Our Rights, Our Future

Despite the Fine Print, the Courts in Washington State Are Open!

By Paula Z. Segal

When you buy a computer or any other complicated piece of consumer electronics, you also receive a bundle of infinitesimally small print type, that many of us all too often skip reading. Some of that small print is written specifically to protect the companies from you: a future, frustrated version of you, who might decide to sue the company for selling a defective product.

Kristin Cariedo bought a new Dell laptop for $1300. Catherine Candler paid $1700 for hers. Neither computer worked the way it was supposed to. Ms. Cariedo and Ms. Candler wanted to sue Dell to get their money back but the fine print that accompanied their laptops said that by simply buying and keeping the computers, Ms. Cariedo and Ms. Candler and all other consumers buying Dells laptops waived their right to ever sue Dell. Dell had written an “agreement” that said that any disputes between consumers and Dell were to be settled through arbitration by a private arbitrator that Dell had selected (the National Arbitration Forum); Dell also said that no class actions were permitted, meaning that consumers could not get together to bring Dell to court for selling defective products. The “agreement” that Ms. Cariedo and Ms. Candler had entered into with Dell when they bought their computers was designed to keep them out of court.

The National Arbitration Forum (NAF), the arbitrator that Dell chose, turned out to not be a neutral arbitrator; rather, it turned out to be intimately tied to the country’s largest debt collection firms, which profit directly from deciding cases against consumers. A House of Representatives investigation report on NAF documented its abuses, and lawsuits have been filed against NAF nationwide. The Center for Responsible Lending issued a report calling NAF’s neutrality into question in May 2009, and finding that NAF decisions tend to favor companies – like Dell – that give them business. In the midst of all this controversy, NAF stopped accepting consumer arbitrations in July 2009.

On October 26, 2009, the highest court in Washington State, where Ms. Cariedo and Ms. Candler brought their case against Dell, ruled that the mandatory arbitration agreement written into the fine print of their computer purchase agreements could not be enforced because NAF, the arbitrator, was not available. The court refused to appoint a different arbitrator.

The Washington court also said that the provision prohibiting class action lawsuits could not be enforced. Class actions are important because they allow individual consumers to use their collective resources to hire experts to testify at trial. In consumer cases, where the amount at stake is usually the price of the purchased item, the expense added by hiring an expert makes the lawsuit unreasonable to fund. When the expense is shared by many consumers of similarly defective products, the lawsuit becomes possible.

Now Ms. Cariedo, Ms. Candler and everyone else who purchased defective computers from Dell can go to court to ask for their money back (at least in Washington State). They can come together in a class action to bring the best case possible against Dell and other corporations selling defective products. This ruling, opening the courts to consumers despite the fine print designed by companies to keep them out, recognizes that consumers’ ability to sue is crucial to preventing widespread misconduct by corporations.

Paula Z. Segal is a second year student at City University of New York School of Law and a Haywood Burns Fellow in Civil and Human Rights. Before law school, she taught English to Speakers of Other Languages and continues to develop materials for ESOL instructors to connect language and life skills. She is also working with the New York Civil Liberties Union to reduce the school to prison pipeline and coordinates the CUNY Street Law Team, which brings the law to New York City high school students and community groups. For more on the school to prison pipeline, go to http://www.nyclu.org/issues/youth-and-student-rights.

Protect the Victim, Not the Aggressor

In 2002, the CIA came to suspect 39-year-old Canadian telecommunications engineer Maher Arar of having ties to Al-Qaeda. The CIA convinced the Canadian government to share information on Arar's whereabouts. While Arar was returning home to Canada from a vacation in Tunisia, transferring planes at Kennedy airport, he was taken into custody and held in New York for two weeks before being ushered off to a prison in Syria.  He was tortured and otherwise subjected to inhumane conditions for a year, and then released.

After returning to his home in Ottawa, Arar sought justice. He filed near-identical lawsuits in both Canada and the United States. In Canada, after an investigation, a judge confirmed that Arar had undergone intensive torture while in Syria.  It was also found that the initial allegation that Mr. Arar was a probable al-Qaeda terrorist had no substance. The judiciary also found that Canadian officials were 'unintentionally complicit' in overseas torture. A mediation was held with federal government officials and a near-record $10.5-million in damages was awarded to Arar and his family.

Despite the fact that both the Canadian and U.S. lawsuits were essentially the same -- and that the U.S. was actually responsible for Arar’s extraordinary rendition -- the lawsuit played out very differently in the U.S. courts. Firstly, a federal judge dismissed Arar’s U.S. suit in 2006, a decision that was affirmed in 2008 by a three-judge appeals panel. Then, in a surprising move, the full bench of judges on the Second Circuit Court of Appeals decided to hear the case. The 59-page ruling, released last week, concluded that Arar could not sue the officials involved in his rendition, namely former Attorney General John Ashcroft. The Second Circuit said that if a civil damages remedy were to be created, Congress would have to do it.

In the majority opinion, Judge Jacobs wrote that it was for the executive branch to “decide how to implement extraordinary rendition, and for the elected members of Congress — and not for us as judges — to decide whether an individual may seek compensation” from officials for a constitutional violation.  Funny, that sounds exactly like what the judiciary should be doing.

Judge Jacobs defended the court’s stance by saying that allowing suits against policymakers in rendition cases would “affect diplomacy, foreign policy and the security of the nation.” Is no one concerned with the integrity of our nation? Finally, Justice Jacobs said that administrations had practiced rendition since at least 1995, and judicial review would “offend the separation of powers.” Again, judicial review is supposed to provide the separation of powers, and should not offend it in any way.

The four judges who disagreed with the ruling were not shy about expressing their disappointment. Judge Calabresi wrote, “I believe that when the history of this distinguished court is written, today’s majority decision will be viewed with dismay.” He asserted that the majority opinion had gone astray in its “utter subservience to the executive branch.” Judge Calabresi further expressed his “conviction that in calmer times, wise people will ask themselves: How could such able and worthy judges have done that?” The American public should be asking that question now.

The Center for Constitutional Rights, which has spearheaded Arar’s case, issued the following statement on Arar’s behalf:

“After seven years of pain and hard struggle it was my hope that the court system would listen to my plea and act as an independent body from the executive branch. Unfortunately… the court system in the United States has become more or less a tool that the executive branch can easily manipulate through unfounded allegations and fear mongering. If anything, this decision is a loss to all Americans and to the rule of law.”

There is a good chance that Arar and his lawyers will appeal the decision to the Supreme Court; let’s keep our fingers crossed that our nation’s highest court will decide to protect the victim, not the aggressor.

(Photo by erokCom.)

Supreme Court Failing to Put Out the Fires of Discrimination

African Americans, Latinos, Asian Americans and women are still grossly underrepresented among our nation's firefighters.  As a report of the International Association of Firefighters Union recently put it, diversity among firefighters is important for a number of reasons, "most fire departments want to better understand, communicate with, and enlist cooperation in our multi-cultural communities."  In addition, making sure that the ranks of fire departments are open to everyone is just plain fair. 

In an effort to go from a homogeneous fire department to a diverse and equitable force, common sense and civil rights law suggest that our nation's fire departments take a long look at the way they recruit, hire, promote and support firefighters -- weeding out any processes that are discriminatory either intentionally or in effect.  One such effort in New Haven became entangled in a lawsuit, reflecting just how difficult it is to make change.

As anyone who followed Justice Sotomayor's nomination probably knows, Ricci v. DeStefano involved a lawsuit by white firefighter promotion exam candidates, who disagreed with the City of New Haven's decision to hold off certifying the results of an examination based on the City's concern that the test disproportionately screened out minority candidates,  and might not be valid.  The exam had two main components, oral and written, and New Haven weighed the components of the exam differently than other cities, favoring the written component. The group of white firefighters who brought suit argued that the City's decision was race-based,  and violated Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination. The Supreme Court agreed. 

Needless to say, the Supreme Court's decision was controversial. How could New Haven's decision to set aside a potentially discriminatory test itself be discriminatory?  According to Sarah Crawford from the Lawyers’ Committee for Civil Rights Under Law, the Ricci decision "ignores the plain language of Title VII, congressional intent and established precedent.”  And, indeed, three months after the Supreme Court's decision, an African American firefighter in New Haven filed another lawsuit against the City, this time arguing that he was unfairly denied promotion to lieutenant because of the way that the city scored its 2003 exam.   According to Michael Briscoe, who brought the case, the norm for promotional exams is to weigh the oral portion of the exam at 70 percent, as oral exams are a fairer and more accurate way to judge the skills of a firefighter. Briscoe claims that the city knew that its decision to weight the written portion of the exam at 60% would have a disparate impact on minorities. Although Briscoe says he had the highest score in the department on the oral section of the exam, he ended up ranked 24th and thus did not qualify for a promotion. Had the exam had been weighted like other city's tests, more African-Americans would have scored well enough to be promoted. The outcome of the new case remains to be seen.

There are other cases about the employment policies of fire departments bubbling up through the courts.  The Supreme Court recently agreed to hear argument in Lewis v. Chicago, which was brought by 6,000 black applicants to challenge a hiring exam administered by the city of Chicago in 1995.  Though a federal judge in Chicago ruled that the city had, indeed, discriminated against black candidates, the case was stalled by the city's argument that the firefighters had delayed more than a year before challenging the test results, therefore losing their right to bring suit.  The firefighters argued that the suit was timely because the clock shouldn't start ticking until the fire department uses the test results to make hiring decisions, not when the exam is graded. Still, the Court of Appeals elected to throw out the case.

Making change is tough, but it remains crucial that we keep pushing toward a fairer future. We should take the mandate of the International Association of Firefighters Union seriously, and continue efforts to ensure a high level of diversity in our public institutions. And the courts need to be available to enforce the right to equal opportunity.

(Photo by nestor galina.)

Judges: Modern-Day Superheroes?

The state of California recently descended into such financial difficulties that British paper The Guardian questioned whether it might prove to be the first failed US state: “Desperate to pay off a crippling budget deficit, California is slashing spending in education and healthcare, laying off vast numbers of workers and forcing others to take unpaid leave.” The California Progress Report, a local forum for progressive advocates, listed the extent of permanent state budget cuts in social services as including developmental services, Medi-Cal, SSI/SSP (Supplemental Security Income/State Supplemental Payment Program), programs for senior citizens, mental health services, and programs for students with disabilities in community colleges.

Amidst the reductions, cutbacks in the In-Home Supportive Services (IHSS) program were particularly disappointing to disability advocates. The In-Home Supportive Services program currently serves approximately 450,000 children and adults with disabilities and mental health needs, people who are blind and low-income senior citizens. The Department of Health Care Services also plays a big role in overseeing the program for the state, because the program receives matching federal Medicaid (Medi-Cal) funding as well as state and county resources. The IHSS program is administered locally at the county level.

Beginning November 1st, the state of California decided to eliminate all IHSS services for an estimated 40,000 low-income senior citizens and people with disabilities. Another 90,000 people were slotted to lose services such as food shopping and assistance and help with laundry and housecleaning. These services are often crucial to a person’s ability to live independently, outside of more costly and generally inappropriate institutional settings.

Rather than let this happen, a coalition of lawyers and advocates filed a class action lawsuit on October 1st, in hope that the court would stop the cuts before they went into effect. The state had chosen October 19th as the date it would begin to inform the 130,000 people that they would be losing all or some of their services under the program.

In V.L. v Wagner, a federal judge named Claudia Wilken ruled that the state must suspend its proposed cuts to the IHSS program, because they would result in substantial harm, damage and injury. The judge objected to the arbitrary withdrawal of essential services, saying that the indicators that the state used to revise program eligibility were clearly not based on need, and, as such, “people could lose something irreplaceable – the ability to remain safely in their homes.” Judge Wilken argued that the plaintiffs were likely to show at trial that the cuts to services violate federal law.

Melinda Bird of Disability Rights California, the attorney leading the legal battle, spoke about the significance of the victory: “We are convinced a humanitarian disaster would have resulted from the precipitous and arbitrary withdrawal of essential services approved by the legislature and the administration in the budget, and are delighted that the Court agreed with us.”

This is a great example of the way in which our system of checks and balances works.  In this case, the court system came through to protect 130,000 Californians from an arbitrary government action that would have had real consequences for their well-being. Yet again, our access to justice makes a difference.

(Photo by Borya.)

NCRCR Interview Series: Nelson v. Norris

Tricia Perry of the National Campaign to Restore Civil Rights spoke with ACLU attorneys Elizabeth Alexander and Amy Fettig about the recent ruling in the Nelson v. Norris Supreme Court case. Listen in as Alexander and Fettig discuss the fight to end the practice of shackling imprisoned women during childbirth.