000 and 17,000 people; 800 and 1,750 are thought to have been civilians. Narrow biological-based notions of reproductive rights limited to abortion ignores all these instances where life and livelihood have been inhumanely denied.
The denial of life-affirming values, and bodily autonomy, exists in other issue areas as well. The varied forms of regulations that determine who is afforded life, and how that life is valued, are the means by which social inequalities are reproduced. Incarcerated persons have always faced attacks on their life through internationally recognized inhumane practices such as solitary confinement. More than 2,700 people died in jails, prisons and detention centers of COVID-19. The Black Lives Matter movement, sparked by the killing of Trayvon Martin in 2012, also began as a resistance to the continual disregard for Black life. In the field of immigration, there are numerous examples of families separated, removed, detained, and deported. National civil rights groups, including Detention Watch Network, have documented how inadequate medical standards at detention centers have led to deaths in immigration detention facilities.
In this regard, the current fight around abortion, which is taking national center stage, can shift us to a multi-issue movement for bodily autonomy and liberation. It also means that emancipatory concepts of bodily autonomy need to be brought into our respective social movements. In my field of labor rights, it means moving beyond narrow demands of “living” wages or passing legislation to protect the legal right to organize. It may involve demands for guaranteed income and homes, rights to enjoy safe workplaces, universal health care, free childcare, tuition-free higher education, protection from discrimination, and more.
It means not having rights conditioned on marital status, being a parent, or on other statuses such as citizenship which reproduces capitalist patriarchal social relations which view people as having value only as producers of commodities, or producers of labor for capitalism.
The legal attacks by the Supreme Court and local efforts to restrict abortion are devastating because it removes protections and respite from the violence of capitalism. But this moment can be an opportunity to forge radical politics that are life-affirming, address the inherent dignity of human life, and the right to ensure the livelihood needs of communities. Bodily autonomy can move us towards a safe and sustainable future.
Chaumtoli Huq, is an Associate Professor of Law, at CUNY School of Law, where her scholarship focuses on transnational labor law and social movements, with particular attention to racialized and gendered workforces. She thanks Professor Cynthia Soohoo for reading and commenting on this draft, as well as the staff of the CUNY Law Review for their editorial support. You can follow her on twitter @profhuq. [...]
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February 20, 2023Blog / Dobbs / UncategorizedJasmine Wali
When Roe v. Wade was overturned, advocates across the political spectrum declared that the foster care system would be overwhelmed by an influx of “unwanted” children. Adoption became a central talking point. Anti-abortion proponents stated that adoption was a solution for these families, and that foster and adoption systems needed to be strengthened. Supporters of reproductive choice pointed out the seeming hypocrisy of the “pro-life” movement by highlighting all the children awaiting adoption in foster care.
Twitter screenshot taken Nov. 27, 2022. https://perma.cc/YB5R-MGU5
Using foster and adoptive systems as either an alternative to abortion or as a talking point around the topic of abortion demonstrates a fundamental belief about children in these systems: that they are unwanted. The swift connection the public made between banning abortion, more “unwanted” children, and an overwhelmed child welfare system is steeped in history.
In 1975, famed columnist and psychologist Joyce Brothers wrote in the Chicago Tribune: “For many parents, child abuse amounts to retroactive abortion,” opining that parents subconsciously attempt to get rid of their children through perpetual abuse when they realize they do not want their child. A 2002 study found that limiting abortion availability increased reports of child maltreatment (which includes reports of neglect), and concluded that parents with unwanted pregnancies are therefore more likely to abuse or neglect their children.
Foster care fact sheets conflate abuse with neglect, perpetuating the narrative that parents whose children are in foster care are “unfit,” and children are rightfully saved from these abusive homes by Child Protective Services (CPS), foster caretakers, and adoptive parents. However, the majority of children in foster care are removed for neglect, which is better understood as a symptom of poverty.
Twitter screenshot taken Nov. 27, 2022. https://perma.cc/MB8P-7MNP
The abortion debate has long been guided by conservatives’ perception of immorality. The modern-day child welfare or family policing system is also guided by a racialized and gendered understanding of immorality. When an act or a person can be deemed immoral, they can be criminalized. Abortions can be outlawed and “immoral” parents can be punished with family separation. Understanding these links as opposed to perpetuating notions about families ensnared in the family policing system can deepen our understanding of reproductive justice, which entails not only the right to maintain bodily autonomy but also the right to parent the children we have in safe and sustainable communities.
“Illegitimate” and “Unwanted” Children
In 1962, pediatrician C. Henry Kempe and several colleagues published the article The Battered Child Syndrome about child abuse. The report described a child being “unwanted” as a considerable risk factor for parental violence against the child. It also introduced the empirically unsupported idea of parental violence against children as a diagnosable and treatable medical condition or mental illness, and allowed for physicians to maintain ownership over this complex social problem and guide its interventions.
Screenshot of New York Times article taken Nov. 27, 2022. https://perma.cc/T8WX-K9WF
The Battered Child Syndrome (BCS) was extensively reported on over the next decade by popular media, fueling public concerns over the supposed epidemic of child abuse plaguing “unwanted” children. The public was quick to link this phenomenon to abortion rights. In 1969, The New York Times published a letter to the editor that directly tied the theme of abortion access to the “Battered Child Syndrome.”
Following the publication of BCS, researchers across the country mobilized to conduct their own studies of child abuse. Data points gathered went beyond typical categories such as age, sex, and ethnic background to include the categories of “legal status of victim” (i.e., “legitimate” or “illegitimate”), “whereabouts of victim’s biological father/mother,” and how much public assistance parents received. Collection of these data points were used to form a narrative about families reported for suspected child abuse, and mirrored terms and themes salient in other public debates around Black families and welfare.
The Battered Child Syndrome led to the Social Security Act being amended in 1962 with a new emphasis on Child Protective Services and identifying risk factors and reporting, leading states to develop their own systems for mandatory reporting.
Discourse About Black Families
In 1965, amid the Civil Rights Movement, Lyndon B. Johnson’s Assistant Secretary of Labor, Daniel Patrick Moynihan, wrote the Moynihan Report with the goal of persuading the Johnson Administration to move swiftly to improve the plight of poor Black families through federally financed anti-poverty programs. However, the report’s focus on the Black family structure provided a convenient rationalization for inequality.
In the report, Moynihan writes about Black families:
“Nearly One-Quarter of Negro Births are now illegitimate.”
“Most Negro youth are in danger of being caught up in the tangle of pathology that affects their world … At the center of the tangle of pathology is the weakness of the family structure … In every index of family pathology – divorce, separation, and desertion, female family head, children in broken homes, and illegitimacy.”
“Drunkenness, crime, corruption, discrimination, family disorganization, juvenile delinquency were routine of … has produced the Negro slum… fundamentally the result of the same process.”
The Moynihan Report is understood to be a foundational text in the development of War on Poverty policies. While Moynihan discusses the role of systemic racism in perpetuating wealth disparities, he also argues that the increase in welfare dependency can be “taken as a measure of the steady disintegration of the Negro family structure,” aligning with conservative politics of personal responsibility and associating blame for poverty and racism to individual Black families. Conservatives used the report to reinforce racist stereotypes about loose morality among Black families.
The controversial report has been criticized for stigmatizing Black men and marginalizing Black women, the timing of its release (coinciding with Civil Rights protests while reinforcing violent stereotypes about Black communities), and its failure to address the impacts of job discrimination and racism on unemployment rates.
The Battered Child Syndrome and the Moynihan Report used similar terms to describe parents who physically abused their children and Black parents. Children were characterized as “unwanted” or “illegitimate.” Substance abuse was described as “alcoholism” or “drunkenness.” Parents were diagnosed as “psychopathic and sociopathic” or “pathologic.” Families were defined by “sexual promiscuity, unstable marriages, and juvenile delinquency” or “divorce, separation, and desertion, female family head, children in broken homes … family disorganization, juvenile delinquency.”
The confluence of the BCS and the Moynihan Report, published only three years apart, conflated parents who abuse their children with Black parents. Both reports criminalized parents, questioned supposed sexual morality, and ascribed a set of treatments to address presumed personality traits and family structure.
Perceptions of Welfare
Welfare discourse was shifting in the 1960s, too. Aid to Families with Dependent Children (AFDC) was one of a number of social safety programs created with the Social Security Act of 1935, but had largely excluded Black parents. As a result of the Civil Rights Movement, single Black women began gaining access to these AFDC welfare benefits. “Welfare” began to conjure a racialized and sexualized image as more Black women joined the welfare rolls and concepts of morality and worthiness for government help became defined by a woman’s marital status when she had children. Historian Premella Nadasen notes that “promiscuity and laziness became synonymous with Black women on welfare,” and that “‘illegitimacy’ became a catchword for evidence of the degeneracy of the Black population.”
This public shift on welfare was immediately tied to reproductive justice issues. Numerous legislative proposals included punitive actions for parents of “illegitimate” children, including the loss of welfare benefits, sterilization, the imprisonment and/or fining of the parents, the loss of custody of the children, and various combinations of the above.
Screenshot of New York Times article taken Nov. 27, 2022. https://perma.cc/VCU4-LSZR
Vague definitions of neglect could be legally interpreted to criminalize poor Black women and deem them “immoral.” A 1967 ruling in Maryland courts left a mother at risk of losing custody of her children based on a state law that permitted courts to consider pregnancies out of wedlock as grounds for a neglect finding for failing to provide a “stable moral environment.”
These three focal points of the 1960s–child abuse, the Black family structure, and welfare–coalesced around attitudes on immorality. Media reports heightened the public’s sense of urgency for policies to address children, or “immoral” parents would go on to abuse their children, generationally drain government resources through welfare, and commit crimes.
Child Abuse Prevention and Treatment Act
To promote child well-being, Minnesota Senator Walter Mondale championed the Comprehensive Child Development Act, which would have created a universal network of federally subsidized child care centers. This multi-billion dollar investment was passed by the House and Senate with bipartisan support, but President Nixon vetoed the bill in 1971. In his veto speech, Nixon claimed that the bill represented a “communal approach to child-rearing” and had “family-weakening implications,” echoing concerns over family morality, and purposefully disparaging the importance of community and governmental support.
In response to the veto, Mondale, who still saw a need for a federal program to address child well-being, pursued the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA authorized funding for the identification and supposed prevention and treatment of reported child maltreatment, reinforcing a medical model in which child abuse was a psychological failing of parents and could be prevented through behavioral change and personal responsibility.
Many scholars have argued that CAPTA created a false equivalence between intentional physical harm to children by their parents and conditions of poverty. By codifying poverty as parental neglect, CAPTA circumvented discussions about race and class, absolving the government’s responsibility from addressing structural, economic, and racial inequities shaping children’s well-being, and placing the onus of child wellbeing on individual parents.
Today’s welfare programs continue to uphold the values set by CAPTA and anti-welfare rhetoric of the ‘60s and ‘70s. AFDC became the Temporary Assistance for Needy Families (TANF) program in 1997. According to 2019 federal records, Mississippi–the state behind Dobbs v. Jackson Women’s Health and home to the highest welfare rejection rate–spent only 5% of its TANF block grant on cash assistance (providing just $260 per month for a family of three in 2022). Meanwhile, it spent $27 million, over five times the amount of cash assistance, on the state’s Child Protective Services and foster system. Twenty-six million dollars of Mississippi’s federal TANF dollars were spent on the state’s “Fatherhood & Two-Parent Family Programs,” echoing the Moynihan Report’s statements about the absence of fathers and the need to rectify the moral structure of the Black family.
Abortion Seekers and the Foster System
According to the Guttmacher Institute, the majority of people seeking abortions are already parents. Seventy-five percent of people seeking abortions are low-income and nearly half live below the poverty line. More than half have just experienced a disruptive life event, such as losing a job, breaking up with a partner, or falling behind on rent. One study found that the population of abortion seekers who are unable to access a provider in a post-Roe world is likely uninsured, working in shift/low-wage jobs with unaccommodating schedules, and unable to go out of state due to travel, childcare costs, and/or disability. Reduced abortion access disproportionately affects Black women and birthing people.
An amicus brief from 154 economists filed against Dobbs regarding the potential economic impact of Dobbs cited the causal relationship between lack of abortion access and increased poverty. People who are denied an abortion experience a large increase in sustained financial distress and reduced credit access. Studies show that birthing people experience an immediate and persistent one-third drop in expected lifetime earnings once they give birth, and are more likely to stay in abusive relationships.
Poverty is the leading reason families get reported, investigated, and separated by the family policing system. Hardships that inevitably accompany poverty–such as food insecurity, lack of childcare, utility shut-offs, health care costs, and homelessness–all increase the risk of involvement in this system.
Racial disparities exist at every stage of the family policing system. Implicit racial biases held by mandated reporters (i.e., teachers, counselors, and healthcare providers), CPS investigators, foster agency staff, and family court judges accompany assumptions regarding socioeconomic status, and contribute to these disparities.
Over half of all Black children will experience a CPS investigation. Despite similar rates of substance use between Black and white pregnant people, Black people were 10 times more likely to be reported for substance use during pregnancy, often leading to newborns being ripped from their parents at the hospital. Once in the foster system, Black children are kept out of their homes for longer periods of time than their white counterparts. Black parents also experience Termination of Parental Rights (TPR) at higher rates than white parents; disabilities add to disproportionate separations and termination of parental rights. Once a parent’s rights are terminated, the child is put up for adoption.
Maintaining employment, especially shift/low-wage work, is often in direct conflict with successful reunification. Parents must attend parenting classes, supervised visits, court proceedings, and other “preventive” services to stay on track for reunification. Shift work can necessitate a reliance on informal childcare arrangements, which can be deemed inadequate by the family policing system. Many parents must quit their jobs to have a chance at meeting complex reunification requirements, plunging them further into poverty.
Strengthen the Social Safety Net
An influx of children into the foster system resulting from Dobbs will more likely be due to forced birth causing poverty and the criminalization of poverty by the family policing system. Assumptions that banning abortions will lead to increased child abuse repeats 1970s-era rhetoric that there is an inherent pathology and criminality among Black parents who are too poor to access reproductive healthcare, and strengthens the arguments for unconstitutional state investigations and intervention.
Parents impacted by family policing and family defense advocates have long called for investments in the social safety nets that support and strengthen families. Instead, welfare programs such as AFDC and childcare were defunded or vetoed as the modern family policing system took shape in the ‘60s and ‘70s.
Up to 30% of foster children could be home right now if their parents had adequate housing. Anti-poverty programs today, such as the Earned Income Tax Credit and Child Tax Credit, childcare subsidies, medicaid expansion all reduce reports of child maltreatment. A recent study found that increasing the minimum wage by $1 reduced reports of child neglect by nearly 10%. Increased provision of material services–food, clothing, utilities, housing, transportation, and other concrete supports–led to reduced reports of child maltreatment over a longitudinal period. Understanding that symptoms of poverty are reported as maltreatment and neglect makes the solution for the foster system crisis apparent.
The third of abortion seekers who do not have the means to access an abortion will be further pushed into poverty. The same intersections of race, class, gender, and disability that inform access to abortion are also surveilled and criminalized by the family policing system. Advocates for reproductive justice must understand that the same concepts of immorality that have shaped the Dobbs decision also shape the family separation crisis.
Jasmine Wali, MSW, is the Director of Policy & Advocacy at JMACforFamilies and a practicum instructor at Columbia School of Social Work. [...]
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December 1, 2022Blog / Dobbs / UncategorizedElias Fox Bova Schmidt
When the Dobbs v. Jackson Women’s Health Organization decision was leaked on May 2, 2022, I was sitting at my desk, studying for my final exam in my last semester of law school. I had just accepted a fellowship at a reproductive justice organization but I knew that, as a trans man, I was somewhat out of place. I had already felt the hesitancy from many within the reproductive rights landscape to acknowledge that, like cisgender women, trans men require safe and legal access to abortion. As soon as I got the Twitter notification about the leak, I knew that trans men would be among some of the first communities to be further erased in the reactions to the decision.
I was right. Almost immediately, the comments I received both online and in person made it very clear that even for many abortion justice advocates who would otherwise consider themselves to be trans allies, people like me just do not exist. For many, the idea of trans men being treated as partners within the fight for abortion justice is simply too foreign to comprehend.
I do not write this essay to introduce a theoretical question for academics and scholars (and pseudo-scholars) to debate. I write this because trans men need reproductive justice, too. I have met men in my community that have been pregnant, that have given birth, that are raising children, that have had abortions, and that plan to become pregnant one day. Trans men requiring abortion justice is not a theoretical concept, but a lived reality for men across the United States, and especially for the most vulnerable of us: Black trans men, Indigenous trans men, trans men of color, migrant trans men, disabled trans men, southern and rural trans men, and trans men living in United States colonial territories, just to name a few.
In the fight for abortion justice, trans men cannot be erased or pushed to the margins. Although it may be uncomfortable to fully include, and sometimes even center, trans men, our involvement is critical to ensure that all gender-marginalized people are protected from the control of a white supremacist cisheteropatriarchy that aims to strip us all of our bodily autonomy.
“If Men Could Get Pregnant, Abortion Would be a Sacrament” – Florynce Kennedy, or Gloria Steinem, or maybe an elderly Irish taxi driver from Boston
Contrary to the famous quote, men do become pregnant. Real men become pregnant. Real men with vaginas and uteruses become pregnant. Pregnancy for trans men is not impossible, nor is it wholly abnormal. Pregnancy for trans men is, however, severely understudied and regularly erased from discussions of pregnancy-related legal and medical needs.
Although some trans men also have intersex traits, most trans men are born with and continue to possess external and internal reproductive organs that are medically and legally defined as “female.” Only 14 percent of trans men surveyed in the 2015 U.S. Transgender Survey reported undergoing a gender-affirming hysterectomy, and only five percent of trans men reported undergoing gender-affirming genital surgery.
It should be noted, however, that there are no studies that specifically measure rates of hysterectomy or gender-affirming genital procedures undergone by trans men of color. This is disheartening, as Black, Latine, and other adults of color are more likely than white adults to identify as transgender, and further demonstrates that even current trans-affirming medical and legal frameworks evolve from a white racial context and ignore the unique needs and experiences of people of color.
There is no population-level data for the number of trans men in the United States who have been pregnant or who can become pregnant. The few studies that do exist on the topic have reported pregnancy rates for trans men and other transmasculine individuals surveyed that range from 12 percent to 17 percent of total study participants. However, notably, there are no studies documenting pregnancy rates for trans men of color or tracing racial impacts. This contributes to further erasure and negative health outcomes for trans men of color who have been essentially made invisible in the fights for abortion justice and bodily autonomy for trans people.
Testosterone, the masculinizing hormone prescribed to trans men undergoing hormone replacement therapy (HRT), is a dose-dependent ovulation suppressant that can impact fertility. If a trans man forgets to take his testosterone or is unable to have his prescription filled for a few weeks, he could begin ovulating, putting him at risk for pregnancy. Studies have also shown that even trans men who have been on testosterone for more than six continuous months can still experience breakthrough ovulation despite taking regular doses.
In one 2014 study surveying trans men who had given birth, around 25 percent of the pregnancies for men who had previously taken testosterone were unplanned. For men who had not previously used testosterone, nearly 50 percent of the pregnancies were unplanned, which is comparable to the national average, a number that one can assume is made up mostly of cisgender women. Anecdotal evidence also confirms the truth that trans men can, and do, become pregnant; just search the #SeahorseDad tag on Instagram. (“Seahorse dad” is used by many trans men to describe their own pregnancy, referring to how male seahorses become pregnant and give birth.)
Trans men are often inadequately educated about their own pregnancy risks and the need to use contraception, even while on HRT, because medical providers are often unaware of the reproductive and sexual health needs of trans men. I can speak from experience in saying that my own doctors have told me that testosterone would render me completely infertile, despite the evidence showing that this is not the case. Because of this misinformation, trans men who have sex that can result in pregnancy run the risk of becoming unintentionally pregnant, which may then require access to abortion services.
Trans Men’s Need for Abortion Access
Trans men need abortion justice just as much as cisgender women do. With the absence of studies on the matter, the same negative outcomes attributed to the lack of abortion access for cisgender women can be assumed to be the reality for trans men as well. However, trans men face additional consequences in the face of abortion restrictions that are not experienced by cisgender women.
Testosterone is teratogenic, which means that taking testosterone while pregnant can lead to birth defects in the fetus and, potentially, miscarriage. For trans men who are pregnant, doctors recommend stopping testosterone for the safety of the father and the fetus.
Trans men are faced with the illusion of choice: carry the fetus to term and stop HRT for their own safety and the safety of the fetus or attempt abortion without clinical supervision. Such methods for self-managed abortion without clinical supervision may include physical trauma, substance use, herbs, or other methods such as continued testosterone use. If trans men are not able to have an abortion, they are effectively forced to de-transition until the fetus has been born.
When trans men do attempt a self-managed abortion, they often face the risk of criminalization, even in states without statutes designed to criminalize self-managed abortion. In these states, prosecutors often apply laws that address mishandling of human remains, concealment of a birth, child abuse, assault, and homicide. For racialized trans men, Indigenous trans men, migrant trans men, and other trans men who are subjected to heightened surveillance, the risk of criminalization is even greater.
In states like Tennessee and Ohio with “fetal heartbeat bills” on the books, trans men can be at additional risk of harm. For trans men who experience menstrual cessation as a result of HRT, there would be no abnormal lack of menstrual cycle to indicate pregnancy. This means that in states with six-week abortion bans, trans men are even more likely to miss the cut-off to access legal abortion services before knowing they are pregnant.
As the southern United States has the highest concentration of trans people in the country while also having the strictest abortion bans and restrictions in place, some trans men would be required to travel hundreds of miles for abortion services. Because trans people, especially racialized trans people, are more likely to live in poverty than the general population, it can be even more difficult to schedule and access abortion services within those six short weeks or to travel out of state to access abortion services.
The Immediate Impact of Medication Abortion Bans
These disparities are felt in laws and regulations blocking access to medication abortion as well. In a post-Dobbs world, medication abortions are the leading type of abortion care for many people. For trans men, an immediate lack of access to medication abortion can have urgent consequences. According to preliminary data from the Guttmacher Institute, the 2022 national average for medication abortion use was 54 percent. There is no current post-Dobbs figure for abortion methods used among trans folks, but the last known figure of medication abortion use among trans people was 34 percent in 2019.
Studies have also indicated that the major motivation behind seeking medication abortion differs between trans men and cisgender women. While cisgender women tend to seek medication abortions due to fears of bleeding, complications, or anesthesia, trans men tend to seek medication abortions because it allows them to avoid interactions with medical providers and medical facilities.
Given the discrimination and violence that trans people often experience in medical systems, this motivation makes sense. The 2015 U.S. Transgender Survey reported that 33 percent of trans respondents had at least one negative experience with a medical provider, including verbal harassment, refusal of treatment, or being required to teach the health care provider about transgender people to receive appropriate care. These negative experiences are significantly worse for trans people of color, especially Native and Indigenous trans people.
Welcoming Trans Men in The Fight for Abortion Justice
A lack of access to abortion services could have devastating consequences for the mental health of many trans men as well. As testosterone is quite literally a life-saving intervention for many trans men, including myself, I cannot help but worry about the psychological impacts of being forced to both cease testosterone and to carry an undesired pregnancy to term. Not only is a necessary medical intervention to alleviate (often debilitating) gender dysphoria immediately unavailable, but a pregnant trans man must now navigate a system designated as “women’s health care” while also potentially losing any ability to pass as a cisgender man for safety purposes. But again, these realities are rarely addressed in discussions of abortion justice.
The man who needs an abortion is not a theoretical question to debate. He is not a “gotcha” used to minimize the harm experienced by cisgender women in a post-Dobbs world. He is not the enemy of feminism, nor does he take up unnecessary space in the reproductive justice movement. He is real, and he needs abortion justice as much as any cisgender woman does. Many reproductive rights and abortion justice circles have taken the welcome first step of using gender neutral language. But for the safety of trans men, it is not nearly enough. Now is the time to wholeheartedly welcome trans men into the fight for abortion justice.
Elias Fox Bova Schmidt, JD, MSW is an If/When/How Reproductive Justice Fellow at SPARK Reproductive Justice NOW. [...]
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November 8, 2022BlogLía Fiol-Matta
Earlier this year, the Supreme Court delivered a strong blow to Puerto Rico by ruling that its neediest residents are not eligible for Supplemental Security Insurance (SSI). U.S. v. Vaello Madero challenged the exclusion of otherwise eligible residents of Puerto Rico from receiving SSI, a national benefit for needy aged, blind, and disabled individuals. Jose Luis Vaello Madero, a disabled U.S. citizen, received SSI while living in New York and continued getting payments after relocating to Puerto Rico in 2013.
A few years later, the Social Security Administration revoked Vaello Madero’s benefits retroactively to the date he became a resident of Puerto Rico because he was considered to be living outside the United States. The government sued Vaello Madero seeking to recover over $28,000 in alleged overpayments. Vaello Madero disputed the liability, asserting that denying SSI to eligible citizens because they live in Puerto Rico violated the Equal Protection Clause of the Fifth Amendment.
By an 8-1 majority, the Supreme Court reversed two lower court decisions that had agreed that excluding otherwise eligible residents of Puerto Rico from SSI is “irrational and arbitrary” and thus violated equal protection principles in the Fifth Amendment. The Court rejected the view that Congress must extend SSI to residents of Puerto Rico as it does to residents of the States, holding that the Territory Clause gives Congress the right to make that determination (“The Congress shall have the power to … make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”). The Court found no equal protection violation, accepting the government’s argument that Puerto Rico residents’ exemption from some federal taxes provided a rational basis–i.e., any “legitimate” reason–for denying payments to otherwise qualified poor, disabled, and elderly individuals.
The Court’s sole dissenter, Justice Sonia Sotomayor, pointed to the injustice of such a ruling, as several states contribute even less taxes than Puerto Rico to the federal coffers yet are not excluded from SSI benefits, namely, Vermont, Wyoming, South Dakota, North Dakota, Montana, and Alaska. Sotomayor described the Court’s decision as “irrational and antithetical to the very nature of the SSI program and the equal protection of citizens guaranteed by the Constitution.”
An estimated 436,000 people in Puerto Rico could potentially qualify for SSI if not for Congress’ discriminatory treatment. The program was designed specifically to assist those “who have little to no income” with their basic needs. The program is aimed for those who cannot work and, therefore, do not pay federal income taxes. To deny poor, elderly, and disabled residents of Puerto Rico, many of them children, such an important federal benefit under the Court’s contradictory reasoning leads to a tragic, senseless result.
A large reason why the territories are treated unequally when it comes to constitutional protections is the reliance on what are known as the Insular Cases, a series of Supreme Court decisions spanning from 1901 to 1922 that describe residents of the territories as “alien races” and “savage tribes,” and in which the Court essentially invented the “territorial incorporation doctrine,” under which the territories are only guaranteed “fundamental” constitutional rights. These are rights specifically identified in the Bill of Rights of the Constitution or that have been found to exist under due process and the Supreme Court has recognized as requiring a high level of protection from government intrusion. The determination to deny SSI benefits to Vaello Madero and to the residents of Puerto Rico directly paralleled Justice Byron White’s concurring opinion in Downes v. Bidwell, which provided the basis for the territorial incorporation doctrine, establishing that Puerto Rico “was foreign to the United States in a domestic sense.”
The Social Security Act (SSA) deprives individuals residing “outside the United States” for more than thirty consecutive days from receiving benefits under the SSI program. The federal Social Security website defines the term “United States” to mean “the 50 States and the District of Columbia.” This classification reflects the double constitutional standard created in the Insular Cases that justifies providing a lower level of constitutional protection to Puerto Ricans and residents of United States territories. The territorial incorporation doctrine, a framework with no constitutional basis that continuously treats residents of U.S. territories as second-class citizens, is obsolete and useless.
In Vaello Madero, Justices Neil Gorsuch and Sotomayor both expressed hope that the Court will stop relying on the “misguided framework” of the Insular Cases when interpreting the Constitution and deciding what rights apply to the territories. Despite voting with the majority, Gorsuch affirmed in a concurring opinion that “he Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.”
Sotomayor, in her strong dissent, denounced the decision as “especially cruel” because Puerto Rico has a disproportionately large number of people who are elderly and/or disabled and 43.5 percent of residents live below the poverty line. In her words, “there is no rational basis for Congress to treat needy citizens living anywhere in the United States so differently from others.”
It’s time the Insular Cases and the territorial incorporation doctrine become a relic of the past. For now, that seems unlikely. A case that could have achieved such a laudable outcome was, unfortunately, recently denied review by the Supreme Court, without any dissents to the denial. The petitioners were Utah residents born in the U.S. territory of American Samoa who argued that Congress’ classification of American Samoan residents as U.S. “nationals” as opposed to citizens violated the citizenship clause of the Fourteenth Amendment. Plaintiffs prevailed at the District Court, yet the Tenth Circuit of Appeals reversed that decision, in part because of the discriminatory framework of the Insular Cases. For that reason, one of the questions presented in Fitisemanu v. U.S. that the Court declined to address was whether the Insular Cases should be overruled.
Another case pending at the Supreme Court also asks the Court to overrule the Insular Cases. Federación de Maestros de Puerto Rico v. Financial Oversight and Management Board (FOMB) was filed on behalf of several teachers’ associations against the FOMB, the fiscal board created and imposed on Puerto Rico in 2016 by the Obama Administration. These associations are disputing the Board’s amendment of teacher retirement plans (including eligibility requirements) as part of the FOMB’ statutory mandate to create a plan of adjustment to resolve Puerto Rico’s debt. The petitioners describe this as an impermissible power to affirmatively legislate on the Board’s part. We will see if the Court takes up this case.
The effects of the Vaello Madero decision are devastating. It is abominable for the United States to discriminate with respect to federal benefits against the neediest of its own citizens. Civil rights advocates will continue fighting for the Insular Cases to be overruled, for legislation to be passed supporting parity in federal benefits to residents of the territories, and to ensure that Puerto Ricans in the archipelago are treated as equal citizens, with the respect and dignity they deserve.
Lía Fiol-Matta is a Senior Counsel at LatinoJustice PRLDEF where she focuses mostly on legal issues related to her native Puerto Rico. Lía also has an extensive background in union-side labor law and is a proud alumna of CUNY School of Law (’03). [...]
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November 2, 2022Blog / UncategorizedFlorence Otaigbe
As an immigration attorney, I have worked with people from many different backgrounds. Anyone can be an immigrant. However, whenever I see mainstream advocacy and media regarding immigration, I rarely see Black migrants. According to the International Organization for Migration, migrant is defined in part as the following:
“An umbrella term, not defined under international law, reflecting the common lay understanding of a person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons.”
Migrants include refugees, asylum seekers, forcibly displaced persons, and those who leave their countries for a variety of reasons, such as finding work or going to school. What it does not say is that a number of these people leave their home countries out of necessity rather than choice. While people are leaving their homes in search of a new life, the current structure of the immigration system, particularly in the United States, subjects them to unthinkable harm and distress. This is largely because of how borders operate and punish people for simply trying to go to another country.
Here is just a snapshot of what Black migrants have been experiencing in the last few years:
Eighty to ninety Cameroonians were deported on two flights in 2020, a flight in 2019, and one in 2021. Upon arrival in Cameroon, these individuals were subject to grave danger and harm.
Nearly 26,000 Haitians were deported between January 1, 2021, and February 2022. Since then, deportations to Haiti have continued, with deportations in May 2022 totaling around 4,000 Haitians on 36 different flights.
Last year’s inhumane, abusive treatment of Haitians in encampments in Del Rio, Texas (near the U.S.-Mexico Border), which included border patrol officers on horseback chasing Haitians returning to the camp in Del Rio after getting food in Mexico.
Title 42, a section of U.S. federal code that regulates public health, allows the government to deny entry of immigrants into the country for so-called public health reasons. In March 2020, former President Trump invoked this authority—for the first time ever since its creation—to prevent many asylum seekers and migrants from entering the United States. Title 42 has had a “particularly devastating impact on Haitians, who have been expelled en masse without being screened for their fear of harm in Haiti despite ‘obligations under both domestic and international law that prohibit return of individuals to persecution and torture.’” A recent federal court ruling stopped the Biden administration from ending this Trump-era policy.
Cameroon’s current conflict started in 2016, but it was not until this year on April 15, 2022, that the Biden Administration designated Cameroon for Temporary Protected Status (TPS). Compare this to Russia declaring war on Ukraine on February 24, 2022, and the Biden Administration designating Ukraine for TPS on March 3, 2022. In late April, U.S. Customs and Immigration Services rolled out Uniting for Ukraine, a program that provides Ukrainian migrants with a financial sponsor in the U.S., a key hurdle for migrants seeking temporary residency.
In July 2022, border officials believed there were up to 15,000 asylum seekers in Ciudad Juárez, Mexico, many of them Haitian. If you are only following mainstream news and immigrants’ rights advocacy efforts (campaigns, reports, etc.), you would not know about this. Fortunately, there are a number of Black migrant-led organizations who are at the forefront of this work for all Black migrants, e.g., Haitian Bridge Alliance, Black Alliance for Just Immigration (BAJI), UndocuBlack Network, and Black LGBTQIA+ Migrant Project. However, unless you have heard of these organizations or intentionally seek them out, you might not know about all the good work they are doing for Black migrants.
This is something that needs to change. Immigrant rights organizations that are regularly in the public eye need to promote Black-migrant led organizations while also naming the experiences of Black migrants in their work.
These have all been major events that hit mainstream news cycles, but when was the last time you heard updates about any of these situations? The news has moved on to the next attention-grabbing headline, but past stories no longer in the news does not mean the issue has been resolved. Many Black migrants are still being deported or detained at alarming rates. Between 2020 and 2022, the percentage of Haitian families detained by U.S. Customs and Immigration Enforcement (ICE) increased from 29 percent to 44 percent. According to the Refugee and Immigrant Center for Education and Legal Services (RAICES), “the U.S. has consistently detained more Haitian families in 2020 than any other nationality.”
Knowing the numbers and what is beyond the news is sometimes what makes it difficult to be an immigration lawyer, because I know Black migrants need us (myself included). I can confidently say that representation and support of the Black migrant community is not at the forefront of the immigration law field within the Non-Profit Industrial Complex (NPIC). The NPIC cares more about assisting the “good migrant.” The good migrant has not had any criminal interactions. The good migrant came here “the right way.” The good migrant is here to educate themselves and to pull themselves and their family “up by their bootstraps.” The good migrant often doesn’t include Black migrants due to how criminalization intersects with immigration.
On the other hand, the “bad migrant” may be someone who has had interactions with law enforcement. They may be seen as someone not contributing to society “positively.” As previously mentioned, criminalization of Black migrants is far too common. According to the ACLU, “despite only making up around seven percent of the non-citizen population, Black immigrants represent over 20 percent of those in deportation proceedings on criminal grounds.”
In my experience, their cases usually fall at the intersection between criminal and immigration law (a.k.a. crimmigration). As a result, there is a more “complex” case, and it is likely a legal services organization will not be able to take the case because of terms set by their grants. I have seen this play out in real time. I have been in a position where out of maybe about 20+ cases, I only had two Black clients.
This is a major issue in the field of immigration law, and it cannot continue. How are we helping those who are most in need if we are excluding those from a group that are vulnerable due to their marginalization at the intersection of multiple identities? Being Black in the U.S. already sets up people for profiling, discrimination, hate, etc. When you add in being an immigrant, it is a challenge like no other. Anti-Blackness is rampant throughout the United States’ immigration system, and if no one is looking at policy changes and announcements with a critical lens, it could continue to go unnoticed.
This filters into the law enforcement dimension of immigration, where you find alarmingly high numbers of Black migrants being detained and/or deported. Many might think of immigrant detention as something separate from incarceration, but it is fully part of the United States’ mass incarceration system, as the Black Alliance for Just Immigration laid out in their report:
“The data further reveals that Black immigrants are more likely than the overall immigrant population to be detained for criminal convictions than immigration violations. While within the immigrant population, individuals are 3.5 times more likely to be detained for an immigration violation than a criminal conviction, the reverse is true for Caribbean immigrants in particular, who are almost twice as likely to be detained for a criminal conviction than an immigration violation. African immigrants, a greater percentage of whom are recent arrivals than Caribbean immigrants, are twice as likely to be detained for an immigration violation than a criminal conviction.”
The rate at which Black migrants are being detained is unconscionable, and it is interesting that over the years, especially in summer 2020, there have always been calls for racial justice. However, these conversations do not always include immigrants. There is no reason why people should be saying Black Lives Matter and fighting against conditions in prisons and jails but not saying anything about the detention centers that are across the United States. Between 2003 and 2015, Black immigrants made up 10.6 percent of all immigrants in removal proceedings despite comprising just 5.4 percent of the unauthorized population in the United States and 7.2 percent of the total non-citizen population. Further, more attention needs to be paid to the criminalization of Black migrants as well given that this is what could land them in removal proceedings or detention centers. BAJI’s report points out that of the 235,413 people who were removed in 2015, 59 percent had a criminal conviction.
With data like this, it goes without saying that Black migrants need us. When I say us, I mean public interest lawyers. If you are doing immigration law at a non-profit, how many Black clients have you had? If you are doing criminal law, how many Black immigrants have you represented and had the opportunity to advise or to connect with someone who can advise about the immigration consequences of their plea? If you are in housing, family, or any other civil practice, would you know what to do if you had a client who is a Black immigrant? Would you understand the impact of their immigration situation on their daily life?
Moreover, I am sending a Batman signal to my fellow Black immigration attorneys! We are needed now more than ever—especially those of us with a social justice and movement lawyering lens. While we might not be able to support Black migrants through our daily work, there are many Black-migrant led organizations that could use us as volunteers or pro bono attorneys, sources of knowledge, support, and more. Imagine what could happen if there was more legal support from not just other Black attorneys, but attorneys who are Black immigrants themselves. We would likely see different outcomes because of the impact of representation.
Ultimately, I write this post with nothing more than a call to action in mind. We need to show up for Black migrants now. There are many ways to do so, but they must support the work that is already being done. There is no need to reinvent the wheel, and we should all follow the lead of those who are directly impacted. As I close, I am thinking about a quote from the Combahee River Collective’s 1977 statement: “If Black women were free, it would mean that everyone else would have to be free since our freedom would necessitate the destruction of all the systems of oppression.” This lens also applies to immigration. If we center and advocate strongly for Black migrants, the wins achieved through that lens will only benefit all migrants (no matter where they are from) even more.
*Note: If you are interested in providing financial support to Black migrant-led organizations, please check out the Black Migrant Power Fund where your donations will go directly to a number of amazing organizations which you can also see listed here.
Florence Otaigbe is an Immigration Staff Attorney at Church World Service (Jersey City) and a CUNY Law alumna (’20). She is currently providing legal services to Afghan parolees who arrived during last year’s evacuations from Afghanistan. [...]
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October 18, 2022Blog / Dobbs / UncategorizedAmanda Allen
On June 24, 2022, the U.S. Supreme Court overruled a half century of precedent with its decision in Jackson Women’s Health Organization v. Dobbs. The Dobbs ruling eliminated the constitutional right to abortion and has had immediate, devastating impacts on the ground. One of the focuses of The Lawyering Project since Dobbs has been to advise abortion providers, abortion funds, and practical support organizations on the risks involved in continuing to provide care—and support patients accessing care—in this increasingly hostile environment. Our perspective on the catastrophic impacts of this ruling on the ground is based on our partnership with these groups.
Abortion funds and practical-support organizations
One of the most insidious—and intentional—impacts of Dobbs is to sow fear and confusion as to the legal rights of people who support those seeking abortion care. Abortion funds and practical-support organizations are charitable organizations that provide financial assistance to people who cannot afford the cost of their abortion, as well as logistical support, such as helping make travel arrangements, booking hotel rooms, and providing information, referrals and resources. Pre-Dobbs, these groups primarily focused on helping abortion seekers obtain care in their state or region; post-Dobbs, these groups quickly pivoted to become makeshift out-of-state travel agents (in ban states) while weighing the legal risks to their organizations and its staff and volunteers (in all states).
As of now, no state prohibits helping prospective abortion patients get the care they need in a state where abortion is legal. Yet callers to abortion funds are confused, scared, and worried about being thrown in jail. Abortion fund staff and volunteers are afraid, too. Now that abortion is criminalized in many states, they fear baseless prosecution for “aiding and abetting” an abortion by supporting a client traveling to a state where abortion is legal. Compounding matters, the legal landscape shifts on a daily basis in some states, with injunctions against abortion bans being lifted and reinstated at a dizzying pace. For example, Louisiana’s so-called “trigger bans” have taken effect three times only to be blocked in a matter of weeks post-Dobbs.
Some abortion funds immediately ceased operations after Dobbs, deeming these risks too significant to continue providing services. Assistance to people seeking out-of-state abortions is not illegal, but the hostile legal landscape creates a palpable chilling effect. As a representative from a shuttered fund in Texas said, “We need to keep ourselves and our communities safe. It’s painful in so many ways, but we know that our safety comes first.” In making these difficult decisions, abortion funds take into account how their staff and volunteers’ identities, including race, socioeconomic status, gender, sexuality, and immigration status, may also have bearing on the likelihood that they will be reported, charged, and convicted. In describing one abortion fund’s decision-making amidst this very real threat of criminal charges, a representative explained that “we are also aware that we have a very racist criminal justice system we can’t ignore that.”
Again, no state law currently bans providing the kind of support offered by abortion funds and practical support networks. And there are good legal arguments to be made that supporting abortion patients in obtaining care in states where abortion remains legal is a constitutionally protected activity under a variety of legal theories, including the First Amendment, the right to interstate travel, and the dormant commerce clause. Still, it is understandable that abortion fund workers would not want to risk their freedom or financial ruin by having to defend themselves in the same unjust legal system that just took away a constitutional right and abandoned 50 years of precedent.
Abortion seekers
The devastating impacts of the Dobbs ruling on people seeking abortion care, barely more than one month after the decision came down, are already well-documented. People are driving hundreds of miles to obtain care. One abortion fund in Colorado reported helping people from as far as Florida to get care in their state. Thirty percent of one Minnesota abortion clinic’s patients travel from Texas. These days-long trips require not only a reliable car or an expensive flight, but also for people to arrange for time off from work and child care, and to raise the funds needed for the procedure and travel expenses.
Not only will patients in states that have banned abortion face difficulties, but even those in states that protect abortion access will feel the ripple effects of Dobbs. Access state residents, too, are feeling the ripple effects of Dobbs. The New York Times reported a recent study showing that in cities with abortion access near states with abortion bans, wait times have already started to get longer, with nearly a quarter of these clinics booking appointments more than three weeks out. Just days after the decision came down, a New Mexico clinic reported wait times of four weeks; wait times at one Illinois clinic near the Missouri border ballooned from one to two days pre-Dobbs to three weeks post-Dobbs.
One of the most sinister aspects of the Dobbs ruling is that banning abortion forces people to obtain abortion care later in their pregnancies—something abortion opponents have demonized for decades. While abortion care at any gestational age is safer than childbirth, longer delays mean people will obtain abortion care later in their pregnancy, which increases the procedure’s cost, complexity, and health risks. The landmark Turnaway Study also shows that being denied abortion care altogether results in worse financial, health, and family outcomes. These include an increase in household poverty, higher likelihood of life-threatening health complications and exposure to intimate violence, and negative impacts on the children a pregnant person already has.
Abortion providers
A recent study showed that, just one month post-Dobbs, 43 abortion clinics shuttered, causing untold damage to these clinic workers’ careers and livelihoods. But state providers, particularly those located close to ban states, are also hard-hit by Dobbs. Increased volume at these clinics has meant that abortion providers in access states are strained. Staffing shortages and burnout affect clinics’ ability to meet this crushing demand, and clinic staff’s mental health is suffering under the weight of helping patients navigate barriers to care.
What’s clear is the public health crisis created by Dobbs is not just a “red state” problem. Dobbs will not eliminate the need for abortion in the states enforcing abortion bans; rather, millions of people will try to travel to access it. This will only lead to increased delays for people seeking abortion care in both ban states and access states, potential legal risk, and clinics hanging on by a thread. Countless others, including young people and people with low incomes, will be unable to travel, or will decide crossing state lines presents too many legal risks, such as undocumented people. But for those who enabled this unjust system, creating chaos, uncertainty, and hardship for abortion providers, seekers and supporters is not a bug—it’s a feature.
The highest court in our land has eviscerated the rule of law and the concept of fundamental fairness in the judicial system—not just by overturning decades of precedent in Dobbs, but through years of rulings that have steadily gutted protections for criminal defendants, the environment, and voting rights, just to name a few. Those of us who want a legal system that protects the most vulnerable among us have to be in this fight for the long haul.
Social justice lawyers looking to play a role should invest their time and energy in organizations at the state and local level that have been doing this hard work on the ground for years, if not decades; listen and learn from leaders who have lived experiences with the injustices they seek to rectify; and, above all else, never give up. Our opponents have worked for decades to eliminate the right to abortion and to devastate other civil and constitutional rights. Restoring our rights and freedoms will require the same level of tenacity and endurance.
Amanda Allen is the Senior Counsel & Director at The Lawyering Project and an alumna of CUNY Law (’08). [...]
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September 9, 2022Blog / UncategorizedPeggy Cooper Davis, Aderson Francois, and Colin Starger
Content warning: this article quotes a decision that includes the n-word.
Dixie is a song with a complicated history. Versions of it were sung by both Confederate and Union troops during the Civil War. Historian Karen Cox carefully documented the song’s lingering popularity and its mixed social and racial signaling in Dreaming of Dixie. Over the years – and for reasons that are not entirely clear – “just whistling Dixie,” a slang expression based on the song, came to stand for bravado without follow-through. A seemingly overblown statement might cause listeners to wonder whether the speaker was speaking truth or “just whistling Dixie.” A threat might cause listeners to wonder whether the speaker was actually dangerous or “just whistling Dixie.”
Here is the gist of the Confederate Narrative as it was famously told in United States v. Cruikshank, the post-Civil War Supreme Court decision that squelched the federal government’s authority to prosecute racial and political violence:
Before the United States became a nation, each of thirteen groups of the People surrendered their powers, to one of thirteen states. When the Union was formed, those states surrendered a very limited number of their powers to the Union. Powers not surrendered to the Union were exclusively reserved to the several states. Each state serves the People by carefully guarding those reserved powers to itself.
And here is how the Confederate Narrative structures the majority opinion in Dobbs v. Jackson Women’s Health. The opinion describes the issue before it as such: “he State ’s primary argument is that we should. . . once again allow each State to regulate abortion as its citizens wish.“
After elaborate discussion, the opinion concludes that Roe and Casey “arrogated” the authority of “the citizens of each State” to regulate or prohibit abortion, and so the majority justices “overrule those decisions and return that authority to the people and their elected representatives.” In each case, the power of the states is capacious; the power of the federal government is closely limited, and the power of the people is subsumed within that of the states.
The Confederate Narrative Eclipses the People
How is it that the rights of the people of the United States are made to appear subsumed in a story of states’ rights? As we will show, it happens because of a compromise with slaveholding interests that led to the omission of people’s rights in the language of our original Constitution. And it happens because of a rhetorical trick designed to denigrate the Reconstruction Amendments’ measures to undo that compromise. Let us explain.
In the declaration of their independence from Britain, the soon-to-be United States announced fidelity to the “self-evident” truths of human equality and human entitlement to life, liberty, and the pursuit of happiness. But as the new nation formed its constitution, fulsome commitments to human liberty and human equality were not feasible. Why? Because human slavery was central to the wealth and productivity of the former colonies.
At the nation’s founding, enslaved people were, and had to remain, unequal in the eyes of law and deprived of rights otherwise thought to be inalienable, such as the right of reasonably limited self-governance; the right of political participation; the right to work under chosen terms; the right to travel; the right of partnership choice and family recognition; the right to choose when and whether to procreate; and the rights of custody and guardianship of one’s children.
As a result, these rights were not explicitly protected against infringement by the states. The subsequent addition of a Bill of Rights arguably extended some of these rights to all people, but the Bill of Rights bound the federal government only. It did not bind the states, and it did not guarantee equal protection of the law.
The constitutional compromise with slavery was to have been undone after the Civil War. Union victory promised what Abraham Lincoln called “a new birth of freedom.” The words of the Declaration of Independence were finally to be enforceable as the nation made a belatedly unequivocal commitment to human equality and to full protection of a core of inalienable rights. The Constitution was amended to solemnize that commitment: slavery was outlawed; citizenship and its privileges became rights of birth on United States soil or of naturalization; each person was assured equal protection of the law, and all people’s life, liberty and property were safeguarded against unreasonable deprivation.
The post-Civil War constitutional commitment to a new, national birth of freedom has consistently been undermined by the embrace of what we call the Confederate Narrative. The narrative can be understood as telling this story:
The Thirteenth, Fourteenth and Fifteenth Amendments were the work of overly zealous and vindictive Unionists who wished to punish Confederate states’ rebellion and amplify federal power. In haste to do those things, the drafters wrongfully put aside states’ rights principles that are the Union’s bedrock. Those intemperate Amendments must be read narrowly to preserve the autonomy of states and to temper the central government’s thirst for power. Reading the Amendments with an eye to protection of states’ rights is the surest way to protect the rights and freedom of the People.
As you might have noticed, the final sentence of the Confederate Narrative is a non sequitur: The rights of a state do not always align with the rights of all its people. Therein lies the rub.
The Confederate Narrative is not gospel. The story of post-Civil War constitutional reform can be told differently. We might reframe this history with the following:
The Thirteenth, Fourteenth and Fifteenth Amendments were the death knell of slavery and slaveocracy. They were the work of people who understood that human slavery had poisoned the United States polity — people who had endured Civil War carnage to end slavery and protect human freedom. These Reconstruction Amendments were a belatedly full embrace of the proposition that all people are created equal and endowed with rights that include life, liberty, and the pursuit of happiness. They enabled an egalitarian, multi-racial and fully democratic polity of free citizens.
Some might call this the Union Narrative. We have called it the People’s Narrative because its principal agents are the people of the re-United States, and in it the rights of the People are not subsumed.
The Confederate Narrative Disrupted Reconstruction
The Confederate Narrative was important in draining northern enthusiasm for nurturing Reconstruction’s experiment in multi-racial and egalitarian democracy. It helped sustain an image of a war-battered South worthy of sympathy and an image of the Civil War as an unfortunate but fully resolved battle among White brothers who had reconciled with mutual respect. Working in the background to shape implicit assumptions, the Confederate Narrative supported decisions to withdraw Union troops from the former Confederate states and cede control of those states to “Redeemers” professing to restore noble southern values, but bent on the resumption of White supremacy. It also worked — and it continues to work — to undermine the Reconstruction Amendments’ protections of free citizenship.
To take just one example, the Confederate Narrative had an early and stunning effect in shaping the logic of cases concerning the federal government’s power to outlaw and punish Redeemers’ racially and politically motivated violence. The 1872 case of Blyew v. United States involved two Kentucky White men who allegedly were concerned about the possibility of another war “over niggers” and set out to kill some. They were said to have hacked six members of a Black family with axes, four of them to death. State court convictions were precluded because the Black witnesses to the killings were ineligible to testify against White people in Kentucky courts.
Relying on Reconstruction legislation meant to remove cases to federal courts when justice could not be had in state courts, federal prosecutors indicted and convicted the men. The defendants appealed, arguing that the federal government did not have the authority to commandeer the prosecution of an ordinary criminal case. To the tune of the Confederate Narrative, they signaled that the Court’s decision would “influence. . .the destinies of the country” beyond the Justices’ lifetimes by “draw the line of demarcation between the powers of a great central government on the one hand and the local rights of self-government retained to the States and the People on the other.” The Supreme Court overturned the defendants’ convictions, but it did not address the clash between federal and state power. Instead, it decided the case on the basis of a technicality.
Federal efforts to prosecute Redeemer violence continued, and the accused continued to sound the Confederate Narrative in order escape punishment. They were successful. The classic articulation of the narrative came in Cruikshank, a Reconstruction era case involving federal attempts to prosecute perpetrators of the mass murder in Colfax, Louisiana, of Black people who were attempting to assume political control they had won with the ballot. Once again thwarting the federal government’s authority to prosecute racial and political violence, the Court gave a full-throated rendition of the Confederate Narrative. It went something like this:
efore the Union was formed, the People granted power to the various states. In 1787, the States surrendered very limited powers to a federation. Powers not surrendered to the federation remain exclusively with the states, and the states serve the People by carefully guarding their reserved powers.
For this oft-repeated theory of state sovereignty, the Court cited just one case and the Preamble to the Constitution.
The Confederate Narrative Continues to Sound
The Confederate Narrative remains potent in the 21st century, serving as a seemingly neutral justification for inhibiting federal authority to protect individual and human rights. We offer just a few examples. In the year 2000, the Supreme Court invalidated provisions of the Violence Against Women Act on the ground that they exceeded federal authority to protect the civil rights of women. It relied on 19th century cases that stifled federal efforts to protect freed people. It intoned the Confederate Narrative’s questionable premise that decentralization of power is the People’s best protection against tyranny, by saying, “the Framers crafted the federal system of Government so that the people’s rights would be secured by the division of power.” And it cautioned against blurring “the boundaries between the spheres of federal and state authority.”
One would think that those who espouse state stewardship of the People’s rights might take special care to protect voting rights. After all, if the People are to be protected by their local elected representatives, the People should have full voice in electing those representatives. Not so. In 2012, federal protection of voting rights was limited by the Supreme Court’s invalidation of key provisions of legislation designed to protect access to the polls. These voting rights measures were invalidated to the tune of the Confederate Narrative as extraordinary interferences with States’ rights of equal sovereign power.
When the Court voted to ensure marriage equality for sexual minorities, each of the dissenters from the Court’s result also relied on the Confederate story that the People’s rights are best protected by protection of States’ rights. Justice Roberts decried “stealing” decision-making about same-sex marriage rights from “the People” and “from the hands of state voters,” and accused the majority of accumulating power at “the expense of the people.” Justice Scalia accused the majority of robbing the People of the liberty to govern themselves. Justice Thomas charged the majority with “wiping out with a stroke of the keyboard the results of the political process in over 30 States,” and Justice Alito accused it of usurping “the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.”
This brings us back to where we started: Dobbs. It is unsurprising that the majority justices in Dobbs echoed the Obergefell dissenters in their insistence that a question of human liberty be decided by state legislative bodies. As we have said, Justice Alito, writing for the Court, framed the issue presented by the Mississippi statute as a matter of returning the question of abortion choice to the control of the People’s local representatives.
The opinions of Justices Kavanaugh and Thomas also read from the Confederate Narrative playbook. Justice Kavanaugh declared that “the Constitution is neutral and allows the people and their elected representatives to address the issue through the democratic process.” He seems to forget that the People and the legislative branches are distinct entities and that the People have spoken through a constitutional amendment to protect their liberty against state power and to protect themselves equally. Justice Thomas also conflated the People and the legislative branches when he declared that “substantive due process exalts judges at the expense of the People from whom they derive their authority.”
The Confederate song of Northern intemperance and bitterness has faded, but the Confederate melody of states’ rights at the expense of human liberty lingers on. We cannot ignore or pretend that the Court is not “whistling Dixie.”
Peggy Cooper Davis is a Professor of Law and the Shad Professor of Lawyering and Ethics at New York University School of Law.
Colin Starger is a Professor of Law and Associate Dean of Academic Affairs at the University of Baltimore School of Law.
Aderson Francois is a Professor of Law, the Anne Fleming Research Professor, and the Director of the Institute for Public Representation Civil Rights Law Clinic at the Georgetown University Law Center. [...]
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June 29, 2022Blog / UncategorizedBy Cynthia Soohoo
Justice Alito’s decision overturning Roe v. Wade and Planned Parenthood v. Casey marks a watershed shift in the way that the country treats people who are pregnant versus an “unborn life.” By stripping constitutional protection from the decision to have an abortion, Dobbs v. Jackson Women’s Health Organization equates pregnant people’s right to control their bodies and the state’s interest in protecting prenatal life.
Without a recognized constitutional right to abortion as a backstop, Dobbs specifically paves the way for states to impose their theory of when a human life begins and push for recognition of personhood for fetuses, embryos, and zygotes. Not only will this result in some states banning abortion from conception and treating abortion as homicide, it also threatens some forms of contraception and in vitro fertilization (IVF).
One recurring theme in Alito’s majority opinion and Justice Kavanaugh’s concurrence is that there are “two sides” with strong views on abortion. The argument goes that because there are strong opposing opinions on abortion, the issue should be left “to the people and their elected representatives” with individual states (or Congress) determining how to value prenatal life verses the rights of pregnant people. While there is superficial appeal to the “two sides” argument, it improperly equates one group’s beliefs about when human life begins with the concrete harms imposed on pregnant people.
It also obscures the real issue. We don’t all get a vote on what happens to someone else’s body. As Justices Breyer, Kagan, and Sotomayor write in the joint dissent, “when it comes to rights, the Court does not act ‘neutrally’ when it leaves everything up to the States. Rather the Court acts neutrally when it protects the right against all comers.”
Cleverly cloaked in originalist arguments and claims about democracy and judicial neutrality, at bottom, the Dobbs decision is about the expansion of state power and control. Alito admits as much when he criticizes Roe and Casey for allowing “States less freedom to regulate abortion” than in other countries. (emphasis added). Alito’s opinion gives states enormous power to use a belief about when human life begins to take dominion over a person’s body, forcing them to endure a pregnancy, give birth, and become a parent.
The Disappearing Rights and Shrinking Personhood of Pregnant People
Recognizing the fundamental liberty at stake in the abortion decision, the Supreme Court explicitly rejected the “two sides” argument 30 years ago in Planned Parenthood v. Casey. In doing so, the Court carefully considered how to balance the state’s interest in protecting prenatal life and the individual liberty and autonomy rights at risk. While the Court eliminated the trimester framework established in Roe, giving states more power to regulate abortion to protect fetal life, Casey emphasized that a pregnant person must retain the ultimate decision of whether or not to continue a pregnancy. Until the Dobbs decision, this meant a state could not ban abortion outright or impose regulations that impose an undue burden prior to fetal viability.
To justify scrapping Casey’s careful balancing of individual rights with government interests, Alito’s opinion scrupulously avoids any serious discussion of the rights of pregnant people or the implications of allowing the government to impose forced pregnancy. Instead of recognizing that allowing states to ban abortion imposes a real and substantial harm, Justice Alito downgrades the fact of a state’s invasion of a pregnant person’s liberty and autonomy to a “feeling” that “regulation of abortion invades a woman’s right to control her own body, and prevents women from achieving full equality.” He then suggests that this “feeling” is on par with the fervent belief “that a human person comes into being at conception and that abortion ends an innocent life.”
Alito also refuses to acknowledge that reproductive autonomy is a basic and fundamental liberty for people with the capacity to become pregnant. Rather than engaging in an honest discussion of what personal liberty requires for a body with a uterus, Alito hides behind a historic reading of the Fourteenth Amendment based on state laws that were passed in the 1860s when women could not vote and were not viewed as persons fully protected by the Constitution.
Paving the Way for Personhood for Zygotes, Embryos, and Fetuses
Even as Dobbs demotes people who can become pregnant from the status of full rights holders, it paves the way for states to promote the rights of zygotes, embryos, and fetuses at the expense of people who will be forced to carry them. (A zygote is a fertilized egg. It becomes an embryo10-12 days after fertilization and a fetus eight weeks after fertilization.) In 1973, Roe explicitly rejected Texas’ argument that the Constitution recognizes the unborn as a “person” with rights protected under the Fourteenth Amendment.
However, as argued in many of the amicus briefs submitted to the Court in Dobbs, constitutionally prohibiting abortion through the recognition of personhood for zygotes, embryos, and fetuses remains a long-term goal for the anti-abortion movement. Alito’s decision will likely encourage these arguments in courts and legislatures.
While the Dobbs decision declines to directly take on the personhood issue, religious and moral views about the status of zygotes, embryos and fetuses creep into the decision’s language and reasoning. Rather than discussing the state’s interest in potential life like past Supreme Court decisions, Justice Alito explicitly imports Mississippi’s belief that a fetus is a human being into the decision’s reasoning. He argues that abortion is different from other constitutionally protected decisions around intimate sexual relations, contraception and marriage, because abortion is a “critical moral question” that involves destroying what the statute describes as “an unborn human being.”
Alito even chides the dissent for imposing their “theory about when the rights of personhood begin” for adhering to the Roe and Casey standard. Alito’s criticism reveals his own assumptions about fetal life as he bemoans that under the Roe/Casey standard, states were prohibited from recognizing a fetus’ “most basic human right – to live” prior to viability. (emphasis added).
For now, Alito claims that the Dobbs decision “is not based on any view about if and when prenatal life is entitled to any of the rights enjoyed after birth.” But even absent the Court’s explicit recognition of rights for prenatal life, Dobbs opens the door for states to do so without constitutional restraints. Roe recognized that there are widely divergent views on when life begins and held that the state cannot “adopt[] one theory of life override the rights of the pregnant woman.” In order to prevent this outcome, Roe and Casey explicitly declined to adopt a theory of when life begins, but recognized fetal viability as the point at which the state’s interest in fetal life rose to the compelling level necessary to justify banning abortions.
This meant that while states could pass laws protecting prenatal life prior to viability,the constitutional rights of pregnant people to liberty and bodily autonomy limited how far the state could go. Now that Dobbs has stripped away this constitutional protection, a state need only show that a law passed to protect prenatal life bears a rational relation to a legitimate state interest to withstand judicial scrutiny. Further, without the viability line, states can bestow heightened protection and rights to prenatal life at any stage without any consideration about the impact on the bodies and lives of the people who carry them.
What Does Personhood for Zygotes, Embryos, and Fetuses Look Like?
The idea that states may seek to promote legal personhood for zygotes, embryos, and fetuses may seem farfetched. But for decades, states have passed laws to protect and, in some cases, bestow rights onto the “unborn” by recognizing them as human beings or even legal persons. These laws are often referred to as fetal personhood provisions, but the term is a misnomer because the provisions go beyond protecting fetuses and typically protect the “unborn” from conception or fertilization. Personhood provisions vary and include legislative findings, policy statements, and definitions for specific statutes, including criminal homicide laws, and general personhood provisions that purport to apply to all laws in the state.
The idea that the zygotes, embryos, and fetuses are independent human beings is often included as a finding or definition in legislation to justify extreme abortion bans. For instance, in 2019, Georgia passed an act that included both a general personhood provision recognizing unborn children defined as “a member of the species Homo sapiens at any stage of development who is carried in the womb” as “natural persons” under Georgia law and a separate provision banning abortion at six weeks. In 2021, Arkansas passed the “Arkansas Unborn Child Protection Act” and in 2019, Alabama passed the “Human Life Protection Act,” both banning abortion from conception.
The laws cited provisions in their state constitutions adopting policies protecting the life (Arkansas) and rights (Alabama) of unborn children and made legislative findings or defined embryos and fetuses as human beings. Because these laws clearly violated the constitution, they were quickly blocked by the courts and never went into effect. Immediately after the Dobbs decision, a federal court granted an emergency motion dissolving the injunction stalling the Alabama law. Similar motions will likely follow in Arkansas and Georgia.
If we want to understand what laws might look like now that legislatures no longer have to comply with Roe, the abortion bans passed by Alabama and Arkansas, as well as similar bans recently passed by Oklahoma and Louisiana, provide good examples. These laws ban abortion at conception and do not include any exceptions for pregnancies that result from rape or incest.
These measures reflect an absolutist view that embryos and fetuses are human beings that must be protected irrespective of the impact on the people who carry them. International human rights bodies have recognized that forcing a person to continue a pregnancy in such circumstances constitutes cruel, inhuman and degrading treatment. Perhaps reflecting the view that zygotes, embryos, and fetuses are human beings, the laws also impose severe criminal penalties for performing abortions, including sentences ranging from 10 to 99 years and criminal fines ranging from $100,000-200,000.
In addition to explicit criminal abortion bans that will either be triggered, passed, or no longer enjoined now that Roe has been overturned, personhood provisions that already exist in the laws of many states will no longer be limited by constitutional protections for abortion. Many state criminal statutes already define homicide victims to include zygotes, embryos, and fetuses. Dobbs potentially authorizes the use of these criminal homicide statutes to prosecute people who perform abortions.
It is not just abortion that is under threat. As pointed out by the joint dissent, Alito’s cramped, backward-looking reading of liberty places constitutional protection for contraception and same-sex marriage squarely at risk. Justice Thomas explicitly invites reconsideration of Griswold, Lawrence and Obergefell in his concurrence. But even absent further unravelling of constitutional precedents, the Dobbs decision opens the door for attempts to ban forms of contraception that may prevent implantation of a fertilized egg based on embryonic personhood claims. Laws banning or limiting IVF to prevent the creation of embryos that are not implanted will also become more prevalent.
Since 1973, Roe v. Wade prevented the state from imposing its views about the value of prenatal life and the role of women in society on individuals. While Casey expanded states’ ability to regulate abortion, it recognized that prior to fetal viability the state’s interest in prenatal life cannot override “the urgent claims of the woman to retain the ultimate control over her destiny and her body.”
Together, Roe and Casey placed important limits on state power. By stripping away constitutional protection for abortion and erasing the viability line, Dobbs v. Jackson resets the constitutional balance between pregnant people and the claims that the state can make on their bodies on behalf of prenatal life. In doing so, it opens the door for zygotes, embryos, and fetuses to gain rights even as pregnant people lose them.
Cynthia Soohoo is a Professor of Law and the Co-Director of the Human Rights and Gender Justice Clinic at CUNY School of Law [...]
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April 9, 2022Blog / Student ContributionBy Emma Mendelson
The pandemic left many poor and working-class people in precarious financial positions. The federal government attempted to alleviate some of these financial burdens through Economic Impact Payments (“EIP”) providing people with three stimulus checks in 2020 and 2021. As paltry and unrealistic as these payments were (a maximum of $1,200, $600, and $1,400 for households of one, $2,400 for a married couple, and up to $500 additional for each qualifying child) in supporting the financial loss felt by many, it was at least an act meant to mitigate some of that burden. However, this caused some unforeseen damage to recipients of Supplemental Security Insurance (“SSI”).
SSI is a benefit administered by the Social Security Administration (“SSA”). To qualify, an applicant needs to either have a disability or be over the age of 65, and have a resource limit of $2,000 (or $3,000 if you are part of an eligible couple). Unlike Social Security Retirement or Social Security Disability Insurance, SSI does not have a work history requirement, which allows populations without robust work histories, like later-in-life immigrant communities, to access some kind of financial benefit. The payments are maximum $861 a month for an individual and $1,261 for a couple. This means that a beneficiary is stuck in a cycle of poverty, never allowed to save more than $2,000 (with an exception for Achieving a Better Life Experience (“ABLE”) accounts that allow beneficiaries with disabilities to save up to $100,000 for medical related expenses) and living month-to-month on subsidiary-level cash benefits. When benefits are terminated for even one month, it can begin a ripple effect of financial burdens; for example, missing rent payments or an inability to pay medical bills that not only cause significant stress for the beneficiary but can have disastrous outcomes like homelessness or death.
Because the SSA is such a large organization and they are unable (thankfully) to see into the details of every beneficiary’s bank account, when the EIPs were direct deposited into their accounts, the Agency would merely see this as a violation of the resource limit allotted to beneficiaries. Ordinarily, tax benefits are not supposed to count as income or resources within a year of their receipt, and because this is an IRS benefit, the EIPs are supposed to be excluded as well. But even with this being established in the SSA, this has not stopped beneficiaries from having their benefits suspended or getting “overpayment” penalties if they received benefits in the same month that they received the EIPs.
This is just one in a series of ways SSI beneficiaries have experienced exorbitant hardships during the pandemic. Since March 17, 2020, SSA field offices have closed and benefits were administered remotely. This often left older recipients, who make up a large percentage of SSI recipients, without the necessary technology skills or someone to assist them to file claims or appeals online, resulting in “fewer lower-income seniors benefits.” Many others lost their benefits, or faced reductions in their benefits, due to difficulty with navigating the bureaucratic process. The SSA has also been difficult to reach. There was a mail backlog and beneficiaries, or their advocates, often had to call field offices multiple times in a row after experiencing “long delays,” hang ups, or transfers to voicemail boxes. Even when the SSA makes attempts to create rules and policies that assist beneficiaries, such as creating easier waiver processes for overpayments or retroactively excluding all unemployment insurance benefits, beneficiaries are not adequately informed of these changes. In many cases the damage was already done, and the recipient suffered from financial strain. This resulted in a class-action lawsuit, filed in September 2021, to challenge the SSA’s “unfair, ill-considered, and arbitrary pandemic policies.”
The challenges beneficiaries experienced during COVID-19 are not isolated to the pandemic. SSI beneficiaries are also subjected to outdated benefits laws and inefficient SSA practices that prevent benefits from being restored swiftly. As mentioned above, the $2,000 resource limit keeps beneficiaries in a cycle of poverty. “Congress has failed to update the program for decades,” and the outdated resource limit is not in step with the ever-increasing cost of living. There have been recent pushes in Congress to reform SSI to keep beneficiaries out of the cycle of poverty. In July 2021, Senator Sherrod Brown from Ohio re-introduced the Supplemental Security Income Restoration Act (“SSI Restoration Act”) in Congress. The SSI Restoration Act would raise the 2021 limit of “$794 to 100% of the federal poverty limit,” increase the resource limits, and increase allowed income, among other substantive improvements. The bill is backed by other senators including Bernie Sanders, Elizabeth Warren, Corey Booker, Maize Hirono, and Sheldon Whitehouse, but has not had any significant action since its introduction. However, recent financial disputes in Congress over budget packages could mean SSI reform gets lost by the wayside.
Neglecting SSI reform, especially on the heels of an ever-expanding elder population would contribute to an unprecedented landscape of elder poverty. SSI is often the only source of income for many who receive it (as evidenced by SSA’s strict financial limits), and according to a report from the Urban Institute, reforming these strict financial limits could potentially “lift 3.3 million people out of poverty and cut the poverty rate among SSI recipients by more than half.” The pandemic has only exacerbated the pre-existing inefficiencies of the SSA and their benefit-eligibility process. Substantial reform is needed in order to not only fix the issues that have occurred during the pandemic, but also to create a system that can better support the elder population of the future. [...]
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March 20, 2022BlogBy Elizabeth Stillman, Associate Professor of Academic Support, Suffolk University Law School
Success in law school, like in any form of higher education, requires that students feel a sense of belonging. Belonging “refers to students’ perceived social support on campus, a feeling or sensation of connectedness, and the experience of mattering or feeling cared about, accepted, respected, valued by, and important to the campus community or others on campus such as faculty, staff, and peers.”
Recently (although not recently enough), law schools have increased efforts to make, maintain, and welcome students from diverse and inclusive communities. Some of these efforts, like appointing diversity, equity, and inclusion (“DEI”) deans and administrators and offering scholarships to graduates of historically black colleges and universities (“HCBUs”) have been highly successful, visible, and encouraging. Welcoming a more diverse and inclusive class of students each year is a significant and achievable goal that benefits every member of the legal profession —and everyone else. In Grutter v. Bollinger, Associate Justice Sandra Day O’Connor (the first woman Supreme Court Justice) wrote, “Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”
Yet once students enter law school, is the curriculum truly inclusive? According to the 2020 Law School Survey of Student Engagement (“LSSSE”) “one out of every five (21%) law students who is Native American, Black, or Latinx notes that they do not ‘feel comfortable being myself at this institution.’” Even more troubling, students who are not White men reported that they feel less welcome, valued, and part of the community at law school. Students of color also felt that their schools were less supportive of their racial and gender identities and less likely to create an environment that is free of stigma because of those identities. Essentially, law schools’ doors are open to more diverse student bodies, but those welcomed may be obscured.
In the United States, most law school programs have been shaped by the Harvard method, developed in 1870, in which professors use casebooks as the main text to illustrate points and call on students using the Socratic method. According to Professor Robert W. Gordon:
One of the reasons for the case method’s success (besides its evident pedagogic virtues—it encouraged active rather than passive learning, and it tested that learning through participation in dialogue as well as exams) was that published casebooks gave novice teachers a ready-made, off-the-rack set of teaching materials and method of instruction.
This is still the template for most law school curricula over 150 years later. If law schools are essentially only using cases to teach law, the question then becomes: Which voices are amplified in the law school curriculum? The case method, which primarily involves teaching from casebooks, seems to amplify voices shaping legal theory that were, until relatively recently, made up of almost entirely of White male judges. The Lawyers Committee for Civil Rights Under Lawhas written:
According to the Census, around 40 percent of the U.S. population consists of people of color. However, only around 26.5 percent of active judges in Article III courts are judges of color. The same disparities hold true for gender. Around half of the people in the United States are women, yet they only make up around 33 percent of active judges in Article III courts. The lack of diversity extends beyond the federal judicial courts. The same trends are present at the state level, where only 15.5 percent of judges, as of February 2020, on state supreme courts are people of color.
While the current makeup of the federal judiciary is more diverse than it has been historically, this welcome change has not yet noticeably changed law school curriculum. Presidents Carter, Clinton, and Obama notably appointed more people of color as federal judges. As recently as March 2021, the House of Representatives held a hearing about the importance of diversity in the federal judiciary. President Biden is also, fortunately, doing better than past administrations. But this is not enough. Most seminal law school cases, the ones my students will recite many years later (International Shoe, anyone?), were written by White male judges. However, this is more a self-imposed restriction on resources because there are many ways to increase representation in the curriculum.
Though law school admissions offices are welcoming more diverse and inclusive student bodies, faculty members may be undermining their best efforts by not considering amending their curricula. Betty Leask and Hans de Witt explain how the concept of a “hidden curriculum” may shape the unconscious values and beliefs which determine which content is selected for coverage in the classroom:
The “hidden” curriculum refers to those incidental lessons that are learned about power and authority through the way in which content is selected and activities are organized. It includes lessons about whose knowledge, as well as what types of knowledge, are valued and not valued. The hidden curriculum is shaped by the unconscious values and beliefs which determine what content is selected, how learning outcomes are described and learning activities are organized and what skills and knowledge are assessed.
Hidden curricula in law school courses encompasses more than what happens in the classroom: They influence models of leadership and “lawyer-like” behavior. If what students read in law school come from judges who do not resemble them, then students do not feel welcomed—even if admissions offices have opened the door for an increasingly diverse student body. The student body is the ultimate reflection of who law schools’ value—as institutions with power and authority.
My contribution to shift away from the hidden curriculum my students encounter is using the Creating a Respectful and Open World for Natural Hair (CROWN) Act module as the primary teaching tool in a semester-long course required for students on Academic Warning and/or Probation. The CROWN Act is a law that prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists, or bantu knots. At this time, there are 11 states and 31 municipalities that have codified a CROWN Act.
The first class is an introduction to the CROWN Act through various types of media and showing why there is a need for it. I show several videos like Hair Love. This is a beautiful animated short. There is also a wonderful John Oliver segment on the CROWN Act that is worth the class time. I show videos from our local news to illustrate how this is a real issue in our jurisdiction. In class two, we simulate the Massachusetts state legislature using the CROWN Act bill that was introduced in 2020 after discussing how courts read statutory language. We then spend class three looking at the case law with particular emphasis on an aptly named case, EEOC v. Catastrophe. This case distinguishes between hair styles and natural hair.
Finally, I introduce our simulation, which is an employment case (completely made up) and we attempt to resolve the issue using the Massachusetts Commission Against Discrimination (“MCAD”) process. We read cases that have gone before the MCAD and determine their burdens and standards of proof as well as strategies of proof that seem to work well in similar cases. After this introduction to the topic, law, and procedure, students are tasked with drafting a complaint and writing a supporting memorandum. The intended obstacle students encounter at this stage of the process is that the simulation takes place in Massachusetts and Massachusetts has not passed the CROWN Act bill that we had discussed in class two.
The students in this class represent a more racially diverse class than other classes in law school, which should not be an unspoken truth. This class does not in any way reinvent how we teach the skills/doctrine of how legislation works from the point of the view of legislators and courts or how to draft a complaint for a state agency following that state’s rules. This class reinforces the skill of looking at cases decided at the agency level for critical facts and also provides a comprehensive review of memo drafting that includes rules synthesis and broad analogies. Yet, the most important thing that I teach is how to make a case for a client where there is no statutory law or even good case law, but the discrimination is real. While most of this is standard fare in law school teaching, I hope that the difference is that students will learn something completely new and see an issue that they might have otherwise ignored. I want students to know that there is a gap in our legal system in this space and that we must either bridge it or work around it for our client. Just this revelation—the law as written and practiced is not protective of everyone—is something I don’t think is taught intentionally in our traditional 1870’s era formal curriculum.
My goals for teaching using the CROWN Act are that students feel connected to our client and see that an authority figure at their law school thinks that this is an important, valued, accepted, and respected endeavor. This shifts the hidden curriculum so that when we say we are an inclusive and diverse community; it is even more meaningful because more students can feel that they belong. When everyone belongs, success is a team sport. [...]
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March 1, 2022BlogBy Summer Blaze Aubrey, Esq. LL.M. (Cherokee/Blackfeet) & Patricia Handlin, Esq.
Enbridge, Inc. is a Canadian company that moves oil from the Western Canadian oil tar sands through a pipeline from Alberta, Canada across Minnesota to Superior, Wisconsin on the shores of Lake Superior. Line 3 is new construction that will connect Alberta to Lake Superior along a different route. The pipeline’s route snakes through the wild rice fields of Minnesota, called manoomin or psίᶇ, a sacred food of the Anishinaabe, the Ojibwe and Minnesota Chippewa Tribes, and Dakota Tribes, respectively, and is at the center of their cultural identity, spiritual traditions, and physical and economic well-being. The route crosses the headwaters of the Mississippi River as well as hundreds of other rivers, bodies of water, and wetlands in Minnesota and ends on the shores of Lake Superior just across the Minnesota-Wisconsin border.
Line 3 will carry the same oil that TransCanada, recently renamed TC Energy, Inc., sought to send through the failed Keystone XL (KXL) pipeline—the dirtiest oil on the planet. Tar sands oil is substantially more carbon intensive than other crude oil, and its use will significantly increase carbon pollution affecting global warming. Line 3 would send 760,000 barrels of oil each day through a 36-inch pipe, emitting greenhouse gasses equal to the emissions of 50 coal plants or 193 million tons of (carbon dioxide equivalent) CO2e per year. President Barack Obama denied the presidential permit for construction of the KXL pipeline for this very reason. President Trump subsequently allowed the permit, and President Biden has withdrawn it. Heavy and sticky, tar sands oil will not flow through a pipeline efficiently, so it is mixed with diluents like naphtha, a highly flammable diluent that will severely impact the environment if released. Resulting in diluted bitumen or “dilbit,” this oil will thickly coat and adhere to anything it touches. By its very nature, dilbit undergoes very slow natural degradation, making its impact on the environment even more persistent and permanent. Normal environmental processes, such as wave action and sunlight, can intensify toxicity and exacerbate the difficulty with remediation and cleanup after a spill. As Dr. Jeffrey Short testified during a Water Management Board hearing in South Dakota in opposition to the KXL pipeline, all effects are exponentially worse for a dilbit spill because the properties make the substance particularly difficult to locate and clean up. Spills of diluted bitumen pose a severe threat to the environment and impacts of an oil spill will be particularly devastating to Indigenous communities including the Anishinaabe, the Ojibwe and Minnesota Chippewa Tribes.
PRIOR SPILLS BY ENBRIDGE PIPELINES AS INDICATORS OF THE INEVITABLE DAMAGE LINE 3 MAY CAUSE
Oil pipelines spill. It is not a question of if they will spill, but when and where. Enbridge has a long and ugly record of pipeline spills. Since 2000, the Enbridge pipeline system, including Line 3, had 194 pipeline incidents/accidents during which dilbit was spilled in the five states bordering the Great Lakes: 70 in Minnesota, 61 in Wisconsin, 21 in Michigan, 19 in Illinois, and 17 in Indiana, resulting in 2,489,554.2 gallons of dilbit released and 555,853.2 gallons that have never been recovered. Included is the infamous 2010 Enbridge spill into the Kalamazoo River, which was not discovered for 17 hours, resulting in a spill of over one million gallons of dilbit.According to the U. S. Department of Transportation Pipeline and Hazardous Materials Safety Administration (PHMSA), the data is shocking: from 1986 to now, the Enbridge tar sands pipelines had 242 spills, releasing 7,399,690.2 gallons of dilbit into the environment; 2,351,732.2 gallons have never been recovered. These spills occurred primarily in five Great Lakes states: Minnesota, Michigan, Wisconsin, Indiana, and Illinois.
The data and information regarding the spills are documented by PHMSA and include failures of operation, construction, and materials, including pipe corrosion, excavation damage, incorrect operation, material/weld/equipment failure, and natural force. The cleanup cost of the 194 spills is $943,331,402.00, and does not include the costs to states, individuals, and the federal government. For example, the cleanup efforts from the Kalamazoo River spill cost more than $1 billion alone. More importantly, the damage done to the environment, waterways, surface, groundwater, humans, and animals, and the ultimate cost in greenhouse gas emissions, is incalculable.
Enbridge uses the SCADA leak detections system, which fails to detect leaks 72% of the time. The federal district court judge in Standing Rock Sioux Tribe vs. US Army Corps of Engineers (2020), highlighted the serious failures of the various leak pipeline detection systems:
… 2012 PHMSA comprehensive leak detection study found one type of leak detection system . . . detected hazardous liquid leaks 28 percent of the time,” and another, called CPM, “had a detection rate of 20 percent.” … Another expert for Standing Rock had also presented this data in October 2016, adding that “his low success rate” was “consistent with Accufacts’ many liquid pipeline failure investigations spanning more than 40 years, especially more recent investigations.” … (Accufacts Report of October 2016). DAPL, it should be noted, uses a CPM leak-detection system.
The United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agency (EPA) failed to properly evaluate the Enbridge project before issuing a permit to cross more than 200 bodies of water. This determination is contrary to the ruling in Standing Rock Sioux Tribe, which vacated the Corps’ permit that allowed the Dakota Access Pipeline to cross the Missouri River because the Corps failed to complete and issue a proper environmental impact assessment. Additionally, the Corps is required by the National Environmental Protection Act (NEPA) to consider environmental justice in addition to the existing obligations of environmental impacts and failed to do so here.
ENVIRONMENTAL DAMAGE DURING CONSTRUCTION OF THE PIPELINE
Construction of the pipeline itself has caused serious environmental damage along the route. In January 2021, during construction Enbridge breached the confining layer of an artesian aquifer allowing millions of gallons to flow out of the aquifer into a nearby wetland. The Minnesota Department of Natural Resources (DNR) only became aware of the breach in June 2021 because Enbridge failed to inform the DNR, despite an obligation to do so. In September 2021, the Minnesota DNR fined Enbridge $3.32 million dollars, ordered the company to stop the flow of water out of the aquifer within 30 days, and ordered the company to place $2.75 million dollars into an escrow fund for restoration of the wetland due to the damage that has been done. The breach occurred because Enbridge dug a trench and drove pilings 18 to 28 feet deep in a location where they had previously represented to the Minnesota DNR that they would only dig eight to ten feet deep. As of mid-September, 24.2 million gallons of groundwater have been released from the aquifer.
In addition, between June 8 and August 5, 2021, there were 28 reported construction “mistakes” at river crossings called “frac-outs” during which Enbridge released drilling fluid into rivers while snaking the pipe under the rivers. One release was 80 to 100 gallons. Drilling fluid is composed of bentonite clay, xanthan gum, and other chemicals which remain undisclosed. The “frac-outs” are under investigation by the Minnesota Pollution Control Agency. Moreover, Water Protectors discovered a huge quantity of drilling fluid seeping out of the ground and flowing downstream in late September.
IMPLEMENTATION OF LINE 3 CONSTITUTES A VIOLATION OF TREATIES WITH THE MINNESOTA CHIPPEWA TRIBES
The Ojibwe and Minnesota Chippewa Tribes entered into treaties with the United States in the 1800s to reserve hunting, fishing, and gathering rights on the lands and waters ceded to the U.S., through which Line 3 is routed. Harvesting rice by hand fosters a deeply held belief that it is a gift from the Creator, and the land that sustains it, should be treated with respect and gratitude rather than cultivated and exploited. Hand-harvested rice is frequently offered as gifts and is used as offerings in spiritual ceremonies and funerals. Exercising these rights is fundamental to the Tribes’ cultures and ways of life. Indigenous peoples in this area eat manoomin/psίᶇ at least once a month. Surveys have established that manoomin/psίᶇ is the most consumed traditional food, and Indigenous peoples wish to eat it more often. The annual hand-harvest on Minnesota lakes and rivers is a cherished ritual that preserves time-honored traditions and builds Tribal community.
Additionally, wild rice sustains the entire ecosystem in which it grows:
grows in shallow water and slow-flowing streams and produces an edible grain. It is native to Minnesota and can be found in 55 counties in the northern region of the state … its range once covered the entire state. Current coverage of wild rice has declined to [] 64,000 acres when growing conditions are favorable. A fast-growing, aquatic grass … providing critical food and shelter at every stage of its growth and throughout all four seasons. Migrating and resident species alike rely on the plant’s nutritious and abundant seeds. [] ild rice lakes and streams serve as breeding and nesting areas for at least 17 species listed as “species of greatest conservation need” t also provides habitat for fish. Wild rice improv the quality of ecosystems, allowing for increased ecosystem function. By sequestering nutrients such as phosphorous and nitrogen, wild rice enriches soils while countering the negative effects of nutrient loading in water bodies that can cause algal growth and turbidity. Stands of wild rice form windbreaks and slow water velocity, limiting the mixing of soil nutrients into the water column stabiliz loose soil.
The White Earth Band of Ojibwe passed resolutions to provide for the conservation, and management of fish, wildlife, natural resources, plant populations including manoomin/psίᶇ, and the pristine freshwaters that support the ecosystems in ceded territories through the regulations of the treaty beneficiaries use and harvesting activities. The resolutions provide that the White Earth Tribal Court has jurisdiction to hear all actions arising under any code, resolution or ordinance enacted to conserve, manage, or protect the resources, regardless of the boundaries of the reservation and may sue any entity in Tribal Court that violates the resolutions of the territory. In June 2021, the Minnesota DNR granted a permit to Enbridge for construction of Line 3 to use over 5 billion gallons of water from ceded territory at the time of drought, increasing the allotment of water without consultation with the Tribes, negatively impacting manoomin/psίᶇ. Consequently, the White Earth Band of Ojibwe sued the Minnesota DNR in Tribal Court. That litigation remains pending. The Minnesota DNR sought to enjoin the Tribe from suing and argued that the Tribe lacked jurisdiction but was dismissed. There is an appeal at the federal appellate level.
FREE PRIOR INFORMED CONSENT – CONSENT TO LINE 3 BY THE CONSENSUS OF TRIBAL NATIONS’
The basic principle of inherent sovereignty is defined as the authority and powers lawfully vested in a Tribal Nation that predate contact and have never been extinguished. Self-governance is the inherent sovereignty of Tribes to enter into Nation-to-Nation policy agreements with the U.S. via treaties. The Supremacy Clause of the U.S. Constitution, as set forth in Article VI, Clause 2, states that “all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
As such, the Corps and Untied States Department of State must obtain consent by consensus, and engage in meaningful, non-perfunctory Nation-to-Nation consultation that goes beyond simply “checking a box.” Without doubt, the Corps and Department of State have failed to obtain consent by consensus and engage in adequate and meaningful Nation-to-Nation consultation with affected Tribal Nations about Line 3.
Additionally, according to the Native American Graves Protection and Repatriation Act of 1990 (“NAGPRA”), federal land managing agencies are required to “consult” –a legal term of art in Federal Indian Law–with federally recognized Indian Tribes prior to actions that involve the intentional removal or excavation of Native American human remains and other cultural items and according to the National Historic Preservation Act (“NHPA”) as it applies to historical properties. As defined by the United States Department of the Interior, “Consultation is built upon government-to-government exchange of information and promotes enhanced communication that emphasizes trust, respect, and shared responsibility.” Once again, mere consultation as a procedural mechanism is not sufficient – it must also amount to consent by consensus.
The United Nations Declaration on the Rights of Indigenous Peoples recognizes that Free, Prior and Informed Consent (FPIC) is a pre-requisite for any activity that affects Indigenous ancestral lands, territories, or natural resources. FPIC recognizes:
Indigenous peoples’ inherent and prior rights to their lands and resources and respects their legitimate authority to require that third parties enter into an equal and respectful relationship with them based on the principle of informed consent. Procedurally, free, prior and informed consent requires processes that allow and support meaningful choices by Indigenous peoples about their development path.
FPIC is intrinsically tied to the concept of self-determination, as explained by James Anaya, former United Nations Special Rapporteur on the Rights of Indigenous Peoples, that “human beings, individually and as groups, are equally entitled to be in control of their own destinies.” As such, the Corps and Department of State must obtain consent by consensus, and engage in meaningful, non-perfunctory Nation-to-Nation consultation that goes beyond simply “checking a box.” Without doubt, the Corps and Department of State have failed to obtain consent by consensus and engage in adequate and meaningful Nation-to-Nation consultation with all affected Tribal Nations about Line 3. The Red Lake Band of Chippewa Indians and the White Earth Band of Ojibwe (Indigenous Nations) and organizations, Honor the Earth and Sierra Club have filed suit in federal district court opposing Line 3 construction and alleging, among other things, the Army Corps of Engineers’ failure to obtain free prior and informed consent from the tribes. Further, as stated in the Charter of the United Nations, Article 1 of the U.N. International Covenant on Economic, Social and Cultural Rights, self-determination is to be provided to “‘all peoples.’” Accordingly, Tribes must be afforded more than mere consultation.
President Joe Biden has conveyed his commitment to Nation-to-Nation consultation with Tribal nations in a memorandum:
It is a priority of my Administration to make respect for Tribal sovereignty and self-governance, commitment to fulfilling Federal trust and treaty responsibilities to Tribal Nations, and regular, meaningful, and robust consultation with Tribal Nations cornerstones of Federal Indian policy. The United States has made solemn promises to Tribal Nations for more than two centuries. Honoring those commitments is particularly vital now, as our Nation faces crises related to health, the economy, racial justice, and climate change—all of which disproportionately harm Native Americans.
LINE 3 IS NOT IN THE NATIONAL INTEREST
On February 5, 2021, 38 Minnesota state legislators sent a letter to President Biden asking him to cancel the permits for Line 3. They estimate the societal cost of this project is $287 billion. They wrote:
We are requesting that your administration halt construction of the Line 3 pipeline, a massive tar sands oil project in Northern Minnesota that is effectively a KXL clone. Line 3 would be the same diameter as KXL and would carry the same heavy crude through the U.S. Midwest with the same motive of enabling further expansion of the Canadian tar sands industry, a move that would leave “no possible pathway to achieving the Paris goals.” (Climate On The Line report, OCI).
VIOLENCE AGAINST INDIGENOUS WOMEN
Oil-producing counties in North Dakota and Montana experienced a 70% increase in aggravated assault against indigenous women while non-oil-producing counties in those states experienced a corresponding decrease during the same time frame. More specifically, women in the oil-producing counties experienced a 54% increase in sexual assault, including heightened rates of sex trafficking of women and children and of missing and murdered Indigenous women. Increase in crimes against Indigenous women is due to the transient nature of the pipeline workers.
CONCLUSION – SHUT DOWN LINE 3
President Biden must immediately shut down Line 3, as was done with the Keystone XL pipeline. In both instances, oil would be brought from Alberta through the U.S. to foreign markets. Enbridge, through its Line 3 project, will continue to cause irreparable harm, consistent with its previous record. President Biden must honor the treaties with the Minnesota Chippewa Tribe, rescind the Presidential Permit which has allowed this pipeline to bring oil across the U.S.-Canada border, and order the Corps to re-examine Line 3’s impact on the environment and climate change, and to recognize the overriding importance of environmental justice. [...]
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January 12, 2022BlogBy Frank Deale, Associate Professor of Law at CUNY School of Law
Any assessment of the legacy of Guantanamo must start with the tragic events of 9/11. On that day, thousands of Americans were killed in a tragic assault on their everyday lives. Many of us lost loved ones on that day or know people who did. The week before 9/11, I was in the World Trade Center (WTC) with my seven-year-old daughter, bringing her home from one of her early days at child care. Three days before, we were looking at an apartment on John Street, right in the vicinity of the WTC. As we left that building, I thought of how privileged those folks were to be settled in such a nice area of New York. Even today I wonder where those folks are, who wished to sell us an apartment that evening.
Ascertaining the legacy of these extraordinary events over 20 years later is to aim at a moving target. Only recently, in 2021, have all of the U.S. troops been brought home from Afghanistan, bringing to a seeming conclusion the longest war in U.S. history, and yet this decision of President Biden to withdraw was met with withering criticism. There was bipartisan support and criticism of President Biden’s decision. Detainees are still held in Guantanamo and as I write, are subject to ongoing military judicial proceedings that are so biased that the chief prosecutor for the military resigned and agreed to testify for one of the detainees.
Nonetheless, three aspects of an emerging legacy begin to appear, which I shall discuss below. They are: (1) the changing nature of warfare as unleashed by the war on terror; (2) the continuing efficacy of the federal courts to review the detention of those held by federal authorities in violation of federal law, and to provide remedies to hold accountable officials for violations of constitutional rights in time of war; and (3) the role of lawyers in challenging legally sanctioned state violence.
The Changing Nature of Warfare Unleashed by the War on Terror
The major question for the United States after 9/11 was whether to treat this assault as a crime or as an act of war. It should not have been a difficult decision. How does a state “declare war” on an act committed by private citizens? Moreover, this was not the first time that the WTC had been attacked. After a bombing in the garage in 1993, the U.S. utilized the extradition process to get jurisdiction over suspects abroad, and brought prosecutions in Federal Court that resulted in the conviction of those responsible. With 9/11, however, after prompting by former President George Bush, the Congress of the United States, in less than two weeks, adopted a Resolution taking the U.S. into a state of war. This Resolution authorized President Bush to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism.” This statutory authorization of military force was a deviation from the tendency of U.S. Presidents to conduct war in the absence of Congressional approval, as required by the War Powers Resolution, in El Salvador, the Persian Gulf, Yugoslavia, Iraq, and numerous other locations. But this attempt to give the War on Terror a legal foundation should not confuse us. In a world order truly based on principles of law and justice, rather than power and violence, the U.S. would have been required to use its influence and incentives to pursue established legal mechanisms to bring the perpetrators of the 9/11 crimes to the United States meaningful judicial process.
Even though all of the suspects responsible for the plane hijackings were from Saudi Arabia, a longtime ally, the U.S. acted swiftly to move two dozen members of the family of Osama Bin Laden, the alleged mastermind of the attack, out of the U.S., where some were attending school, and back to Saudi Arabia to ensure their safety. Simultaneously, the U.S. began a massive bombing campaign against the people of Afghanistan, and ultimately Iraq, even though there was no conclusive evidence that the peoples of those countries had anything to do with the planning or execution of the events of 9/11. And, of course, the country where Bin Laden was hunted down and assassinated was neither Iraq nor Afghanistan, but Pakistan, another troublesome ally of the US. Yet, notwithstanding these noteworthy infelicities, the worldwide surveillance apparatus of the U.S. kicked into high gear, subjecting people all of the world to drone spying, missiles, and bomb attacks, in the newly instigated “war on terror.”
In a startling choice of words that stunned the world, George Bush actually spoke of a “crusade” under which individuals from all over the world were rounded up and detained at Guantanamo, that convenient offshore dumping ground, previously known, infamously, as an “HIV Prison Camp” when it served as a detention center for Haitian refugees. These 1990s detainees were interdicted on the high seas as they undertook dangerous journeys, aiming for the US, to seek relief from the chaotic economic and political conditions in the aftermath of a coup that removed the popular and first ever democratically elected President Bertrand Aristide. But the 9/11-connected suspects were not just taken to Guantanamo. Contrary to all notions of a presumption of innocence, others were taken to “black box” sites in numerous countries, many of which have still yet to be determined, where they were subjected to brutal and often fatal interrogations. Those who survived these deadly assaults were kept in brutal conditions of confinement, were not provided with charges, attorneys, or any kind of process for seeking their release. Many of those picked up and detained were seized based upon unverified information provided by bounty hunters who were paid by the U.S. for providing such information.
The suppression of rights also targeted those who spoke out against the war on terror. Barbara Lee, the Black woman representative from California who cast the only vote against the Authorization for the Use of Military Force (AUMF) resolution, received numerous death threats because of her vote. When Ward Churchill, Native American scholar and Professor of Ethnic Studies at University of Colorado asserted that 9/11 was a consequence of violent U.S. foreign policy abroad and that the 2,997 people killed at the WTC were “little Eichmans,” the governor of Colorado called for Churchill’s resignation, setting off a process which resulted in Churchill’s termination from the University of Colorado for “academic misconduct and plagiarism,” a decision upheld by the courts despite Churchill’s First Amendment claims.
In the process of launching its war on terror, the U.S. also initiated a whole new form of waging war. Death from the skies by unmanned military vehicles, now known as drone warfare, represents a major step backward for any legal efforts to regulate the never-ending state of war being waged by the United States against non-nuclear peoples. Assassinations have become standard operating procedure rather than capturing suspects and subjecting them to trial, and this rule even extends to American citizens. We will never know how many non-US people have been killed by the war on terror, but it certainly encompasses large numbers of the innocent. The U.S. seems never to have understood that Muslims in the United States and all over the world condemned the 9/11 attackers. There were international mechanisms in place to allow the U.S. to track down those responsible without an immediate resort to a bombing campaign. And regarding the assassination of Bin Laden – it may be true that capturing him and subjecting him to trial rather than assassination would have turned him into a “political prisoner,” but if so, the actions of the U.S. in its war on terror only assured this outcome. This is yet another instance of how the government of the U.S. seeks to “create its own reality.”
The Continuing Efficacy of the Federal Courts to Review the Detention of those Held by Federal Authorities in Violation of Federal Law
One legacy of this era is that those detained at Guantanamo are entitled to some form of Article III judicial review. The Bush Administration actually thought that it could not only illegally seize people outside the jurisdiction of the US, bring them bound and gagged to foreign destinations, torture them to the point of death, not provide them with any charges or legal representation, but then deny them of any type of meaningful judicial review. The audacity of such claims is nothing short of breathtaking. Even the regressive English Common Law provided rights to challenge such executive conduct by means of the writ of habeas corpus, which was not only enshrined in the language of the Constitution of the United States, but was codified in two federal statutes and many state jurisdictions. As one of the rare procedures where a single U.S. district court judge can effectively reverse a state Supreme Court, the writ of habeas corpus has been utilized to free those incarcerated by state and federal authorities in violation of the Constitution of the United States and federal law.
Yet it was exactly because of this effectiveness that the states’ rights counterrevolution of the 1990s targeted habeas, rendering it practically ineffective through passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). That statute was designed to insulate state court rulings on federal law from federal habeas review if those readings were “reasonable” and not directly “contrary” to Supreme Court precedent. This, along with a blunderbuss of other provisions Congress rendered the “great writ” into a nullity. Interestingly, AEDPA was passed in the aftermath of the 1993 World Trade Center bombing–hence its name and focus.
After Congress passed the AEDPA, and a Democratic President signed this regressive legislation, it perhaps should not have been surprising that President George W. Bush and Vice President Dick Cheney argued that they could keep the detainees at Guantanamo in an indeterminate legal netherworld. Yet in a series of extraordinary cases, beginning with Rasul v. Bush (2004), the Supreme Court held that the detainees could in fact file habeas petitions seeking their release, and that the detainees had to be accorded due process via a meaningful hearing. And after Congress, in response to these decisions, enacted further legislation barring detainees from filing habeas petitions in federal court, and forcing them into military commission trials with extremely limited appeal rights, the Court yet again ruled in favor of the detainees and declared the Congressional acts unconstitutional as an unlawful suspension of the writ of habeas corpus. It is somewhat remarkable that the Supreme Court injected a little life into habeas after all that Congress has done to bury it. Yet it was only on October 21, 2021 that a detainee was granted relief from detention at Guantanamo as the result of a habeas petition. After 14 years in detention, Asadullah Haroon Gul, who was picked up in Afghanistan in 2007 and kept nine years without the opportunity to see a lawyer was ordered to be released by a federal judge in Washington, DC.
One should not conclude from the foregoing discussion that the Muslim roundups and detentions only took place outside of the US. Hundreds were also picked up in the US, and detained by the federal authorities in high-security prisons where they were subject to brutal and degrading conditions. They were deprived of rights under the Constitution, so they brought litigation alleging that their detention and treatment violated their rights to be free from racial and religious discrimination, and that they were denied elementary due process. Although many of these detainees were held because of alleged visa violations, they were actually being kept and mistreated because of federal concern that they harbored terrorist connections.
When the leading case challenging these round-ups as civil rights violations made it to the Supreme Court, the Court disregarded the plaintiffs’ allegations as “implausible” and dismissed the case. Rather than credit the plaintiffs’ allegations, the Court chose instead to believe that the U.S. government simply “sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity.” In failing to credit the plaintiffs’ claims and instead accepting the defendants’ version of the facts, the Court upended 50 years of established pleading rules by seizing upon stricter standards initially put in place to judge complex antitrust proceedings and applying them to constitutional civil rights claims, making it harder for plaintiffs to have their day in court.
That the Supreme Court was particularly dedicated to fencing out Muslim detainee civil rights claims is evidenced by later developments in the same case. The plaintiffs amended their claims in the case to add additional factual information verifying the claims that the Court earlier found “implausible.” They were able to do this because the Department of Justice had filed a report after the Supreme Court decision substantiating the treatment that the plaintiffs’ had originally alleged. Since it was no longer possible for the Court to write off the allegations as “implausible,” the Court more clearly stated what was on its mind, namely that the claims must be dismissed because they “challenge the confinement conditions imposed on illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil.” This decision took yet another bite out of an important long-standing remedy necessary to hold federal officials accountable for violating constitutional rights while acting under color of federal law.
Once we put together the Guantanamo era habeas and civil rights cases what they amount to is this: if the U.S. abducts you from your home country and removes you to some unknown destination where you are detained, tortured, and otherwise abused for an indefinite period with no charges filed against you, and held incommunicado with no counsel assigned to you, you can, if you get a lawyer, file a habeas corpus petition seeking your release. However, if you survive this ordeal, under no circumstances will you be able to hold accountable the officials who arranged for your abduction, detention, and abusive treatment even though such treatment violates all manner of domestic and international norms. This is a legacy of which the U.S. should be deeply ashamed.
But this is not all.
An Extraordinary Mobilization of Lawyers to Represent Guantanamo Detainees
Finally, any legacy of Guantanamo and 9/11 has to recognize the extraordinary mobilization on behalf of lawyers throughout the world to voluntarily assume legal representation of these numerous individuals held in detention off the shores of the U.S. without charges and in violation not just of the Constitution of the United States, but also of international law.
Without compensation and often at great expense, not knowing who their client was and not even able to communicate in a common language, lawyers stepped up to the highest traditions of the profession to defend those beaten down by the USgovernment and the mass media. Much of this work was initiated by the Center for Constitutional Rights and Michael Ratner, undertaking a role similar to that under which the organization got started: mobilizing lawyers to go south in the 1960s to assist the Black liberation movements taking place there. Michael Ratner was gracious enough to come to my Constitutional Structures class in the midst of this extraordinary campaign to explain it to CUNY Law students.
Of course there were some government naysayers who condemned the entire project, such as Charles D. Stimson, Pentagon lawyer who denounced volunteers for “representing terrorists.” Little did he know that the U.S. was actually detaining artists and writers. Stimson learned the hard way. After a “torrent of anger from lawyers, legal ethics specialists and bar association officials, who said that his comments were repellent and displayed an ignorance of the duties of lawyers to represent people in legal trouble” Stimson left his position at the Pentagon claiming that the controversy had “hampered his ability to be effective at his job.”
This blog post goes to press to mark the 20th Anniversary of the opening of the detention center at Guantanamo Bay. Yet, how do we mark the anniversary of a tragic mistake? The United States should move immediately to rectify the harms that it has caused and pay compensation to its victims. This means, at a minimum, the repatriation of those who are currently being held and the payment of damages to those who were unlawfully detained and tortured. Britain has taken the lead in this direction and the United States should follow. [...]
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September 6, 2021Blog / News / Submissions / UncategorizedAs social justice legal practitioners, we share the belief that the community that we advocate for as attorneys should have access to information applicable to them. CUNY Law Review is therefore exploring additional formats to present groundbreaking legal scholarship.
To further break down barriers to the law and to reach a broader audience, including those without a legal background or graduate-level education, CUNY Law Review is launching the CUNY Law Review Blog in January 2022. The CUNY Law Review Blog will provide legal perspectives on recent events, address concerns with the justice system, and share changes in the law.
Blog submissions must be 500 to 2,500 words, and all citations must be hyperlinked. CUNY Law Review’s editorial team will revise articles, with agreement from the author, to meet length and citation parameters.
Submissions will be accepted on a rolling basis.
Please send submissions to CUNYLR@mail.law.cuny.edu. Questions should be directed to Mitchell.Mirtil@live.law.cuny.edu. [...]
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