Tricia Perry of the National Campaign to Restore Civil Rights spoke with Suzette Malveaux of Catholic University of America about the AT&T Mobility v. Concepción case on class action arbitration in California. Listen in as they discuss the significant impact this ruling may have on our access to justice, civil rights and consumer protections.
As the Senate prepares to vote on the DREAM Act, there's rarely a day that those of us here at NCRCR don't find ourselves thinking about the intersections between race, class, nationality and legal status and how these issues are addressed in the courts. As such, the issues faced by undocumented students trying to get an education are of particular interest. Through no act of their own (and more often than not an act of economic desperation on the part of their parents), thousands of smart and talented young people graduate high school in the U.S. each year and, because of their immigration status, find themselves ineligible for the federal loans that “finance” the college educations of their documented peers. To make matters worse, several states have passed laws making these undocumented students ineligible for the “in-state” reduced tuition rate at public universities and colleges available to legal residents of the state. Because these undocumented students’ families usually do not have the means to throw down $20-40,000 per year on tuition, the students hit a dead-end, ostensibly ensuring their inability to enter an increasingly competitive job market in what is, in some cases, the only country they have ever known.
There are laws that make this situation questionable: Title VI and VII of the Civil Rights Act of 1964 prohibit discrimination based on race or national origin, and the 14th Amendment to the United States Constitution promises the equal protection of a state's laws to any person within that state’s jurisdiction and allows the courts to enforce the principle that “all men are created equal.” In support of this constitutional right, the Supreme Court held in the 1982 case Plyler v. Doe that undocumented immigrants were entitled to a free and equal K-12 public education. This key ruling was based on the premise that everyone, regardless of immigration status, has the right to an education. With this decision states could no longer withhold a state-funded, public primary and secondary education to undocumented children. When it comes to college, however, no effort has been made to address this issue on a federal level, and the battle over access to an affordable college education for undocumented students is being fought in the courts. In a recent victory for these students, the California state Supreme Court ruled that undocumented students who attended at least three years of high school in California must be eligible for in-state tuition at public universities. This can amount to a difference of up to $12,000 per year, which certainly makes trying to get a college education less daunting. Nine other states have similar legislation, though lawsuits are pending in two states in order to challenge these laws -- but each ruling in favor of such laws adds legitimacy to the right of all young people in the U.S. to get a quality and affordable education.
If the DREAM Act passes, undocumented students will also have a pathway to pursue U.S. citizenship after graduating from college or a trade school. As ever, progress is gradual and the courts continue to play an important role in ensuring that progress is made.
(Photo by Gord McKenna.)
The Supreme Court recently agreed to hear the case Virginia Office for Protection and Advocacy v. Reinhard (“VOPA v. Reinhard”). This lawsuit concerns whether a state agency responsible for advocating on behalf of people with disabilities may sue another state entity to obtain for information about possible abuse and neglect of people with disabilities.
The protection and advocacy (“P&A”) system came into existence in the 1970s after Geraldo Rivera brought cameras into Willowbrook State School in New York, where adults and children with developmental disabilities were isolated, segregated, and subjected to horrifyingly inhumane conditions in overcrowded, understaffed facilities. It also turned out that people with disabilities were segregated and deprived of basic rights in institutions across the country. As a result, Congress decided to allocate money to the states to designate an agency that would ensure that the rights of people with disabilities would never again be violated in this way. States may choose whether to establish these P&A agencies as either an independent state agency, or a private not-for-profit. Whichever they choose, P&As are critical to ensuring the enforcement of the ADA. In Virginia, the governor designated the Virginia P&A (VOPA) to advocate on behalf of people with disabilities, a state agency.
In 2006, three residents in state-run facilities died or were injured while in the custody of the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Services (the “Department of Mental Health,” now called the Department of Behavioral Health and Developmental Services). The VOPA opened an investigation into these deaths and tried to gain access to records about injuries and deaths at state institutions. When the Department of Mental Health refused to provide the records needed to complete the investigation, the VOPA sued the head of the Department of Mental Health to obtain the records. A federal appeals court dismissed the lawsuit, saying that the P&A agency couldn’t enforce the right to get access to information based on the theory that the Department of Mental Health couldn’t be sued by another state agency. Another Court of Appeals, in another part of the country, came to the exact opposite conclusion, deciding that state agencies may sue other state agencies in federal court. This second court recognized the important function the P&A system serves in protecting people with disabilities and the need to prevent state hospitals and institutions from shielding themselves from investigation and oversight.
The split in opinion between the two courts of appeals regarding whether state agencies may sue other state agencies to gain access to information is an important issue for the Supreme Court to resolve. The outcome of this case will seriously impact whether state agencies designated to protect the rights of people with disabilities can actually accomplish their mandate. In this case, without access to the requested information, the Virginia P&A agency found itself unable to complete its investigation and determine how the deaths and injuries in question had occurred. As a practical matter, if a state can protect itself from scrutiny by an agency created to ensure that certain rights and protections are provided by simply classifying the P&A as a state entity, then this will effectively block the P&A’s ability to oversee and enforce rights and protections. Access to information is a crucial part of any investigation and without access to records at state-run facilities the P&A systems will have a much harder, if not impossible, time doing their jobs. Consider this: In New York, the home state of Willowbrook, the P&A that conducts investigations into abuse and neglect is a public agency and a ruling against the VOPA’s right to go to court could seriously undermine its effectiveness. Wouldn’t that be an ironic and sad conclusion to the story that began with Willowbrook?
(Photo by Elephi Pelephi.)
By Phil Mayor
Rio Grande City, South Texas. Four Hispanic men get into a car in a Wal-mart parking lot. A border patrol agent sees them, and he follows the truck. When he pulls up alongside the truck the driver looks at him but the passengers do not. The passengers are not talking to each other and are wearing their seatbelts. Allegedly, they are also “sweating pretty bad.” Apparently under the impression that looking Latino, sweating, wearing a seatbelt and not looking at passing border patrol agents constitutes grounds for stopping an automobile, Agent Victor Soliz pulls the car over and when it turns out that he is “right” and that some of the passengers are undocumented, the driver is charged with “unlawfully transporting undocumented aliens.”
The Fifth Circuit recently held that Agent Soliz’s search was not reasonable in a case called United States v. Rangel Portillo. Luckily for Rangel-Portillo, the passengers in his car were not “dirty and disheveled”--because nine years ago, the same court held that a border patrol stop was justified on that basis 160 miles from the border in an otherwise almost identical situation.
It is not that the logic is wrong. If you pull over every individual that “looks” Mexican, you’ll probably catch a lot of undocumented Mexicans. But you’ll also harass an awful lot of individuals who are here lawfully—and in the process violate the Constitution. This is happening around the country. The border patrol has long stood accused of racial profiling along the southern border, and in recent years, agents have started pulling the same tricks far away from Mexico -- along the Canadian border. Immigrants in upstate New York have reported being harassed in their hometowns by “roving patrols” of immigration agents, as well as being questioned without any probable cause while riding Greyhound buses and Amtrak trains.
The Fifth Circuit got its most recent case right, but our federal courts have a long way to go in combating racial profiling against its Latino population. Hopefully the Supreme Court—which eagerly, if disingenuously, proclaimed the importance of avoiding racial classification while striking down progressive attempts to encourage school integration in Seattle (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race” )—will reconsider its longstanding authorization for agents to consider the color of a driver’s skin when making traffic stops.
Phil Mayor is a second year law student at Harvard Law School where he is an Editor for Amicus, the online supplement to the Harvard Civil Rights and Civil Liberties Law Review. He also runs the Harvard Immigration Project and sits on the boards of the Harvard Law chapters of the ACLU and the American Constitution Society. Before law school, Phil worked for three years as a legal assistant for Human Rights Initiative of North Texas where he worked on asylum cases and immigration cases for immigrant survivors of domestic violence. He spent his first summer during law school working at LatinoJustice in New York City.
(Photo by O.Cosma.)
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.
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.)
“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.)
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.)
