Archive for the ‘Equality’ Category

The End of “an End of an Era”

Written by Rebecca Zietlow on September 3rd, 2009

As I watched Ted Kennedy’s funeral and listened to the coverage of his life and death last week, I heard the phrase “the end of an era” so many times, it convinced me that people should stop using the term “the end of an era.” What does an “era” mean? According to the Oxford English dictionary, an “era” is defined as “a system of chronology reckoning from a noteworthy event.” Perhaps the commentators mean their observation to refer to the era beginning with the birth of Joseph Kennedy Sr.’s children. True, a genertion of Kennedy brothers had passed away now, ending the era of that generation of the Kennedy brothers. True, many of us (including myself, born the year that Ted Kennedy entered the Senate) cannot remember a time when Ted Kennedy was not in the Senate. True, thousands of liberals in America can no longer count on Senator Ted Kennedy to always speak for us in the Senate, and never apologize for being liberal. But what is the point of calling this an “era?’ What more do we learn from this phraseology?

Perhaps those who called Ted Kennedy’s death “the end of an era” intend announce the end of liberalism in America that was most prevalent in the 1960s but lingered until Ted Kennedy’s death. If thatmpphpH7AOUT[1]t is the case, then I must, most emphatically, object, not only to the phrasing but to the sentiment behind the phrase. There remains a strong progressive tradition in the Democratic party, shared by many members of he general public who dop not affiliate themselves with that party. The progressive tradition was most recently re-affirmed by the election of President Obama (with Ted Kennedy’s crucial support) and his numerous Demcratic colleagues in Congress. It is reaffirmed in the polls that show that despite months of the healthcare industry spending over a million dollars a day to fight health care reform, the American public still strongly supports it, and still demands a change to our health care system. So, let’s put an end to this talk about “the end of an era” and concentrate on what we need now. There’s never an end of the era of need for the poor and middle class folks in this country who demand health care reform.

Another Lesson on Race in America

Written by Rebecca Zietlow on July 30th, 2009

Two weeks ago, Professor Henry Louis Gates, Jr. got a lesson on race in America, and as a result, so have the rest of us.  A prominent Harvard scholar on race in Amer180px-Henry_Louis_Gates_Jrica, Professor Gates told NY Times Columnist Charles Blow that he has generally lived in “a cocoon of racial tolerance, enlightenment and reason.”  However, on the day that he returned from a trip to China and had trouble opening his front door, he became what Blow called “a member of the Club” – the 66% of Black men in America who told the New York Times that they felt they had been stopped by the police because of their race.  We don’t know whether Officer Crowley treated the professor differently because he was Black.  Officer Crowley might not even know.  Crowley teaches other officers how to avoid racial profiling, but can he avoid his own unsconcious feelings about race?  What we do know is that Professor Gates’ belief that he was treated differently because he was Black was entirely rational, given the history of race in America and in the Boston area.  Professor Gates writes about this history in his scholarship, and he teaches about it in his classes.  On that summer day, the academic became real for Professor Gates.

I vividly remember the day that the academic became real for me.  In law school in another New England city, I learned a lot about race in America from my classes and my African American classmates.  The spring of my second year, a white female and Black male friend and I looked to rent an apartment together.  My white female friend had made the appointment to see the apartment, but when we showed up with our Black friend, we were told the apartment was no longer available.  We went to lunch together and stared at each other blankly, asking, “Did that really happen?  Are we victims of discrimination?” The same thing happened at another apartment building that afternoon.  We later confirmed with friends that lived at both buildings that apartments were still available in both buildings.  We’ll never know for sure whether we were treated differently because my roommate was Black.  What we did know was that we had  been taught another lesson on race in America.

My experience, like that of Professor Gates and Officer Crowley, is typical of how people’s experiences are “colored” by racial differences.  Often, we don’t know whether our actions, or those of other people, are motivated by racial prejudice.  The lesson we can learn from Professor Gates is that race always matters – it is unrealistic to assume that it doesn’t.  What President Obama is trying to do today with his “beer summit” is what we all need to do – recognize that race influences all of us, talk about our differences, and try to understand each other.  When we can do that, then we will have indeed learned a positive lesson about race in America.

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Racial Justice After Ricci

Written by Rebecca Zietlow on July 9th, 2009

As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination new-haven-minority-firefighters.pngin our country which has subordinated racial minorities, Ricci is just the latest in a line of cases where the Court makes it clear that it will apply the highest level of scrutiny to government attempts to remedy that history. What is a city like New Haven to do to attempt to provide more opportunities for upward mobility to government employees of color? Standardizes tests, like that in Ricci, could theoretically be useful to reduce the level of discretion in hiring and promotion decisions. Less discretion should mean less opportunity for race discrimination. Yet given that one of the many issues that plagues communities of color if poor public education, it is not surprising that job and promotion candidates of color don’t score as well on written standardized tests.

After Ricci, cities like New Haven better be sure that the test is valid before they use it, because afterward, it’s too late to discard the results no matter how discriminatory their impact might be. Could cities like New Haven try to remedy the racial disparity by giving extra points on the promotion scale to candidates of color? No way, the Court has made that clear. Theoretically, they could lobby their local government officials for help.  Yet under the current Supreme Court’s jurisprudence, it’s hard to see what those local officials can do, except as Bobby indicates below, hope that candidates of color can “pull themselves up by their bootstraps” and improve their situation on their own.

Sotomayor and Race

Written by Rebecca Zietlow on June 4th, 2009

Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Suprefinal-4.jpgme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a speech seven years ago.   On this subject, I highly recommend Charles Blow’s recent New York Times editorial, “Rogues, Robes and Racists.”   As Blow notes, there is no evidence in Sotomayor’s life, legal career or judicial record of her ever acting like a racist.  Blow contrasts Sotomayor’s record with that of Chief Justice John Roberts, who was reported by Newsday magazine to have made racist and sexist jokes while working in the White House for the President Reagan.  What is most significant is that Roberts didn’t just talk the talk, he has spent his entire career walking the walk, working to roll back the civil rights gains of women and minorities from the 1960s and 1970s.  As Bobby notes below, quoting Jeffrey Toobin, Roberts has continued this pattern as Chief Justice, ruling against criminal defendants, non-white civil rights plaintiffs (he ruled in favor of the white plaintiff challenging the use of race to avoid the re-segregation of Seattle public schools) and plaintiffs suing corporations.  Does that mean Roberts is a racist?  Not necessarily, but as Blow observes, there is a heck of a lot more evidence of his racism than there is of Sotomayor’s.

Blow’s editorial is so powerful and eloquent that I really don’t have much to add.  What I can add, however, is a bit of context to the speech that has gotten Sotomayor into so much hot water.  In a speech during a symposium on Latino judges, hosted by La Raza Law Journal, Judge Sotomayor said that “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”  Why would Sotomayor say such a thing?  It is clear from reading her speech that Sotomayor was asked to comment on how her experience as a Latina woman colors her perception of issues on the bench.  This subject is understandable given the Critical Race Theory roots of the La Raza publication that hosted Sotomayor’s speech.  At the risk of over-simplification, one theme of critical race theory is questioning the assumption that law is neutral and un-biased, and examining the ways in which our laws reinforce the existing power structures in our society, including the privileging of the concerns of white people, men, and the rich.

I have no idea what Sotomayor thinks about critical race theory, but it is clear from her speech that she is responding to this CRT critique of the law.  In her speech, Sotomayor describes her personal experiences as a “NewYorkrican” and acknowledges that these experiences have an effect on how she sees the world.  But in a much less quoted remark at the end of the speech, Sotomayor goes on to observe, “I am reminded each day that I render decisions that affect people concretely and that I owe them constant and complete vigilance in checking my assumptions, presumptions and perspectives and ensuring that to the extent that my limited abilities and capabilities permit me, that I reevaluate them and change as circumstances and cases before me requires.”  That’s the most we can hope for from any judge, and Sotomayor’s judicial record reflects the fact that she has been pretty successful at it.

In his majority opinion striking down two local school districts’ attempts to use race as one factor in school assignments in order to reduce racial stratification in the public schools, Justice Roberts famously noted, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  I agree with Roberts’ sentiment, but I also agree with the Critical Race Theorist view that race discrimination is more complicated than Roberts’ remarks suggests – that we are all affected by unconscious bias.  Given the choice between Roberts’ overly simplistic remark and Sotomayor’s sophisticated evaluation, and the choice between their records on racial issues, I prefer Sotomayor.

Victory Gardens

Written by Rebecca Zietlow on May 14th, 2009

A beloved tradition from the World War II era, Victory Gardens are being revived throughout the country.  This time, people are not planting those gardens to support victory over an enemy abroad, but instead to support our neighbors at home.  In the Twenty-First Century, victory gardtbg_logo.jpgens are not about beating Nazis, but instead about defeating hunger and malnutrition.  While the more affluent among us have been celebrating locally grown foods in recent years, far too many people without financial resources are unable to access fresh fruit and vegetables from any source.  Inner city neighborhoods have few grocery stores, and residents of those neighborhoods often lack the money to travel to shop.  All those beautiful farmer’s markets sprouting up throughout the country have not been sufficiently accessible to the poor.  That’s the reason for the new victory gardens – community or individual gardeners who pledge to give their produce to food banks and provide fresh, locally grown food for those who currently are unable to afford it.

This week, I had the pleasure of attending the plant pick up of community gardens in Toledo at the greenhouse operated by a great local organization, Toledo Grows.  The mission of Toledo Grows is to promote community gardens and gardening as a productive activity for inner city youth.  Many of these community gardens have pledged to join the Victory Garden movement.

On the plant pick up day, the greenhouse was mobbed by people of all different ages, races, ethnicities and occupations.  The one thing those people had in common was the love of gardening and food, and the interest in working with members of their community to feed people.  That experience reminded me of how diverse gardeners are, from opera fans to Nascar fans, from conservative Christians to leftwing hippies.  Victory gardens are an ideologically neutral means for us to help other people, and to be civic minded while doing something that we love.

Do we Need More Women on The Supreme Court?

Written by Rebecca Zietlow on April 23rd, 2009

Throughout the entire history of the United States Supreme Court, only two women, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, have ever served on that institution.  Since O’Connor retired and was replacetmpphpzkofoc1.jpgd by Samuel Alito, there is only one woman on the Court.  This is so despite the fact that women make up a slight majority of the population,  approximately 34% of lawyers, and 43% of judges.  With the possibility of several Justices (perhaps including Justice Ginsburg herself) retiring from the Court in the near future, it is worth considering whether we need more women on the Supreme Court.  The answer to this question is far from obvious.  Arguably, we need the best possible people on the Court, regardless of their gender.  Moreover, some might argue that it would be discriminatory to prefer a candidate based on her gender.  However, these arguments do not take into account what many of us know as a matter of instinct – judges, like all other people, view issues through the lens of their own life experience and predilections.  In the Twenty-First Century, is it really OK to have only one person of nine on the top court in the land who has experienced life and the law as a woman, like over half of our population?

A couple of recent case have raised this concern to the forefront of my mind.  The first is Carhart v. Gonzalez, a 2007 case in which the Court upheld a congressional ban on a form of late term abortions.  The Court disregarded the opinion of nine professional associations of doctors, including the leading American College of Obstetricians and Gynecologists, who recommended the procedure as significantly safer than the other form of late term abortions permitted by the statute.  Instead, the Court agreed with Congress that the procedure was never justified to protect the health of women.  Why overlook the substantial weight of the medical evidence?  Justice Anthony Kennedy explained, “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”  Justice Kennedy’s Cahart opinion is reminiscent of Justice Bradley’s concurrence to an 1872 case, Bradwell v. State, explaining that women did not have a constitutional right to be lawyers because “the paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.”  As the lone woman on the current Supreme Court (and a mother of two), Justice Ginsburg argued in dissent, Kennedy’s “bonds of love” language “reflects ancient notions about women’s place in the family and under the Constitution.”  Yet now it is also part of our Twenty-First Century constitutional jurisprudence.

The second example occurred just this week during the oral argument before the Ctmpphpomsiak1.jpgourt in the case of Safford v. Redding, in which school officials strip searched a 13 year girl because her former friend said that she might have drugs.  While Justice Breyer joked about having things put in his underwear when he was twelve, Justice Ginsburg angrily pointed out that 13 year old girls tend to be incredibly self conscious about their bodies.  Can we really expect even well meaning judges who joke about underwear to adequately protect the privacy rights of 13 year old girls, who can be traumatized for life when they are told to shake out their bras and underwear by school authorities based not even on  a reasonable suspicion that they might possess contraband? No wonder Justice Ginsburg says that she is lonely!

So, do we need more women on the Supreme Court?  You bet we do!

Equal Access to Justice

Written by Rebecca Zietlow on April 16th, 2009

Our current economic crisis has caused thousands of people to face unemployment, home foreclosures, evictions, bankruptcies, domestic violence and other problems.  However, too many people wtom-harkin.jpgho find themselves in legal trouble cannot afford to hire a lawyer to help them – as many as 80% in some parts of the country.  As a former legal services lawyer, I can attest to the value of having a lawyer when a person is in an overcrowded housing court, or seeking benefits from the government.  Regardless of the strength of your case, whether or not you have a lawyer often makes the difference between winning and losing.  Yet even as the need for legal assistance has skyrocketted, in recent years, Congress has slashed LSC funds and imposed drastic restrictions on the use of those funds.  The reduction in LSC funds has caused LSC programs to consolidate and reduce services.  Nationally, 50% of eligible applicants those who seek assistance from LSC programs are turned away.  Consider this – in order to be eligible for LSC assistance, your annual household income must be below 125% of the poverty line – currently about $25,000 for a family of four.  If LSC lawyers can’t help them, no one will.

Last month, Senator Tom Harkin introduced the Civil Access to Justice Act.  The CAJA would re-authorise the Legal Services Corporation for the first time since 1981.  It would also increase funding for the Legal Services Corporation, reduce the restrictions on LSC funded programs, provide for improved governance at LSC, and authorize a grant program from the Department of Education to expand law school clinics.  The proposed bill would expand funding to $740,000, a mere drop in the bucket in the federal budget, but over twice the funding level from last year.  It would once again enable LSC programs to collect attorneys’ fees and file class actions to provide systemic relief.  Harkin, also a former legal services lawyer, is well aware of the crying need for the Civil Access to Justice Act.  I hope that Congress will pass it quickly, to further the promise on the United States Supreme Court facade of “Equal Justice Under Law.”

What’s the Fuss About?

Written by Rebecca Zietlow on April 9th, 2009

I was disappointed to hear that two of President Obama’s finest nominees, Prof. Dawn Johnsen and Dean Harold Koh, have recently been under attack by Republicans in Congress and their allies in the media.  As I earlietmpphplse92p1.jpgr commented on the page, Dawn Johnsen is a highly respected law professor who is an expert on executive power and mechanisms for ensuring that members of the executive branch comply with their ethical responsibilities.  It would be difficult to imagine a person who is better qualified to head the Office of Legal Counsel, which was plagued by questionable ethical practices during the Bush presidency.  Dean Koh is also a highly respected law professor, a towering intellect who awed me and my fellow students when he was a young new professor at Yale Law School.  Now Dean of that school, Koh also has served in both the Bush and Clinton administration and he is an internationally known expert on human rights and international law.   As with Johnsen it is impossible to imagine a person who is better qualified for the position in the State Department to which Koh has been nominated.  Yet Koh has come under attack in the media, and Republicans are threatening to filibuster Johnsen’s nomination.  What’s all the fuss about?

As Dahlia Lithwack has observed, “President Obama could have named a pair of mild-mannered tax attorneys to these high government positions. Instead, he opted to pick precisely the sorts of people we most need there: fierce advocates who care deeply about these agencies and the law as it applies to them.”

What Obama’s Victory Means for Racism in America

Written by Robert Justin Lipkin on January 23rd, 2009

Hank Chambers’ Wednesday’s post makes an important point, namely, the inauguration of Barack Obama alone neither fulfills Dr. King’s dream nor ends racism in our time. Hank insists that we must explore the reasons why people voted for President Obama, not just that they did. I agree with Hank, but my take is slightly different. I see American constitutional, political, and especially social historytmpphpmp8krx.jpg as punctuated by eras, regimes, chapters, or orders. Take your pick.  With the presidency of Barack Obama we haven’t erased racism, but we have successfully created conditions for its ultimate extinction. My take involves not the reasons why people voted for an African American but the effects of their doing so, which includes most importantly, the effects on our children and their generation.  The fact that there will be an African American in the White House for the next four to eight years means that our children will grow up in a social order in which various maladies poisoning American society will be diminished if not entirely eliminated.  The present generation will no longer be inundated, explicitly and subliminally, with the idea that African Americans are foolish to strive to become president, or  worse that they are inferior to whites. This generation, in the social order that begins with the 44th president, will take certain things for granted. The ambience of this social order will contain a variety of possibilities of which we can now only speculate.  In this new social order there will be many firsts: the first woman president, this first female African American president, and perhaps, more importantly, a new generation of leaders, professionals, and white collar workers of all sorts heretofore restricted to whites only.  The point here is that the reasons or causes of various changes in the social order are independent of their effects. And it is extremely difficult to identify comprehensively just what those effects will be. Without being a Pollyanna, I think it is fair to say that the new social order is irreversible.  Just as Jackie Robinson’s breaking the color line in baseball had vast incalculable consequences for sports in particular and for racial integration generally, President Obama’s victory puts racism on track for extinction. How long will it take for racism’s demise?  Who can say?  But the dye has been cast.