Our Rights, Our Future

NCRCR Interview Series: Lewis v. City of Chicago

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Josh Civin, Associate Counsel at the NAACP Legal Defense and Educational Fund, about the Lewis v. City of Chicago case involving racial discrimination in the hiring of firefighters. Listen in as Civin talks about the upcoming Supreme Court ruling that will decide if a district court's unappealed finding that an employer discriminated against over 6,000 African American job applicants can be dismissed on a procedural technicality about whether the applicants filed their lawsuit in time.

NCRCR on The Huffingon Post, Again!

The Campaign had a piece published on The Huffington Post today. Check out 'The Constitution Does Not Sanction Bigotry'.

Court to Indiana: You Cannot Balance Your Budget by Ignoring Foster Kids’ Rights To Food, Shelter & Clothing

By Paula Z. Segal

Last year, the state of Indiana proposed to balance its budget by cutting funding to foster children and adoptive services. To save $10 million, the Indiana Department of Social Services decided to cut the amount it pays for the support of children in foster care and special needs adoption assistance. The Department based its decision on abstract calculations about how much it costs to care for a child in America. It did not consider the expenses specific to caring for foster children; most tellingly, it did not consider travel costs for visiting the child’s biological family. It never asked for comments from foster families or the agencies that support them in Indiana.

In the fall of 2009, each foster family was slated for a 10% cut in the money it receives to buy necessities like food and clothing for children. And we’re not talking big money to begin with:  even before the cut, the state provided $25/day, which was theoretically supposed to cover the cost of food, clothing, shelter, daily supervision (such as child care), school supplies, a child’s personal incidentals, reasonable travel, and insurance liability, among other things.  Agencies that help foster children with special needs find permanent adoptive homes were facing a twenty percent reduction in their budgets – despite the need for more effort in this area.  There are currently more than 3,000 children in foster care waiting for adoption in Indiana, and a high number of these children have special needs.

States are scrambling to find money these days, no doubt.  But it’s also relevant here that the federal government reimburses the state of Indiana for more than 70% of the funding for these foster care and adoptive services.

A group of foster parents and children sued the Department in an effort to stop the cuts from eliminating their already limited resources under a federal law, 42 U.S.C. Section 1983,  which allows individuals to sue the government or a government employee who has infringed on their rights under the Constitution or the laws of the United States. Referred to as “Section 1983,” this law was originally passed after the Civil War to help African-Americans exercise new rights created by the 13th, 14th, and 15th Amendments. Those amendments prohibited slavery, established the right to due process and equal protection, and guaranteed every male citizen the right to vote. Although these Amendments became part of the Constitution, state courts refused to enforce them, especially when people’s rights were violated by other state or local government officials. The U.S. Congress passed Section 1983 to allow people to sue in federal court when a state or local official violates their federal rights. The statute can be used by anyone who believes their rights under federal law are being denied.

As a result of the Supreme Court’s decision in a 2002 case, Gonzaga v. Doe, it has become more difficult to bring a case under Section 1983.  Among other things, to be successful, the person or people suing have to show that they actually have a right on which the government is treading.  That sounds easy, but it depends on how the federal law was written. Some rights are clearly established. For example, the Americans with Disabilities Act, a federal law, says that everyone has a right not be discriminated against at work because of a physical impairment. This is clearly a right that can be enforced by a person who experiences discrimination at work.  Not all laws are written quite this clearly.

The right to funding that foster parents wanted the court to enforce was based on a portion of the federal Social Security Act that says that payments to foster families must cover the cost of food, shelter, clothing and other needs. It also says that families adopting children must get money to assist in the adoption process based on their circumstances and the needs of the child or children they are adopting. The federal court in Indiana decided that the law created an enforceable right for the people in the programs. 

Because the Indiana Southern District Court interpreted the federal statute as creating a right for foster families, it could directly consider the effect of the proposed budget cuts on the children. The court acknowledged “the potential emotional upheaval and deprivation of basic necessities” that the cuts threatened for them and ordered Indiana’s Department of Social Service not to make the cutbacks.

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.

(Photo by Department for Children, Schools and Families.)

Checking Illegal Searches and Seizures

By Adam Francoeur

In March 2004, a train bombing in Madrid killed 191 people. In the search for a terror suspect, the FBI lent its energies to the Spanish government. A partial fingerprint from a plastic bag had been found at the scene, which matched roughly twenty people in the FBI’s database. It happened that one of the possible matches was Muslim: US citizen Brandon Mayfield, a former army officer. The FBI stepped up its surveillance of Mayfield and installed electronic listening devices in his home and office.  In May of that same year, Mayfield was arrested and imprisoned. His family was informed that he was the primary suspect in the Madrid train bombing, but they were not told of his whereabouts.

Two weeks later, news reports indicated that the Spanish government had definitively matched the same fingerprint to an Algerian national named Ouhane Daoud.  Mayfield was subsequently released by the FBI. 

Upon his release, Mayfield sued the government, alleging violations of his 4th Amendment rights -- those preventing search and seizure without probable cause.  Mayfield also sought to challenge the legislation that had allowed for the FBI to search his home and office without a warrant: the Foreign Service Intelligence Act, or FISA. According to the ACLU, recent legislation such as the USA PATRIOT Act has effectively made it “easier for the government to obtain the personal records of ordinary Americans from libraries and Internet Service Providers, even when they are not suspected of having connections to terrorism.”

The government elected to settle Mayfield’s lawsuit out of court, awarding him $2 million dollars in damages in exchange for his promise to relieve the government of legal liability.  Mayfield would not give up his right to challenge the constitutionality of certain provisions of FISA regarding illegal searches, though, and his case proceeded to the courts.

In the first hearing of Mayfield v. United States, the trial court found sections of FISA unconstitutional.  The government appealed the decision, however.  The appeals court that heard the case overturned the lower court’s judgment, finding that the government was under no obligation to destroy information obtained as a result of its illegal search.  All provisions of FISA remain intact.

It is undeniable that those of Muslim faith and descent have had their civil rights particularly hard-hit in the aftermath of September 11th. But the American public is also blissfully unaware of the extent to which the government has granted itself unprecedented powers to spy on the lives of its citizens -- not to mention the ability to imprison them on a whim.  Since 2001, some of our most basic legal rights have been compromised in the name of national (and international, in this case) security.   Our court system has the capacity to keep such damaging legislation in check; let’s hope further rulings bend the arc back toward the fairness and justice upon which our nation was founded.

Adam Francoeur is a second year student at City University of New York School of Law.  Before coming to law school he was the policy director of Immigration Equality, an organization that advances the rights of lesbian, gay, bisexual, transgender and HIV-positive non-citizens where he was instrumental in the effort to repeal the HIV-immigration ban (for more information on Immigration Equality visit their website at www.immigrationequality.org).  Adam has authored several articles and reports on LGBT and HIV-positive immigrants in the modern administrative state including, The Enemy Within: Constructions of U.S. Immigration Law and the Homoterrorist Threat.  Adam spent his summer working at the Staff Attorney’s Office of the U.S. Court of Appeals for the Second Circuit.

(Photo by mrehan.)

A New Era of Freedom...for Polluters

Last month, the New York Times ‘Toxic Waters’ column published an article on the impact of Supreme Court rulings on the regulation of water pollution.  It begins:

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according to Environmental Protection Agency regulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation’s largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.

The article goes on to discuss the two Supreme Court cases that are collectively responsible for the decline in regulation of waterways. In 2001, the Court ruled in Solid Waste Agency v. Army Corps of Engineers that the Clean Water Act only applies to bodies of water that run between states and not those that are within states. This decision has left a good deal of intrastate bodies of water utterly without defense -- and, really, who’s to know if what flows underground in Kansas City, Missouri, will wind up in Kansas City, Kansas!

The 2006 decision in Rapanos v. United States further muddied the water. Five members of the Supreme Court -- four Justices who came to agreement plus Justice Kennedy, who wrote his own opinion --  limited the enforcement of the federal Clean Water Act, dismissing a lawsuit against a developer who was building a mall on a wetland. The bigger question before the Court, though, was whether federal law applies to wetlands, and if so, which wetlands can be regulated. 

Justice Stevens, who wrote a dissenting opinion, was critical of the Court for departing from thirty years of tradition in interpreting the Clean Water Act and also from the intent of the law, which was to protect the environment. He commented:

The broader question is whether regulations that have protected the quality of our waters for decades, that were implicitly approved by Congress, and that have been repeatedly enforced in case after case, must now be revised in light of the creative criticisms voiced by the plurality and Justice Kennedy today….

In my view, the proper analysis is straightforward. The Army Corps has determined that wetlands adjacent to tributaries of traditionally navigable waters preserve the quality of our Nation’s waters by, among other things, providing habitat for aquatic animals, keeping excessive sediment and toxic pollutants out of adjacent waters, and reducing downstream flooding by absorbing water at times of high flow. The Corps’ resulting decision to treat these wetlands as encompassed within the term “waters of the United States” is a quintessential example of the Executive’s reasonable interpretation of a statutory provision.…

While the Court did vote to dismiss the case against the developer, the justices couldn’t agree on which waters are covered by the Clean Water Act. This, in turn, created confusion at the Environmental Protection Agency regarding what the agency can regulate and, also, among potential polluters.

While these two cases may seem technical, they are very important in that they have brought about a new era of freedom for polluters. These court decisions present  another chapter in the recurring narrative of court actions that are weakening laws intended to protect Americans.

Access to a clean and safe environment is a basic civil and human right. The Clean Water Act's  objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”.  The law further states that “it is the national goal that the discharge into the navigable waters be eliminated by 1985.” Twenty-five years later, the Clean Water Act has made a big difference in our water quality -- but the past few years have seen a steady decline in enforcement.

Protecting the environment is not a partisan issue.  It's not Democratic or Republican. As Americans, we are all responsible for protecting the environment -- but we also assume that our government has the power to protect the air we breathe and the water we drink. It's upsetting to think that the majority of our top judges are protecting the economic rights of polluters and developers rather than the safety of our planet.

(Photo by tracyyxx.)

Grammy Award Winner Alicia Keys and Comedian Margaret Cho Join the NCRCR 2010 Youth Contest

The National Campaign to Restore Civil Rights is happy to announce the addition of artist/humanitarian Alicia Keys and comedian/civil rights activist Margaret Cho to the panel of judges for its 2010 Contest, which asks young people across the country for their views on equality.  More information is available on the contest site.