Our Rights, Our Future

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.)

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.)

Why Language Access Matters

by Nisha Agarwal

Every person who reads this likely speaks English, and speaks it well.  Whether we are people of color, people with physical disabilities, members of a religious minority, women, gay, working class or poor, we stand with the vast majority of America in that we enjoy “English privilege.”  Practically speaking, English privilege means this: For over 24 million people in the United States, it is difficult and sometimes impossible to get jobs, hold jobs, feed their families, vote in an election, be on a jury, make doctors’ appointments, take medication, use the courts, receive an education, get a home, keep a home—basically, participate in all of the ordinary and extraordinary features of American life—because they do not speak English.

Consider the experience of María Angela C., a Spanish-speaking woman from New York City who is in the process of learning English but hasn’t mastered it well enough to understand complicated health information.  One day, her 5-year-old son broke out in hives due to an allergic reaction.  She rushed him to the doctor, who wrote her a prescription but did not explain how to take the medication.  When María Angela went to the pharmacy to fill the prescription, the pharmacist also failed to explain how to take the medication and handed her a bottle with instructions in English only.  María Angela took the bottle home, opened it and saw a pink liquid that resembled “pepto,” so she surmised that the medication should be administered orally.  After her son took a spoonful, however, he reacted with extreme disgust, and María Angela became nervous.  She asked a neighbor to translate the label and learned that the medication actually had to be applied topically.  María Angela was devastated.  Her son risked another allergic reaction, or worse, due to the fact that the health care delivery system that she encountered operated in English only, and she did not (yet) have the English-speaking ability to navigate it safely. 

María Angela and her son faced a barrier to equal health access, to a basic human need, that the rest of us take for granted.  Though many Americans have felt powerless and overwhelmed in the U.S. health care system, most of us have probably not felt silenced – quite literally unable to ask for or receive help because of the language we speak.  Fortunately, civil rights laws are in place to break this silence.  Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of national origin, which includes language.  In the health care context, this means that hospitals and pharmacies must provide interpretation services and translated medication labels to ensure that individuals such as María Angela can access health services with the same hope as the rest of us: that it will improve well-being, not further compromise it.  Unfortunately, the Supreme Court has, in recent years, begun to interpret the law in such a way that this right to equal access does not have an adequate remedy.  In the 2001 decision of Alexander v. Sandoval, a case about an English-only amendment to the Alabama state constitution, the Court held that private individuals cannot sue in federal court for violations of Title VI unless they can show that they were the victims of intentional discrimination – that is, if they can point to something like a “Whites Only” sign on the front door of the pharmacy.

Sandoval put the kibosh on virtually all federal litigation under Title VI in the health care arena, among many others.  Advocates have sometimes been able to work around the problem.  For example, our Health Justice Program (HJP) represents Make the Road New York, a Latino community-based organization in New York City, and has successfully approached  government agencies such as the state Attorney General’s office to compel investigations of and settlement agreements with national chain pharmacies that do not provide interpretation services and translated medication labels for their non-English speaking customers.  We have also drafted and lobbied for the passage of language rights laws that would compensate for the erosion of civil rights protections at the federal level.  In fact, this morning, New York City’s Mayor Bloomberg signed the Language Access in Pharmacies Act, which will ensure that, in the future, María Angela and her son can use pharmacies in the five boroughs and have their rights to language assistance services respected. 

But what about people living in areas where government agencies are not as receptive to the claims of linguistic minorities, and where local elected representatives do not have the same numbers of immigrant constituents holding them accountable?  What about people like Baltazar Cruz, who went to a hospital in Mississippi to give birth and ended up having her child taken away from her because she didn’t speak English?   In these cases, re-opening the doors of the federal courthouse is crucial.  Language rights are, fundamentally, civil rights, which should have a remedy in every part of our country.  And leaving your health care provider with an understanding of how to care for your child, with that child still in your arms, is a basic right; it should not be a privilege.     

Nisha Agarwal is the Director of the Health Justice Program at New York Lawyers for the Public Interest (NYLPI), a non-profit civil rights organization in New York City.  You can learn more about the pharmacy language access campaign and download materials at: http://healthjustice.wordpress.com/resources/#Rx. 

The American Medical Association Apologies for Racist Past

Today the American Medical Association (AMA) released a statement apologizing for its past history of racial inequality toward African-American physicians. Along with the issuance of an apology, the AMA is using the press moment to highlight their work to, as they word it, “increase the ranks of minority physicians and their participation in the AMA.”

What past racist transgressions you ask? Two of the main ones cited in today’s statement include the AMA’s position of permitting state and local medical associations to exclude black physicians, as well as their remaining silent during important legislative battles – such as the one waged over the Civil Rights Acts of 1964.

Are Your Office Policies Rigid And Inflexible? Maybe You Should Hire More Women And Minorities

Shocking news from scientists at Cornell! Offices with high-ranking women and minorities are apparently more likely to have flexible, worker-friendly policies. The results from the National Study of Employers prove once again that diversity in the workplace is beneficial to all employees.

This Angry Protestor Makes A Convincing Argument

"Excellent point: In Houston, a Texan protesting amnesty for illegal immigrants argues that anyone who can't master English doesn't deserve to live in America."

Judge: Learn English Or Go To Jail

A Pennsylvania judge threatened four men with hefty jail terms if they failed to learn English. Luzerne County Judge Peter Paul Olszewski Jr. was inspired to issue his ruling when he saw defendants Luis Reyes, Ricardo Dominguez, Kelvin Reyes-Rosario and Rafael Guzman-Mateo appear before the court with the aid of a translator. After sentencing, the judge remarked: “There’s no way young kids can be hurt by knowing how to read and write the English language.”

The Rise of the Federalist Society and the Erosion of Justice

Cross-posted from The Huffington Post

Title VII of the Civil Rights Act of 1964 is the nation's most important employment law--prohibiting discrimination in employment on the basis of race, color, religion, sex or national origin. In 1991 Congress extended Title VII's protections beyond private employees to include state employees as well.

But two weeks ago a federal appeals court issued a technical ruling in Alaska v. EEOC holding that Congress overstepped its constitutional authority in extending Title VII's landmark civil rights protections to state workers. The case strikes a blow to tens of thousands of workers. Yet it is only one ruling in a string of decisions that have closed the courthouse doors on civil rights cases.

What may come as a surprise to some readers is that the case comes from the Ninth Circuit Court of Appeals, the federal court that has been decried by the right-wing as "liberal". Those on the right think these judges wear pink robes, live on the "left" coast and cause most of the problems in our society. The "Ninth Circus", they say, is "out of touch" with the rest of the country. There have been enormous efforts to appoint right-wing judges to the Ninth, as well as attempts to split the circuit in order to isolate California and the few remaining moderate judges. The efforts to pack the courts with right-wing judges paid off: the three judge panel in Alaska v. EEOC was split 2-1 with the two Republican appointees in the majority.

Stacking the federal courts with right-wing ideologues is drastically undermining the laws as we know them. Recall last term's decision in Ledbetter in which the 5-4 majority of the Supreme Court held that Ms. Ledbetter's Title VII suit was time barred because she didn't file her complaint within 180 days of the decision to pay her less than her male counterparts. Never mind that Ms. Ledbetter had no way of knowing that she was being discriminated against until she received an anonymous note after years of receiving lesser pay.

So, who is leading the charge in pushing right-wing appointments? A close look at recent appointments shows that the Federalist Society is at the center of these efforts. According to People for the American Way, "since its inception, the Federalist Society has played a key role in advancing the right-wing agenda. As an ideological proving ground for ultra-conservative activists, lawyers, and scholars, the Federalist Society has long served as a valuable professional network for those on the Right..." And what a network it is.

The Federalist Society

About a quarter of Bush's early judicial appointments were recommended by the Washington headquarters of the Society. In 2005, 15 of the 41 federal appeals court judges who were confirmed by the Senate identified themselves as members of the Society. Half of the Justice Department lawyers hired for the Civil Rights division were members of the Society. Other notable Federalist Society appointments include John Ashcroft, Gale Norton, Ted Olson, Michael Chertoff, and Justices Scalia, Roberts and Thomas.

In fact, the court-stacking has been so successful that last Friday the Society threw a great big fancy party celebrating their 25 years of triumph. Speakers included President Bush along with Society members Justice Roberts and Justice Thomas. As usual, the Society members complained bitterly about "activist" judges over their fois gras.

President Bush blasted the Senate over his "stalled" nominations to the federal courts and urged members of the Senate to capitulate. Never mind that 12 of 14 federal appellate courts are already dominated by judges appointed by him, his father and President Reagan. In fact, according to our partner the Alliance for Justice, 7 of 14 federal appellate courts are two-thirds or more Republican appointed. And these judges have an agenda.

The scariest part of the celebration came when Rudy Giuliani promised the Society even more "conservative" judges.

I'm going to give you 200 reasons why the next election is really important. It's the 200 federal judges that the next president of the United States will likely appoint over the four years in the White House.

According to Giuliani, his picks would be like Justices Scalia, Thomas, Alito and Roberts, the four most "conservative" justices. (I put conservative in quotes because these judges are anything but "conservative.") Giuliani's picks would oppose "racial quotas", thrust the 10 Commandments into public spaces, and require the words "Under God" be used in the Pledge of Allegiance. Not to mention overturn Roe v. Wade (forget about the fact that this man wears a dress). The not-so-diverse crowd at the Society celebration broke out in golf-claps that lasted minutes. Giuliani then gave a few of the Society members the secret handshake and took off to the next event.

When Will the Madness Stop?

So, with 426 days left in Bush's presidency, what's next for judicial appointments? One might think that not a lot can happen. After all, won't the Senate stop the courts from shifting even further to the right?

Not so. Progressives should be prepared to face a last push for right-wing nominees. Leslie Southwick's recent nomination is a case in point. Southwick's nomination was widely opposed by civil rights groups for his abysmal record on the rights of workers, people of color and the LGBT community, among others. But thanks to Republican Senator Dianne Feinstein (ignore the misleading "D" in her title), Southwick now has a lifetime appointment to the Fifth Circuit Court of Appeals.

We can expect several more right-wing nominees. For example, President Bush recently nominated Steve A. Matthews for a Fourth Circuit seat. Mathews is a former state chapter president of the Federalist Society and, until he was nominated, served on the board of directors for the Landmark Legal Foundation, known for nominating Rush Limbaugh for a 2007 Nobel Peace Prize. There are several others who fit the mold and we should pay close attention.

As a result of ideological appointments, the federal benches have shifted dangerously to the right. The courts are increasingly unavailable for the average person to enforce rights, like the state workers who now lack the protection of Title VII. The National Campaign to Restore Civil Rights is working with our partners to reverse this rollback and reclaim our courts.

Kapow! Supreme Court strikes again.

Even though our society is becoming more diverse, the Supreme Court has rolled back the opportunities for children to attend schools that reflect the world in which they live. In two key cases today, it ruled against local efforts to reduce racial isolation in public schools.

Although this is bad for those districts -- and possibly others trying to overcome segregated schools -- we are at least relieved because it could have been worse. A (thin) majority of judges (only five of nine) still believe diversity is important.

We hear there are still some things left that schools can do, but we can't seem the shake the queasy feeling in our stomachs.

Tell us what you thinking by clicking on "comments," below.

Nation's highest court still hasn't decided what to do about voluntary integration

Our country's Supreme Court didn't decide a couple of key cases today, leaving those of us who care about diversity in our schools hanging on tenderhooks. You can read about these schools cases here, here, and here.

So, should parents, communities and local school districts have the right to determine whether their communities reflect our "nation's vibrant diversity"? Tell us what you think by posting a comment.