Our Rights, Our Future

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.

InJustice of the Peace

By Naoma Nagahawatte, NCRCR Director

More than 40 years after the passage of milestone civil rights legislation in the US, an ugly vestige of the Jim Crow era emerged last week in Tangipahoa Parish, Louisiana. Keith Bardwell - a parish justice of the peace - refused to issue a marriage license to an interracial couple. After the initial shock segued into a dim awareness that we may not actually live in a ‘post-racial’ America, I realized that it might be appropriate to delve a bit deeper into the issue for some clarification:

Clarification # 1) It is illegal to deny people the right to marry based on race, isn’t it?

In 1967, the Supreme Court decided the landmark case Loving v. Virginia, striking down Virginia's anti-miscegenation statute, the Racial Integrity Act of 1924.  The Loving decision overturned an earlier Supreme Court ruling that had upheld anti-miscegenation laws, finally ending all legal sanctions for race-based restrictions on marriage in the United States.

Clarification # 2) If race-based restrictions on marriage are illegal, how could Keith Bardwell deny an interracial couple a license to marry?

According to an attorney with the American Civil Liberties Union (ACLU) of Louisiana, ''He knew he was breaking the law, but continued to do it.'' Bardwell, who has worked as a justice of the peace for 34 years, refused applications to four interracial couples in the past two-and-a-half years.

Clarification # 3) Keith Bardwell told the Associated Press, “I'm not a racist. I just don't believe in mixing the races that way.”

By denying two people of different races the right to marry because of race, Bardwell has discriminated against them on the basis of race.  Discrimination on the basis of race is a dictionary definition of racism… you do the math.

Clarification# 4) Bardwell also said he didn’t perform interracial marriages because, “In my heart, I feel the children will later suffer.”

Guess what? Anticipated prejudice is NOT a sufficient basis upon which to deny a marriage license. 

In 1984, a case called Palmore v. Sidoti came before the Supreme Court.  In Palmore, a Florida lower court ordered the removal of custody from a birth mother, as a result of her relationship and marriage to a member of another race. The lower court held that removal of custody was in the children’s best interest, given the hostility that the court expected the community might have towards interracial families.  The Supreme Court held that the effects of racial prejudice could not justify removing a child from the custody of a birth mother otherwise found to be an appropriate and fit parent, and that this classification on the basis of race is a violation of the Constitution. The Palmore theory can extend to marriage licenses. Denying a marriage license to an interracial couple on the contention that the effects of racial prejudice will cause their child to suffer is insufficient, violating the 14th Amendment of the Constitution. Put another way, the “for the kids” argument holds no water.

Still, there is reason to take heart. Steps against Mr. Bardwell have been taken. The ACLU of Louisiana sent a letter to the Louisiana Judiciary Committee, which oversees the state justices of the peace, asking it to investigate Bardwell and recommending ''the most severe sanctions available, because such blatant bigotry poses a substantial threat of serious harm to the administration of justice.'' In addition, the recently-denied couple is seeking to file a case against Bardwell with the U.S. Department of Justice. Our structure of checks and balances remains intact, allowing those like Bardwell, who slip through the system’s cracks, to be brought to justice.

Halliburton/KBR Employee Still Has No Access to the Courts

In light of the Franken Amendment currently pending in Congress, we thought it timely to re-post our earlier commentary on Jamie Leigh Jones' lack of access to the justice system. When first accepting employment with KBR/Halliburton, Jones had been forced to sign a mandatory arbitration clause which has now left her unable to pursue accountability for having been raped on the job.

Read Halliburton/KBR Employee Has No Access to the Courts.

Becoming a Juror Just Got More Complicated: Why the Gross Decision Matters.

by Koert Wehberg

In February 2007, Lilliann Williams-Jackson, an elementary school counselor in Washington, DC, was called to serve as a  juror in a death penalty case. A person’s life hung in the balance and Williams -Jackson took her obligation seriously.  Like countless citizens before her, Williams-Jackson believed her job would be waiting for her when she returned.  Unfortunately, she returned from jury duty in June only to learn that she had been involuntarily transferred to a different elementary school. 

Not believing the school principal’s story about budget cuts, Williams-Jackson sued the District, alleging that she had been transferred in violation of the Juror Act, a law protecting people from mistreatment by employers for having served jury duty.  During the trial that followed, a federal judge found the testimony of Williams-Jackson’s school principal, Cheryl Warley, to be inconsistent. Evidence indicated that signatures on documents from a school committee approving the transfer were forged and that members of the committee had not even participated in the meetings that lead to the reassignment. However, the judge said that she had to follow the Supreme Court’s analysis from a previous case known as Gross v. FBL Financial Services, decided in June of this year.

In Gross, Justice Clarence Thomas held that the Age Discrimination in Employment Act (ADEA) required plaintiffs to prove that they had  experienced discrimination because of their age.  If there was no direct evidence of discrimination then they would not be able to prove their case.  This makes things exceedingly difficult for plaintiffs, especially in an employment situation, where employers have several motivations for demoting or terminating employees. 

In the Williams-Jackson case, Judge Collyer compared the text of the Juror Act to that of the ADEA.  Where the Juror Act defines discrimination as retaliation “by reason of” jury service, the Supreme Court held that the ADEA required plaintiffs to prove that they experienced discrimination “because of” their age. Since Williams-Jackson did not offer any direct evidence that her jury duty by itself caused her involuntary transfer, she did not succeed in her suit.  If people can be reassigned for performing their civic duty or demoted because of their age by failing to circumvent such a high evidentiary burden there is no telling what other protections under anti-discrimination laws hang in the balance.
 
In the jury duty case, where the mistakes of the school district were made evident, there was no recourse for the plaintiff. Based on Gross’s narrow interpretation of the ADEA, those that want to prove discrimination have a much higher bar, subsequently thwarting the public’s ability to get their discrimination cases into court. The Williams-Jackson case serves to illustrate the transcendence of the Gross ruling, showing that whether it be an issue of civic duty or age discrimination, Gross will continue to have negative consequences on civil rights in the United States.


Koert Wehberg is an Equal Justice Works Fellow and Staff Attorney in the Disability Law Center at New York Lawyers for the Public Interest. Koert's fellowship focuses on eliminating physical access barriers for low-income people of color with disabilities.  Some of these barriers include a lack of ramp access for wheelchair users as well as Braille signage for people who are blind.  Koert also works on housing discrimination cases representing people with disabilities who seek accommodations from landlords.  Koert graduated from Hamilton College with a BA in English and went on to receive his JD from the Syracuse University College of Law with a certificate in Disability Law and Policy.  He is a native New Yorker and enjoys listening to heavy metal in his spare time.

NCRCR Interview Series: Citizens United v. Federal Election Commission

Tricia Perry of the National Campaign to Restore Civil Rights spoke with legal scholar Erwin Chemerinsky about the recent re-argument of the Citizens United v. Federal Election Commission case in the Supreme Court. Listen in as Chemerinsky explains the potential impact of this ruling on our civil rights.

Court Rules Ashcroft Can Be Held Liable for Unlawful Detentions

A U.S. Circuit Court of Appeals on the west coast recently ruled that the Bush Administration’s use of material witness law to detain suspects without charge for indefinite periods of time after Sept. 11 was ''repugnant to the Constitution and a painful reminder of some of the most ignominious chapters of our national history.'' Right on. The court ruled also that former Attorney General John Ashcroft can indeed be held responsible for creating and overseeing policies that deliberately violate the law.

The incident at issue in the case occurred in 2003, when US citizen Abdullah al-Kidd was surrounded by federal agents while waiting for a flight at Dulles airport in Washington, DC. According to the Associated Press:

The Kansas-born husband and father of two was held for two weeks before being extradited to Idaho and released to the custody of his wife by a federal judge. The government thought al-Kidd had crucial testimony in a computer terrorism case against fellow Idaho student Sami Omar Al-Hussayen.

No charges were ever brought against al-Kidd, however. Yet his wrongful detention had lasting effects:

In his lawsuit, al-Kidd says he still suffers from the fallout of his arrest and confinement. He says he was jailed for 16 days in high-security cells that were lit 24 hours a day, and that he was strip-searched several times.

When a court ordered that he be released, he was required to live with his wife and in-laws in Nevada, limit his travel, surrender his passport and other travel documents, report to a probation officer and submit to home visits. The confinement and supervision lasted 15 months, and by the time it ended he had separated from his wife and had been fired from his job for a government contractor because the arrest left him unable to get the necessary security clearance.

In our legal system, a material witness is a person with information thought to be significant with regard to a criminal proceeding. During John Ashcroft’s tenure as attorney general - 2001 to 2005 - he used the USA Patriot Act to justify countless investigations and detentions of US citizens and residents in the name of national security.

In the court’s decision on September 4th, Judge Milan Smith said that those who wrote the US Constitution "would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a 'material witness' under the circumstances, and for the immediate purpose alleged." Smith continues: "Sadly, some confidently assert that the government has the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions."

While this ruling does provide good cause for hope that our court system will have the drive and power needed to restore our civil rights, the battle is far from over and the exact implications of the decision remain unclear. Unsurprisingly, Ashcroft had already asked the judge to dismiss the case on grounds that his position at the Department of Justice entitles him to absolute immunity from the lawsuit.  We may be seeing this case in the Supreme Court in days to come.

(Photo: StephenMitchell)

Important Victory For New Yorkers With Psychiatric Disabilities

This week saw an important victory in the courts for the civil rights of people with psychiatric disabilities. A federal judge ruled that New York State has violated the Americans With Disabilities Act by warehousing more than 4,300 people with mental illness -- not considered dangerous to themselves or others -- in places called 'adult homes,' which segregate them from everyone else.

In its coverage of the ruling, The New York Times featured the story of a woman in the city's adult home system:

For much of her life, a woman identified in court papers only as S. K. took care of other people. She raised four children on Long Island; when her husband died, she moved to Astoria and worked as a nurse's aide and gave medications. Through all this, she struggled with depression. She lived in Georgia with a daughter for a few years, holding down a job in a deli, and then came back to New York and stayed with a sister. During an episode of severe depression, she checked into a hospital.

When the time came for S. K. to go home, her sister could not cope with her illness and would not take her back.

Although S. K. was able to care for herself, manage her money and live alone, she wound up in an adult home -- privately run facilities that have as many as 400 people under one roof. For nearly 40 years, adult homes have been the subject of scandal, outrage, investigations and promises of reform, much like the state hospitals they were supposed to replace. By now, the largest adult homes have more residents than psychiatric hospitals.

Like many people with mental illness, S. K. was not sent to the adult home for any reason other than to stash her somewhere, off the street.

To address situations such as this, a collection of nonprofit legal services groups (Disability Advocates Inc., the Mental Health Legal Service and NYLPI) the other co-counsel (pro bono lawyers from Paul Weiss Disability Advocates) filed a lawsuit in 2003. In May of this year, six years after the case was filed, the case went to trial. The 210-page ruling, in addition to finding that the state had violated the rights of thousands of people with mental illness housed in adult homes, ordered the state to propose a solution which will allow  adult-home residents who want to to move into supportive housing in the community to do so. The state's proposal is due on October 23, 2009.  One important finding the court made was that housing people with mental illness in the community in supportive housing is not only legally mandated, it is no more expensive than maintaining them in segregated and deficient adult homes.  In other words, not only is giving people with mental illness the services they need to live in the community the legally mandated thing to do, it is also the fiscally sensible thing to do. Roberta Mueller, Senior Staff Attorney at New York Lawyers for the Public Interest, one of the groups that brought the suit, discussed the efforts made in the case:

As the length and detail of the court's opinion shows, vast amounts of evidence including expert testimony, data, and testimony from the residents themselves had to be marshaled and presented in order to persuade the court of the elements of the plaintiffs' claims. 

It is unfortunate that the plaintiffs had to spend six years in court before winning recognition of the basic right to live in the community.  We can also lament the fact that, during those six years, thousands of people were stuck in adult homes and will remain there while the state appeals the decision and drags its heels on developing a remedy.  But we should also celebrate the fact that, at the end of the day, the federal courts remain a place to go when rights are violated and no one else is listening -- and that those courts are willing to act.

This decision should serve as an important reminder, recognizing the key role of the court system in enforcing our nation's dream of creating a fair and more equal society.