Our Rights, Our Future

What’s in the Best Interest of the Child? The Role of the Courts When Bias Gets in the Way.

In 2004, the state of Florida took custody of two young boys, brothers ages 4 years and 4 months, whose parents were seriously neglecting them. While the four-year-old had taught himself to feed his baby brother and to change diapers, both boys were sorely in need of loving, capable adults to care for and guide them. They found this care in Martin Gill and his long-term domestic partner, who took the boys in as foster children.

The boys flourished socially and otherwise during two years they lived with Gill as a family, and Gill sought to adopt them. He could not do so, however, because the state of Florida does not allow people who are gay or lesbian to adopt children. In 1977, the state passed a law banning adoption by gays and lesbians, which has yet to be repealed.

According to federal statistics, there are currently 123,000 children in foster care in the United States, in temporary placements, waiting to be adopted. Doesn’t every child deserve a permanent home?  And isn’t it the role of courts in this country to ensure that prejudice doesn’t bias our laws and cause harm to our citizens?

Gill could not bear the thought that the boys might be separated and taken from the only home they had ever known, and so he challenged the adoption ban in court. In 2008, a Miami circuit court ruled that the ban was unconstitutional. The state’s appeal is still pending, however. The boys, now 5 and 9 years old, do not fully understand what adoption means -- but they eagerly await the day they can share a last name with their doting father.

For years, courts across the nation have decided custody issues in terms of the “best interest of the child.” The courts have a role to play in adoption cases as well, to ensure that no child is deprived of a family and permanent home because of prejudice and baseless myths about gay people.

Florida families such as Martin Gill’s are not the only ones whose rights are at risk. In Arkansas, a law was passed by referendum in 2008 that bans all unmarried people living with an unmarried partner from adopting or fostering children. A challenge to that law, Cole v. Arkansas, expected to go to trial in May 2010, was brought on behalf of “20 individuals from nine different families, including a lesbian who lives with her partner of nine years and is the only relative able and willing to adopt her grandchild who is now in Arkansas state care, several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years.”

The battle to ensure the rights of LGBT individuals has been labeled by many as “the civil rights struggle of our generation.”  As the Gill family’s story shows, discrimination against LGBT people has collateral consequences for others, including vulnerable children.  Let’s hope, over the years to come, that the courts help to dismantle all manner of institutionalized discrimination and to protect the civil and human rights of all people -- especially our nation’s children.

(Photo by twodolla.)

Prescription Drug Companies Must Warn Consumers of Drug Side Effects

By Paula Z. Segal

Gladys Mensing had diabetic gastroparesis, a chronic condition caused by nerve damage. For a person suffering from this illness, the stomach takes too long to empty its contents. Symptoms include heartburn, nausea, vomiting undigested food, and weight loss. In 2001, Mensing’s doctor prescribed Reglan to treat her symptoms, and her pharmacist filled the prescription with a generic version of the drug. Ms. Mensing took the generic for four years,  and in the process developed tardive dyskinesia, a severe neurological movement disorder characterized by involuntary movements, especially of the lower face. Tardive means "delayed" and dyskinesia means "abnormal movement” -- symptoms include facial grimacing, jaw swinging, repetitive chewing, and tongue thrusting. While Ms. Mensing stopped taking the drug in 2005, the disorder is often irreversible and there are no known treatments.

Ms. Mensing sued the manufacturers of the drug she took (Pliva, Inc., Teva Pharmaceuticals USA, Inc., UDL Laboratories, Inc. and Actavis Elizabeth, LLC.) for failing to warn her and other consumers of the side effects of their drug and misrepresenting its safety. Doctors and consumers use the labels on prescription drugs to decide what drugs are safe enough to take and prescribe. Neither the label on Reglan or the label of the generic Ms. Mensing took warned of the actual quantity of risk of this severe disorder when taking the drug over a long period of time. The label said that the risk of any neurological disorder from taking the drug for at least three months was 1 in 500. It did not warn that certain groups of patients are more likely to develop the condition. The Food and Drug Administration (FDA) says that the risk for tardive dyskinesia alone is 20%  - one in five patients can develop the debilitating condition after taking the drug for just three months.  The FDA has also found that the elderly, especially elderly women like Ms. Mensing, are more likely to develop the condition. Yet Reglan had not updated its labels since 1985, just five years after Reglan was first approved by the FDA. Had Ms. Mensing and her doctor known about these risks, they would not have decided on long-term treatment with Reglan or its generic version.

Ms. Mensing sued the drug manufacturers in federal court. The generic manufacturer had a clever answer: It claimed that it could not put anything on its label that the name brand did not have on its label. So when Reglan left out its long term side effects, the generic manufacturer claimed that the law said they had to leave them out too -- even if Reglan was mistaken or lying to its customers. The generic manufacturer argued that federal law forbid them from taking steps to warn their consumers of hazards they knew about if the name brand manufacturer didn’t warn against those hazards. The Minnesota federal district court agreed with the drug company and dismissed Ms. Mensing’s lawsuit. She refused to give up and appealed to the Eighth Circuit Court.

In the end, Ms. Mensing’s perseverance paid off. A week after she filed her appeal, on February 26, 2009, the Food and Drug Administration (FDA) ordered Reglan to update its labels to reflect the known risks. In April 2009, the United States Department of Justice, who had filed a ‘friend of the court’ brief on behalf of the drug companies during the first trial, withdrew its support for the drug companies. On November 27, 2009, the Eighth Circuit Court of Appeals held the generic drug manufacturers accountable for labeling the drugs they manufacture. This is extremely important for drug safety. Over 70% of prescriptions for drugs in the US are filled by generic versions of name brand drugs. The court has refused to give the manufacturers of generic drugs a pass when it comes to labeling.

District courts in Vermont and Illinois have made similar rulings. The courts are holding generic drug manufacturers accountable for the side effects of the drugs that they manufacture, no matter what the name brands put on their labels. Such instances continue to remind us that the courts are indeed powerful tools, primarily intended to protect the American public, not American commerce.

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 Pink Sherbet Photography.)

Celebrating a Civil Rights Game Changer

Today marks the 54th Anniversary of Rosa Parks’ historic refusal to give up her seat to a white passenger on a bus in Montgomery, Alabama. While Ms. Parks’ act of civil disobedience and her subsequent arrest were not the first time anyone had dared to challenge racial segregation on buses, it was this incident that sparked a 381-day-long boycott of the Montgomery bus system, resulting in the Supreme Court’s affirming once and for all that separating people by race on public transportation was unconstitutional.

Half a century later, we find ourselves at a time in which many of the rights we’ve fought for in years past are slowly and quietly being eroded. While the court system has both the capacity and the duty to step in and demand equal protection for all, it has turned its back on many in need, from people with disabilities to low-income communities of color shouldering an unfair burden of toxic waste.

As part of its mission to ensure that the courts protect and preserve fairness and justice for all, the National Campaign to Restore Civil Rights (NCRCR) invites you to check out two exciting new projects in the works. NCRCR has started an Audio Interview Series and ‘Real People, Real Stories’, a multimedia project. Both seek to present the perspective of those fighting present-day courtroom battles, putting human faces on the legal issues that affect our lives.

Honor Rosa Parks’ legacy -- learn more about today’s civil rights movement.

The National Campaign to Restore Civil Rights is a collection of more than one hundred civil rights organizations and numerous individuals who came together to ensure that the courts protect and preserve justice, fairness, and opportunity for everyone. The Campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.

(Photo by mattlemmon.)

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.