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 In 1977, the state passed a law banning adoption by gays and lesbians, which has yet to be repealed.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.)

EPA Answers a Supreme Court Challenge, Declares Greenhouse Gases a Threat

In a surprising announcement on Monday, the Environmental Protection Agency (EPA) declared that greenhouse gases threaten public health and the environment. The decision came as advocates and world leaders gathered in Copenhagen this week to redefine international policy on climate change. 

EPA Administrator Lisa P. Jackson stated:

“These long-overdue findings cement 2009’s place in history as the year when the United States Government began addressing the challenge of greenhouse-gas pollution and seizing the opportunity of clean-energy reform…business leaders, security experts, government officials, concerned citizens and the United States Supreme Court have called for enduring, pragmatic solutions to reduce the greenhouse gas pollution that is causing climate change. This continues our work towards clean energy reform that will cut GHGs and reduce the dependence on foreign oil that threatens our national security and our economy.”

To what do we owe this shift in environmental policy? In large part, we can thank the courts. In Massachusetts v. EPA (2007), the Supreme Court questioned the Bush Administration’s stance that the EPA did not have the right to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act. The Court ruled 5-4 that given the requirements of the Clean Air Act, the only way the EPA could refuse to regulate greenhouse gas emissions was “if it determines that greenhouse gases do not contribute to climate change” or if it could provide a good explanation for why it could or would not do so. 

Happily, the EPA appears to be taking the Court up on its challenge. We hope to see the agency fulfill the mission for which it was created.

Connecticut v. American Electric Power

Tricia Perry of the National Campaign to Restore Civil Rights spoke with Bruce Myers, Senior Attorney at the Environmental Law Institute, about the recent decision in the Connecticut v. American Electric Power case. Listen in as Myers talks about how the court system is weighing in on issues of global warming.

Despite the Fine Print, the Courts in Washington State Are Open!

By Paula Z. Segal

When you buy a computer or any other complicated piece of consumer electronics, you also receive a bundle of infinitesimally small print type, that many of us all too often skip reading. Some of that small print is written specifically to protect the companies from you: a future, frustrated version of you, who might decide to sue the company for selling a defective product.

Kristin Cariedo bought a new Dell laptop for $1300. Catherine Candler paid $1700 for hers. Neither computer worked the way it was supposed to. Ms. Cariedo and Ms. Candler wanted to sue Dell to get their money back but the fine print that accompanied their laptops said that by simply buying and keeping the computers, Ms. Cariedo and Ms. Candler and all other consumers buying Dells laptops waived their right to ever sue Dell. Dell had written an “agreement” that said that any disputes between consumers and Dell were to be settled through arbitration by a private arbitrator that Dell had selected (the National Arbitration Forum); Dell also said that no class actions were permitted, meaning that consumers could not get together to bring Dell to court for selling defective products. The “agreement” that Ms. Cariedo and Ms. Candler had entered into with Dell when they bought their computers was designed to keep them out of court.

The National Arbitration Forum (NAF), the arbitrator that Dell chose, turned out to not be a neutral arbitrator; rather, it turned out to be intimately tied to the country’s largest debt collection firms, which profit directly from deciding cases against consumers. A House of Representatives investigation report on NAF documented its abuses, and lawsuits have been filed against NAF nationwide. The Center for Responsible Lending issued a report calling NAF’s neutrality into question in May 2009, and finding that NAF decisions tend to favor companies – like Dell – that give them business. In the midst of all this controversy, NAF stopped accepting consumer arbitrations in July 2009.

On October 26, 2009, the highest court in Washington State, where Ms. Cariedo and Ms. Candler brought their case against Dell, ruled that the mandatory arbitration agreement written into the fine print of their computer purchase agreements could not be enforced because NAF, the arbitrator, was not available. The court refused to appoint a different arbitrator.

The Washington court also said that the provision prohibiting class action lawsuits could not be enforced. Class actions are important because they allow individual consumers to use their collective resources to hire experts to testify at trial. In consumer cases, where the amount at stake is usually the price of the purchased item, the expense added by hiring an expert makes the lawsuit unreasonable to fund. When the expense is shared by many consumers of similarly defective products, the lawsuit becomes possible.

Now Ms. Cariedo, Ms. Candler and everyone else who purchased defective computers from Dell can go to court to ask for their money back (at least in Washington State). They can come together in a class action to bring the best case possible against Dell and other corporations selling defective products. This ruling, opening the courts to consumers despite the fine print designed by companies to keep them out, recognizes that consumers’ ability to sue is crucial to preventing widespread misconduct by corporations.

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.

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.)

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.

Are Torturers Above the Law? Or Can They Be Sued?

By Brendon Fleming

Nearly 20 years ago, Ali Samantar left his native Somalia, then a country tumbling deeper and deeper into chaos. After years as a general in the Somali army, as defense minister, and finally as prime minister, Samantar fled Somalia and eventually settled in Virginia. His past, however, eventually found him in the United States.

In 2004, a group of Somalis sued Samantar in federal court in Virginia, alleging that Somali agents under Samantar’s control had tortured them and committed other human rights abuses against them in the 1980s and early 1990s, before Samantar fled the country. Those suing wanted to see Samantar held responsible for the torture and abuses, asking he pay them monetary damages.

After five years winding its way through the federal courts, the U.S. Supreme Court will now hear the case. At the core of Samantar v. Yousuf, is the issue whether or not Samantar is immune, as a former official of a foreign government, from being sued in the United States for alleged human rights abuses that occurred on his watch in Somalia in the 1980s. The suit claims Samantar and those in his command were responsible for killings, rapes, and torture - including waterboarding.

The plaintiffs, five Somali survivors of torture, sued Samantar under the Alien Tort Statute and the Torture Victim Protection Act. The Alien Tort Statute (ATS), a federal law that has been on the books since 1789, allows non-citizens to sue their abusers in federal court for human rights abuses that violate international law. The Torture Victim Protection Act of 1991(TVPA) allows victims of torture carried out by agents of a non-U.S. government to sue their torturers for monetary damages in federal court. The ATS and the TVPA are doors into U.S. courts for victims of torture and human rights abuses suffered abroad, at the hands of despots and tyrants. The laws allow a day in court for victims who might otherwise never have one in the United States, in their home countries, or anywhere else.

But the Supreme Court could close those doors, at least to some plaintiffs, with this case, depending on its reading of the Foreign Sovereign Immunities Act (FSIA). The FSIA is a law that governs when and how foreign countries may be sued in American courts. FSIA makes foreign countries immune from certain lawsuits. In this case, the Court will decide whether the ATS or TVPA allow lawsuits against foreign officials—individuals with state power, rather than merely a state itself—for alleged human rights abuses committed in their official capacity. Put another way, the Court will decide whether FSIA immunity extends to individuals acting as officials for foreign governments, including former officials, or whether it only immunizes foreign states themselves and their government agencies.
   
The Supreme Court must decide which is right: allowing the case against Samantar to proceed under the ATS and TVPA, thereby giving the victims of alleged torture their day in court, or using a federal law that was designed to facilitate diplomacy by protecting foreign governments instead to protect an alleged torturer and perpetrator of vast human rights abuses.

The ATS and the TVPA are important because they are an acknowledgment by the United States of the existence and enforceability of international human rights law. They recognize that some abuses are so flagrant that they violate the norms and rules accepted by the international community as the law of nations—international law. Allowing a suit such as this one, against Samantar, would be a significant step forward for the international rule of law—a resounding statement that individuals who torture for their governments or take official action that violates international human rights norms cannot hide behind their government’s immunity.

If the Supreme Court allows the case to proceed, a lower federal court could then determine that Samantar is liable for the alleged abuses, an outcome that the plaintiffs and many Somalis would no doubt applaud. But a court could instead, based on testimony and evidence, find him not liable, which would likely disappoint many who already believe Samantar is responsible for the abuses. As important as the outcome of the case is, it is equally important to allow the court to hear the case through to completion, without cloaking it with official immunity and stopping it in its tracks.

Somalia has been without a stable functioning government since 1991, when its government collapsed and Samantar fled. Regardless, U.S. courts can and should still provide a day in court for these Somali survivors.

Brendon Fleming, of Rochester, N.Y., recently graduated from Columbia Law School, where he was Executive Editor of the Columbia Journal of European Law. He blogs from time to time at Big Signs.

(Photo by Javier Kohen.)

Federal Ruling Allows Agencies to Investigate Child Abuse

Every so often,  we at NCRCR like to take a break from troublesome legal trends to celebrate the ways in which the courts help to protect our rights.  One such victory was recently handed down by an appeals court on the west coast, in Disability Law Center of Alaska v. Anchorage School District.

The case involved an elementary school class of children with intensive special needs in Anchorage, Alaska. According to case attorney Holly Johanknecht, the class of less than ten students was rumored to be very poorly supervised. There were even allegations that the conditions in the classroom left some students vulnerable to physical abuse. A disability rights organization known as the Disability Law Center of Alaska got wind of the situation and sought to investigate in order to protect the children. The organization filed a lawsuit to gain access to student records, including contact information for the students’ parents. The suit was filed under the federal Developmental Disabilities Assistance and Bill of Rights Act, which gives agencies, like the Disability Law Center of Alaska, the authority to investigate incidents of abuse and neglect of individuals with developmental disabilities.

In the first ruling on the case, the district court found that another piece of federal legislation, the Family Educational Rights and Privacy Act (FERPA) prevented the school district from releasing the records. On appeal, however, the court held that the Developmental Disabilities Act provides an exception to FERPA. Judge Jerome Farris wrote in the decision:

"The agencies stated that 'if a school or other facility could refuse to provide the name and contact information, it could interfere substantially with investigation of abuse or neglect, thereby thwarting Congress' intent that act to protect vulnerable populations from abuse or neglect.’”

The appeals court did mandate that the Disability Law Center is required to maintain the confidentiality of any student records it receives. Yet through this ruling, the court ruled in favor of protecting the rights of a group of young children very much unable to defend themselves, establishing valuable legal precedent in the process. The Disability Law Center of Alaska and its investigators are currently working to ensure the safety of the children affected.