Wednesday, December 22, 2010

Federal Lawsuit Against Company For Not Hiring Based on "Bad Credit History"

The Equal Employment Opportunity Commission announced yesterday that it is suing test prep-giant, Kaplan, for systemically denying blacks jobs due to their bad credit history. The Title VII (Civil Rights Act of 1964) disparate impact case alleges that Kaplan has rejected applicants so often, for reasons that were not job-related, that their conduct amounted to an unlawful pattern or practice under federal law.

Employee says to manager, "We couldn't hire Jamar because, you know, of his bad credit" (wink & nod).

This is an important lawsuit in the so-called age of colorblindness. If the allegations are true, Kaplan would have used credit history as a proxy for race to deny jobs to qualified candidates. How is this possible? It's pure math.

Blacks possess a fraction of the nation's prosperity in wealth compared to whites, and the gap is actually growing despite the Obamas and the few other well-to-do black families that are in the public eye. A legacy and continued patterns of property denial/predatory access to credit, inferior education, limited job opportunities and advancement, lower earnings, among other barriers connected to past and present racism, bring in and trap Blacks into generational cycles of debt. TMA applauds the EEOC for taking on this issue, even with expected backlash from colorblind proponents.

And for a brilliant illustration of how these systemic forces severely limit individuals' choices and debt-escaping opportunities, check out this post, "If America were a monopoly game."

We couldn't have explained it better ourselves.

Tuesday, December 21, 2010

Progressive Legal News: Local Community Radio, Second-Parent Adoption Ruling, Lawsuit Challenging the Use of Mace Against Schoolchildren, and Consumer Rights' Case Analysis

Today we came across a number of news stories that should be of interest:

Local Community Radio Act. Timothy Karr of the Huffington Post wrote a nice summary on the passage of this little-known bill-now-law, which will open up the radio airwaves to thousands of local independent radio stations. Great news for people who enjoy a variety of news and media sources.

North Carolina Strikes Down Second-Parent Adoption. This heap of bad news is delivered via a wonderful blog, Beyond (Straight and Gay) Marriage, run by WCL's own, Professor Nancy Polikoff. Not only did the Court rule that second-parent adoption (most often the only means by which same-sex couples can adopt) is not available in the state, but the ruling invalidates all previous adoptions. Professor Polikoff is particularly angry at the biological parent of the former lesbian couple who brought this claim at the expense of North Carolina families. There are just so many reasons to be outraged--so many reasons.

Southern Poverty Law Center Says "You Can't Mace School Children." It's hard to believe that this issue has to be litigated but apparently Alabama has not received the memo that macing school children, as a form of school discipline, is not only wrong, but unconstitutional. SPLC announced that it is filing suit against the Birmingham school officials who refused to address the issue after it had been brought to their attention that armed school guards were macing children, and apparently taunting the students after the fact. Yuck. If this issue is of interest, TMA is featuring in its soon-to-be released fall issue, an essay about the transition of schools into young people prisons, by Lizbet Simmons.

Understanding a Major Consumer Rights Case, AT&T Mobility v. Concepcion. The National Campaign to Restore Civil Rights (NCRCR) Interview Series continues this week with Catholic University's Suzette Malveaux who breaks down a California arbitration class action lawsuit that may have a big ripple effect on consumer protection and the public's access to justice against corporations.

Sunday, December 19, 2010

We Always Gotta Choose: Don't Ask, Don't Tell Repeal & The Dead DREAM (Act)

It was a big political weekend for justice-seeking people this weekend. With big votes on the military's Don't Ask, Don't Tell policy and the DREAM Act taking place on Saturday, analysts are still making sense of the not-so-lame-duck session. But, in the meantime, The New York Times offered perspective on the likely impact of the DREAM Act's failure on President Obama's immigration reform agenda, and MetroWeekly shared a concise, helpful history of DADT.

The Modern American is celebrating the repeal of DADT, which we've tracked in recent months, here and here, but we hope that the political season is not so virulently anti-immigrant that some positive legislation can pass next term.  

The Reverse Passing Conversation

Attention race sociologist geeks (or those interested in racial politics):

Our friends at The Root recently posted three articles, seemingly in conversation with one another, about a recently-coined phenomenon discussed in a new study called "reverse passing." It's arguably a new name for the one-drop rule, however, unlike the one-drop rule, it's individuals themselves, not the U.S. government, identifying people as Black despite White ancestry.

First among these articles, "Reverse Passing? Kidding...Right?", obviously takes a certain position; then, a few minutes later appeared a post titled, "Why Biracial Means Black," only to be followed shortly thereafter by "Passing for Black?" Each article begins by mentioning Barack Obama and delves into the history of racial politics around black identification.

We have a variety of our own views here at The Modern American, but we're interested in what you have to say? Do you "reverse pass"? Is this a misguided description? Throw in your two cents.

Thursday, December 16, 2010

An Incisive Throw-Down On The Georgia Prison Protest

The insightful gang at the Crunk Feminist Collective has written an on-point commentary about the peaceful prisoner protest taking place at ten Georgia state prisons (if you haven't already heard). The prisoners have very basic demands for the state to preserve their humanity and dignity, including a living wage for their work, and decent healthcare. The protest is on the heels of TMA's recent blog posts--herehere, & here--on prison labor and the 13th Amendment. This is hardly academic stuff.

Update: Evidently the prison protest ended on Friday. The Root sums things up in a brief post.

Monday, December 13, 2010

Another Attack, Another Trans-Person, Another Cop, and Another Reason to Want Revolution

Please read the DC Transgender Coalition's Statement responding to the alleged anti-trans assault by an off-duty police officer of woman, Chloe Moore, that occurred last week here in Washington DC. If a modicum of the allegations is true, it's enough to make any justice-seeking person swell with anger and heartbreak, and enough to make other people wake up.

Sunday, December 12, 2010

Two Queer Issues, One Critical Critique: Why Queer Left Community Groups Are Right About Hate Crimes, Anti-Bullying Laws

By Richael Faithful

                                               With friends at Dyke March, DC Pride, 2008

The Washington Blade, Washington D.C.'s nationally-syndicated, lesbian, gay, bisexual, and transgender (LGBT) newspaper, reported two stories this week of interest to people with leftist queer politics: latest developments in the murder of gay middle school principal, Brian Betts, and the D.C. City Council's anti-bullying legislative debate. On the surface they are routine stories covered by the LGBT paper, but these two stories illustrate the critiques of Left queer community groups on hate crimes and anti-bullying legislation, which often go unheard and unnoticed by gay liberals.

More of the Same
The first issue is hate crime penalty enhancements. In the very tragic story of Brian Betts, the gay D.C. middle school teacher was slain in his Silver Spring home this summer, allegedly by four teenagers who sought to rob him after one of the teens was invited to his home via a sex chat line. Betts was shot and killed when "the robbery went bad." The identified shooter, Alante Saunders, who is 19 years-old, plead to a felony murder charge, resulting in a 40-year prison sentence (20 year minimum). The second teenager, Sharif Lancaster, who is also 19 years-old, plead to robbery and use of a handgun during a commission of the felony, and he faces a maximum penalty of 35 years in prison. Plea negotiations are underway for the other two young men. Clearly, these young people are not "getting off easy," nor is there any sign that local prosecutorial misconduct.

Then, why is Gloria Allred, here?

Attorney for-the-stars, Gloria Allred, has been hired by the Betts family to "explore whether or not Brian’s murder should also be prosecuted under the new Matthew Shepard federal hate crimes law.” The Matthew Shepard Hate Crime and James Byrd Jr. Act, passed in 2009, added sexual orientation and gender identity to existing hate crimes protections that enables federal investigations and prosecutions of alleged crimes motivated by LGBT bias. Many LGBT activists applauded the passage of law, which in principle, humanized queer lives under the law as deserving of to be free from violence, and in practice, equipped federal authorities to intervene in cases where local prosecutors were not making a reasonable effort to investigate allegations, pursue charges, or prosecuting a case. But, the most well known and controversial provisions of the Matthew Shepard Act were the penalty enhancements--on both the Right and the Left.

In particular, New York queer community groups, representing queer people of color, including The Sylvia Rivera Project, Queers for Economic Justice, Audre Lorde Project, among others, challenged gay liberals by announcing their opposition to a comparable state hate crimes proposal that was being discussed while the Matthew Shepard Act was making its way through Congress. Their open letter explains:

Rather than serving as protection for oppressed people, the hate crimes portion of this law may expose our communities to more danger—from prejudiced institutions far more powerful and pervasive than individual bigots....Trans people, people of color, and other marginalized groups are disproportionately incarcerated to an overwhelming degree. Trans and gender non-conforming people, particularly trans women of color, are regularly profiled and falsely arrested for doing nothing more than walking down the street. Almost 95% of the people locked up on Riker’s Island are black or Latin@. Many of us have been arrested ourselves or seen our friends, members, clients, colleagues, and lovers arrested, often when they themselves were the victims of a violent attack.

In other words, queer groups feared that hate crimes penalty enhancements would not be administered blindly-- they would be used to further punish queer victims who were of color and/or simply put more young people of color away into the Prison Industrial Complex without providing meaningful opportunities for rehabilitation. One's imagination need not go too far back into history to envision the former scenario; the New Jersey 4, black lesbians acting in self-defense but later prosecuted themselves, is a sad reality faced by some queer folks of color. As for the other scenario, we can just look at the Betts case.

Betts was a white professional gay man and each of the four teenagers arrested for his murder are of color. Two of the teens will be in prison for more time than they have been alive, and the same is projected for the other two. It difficult to see the purpose penalty enhancements in this case--adding on 2 or 3 levels (several years depending on the person's offense, history, etc.)--serves any system of justice. These young people will be stored in prisons for decades. Worse, by incapacitating them for years, we only give them more incentive to hate queer people when they are released (notwithstanding the complicated, sexual politics of prison). Gloria Allred is professing a popular position behind hate crime laws but this position doesn't account for the real issues raised by people most affected by the law, and ironically, people most at risk for anti-queer violence.

Too Much Libertarian, Too Little Justice
The second issue is anti-bullying protection for LGBT students. Needless to say this issue is in response to media attention on LGBT-bullying. America has woken up to learn that young queer people (real or perceived) are subject to abuse and violence by fellow students (at least as much older people abuse, taunt, harass, and inflict violence on queer people, generally). The always-progressive D.C. Council has taken up the Bullying Prevention Act, and the Harassment and Intimidation Act, which are measures that would require all DC schools, including charter schools, and the University of D.C., to implement anti-bullying policies at least as strong as the District's model policy created by the proposed laws. Given the rash of suicides and murders, who would have reservations about the legislation? 

Well...liberal champions, like the D.C. ACLU.

Apparently the D.C. ACLU supports anti-bullying legislation in theory, but doesn't believe that bill's language of the bill "tightly" defines bullying in its current form. In the Blade article, Arthur Spitzer who is the chapter's local director, rhetorically asks, "What does it mean by harming a student? Does that mean hurting a student's feelings?" Of course, the bill provides a number of definitions, and sub-definitions, all of which complement Supreme Court case law (Tinker and Bethel, for example) that further define the threshold for an act to substantially disrupt a learning environment. While I understand the ACLU's inclination to be concerned about free speech (I'm a long-time member myself), sometimes, the organization can be too liberty-focused, and not enough justice-focused.

Here it is. In 2009, nearly 9 out of every 10 LGBT students experienced school harassment alone, according to the leading LGBT student advocacy organization, GLSEN. And, most local activists or organizers can tell you that technical legal squabbles related to language are usually worked out by the governing body's legal counsel, whom often will invite stakeholders like the ACLU to the table for revisions. The queer Left has long-advocated that isolation kills, and that queer young people experience their own school-to-prison pipeline as they are forced out of school at high rates due to un-addressed bullying. Frankly, the D.C. ACLU needs to get it together--make suggestions to the language of the bill--and get behind it. The ideological liberals' predilections really can miss the big picture of saving lives.

A message to my gay liberal friends: listen a little more and a little more carefully, and you may learn something from your Left-radical friends. We may not be working toward the same goals, but we have more in common than not.

Thursday, December 9, 2010

The Politics of "Sex by Surprise" in the Assange Case

WikiLeaks' publication of diplomatic cables and the string of events that it has set off is no doubt incredibly interesting from a critical perspective. For a solid legal discussion on this topic, listen to WCL's own Stephen Vladeck's contributions on The Diane Rehm Show roundtable today. 

While the blogosphere has been set on fire by the controversy, a new debate is emerging around the rape and sexual assault charges pending against WikiLeaks founder, Julian Assange, in Sweden. Feministe has a great entry on the politics of rape, misogyny, and the law (both U.S. & Sweden) that puts proper perspective on the allegations and the public's reaction to them. 

Relatedly, Dissenting Justice has written an unequivocal post calling out some progressive's antiquated sexual politics in their rush to defend Assange. 

These critiques will be sharpened once more is known about the allegations and more legal analysis surfaces about Swedish rape law. Nonetheless, it's a very interesting story of which to keep track. 

Friday, December 3, 2010

Guns, Knives, and Words: Student Safety Goes Beyond a Metal Detector

By: Alexandra Manrique

When I was young my father used to tell me stories about his childhood; days where kids attended school to learn and have fun. School was not associated with harm or harassment, but with education and sports. Nowadays, things are a little different; schools are still associated with education but also violence, drugs, and bullying. Yes, there are metal detectors to detect weapons, police to stop fights, and dogs to sniff for drugs, but what stops poisonous words and harassment? Students are dying, not only from real weapons and harmful substances but from hurtful words and extreme teasing, and school officials must address this situation and fast.

The days when teasing meant that the teaser had a crush on the teased are long gone. Now, teasing and bullying must be taken seriously. Bullying affects all students, from elementary school children to college students, recall the tragic death of Rutgers University freshman Tyler Clementi. Teasing, harassment, and bullying all have an adverse, and possibly deadly, effect on the victim. The reasons for bullying vary, but some reasons students are bullied are race, religion, and sexual orientation.

Recently, due to the suicides of many gay students, there has been a campaign to raise awareness on bullying. Many influential actors, politicians, including the President himself, and ordinary citizens have videotaped an “It Gets Better” message. These short films assure the viewers that being gay and out will become easier. It is a positive and hopeful message and a good show of support for victims. However, more must be done. 

The Department of Education did distribute a letter to schools across the country stressing the importance of anti-bullying measures, and highlighting federal anti-discrimination laws that may be violated due to bullying. However, I still think more should be done; Schools should follow the example set by the school district in Helena, Montana. The school district in Helena, Mont. set new guidelines for teaching tolerance to students. Although these guidelines received criticism for appearing to promote a “homosexual agenda” and changes were made, the school board eventually worked out a curriculum to teach acceptance and respect to students. 

The actions of students can be dangerous. School officials must make sure that every student is protected from harm while in the school’s care. Guns, knives, and drugs are forbidden. Likewise, bullying should be forbidden as well. Bullying is just as harmful to students as the presence of guns, knives, and drugs in a school environment.

Thursday, December 2, 2010

Closing Reflections - Series on Disability Rights

By: Gary C. Norman, L.L.M. Candidate 2011 & Vice President of the American Association of Visually Impaired Attorneys

During the previous twenty years, the United States has bludgeoned the walls of exclusion of people with disabilities downward.  As far as the employment rate of people with disabilities, including law students and attorneys with disabilities, is disproportionately low when compared to the able-bodied populous. These walls, once the height of the Berlin Wall, continue to have a noticeable presence in society.

Because of the commitment of people with and without disabilities trained in the law, progress is positively achieved all the time.  For instance, the positive legislation addressing accessibility to technology that the FCC will implement in coming months as well as the affirmative mandates of the Executive Order issued by President Obama may result in more of these walls of social and economic exclusion to crumble, leading to a richer, a compassionate, and a better society.  These remaining walls will not erode into dust should the legal profession, as a leading force in civic society, not behold itself to a high standard of affirmative inclusion.

In furtherance of this call for progress, the issues that the legal profession must address, include but are not limited to, reasonable accommodations to the LSAT and to the bar exam, reasonable accommodations at work, inclusive of, for instance, assistance dog issues (near to my own life), and the sensitivity of members of the field.  The cost of assistive technology as well as the access to fruitful training of assistive technology is an important issue on which I have perhaps not rote on a sufficient enough basis.

The lack of the LSAC to constitute a reasonable partner in providing reasonable accommodations to the LSAT is an example where progress through action is needed.  The simplest solution to the LSAT would be – to the pleasure of all pre-law students - disbanding this superfluous gatekeeper to law school.  The bar examiners in California would evidently appear to constitute another example where good faith collaboration would not impede the entrance of other law students to the field and would clearly inure to the fair opportunity of people with disabilities to be legal professionals.

The case of a woman with a sight disability, recognized as a leader in the disability civil rights arena, will shortly be before in the Ninth Circuit Court of Appeals to redress the position of the bar examiners in California that a reasonable accommodation will not be furnished.  As you combat against the tyrants of regression, all of us should provide a salute to you in urging that civic society take notice of its ethical, moral, and legal obligations. 

As opportunities are increasingly robust or as opportunities become increasingly robust to me as a blind person, I hope that I will continue to be in the service of my fellow citizens, including but not limited to, campaigning for public office in the future.

In conclusion, my desire is not for emoluments, if any, that might inure to me from penning these entries; rather, I hope that readers will have learned of, the challenges obstructing the inclusion of, but also the opportunities, like no other epoch in history, that are increasingly present to, students and attorneys with disabilities.  This is to note that as a person with a sight disability and also as an attorney and civil rights Commissioner, I have been pleased with the professional like conduct and the kindness of myriad students at WCL with whom I have interacted.  The legal field could acquire lessons from our fellow students.


Tuesday, November 30, 2010

The Heated Debate Over . . . A Word?!

By Shailee Diwanji

Immigration reform claimed the spotlight in the election in November, but interestingly, when you boil things down, the debate turns on a word. The fight is all about a modifier - the word that modifies "immigrant." The Right adamantly continues to use the common term "illegal immigrant," while the Left insists on the politically correct "undocumented immigrants." And then there's everyone in the middle.  So which is acceptable - "illegal immigrant" or "undocumented immigrant"?

Since Justice Sotomayor's first Supreme Court opinion, in which she used the term "undocumented immigrant," the debate has hurtled into the limelight. The Left believes simply that it's the better term to use. Human beings commit illegal acts. But they aren't illegal. "If a driver speeds, is he an illegal driver?" they say. "If a child works in violation of child labor laws, is he an illegal child?" The insinuation is ludicrous. A person isn't illegal. Besides, the term is ambiguous. "Illegal immigrant" could refer to a range of people, from someone who's re-entered the country after committing a felony to someone who simply overstayed a business visa. They do not all deserve the negative connotation that accompanies the word "illegal."

The Right has a simple argument, "Why change the term we have so commonly used?" "Illegal immigrant" isn't degrading or dehumanizing, it's simply the truth. Individuals who are in this country illegally are "illegal immigrants."

The situation gets even more complicated when the political middle is dragged into the debate.  Respected journalists, like Ruben Navarrette of the San Diego Union Tribune, have endorsed the Left's legalizing the undocumented immigrants’ campaign—with one caveat –that they use the term "illegal immigrants." The result?  Neither the Right nor the Left is pleased.

So it begs the question, this fight over a word, is it really worth it? Ultimately, isn't it the result that counts? Well, yes, and no. The end result matters, but it will be a hollow victory for the Left, immigrants, and their families, if they are marginalized with and through language. Are we, as a country, really willing to repeat history yet again, simply to use words that we KNOW are insulting? Must we relive the shameful "negro" era or the "retarded" era? Is it really okay to dehumanize an entire class of people? So what is in a word?  The self-esteem of twelve million people.  A reflection of this country.  Our inner conscience.  Really, everything.

Monday, November 29, 2010

Why Joining the U.S. Military is Especially Dangerous for Women

By Isis Goldberg

For some high school students joining the U.S. military can seem like an attractive alternative to pursuing higher education.  Other students who think they can't afford a college education or believe their grades aren’t good enough, see the military as their only option.  For women, there exists an especially high and unexpected physical risk - the risk of being sexually assaulted by a fellow soldier. 

The “War Against Terror” has been the least popular war in the history of the United States.  As a result, instead of enforcing a draft, President George W. Bush inserted a clause to the No Child Left Behind Act in 2002 which allowed military recruiters free access to all high school students' social security numbers, telephone numbers, and addresses.  Consequently, many inner-city students were, and continue to be visited, even hassled, by military recruiters and enticed with rewards such as:  money, cars, and even citizenship for undocumented students and their families. 

For women who decide to join the military, they face a staggering risk of rape or sexual assault. According to a report, thirty percent of women enrolled in the U.S. military are victims of rape while seventy-one percent of women become victims of a sexual assault and ninety percent are sexually harassed.  These statistics were gathered from women who visited a veteran's hospital, although other studies pose the percentage of victims from recent wars even higher.

Unfortunately, even these numbers may not be the correct figures as many rape incidents go unreported.  The U.S. military is most literally a boys club (with a female population of 14 %) and many female recruits are encouraged to keep silent to promote group morale.  Not surprisingly, many women probably choose not report their attacks because only 8 % of military sexual assault cases are referred to courts martial.  Alternatively, they run the risk of facing negative treatment and being hushed for exposing the charges.

The few cases which ultimately end up before a military tribunal, and result in convictions, usually end up handed down minimal sentences to perpetrators.

The high incidence of rape in the military has been a hot topic for some time, some measures taken to combat it. Yet, there is still a grave risk associated with being a female in the U.S. military.  If you know a female who is considering joining the military, please let them know of this additional risk which is associated with doing so.  One must make an informed decision when deciding whether you want to trust your life to the very people from whom you will likely need protection.

Thirty Years after Lifting the Moratorium on Capital Punishment, Changes of Heart in the Legal Institution

By Zannie Carlson

The New York Times just ran a piece about Supreme Court Justice Stevens’ reassessment of his stance on the death penalty, more than thirty years after he promoted and helped reintroduce the policy. Stevens writes about his observations and revelations in a review for a new book on capital punishment called Peculiar Institution: America’s Death Penalty in an Age of Abolition. Early in his career as a Supreme Court Justice, Stevens advocated for the death penalty by voting to lift a moratorium on the practice with the expectation that the punishment could be used wisely, and with utmost care in deliberation. More than thirty years later, Stevens explains his major concerns with the death penalty today stem from trigger-happy judges, political alliances on the bench, and the court’s refusal to recognize and rectify race-based sentencing. Death penalty sentencing became not about the accused, nor even the injured, but the judges themselves. All of the concerns that Stevens cited as limitations of his support of the policy became the standard, as rationality gave way to personalities and prejudices.

The New York Times adds that Stevens first expressed his opinion that the death penalty was unconstitutional in a concurrence in 2008, which leads us to wonder, how long has Stevens doubted his initial judgment on the death penalty? Has political pressure on the bench influenced Stevens to be compliant on the issue? If so, what made him come forward now? We already know that Stephens’ 1976 endorsement and partial orchestration of capital punishment policy leaves him partially accountable for the execution of more than 1,00 people during his term, but without the robe and gavel, how influential will Stevens be in these last years of his life? Combination skeptic-idealist that I am, I still believe his influence will enhance his activism and serve as an important vehicle in moving discourse on the issue forward. Stevens’ review will be published in The New York Review of Books, on Dec. 23.

After reaching a peak 98 executions in 1999 since the moratorium was lifted, the death penalty in general has been in decline; executions this year will amount to about half that number. Like Justice Stevens, the American Law Institute, the highly influential organization of lawyers, judges, and academics responsible for compiling and formulating general rules of law, including use of capital punishment in its 1962 Model Penal Code, withdrew its support of the death penalty system in 2009. The group similarly felt that its efforts to “make the death penalty less arbitrary” were often undermined by conflicting instructions in the courtroom. The A.L.I. ultimately found that the risks of executing innocent individuals, the likelihood of race leading court decisions, and correlation between inadequate or incompetent representation and poverty precluded the possibility of fair implementation of capital punishment.

Interestingly, the public does not share Stevens’ and the A.L.I.’s opinions on the death penalty, as a 2010 survey shows 64% of polled Americans in favor of the execution of individuals convicted of murder. While the public may be hard on crime, U.S. execution statistics indicate a cyclical pattern. With the A.L.I against the death penalty, courts lose a strong ally, and although it is too soon to say, courts may express a greater reluctance to sentence individuals to death. Despite popular opinion, the downward trend of executions in America may continue to fall in the coming years.

Wednesday, November 24, 2010

Other Significant Problems with TSA's New Policies

Hello Readers,

Richael Faithful, TMA's Editor-In-Chief here. Just before tomorrow's holiday, I wanted to offer two important angles to the recent TSA security inspection controversy.

For transgender or gender non-conforming people, TSA's new inspection procedures may prove especially invasive and troublesome. The National Center for Transgender Equality issued a really helpful resource this week, "Transgender Travelers and New TSA Policies," which tells trans and gender non-conforming people their legal rights against inspection abuse. In my mind, the value of this resource is that it helps people navigate situations in which ignorant or unprofessional officials may subject certain individuals to additional scrutiny (e.g. if one's appearance does not "match" one's ID gender marker) that may led to serious problems.

Another troublesome implication of the new TSA policies is that some politicians are exploiting this opportunity to promote racial profiling. Although most notably, Representative Jason Chaffetz (R-UT) wrote to President Obama that he supports behavioral profiling over the new policies, he has commented to the press that he supports "profiling not solely based on race." The latter is racial profiling while the former is an effective law enforcement tool. Anti-racial profiling advocates make this key distinction all of the time--one is illegal and the other is not, for good reason. Check-out the Rights Working Group's new report on racial profiling, "Faces of Racial Profiling: A Report from Communities Across America."

If you are traveling for the holiday, be safe and informed.

Fighting For and With Our LGBTQ Young People

For a legal angle on the crisis of homophobia/trans-phobia and how its killing our young people, check out the National Campaign to Restore Civil Rights blog entry, "Fighting For and With our LGBTQ Young People." 

Friday, November 19, 2010

No Student Left Behind: Ensuring The Accessibility of Reading Technologies at Universities

By; Gary C. Norman, Esq. L.L.M. Candidate 2011 & Commissioner, Maryland Commission on Human Relations

Viewing the show Star Trek Next Generation as a teenager during the late 1980s and the early 1990s, I did not contemplate that, not that distant in the future, Americans would possess Star Trek like reading and communication methods and devices, such as the e-book and the IPhone.  The peril of technological change is, however, not all in civic society may always benefit.  For instance, blind or vision impaired individuals for whom the benefit of biomedical eye implants like Geordie is not yet available may be excluded constructively or intentionally from the promise of emerging technologies if legal safeguards are lacking.  This entry will thusly explore the perspective of blind or vision impaired persons, or other persons who have disabilities that cause reading standard print not to be an option, in relation to the introduction of e-books by some post-secondary educational institutions.

In 2009, universities in Arizona and several other states engaged in a partnership with the vendor of the Kindle– Amazon, Inc. - to introduce, on a voluntary basis, this emerging mode of reading into post-secondary education.  Trumpeted as an innovative pilot program by Amazon Inc., e-book readers would be furnished to students replacing paper based books in select classes.  In addition, the 2010 testimony of Principal Deputy Assistant Attorney General of the Division of Civil Rights before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties, indicates that, because of the cost of paper based books and the positive features of e-books, such as their light weight, e-books may replace paper based books in three to five years.

Initially providing an e-book reader that possessed text to speech capabilities, Amazon, Inc. succumbed to the pressure of the Authors' Guild.

Whereas emerging technologies might not cause an issue for able-bodied students matriculated at universities, blind, vision impaired, or otherwise disabled students and policy advocates alike possess grave concerns that emerging technologies, to the extent they are not accessible, will impede an equal education of students with disabilities.  Amazon, Inc. triggered off text to speech capabilities in its e-book reader such that all of its menus could not be equally accessed by blind or vision impaired students.  The Authors' Guild, which represents authors, argued that reading books out loud violated copyrights.  In 2009, the National Federation of the Blind and the American Council of the blind, members of an advocacy coalition named the Reading Rights Coalition, filed litigation against Arizona State University – one of the partners with Amazon, Inc.  In addition, NFB and ACB filed complaints with the Departments of Education and Justice alleging unlawful discrimination by five other universities who had partnered in the pilot program.

Notwithstanding the arguable violation of the law (i.e. the Americans with Disabilities Act of 1990), the issue is that, from a fairness and practical standpoint, students with sight or learning disabilities may either have to wait long periods of time to acquire books in alternative formats or may have to engage in proactive endeavors to acquire their books from publishers.  I can attest, as a student with a sight disability, that acquiring and utilizing books in alternative formats (e.g. on digital CD) or as a PDF that has yet to undergo further conversion to be accessible have been – sometimes challenging and often time consuming - experiences.  For an able-bodied student, however, just like the introduction of the Gutenberg bible, reading by way of a device, such as the Kindle DX, can be instantaneous.

Assistant Attorney General Perez of the Civil Rights Division has stated that, “Advancing technology is systematically changing the way universities approach education, but we must be sure that emerging technologies offer individuals with disabilities the same opportunities…”

On January 11, 2010, the plaintiffs entered into an unpublished settlement agreement with Arizona State University, a settlement to which the Department of Justice was a party.  In June 2010, the Departments of Justice and Education jointly conveyed correspondence to universities that expressed it would be a violation of the civil rights panoply of the ADA and §504 of the Rehabilitation Act of 1973 for universities to provide inaccessible e-books.  The Departments urged universities not to acquire, deploy, or have students utilize this form of emerging technology until it was accessible to all students.  Furthermore, WCL will have, in 2011, a conference concerning students with disabilities, a component of which will be focused on technology issues.

In sum, as our civic society advances technologically but also concomitantly seeks to fulfill the promise of civil rights panoply, issues of this sort will be at the forefront of public discussion and even, when necessary, litigation.


Tuesday, November 16, 2010

WCL Dean Goes Head to Head with Leading Conservative Against Same-Sex Marriage - Part 2

This link is a follow-up to the previous post about WCL Dean, law professor, and former TMA advisor, Tony Varona's weekend at St. John's University symposium on the subject. This post dissects his panel debate against Maggie Gallagher, founder of the National Organization for Marriage.

Monday, November 15, 2010

WCL Dean Brews a Case for DOMA Repeal at Law Conference Over Weekend - Part 1

Professor of Law, Academic Dean at WCL, and former TMA faculty advisor, Tony Varona, is writing a two-post series on the well-known blog, Pam's House Blend, about the Defense of Marriage Act's (DOMA) repeal.

The first blog in the series discusses former U.S. Congressman's Bob Barr's recent call for DOMA's repeal. His new post, coming soon, will offer insight into his panel debate with Maggie Gallagher, of the National Organization for Marriage, which took place this past weekend, and whom Pam describes as "the grande dame of discrimination."

A Modern Twist on the Prison Industrial Complex

By: Isis Goldberg

In 1997, Angela Davis, author, professor and former Black Panther member, constructed the theory of prison-industrial complex.  For decades, the United States government has limited its accountability of the treatment and happenings of its detained citizens by contracting private prisons. These prison tycoons along with the government have benefited not only from the industry that is building and maintaining prisons, but also from the extremely cheap labor which many corporations have profited from including: Microsoft, Eddie Bauer, J.C. Penney, Victoria's Secret, Best Western Hotels and Honda.

Mrs. Davis´ ideas have at times been criticized and at times people have gone so far as to accuse her of being a conspiracy theorist with fantastic ideas.  Meanwhile, the prison industry owners and corporate giants have profited from the immense number of individuals currently incarcerated in this country, making the United States the country which incarcerates the most people in the world.  One in every three black men and one in every six Latino men will spend time in prison at some point in their lives.  Minorities compose 68 % of the current prison population. Some have criticized the prison industry as a form of modern day slavery because the number incarcerated people are disproportionately people of color.  Often times the crimes are either petty crimes which are correlated to impoverished living conditions and non-violent drug possession. 

Although it may be difficult to believe, understand, or rationalize the Machiavellian practice of incarcerating people as a business—it is not so farfetched.  Lawmakers and private corporations have tried to develop, establish and promulgate a law whose sole purpose is to incarcerate individuals.  The most recent targets are immigrants.  On October 28, 2010, NPR published an article entitled “Prison Economics Help Drive Arizona Immigration Law” which shed light into the role that the private prison industry played in pushing forward Arizona´s controversial legislation, SB 1070. 

The investigation conducted by NPR revealed that Arizona´s bill was drafted with the cooperation and participation of a secretive group called the American Legislative Exchange Council (ALEC).  This organization is composed of state legislators and powerful corporations and associations including the Corrections Corporation of America, the largest private prison company in the country which has been subject to countless lawsuits due to its mismanagement since 1998. 

According to NPR, the private prison industry sees immigration detention as there next big money making opportunity. Not only does the private prison industry have this foresight, but they have gone as far as to make campaign donations, hire powerful lobbyists, and hold secretive meetings to perfect a controversial legislative bill which would take the governor of Arizona four days to pass. 

The truth of the matter is that more than ever powerful private corporations have more influence and participation in drafting the bills which govern us all.  Private corporations which compose ALEC such as: the National Rifle Corporation, Exxonmobil, Reynolds American Incorporation (the big tobacco company), do not have the public welfare at interest.  Even if these corporations did not have a reputation for being carless, the bottom line is that corporations have no business contributing or controlling legislation.  A corporation does not have a personality, morality or constituents—their only objective and legal obligation is to make as much money for its shareholders by any means necessary.  

Friday, November 12, 2010

Prison Labor, Human Experimentation, & The BP Oil Disaster

By Zannie Carlson

Amidst the myriad of corporate responsibility and ethics controversies that arose from the BP oil spill, one issue recently reported by The Nation that I find particularly compelling is that BP hired prison labor to clean up the spill.

Some individuals outside of the prison system may argue that prison labor programs encourage strong work ethics, ties to community, and values that may contribute to deterrence. I have also heard the argument that because prisoners are consuming government resources while being imprisoned that they might as well contribute to society in some way before getting out. Although the health effects of daily exposure to crude oil is fairly unknown, the fact that “the chemicals in crude oil can damage every system in the body, as well as cell structures and DNA” suggests that corrections agencies should consider the impact of prison labor on prisoners, rather than corporate bottom lines. It almost goes without saying that the majority of prisoners are individuals who are in marginalized in society, who are disproportionately non-white and poor, with already limited access to healthcare before incarceration.

The American penal system has a long history of using prisoners’ bodies for research purposes or profit. Ironically, several months after the publication of The Nation’s BP article published in late July, the US government officially apologized to Guatemala for implementing a Tuskegee-like experiment on Guatemalan prisoners, in which officials intentionally infected prisoners with syphilis in the name of scientific progress.

Urban studies professor, Allen M. Hornblum's book, Acres of Skin: Human Experiments at Holmesburg, details human experimentation in a prison where mostly topical products were tested on prisoners. Although some commentators, including a review in The Journal of Criminal Justice and Popular Culture, emphasize that prisoners ultimately consent, clearly prisoners’ consent is not fully voluntarily as it is constrained by state power. I guess it makes you think twice about the “no animals have been tested” label on the shampoo bottle when prisoners have been there and done that, with about equal opportunity to object.

Likewise, in terms of the BP clean-up and current “work programs,” Louisiana prisoners who choose not to work release programs are punished by being assigned to work with toxic chemicals, like oil, as “[i]nmates can't pick and choose their work assignments and they face considerable repercussions for rejecting any job, including loss of earned "good time."’ The increased probability that offenders who do get an opportunity to re-enter society with compromised health or fatally-ill condition should give us pause. Is this the kind of “rehabilitation” we want from our criminal justice system? What kind of life are we establishing for them for re-entry? If our goal is to disempower people, then, we’ve done our work. 

Wednesday, November 10, 2010

DADT Panel Update - Webcast, Podcast

Hello Readers. 

For those of you who missed the DADT panel today, have no fear, technology is here. There's a webcast & podcast of the event. Enjoy!

Tuesday, November 9, 2010

For Every Scholar, There Must Also Be the Occasional Frivolity: Heard Any Good Films?

By: Gary C. Norman, Esq. L.L.M. Candidate 2011

Entertainments, such as the television or the film theatre, are equally of interest to the blind, vision impaired or otherwise disabled individual, even including those matriculated at WCL. 

People with sensory-related disabilities receive audio description or video description by way of a secondary audio stream during television broadcasts or at the film theatre.  Video description is the audio description of key visual elements in programming, inserted into natural pauses in the audio, to make television programming accessible.  In a related fashion, close captioning, available for some twenty years, provides a textual representation of the dialogue communicated in the program.

The Biblical admonition – the Lord Gives on the one hand, and takes away on the other - might be modified, in the context of video description, to reflect that which litigation both gives and takes away.

By way of history, rules adopted by the Federal Communications Commission in July 2000, required television stations in top-25 markets that are affiliated with ABC, CBS, NBC, or Fox to provide 50 hours of video description per calendar quarter, either during prime time or on children's programming.  Television broadcast stations affiliated or associated with any television network had to pass through video descriptions when the network provides them as long as the station has the technical capability to pass the descriptions through (subject to some technical exceptions). As sensible as these rules would appear, or appeared at the time, the so-called voice of blind or vision impaired persons, the National Federation of The Blind (NFB) joined the industry to oppose the rules, eventually winning in federal court at the appellate stage.

In October 2010, President Obama signed a piece of critical legislation (Public Law 111-260), the Twenty-First Century Communications and Video Accessibility Act. The Act passed because of bi-partisan support, including the leadership of Congressman Markey (D-Mass) and Congressman Barton (R-Tex). The dedicated multi-year advocacy campaign of the Coalition of Organizations for Accessible Technology is a key reason for the Act's passage. Title II of the Act provides the requirements for video programming. Section 203 of the Act imposes, among other requirements, a minimum number of hours of audio described shows per week. The Act specifically authorizes the Federal Communications Commission to possess the regulatory authority to impose accessible video programming mandates.

Likewise, an issue essential potentially to life itself, emergency notifications that scroll across the bottom of the screen, may be made accessible because of the Act. Of interest to administrative law students, the enforcement provisions of the Act indicate if, once a complaint has been filed and received, and the Federal Communications Commission fails to undertake action on any of its responsibilities to act on a complaint as specified in the Act, the party who filed the complaint can seek a mandamus action in the United States Court of Appeals of the District of Columbia. 

In conclusion, my charge is attending a film.  For those who are vision impaired, as consequence of a settlement or settlements, audio described films are available at AMCs.

Post Script
The organ of the people of the NFB, the Braille Monitor, published an article--Audio Description: Accessory or Accessibility?--that provides a glimpse into the perspective of the NFB as to video description mandates. The article states, "We have never said that audio description is a bad thing as it currently stands. Our concern is that it be kept in perspective...It is our responsibility to do as much as we can for ourselves and not to grab everything." 

I am not sure of the policy stance of the NFB respecting the passage of the Act. The Act seemingly has provisions the NFB supports, accessible emergency notifications, and the Act has provisions the NFB urges is a secondary issue, superfluous to the blind public, video description. 

Friday, November 5, 2010

Navajo Nation Public Interest Groups Send Notice of Suit to NN President

Days after a closely-watched Navajo Nation election, where the first female presidential candidate, Lynda Lovejoy, narrowly lost to incumbent, Ben Shelly, the Forgotten People, a grassroots advocacy organization, issued this announcement:


Window Rock, October 30, 2010

Today Elouise Brown, the president of Dooda Desert Rock, and Don Yellowman, the president of  The Forgotten People, announced that they have given notice of suit to President Joe Shirley, Jr., Attorney General Louis Denetsosie, and whoever the acting Legislative Counsel may be, to address any attempt to interfere with the independence and integrity of the Navajo Nation court system.

“We take this opportunity to file a protective notice,” said Elouise Brown, “because we are being alerted of moves to remove the Chief Justice, change the Judiciary Committee procedures for removal hearings, and otherwise obstruct justice and the rule of law.”  Don Yellowman added: “It is about time that the powers that be understood that there is a separation of powers in the Navajo Nation and it means something.  The Navajo Nation judicial system secured the right of individuals such as me and Elouise to get into court, and the right of our grassroots organizations to be heard, so we felt we must act.”

The notice says that the plaintiffs intend to act on behalf of Navajos who want access to a fair and impartial court system, and attorney James W. Zion proposes to enter the suit on behalf of clients.  The notice states a broad range of claims designed to anticipate any attack on the judicial system, and it puts the Navajo Nation on notice that the plaintiffs will claim as much protection for the court system as the law allows.

Brown and Yellowman jointly noted that the Navajo Nation Bill of Rights guarantees an independent and fair court system as part of the due process right of access to the courts.  “No matter what the legislative lawyers say, the Council cannot abolish the court system,” they said, “and we give warning that we will not tolerate legislative interference in the functioning of the court system.” 

Below is the notice of suit: 

TO:                  The Honorable Joe Shirley, Jr., President of the Navajo Nation
                        Louis Denetsosie, Esq.,  Attorney General of the Navajo Nation
                        The Acting Legislative Counsel of the Navajo Nation

PLEASE TAKE NOTICE, pursuant to 1 N.N.C. § 555(A) (2005), that the within-named public interest organizations and individuals, on their own behalf and on behalf of a class consisting of members of the public who wish due process access to a fair and impartial judicial system and who are  beneficiaries of public properties and monies of the Navajo Nation, desire to institute suit against the Navajo Nation, certain of its officers and public officials, employees or agents, and notice is provided as follows:

Prospective Plaintiffs

The prospective plaintiffs are Dooda Desert Rock, a grassroots Navajo public interest organization;  Elouise Brown, a Navajo individual and president of Dooda Desert Rock; The Forgotten People, a grassroots Navajo public interest organization;  Don Yellowman, a Navajo individual and president of The Forgotten People; and James W. Zion, a member of the Navajo Nation Bar Association and lawyer for Navajo litigants in the Navajo Nation judicial system.  They sue as entities and individuals for themselves and members of the Navajo Nation public who wish access to a just and fair Navajo Nation judicial system and the protection of public properties and monies.

Prospective Defendants

The prospective defendants include the Navajo Nation, the Navajo Nation Council, Judiciary Committee,  Budget and Finance Committee, other committees of the Navajo Nation Council, the Controller of the Navajo Nation (for his management of Navajo Nation monies and funds), individuals in public office or acting under color of public office, and John and Jane Doe, being the fictitious names of other persons or entities whose identities and roles in this matter are as of yet unknown.

Nature of Claims

This action will be brought to protect the rights of all plaintiffs and the plaintiff class and to secure rights to due process of law by access to a judicial system that is just and fair; assure the separation of powers of Navajo Nation government for proper checks and balances;  take all actions necessary to prevent the removal of sitting justices or judges, the impeachment of sitting justices or judges, or any other adverse action against justices or judges, or judicial employees, including amendments to Judiciary Committee procedures not supported by the separation of powers;  assure the integrity of the judicial selection and evaluation process; and to protect the property and monies of the Navajo Nation by removing or impairing justices or judges as the guardians of such property and monies.  Claims will also be based on fundamental principles of good governance, the  naachid process, hazho’ogo, and The Fundamental Laws, including provisions on leadership, the judicial function and governance.  If, for any reason, actors attempt to improperly interfere with the plaintiffs or their counsel through the Navajo Nation Bar Association, action will be taken against it or its officers or employees.

Relief Sought

The plaintiffs will seek full relief to secure the above claims, including prospective injunctive relief, full equitable relief, mandamus, prohibition and nalyeeh to protect the judicial system and its justices and judges, as indicated.  The plaintiffs will seek appropriate relief to enjoin any act to change, amend, terminate personnel, or eliminate or modify funding, including inadequate funding, of the Judicial Branch of the Navajo Nation until such time as its future is secure under new legislative and executive leadership.  The plaintiffs will also seek their costs and attorney fees.

We'll see what comes of it. 

Thursday, November 4, 2010

Event Announcement: DADT: Beyond the Log Cabin Republicans' Injunction and the Defense Authorization Act

Announcing a TMA co-sponsored event, next week:

 Don't Ask, Don't Tell: Beyond the Log Cabin Republicans' Injunction and 
the Defense Authorization Act
Wednesday, November 10, 12 - 2pm, WCL Rm. 603. 

Stephen Vladeck, American University Professor & National Security Law Expert (moderator)
Michelle McCluer, Executive Director of the National Institute of Military Justice
David McKean, Staff Attorney for Servicemembers Legal Defense Network
Ty Cobb, Legislative Director for the Human Rights Campaign
David Rittigers, Legal Policy Analyst for the Cato Institute
Closing remarks given by:
Anthony Varona, American University Associate Dean & Professor of Law 

This program is co-sponsored by the Office of Diversity Services, Program on Law & Government, National Security Law Brief, Labor & Employment Law Forum, LAMBDA Law Society, Legislation & Policy Brief, Modern American, Veterans of American University, Health Law & Justice Initiative and AU Queers & Allies.

Food will be provided. 

There is no charge for registration, but registration is required to attend the reception following the event.  Please go to, to register.

For further information, please visit either the National Security Law Brief’s or the Labor & Employment Law Forum’s websites at or

Wednesday, November 3, 2010

Election Report: A "Heartland" Vote for Islamic Bigotry

Richael Faithful, TMA's EIC, here.

The Jurist reported that last night Oklahoma voters approved a state constitutional amendment, which bans the use of Islamic Law and international law in state court decisions.

A little more detail can be found here. And CNN has extensively covered this story here and views of legal experts can be found here.

The referendum approval is shocking on several levels. On a practical level, as pointed out in the latter link about legal scholars' reactions, is that the ban on the use of international law and the imposition of certain English-only requirements will prove hard for courts, which deal with multi-national and international issues all of the time. Like business law, for example.

I've also taken Islamic Law at American University; although sparingly applied by American courts, Islamic law is sometimes the most sensible law to apply from a choice-of-law perspective. Mainly, Islamic law, for the most part, addresses family law-like issues, and sometimes, litigating parties may prefer its application. Though admittedly sensitive, the application of Islamic law in American courts, is a perfectly sound rational and legal approach.

Of course, on a cultural level, this development is heartbreaking, from the view that Islamphobia has reached such a fervor in "middle America." I don't have much to say other than, "ugh."

If you are interested the intersection of Islamophobia and First Amendment rights, we'll have a special commentary on this subject in our fall issue slated for early December publication.

Thanks for reading.

Update: Nov. 4, Advocacy group files suit against Oklahoma:

Tuesday, October 26, 2010

America´s Access to Guns and the Effect it has on American Gangs and Political Instability Abroad

By:  Isis Goldberg

Our founding fathers created the Bill of Rights as basic rights to which each individual living in the United States is entitled.  One of the most potentially dangerous and perilous of these rights, however, is the Second Amendment, which grants the right to keep and bear arms. 

As Michael Moore depicted in the documentary “Bowling for Columbine” guns are readily available for purchase to Americans of all ages across the United States.  Michael Moore´s film was made popular because it shows the detrimental effects to our schools when guns are made easily accessible to frustrated suburban children.   For individuals who were raised on the streets the figures and facts reflected in the documentary were not shocking.

The notion that guns can be bought at K-Mart should not be alarming; rather, the reality that guns can be bought in the back alleys of many neighborhoods is frightening. 

In the context of the underdeveloped, urban ghettos that are generally populated with impoverished people of color, access to guns has not provided for self protection in the way contemplated by our founding fathers.  Instead, guns have triggered and vigorously driven up incidence rates of violent crimes, the emergence of new gangs, and the distribution of drugs. 

The unfortunate reality is that in many urban areas such as Los Angeles, New York, Atlanta, Chicago, and Oakland, a significant percentage of people have been direct and indirect victims of firearms.  This is particularly true among people of color.  Although weapons are not the cause of gang violence, the legal accessibility of guns in our country by licensed retailers increases the use of illegal guns in our streets. This has resulted in an epidemic of violence and murder in many urban communities.  Furthermore, the easy access to of firearms increases insecurity in our schools, our parks, our homes and our lives.

Easy access to guns has also created a monumental effect in world stability and well-being. Sources in the United States illegally sell and distribute weapons in Latin America and Africa.  A prime example of this phenomenon is seen with the Mara Salvatrucha, one of the most dangerous gangs in the world, which originated in Los Angeles.  The gang currently, terrorizes El Salvador and other Central American countries, as well.  The Mara Salvatrucha has managed to gain so much power and strength in part due to the fact that when they were originally deported to El Salvador from the U.S. for illegally residing in the country, they maintained their ties to other gang members in Los Angeles.  These ties continued to provide gang members in Central America with access to powerful, state-of-the-art-guns that are often stronger and more numerous than weapons that are accessible to government officials in those countries.

When you drive across the San Diego, Tijuana border there is a clear sign that states, “WARNING: Weapons/Ammo Illegal in Mexico.”  Mexico is aware that the vast majority of weapons in the Mexican black market come from the United States.  While America imports drugs, it also exports dangerous weapons that lead to an unbelievable amount of deaths.

At the end of the day, although our founding fathers believed that the right to bear arms was a fundamental right for all citizens, today it has caused more harm than good, within our borders and beyond.  The presence of illegally acquired weapons from the U.S. ultimately and inevitably results in unnecessary violence.