Our Rights, Our Future

Checks And Balances: So Much More Than Your Every Day Civics Lesson.

As the American colonies gained their independence from England, our nation’s Founding Fathers were concerned about freedom. They wanted to create governments at both the national and state levels that would maintain and promote order, yet protect the rights of their citizens. From this dilemma sprung the concept of checks and balances, a mechanism through which the three branches of government (executive, legislative and judicial) have ways to overrule each other, preventing any one branch from becoming too powerful.

There are innumerable examples of how checks and balances function to protect our freedoms.  For example, the Oklahoma state legislature recently passed a law requiring women seeking an abortion first to have an ultrasound.  However, an Oklahoma district court dismissed the law as unconstitutional before it went into effect.

A number of states have laws that require women to have an ultrasound before having an abortion. In three states (Alabama, Louisiana and Mississippi), doctors are required to offer women the opportunity to see the image. However, according to the New York Times, Oklahoma's legislature attempted to require “the doctor or technician… set up the ultrasound monitor where the woman could see it and then talk her through the procedure, describing the heart, limbs and internal organs.

The woman would be allowed to “avert her eyes,” the article said.

In early stages of pregnancy, the law would have required the ultrasound to be done vaginally to get a clear image, service providers said. No exceptions were made for rape and incest victims. Due to this lack of an exception for victims of sexual assault, Oklahoma state governor Henry made his own unsuccessful attempt at wielding his own power of checks and balances by vetoeing the bill immediately after it was passed. However, his veto was overriden in the state legislature.

Those that oppose choice in the Oklahoma state legislature have vowed to re-write and pass the law yet again.  “Before that mother goes through the procedure, we believe it is positive public policy to give her as much information as possible about that baby,” said Senator Todd Lamb (R – OK), “She might just change her mind and, who knows, that baby could be a future Nobel Prize winner.” Many pro-choice advocates disagree, glad that "women in Oklahoma who will be spared...a law that questions their autonomy and threatens their health and dignity."

So goes an example of our great system at work. In the case of reproductive rights, the battle is far from over. However, in the state of Oklahoma, where 96% percent of counties do not even have an abortion provider, the court system will play a significant role alongside the legislature in determining the nature of women's access to reproductive choice.

New Media and Disability: Equality in Access

While the newest internet fads go in and out of style in the blink of an eye, the past few years have seen an explosion of multimedia content, from  podcasting to YouTube. In producing such material, however, it is important to account for those that the ‘information highway’ may be leaving behind.

Consider the case of Ms. Martinez:

Ms. Martinez is taking several distance learning courses in physics. She is deaf. She had little trouble with the curriculum until the university upgraded their on-line courseware to a multimedia approach, using an extensive collection of audio lectures. For classroom-based lectures the university provided interpreters; however for web-based instruction they initially did not realize that accessibility was an issue. Later the university said they had no idea how to provide the material in accessible format. She pointed out that the University was clearly covered by a policy requiring accessibility of online instructional material, recommending Web Content Accessibility Guidelines 1.0 as a resource providing guidance on how to make websites, including those with multimedia, accessible.

When surfing the web, people with visual or hearing impairment depend upon screen access technology, which converts documents, web pages, and other text on the computer screen into synthesized speech or Braille. If a website is not properly coded, it cannot be read by this technology, and, consequently, users cannot access the functionality of the site. On an international level, The Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C) "develops guidelines for accessibility of websites, browsers, and authoring tools, in order to make it easier for people with disabilities to use the web." To learn more about how various types of people with disabilities use the internet, click here.

In developing our website and materials, NCRCR has been working to ensure compliance with web accessibility standards and, even more importantly, that our materials are in fact accessible.  There’s a lot of information available but it’s also taken some digging.  Recently, for example, as we launched our Audio Interview Series, we committed to providing transcriptions of the interviews. Stay tuned for transcriptions of our video work as well.

Of course, Ms. Martinez’s reality and our work are highly tied in with our judicial system and even our legislature. At the federal level, two laws – the Rehabilitation Act and the Americans with Disabilities Act of 1990 (ADA) -- exist to help ensure equality in access. In 1998, Congress moved to require all federal agencies make their information technology accessible to people with disabilities. Agencies are required to give employees with disabilities and members of the public with disabilities access to information that is comparable to the access available to others. The Department of Justice also offers additional ADA standards for Accessible Design. Despite these efforts, many non-federal parties display little actual forethought and even less compliance with the right to equal access of information on the web.

Luckily, the courts remain at our disposal when we need to enforce our civil rights. One noteworthy lawsuit was filed in the state of California in 2006 by the National Federation for the Blind; they alleged that the website for Target stores was inaccessible to people with disabilities using screen access technology. In a settlement, Target was forced to bring its website fully in line with accessibility standards and to offer substantial compensation to those affected.

Similarly, a case was filed this year by college junior Darrell Shandrow against Arizona State University for its usage of the Amazon Kindle electronic book device in the classroom, citing discrimination against those with visually impairment.

It is heartening to see the courts uphold the principle of equality in access. Though many may not realize it, equality in access is a civil right. Each case that is heard on the issue is a step toward the ongoing struggle for civil rights. Therefore it is crucial we make our voices heard to ensure that the courts are moving forward to address injustice, not backward.

(Photo: Sammy0716)

How the Supreme Court Pulled a Fast One, and America Didn't Notice.

The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.

These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court.  In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case.  What does the term ‘plausibility standard’ mean?  The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.

When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.

According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”

Most law students learn that there’s something called “notice pleading” in federal courts.  Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about.  Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?

Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them.  It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case.  No one hands documents over until they are required to do so.  Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over.  This new barrier posed by the Supreme Court appears to be too high.

Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."

Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal.  The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.

Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives.  Even these so-called conservative judges are “making law.”  We, and our media, should be paying attention.

Obama Names Four Federal Judge Nominees for California

Last week, President Obama named four new judicial nominees for California’s federal bench. Included in the group is Judge Jacquelyn H. Nguyen, who if confirmed would be the nation’s first Vietnamese district judge. Three of the four nominees are Asian Americans, a group long underrepresented on the federal bench.

The new nominees are Dolly Gee, age 50; Judge Jacquelyn H. Nguyen, age 44; Judge Edward M. Chen, age 56; and Judge Richard G. Seeborg, age 52. Ms. Gee is a labor and employment litigator, and past president of the Southern California Chinese Lawyers Association. She is currently managing partner of the Los Angeles law firm Schwartz, Steinsapir, Dohrmann & Sommers LLP. Jacquelyn H. Nguyen is currently a Los Angeles County Superior Court Judge, and a graduate of UCLA law. Senate conformation would make her the nation's first Vietnamese district judge. Edward M. Chen is a U.S. Magistrate Judge, who worked as an attorney for the American Civil Liberties Union before his judicial appointment. If confirmed, Judge Chen would be the only Asian American on the Northern District bench. Richard G. Seeborg is a  U.S. Magistrate Judge, who served as an assistant U.S. attorney in San Jose. Seeborg worked at Morrison & Foerster in Palo Alto and San Francisco prior to being named a magistrate judge.

 
Supreme Court Justice Sonia Sotomayor was grilled for almost a week by members of the Senate Judiciary Committee. However, Obama's district court appointments will likely be subject to less scrutiny as lower court nominations are usually less controversial. Regardless, these nominations will have a massive impact on the future of civil rights in the U.S. Within Congressional and Constitutional limits, district courts can hear nearly all categories of federal cases, including both civil and criminal matters. District courts are relied on to apply the law at trial, while appeals court judges have more leeway to interpret a law's intent and context. Currently, the U.S. 9th Circuit Court of Appeals in San Francisco has two of its 28 judgeships vacant, and a third possible opening early next year. Therefore, it is crucial that we pay close attention to the proceedings, our rights do hang in the balance.

U.S. Joins the International Community on Disability Rights

Last week, the United States joined over 140 countries in signing the UN Convention on the Rights of Persons with Disabilities (CRPD). This move marks a significant shift in American foreign policy, the CRPD is the first international treaty that the US has been party to in nearly a decade.

The CRPD was adopted by the UN General Assembly in 2006. However, the U.S. did not sign the treaty at that time due to the Bush administration’s insistence that an international treaty would damage protections provided by the Americans with Disabilities Act (ADA). In contrast, the Obama administration used the 19th anniversary of the ADA to endorse the CRPD. "I'm proud of the progress we've made," Obama said. "But I'm not satisfied." The next stop for the CRPD is the US Senate, which will have to ratify the convention in order to make it binding US law.

Currently more than 650 million people worldwide, including 54 million Americans, live with a disability.  Disability is not a partisan issue - it touches the lives of all people, regardless or race, age or gender. It is crucial that the United States Senate stand with the rest of the world to ensure the rights of all people are protected.

For more information on the CRPD, click here. For more information on disability rights in the U.S., click here.

NCRCR Interview Series: The Civil Rights Impact Of Sonia Sotomayor's Confirmation

The Campaign spoke this week with Cesar Perales, the President and General Counsel of LatinoJustice PRLDEF, about Justice Sonia Sotomayor's historic confirmation. Mr. Perales served with Justice Sotomayor during her tenure as a member of PRLDEF's board. He provides excellent insight into the hearing's meaning for civil rights and the continuing politicization of the judiciary. A short version of the interview is available here:

The full interview is available here:

Senate Confirms Nation's First Hispanic Supreme Court Justice, Sonia Sotomayor

The Senate voted today 68-31 to confirm Sonia Sotomayor as the newest Associate Justice of the Supreme Court. The historic confirmation vote makes Justice Sotomayor the nation's first hispanic justice, and the third woman ever to serve on the nation’s highest Court.

Local Ordinances Being Used To Allow Anti-Immigrant Discrimination

In the wake of Congress' failure to pass comprehensive immigration reform, some anti-immigration activists are beginning to actively pursue discriminatory immigration policies through local ordinances. Many of the ordinances targeting undocumented workers appear to be grossly unconstitutional and largely hypocritical. Ironically, those who support anti-immigration policies, many of whom eagerly denounce the judiciary's connection to policy, are using the courts to accomplish their own policy aims.