Dear friends,
We’re pleased to announce the inaugural episode of the CUNY Law Review Footnote Forum podcast. The first episode, an interview with Professor Doug Cox, is available on this site and will shortly be available on Apple Music and Spotify as well. Listen here—and stay tuned for the next episode.
Alejo Rodriguez†
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Introduction: An Odyssey and an Awakening
In 1985 I was convicted for a robbery related homicide. I wish I could say that it wasn’t me, that they picked the wrong person out of the line-up, or that I had nothing to do with the actual shooting, but I can’t. The minute I picked up a gun with the thought that a robbery would somehow rid me of my drug dependent lifestyle was the minute I became the coward who would end up taking someone’s life. I received an eighteen years to life sentence and before I knew it, I was in Attica Correctional Facility. I was a twenty-three-year-old unskilled high school graduate who had never been incarcerated. I didn’t know how I would make it to see the next day, let alone the next eighteen years. All I had was the present, “one day at a time.”
Prison is a world in and of itself. It is designed to break the human spirit. Yet, strangely, there was a familiarity about prison that I didn’t expect. Sure, the constant threat of cell bars, prison guards, and gun towers were all new and intimidating, but the sense that there was no way out and the constant threat of violence were, in many respects, no different than where I grew up in the Bronx. Many of us came from the same neighborhoods, same families, and formed the same gangs. Drugs were readily available, as was gambling, and prostitution. It would be years before I would hear the term “school-to-prison pipeline,” but once I did, I knew for certain that it was more than just a catch phrase—we were its by-product. Continue reading
Lee Clark†
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As a trans person, one of the places that I have found safety is through the way I represent my gender expression. Clothing is at the pinnacle of my gender expression; it is something that I have had control over for a long time. To quote the famous social theorist Simone De Beauvoir, “One is not born, but rather becomes, a woman.”1 I might have been assigned female at birth, but I definitely did not express my gender in feminine ways, opting for clothes from the boys’ section of stores rather than the girls’ section. One way that people have been classified in society for centuries is through the lens of the gender binary as showcased through clothing, media, and culture. Clothing and fashion are where I recognized my personal autonomy at a young age, and how I could fight back against gender restrictions throughout my life.
A quote from Daniel Friedman, a suit designer from Brooklyn-based tailoring company Bindle & Keep, who works almost exclusively with trans and non-binary2 clients, resonated with me: “It’s all about feeling great in your body, especially when people have been struggling their entire lives and they finally get into something that really fits them . . . the way they’ve always envisioned something would fit them. That’s not fashion anymore and that’s what we’re after.”3 Obviously, clothing is fashion, as it pertains to garments and construction, but it extends further than that. Bindle & Keep is dedicated to dressing an identity and a body. Clothing and gender have a direct correlation as one of the ways to present one’s gender daily. Cis and trans people alike curate outfits and silhouettes that are used to present gender. But while the trans community is fighting for our fit in the courts, we are also fighting the gender binary that has never recognized our identity. Continue reading
Sean Meehan†
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Landlord harassment against low-income, rent-regulated tenants is an enduring problem in New York City that forces vulnerable tenants from their homes as landlords illegally pursue greater profits. Protection from harassment was a significant issue during Mayor Michael Bloomberg’s unprecedented land use revision of nearly 140 rezonings from 2002 to 2014.[1] As communities throughout the city began to understand the inequitable effects of rezoning, particularly for low-income communities of color,[2] many tenants and community groups began to organize and demand greater protection from the anticipated effects that rezoning would have on their communities.
Lelia A. James*
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Introduction
There is a need for police reform here in the United States. The violent policing of Black men, women, queer, trans, disabled, undocumented, etc. is an example of how Black lives are continuously disvalued. The hashtag #BlackLivesMatter gained mass public awareness after the police killed the unarmed Black men, Michael Brown in Ferguson, MI,[1] Freddie Gray in Baltimore, MD,[2] and Eric Garner in Staten Island, NY.[3] Black Americans are more than twice as likely as white Americans to be killed by police officers.[4] The #BlackLivesMatter chapter-based organization is creating a movement that aims to put an end to disvaluing Black lives. They have a ten-point plan called “Campaign Zero.”[5] Campaign Zero is a police reform campaign that recommends policies and proposals different state legislatures should consider and enact.[6] One of the tools listed to help end violent policing is the use of body cameras on police officers while they are on duty.[7]
Nick Bourland *
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Introduction
As Justice Kennedy recently noted, “[d]e jure residential segregation by race was declared unconstitutional almost a century ago, but its vestiges remain today, intertwined with the country’s economic and social life.”[1] In order to effectively combat the full range of contemporary housing discrimination, including its more evolved forms, such as predatory lending[2] and discriminatory rezoning plans,[3] plaintiffs must be able to plead Fair Housing Act (“FHA”) claims under the disparate impact theory.[4]
After decades of use nationwide, disparate impact was definitively endorsed by the Supreme Court for FHA claims in 2015.[5] However, the endorsement came with a caveat—a poorly defined “robust causality requirement.”[6] As detailed below, this heightened causation standard haphazardly blurs the line between disparate impact and disparate treatment, leaving plaintiffs’ well-plead FHA claims in jeopardy of dismissal.
Matthew T. McDonough†
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Introduction
The U.S. Supreme Court’s March 29, 2016 per curiam decision in Friedrichs v. California Teachers Association means that, for a time, unions have won the battle.[1] But the question concerning the lawfulness of fair share fees, crucial to the feasibility of collective bargaining, will undoubtedly return to the Court. Spearheaded by the Center for Individual Rights and the National Right to Work Legal Defense Fund, two conservative non-profit law firms,[2] union opponents are dedicated to stripping public unions of their right to charge non-members for collective bargaining negotiation and other services rendered.[3] This jeopardizes thousands of collective bargaining agreements across the country and not just those in the public sector.[4]
Kara R. Finck[1]
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At its core, family defense protects the legal relationship between a parent and their child, one of the most intimate, complicated, and nuanced relationships in practice and under the law. Family defenders represent parents and caregivers accused of neglect or abuse of their children in family and dependency courts. While the process of individual representation may appear straightforward, the ideals of family defense incorporate an explicit recognition of the social determinants that bring families into the child welfare system in the first place, including poverty, substance abuse, and untreated mental health issues. Although much of the attention paid to the child welfare and family court systems is focused on children and their placement in foster care, family defenders understand that any intervention by the child welfare agency and family court system has a profound impact on children and families. Often referred to as attorneys for parents, in literal contrast to attorneys for children, family defenders advocate beyond the direct representation of an individual client. Even the act of renaming lawyers for parents in abuse and neglect proceedings as “family defenders” as opposed to “parents’ attorneys” highlights the potential impact and scope of this work. Inherently, family defense practice incorporates legal advocacy that supports, strengthens, and stabilizes the client’s family, consequently promoting better outcomes for children.
This article posits that there are three critical components which should be included in any family defense practice model designed for advocating for parents and children in the child welfare and family court systems. A robust family defense is defined not only by its commitment to the zealous defense of clients, including all of the legal tools available in litigation, but also by its recognition of the unique context of family defense, which incorporates social services, community engagement, and anti-poverty lawyering into a comprehensive response for parents in family court.
Erin Cloud, Rebecca Oyama & Lauren Teichner[1]
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One hundred years from now, today’s child welfare system will surely be condemned as a racist institution—one that compounded the effects of discrimination on Black families by taking children from their parents, allowing them to languish in a damaging foster care system or to be adopted by more privileged people. School children will marvel that so many scholars and politicians defended this devastation of Black families in the name of protecting Black children. The color of America’s child welfare system is the reason Americans have tolerated its destructiveness.
― Dorothy Roberts, Shattered Bonds (2012)
“Black people love their children with a kind of obsession. You are all we have, and you come to us endangered.”
― Ta-Nehisi Coates, Between the World and Me (2015)
Introduction[2]
All families have a constitutional right to be together, free from the unwarranted interference of third parties, particularly the state. This is an intrinsic human right that encompasses the right of parents to the “custody, care and nurture of [their] child[ren]”[3] and the parallel right of children to be raised by and live with their parents.[4] This fundamental right recognizes the inherent value in family ties, which provide a connection to culture and identity, and serve as a protective social bond. Of course, the government must be permitted to pursue measures to ensure the protection – and even the adoption – of children for whom it is ultimately deemed too unsafe to return home. But any such interference into the family structure, particularly the drastic step of taking children from their families, should be the exception to the rule and not the norm of child protective practices.
Diane L. Redleaf[1]
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A. Introduction to the Family Defense Center’s Model for Family Defense
This article discusses the key ingredients to the success of an unusual family defense organization, the Chicago-based Family Defense Center (the “Center”), which I founded in 2005 after a long career at both a legal services office and a public interest law firm. The Center uses a hybrid public interest law firm/legal services/pro bono network model, along with a sliding scale fee-for-service program, to fulfill its mission of advocating for justice for families in the child welfare system. The Center is devoted to addressing the needs of families, especially families who are targets of child protection investigations. By design, the Center works in a unique and highly specialized niche. But because child protection investigations arise from a wide range of allegations against family members, from domestic violence, to medically complex cases involving fractures and head injuries, to claims of sexual abuse, the practical and substantive expertise of the Center is very broad.
In addition to representing family members in 400 to 600 individual direct service cases each year, the Center has been counsel in over a dozen federal civil rights cases and has won many precedential appellate cases.[2] Center-created precedents have tightened vague definitions of child neglect, set limits on the removal of children based on constitutional grounds, limited presumptions of abuse in medically complex cases, created strong due process rights limiting child abuse and neglect findings against parents and family members, and protected people who work with children from the blacklisting that follows from a wrongful child abuse or neglect finding.[3] Thousands of families have benefited from the Center’s systemic reform work, including the direct exoneration of over 26,000 people from the Illinois Child Abuse Registry through a 2013 Illinois Supreme Court decision and a class action suit that followed it.[4] The Center’s overall individual hearing win rate is approximately 80%.[5]