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.)

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.

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. 

How the Supreme Court Pulled a Fast One, and America Didn't Notice.

The media storm surrounding Supreme Court Justice Sonia Sotomayor's confirmation provided us with a powerful illustration of the ways in which our court system not only mirrors, but affects our day-to-day lives. In a nation that is 12.5% Latin American (as of the 2000 Census) and roughly 50% female, the appointment of the first Latina Supreme Court Justice was certainly long overdue. However, legal issues that get zero attention in the mainstream media also have a profound impact on our lives, perhaps more given their ability to slide by unnoticed. This is especially true of two recent cases that flew under the radar, Bell Atlantic Corp vs. Twombly, and Ashcroft vs. Iqbal.

These two cases reflect a significant shift in the Supreme Court’s thinking around the issue of how much people have to know and present to bring a case to court.  In Twombly and Iqbal, the Supreme Court decided to impose a new and vague standard – the 'plausibility standard' – in order to start a case.  What does the term ‘plausibility standard’ mean?  The courts and perhaps Congress are going to take a while to sort it out, but it seems to mean that those seeking to bring a lawsuit not only have to show that the alleged misconduct was not only possible, but plausible. In the past, demonstrating that sort of proof was required during the course of the lawsuit, not as part of the initial papers filed at the start of the case. For example, if people are subject to employment discrimination they may know that they were demoted or fired and that they didn’t do anything wrong, but they don’t have access to the behind-the-scenes information that went into the firing/demotion decision. That means that a person would have a hard time getting proof of discrimination, which is now required in order for that person to bring their case to court.

When the Supreme Court first announced the new standard in Twombly, the media did not pick up on the new requirement. This is likely due to the distinct lack of sex-appeal in anti-trust cases. The media only cottoned on to the ‘plausibility standard’ with the Iqbal decision. Iqbal received slightly more media attention due to the facts of the case dealing with the abuse inflicted upon Pakistani immigrant Javaid Iqbal in detention. Nevertheless, the media did not delve into the shift in ‘pleading standard’ or its impacts, certainly not to any significant degree.

According to Alex Reinert, who argued the case, “The difficult question is how courts are supposed to figure out whether or not a complaint plausibly shows an entitlement of relief. One of the things that the Court refers to is ‘the common sense of judges,’ so it’s possible that the Court is suggesting that a judge is supposed to make an inquiry of his or her own as to whether or not he or she thinks that the complaint is plausible, that is, that the facts alleged in the complaint are plausible in the real world.”

Most law students learn that there’s something called “notice pleading” in federal courts.  Notice pleading means that a person starting a new case has to file papers with enough information to give notice to the other side, letting them know what the case is about.  Have the ‘conservative’ members of the court decided to depart from the time-honored, written-in-stone notice pleading? Why?

Whatever the motivation, the change is likely to affect cases of discrimination. This is expected to be a barrier for people who feel they have to prove that their employer or landlord were intentionally discriminating against them.  It’s often nearly impossible to get the e-mails or memos documenting the intent of an employer or landlord before you file a case.  No one hands documents over until they are required to do so.  Now, it’s likely that cases won’t get to the stage when these kinds of documents would be required to be turned over.  This new barrier posed by the Supreme Court appears to be too high.

Professor Reinert highlighted a further concern raised by the vague new pleading standard, adding, “I don’t know if that’s what the Court was saying, but if that is what the Court is saying, then litigators at least should be worried over whether or not that violates the Seventh Amendment right to a jury trial, because the Seventh Amendment says that juries are to determine facts, not judges. And so if courts start to use this plausibility standard to determine facts on their own, then I think we need to start being worried about whether or not our Seventh Amendment rights are being eroded as well."

Given the bedlam caused by both decisions, Senator Arlen Specter (D-PA), recently introduced a bill in Congress, attempting to restore the standard that existed before Twombly and Iqbal.  The Senator's bill should be given due consideration as a means of curbing the national trend of using technicalities to block access to justice.

Equally important is the public’s role. We the people need honest discourse and a clear understanding of the role of judges and courts in our society. Americans need to understand that what happens in the courtrooms of our nation, however obscure, will inevitably play out in the course of our daily lives.  Even these so-called conservative judges are “making law.”  We, and our media, should be paying attention.

Obama Names Four Federal Judge Nominees for California

Last week, President Obama named four new judicial nominees for California’s federal bench. Included in the group is Judge Jacquelyn H. Nguyen, who if confirmed would be the nation’s first Vietnamese district judge. Three of the four nominees are Asian Americans, a group long underrepresented on the federal bench.

The new nominees are Dolly Gee, age 50; Judge Jacquelyn H. Nguyen, age 44; Judge Edward M. Chen, age 56; and Judge Richard G. Seeborg, age 52. Ms. Gee is a labor and employment litigator, and past president of the Southern California Chinese Lawyers Association. She is currently managing partner of the Los Angeles law firm Schwartz, Steinsapir, Dohrmann & Sommers LLP. Jacquelyn H. Nguyen is currently a Los Angeles County Superior Court Judge, and a graduate of UCLA law. Senate conformation would make her the nation's first Vietnamese district judge. Edward M. Chen is a U.S. Magistrate Judge, who worked as an attorney for the American Civil Liberties Union before his judicial appointment. If confirmed, Judge Chen would be the only Asian American on the Northern District bench. Richard G. Seeborg is a  U.S. Magistrate Judge, who served as an assistant U.S. attorney in San Jose. Seeborg worked at Morrison & Foerster in Palo Alto and San Francisco prior to being named a magistrate judge.

 
Supreme Court Justice Sonia Sotomayor was grilled for almost a week by members of the Senate Judiciary Committee. However, Obama's district court appointments will likely be subject to less scrutiny as lower court nominations are usually less controversial. Regardless, these nominations will have a massive impact on the future of civil rights in the U.S. Within Congressional and Constitutional limits, district courts can hear nearly all categories of federal cases, including both civil and criminal matters. District courts are relied on to apply the law at trial, while appeals court judges have more leeway to interpret a law's intent and context. Currently, the U.S. 9th Circuit Court of Appeals in San Francisco has two of its 28 judgeships vacant, and a third possible opening early next year. Therefore, it is crucial that we pay close attention to the proceedings, our rights do hang in the balance.

Obama Nominates Sonia Sotomayor To Replace Justice Souter

President Obama has announced his intention to nominate Sonia Sotomayor to the Supreme Court, filling a seat soon to be vacated by Justice David Souter. If confirmed, Sotomayor will be the third woman, and the first ever Latina Supreme Court Justice. Described by many as a sharp legal mind with a clear commitment to the rule of law, Judge Sotomayor is widely considered a strong candidate for the seat. In a recent development, the GOP has suggested that they will not try to filibuster Sonia Sotomayor's Supreme Court nomination. However Senator Jeff Sessions (R-AL), the top Republican on the Senate Judiciary Committee, made it clear that Republicans are ready to raise questions, "We have an absolute constitutional duty to make sure that any nominee, no matter what their background and what kind of life story they have... will be faithful to the law and not allow their personal views to influence decision-making."

Right-Wing Supreme Court Draws Ire of Senate Judiciary Committee

Cross-posted from the Huffington Post

What do the Exxon Valdez oil spill and the Enron and Worldcom scandals have in common? Corporate greed run amok? Lax government oversight? How about a Supreme Court that has shifted dangerously to the right and is now the most pro-business Court since the monopoly-greasing "Lochner-era" Court of the late 19th century?

Today, the Senate Judiciary Committee will hold a hearing on recent Supreme Court decisions that favor corporate rights and interests over the fundamental rights and liberties of individuals. At issue is whether the courts should be protecting us or corporations. Unfortunately, it's clear that the Court has an increasingly pro-business tilt that will continue to favor business over individuals until the American people and Congress push back.

Senate Slashes EEOC Funding To Support English Language Training

The Senate voted 54-44 last week to steal $670,000 from the Equal Employment Opportunity Commission (EEOC) and hand it over to the Department of Education to fund English language training. The destructive amendment to the chamber's must-pass budget resolution would severely constrain the EEOC's ability to fight discrimination based on national origin, and was the brainchild of Senator Lamar Alexander (R-TN), who has waged a rabid war against the EEOC's efforts to protect minorities.

Last year the Senator shoved a similar amendment into the Commerce, Justice, and Science appropriations bill that would have barred the EEOC from taking action against discriminatory employers . The amendment was ultimately yanked from the conference report, and once again, House conferees will need to serve as agents of reason and justice. Who supported the amendment and how is the media characterizing the vote? Join us after the jump to find out.

Colbert Announces: What Does It Mean for the Courts?

Cristóbal Joshua Alex has a thought-provoking new piece up on The Huffington Post, copied here in order to spread awareness about this striking new development in the 2008 election.

Last night, National Campaign to Restore Civil Rights' staffers were on the set of The Colbert Report when Stephen Colbert officially announced that he would run for President of the United States of America. While the Campaign cannot officially endorse any person in the already crowded race, we can offer observations about how the next president, and Colbert in particular, may impact the courts, and our democracy.

Our research has thus far yielded very little on Colbert's view of the courts and civil rights. But he has expressed clear disdain for the U.S. Supreme Court. Colbert claimed on the Daily Show that he "has taken the decision to abolish the Supreme Court and since [he] is God there is nothing you can do to stop me!" Why he would abolish the Court is one of the questions we'd like to ask him.

Colbert was also quick to attack the Court for its decision in Hamdan v. Rumsfeld, striking down the military tribunals for Guantanamo Bay detainees as violative of U.S. and international law. Colbert stated that it was "gutless" for SCOTUS to hand down this decision and then ditch town.

Some also question Colbert's close relationship with Justice Scalia. At last year's White House press briefing, Colbert stated:

Justice Scalia is here. Welcome, sir. May I be the first to say, you look fantastic. How are you? [After each sentence, Colbert made a hand gesture, an allusion to Scalia's recent use of an obscene Sicilian hand gesture in speaking to a reporter about Scalia's critics. Scalia is seen laughing hysterically.] Just talking some Sicilian with my paisan.

The question on our minds is what kind of judges would Colbert appoint? Would he appoint judges in the mold of Scalia and Alito? And what about his attorney general? Would Colbert appoint Bill O'Reilly for that position to improve morale? These are important questions Colbert and his close advisors -- rumored to include Karl Rove, Pat Robinson and Beelzebub -- need to address.

There are also concerns about Colbert's openness, and whether his administration would be more transparent than others. Colbert raised red flags when he was banned from Wikipedia. Those concerns only grew following his recent New York Times column in which he wrote, "Dick Cheney's fondest pipe dream is driving a bulldozer into The New York Times while drinking crude oil out of Keith Olbermann's skull." Colbert seems to share that dream, as do many others on the extreme-right.

We hope that Colbert will explain his vision for the Court and our civil rights soon. But if his past comments and associations are indicative, we can expect him to attempt to dissolve the Court. And the Congress. And the media (starting with the Times).

If so, Colbert would essentially be offering more of the same right-wing ideology, which could hurt his chances in the early primary states of Nevada and South Carolina. Perhaps recognizing his vulnerability among voters of color and elderly voters, Colbert announced that he will run as both a Republican, and a Democrat. Whether this sudden about-face is successful is a question the voters will soon answer.