Archive for the ‘Justice’ Category

Health Care – Now?

Written by Rebecca Zietlow on September 10th, 2009

It’s been quite a week. I watched folks marching in the Labor Day parade carrying “Health Care Now” signs, and heard an enthusiastic crowd member call out, “Health care yesterday!” I talked to tmpphpzd3xO3my friend whose husband lost his job about her difficult decision about whether or not to take her son to the doctor for an ear infection since it would cost over $100. I think of my friend who was just diagnosed with cancer. Thank goodness she has health insurance – I can’t bear to think of her having to forego treatment, as so many have who can’t afford it and lack the insurance to pay for it. I think of my friend with the severely disabled daughter who can’t move because after years, she finally got her daughter on state supported health care. I think, maybe relief is finally here for her and the 46 million uninsured in this country.

Yesterday, President Obama said that health care reform is not just an economic issue, it’s a moral issue. I agree. Why do the people who suffer bad luck such as loss of job or severe illness then have the further bad luck of not being able to afford health care? It’s just not fair, and it’s not in this way in any other advanced industrialized nation. Health Care (Reform) Now? I sure hope that it will be here soon.

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.

Michael Vick and Redemption

Written by Henry L. Chambers, Jr. on August 12th, 2009

Michael Vick is a former professional football player and a convicted dog killer.  Vick has sertmpphp3hkWmTved the sentence imposed on him by the justice system and is no longer incarcerated.  The National Football League has reinstated him and any team is free to employ him.  However, many protesters appear to believe either that he should not be allowed to play or that he should not be hired by any NFL team.  Undoubtedly, these folks have every right to refuse to support any NFL team or the league itself if it employs someone they do not like.  They even have the right to try to influence others to boycott the NFL.  However, the anti-Vick vitriol appears to be less about whether folks should like Vick and more about whether Vick deserves to play in the NFL.  That is, many of the protesters appear to believe that Vick has not sufficiently redeemed himself to play in the NFL and earn the accolades that come from playing in the league.  They may be correct, though that may be an argument for lessening the accolades derived from being an NFL player.

However, the question of redemption becomes more interesting when it is applied to Vick’s general employability.  It is unclear that Vick would need to redeem himself to work in a less glamourous field.  Indeed, Vick worked construction without much protest when he was on supervised release.  Presumably, if Vick worked a minimum wage job and was a member of the working poor for the remainder of his life, the protesters would not care.  Indeed, if protesters claimed that Vick should not be able to earn a living at all, the protesters would likely be on the defensive.   Many of the protesters likely would defend a released ex-con’s right to earn a wage from whomever would hire him.   Consequently, the protests in Vick’s situation appear to be soely about stopping Vick from regaining a privileged life.  That sounds far more like revenge than a real desire for Vick to demonstrate redemption.

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.

Gates, Crowley and Police Reports: The Teachable Moment

Written by Henry L. Chambers, Jr. on July 29th, 2009

One real and lost teachable moment in the Prof. Gates/Sgt. Crowley incident relates to how police reports ought to be read.  From the start of the process, many (including Mika Brzezinski of MSNBC’s Morning Joe) have pointed to Sgt. Crowley’s police report and his statements as the truth regarding what occurred surrounding the Prof. Gates’ arrest.   In the process, they explicitly and implicitly dismissed Prof. Gates’ statements as the statements of an interested party.  The developments of the last few days, including the release of the 911 tapes and radio transmissions related to the incident, suggest that the police report is not worthy of complete belief.  This is no surprise to those of us who teach criminal law.

Sgt. Crowley’s police report indicated that Lucia Whalen told him that she saw one of two black men with backpacks trying to force entry into Prof. Gates’ house.  The 911 tapes show that Whalen only mentioned race to the dispatcher after the dispatcher asked about the race of the suspects adding that one may have been Hispanic and she had no idea about the others.  In addition, she mentioned that the men had suitcases and may have lived in the25gates1 house.  Unless Whalen gained new powers of perception between her 911 call and her conversation with Crowley – which she claimed consisted of identifying herself and little else – the part of the police report regarding the description of the putative suspects is simply fiction.  The explanation for the discrepancy could be that Whalen is lying.  However, it is far more likely that Sgt. Crowley either assumed that the suspects were black or added this detail to make his arrest of Gates appear more reasonable.   The need to make the arrest appear reasonable was particularly necessary in this case, but is present in all cases.  A police report is a post-hoc justification for an arrest.   When an arrest is justified, a police report need not be shaded in a particular direction though may be on occasion.  When an arrest is unjustified, a police report must be shaded heavily or, others might say, simply falsified.  When considered through this prism, one must ask what other parts of the police report were shaded.  Given the radio transmissions, one part of the police report that was likely shaded was the part that claimed that the kitchen acoustics made it necessary for Sgt. Crowley to leave the house.  That Gates followed Crowley out of the house and onto the porch provided Crowley the supposed justification to arrest Gates.  The police report may contain the essence of the dispute, but it almost certainly is inaccurate on key issues.   That creates a teachable moment that is unlikely to be raised during Pres. Obama’s beer summit between Gates and Crowley.

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

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.

Out with a Whimper

Written by Rebecca Zietlow on July 2nd, 2009

The Supreme Court’s season is over, and it ended not with a bang, but a whimper.  The Court did not strike down the Voting Rights Act after all (thank goodness).  The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue.  And, despite disparaging remarks and jokes during the oral argument over the case, eight members of the Court agreed that strip search of a 13 year girl alleged to have brought an Ibuprofen pill to school violated the 4th Amendment.  As many commentators have noted, the Court is moving to the right, but it could have moved a lot farther.

Why the whimper instead of a bang?  Could it be that members of the Court are influenced by politics?  The most interesting case to me is the strip search case.  Justice Ginsburg, the only woman on the Supreme Court, was open about her concern that her male colleagues were insufficiently attentive to the sensitivities of a 13 year old girl.  Did the fact that  another woman, Sonya Sotomayor, sits in the wings to be confirmed to the Court, have an impact of those colleagues as they mulled over that case?  Did the fact that Sotomayor is a person of color influence the members of the Court considering overruling the landmark Voting Rights Act even as conservative politicians were accusing Sotomayor of being a racist?  We will never know.

Ricci and Employment Tests

Written by Henry L. Chambers, Jr. on July 1st, 2009

The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday.  It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attericci-190.jpgmpt to guarantee racial equality in promotions.  Leaving aside civil service rules, Title VII and employment law in general allow employers to make employment decisions, including promotions, on any basis the employer wishes as long as those decisions do not trigger a disproportionate impact on various groups.  Of course, public employers also need to abide by the Constitution and civil service rules, but these rules can be left to the side for now.  Employers may generally choose its supervisors arbitrarily and capriciously – even at random – and not run afoul of Title VII if the results lead to a fully integrated pool of supervisors.  Given that, any selection process that an employer believes helpful in choosing supervisors is generally acceptable.  However, if the process yields a racial impact, Title VII requires that the process be justified as accurate and necessary.  New Haven took the position that their method for choosing lieutenants and captains was a reasonable way to choose supervisors as long as the supervisors chosen were a racially mixed group.  However, once it became clear that the process yielded a racial impact, New Haven viewed the process as an insufficiently justifiable to overcome its racially disproportionate results.  Oddly, the conservative majority of the Court took the position that the method New Haven chose relied “on objective examinations to identify the best qualified candidates.” That is, the conservative majority took the position that a merely noncapricious process for choosing candidates for promotion that yielded a disproportionate racial impact was an objective measure of merit even though the employer that used the process took the position that the process could not be defended as an objective measure of merit.  This is troubling, but not necessarily surprising.