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.    

High Heels in 2010?

By Shailee Diwanji

At a recent seminar discussing clerkship interviews, a federal judge advised, "females must wear skirt suits and pantyhose when they interview with me."  I laughed out loud.  Literally.  But then, I saw a similar situation on CBS's The Good Wife.  And yes, I know courtroom TV dramas aren't an accurate reflection of the real world, but they do get their inspiration from somewhere.  Then, as if to validate my concern, I read an article about a law firm which requires its female secretaries to wear skirts and high heels!

This law firm's dress code injured a female assistant.  That's not something you hear every day.  But this law firm's dress code policies would perhaps have remained in the shadows were it not for this female assistant's injury.  She was injured when her heel got caught in the carpet.  Sadly, as a result she underwent multiple surgeries. Worse, however, is that her employer wouldn't rehire her when she recovered from these surgeries.  Needless to say, the employer law firm is being sued, but under violations of the Americans with Disabilities Act and the Family Medical Leave Act.  Not for gender discrimination.

Why not?!  Isn't it obvious that mandatory skirts and high heels are a blatant violation of gender discrimination policies and laws?  It's 2010!  There must be something out there that would prevent an employer from mandating such a dress code!

Imagine my disappointment when I discovered I was wrong.  The Equal Employment Opportunity Commission has generally held, and courts have ratified, that employers may establish varying dress codes for men and women without violating discrimination laws.  Traditionally, men and women dress differently.  That's simply how it is.

Isn't it time that our definition of "traditional" change?  It is no longer the social norm for women to wear skirts or dresses or high heels, so why shouldn't our regulations reflect current practice?  Shouldn't we have the option, albeit reasonably, to dress how we choose?  I understand and endorse an employer's need to establish general guidelines for a dress code such as casual, business casual, business professional, etc.  I even understand an employer's prerogative to, for instance, disallow three-quarter pant suits or mandate a particular skirt length, if an employee chooses to wear a skirt.  But to mandate that a skirt or high heels be worn, well, isn't that crossing the line?

A Reflection on Employment Challenges and Opportunities

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

During the summer of 2010, a cohort of local, state, and national stakeholders in disability law and policy convened in the District at a national summit called Living, Learning, and Earning, to commemorate the passage of the Americans with Disabilities Act of 1990.  Among other issues discussed at the summit was the issue of employment of people with disabilities. A critical component of the summit was while more attention is being paid to employment discrimination of people with disabilities, a demand for redress is still necessary. For instance, a summit working paper indicated that, in 2009, only some twenty-two percent of people with disabilities were gainfully employed.  This entry will discuss a couple of forward-moving steps by the federal government to address this issue.

Fulfilling a campaign promise to the disability civil rights community that, if elected, his administration would ensure disability issues and leaders with disabilities would be at the main stage instead of on the back stage, President Obama reinstated an Executive Order in July 2010 during the ADA celebrations.  President Obama (Obama) reinstated, in a commemoration ceremony at the White House, Executive Order 13163 (Order) of the Clinton administration that required the federal government to constitute a model employer, proactively hiring 100,000 people with disabilities during a time span of five years.

Section 2 of the Obama Order requires the Director of the Office of Personnel Management, in consultation with the Department of Labor, the Equal Employment Opportunity Commission, and the Office of Management and Budget, “to design model recruitment and hiring strategies for agencies.”  Notably, §2(B) of the Obama Order directs that, within 120 days that the Office of Personnel Management (OPM) formulates and sets forth strategies concerning proactively hiring people with disabilities, each agency will create an agency-specific plan that has, to the fullest extent allowed by law, performance targets and numerical goals for hiring people with disabilities, including specifically such “targeted disabilities” as blindness. 

The Order also indicates that such hiring plans, are to parlay the existence of Schedule “A” hiring authority, and are, as a mechanism for increasing the numbers of targeted disabilities in the federal workforce, to maximize the inclusion of people with disabilities in internship and fellowship opportunities.  Section 3 of the Order addresses the retention of existing workers with disabilities by, among others, requiring the Director of OPM, in consultation with the Secretary of the Department of Labor and the Chair of the Equal Employment Opportunity Commission (EEOC) to provide assistance to agencies on such issues as the provision of reasonable accommodations. 

For example, at the behest of Attorney General Eric Holder, The Department of Justice initiated, in May 2009, an affirmative hiring plan for legal professionals with disabilities. Another example is that at the national summit there was a showcase panel held called New Directions in Living, Learning, and Earning, the Deputy Director of OPM, Christine Griffin, facilitated a discussion where she touted supposed reforms to a facet of job applications known as Skills, Knowledge, and Abilities. And in November 2010, the Deputy Director will lead a discussion on the employment of people with disabilities at the regional convention of the American Council of the Blind that will occur in Baltimore County, Maryland. Mentioning the positive steps Departments have undertaken or will undertake, either because of the Order or concomitantly with the Order is relevant.

In my experience as a former Presidential Management Fellow and as a full-time attorney with a disability, an issue that will continuously need to be addressed is the provision of reasonable accommodations, on the one hand, and sensitivity training to people with disabilities, on the other.  While certainly all organizations—both  private and public sector—have staff and management notable in their dedication to the rights of all persons, including people with disabilities, there are clearly opportunities for improving attitudes about disabled workers.  To be sure, the Deputy Director will discuss, at the regional convention, such issues as the provision of reasonable accommodations.

Not to digress, but Pilot and I enjoyed the honor of attending this national summit, participating therein within the dialogue.  I emphasize that the summit was indeed a fine learning experience for the young pup of San Francisco, California. 

Time will determine if the Order and affirmative direction of cabinet officials will result in increased numbers of people with disabilities in the workforce.  That the government can play a role in addressing including and integrating historically marginalized groups into the social fabric is arguably a fitting role for elected and appointed officials and of the instrumentalities of the people with which they are charged to lead. 

I urge our instrumentalities of government to provide for the “common welfare” rather then, except in times of invasion, insurrection, or attack, whether from enemies domestic or foreign, to inflate a military and industrial complex.  Even if the Order results in but one new hire with a disability, the employment of people with disabilities will be, as a national conversation, at the forefront.  By these conversations, change will, if evadingly, occur.


Post-Script:

To utilize the sentiments of Sir Newton, Leaders always stand on the shoulders of giants.  Recently, a luminary in disability law and policy, Paul Steven Miller, Esq., a former Commissioner of the EEOC, died.  According to the JFA Activist Blog, when Mr. Miller graduated Harvard Law School, some forty law firms denied him jobs, one so audacious to write that, because he is a little person, he should be in the circus.  Certainly, many barriers, especially in terms of attitude, demand changing.  One hopes, however, that these kinds of attitudes, even if somewhat underground these days, will slowly change as we as a people socially evolve.

DADT, DOMA and Fidelity to the Constitution

By David Wexelblat, Guest Contributor, TMA Staff

Last week, the blogosphere is all atwitter (pun intended) with outrage over the Department of Justice’s (DOJ) decision to appeal the “Don’t Ask, Don’t Tell” (DADT) ruling. Many people see the DOJ’s decision to appeal the District Court’s injunction blocking enforcement of “Don’t Ask, Don’t Tell” as yet another Obama betrayal of the LGBT community, akin to his failure to follow through on getting rid of the Defense of Marriage Act (DOMA). But the issues here are larger than that - there are fundamental constitutional issues at play.

The Executive Branch has a constitutional obligation to carry into force the laws duly enacted by the Legislative Branch. The Judicial Branch has a constitutional obligation to hold each accountable for the constitutionality of those acts.  The Executive and Legislature check & balance each other via the process of veto & override and/or creating/repealing legislation. The Legislature checks the Judiciary by court packing or jurisdiction stripping, per Article III authority (or the threat thereof); the Executive checks the Judiciary by refusing to implement its orders. (Whether one or more branches outweigh the others in this system of checks & balances is a debate left for another day.)

The question to be addressed is “What does this have to do with defending DADT and DOMA? They’re bad law and need to go!” The answer to this question is fundamental to our system of checks & balances.

The Department of Justice, as the representative of the Executive, is obligated to defend the acts of Congress, and in doing so, acts as a check on the Judiciary. If we believe in our Constitution, the DOJ should do so vigorously. It should do so regardless of the political opinion of the administration in power. It should do so over the vociferous outcry of outraged constituencies. And we should applaud them when they do so, and revile them when they fail in that duty - even when they are defending legislation that we vigorously oppose.

This may seem contradictory and/or hypocritical, but it is neither. There are two reasons we should want them to do so:

1. When a controversial piece of legislation that we oppose is finally put to rest at the Supreme Court, no one will be able to (legitimately) challenge the validity of that decision if the legislation received a vigorous defense.

2. Sooner or later, the shoe will be on the other foot. Imagine, for example, a future Republican administration may well be asked to defend the Matthew Shepherd Act. All the same people who are up in arms now about the Holder DOJ defending DADT and DOMA would be up in arms if the Republican AG failed to vociferously defend the Matthew Shepard Act.

The same people who are asking the Obama administration to sweep aside DADT and DOMA are the ones who were up in arms about the Bush administration’s sweeping claims of Executive authority - military commissions created by executive order, signing statements, warrantless wiretapping, etc. What is the difference between those abuses of Executive authority and Obama unilaterally sweeping aside DADT and DOMA (or letting them fall, undefended)? I would argue that there is no substantive difference between them. Arguments about “these are good” and “those were bad” are emotional, political arguments. But there’s a large chunk of the population that thinks “those were good” and “these are bad.” And the shoe will be on the other foot, sooner or later.

It is fair to blame the politicians for failing to keep their promises. But their promises can’t be “ignore laws.” Their promises need to be to repeal or change laws Obama, Pelosi, Reid, etc, failing to aggressively push the political agenda is an important debate, but it is a debate that is separate from the question of whether or not the laws should be defended, for which there should be no debate. People who want the system to work when their party is out of power need to support the system working when their party is in power. That means repeal by the Legislature or a fair fight in the Judiciary, not an abdication or Executive fiat.

It's worth noting that the same issue applies in Perry v. Schwarzenegger, although that’s a bit trickier. That one is a challenge to a state constitution in federal court, not as “simple” as the federal executive addressing an act of the federal legislature in federal courts. The California government’s failure to defend its own constitution is problematic - it’s an abdication of their responsibility just as the Obama DOJ failing to defend DADT and DOMA would be an abdication of their responsibility. Prop 8 is indefensible, even under rational basis review. But that determination should be made with a proper adversarial process, not by abdication of responsibility.

These are some of the really hard questions that test whether or not you believe in our Constitution.

Originally posted at The Victorious Opposition

For another analysis, see Dissenting Justice, DADT Emergency Stay: Analyzing the Law and Politics.

It’s Still A Secret, But Not For Long: A DADT Play-By-Play

By Alexandra Manrique

Want to serve in the Army, Marine Corps, Air Force or Coast Guard? Are you openly gay? Sorry, you still can’t. “Don’t Ask, Don’t Tell,” the policy prohibiting gay citizens to serve openly in the military, is still in effect. However, the end is near. Fingers crossed.

September and October have been busy months for the Federal Courts and the Department of Defense regarding Don’t Ask, Don’t Tell. It’s confusing as to where the policy currently stands. It all started when the Log Cabin Republicans, a conservative gay rights organization, challenged the discriminatory policy and the court ruled in its favor. Federal District Court Judge, Virginia A. Phillips, ruled that the policy was unconstitutional and approximately a month later she issued an injunction that suspended the enforcement of the policy.

The Department of Defense was caught off-guard and not too pleased.

The Department of Justice appealed the injunction to the Federal District Court but it was denied. Then, about a week passed. Just as the Armed Forces were about to start accepting openly gay applicants, the Court of Appeals for the Ninth Circuit issued a stay. The Appeals Court ruled that “Don’t Ask, Don’t Tell” was still enforceable. The government was back in control. Oh no!

But in a surprise move, but not really since the Obama administration publicly opposes the policy, Defense Secretary Robert Gates issued a memorandum limiting the policy. Basically, the memo restricts the DOD’s discharge powers of many military officials, thus making it difficult to discharge openly-gay service members.

Confusing, I know. Why this legal battle if the government is limiting the policy? Well, legally, the Department of Justice must defend government policy in court, and reportedly, the government wants to abolish the policy on its own terms, and The Obama administration argues that it needs time to evaluate the effect of eliminating “Don’t Ask, Don’t Tell” on the military.

But does the government really need time? After all, gay men and women have been, and continue to serve in the military. An anonymous marine wrote that there is nothing to evaluate. He stated, “if you take a moment to think about it, the only real change is that you’ll no longer pretend that you can’t see the gay elephant in the room – even though it’s been following you around for the past 17 years.”

The Peregrinations of a Post Graduate Law Student and Legal Professional with a Guide Dog

By; Gary C. Norman, Esq. L.L.M. Candidate Spring 2011

Unlike the fanciful hope of Ms. Keller, an author and civil rights activist, to see for one day, I find myself with the practical and laudable, but yet unrealized, hope that law students and attorneys with sensory disabilities will enjoy robust, meaningful opportunities.  

The differing interactions I recently encountered to my guide dog Pilot and I demonstrate the extent to which a range of actors in our civic society view a person with a vision disability as well as the respect they should be afforded as a professional.

On the afternoon of September 24, 2010, a cafeteria worker at my workplace purposely delayed my order over that of others who came later in line.  He falsely purported that, my guide dog shed hair offensively when I am, or when I have been, in line.  That same day, a staff person at Union Station, who coordinates taxicabs, discussed with a sighted person to my right that taxis would not transport Pilot and me.  In large urban centers, such as the District, guide dog handlers, even attorneys who can adroitly argue for their rights, frequently encounter access denials with taxicabs.  Notably, a bevy of women who stood behind me in line, who heard me advocate my rights to the director, proffered assistance, declaring that his actions violated the law.

Yes. They were in fact correct.  Title III of the Americans with Disabilities Act of 1990, as amended, provides protections against discrimination of people with disabilities, including those partnered with service animals, in such public venues as Union Station.  The Department of Justice promulgated updated regulations to the ADA in September 2010, which address, among other issues, the definition and access related issues of assistance dogs.  In sum, the right of students and professionals with disabilities to collaborate with an assistance dog, including in modes of transportation such as taxicabs, is a critical facet of diversity.  Through a partnership with an assistance dog, myriad blind attorneys believe they can fully participate in the workplace and on the public square.

At a recent board dinner meeting of the Alternative Dispute Resolution Section of the Maryland State Bar Association, one of my colleagues expressed that diversity constitutes an intellectually accepted concept but diversity is not always an outcome that members of the profession actualizes. He did not seemingly cognize the furry face representing diversity on the board that was reposing under the table.  While bar associations and law schools are assuredly at work in fostering a diverse legal profession, a diverse academia and profession, including a diverse pool of law students and professionals with disabilities, is unfortunately not at the level one would desire.  

For instance, students with vision disabilities encounter such issues as a fair and accessible LSAT as well as equal access to study, exam, and class materials, and lawyers with vision disabilities continue to report they are unemployed or underemployed.  The American Bar Association is at work in addressing this issue by, among other means, forums for dialogue. There is, however, room for progress.

All in all, my encounters with the cafeteria worker and the taxicab coordinator reflect a lack of respect for persons with disabilities. There’s been progress, but there are still more possibilities for solidifying disability as a component of diversity.

Education Everywhere: The Popular Awareness Surrounding Education Reform

By Alexandra Manrique

The issue of education—you can’t escape it. Although there are ongoing debates about its quality in the US, I am not reviewing the system’s faults in this post. Instead, I am referring to education, the entire topic, the call for change, and its widespread coverage. The issue is “hot.” The President is discussing it, the media is covering it, and films are documenting it. Is this necessary and extensive exposure helpful? Or, is this issue running its course (again) through the media and political mill. For this country’s sake, let’s hope it’s the former.

Every political administration notices the problem and tries to fix it. Ideas are given, plans are discussed, and policies are implemented. Yet, even with new legislation, serious problems persist; children are not reading at grade level, graduating high school, or entering the work force. This is because the government can’t do it alone and for good reason. The system needs an entire transformation and the public needs to support it.

Currently, this administration is making it a goal to improve the education system, and it is not shy about publicizing its plan. The President has been vocal about reform. Even Secretary of Education Arne Duncan is going to the public with his education proposals; just a few days ago he held a conference with MTV, a network known for its young audience.

Even if you don’t follow politics you will hear about the need for education reform. The media is improving its coverage on education and reporting more about the issue. There is also the documentary “Waiting for Superman”, presently being shown in theatres, that has earned rave reviews.

Apparently, I am not the only one noticing this extensive coverage. While I was writing this blog I came across another piece titled “The strange coverage of Obama’s education policies,” which has its own opinion about education publicity.

People may disagree with the plans and the policies surrounding education. However, the point is that the issue, the education of our children, is finally getting the attention it deserves. This new lengthy coverage means that more people are being informed, and too much information is never a bad thing.

Amidst Ongoing Slavery in the South, One Group’s Efforts to Enforce the 13th Amendment

By Zannie Carlson

One of the more frustrating myths I recall from my public school days was the idea that our social consciences have evolved with the times: European and Anglo-saxon civilizations started off on the wrong foot with Native American genocide and African enslavement (and genocide), but (white) Americans are so much better these days for having emancipated Africans, having recognized that white males should not be the only people allowed to vote, and can tolerate a black man as President. Let’s pat ourselves on the back for all of our progress.

While I now look at this framework with particular skepticism, I am still startled to learn of the number of incidents in America, particularly Florida, where Latino immigrants are funneled into forced farm labor. Between 2005 and 2007, César and Giovanni Navarrete imprisoned 12 farm-workers on the farmland where they were forced to work; one of the workers who resisted was beaten and chained to a pole. In these forced labor sites, beatings, shootings, and pistol-whippings are also not uncommon. In these modern episodes of slavery,

[S]everal of the recently convicted slavers [have] armed guards watching over the workers’ camp, which is typically far from town so that escapees have nowhere to go even if they find a way out. In the worst cases, the workers’ whole existence depended on supervisors or contractors, who were masters at keeping workers in both physical and economic bondage, deducting money for food and garden-hose showers ($5 each) from paychecks. . .One boss took away workers’ shoes at night so they wouldn’t run.  -Labor Notes

The CIW, the Coalition of Immokalee Workers (CIW), is responsible for the prosecution of Florida landowners engaged in forced labor and indentured servitude of workers. In this year alone there has been the bust of two forced labor rings, and the CIW has won seven cases, resulting in the release of over 1,000 forced laborers. Interestingly, Congress had to boost slaveholding sentences from the petty post-bellum sentence of three years’ incarceration to a heftier twelve years’ jail-time to reflect modern understandings of the severity of the crime. Perhaps there is some evolution, after all.

The CIW is also involved in advocacy for farmworkers’ rights to a higher wage, as the work load has doubled in the midst of a thirty-year wage stagnation, with salaries hovering around the poverty line. The probability that many of the workers are not legal residents of the United States makes their advocacy especially dangerous. The CIW offers several opportunities for involvement in their causes. Having made gains with fast food giants including McDonalds, Burger King, Taco Bell, and Subway, the group has set its sights on supermarket industry behemoths like Kroger and Giant.

Online, one may petition to raise tomato prices by a penny, raising daily wages from approximately $50 to $85. While the differences in wages are profound, it is also pathetic that corporations have so much power over humans that a penny per pound price increase could be an issue of contention. When workers work within the constraints of the law and rely on corporate collaboration, radical change will necessarily is limited.

Nonetheless, these seemingly small achievements ultimately benefit workers’ day-to-day routines. CIW’s work is a compelling example of human rights advocacy that has succeeded on a variety of fronts.

To read more, buy:

Nobodies: Modern American Slave Labor and the Dark Side of the New Global Economy by John Bowe

Dissecting the Pieces from a New Study, Picked Apart: The Hidden Struggles of Migrant Women in the Maryland Crab Industry

Hi Readers. This is Richael, TMA's Editor-In-Chief.

I just returned from a TMA co-sponsored event (with WCL's Office of Diversity Services and Latino/a Law Students Association) featuring Professor Jayesh Rathod, Director of the Immigrant Justice Clinic, on IJC's recent report, Picked Apart: The Hidden Struggles of Migrant Working Women In The Maryland Crab Industry.

I learned a great deal from his presentation even as a person knowledgeable with federal immigration enforcement policy and familiar with immigration law, to an extent. This study conducted by IJC (by WCL students) aimed to elevate the experiences of Mexican women brought to the Maryland Eastern Shore to do seasonal crab-picking work on H-2B visas (temporary non-agricultural visas). They interviewed 42 women. Among the things I learned:

• Women on H-2B visas have far fewer protections than men on H-2A visas, including no minimum hour work requirement or free employer housing. 
• These women paid-to-play, so to speak. Despite its prohibition, every woman paid local recruiters fees to participate in the visa program, and many were forced to take out loans from their recruiters with up to 15% interest rates. Sometimes more than half of their earnings go to repaying this "debt." 
• The vast majority of the crab houses are located on three remote islands along the Maryland Eastern Shore that is topographically isolated. Frequent tides flood the roads so it's impossible to leave the islands. 
• Employers rent housing to workers (unlike H-2A visa workers who have "free" housing - at least according to the law) and over half of interviewees did not have keys to their homes--supervisors maintained sole access to where they stayed. 
• Workers are paid by the meat pound so they have to pick about 200 pounds of crab-meat a day to just meet minimum wage (remember that these women must pay for their basic living expenses, recruiters, and usually need to send remittances back home) (one of the reasons why I'm vegan, by the way--e-mail me if this statement intrigues or upsets you). 
• Many of these workers must pay social security and other taxes from which they never benefit and for which they virtually cannot claim refunds. 

It's a rather shocking and sad story about which we all need to know. Approximately 60,000 people, mostly women, are brought over to the U.S. for this work each year, under these conditions; about 1200 of these visas are issued for Maryland crab companies. There are more companies alongside the Virginia and North Carolina coasts. 

I encourage folks to look at the report--it's clear and easy for non-lawyers to read. I'll limit my commentary to point out that amidst the "immigration debate" that these stories about government-sanctioned and supposedly regulated migration simply exposes the myriad of institutional problems and bad policy incentives in the existing immigration system. 

Such a level of exploitation is tantamount to slavery in my mind. In our backyards, no less. 

Court Now Says End "Don't Ask, Don't Tell" Today

If you have not heard, this is from the NPR newsdesk:

Judge Orders 'Don't Ask, Don't Tell' Injunction

A federal judge issued a worldwide injunction Tuesday stopping enforcement of the "don't ask, don't tell" policy, ending the military's 17-year-old ban on openly gay troops.

U.S. District Judge Virginia Phillips' landmark ruling was widely cheered by gay rights organizations that credited her with getting accomplished what President Obama and Washington politics could not.

"This order from Judge Phillips is another historic and courageous step in the right direction, a step that Congress has been noticeably slow in taking," said Alexander Nicholson, executive director of Servicemembers United and the sole named veteran plaintiff in the case along with the Log Cabin Republicans.

Servicemembers United is the nation's largest organization of gay and lesbian troops and veterans.

U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips' ruling stand.

Phillips declared the law unconstitutional after a two-week nonjury trial in federal court in Riverside, Calif. She said the Log Cabin Republicans "established at trial that the Don't Ask, Don't Tell Act irreparably injures servicemembers by infringing their fundamental rights."

She said the policy violates due process rights, freedom of speech and the right to petition the government for redress of grievances guaranteed by the First Amendment.

"Furthermore, there is no adequate remedy at law to prevent the continued violation of servicemembers' rights or to compensate them for violation of their rights," Phillips said.

She said Department of Justice attorneys did not address these issues in their objection to her expected injunction.

Before issuing her order, Phillips had asked for input from Department of Justice attorneys and the Log Cabin Republicans, the gay rights group that filed the lawsuit in 2004 to stop the ban's enforcement.

The Log Cabin Republicans asked her for an immediate injunction so the policy can no longer be used against any U.S. military personnel anywhere in the world.

"The order represents a complete and total victory for the Log Cabin Republicans and reaffirms the constitutional rights of gays and lesbians in the military who are fighting and dying for our country," said Dan Woods, an attorney for the Log Cabin group.

Government attorneys objected, saying such an abrupt change might harm military operations in a time of war. They had asked Phillips to limit her ruling to the members of the Log Cabin Republicans, a 19,000-member group that includes current and former military service members.

The Department of Justice attorneys also said Congress should decide the issue — not her court.

Phillips disagreed, saying the law doesn't help military readiness and instead has a "direct and deleterious effect" on the armed services by hurting recruiting during wartime and requiring the discharge of service members with critical skills and training.

Legal experts say the Obama administration could choose to not appeal her ruling to end the ban, but Department of Justice attorneys are not likely to stay mum since Obama has made it clear he wants Congress to repeal the policy.

"The president has taken a very consistent position here, and that is: 'Look, I will not use my discretion in any way that will step on Congress' ability to be the sole decider about this policy here," said Diane H. Mazur, legal co-director of the Palm Center, a think tank at the University of California at Santa Barbara that supports a repeal.

Tracy Schmaler, spokeswoman for the Department of Justice, said the government was reviewing Phillips' ruling Tuesday and had no immediate comment.

Gay rights advocates say they worry they lost a crucial opportunity to change the law when Senate Republicans opposed the defense bill earlier this month because of a "don't ask, don't tell" repeal provision.

If Democrats lose seats in the upcoming elections, repealing the ban could prove even more difficult — if not impossible — next year.

Woods said the administration should be seizing the opportunity to let a judge do what politics has been unable to do.

The "don't ask, don't tell" policy prohibits the military from asking about the sexual orientation of service members but bans those who are openly gay. Under the 1993 policy, service men and women who acknowledge being gay or are discovered engaging in homosexual activity, even in the privacy of their own homes off base, are subject to discharge.

Help The Homeless -- Is It Enough?

By Shailee Diwanji


There is a new, rather disturbing trend emerging in U.S. violent crimes.  Violence against homeless people has increased significantly in recent years even as the FBI's statistics indicate that violence against other targeted groups is decreasing.  Attacks against homeless people, including assaulting them while they sleep or instigating them to fight each other, are usually perpetrated by males, who often consider it a sport.  But even more worrisome are the ages of these perpetrators - 80% of the attackers of homeless people were under the age of 25.  Attackers see their victims as simply homeless, rather than homeless people; as if homelessness could render an individual to be sub-human.


These attacks are even more vicious because homeless people have no way to protect themselves - no home, no door that locks.  Several of these individuals are veterans and have served this country for several years, and their treatment by and in society today is hardly the gratitude they deserve. 


In light of these facts, Florida is now the latest of five states and the District of Columbia to pass legislation designating violence against the homeless as a hate crime.  The nature of the crime comes into play during sentencing, with states generally imposing a more severe sentence when the action classifies as a hate crime, than would normally be allowed for the particular crime.  Florida is the largest of these states to pass such legislation although the effect of this legislation on violence against the homeless still remains to be seen.  The legislation is nevertheless a step in the right direction.


On the federal level, Senators Ben Cardin of Maryland and Susan Collins of Maine have sponsored the Hate Crimes Against the Homeless Statistics Act, which, if passed, would require the FBI to gather statistics on crimes against homeless people to allow for better resource allocation and remedial measures. The FBI currently collects statistics on hate crimes that cover race, religion, sexual orientation, ethnicity, disability, gender, and gender identity, which are protected characteristics under federal or state laws.  But as homelessness is not a protected characteristic under any anti-discrimination law to-date, should homelessness become a protected characteristic for federal legislation? 


Arguably not.  While there is no doubt that more needs to be done to protect the homeless, the protected characteristic to be included in legislation should be more general.  Homelessness is a subsection of the socially and economically disadvantaged.  Is it not a hate crime if a child is targeted for being targeted for being poor even though he has a home


Bullying is on the rise in our nation’s schools and is leading to more extreme and unpredictable results. We cannot and must not wait for such violence to get worse before we attempt to resolve it.  We cannot allow future generations to fall victim to such abhorrent crimes.  Violence is bad enough when it is senseless and unmotivated.  But it is worse when the perpetrator tries to justify his actions on the basis of bias and prejudice.

Focus on Elitism

The Poverty Law Blog (moderated by AU law professor, Ezra Rosser) posted a couple of interesting links on elitism.

The first is a Slate feature on explanations for the deep economic divide in the US.

The second called Elite Colleges or Colleges for the Elite? is a NY Times op-ed on higher education legacy admissions.

The numbers really speak for themselves.

Women's Bodily Freedom Essay Contest - October 15 Deadline; $1000 Prize

TMA and DC Women's Bar Association's legal essay contest on the status and future of women's bodily freedom in American policy-making and jurisprudence deadline's has been extended to October 15.

$1000 prize and potential for publication. 20-30 pages. Bluebook citations. Must be submitted to tma@wcl.american.edu by noon. Check-out wcl.american.edu/modernamerican for more rules.

Good luck!

Is it Blacklash?

The Root, a leading commentary on issues affecting Black communities, published a very interesting piece, Massive Resistance Movement Against Obama. 

It analogizes some of the backlash against President Obama to the 1960s Massive Resistance movement, a period when whites effectively shut-down public education rather than desegregate in the South. Interestingly though, unlike the 1960s, no seminal racial justice court decisions have been recently decided. The question then is, what is a massive resistance when it is dislocated from high court "dictates"? What is the real source of this specific backlash? Lots of important questions here.