Impact Thursday 1: Litigating and Advocating for Social Change

Impact Thursday 1: Litigating and Advocating
for Social Change
Continuing Legal Education Materials
DATE: Thursday, September 10, 2015
TIME: Program 5:15p.m – 7:30p.m.
LOCATION: New York Law School
185 West Broadway, New York, NY 10013
PANELISTS: Juan Cartagena, President and General Counsel, LatinoJustice
Donna Lieberman, Executive Director, New York Civil Liberties Union
Vince Warren, Executive Director, Center for Constitutional Rights
MODERATOR: Deborah Archer, Professor of Law, New York Law School
CLE:
1.5 Continuing Legal Education credits, Areas of Professional Practice,
Transitional and Non-Transitional
Upcoming Programs:



Thursday, November 12, 2015
Law and the lives of Young Black Men
Thursday, January 14, 2016
Social Justice and the Power and Limitations of the Bench
Thursday, March 3, 2016
Tackling Economic Inequality, Revisited
1
Litigating and Advocating for Social Change
Table of Contents
Timed agenda………………………………………………………………………………….. 2
Florence W. Roisman, The Lawyer as Abolitionist: Ending Homelessness and Poverty in our
Time, 19 St. Louis U. Pub. L. Rev. 237 (2000)…...……...………………………………….. 3-25
NYCLU, Criminalizing the Classroom: The Over-Policing of New York City Schools
(2007)……………………………………….……………………………................................ 26-61
NYCLU, Dignity for All? Discrimination Against Transgender and Gender Nonconforming
Students in New York State (2015)……………..…………………………………….…… 62-105
William P. Quigley, Revolutionary Lawyering: Addressing the Root Causes of Poverty and
Wealth, 20 Wash. U. J. L. & Pol’y 101 (2006), available at:
http://opensholarship.wustl.edu/law_journal_law_policy/vol20/is ........................................106-174
NYCLU, State of Injustice: How New York State Turns its Back on the Right to Counsel for
the Poor (2014)……………………..…………………………………………………….... 175-206
04/24/2015 Letter from LatinoJustice to U.S. Attorney Loretta E. Lynch, Suffolk County
Police Department’s “Stop and Rob” Crime Spree Targeting Latinos……………....... 207-211
05/18/2015 First Amended Complaint filed in the U.S District Court for the Eastern District
of New York, Plaintiffs 1-21 v. County of Suffolk, Case No. 15-CV-2431.……………...212-273
Program Faculty
Biographies…………………………………………………………………….................... 274-279
Timed Agenda
Litigating and Advocating for Social Change
Presented by the Impact Center for Public Interest Law
Date: September 10, 2015
Time: 5:15 pm – 7: 30 pm
Location: New York Law School, 185 West Broadway, New York, NY 10013
CLE: 1.5 Continuing Legal Education Credits
5:15 – 5:25:




Introductions
Juan Cartagena, President and General Counsel, LatinoJustice
Donna Lieberman, Executive Director, New York Civil Liberties Union
Vince Warren, Executive Director, Center for Constitutional Rights
Deborah Archer, Professor of Law, New York Law School
5:25 – 6:10:
Moderated Panel discussion
Questions to be addressed:

What each organization does and how it chooses its priorities.

The range of advocacy tools used by each organization and how strategies and tactics are
tailored to particular problems.

Working collaboratively with other legal and advocacy organizations – benefits and challenges.

Current most important issues facing the organization and its constituency.

Where you have seen the most progress in the course of your career; where you have seen the
most intransigence on an issue.
6:10 - 6:30:
Q&A
6:30 – 7:30:
Reception
2
THE LAWYER AS ABOLITIONIST: ENDING HOMELESSNESS AND
POVERTY IN OUR TIME
FLORENCE WAGMAN ROISMAN*
"We see dimly in the Present
what is small and what is
great,
Slow of faith how weak an arm
may turn the iron helm of
fate,
But the soul is still oracular; amid
"I
the market's din ....
Homelessness and poverty are "formidable institutions which appear[] to
be... invulnerable" and "could never be abolished."2 Ending homelessness
and poverty are said to be "economically unfeasible." 3 People who seek to end
homelessness and poverty are "fringe figure[s]," 4 "very remote from the
For stimulating
Professor of Law, Indiana University School of Law-Indianapolis.
presentations and responses to this and other contributions to this volume, I thank the participants
in the symposium sponsored by The Saint Louis University Public Law Review and the ABA
Commission on Homelessness and Poverty. This article is very much a preliminary work,
unworthy even to be called "notes toward" an agenda for continued reform; I hope that it will
stimulate further thought, discussion, and exchange of views. I am grateful to Professor Sidney
Watson, editor of this collection, for encouraging me to participate in this symposium and begin
this assessment; to Mary Ellen Hombs, for making me see the connection between the
abolitionists and the campaign of which she has been a leader; to Jonathan D. Asher, for very
thoughtful criticism; to Terri Murry-Whalen for excellent research assistance; to the ABA
Commission on Homelessness and Poverty, which provided support for that assistance; and to
Mary R. Deer, for outstanding secretarial and other aid. All errors and inadequacies are, of
course, mine.
This article is dedicated to the memory of Gary Bellow, who enabled and inspired
thousands of lawyers to battle effectively for justice for poor people and constantly admonished
us to fight for fundamental change.
1. JAMES RUSSELL LOWELL, THE PRESENT CRISIS (1844), reprinted in 1 AMERICAN
POETRY: THE NINETEENTH CENTURY 683-84 (Library of America 1993). This poem furnished
the title for The Crisis, the Journal of the National Association for the Advancement of Colored
People (NAACP). See MARY WHITE OVINGTON, BLACK AND WHITE SAT DOWN TOGETHER:
THE REMINISCENCES OF AN NAACP FOUNDER 67 (1995).
2. See infra note 17.
3. See id.
4. See id.
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SAINTLOUIS UNIVERSITY PUBLIC LAWREVEVV
[Vol. 19:237
mainstream," 5 "a powerless and marginal handful" 6 of reformers, "without
influence or position, poor and little known, strong only in their convictions
and faith in the justice of their cause,",7 "a very small minority" 8 that 10is
9
"despised, scorned, and actively opposed." Their campaign seems "absurd."
Acknowledging this, I nonetheless urge that lawyers focus on abolishing
homelessness and the cause of homelessness: poverty. I use the word
"abolition" deliberately, to make the connection to the battles against slavery
in the nineteenth century and for civil rights in the twentieth century.I" I urge
this focus not only to inspire those who battle against homelessness and
5. See id.
6. See id.
7. See infra note 17.
8. See id.
9. See id.
10. See id.
11. At its founding, the National Association for the Advancement of Colored People often
was referred to as the "new abolitionist movement." See CHARLES FLINT KELLOGG, NAACP: A
HISTORY OF THE NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE:
1909-
1920, at 90, 139 (1967) (referring to "the new abolition movement, which had as its goal the
completion of emancipation"). There were in fact many connections between those who had
advocated the immediate abolition of slavery and those involved in the early days of the NAACP.
Among the principal founders and early leaders of the NAACP were Oswald Garrison Villard,
grandson of William Lloyd Garrison, and Moorfield Storey, who had been secretary to
abolitionist Senator Charles Sumner. See id. at 5-6 (regarding the Garrison and Villard families);
WILLIAM B. HIXSON, JR., MOORFIELD STOREY AND THE ABOLITIONIST TRADITION 8-11, 99
(1972) ("Storey, as secretary to Sumner, absorbed the humanitarian concerns and the moralistic
approach to politics that characterized the Conscience Whigs of Massachusetts."). Others' "lives
embraced the two abolition movements." See KELLOGG, supra at 91 (discussing Fanny Garrison
Villard, the second William Lloyd Garrison, Francis Jackson Garrison, and Albert E. Pillsbury).
Joel Springarn, a crucial leader of the new NAACP, deliberately "reached back in time to
resurrect the spirit of nineteenth-century Abolitionism, the only major movement in American
history which approximated the NAACP's ideal of equal rights and fair treatment for black
Americans... Beginning with the first New Abolition campaign in 1913, Springarn embraced the
courage and determination of the nineteenth-century Abolitionists with a fervor which rivaled that
of Garrison and Phillips." B. JOYCE Ross, J.E. SPRINGARN AND THE RISE OF THE NAACP,
1911-1931, at 25-26 (1972). There were other, deliberate ties between the two movements. See,
e.g., KELLOGG, supra at 120 ("To further the tie between abolitionism and the new movement,
the Boston... branch [of the NAACP] was organized with fifty-six members, including the
majority of the sons and daughters of the most noted New England abolition leaders.").
Later in the twentieth century, when students and others lent important new support to
the civil rights movement in the 1960's, they too were linked to the abolition movement. See
HOWARD ZINN, SNCC: THE NEW ABOLITIONISTS (1965); Howard Zinn, Abolitionists,FreedomRiders, and the Tactics of Agitation, in THE ANTISLAVERY VANGUARD: NEV ESSAYS ON THE
ABOLITIONISTS 417, 446 (Martin Duberman ed., 1965) ("a successor to the abolitionist: the sit-in
agitator, the boycotter, the Freedom Rider of the 1960's"); id. at 450 ("The movement for
desegregation today [before 1965] has all the elements of the abolition movement: its moral
fervor and excitement, its small group of martyrs and mass of passive supporters, its occasional
explosions in mob scenes and violence.").
4
2000]
THE LAWYER AS ABOLITIONIST
poverty with the prospect of ultimate victory, but also because defining the
relief one
seeks is critically important to determining what relief one will
12
achieve.
As "impregnable," 13 ineradicable, and intractable 14 as homelessness and
poverty seem today, 15 so impregnable, ineradicable, and intractable did slavery
seem in the nineteenth century and segregation in the twentieth. 16 As
marginalized, powerless, and quixotic as seem those who fight against
homelessness and poverty today, so marginalized, powerless, and quixotic did
the abolitionists appear in the nineteenth century and the civil rights workers in
the twentieth. Indeed, each of the statements that begins this article was made,
not of homelessness or poverty or segregation, but of human chattel slavery in
the United States. 17
Just as the "powerless and marginal handful" of
12. See Daniel M. Cress & David A. Snow, The Outcomes of Homeless Mobilization: The
Influence of Organization,Disruption, PoliticalMediation, and Framing, 105 AM. J. Soc. 1063,
1100-01 (2000) (concluding that the success of organizations seeking relief for homeless people
depends significantly upon "articulate and coherent diagnostic and prognostic framing").
"Diagnostic framing is important because it problematizes and focuses attention on an issue,
helps shape how the issue is perceived, and identifies who or what is culpable, thereby identifying
the targets or sources of the outcomes sought; prognostic framing is important because it
stipulates specific remedies or goals for the [organization] to work toward and the means or
tactics for achieving these objectives." Id. at 1071.
13. See infra note 17.
14. See id.
15. See John 0. Calmore, A Call for Context: The Professional Challenges of Cause
Lawyering at the Intersection of Race, Space, and Poverty, 67 FORDHAM L. REV. 1927, 1950
(1999) ("We cannot eliminate poverty; we cannot really move very many out of poverty.").
16. See WILLIAM LEE MILLER, ARGUING ABOUT SLAVERY: THE GREAT BATrLE IN THE
UNITED STATES CONGRESS 15 (1996) ("Thinkers and statesmen and leaders and realistic
politicians of all stripes and attachments believed that American slavery could not be ended - not
by deliberate human action."); JOHN EGERTON, SPEAK Now AGAINST THE DAY: THE
GENERATION BEFORE THE CIVIL RIGHTS MOVEMENT IN THE SOUTH 30-33 (1994) (describing
the South's "ironclad system of segregation" and the political power of those who maintained it).
17. See MILLER, supra note 16, at 9 ("Slavery had become, by the second quarter of the
nineteenth century, an immense, rooted institution. American slavery, many believed.. .could
never be abolished.") (emphasis in original); id. at 502 ("formidable institution.. .never could be
abolished"); id. at 454 ("impregnable"); id. at 9 ("apparently invincible,"
"formidable.. .impossible to eliminate"); id. at 502 ("American slavery in 1835 was a formidable
institution which appeared to be... invulnerable. It could never be abolished"); id. at 10
("emancipation by government action was economically unfeasible"); id. at 36 (abolitionists were
regarded as "fanatics"); id. at 352 (abolitionist leaders were "fringe figure[s]"); id. at 53 ("very
remote from the mainstream"); id. at 65 ("powerless and marginal handful"); id. at 69 ("without
influence or position," their endeavor "seemed absurd"); id. at 76 ("very small minority that was
despised, scorned, and actively opposed").
Of course, in some places some abolitionists were respected members of the community
even in the early years. See, e.g., Richard L. Aynes, The Antislavery andAbolitionist Background
of John A. Bingham, 37 CATH. U. L. REv. 881, 930 (1988) (In Cadiz, Ohio, "there were active
antislavery and abolitionist advocates who were not outcasts, but rather prominent members of
5
SAINT LOUIS UNIVERSITYPUBLIC LAWREVIEW
[Vol. 19:237
abolitionists witnessed the immediate, unconditional end of slavery, and the
quixotic, idealistic reformers of the twentieth century saw the end of de jure
segregation,18 so should success come to those who will battle now not simply
to ameliorate but to eliminate homelessness and poverty in the United States.
I respect and honor any action taken by anyone to alleviate the suffering of
a person who is homeless, hungry, or otherwise enduring the evil effects of
poverty. Immense energy is devoted, by volunteers and paid workers, to feed,
shelter, and clothe poor people, to provide health care and other essential
services to them, to protect them from the ravages of the criminal "justice"
system, and otherwise to succor them in various ways. All of this is admirable,
but it is not enough. Time, thought, and energy also must be dedicated to
reforming the economic, social, political, and cultural structures that allow
homelessness and poverty to exist. And lawyers have skills that are especially
useful for this work. 19
society."). In general, however, it was not until "after the outbreak of the Civil War [that]
abolitionists were transformed almost overnight from despised fanatics to influential and
respected spokesmen for the radical wing of the Republican party." JAMES M. MCPHERSON, THE
STRUGGLE FOR EQUALITY vii (1964).
See also 1 JAMES FORD RHODES, HISTORY OF THE UNITED STATES FROM THE
COMPROMISE OF 1850 TO THE FINAL RESTORATION OF HOME RULE AT THE SOUTH IN 1877, at
58 (1906) ("Good society turned the back upon the abolitionists... The churches were bitterly
opposed to the movement"); Charles Sumner's Eulogy for Thaddeus Stevens, delivered in the
U.S. Senate (December 18, 1868), in EDWARD BELCHER CALLENDER, THADDEUS STEVENS:
COMMONER 200, 201 (1882) (speaking of Josiah Quincy, Joshua Giddings, John Quincy Adams,
and Stevens, Sumner said: "All of these hated slavery, and labored for its overthrow. On this
account they were a mark for obloquy, and were generally in a minority.").
18. See, e.g., MILLER, supra note 16, at 29 ("the new abolitionists.. .were not
powerful.. ."). In 1834, a mob attacked the home of abolitionist Lewis Tappan and gutted
homes, churches, and businesses owned by blacks; in 1835, a "respectable" mob in Boston seized
and bound William Lloyd Garrison "and paraded him through the streets," and a mob in Utica,
New York, prevented the "disgrace" of having an abolitionist meeting in that city; in 1837,
abolitionist preacher-editor Elijah Lovejoy was killed by a mob in Alton, Illinois. Id. at 17, 7778. In 1836, "the support for abolition was miniscule; the abolitionist orators were being stoned
and mobbed even in the North; the poll results (if polls had existed in those days) would have
shown very meager support for trying to abolish slavery even in the District of Columbia, and
overwhelming detestation personally for those obnoxious abolitionists, who tried to force people
to think about subjects they did not want to think about. They didn't have any support." Id. at
120-21. In 1836, "[ajlmost everybody denounced the abolitionists; it was a politically safe
position." Id. at 143. "Certainly the abolitionists after 1831 would be subjected to the most
severe and insistent and constant derogation, of every kind, which to some extent continued into
history-writing in the twentieth century." Id. at 182.
With respect to the twentieth century civil rights workers, see, e.g., David Benjamin
Oppenheimer, Kennedy, King, Shuttlesworth and Walker: The Events Leading to the Introduction
of the Civil Rights Act of 1964,29 U.S.F. L. Rev. 645 (1995).
19. I do not at all mean to suggest that lawyers should control such work, or that their
contributions are the most important. I suggest only that lawyers have important roles to play in
such efforts. For discussions of ways in which lawyers may participate in such movements, see
6
2000]
THE LAIVYER AS ABOLITIONIST
This article presents some thoughts about that effort. Part I outlines ways
in which the battle against homelessness and poverty is like the battles against
slavery and segregation. Part II shows that solutions to the problems of
homelessness and poverty are not more radical than solutions to slavery and
segregation. Part III considers what special contributions lawyers might make
to the abolition of homelessness and poverty.
I.
THE BATTLE TO ABOLISH HOMELESSNESS AND POVERTY IS LIKE THE
BATTLES TO ABOLISH SLAVERY AND SEGREGATION
If I may do so without being disrespectful, I want to suggest that
homelessness and poverty are, for our era, the equivalent of slavery and
segregation: institutions that blight and stunt human life, causing misery,
illness, and death. Indeed, the battle against homelessness and poverty is in
several ways a continuation of the movements to abolish slavery and de jure
and de facto segregation.
First, homelessness and poverty disproportionately affect the same kinds of
people for whom the nineteenth and twentieth century abolitionists fought:
people of color, predominantly African-Americans and Latinos. 21 The
Lucie E. White, To Learn and Teach: Lessons From Driefontein on Lawyering and Power, 1988
Wis. L. REV. 699 (1988) [hereinafter To Learn and Teach]; Lucie E. White, Collaborative
La yering in the Field? On Mapping the Pathsfrom Rhetoric to Practice, 1 CLINICAL L. REV.
157 (1994) [hereinafter CollaborativeLawyering in the Field]; GERALD P. LOPEZ, REBELLIOUS
LAWYERING: ONE CHICANO'S VISION OF PROGRESSIVE LAW PRACTICE (1992); William H.
Simon, The Dark Secret of ProgressiveLawyering: A Comment on Poverty Law Scholarship in
the Post-Modern, Post-ReaganEra, 48 U. MIAMI L. REV. 1099 (1996) and material therein cited,
particularly at 1100 n.3.
20. See, e.g., JONATHAN KoZOL, RACHEL AND HER CHILDREN: HOMELESS FAMILIES IN
AMERICA (1988) (describing the lives of homeless families); ELLIOT LIEBOW, TELL THEM WHO
I AM: THE LIVES OF HOMELESS WOMEN (1993) (describing the lives of homeless women). For
the health implications, see J.R. Hibbs et al., Mortality in a Cohort of Homeless Adults in
Philadelphia,331 NEw. ENG. J. MED. 304, 306 (1994) (homeless people are sicker and have an
age-adjusted mortality rate almost four times higher than that of the general population); S.W.
Hwang et al., Causes of Death in Homeless Adults in Boston, 126 ANNALS INTERNAL MED. 625,
626 (1997) (average age at death among a cohort of homeless people in Boston was forty-seven
years); Jon V. Martel et. al., Hospitalization in an Urban Homeless Population:The Honolulu
Urban Homeless Project, 116 ANNALS INTERNAL MED. 299, 300 (1992) (homeless people utilize
more health care resources and require more acute care than do non-homeless people); Thomas P.
O'Toole et al., Utilization of Health Care Services Among Subgroups of Urban Homeless and
Housed Poor, 24 J. HEALTH POL'Y & L. 91 (1999) (summarizing these studies); COMMITTEE ON
HEALTH CARE FOR HOMELESS PEOPLE, INSTITUTE OF MEDICINE, HOMELESSNESS, HEALTH,
AND HUMAN NEEDS 141 (1988) (concluding that "the fundamental problem encountered by
homeless people-lack of a stable residence-has a direct and deleterious impact on health").
21. See INTERAGENCY COUNCIL ON THE HOMELESS, HOMELESSNESS PROGRAMS AND THE
PEOPLE THEY SERVE: Summary, at 15 (1999) (40% of homeless clients are black, 11%
"Hispanic," 8% Native American, 41% non-Hispanic whites). For variations in different studies,
with percent non-Hispanic white ranging from 85% to 17%, see Martha R. Burt, Demographics
7
SAINTLOUIS UNIVERSITY PUBLIC LA W REVIEW
[Vol. 19:237
problems that beset African-Americans were most obviously problems of
political freedom, but also were economic problems, and the economic
problems were not addressed effectively. The original abolitionists knew that
their battle was incomplete unless the freed slaves were accorded economic
redress-hence, the famous "40 acres and a mule," recognized as necessary but
never provided.22 The NAACP's original "emphasis... on civil and political
rights of Negroes to the exclusion of their economic problems was to set the
tone of the new organization for many years to come." 3 In 1966, Dr. King
admonished that "America's greatest problem and contradiction is that it
harbors 35 million poor at a time when its resources are so vast that the
existence of poverty is an anachronism. '24 Dr. King's movement for economic
justice, symbolized by the Poor People's March, was frustrated by his death
in
25
workers.
sanitation
black
striking
support
to
gone
had
he
where
Memphis,
That the battle against homelessness and poverty is part of the earlier
struggles was acknowledged by the National Council of Churches and other
religious leaders recently when they issued a "covenant to overcome poverty."
The covenant declares that "just as some of our religious forebears decided no
longer to accept slavery or segregation, we decide to
no longer accept poverty
26
and its disproportionate impact on people of color.,
and Geography: Estimating Needs, in PRACTICAL LESSONS: THE 1998 NATIONAL SYMPOSIUM
ON HOMELESSNESS RESEARCH 1-4, 1-5 (Linda B. Fusburg & Deborah L. Dennis eds., 1999)
(concluding that "African-Americans are significantly overrepresented among homeless people
compared to the general population").
See also Karl E. KIare, Toward New Strategies For Low-Wage Workers, 4 B.U. PUB.
INT. L.J. 245, 259 (1995) ("The demographic composition of low-wage work is neither gender,
nor race neutral. Women and minority group members of both sexes are considerably more likely
to be low-wage earners than [are] white males.").
22. See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 18631877, at 70-71 (1988) (In 1865, General Sherman issued Special Field Order No. 15, granting
black families 40 acres of land in parts of South Carolina, and offering to lend Army mules); id.
at 159-63 (lands restored to former owners); id. at 245-46 (legislative attempt to restore land to
blacks rejected); see also CLAUDE F. OUBRE, FORTY ACRES AND A MULE (1968); and EDWARD
L. JONES, FORTY ACRES AND A MULE: THE RAPE OF COLORED AMERICANS 28-53 (1994).
23. KELLOGG, supra note 11, at 15; but see id. at 35 ("Throughout its existence the
Association made repeated attempts.. .to secure admission of Negroes to unions on a basis of
equality with white workers, but without much success."); id. at 131 (members "were not so
interested in legal disabilities as in economic opportunities."); DAVID LEVERING LEWIS, W.E.B.
DUBOiS: BIOGRAPHY OF A RACE 393, 419, 423 (1993) (regarding Dr. DuBois' concern with
"economic aspects of race prejudice").
24. DAVID J. GARROW, BEARING THE CROSS: MARTIN LUTHER KING, JR., AND THE
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE 533 (1986).
25. Id. at 536 ("King's most pressing concern was how he and the movement could pursue
the economic justice issues which increasingly preoccupied him.").
26. Gustav Niebuhr, Christians Ask Renewed Attack on Poverty, N.Y. TIMES, Feb. 17,
2000, at A14; Call to Renewal, Covenant to Overcome Poverty, available at
http://www.calltorenewal.com/covenant.html (last visited May 31, 2000).
8
20001
THE LAIWYER AS ABOLITIONIST
A second similarity is that each struggle challenges widely-held views
about private property. Those who urged an end to holding human beings in
chattel slavery were confronted by the argument that the property rights of
slaveholders had to be respected. 27 Part of the opposition to the civil rights
movement was the argument that the owners of restaurants, hotels, department
stores, and housing had the right to serve,
house, accommodate, employ, and
28
do business with whomever they chose.
Efforts to ameliorate homelessness and poverty, too, often are met with
arguments based on a broad conception of property rights. The arguments are
that services for homeless people should not locate near homes and businesses
whose owners fear reduced property values and, more generally, that money
should not be redistributed from wealthier people to enable every human being
to live decently. To challenge homelessness and poverty means to challenge a
system of private property and distribution that makes many people, including
many of those who read these words, quite comfortable.
A third element common to the three campaigns is that each is
fundamentally a moral crusade. It may seem now that the immorality of
slavery and segregation are evident, but there were powerful arguments when
these issues were salient that slavery and de jure segregation were positive
goods.29 Even in this era of considerable indeterminacy about morality, a
strong case can be made for the immorality of withholding available
sustenance from at least children and other categories of people understood to
27. See MILLER, supra note 16, at 10 (quoting Abraham Lincoln in 1854, referring to "two
thousand million of dollars, invested in this species of property.. .this immense pecuniary
interest"); id. at 11 (pointing out the financial interest in slavery of the northern textile industry as
well as the south, and that slavery "had fundamental ties to other industries-cotton, rice, indigo,
and tobacco," among others).
28. See, e.g., MARK V. TUSHNET, MAKING CIVIL RIGHTS LAW: THURGOOD MARSHALL
AND THE SUPREME COURT, 1936-1961, at 310 (1994) (stating that when the NAACP Legal
Defense Fund "was first asked to defend the participants [in the 1960 sit-ins], [Thurgood]
Marshall 'stormed around the room proclaiming.. .[that] he was not going to represent.. .students
who violated the sacred property rights of white folks..."'). One may infer a touch of irony here.
29. See, e.g., Paul Finkelman, Thomas R.R. Cobb and the Law of Negro Slavery, 5 ROGER
WILLIA1MS U. L. REv. 75 (1999) (discussing Thomas R.R. Cobb: Georgia attorney, law professor,
scholar, and one-time reporter for the Georgia Supreme Court, who "insisted on the justice and
morality-the essential rightness-of slavery"); id. at 76 (Cobb's treatise, THE LAW OF NEGRO
SLAVERY IN THE UNITED STATES OF AviERICA, argued "that slavery was consistent with
American law, good public policy, Christian morality, and the natural order of things."); see also
RHODES, supra note 17, at 81 (describing the argument of Secretary of State John Calhoun to the
United States Senate "showing the wisdom and humanity of African slavery").
With respect to defenders of segregation, see, e.g., JOHN DrrTMER, LOCAL PEOPLE: THE
STRUGGLE FOR CIVIL RIGHTS IN MISSIssIPPI 66-67 (1994) (discussing the "crusading"
newspaper editor, Hodding Carter II, winner of a Pulitzer Prize in 1946 for "distinguished
editorial writing against racial and religious intolerance," who "publicly opposed the
desegregation of Mississippi schools"). He was, Dittmer reports, a "fair play segregationist." Id.
9
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SAINTLOUIS UNIVERSITYPUBLIC LAW REVIEW
[Vol. 19:237
be unable to care for themselves. 3 There is some consensus that it is morally
unacceptable that millions of men, women, and children in the United States
go to sleep hungry at night, and have no real bed on which to sleep; that people
who need treatment for mental or physical health problems or substance abuse,
or relief from domestic violence, or subsidized housing-all are met not by the
needed services but by waiting lists; that physical and mental illnesses that we
know how to treat are allowed to ravage and kill people because the people
cannot afford the treatments that are available; that we provide to the old, the
blind, and the disabled, and to the needy parents of dependent children,
stipends that are far below what the federal government has identified as a
"poverty threshold"--stipends egregiously inadequate to enable the families to
afford decent housing; that, in many parts of the United States, two people
working full time at minimum wage jobs do not earn enough to afford what
HUD says is a fair market rent for a two bedroom unit; that people
who work
31
full-time do not earn enough to take their families out of poverty.
Today, we all condemn slavery and de jure segregation, and we are sure
that we would have been among those fighting those obvious injustices. But in
the nineteenth century, many lawyers and others defended slavery, 32 or urged
that gradualism mark its elimination, and the twentieth century laws against
segregation had many defenders. 33 I often hear students and young colleagues
express nostalgia for the civil rights struggle of the early 1960's, regretting that
they are not able to make their mark in the crusade for justice as the 1960's
30. See Martha Minow, InterpretingRights: An Essayfor Robert Cover, 96 YALE L. J. 1860
(1987) (quoting Gloria Anzaldua, La Prieta, in THIS BRIDGE CALLED MY BACK 198, 208 (C.
Moraga & G. Anzaldua eds., 1981) ("I can't reconcile the sight of a battered child with the belief
that we choose what happens to us, that we create our own world.")).
31. See National Low Income Housing Coalition/Low Income Housing Information Service
(NLIHC/LIHIS), Out of Reach: The Growing Gap Between Housing Costs and Income of Poor
People in the United States, at http:lwww.nlihc.orgloor2OOO/introduction.htm (last visited Feb.
22, 2001); LAWRENCE MISHEL ET AL., THE STATE OF WORKING AMERICA 1998-99, at 309
(1999) (hourly wage required to bring a family of four to the 1997 poverty line was $7.89 per
hour).
32. See Finkleman, supra note 29, at 93 (Thomas R.R. Cobb was in what was regarded as
good company: "Harvard Law School [was not] a hot-bed of antislavery. On the contrary, the
faculty supported the enforcement of the Fugitive Slave Law of 1850, as did many of the
students."); Paul Finkelman, Legal Ethics and Fugitive Slaves: The Anthony Burns Case, Judge
Loring, and AbolitionistAttorneys, 17 CARDOZO L. REV. 1793, 1838-1840 (1996) (Harvard "law
school professors ... cheered the passage of the Fugitive Slave Law of 1850 and defended it in
their lectures.").
33. See, e.g., Alfred Avins, Freedom of Choice in PersonalService Occupations: Thirteenth
Amendment Limitations on Antidiscrimination Legislation, 49 CORNELL L. Q. 228 (1964)
(arguing that the Civil Rights Act of 1964 violates the Thirteenth Amendment); Robert J.
Kaczorowski, Emancipation and the New Conception of Freedom: Comment on Nieman:
Reflections on "FromSlaves to Citizens," 17 CARDOZO L. REV. 2141, 2144 (1996) (discussing
and citing some of this scholarship).
10
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THE LAWYER AS ABOLITIONIST
civil rights workers did. But what these students and colleagues need to see is
that the current challenge is as urgent and life-defining as the 1960's civil
rights battle was, and that the glory of those crusaders can be earned now by
people who will make the same commitment to fighting the battle as it presents
itself today-to conquer homelessness and poverty.34
II. SOLUTIONS TO THE PROBLEMS OF HOMELESSNESS AND POVERTY ARE
NOT MORE RADICAL THAN WERE SOLUTIONS TO THE PROBLEMS OF SLAVERY
AND SEGREGATION
What must be done to end homelessness and poverty is not more dramatic
or radical than what was required to end slavery and de jure segregation.
To end slavery required a civil war, a series of amendments to the federal
constitution,35 a succession of civil rights acts, 36 and a general reconstruction
of the governance of the United States.37 To end de jure segregation required
38
extraordinary campaigns of direct action and great personal courage,
substantive new local, state, and federal legislation,3 9 reinterpretation of the
1866 Civil Rights Act, 40 and countless law suits. The battle against de facto
segregation still has not been concluded.
Ending homelessness and poverty could be accomplished much more
easily.
Homelessness and poverty do not need to exist; we understand their nature
and have the tools to prevent them. Homelessness, after all, was not a major
34. See MILLER, supra note 16, at 513 ("For slavery to be ended there had to be some
individual human beings who did what they did.. .there were some people-a very small number,
on the margin of society, condemned and harassed-who nevertheless made it the first order of
their life's business to oppose American slavery, and to insist that it was a grotesque evil that
should be eliminated, and... in a little over thirty years, it was.").
35. U.S. CONST. amend. XIM; U.S. CONST. amend. XIV; and U.S. CONST. amend. XV.
36. Civil Rights Act of 1866, 42 U.S.C. §1981 et seq.; Civil Rights Act of 1870, 42 U.S.C.
§1981; Civil Rights Act of 1875, 42 U.S.C. §1984.
37. See, e.g., FONER, supra note 22; W.E.B. DuBois, BLACK RECONSTRUCTION IN
AMERICA (1935).
38. See, e.g., Egerton, supra note 16; JOANN GIBSON ROBINSON, THE MONTGOMERY BUS
BOYCOTT AND THE WOMEN WHO STARTED IT (1987); CLAYBORNE CARSON, IN STRUGGLE:
SNCC AND THE BLACK AWAKENING OF THE 1960's (1981); TAYLOR BRANCH, PARTING THE
WATERS: AMERICA IN THE KING YEARS 1954-63 (1988); TAYLOR BRANCH, PILLAR OF FIRE:
AMERICA IN THE KING YEARS 1963-65 (1998); WILLIAM BRADFORD HUIE, THREE LIvES FOR
MISSISSIPPI (1965); JOHN LEWIS WITH MICHAEL D'ORSO, WALKING WITH THE WIND: A
MEMOIR OF THE MOVEMENT (1998); ERIC R. BURNER, AND GENTLY HE SHALL LEAD THEM:
ROBERT PARRIS MOsES AND CIVIL RIGHTS IN MISSISSIPPI (1994).
39. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964); Civil Rights Act
of 1968, Pub. L. No. 90-284, 82 Stat. 73 (1968); Voting Rights Act of 1965, Pub. L. No. 89-110,
79 Stat. 437 (1965).
40. See Jones v. Mayer, 392 U.S. 409 (1968); see also Runyon v. McCrary, 427 U.S. 160
(1976).
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problem in the United States until about 1980. 4 1 As we were able to assure
housing to most people before 1980, we could do so now.
Similarly, poverty can be substantially reduced, if not eliminated, and its
42
effects can be greatly alleviated, by changes in laws and social policies.
There is no lack of knowledge of how to do this-it has been done in other
countries. 43 The need is to develop the political will to make this happen. This
requires changing social understanding-making homelessness and poverty
unacceptable, as slavery and de jure segregation were made unacceptable. It
requires attention to the issues of race and gender that distort perceptions of
homelessness and poverty. 44 There must be a "paradigm shift,"45 an "abnormal
discourse that puts homelessness and poverty beyond the pale."
We know that the two keys to ending homelessness and poverty are
housing and income. "Every study that has looked has found that affordable,
usually subsidized housing, prevents homelessness more effectively than
anything else. This is true for all groups of poor people, including those with
41. See MARTHA R. BURT, OVER THE EDGE: THE GROWTH OF HOMELESSNESS IN THE
1980's, at viii (1992); Lucie E. White, Representing "The Real Deal," 45 U. MIAMI L. REV. 271,
271-72 (1990).
42. But see White, supra note 41, at 279 n.25. The Biblical statement is not about the future;
it is: "ye have the poor always with you.. ." Matthew 26:11 (emphasis added).
43. See Robert M. Solow, Welfare: The Cheapest Country, N.Y. REV. BOOKS, Mar. 23,
2000, at 20 (reviewing ROBERT E. GOODIN ET AL., THE REAL WORLDS OF CAPITALISM (1999));
Klare, supra note 21, at 259 ("When other countries have made significant progress in
ameliorating poverty, reducing wage inequality, and lifting the wage floor, low-wage
employment has been perpetuated in the United States by our laws and social policies.").
44. See Calmore, supra note 15, at 1955 ("When race and space are synergistically involved
with poverty, race-neutral or color-blind poverty practice is naively wrong-headed.").
45. See White, To Learn and Teach, supra note 19, at 750 n.185 (citing THOMAS S. KUHN,
THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (1962) (regarding paradigm shifts); and RICHARD
RORTY, PHILOSOPHY AND THE MIRROR OF NATURE (1979) (regarding "abnormal discourse")).
See also id. at 755 n.199 (NAACP/LDF campaign against school segregation required
"expanding the legal norm of equality. ..
").
Michael Harrington's 1962 book, THE OTHER AMERICA: POVERTY IN THE UNITED
STATES, often is credited with "rekindl[ing], spark[ing]" this kind of new debate. See John
Charles Boger, Race and the American City: The Kerner Commission in Retrospect-An
Introduction,71 N.C. L. REv. 1289 (1993); MICHAEL B. KATZ, THE UNDESERVING POOR: FROM
THE WAR ON POVERTY TO THE WAR ON WELFARE 20 (1989) (saying that Harrington's was "a
pivotal book" designed "to arouse the conscience of the nation"); Victor Navasky, The Left Wing
of the Possible, N.Y. TIMES BOOK REV., May 28, 2000, at 9 (reviewing MAURICE ISSERMAN,
THE OTHER AMERICAN: THE LIFE OF MICHAEL HARRINGTON (2000), and stating that
"Harrington's book supplied the organizing concept, the target, the word, and thus was the idea
for the War on Poverty born. It can indeed be argued that what Betty Friedan's 'Feminist
Mystique' did for feminism, Rachel Carson's 'Silent Spring' for the environment, and Ralph
Nader's 'Unsafe at any Speed' for the public interest movement, The Other America did for the
poor.").
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THE LAWYER AS ABOLITIONIST
persistent and severe mental illness and/or substance abuse. ' ' 46 We must
establish that governments have an obligation to provide housing or subsidies
for housing for very low income people. Just as we need universal health
insurance, we need universal housing assurance. In the short term, we must
prevent demolition without adequate replacement housing; restore the one-forone replacement requirement; 47 and lobby for increased federal, state, and local
subsidies for very low
income people, subsidies to match those provided for
48
people who are rich.
With respect to income, there are at least "five branches of law [that]
determine the social minimum wage and benefits package: employer mandates,
government contracting and purchasing standards, government benefits
programs, immigration and international trade rules," and "the background
regime of legal entitlements and prohibitions that structure power relations
between employers and employees. . ...49 Workers' pay should be keyed to
living costs, so that one who works full-time earns enough to support a family
decently. We need to increase the minimum wage 5° and mandated benefits.
The Earned Income Tax Credit should be increased. Working conditions must
be improved. 51 Government agencies all should be required to pay a housing
wage-that is, a wage that enables a full-time worker to afford appropriate
housing, with not more than 30% of her or his income.52 Income maintenance
programs must be improved so that they provide more money and reach more
46. Marybeth Shinn & Jim Baumohl, U.S. Department of Housing and Urban Development
& U.S. Department of Health and Human Services, Rethinking the Prevention of Homelessness,
in PRAcTIcAL LESSONS, supra note 21, at 13-1. See also White, CollaborativeLawyering in the
Field, supra note 19, at 280-91. Homelessness is caused by poverty, not by "substance abuse" or
mental illness. Many people who abuse alcohol or drugs or suffer from mental illness
nonetheless are perfectly well-housed.
47. See Florence Wagman Roisman, Intentional Racial Discriminationand Segregation by
the FederalGovernment as a PrincipalCause of ConcentratedPoverty: A Response to Schill and
Wachter, 143 U. PENN. L. REV. 1351, 1369-72 (1995) (discussing the "one for one replacement"
requirement); Michael S. Fitzpatrick, Note: A Disaster in Every Generation: An Analysis of
HOPEVI: HUD'sNewest Big Budget Development Plan,7 GEO. J. POVERTY LAW & POL'Y 421,
444 (2000) (the requirement was repealed in 1997).
48. The largest federal housing subsidy by far is the homeowner deduction for mortgage
interest and real estate taxes. See John Charles Boger, Toward Ending Residential Segregation:A
FairShare Proposalfor the Next Reconstruction, 71 N.C. L. REV. 1573, 1608 (1993).
49. Klare, supra note 21, at 260 n.53 (identifying these five branches of law).
50. See MISHEL ET AL., supra note 31, at 189-95 (documenting the fall of the real value of
the minimum wage since the 1960's and the impact on non-teenage, full-time workers, of whom
most are women and a disproportionate percentage minorities. The current minimum wage is less
than the federal poverty level).
51. For a powerful, personal indictment of working conditions, see Lucie E.White, No Exit:
Rethinking "Welfare Dependency" from a Different Ground, 81 GEO. L.J. 1961, 1979-85 (1993).
52. See Call to Renewal, supra note 26 (a summary of those goals).
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eligible people. 53 Increasing income is important not only so that homeless
people themselves have more income, but also so that low-income families
have enough to help to care for others who are destitute. 54
fI.
WHAT THEN SHOULD WE LAWYERS Do?
I do not think one ever knows with certainty what act will produce what
result: one cannot predict with confidence which actions will make the greatest
contribution to ending homelessness and poverty. Lawyers play many
different roles, personally and professionally. We can function as counselors
or as advocates, in judicial, administrative, legislative, or other forums, at the
local, state, and federal levels. In some cases, effective attention to the discrete
problems of an individual may lead to extensive societal consequences. 55 In
other situations, working with or supporting a charismatic leader may have
53. Federal benefit programs do not provide enough in stipends to enable people to afford
what HUD says are fair market rents.
See NLIHC/LIHIS, supra note 31, at
http:llwww.nlihc.orgloor2000/introduction.htm. A recent study reports that only 37% of the
people who use homeless assistance programs receive food stamps; only 52% of homeless
households with children receive Aid to Families with Dependant Children (AFDC); and only 6%
of homeless veterans receive veteran-related disability payments and 2% receive veteran-related
pensions. INTERAGENCY COUNCIL ON THE HOMELESS, HOMELESSNESS PROGRAMS AND THE
PEOPLE THEY SERVE: FINDINGS OF THE NATIONAL SURVEY OF HOMELESS ASSISTANCE
PROVIDERS AND CLIENTS, Summary, at xix-xx (1999). See also Shinn & Baumohl, supra note
46, at 13-1 ("Income supports are also related to housing stability, probably because the
affordability of housing is a joint function of income and housing costs. Advocacy for
entitlement income may be a key ingredient in case management."). The replacement of AFDC
by TANF (Temporary Assistance to Needy Families) with its time limit on benefits may well
increase dramatically the number of homeless people. See Martin Guggenheim, Somebody's
Children:Sustaining the Family'sPlace in Child Welfare Policy, 113 HARV. L. REV. 1716, 1740
(2000) (book review) (reporting that in one Wisconsin county, the number of homeless children
increased by 50% after the implementation of welfare reform).
54. See PETER H. ROSSI, DOWN AND OUT IN AMERICA: THE ORIGINS OF HOMELESSNESS
188-90 (1989) (discussing the extent and burden of poor families' caring for others).
55. I think here of the defenses of individual landlord-tenant cases, which led to the
widespread adoption of the doctrines of implied warranty of habitability and retaliatory eviction.
See, e.g., Javins v. First Nat'l Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), cert. denied, 400
U.S. 925 (1970); Edwards v. Habib, 397 F.2d 687 (D.C. Cir. 1968), cert. denied, 393 U.S. 1016
(1969); Brown v. Southall Realty Co., 237 A.2d 834 (D.C. 1968). Javins was part of a buildingwide rent strike and tenant organization, but Brown and Edwards were defenses of discrete
landlord-tenant cases, as were other seminal cases. See also, Marini v. Ireland, 265 A.2d 526
(N.J. 1970); Green v. Superior Court, 517 P.2d 1168 (Cal. 1974). See also Williams v. WalkerThomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965) (individual consumer case); see generally,
JOHN A. DOOLEY & ALAN W. HOUSEMAN, LEGAL SERVICES HISTORY (1984); Alan W.
Houseman, Political Lessons, Legal Services for the Poor-A Commentary, 83 GEO. L.J. 1669
(1995); EARL JOHNSON, JR., JUSTICE AND REFORM: THE FORMATIVE YEARS OF THE OEO
LEGAL SERVICES PROGRAM (1974).
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THE LAWYER AS ABOLITIONIST
immense impact. 56 In yet other circumstances, lawyers may have the greatest
impact by supporting groups of people who take direct action of various
forms. 57
Part of what determines what we will do is each individual's particular
combination of temperament, inclination, and skill. Part is the mystery of
chance or providence: being in a particular place at a particular time and
having the courage to say "yes" to the unusual. 58 This requires creativity,
60
flexibility, 59 perseverance, and communication with others.
We must be
61
arise.
ready to support people and movements when they
56. The legal assistance provided to Dr. Martin Luther King, Jr. is an example of this kind of
legal work, as is the legal support for Cesar Chavez and Mitch Snyder. See, e.g., Oppenheimer,
supra note 18; Gary Bellow, Steady Work: A Practitioner'sReflections on PoliticalLawyering,
31 HARV. C.R.-C.L. L. REV. 297, 309 n.3 (1996) (describing legal work for Cesar Chavez);
VICTORIA RADER, SIGNAL THROUGH THE FLAMES: MITCH SNYDER AND AMERICA'S HOMELESS
235-36 (1986) (regarding the events addressed in Robbins v. Reagan, 780 F.2d 37 (D.C. Cir.
1985)). Other litigation supporting Synder's activities includes: Community for Creative NonViolence v. Reid, 490 U.S. 730 (1989) (copyright issue regarding statue of homeless family);
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984) (sleeping in Lafayette Park
to protest homelessness); Community for Creative Non-Violence v. Kerrigan, 865 F.2d 382 (D.C.
Cir. 1989) (vigil on the grounds of the United States Capitol); Community for Creative NonViolence v. Pierce, 814 F.2d 663 (D.C. Cir. 1987) (challenge to HUD report on homelessness);
Williams v. Barry, 708 F.2d 789 (D.C. Cir. 1983) (closing shelters for homeless men); Caton v.
Barry, 500 F. Supp. 45 (D.D.C. 1980) (shelters for families); Atchison v. District of Columbia,
585 A.2d 150 (D.C. 1991) (provision of overnight shelter).
57. The legal support for the Montgomery Bus Boycott is a good illustration. See BRANCH,
PARTING THE WATERS, supra note 38, at 158-59 (1988) (describing the lawyers' initial efforts);
TUSHNET, supranote 28, at 302-06 (describing the role of the NAACP/LDF). See also Francesca
Polletta, The StructuralContext of Novel Rights Claims:Southern Civil Rights Organizing, 19611966, 34 LAw & SOCIETY REv. 367 (2000) (discussing the relationship between political
organizing and "rights claims").
58. See MARK V. TUSHET, THE NAACP's LEGAL STRATEGY AGAINST SEGREGATED
EDUCATION, 1925-1950, at xii (1987) ("Sensitivity to the actual events requires attention to the
roles of chance - unexpected events or decisions by individuals outside of the movement - and
choice - decisions by insiders to pursue one path rather than another.
) [hereinafter NAACP'S
LEGAL STRATEGY]. My own experience has been that when a moment of decision presents itself,
taking the risk is worthwhile.
59. See TUSHNET, NAACP'S LEGAL STRATEGY, supra note 58, at 144-45 (emphasizing that
"the NAACP's efforts were not systematic or strategic. Instead, the organization attacked...
targets of opportunity.").
60. See AILEEN S. KRADiTOR, MEANS AND ENDS INAMERICAN ABOLITIONISM: GARRISON
AND HIS CRITICS ON STRATEGY AND TACTICS, 1834-1850, at 236 (1967) ("The frequent
meetings and intragroup journals of any movement for change serve an indispensable function
even when they repeatedly pass the same resolutions and proclaim familiar truths to the already
committed. These activities help to assure members that they are part of a group with a historic
mission, are not fighting alone, and have somewhere to go and others to turn to when public
opprobrium weakens their dedication."); TUSHNET, supra note 28, at 124-25 (importance of
NAACP meetings of lawyers to discuss segregation in education); Bellow, supra note 56, at 308
(deploring "the lack of funds for meetings, conferences, and other forms of networking that
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[Vol. 19:237
While we cannot know with certainty what will have the greatest impact,
we ought to be thinking about what will do so, and we ought to choose our
activities, taking into account temperament and circumstance, based on our
best judgments about what will do the most not only to treat symptoms of
inequality and deprivation but to eliminate inequality and deprivation. We
must be prepared to make hard choices. We have limited resources, and
cannot do everything; we must be strategic, and focus our attention on
advocacy that is likely to create the greatest improvement. 62 Whatever we may
choose to do, in all that we do we must keep in mind and work toward the
ultimate objective of radically changing a system that tolerates (or requires) the
existence of extreme deprivation and inequality with respect to the essentials of
human existence.
We do well to ponder the relative values of reform and radicalism.
Reformist measures may bring comfort to particular individuals, both needy
beneficiaries and people who want to do good without undermining a system
formerly enabled political lawyers to recruit and teach those who might follow."); Michael H.
Shuman, Why Do ProgressiveFoundationsGive Too Little to Too Many?, 266 THE NATION, Jan.
12, 1998, at 11-12 (describing the effectiveness of conservative foundations and the relative
ineffectiveness of progressive foundations); Klare, supra note 21, at 267 ("revitalizing labor/poor
peoples' alliances today requires hard work: establishing connections, fostering dialogue,
promoting education and mutual concern, and learning creative ways to engage in joint action
around common issues."); White, To Learn and Teach, supra note 19, at 725 n.l10 ("the
technique of 'brainstorming,' or generating ideas through a process of group discussion, is an
essential step in developing innovative sources of leverage and solutions to problems.").
A hopeful sign was the establishment of the Task Force on Legal Strategies for LowWage Workers. See Klare, supra note 22, at 248-9. As Professor Klare indicates, "low-wage
workers" is a category that includes public assistance recipients, immigrants, and people who are
elderly or disabled. See id. at 250; and, as to public assistance recipients, KATHRYN EDIN &
LAURA LEIN, MAKING ENDS MEET: How SINGLE MOTHERS SURVIVE WELFARE AND LowWAGE WORK 220 (1997) ("Welfare- and work-reliant mothers should be seen as two overlapping
populations on a single continuum."). Similarly, people who are homeless-often dehumanized
as "the homeless"-are workers. A recent study shows that 44% of homeless clients worked for
pay. See HOMELESSNESS PROGRAMS AND THE PEOPLE THEY SERVE, supra note 21, at 52-54.
61. See, e.g., New Party, The New Party Living Wage C'ampaign, at
http://www.newparty.org/livwag/livwag.html; National Jobs for All Coalition, Living Wage
Campaign, at http://www.njfac.org/resources/html; Justice for Janitors, Janitorsare Fightingfor
the American Dream, at http://seiu.org/j4j/j4j2000.cfm. (last visited on Feb. 22, 2001).
62. See, e.g., TusHNT, NAACP'S LEGAL STRATEGY, supra note 58 (describing the
NAACP's campaign against segregated public schools, when Thurgood Marshall, Spottswood
Robinson, Louis Redding, and other lawyers responded to requests for assistance with other kinds
of lawsuits by insisting that they would support only comprehensive desegregation cases). See
also, ROBERT M. COVER, JUSTICE ACCUSED: ANTISLAVERY AND THE JUDICIAL PROCESS 56
(1975) (explaining that "advocacy in these [anti-slavery] cases was highly ideological. It was
undertaken for purposes of the movement - to dramatize the inconsistency of slavery with
underlying principles of a democratic state").
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THE LAWYER AS ABOLITIONIST
that has treated them well. 63 There always is a danger "that ad hoc alliances for
partial ends may under certain circumstances strengthen the hegemony of the
of
enemy by legitimizing the institutions, and the ideological justifications
64
those institutions, by means of which the enemy exercises his hegemony."
In deciding how to abolish homelessness and poverty, we can take lessons
from the abolitionists, original and new. We can be educated by their
techniques, energized by their moral fervor, and encouraged by their successes.
For the twentieth century abolitionists, as for those of the nineteenth century,
"the aim... was to fight the 'new slavery' by means which were then
considered radical-non-violent
agitation, well-publicized protest, propaganda,
65
and legal action.
Now, as in those eras, public education is a critical element of the
campaign. 66 Lawyers are trained as wordsmiths: our skills at description and
persuasion are well-employed with media
and the public as well as with
67
legislators.
and
administrators,
judges,
63. See Zinn, Abolitionists,Freedom-Riders, and the Tactics ofAgitation, supra note 11, at
424 ("it is easy and comfortable - especially for intellectuals who do not share the piercing
problems of the hungry or helplessly diseased of the world (who, in other words, face no extreme
problems) - to presume always that the 'moderate' solution is the best.); Rev. Dr. Martin Luther
King, Jr., Letter from Birmingham City Jail (1963), reprinted in A TESTAMENT OF HOPE: THE
ESSENTIAL ,VRrrINGS OF MARTIN LUTHER KING, JR., at 289 (James Melvin Washington ed.,
1986).
64. KRADITOR, supra note 60, at 165.
65. KELLOGG, supra note 11, at x, 42 (mass meetings, investigations, publicity, and legal
aid). A petition drive, like that undertaken to end slavery and the slave trade in the District of
Columbia, might be particularly effective in this internet age. Petitions might address such
subjects as increases in housing subsidies, the minimum wage, and the Earned Income Tax
Credit.
66. See MILLER, supra note 16, at 304 (The mantra of the nineteenth century abolitionists
was "Explain, discuss, argue, persuade."). See also Lucy A. Williams, Race, Rat Bites and Unfit
Mothers: How Media Discourse Informs Welfare Legislation Debate, 22 FORDHAM URB. L.J.
1159 (1995); White, To Learn and Teach, supra note 19, at 763 (Oppressed people "learn how to
design context-specific acts of public resistance, which work, not by overpowering the oppressor,
but by revealing the wrongness and vulnerability of its positions to itself and to a wider public.");
MILLER, supra note 16, at 507-08 ("if there is a constant drumbeat of moral argument, Calhoun
said, eventually it begins to have its effect, even upon those who initially reject the argument ....
A group of people, a culture, certainly has many ideas on the same topic, diverse and
contradictory, simultaneously present. Argument and persuasion, and the changing of the cultural
atmosphere, can elevate one idea and subordinate another.").
67. See Bellow, supra note 56, at 297 (describing efforts "to educate the appellate judges of
the D.C. Circuit about the widespread lawlessness that pervaded the administration of criminal
justice"); Martha Minow, Political Lawyering: An Introduction, 31 HARV. C.R.-C.L. L.REV.
287, 294 (1996) ("Because lawyers work with words, they can tell stories not only to courts and
legislatures, but also to broader publics.... Preserving and strengthening settings for face-to-face
telling of stories, demanding justifications, and negotiating constructively.., remain crucial
lawyering tasks"); Gary Bellow & Martha Minow, Afterword: Constanciesand Commonalities in
17
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Lawyers also, of course, can do conventional lawyer tasks, creating and
creatively applying legislation, 6 8 the domestic use of international legal
standards, 69 and reinterpretation of federal and state constitutions.
A variety of legislative actions would contribute to improving the housing
and income situations. Housing subsidies should be increased and focused on
those most in need; housing aid should be an entitlement for the poor as well as
the rich; the minimum wage and Earned Income Tax Credit should be
increased so that they bring workers above poverty - above real poverty,
which is about twice the current "poverty level. 70
This Volume's Law Stories, IN LAW STORIES: LAW, MEANING AND VIOLENCE 219, 224-25
(Gary
Bellow & Martha Minow, eds. 1996) ("Lawyers' tools are words"; "law talk works to define both
speaker and audience, altering and creating identities and self-understanding").
One of the most effective weapons against human slavery was Theodore Weld's book,
AMERICAN SLAVERY As IT Is, a compilation of descriptions of slavery. Weld's book had
immense impact on people generally, and a particularly fruitful impact on what Lincoln is said to
have called the book that started the Civil War. "While she was writing [Uncle Tom's Cabin],
[Harriet Beecher Stowe] kept Weld's AMERICAN SLAVERY As IT Is, with her, carrying it in her
purse and even sleeping with it under her pillow." MILLER, supra note 16, at 334. Movies may
be at least as effective as books. D.W. Griffith's film, The Birth of a Nation, had a great impact,
leading the NAACP to attempt to make a counter-movie. See KELLOGG, supra note 11, at 142145.
68. A Legal Services Homelessness Task Force was created by a group of legal services
back-up centers in the early 1980's. It produced a Litigation Memorandum which ultimately was
published. See HOMELESSNESS IN AMERICA: A LITIGATION MEMORANDUM FOR LEGAL
SERVICES ADVOCATES (July 1986) (National Clearinghouse for Legal Services, CN 49,999).
This built on the National Housing Law Project's Annotated Case Docket re: Homelessness
Litigation (Sept. 1989) (CN 45,055). See also National Housing Law Project, Annotated Docket
of Selected Cases and Other Material Involving Homelessness (Draft No. 7, Sept. 1992). The
Legal Services Homelessness Task Force also was instrumental in developing the legislation that
became the Homeless Persons Survival Act of 1986. See 132 CoNG. REC. E2 3 63 -0 1 ,9 9 'h
Cong.,2d Sess. (June 26, 1986) (introduction of the legislation by Hon. Mickey Leland on behalf
of himself and more than 30 co-sponsors); 133 CONG. REC. E82-03, 100'h Cong., 182 Sess. (June
7, 1987) (Mr. Leland's introduction of the Homeless Person's Survival Act of 1987, noting that
five portions of the 1986 act had been enacted). The National Coalition for the Homeless was a
participant in this effort. But see, White, supranote 41, at 294 (referring to "its" - the Coalition's
- Homeless Person's Survival Act). See also Florence Wagman Roisman, Establishinga Right to
Housing: A General Guide, 25 CLEARINGHOUSE REV. 203 (1991) (discussing statutory claims);
FLORENCE WAGMAN ROISMAN, ESTABLISHING A RIGHT TO HOUSING: AN ADVOCATE'S GUIDE
25 (1991) (same); and supra notes 55-57 and accompanying text.
69. See Maria Foscarinis, Homelessness and Human Rights: Towards an Integrated
Strategy, 20 ST. LOUIS PUB. L. REV. 327 (2000); Martha F. Davis, InternationalHuman Rights
and United States Law: Predictions of a Courtwatcher, ALB. L. REV. 417 (2000); Bert B.
Lockwood, Jr., The United Nations Charterand United States Civil RightsLitigation: 1946-1955,
69 IOWA L. REV. 901 (1984); Marc-Olivier Herman, Fighting Homelessness: Can International
Human Rights Law Make a Difference? 2 GEO. J. ON POVERTY L. & POL'Y 59 (1994).
70. With regard to housing, see Chester Hartman, The Case for a Right to Housing, 9
HOUSING POL'Y DEBATE 223 (1998); Curtis Berger, Beyond Homelessness: An Entitlement to
Housing, 45 U. MIAMI L. REV. 315, 326 (1996) (urging a four-pronged statutory strategy,
18
20001
THE LA WYER AS ABOLITIONIST
With respect to international standards, the critical documents are the
Universal Declaration of Human Rights, which provides that "everyone has the
right to a standard of living adequate for the health and well-being of himself
and of his family, including food, clothing, housing and medical care and
necessary social services,"7 1 and the International Covenant on Economic,
Social and Cultural Rights (ICESCR), which recognizes "the right of everyone
to an adequate standard of living... , including adequate food, clothing and
72
housing, and to the continuous improvement of living conditions., Abolition
of homelessness and poverty would be advanced by United States ratification
of the ICESCR and by application of the international law norms in domestic
litigation.73
74
We should not despair of reinterpreting the federal constitution. We have
absorbed some damaging legal norms: that poverty is not a suspect
classification; 75 that housing is not a fundamental right; that the federal
77
constitution does not impose affirmative duties. But we must challenge those
make fundamental, systemic, radical changes in
legal principles; we must 78
constitutional interpretation.
involving preserving and increasing the supply of subsidized units, strengthening effective
demand, and attending to the specialized needs of particular groups); NATIONAL HOUSING LAW
PROJECT, HOUSING FOR ALL: KEEPING THE PROMISE (1995). With regard to income, see supra
notes 49 to 54 and accompanying text.
71. Universal Declaration of Human Rights, G.A. Res. 71, U.N. GABOR, 3d Sess., U.N.
Doc. A/810 (1948), art. 25.
72. International Covenant on Economic, Social and Cultural Rights, U.N. G.A. Res.
2200(A) (1966), Jan. 3, 1976, 993 U.N.T.S. 3. Art. 11(1) also provides that "The States Parties
will take appropriate steps to ensure the realization of this right .... The United States has
signed but not ratified this Covenant. See also UNITED NATIONS, INTERNATIONAL HUMAN
COMPILATION OF GENERAL COMMENTS AND GENERAL
RIGHTS INSTRUMENTS:
RECOMMENDATIONS ADOPTED BY HUMAN RIGHTS TREATY BODIES 57 (1997) (calling on
member states "to realize progressively the full range of economic, social and cultural rights). I
would not have known of the reference to the General Comments but for the citation in Helen
Hershkoff, PositiveRights and State Constitutions:The Limits ofFederalRationalityReview, 112
HARV. L. REV. 1131, 1142 n.55 (1999).
73. See Foscarinis, supra note 69; Barbara Stark, Economic Rights in the United States and
International Human Rights Law: Toward An "Entirely New Strategy," 44 HASTINGS L.J.
(1992); Herman, supra note 69.
74. For a contrary view, see Peter Edelman, Responding to the Wake-Up Call: A New
Agenda for Poverty Lawyers, 24 N.Y.U. REV. L. & SOC. CHANGE 547, 549 (1998) ("Going to
court and invoking the Constitution to bring about basic change for the poor is a nonstarter.").
Professor Edelman does offer a wealth of suggestions for legislative activity.
75. See San Antonio Pub. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
76. See Lindsey v. Normet, 405 U.S. 56 (1972); but see Roisman, 25 CLEARINGHOUSE
REV., supra note 68, at 209 (arguing that the case does not so hold).
77. See DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189 (1989).
78. See Mark A. Graber, The Clintonification of American Law: Abortion, Welfare, and
Liberal Constitutional Theory, 58 OHIO ST. L.J. 731, 801 et seq. (1997) (urging refocus on
19
SAINT LOUIS UNIVERSITY PUBLIC LAWREVIEW
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These ideas are not more fixed than were the "separate but equal" and
"state action" doctrines that had to be abandoned with slavery.79 There is a
rich legal literature pointing to theories of constitutional analysis that would
support the recognition of affirmnative obligations, as a matter of either
minimum rights or equal rights.80 Professor Black argues "that there is, 'and of
Right ought to be,' a constitutional justice of livelihood."81 He advocates "the
derivation of a constitutional right to a decent material basis for life []from the
Declaration [of Independence],
from the preamble, and from certain parts of
82
proper."
the Constitution
rooting welfare rights in the Constitution); Edward A. Hartnett, Review Essay: The Akhil Reed
Amar Bill of Rights, 16 CONSTITUTIONAL COMMENTARY 373, 400-01 (1999) (reviewing AKHIL
REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998), and characterizing
Professor Amar's discussion of "Barron contrarians and Reconstruction Republicans") ("Through
legal imagination, political organizing, and personal courage, they changed the constitution and
gave us a new birth of freedom. If they could do it, Amar seems to be saying, so can we.").
79. See Hixson, supra note 11, at 135.
80. See e.g., CHARLES L. BLACK JR., A NEWt BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED
AND UNNAMED 131-39 (1997) [hereinafter A NEW BIRTH OF FREEDOM]; Charles L. Black, Jr.,
FurtherReflections on the ConstitutionalJustice of Livelihood, 86 COLUM. L. REV. 1103 (1986)
(hereinafter Further Reflections); Frank I. Michelman, The Supreme Court 1968 TermForeword:On Protectingthe PoorThrough the FourteenthAmendment, 83 HARV. L. REV. 7, 33
(1969) (drawing the minimum protection/equal protection distinction); Frank I. Michelman,
Welfare Rights in a ConstitutionalDemocracy, 1979 WASH. U. L.Q. 659 (1979); William E.
Forbath, Caste, Class, and Equal Citizenship, 98 MICH. L. REv. 1 (1999); Akhil Reed Amar,
Forty Acres and a Mule: A Republican Theory of Minimal Entitlements, 13 HARV. J.L. & PUB.
POL'Y 37 (1996); Sarah Ramsey & Daan Braveman, "Let Them Starve": Government's
Obligation to Children in Poverty, 68 TEMP. L. REV. 1607 (1995) (considering government
obligation to provide a minimum level of benefits to children); Stephen R. Munzer, Ellickson on
"Chronic Misconduct" in Urban Spaces: Of Panhandlers,Bench Squatters, and Day Laborers,
32 HARV. C.R.-C.L. L. REV. 1, 38-45 (1997); Peter B. Edelman, The Next Century of our
Constitution: Rethinking Our Duty to the Poor, 39 HASTINGS L.J. 1 (1987); Frank E.L. Deale,
The Unhappy History ofEconomic Rights in the United States and Prospectsfor Their Creation
and Renewal, 43 HOw. L.J. 281 (2000); Amy L.Wax, The ConstitutionUnder Clinton:A Critical
Assessment: Rethinking Welfare Rights: Reciprocity Norms, Reactive Attitudes, and the Political
Economy of Welfare Reform, 63 LAw & CONTEMP. PROB. 257 (2000). For a list of articles and
books advocating the recognition of affirmative "welfare" rights under the federal constitution,
see Hershkoff, supra note 72, at 1133 n.9.
81. BLACK, A NEW BIRTH OF FREEDOM, supra note 80, at 133.
82. Black, Further Reflections, supra note 80, at 1105. Professor Black is not alone in
treating the Declaration of Independence as a discrete source of legal authority: "[f]rom the
adoption of the Pennsylvania Gradual Emancipation statute, until the eve of the Civil War,
opponents of slavery would turn to the Declaration of Independence to support their cause."
Finkelman, supra note 29, at 82; see also WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT:
FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE 18 (1988) ("The favorite document of these
antislavery advocates was the Declaration of Independence ....).
20
2000]
THE LAWYER AS ABOLITIONIST
There was a point when the Supreme Court seemed to be imposing special
constraints on classifications that burdened poor people. 83 And the recent
decision in Saenz v. Roe 84 indicates that such claims can be successful with the
current court, at least if they are presented in structural terms.85 The principle
that underlies strict scrutiny is that a "more searching judicial inquiry" is
appropriate when "prejudice" has "curtailed the operation of those political
processes ordinarily to be relied upon to protect" people.86 This principle
87
classically is applied to "prejudice against discrete and insular minorities,"
but it applies with equal force to prejudice against poor people, for whom the
operations of ordinary political processes also are curtailed. 88
83. See Laurence H. Tribe, Comment: Saenz Sans Prophecy: Does the Privileges or
Immunities Revival Portendthe Future-orReveal the Structure of the Present?, 113 HARV. L.
REV. 110, 121 n.53 (1999) (discussing Boddie v. Connecticut, 401 U.S. 371 (1971); Harper v.
Virginia State Bd. of Elections, 383 U.S. 663 (1966); Douglas v. California, 372 U.S. 353 (1963);
Griffin v. Illinois 351 U.S. 12 (1956)); see also Shapiro v. Thompson, 394 U.S. 618 (1968); and
Little v. Streater, 452 U.S. 1 (1981) (Due Process Clause requires that state pay for blood testing
for determining paternity).
84. 526 U.S. 489 (1999).
85. See Tribe, supranote 83, at 140 (arguing that "claims of individual rights are most likely
to have power and ultimately to prevail if they can be convincingly expressed through the
language, and clearly understood through the logic, of such concretely architectural features of
the Constitution as the separation of powers or... the federal system of separate, equal, and semiautonomous states"). The more usual view of Saenz that it "might be the harbinger of a revival of
the privileges and immunities clause." See Hartnett, supra note 78, at 393 n.29. See also M.L.B.
v. S.L.J., 519 U.S. 102 (1996) (appeal of termination of parental rights cannot be conditioned on
payment for preparation of record). Professor Tribe considers that Little v. Streaterand M.LB. v.
S.LJ. "are best understood" as based not on concerns about poverty but on "special solicitude for
rights related to marriage, parenting or reproduction." Tribe, supra note 83, at 118.
86. United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
87. Id.
88. There is a substantial literature about the influence of money on political processes. See
e.g., Jamin B. Raskin & Burton D. Wechsler, ConstitutionalImplications of Campaign Finance
Reform, 8 ADMIN. L.J. 161 (1994); Jamin B. Raskin & John Bonifaz, The Constitutional
Imperative and PracticalSuperiority of DemocraticallyFinancedElections, 94 COLUM. L. REV.
1160 (1994); Jamin B. Raskin & John Bonifaz, Focus on: Restoring Faithin Government: Equal
Protection and the Wealth Primary, 11 YALE L. & POL'Y REv. 273 (1993). Prejudice against
people because of the amount or source of their income is substantial. The history of the
Fourteenth Amendment provides some support for devoting special concern to discrimination on
the basis of poverty. See NELSON, supra note 82, at 117 (quoting language to this effect from the
ratification debates); see id. at 129 (quoting such language used by the floor manager of the
amendment in the Senate).
Similarly, Professor Tribe emphasizes the significance of Justice Kennedy's having
begun his opinion in Romer v. Evans with a quotation from Justice Harlan's dissent in Plessy v.
Ferguson. See Tribe, supra note 83, at 179 (citing Romer v, Evans, 517 U.S. 620, 623 (1996)
(quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896))). Professor Tribe sees in this "a strong
signal that, to Justice Kennedy, Amendment 2 was of a piece with government classification of
persons in terms of race, national ancestry, or whatever other criteria have long struck the Justice
21
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State constitutional provisions hold great promise for attacking
homelessness and poverty. The New York Court of Appeals extended a right
to shelter to homeless women under equal protection principles after a lower
court had entered a preliminary injunction requiring that overnight shelter be
provided for homeless men under other standards.8 9 Equal protection
90
principles were applied to benefit homeless women and families in Indiana.
The intermediate appellate court in New York has held that the New York
constitution includes a right to overnight shelter. 91 The Connecticut Supreme
Court has come very close to recognizing a state constitutional right to
minimal subsistence. In Moore v. Ganim, 92 a four judge majority held that
there was no such right; Chief Justice Ellen Peters concurred in the result, but
filed a separate opinion explaining that she was "persuaded that the
Connecticut constitution includes a governmental obligation to provide a
minimal safety net to our poorest residents." 93 Two other members of the
court dissented,
holding that such a right was embodied in the state
94
constitution.
as despicable precisely because they reflect and reinforce the deepest and most destabilizing
divisions that have marked our nation's history." It cannot be impossible to convince five justices
that the distinction of wealth from poverty is one of "the deepest and most destabilizing.. .that
have marked our nation's history." See also Tribe, supra note 83, at 168-69 (describing a
structural argument for rights of "life-shaping autonomy," an argument that would apply as well
to rights to subsistence. The argument is that a nation cannot have effective self-government
when its citizens lack food, shelter, and other basic necessities). See also Edelman, supra note
80, at 61 ("Anyone who argues that the poor are now fully heard in Congress and the state
legislatures has not examined the history of their situation since 1978.").
89. See Callahan v. Carey, N.Y. L.J. Dec. 11, 1979, at 10 (N.Y. Sup. Ct., Dec. 5, 1979)
(preliminary injunction requiring City of New York to develop a plan to provide shelter for
homeless men); Eldredge v. Koch, 98 A.D.2d 675 (N.Y. App. Div. 1983) (right to shelter
extended to homeless women under equal protection standard).
90. See Center Township of Marion County, Indiana v. Coe, 572 N.E.2d 1350, 1361-62 (Ind.
Ct.App. 1991) ("We agree with the courts of New York that unequal treatment of homeless
women and families denies those women and families the equal protection guarantees of the State
and Federal Constitutions."). See also Roisman, Establishing a Right to Housing: A General
Guide, supra note 68, at 209-10 (discussing a similar case in Maryland and theories under which
state equal protection claims might prevail).
91. McCain v. Koch, 117 A.D.2d 198 (N.Y. App. Div. 1986), rev'd on other grounds, 70
N.Y.2d 109 (N.Y. 1987) (Appellate Division holds that the state constitution extends a right to
shelter to homeless families; the state constitutional argument is not presented to the Court of
Appeals). The state courts continue to enforce this right. See McCain v. Giuliani, 236 A,D.2d
256 (N.Y. App. Div. 1997), appeal denied, 1997 N.Y. App. Div. LEXIS 4993 (N.Y. App. Div.
1997) (enforcing trial court orders).
92. Moore v. Ganim, 660 A.2d 742 (Conn. 1995); see also Hilton v. City of New Haven,
661 A.2d 973 (Conn. 1995) (companion case involving the right to shelter; relying on Moore v.
Ganim, the judges divide as they did in that case).
93. Moore, 660 A.2d at 771 (Peters, J., concurring).
94. Id. at 783 (Berdon, J., dissenting, with whom Katz, J. joined).
22
2000]
THE LAWYER AS ABOLITIONIST
Similar claims have been presented to the New Jersey courts.95 While
those claims have not been ruled on by the New Jersey Supreme Court (or
accepted by the intermediate appellate court), the New Jersey Supreme Court
has held, in the famous Mount Laurel cases, 96 that the state constitution forbids
zoning decisions that "favor rich over poor,"97 and Professor John Payne has
recently outlined an argument that Mount Laurel actually rests on a state
constitutional right to have housing provided-a right that is affirmative
though conditional. 98
These state constitutional arguments can be extended to other states.
"[E]very state constitution in the United States addresses social and economic
concerns, and provides the basis for a variety of positive claims against the
government" 99; "more than a dozen state constitutions provide explicit
protections for the poor."100 Those who seek to abolish homelessness and
95. See Franklin v. Dep't of Human Servs., 543 A.2d 56 (N.J. Super. Ct. App. Div. 1988),
aff'd on other grounds, 543 A.2d 1 (1988) (N.J. 1988). The constitutional and statutory claims
were being developed in a concerted campaign in New Jersey, but the campaign essentially ended
with the dismantling of the New Jersey Office of Public Advocate and the imposition of
restrictions on the federally-funded legal services program. See Roisman, ESTABLISHING A
RIGHT TO HOUSING: AN ADvOcATE'S GUIDE, supra note 68, at 32-33, 42 (discussing the New
Jersey campaign); Roisman, Establishinga Right to Housing: A GeneralGuide, supranote 68, at
221-22 (same). The New Jersey Office of Public Advocate was created in 1974 and eliminated in
1994. See Department of the Public Advocate Act of 1974, ch. 27, 2, 1974 N.J. Laws 67, 67 (N.J.
STAT. ANN. §52:27E-51); Mark Green & Laurel W. Eisner, The PublicAdvocate for New York
City: An Analysis of the Country's Only Elected Ombudsman, 42 N.Y.L. SCH. L. REv. 1093,
1153 (1998) (The Office of the New Jersey Public Advocate "was eliminated entirely in January
1994, when the Republicans won control of both the statehouse and the legislature."); Geoffrey
R. Scott, The Expanding Public Trust Doctrine: A Warning to Environmentalists and Policy
Makers, 10 FORDHAm ENVTL. L.J. 1, 45 n.129 (1998) (The Office was dismantled in 1994 by
Governor Whitman "as a cost-saving measure."). With respect to the restrictions on the legal
services program, see Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.
L. No. 104-134, §504, 110 Stat. 1321, 1321-53-56 (reenacted in the Omnibus Consolidated
Rescissions and Appropriations Act of 1997, Pub. L. No. 104-208, §502, 110 Stat. 3009 (1997));
and Velazquez v. Legal Services Corp., 531 U.S. 533 (2001) (invalidating only a restriction on
challenging welfare laws).
96. Southern Burlington County NAACP v. Township of Mt. Laurel, 336 A.2d 713 (1975),
cert. denied and app. dis, 423 U.S. 808 [Mt. Laurel 1I]; Southern Burlington County NAACP v.
Township of Mt. Laurel, 456 A.2d 390 (1983) [Mt. Laurel II].
97. Mt. Laurel II, 456 A.2d at 415 (because "the State controls the use of land, all of the
land.., it cannot favor rich over poor").
98. See John M. Payne, Reconstructing the Constitutional Theory of Mount Laurel II, 3
WASH. U. J.L. & POL'Y 555 (2000).
99. Hershkoff, supra note 72, at 1135.
100. Id. at 1135, 1140 n.44 (identifying some such states). See also Adam S. Cohen, After the
War: Poverty Law in the 1980s: More Myths of Parity:State Court Forums and Constitutional
Actions for the Right to Shelter, 38 EMORY L.J. 615 (1989).
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SAINTLOUIS UNIVERSITY PUBLIC LAW REVIEW
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poverty may work to amend state constitutions to add such provisions10 1 or to
implement such provisions as already exist. 102
What I urge is that antihomelessness advocates always keep our eyes "on
the prize." To produce major social change requires that individuals strive with
determination to achieve that goal. Heeding the naysayers will produce
nothing useful. 10 3 Professor Don Fehrenbacher explained that the 18th century
anti-slavery movement "failed.... not because its supporters lacked sincerity,
but rather because they lacked the intensity of conviction that inspires
concentrated effort and carries revolutions through to success." 1 4 "For slavery
to be ended there had to be some individual human beings who did what they
did.... there were some people-a very small number, on the margin of
society, condemned and harassed-who nevertheless made it the first order of
their life's business to oppose American slavery, and to insist that it was a
grotesque evil that should be eliminated, and.., in a little over thirty years, it
was.' 0 5 I urge that we do the same to end homelessness and poverty.
The battle is long, and requires constant vigilance, but not to fight would
be unpardonable.
101. See, e.g., Frank M. Smizik & Michael Stone, Single Parent Families and a Right to
Housing, in WOMEN AS SINGLE PARENTS: CONFRONTING INSTITUTIONAL BARRIERS IN THE
COURTS, THE WORKPLACE, AND THE HOUSING MARKET 227-66 (Elizabeth A. Mulroy ed., 1988)
(discussing an effort to amend the Massachusetts constitution to add a right to shelter).
102. See Roisman, Establishinga Right to Housing: A GeneralGuide, supra note 68, at 209-
10 (discussing constitutional claims). These advocates will find substantial assistance in
Professor Hershkoff's "project about state courts and state constitutions." Hershkoff, supra note
72, at 1137; see also Helen Hershkoff, Welfare Devolution andState Constitutions, 67 FORDHAM
L. REV. 1403 (1999); Helen Hershkoff, State Courts and the "Passive Virtues": Rethinking the
Judicial Function (unpublished manuscript, on file with Professor Hershkoff).
103. See Zinn, Abolitionists, Freedom-Riders,and the Tactics ofAgitation, supra note 11, at
432 (quoting Wendell Phillips, "speaking affectionately of the abolitionist leader Angelina
Grimke: 'Were I to single out the moral and intellectual trait which won me, it was her serene
indifference to the judgement of those about her."').
104. DON E. FEHRENBACHER, SLAVERY, LAW, AND PoLmcS: THE DRED SCOT CASE IN
HISTORICAL PERSPECTIVE 9 (198 1) (emphasis in original).
105. MILLER, supra note 16, at 513.
24
25
26
CRIMINALIZING THE CLASSROOM
THE OVER-POLICING OF NEW YORK CITY SCHOOLS
Published March 2007
THE NEW YORK CIVIL LIBERTIES UNION is dedicated to defending and promoting the fundamental principles and values embodied in the Bill of Rights,
the U.S. Constitution, and the New York Constitution. Founded in 1951 as the
New York affiliate of the American Civil Liberties Union, the NYCLU is one of
the nation’s foremost defenders of civil liberties and civil rights. The NYCLU is
a not-for-profit, nonpartisan organization with six chapters and nearly 50,000
members across the state.
125 Broad Street, 19th Fl.
New York, NY 10004
(212) 607-3300
nyclu.org
THE AMERICAN CIVIL LIBERTIES UNION is the nation’s premier guardian of
liberty, working daily in courts, legislatures and communities to defend and
preserve the individual rights and freedoms guaranteed by the Constitution
and the laws of the United States.
Racial Justice Program
125 Broad Street, 18th Fl.
New York, NY 10004
(212) 549-2500
aclu.org
27
ULYSSES KALLADARYAN
COVER ART: I first got the idea for this painting from when I attended night school. There we
had metal detectors and everybody had to go through them. There was always a line to get into
school. Getting scanned in was a very arduous process because there were only two detectors.
Some teachers understood if you were late because you were in line. I didn’t see a use for these
in Townsend Harris High School. The teachers wouldn’t care why you were late and were very
strict in punishment, students still come in late even without the metal detectors. Some schools
shouldn’t have these detectors because they are useless. They slow down the entrance process
and from what I see no student has ever carried any kind of weapon into the school.
28
ACKNOWLEDGEMENTS
This report was written by Elora Mukherjee, Marvin M. Karpatkin Fellow,
2006-2007.
It was researched and investigated by Rebecca Benjamin, Chloe Dugger,
Arusha Gordon, Emma Jacobs, Jeffrey Lesovitz, Darinka Maldonado, Julia
Massa, Ari Rosmarin, Lida Shao, Noga Malkin, Raza Panjwani, Sally Robinson,
Ana Weibgen, and — most importantly — Rachel Goodman.
Its editors were Phyllis Eckaus, Arthur Eisenberg, Rachel Goodman, Margaret
Hunt Gram, Jamarah Harris, Catherine Kim, Donna Lieberman, Udi Ofer,
Dennis Parker, and Ana Weibgen.
Riah Buchanan and Todd Drew designed the report.
We thank all those students who filled out surveys and shared their views on
policing in schools. We also thank the many students, teachers, school administrators, parents, former Board of Education and Department of Education
members, United Federation of Teachers officials, NYPD personnel, school
safety agents, and others who shared their insights and expertise with us during the preparation of this report. We also thank Make the Road by Walking,
the Urban Youth Collaborative, and Councilmember Robert Jackson.
Finally, we owe a special thanks to the family and friends of Marvin M.
Karpatkin, for making this project possible.
29
EXECUTIVE SUMMARY
This report documents the excesses of the New York City
school policing program and offers realistic recommendations
for reform.
To produce this report, the New York Civil Liberties Union
(NYCLU) and the Racial Justice Program of the American Civil
Liberties Union (ACLU) conducted 1,000 student surveys and
analyzed publicly available data. The organizations also interviewed students, parents, teachers, school administrators,
school safety agents, and officials from the Department of
Education, the United Federation of Teachers, and the New York
City Police Department (NYPD).
The conclusions of this research are clear. Students and teachers are entitled to a safe learning environment that is conducive
to education. The environment created by the massive deployment of inadequately trained police personnel in schools, in
contrast, is often hostile and dysfunctional.
Since the NYPD took control of school safety in 1998, the number
of police personnel in schools and the extent of their activity have
skyrocketed. At the start of the 2005-2006 school year, the city
employed a total of 4,625 School Safety Agents (SSAs) and at least
200 armed police officers assigned exclusively to schools. These
numberswould make the NYPD’s School Safety Division alone the
tenth largest police force in the country – larger than the police
forces of Washington, D.C., Detroit, Boston, or Las Vegas.
Because these school-assigned police personnel are not
directly subject to the supervisory authority of school administrators, and because they often have not been adequately
trained to work in educational settings, SSAs and police officers
often arrogate to themselves authority that extends well
beyond the narrow mission of securing the safety of the students and teachers. They enforce school rules relating to dress
and appearance. They make up their own rules regarding food
or other objects that have nothing whatsoever to do with school
safety. On occasion they subject educators who question the
NYPD’s treatment of students to retaliatory arrests. More routinely, according to our interviews and survey, they subject students to inappropriate treatment including:
These types of police interventions create flashpoints for confrontations and divert students and teachers from invaluable
classroom time. They make students feel diminished, and are
wholly incompatible with a positive educational environment.
Statistical analysis shows that all students are not equally likely
to bear the brunt of over-policing in New York City schools. The
burden falls primarily on the schools with permanent metal
detectors, which are attended by the city’s most vulnerable children. The students attending these high schools are disproportionately poor, Black, and Latino compared to citywide averages,
and they are more often confronted by police personnel in
school for “non-criminal” incidents than their peers citywide.
These children receive grossly less per-pupil funding on direct
educational services than city averages. Their schools are likely
to be large and overcrowded, and to have unusually high suspension and drop-out rates.
The report offers the following recommendations for reforming
New York City’s school policing program – all of which can be
accomplished without any sacrifice to school safety:
• Authority over school safety must be restored to school
administrators.
• School safety personnel must be trained to function in
accordance with sound educational practices and to respect
the differences between street and school environments.
• The role of police personnel in schools must be limited to
legitimate security concerns for children and educators.
• Students, families and educators must be given meaningful
mechanisms, including access to the Civilian Complaint
Review Board, to report wrongdoing by school-based
police personnel.
• derogatory, abusive and discriminatory comments and conduct;
• intrusive searches;
• unauthorized confiscation of students’ personal items,
including food, cameras and essential school supplies;
• inappropriate sexual attention;
• physical abuse; and
• arrest for minor non-criminal violations of school rules.
30
TABLE OF CONTENTS
6
I. Introduction
8
II. The Origins of New York City’s Current Policing Policy
10
III. Policing in New York City Schools Today
11
IV. How Police Presence Affects Learning Environments
19
V. The City’s Claim of Crime Prevention
20
VI. Who Suffers?
23
Students Taking Charge: Four Students Work to Change the Policing
Regime in their Schools
24
Julia Richman: A Model for Successful and Respectful School Safety
25
VII. Recommendations for New York City
25
A. Restore educators’ authority over school discipline.
26
B. Train police personnel for the special environment in schools.
26
C. Limit policing in schools to legitimate security concerns.
27
D. Create accountability mechanisms over policing in schools.
29
VIII. Conclusion
30
IX. Appendix
30
A. List of New York City Schools With Daily Metal Detector Use
31
B. Policing Practices in Large Urban School Districts
32
Endnotes
31
CRIMINALIZING THE CLASSROOM 6
school, he chose to remain outside in order to call his mother
and ask her to pick up the phone, which she agreed to do.
As Carlos stood outside the school, a police officer approached
and asked for identification. Carlos explained: “My mother’s on
the way. She should be just up the block. You can talk to her.” In
response, the officer said to a second officer, “What are we
going to do with this smart aleck?” The second officer replied,
“Take him to the precinct.”
I. INTRODUCTION
On the morning of November 17, 2006, the New York City Police
Department (NYPD) swarmed Wadleigh Secondary School.1
The officers’ descent on Wadleigh, a Manhattan public high
school attended by over 880 students, was not a spontaneous
response to an emergency situation. Instead, it was a routine, if
unannounced, visit – part of New York City’s campaign to
reduce the number of weapons in schools by deploying NYPD
personnel to a random junior high or high school each day to
install metal detectors that students must pass through in
order to get to class.
At Wadleigh, the NYPD installed metal detectors inside the
school building before the school day began and sent in dozens
of officers to patrol the school. Every student, in order to enter
the building, was required to walk through the metal detectors
and to have his or her backpack, jacket, and other belongings
searched by officers’ probing hands. Officers selected some
students for additional scanning with handheld metal detectors, requiring them to lean against a table or wall, spread their
legs, hold their arms out, and lift each foot to be wanded.
The officers did not limit their search to weapons and other illegal
items. They confiscated cell phones, iPods, food, school supplies,
and other personal items. Even students with very good reasons
to carry a cell phone were given no exemption. A young girl with a
pacemaker told an officer that she needed her cell phone in case
of a medical emergency, but the phone was seized nonetheless.
The metal detectors and searches caused chaos with some
students missing as many as three class periods while waiting
in line to be scanned. In all, over one-third of students were
marked late for class. Attendance at Wadleigh dropped about
ten percent that day.
Throughout the morning, police personnel hurled invective and
threats at the students they were charged with protecting.
Officers threatened students with arrest for refusing to turn over
cell phones, for stepping out of line, and for refusing to be
scanned. Officers cursed at students and scoffed at educators.
When a student wandered out of line, officers screamed, “Get the
fuck back in line!” When a school counselor asked the officers to
refrain from cursing, one officer retorted, “I can do and say whatever I want,” and continued, with her colleagues, to curse.
The threats of arrest turned out to be more than bluster.
Several Wadleigh students were hauled to the 28th Police
Precinct that morning for minor non-criminal violations of
school rules. Among them was Carlos, an eleventh grader and
Vice-President of the School Government Association. Carlos,
who worked thirty to forty hours each week after school and
needed to communicate frequently with his mother about his
whereabouts, did not want the police to confiscate his cell
phone. When he became aware of the police activity in the
The officers handcuffed Carlos, seized his cell phone, forced
him into a police vehicle, and took him to the precinct without
informing school officials or his mother. At the precinct, Carlos
was ordered to remove his belt and shoelaces and was forced
into a cell.
Meanwhile, Carlos’s mother – who did not find Carlos waiting
for her when she arrived at the school to pick up his cell phone
– began a frantic search for her child. Many phone calls later,
she learned that Carlos had been arrested.
When she arrived at the precinct, officers returned Carlos’s
phone to her, but refused to release her son into her care.
Carlos was released only after his mother had finally left the
precinct. Upon his release, the officers issued him a summons
threatening that if he did not appear in court, a warrant would
be issued for his arrest. The charges were ultimately dropped.
What happened to Carlos and the other students at Wadleigh
Secondary School on November 17 was not an aberration. In
fact, this scenario takes place in New York City schools every day.
Thousands of School Safety Agents (SSAs — unarmed employees of the NYPD School Safety Division) patrol city schools,
alongside countless armed NYPD officers. And when the city’s
roving metal detector program descends on a junior high or high
school, the number of officers present at that school multiplies.
Everyone wants New York City’s students to be safe. The city
has deployed large numbers of police personnel and adopted
aggressive policing tactics in schools as a way of trying to create a safe educational environment for students and teachers.
Unfortunately, however, these practices are frequently excessive and dysfunctional.
Police personnel assigned to schools are often inadequately
trained to work in school environments. Officers bring into the
schools attitudes of bellicosity and suspicion that are of questionable value on the streets and that are entirely inappropriate
in schools. Officers often assume authority that extends well
beyond the narrow mission of securing the safety of the students and teachers. Instead, they enforce school rules relating
to dress or appearance, and make up their own rules regarding
food or other objects that have nothing whatsoever to do with
school safety.
In addition, the current arrangement renders educators powerless to curtail inappropriate behavior by police personnel by
assigning officers to schools without placing them under the
authority of principals and school administrators. SSAs and
school-assigned police officers are not employees of the
Department of Education (DOE), but rather of the NYPD; they
report not to educators, but to police officials outside of the
school system. This institutional structure makes New York
City’s school policing program out of step with virtually every
other large school district in the country, where school safety
officers are generally under the supervision of educators, not
police departments.
New York City’s school policing program makes many New York
32
7 The Over-Policing of New York City Schools
A heavy police presence
patrols Curtis High School in
Staten Island.
City schools feel more like juvenile detention facilities than learning environments. Every day, over 93,000 city children2 cannot get
to classes without passing through a gauntlet of metal detectors,
bag-searches, and pat-downs administered by police personnel
who are inadequately trained, insufficiently supervised, and often
belligerent, aggressive and disrespectful. Moreover, any middle
school or high school without permanent metal detectors might
— on any day — be unexpectedly forced to subject its students to
mandatory scans and searches that would consume as much as
three hours of class time. These types of police interventions create flashpoints for confrontations and divert students and teachers from invaluable classroom time. They make many students
feel diminished and are wholly incompatible with the positive
educational environment that children deserve.
None of this is necessary. Many educators believe that school
safety should be the province of education officials – not the
police – and that non-police strategies are needed to keep
schools safe. Police personnel who are called upon to assist in
schools must be properly trained and institutionally responsive to
school administrators. If this were to occur, many of the excesses of the city’s school policing program would be curtailed. If officers were instructed to intervene only when safety is at issue,
rather than enforcing arbitrary rules regarding dress, food or
educational materials that pose no safety risk, further abuses
could be avoided. And if a meaningful independent mechanism
were established to allow students, families, and educators to file
complaints against police personnel without the fear of retaliation, the policing program could be rendered substantially more
accountable. These recommendations can be accomplished
without any sacrifice to school safety.
This report seeks to document the history of New York City’s
current school policing policy; how the policy affects students
and teachers; and how it might be improved. Part II explores the
origins and evolution of the current policy. Part III discusses
policing in city schools today. Part IV shows how over-policing
in schools can poison the learning environment and, on balance, can undermine the educational needs of students. Part V
examines the city’s claim of crime prevention and why education experts are skeptical that policing is achieving its stated
aims. Part VI shows that the brunt of over-policing falls on the
city’s most vulnerable children. And, most importantly, Part VII
offers realistic recommendations for reform, such as:
• Authority over police in schools must be restored to school
administrators.
• Police personnel must be trained to function in accordance
with sound educational practices and to respect the differences
between street and school environments.
• The role of police personnel in schools must be limited to
legitimate security concerns for children and educators.
• Students, families, and educators must be given a meaningful mechanism to complain about wrongdoing by school-based
police personnel.
Can we please not treat already-struggling, inner-city teenagers who
have gotten themselves to school like they’ve already committed a
crime? LEAH FINK, ENGLISH TEACHER, COMMUNITY SCHOOL FOR SOCIAL JUSTICE,
MANHATTAN
33
CRIMINALIZING THE CLASSROOM 8
Despite these objections the BOE voted unanimously on
September 16, 1998, to transfer control of school safety to the
NYPD. The change was put into effect through a Memorandum
of Understanding that was set to expire four years after the
agreement was reached. Responsibility for training, recruiting,
and managing 3,200 school safety personnel – who had until
now been employed by the BOE – was transferred to the NYPD.7
Details about implementing the plan were left vague, as were
details about cost, which one BOE member estimates to have
been on the order of $100 million.8
II. THE ORIGINS OF NEW YORK CITY’S
CURRENT POLICING POLICY
As Mayor of the City of New York, Rudolph Giuliani made “law and
order” his rallying cry. Giuliani strengthened the city’s police force
and authorized its officers to use heavy-handed tactics to enforce
order in the streets. While these tactics made Giuliani popular in
some law enforcement communities, they alienated many New
Yorkers and generated widespread mistrust of police, especially
in communities of color. Consequently, when Giuliani turned his
focus to school safety, many New Yorkers – especially those in
minority communities – had serious concerns.
In June 1995, Giuliani appointed an investigatory commission to
study school safety. In 1996, the commission concluded that the
New York City Board of Education’s Division of School Safety
was poorly managed and failed to maintain security in the
schools effectively.3 The remedy, the commission suggested,
was for the NYPD to step in and play a greater role in ensuring
school safety.4 The mayor took the commission’s recommendations as a mandate. In response, he proposed transferring control of school safety from the New York City Board of Education
(BOE) completely to the NYPD.
From the beginning, the proposal was controversial. It faced
objections from community leaders and education policymakers,
including Schools Chancellor Ramon C. Cortines, and his successor, Rudy Crew. Members of the BOE questioned whether the
NYPD’s presence in schools could be compatible with a nurturing learning environment and expressed concern that a police
presence would be likely to disrupt educational outcomes.5
Concerned families, educators and community leaders participated in vociferous debates over Mayor Giuliani’s proposal. At a
hearing before the BOE on September 16, 1998, more than two
dozen speakers urged board members not to transfer control
over school safety to the NYPD. Police presence, they said,
would transform schools into prison-like settings, exacerbate
tensions between youth and police, and interfere with the education of 1.1 million schoolchildren. Black leaders, in particular,
objected that the plan would further strain the relations
between children of color and the police.6
September 16,
1998 Under pressure from Mayor
Giuliani, the BOE
transfers control of
the School Security
Office to the NYPD
via a Memorandum
of Understanding.
September 16,
2002 Memorandum
of Understanding
governing the relationship between
NYPD and BOE
expires; it is never
renewed.
It soon became clear that the public did not have access to complete information prior to the adoption of the plan. On September
17, the day after the BOE transferred control of the School Safety
Division to the NYPD, the BOE released “surprising figures” that
showed a decrease in serious school crimes. The timing of the
release of the statistics raised suspicions that key information
was withheld from the public until the NYPD transfer was completed. Such suspicions were reinforced by the fact that, in previous years, the statistics on school safety incidents had been
released during the month of August, not September.9
Under new management by the NYPD, the responsibilities of the
School Safety Agents (SSAs) expanded. SSAs became responsible for monitoring school entrances, exits and hallways; operating ID scanners, cameras, and metal detectors; checking student and staff identification; and coordinating with precinct officers when appropriate. They retained the power of arrest.
Under the original four-year Memorandum of Understanding,
a Joint Committee on School Safety – representing the Mayor’s
and the Chancellor’s Offices – was required to complete annual evaluations of NYPD-managed school security “with the goal
of improving and enhancing the program.”10 After three years of
these evaluations, the city or the BOE would have the authority
to “terminate the joint school security program . . . effective on
the fourth anniversary date of the transfer date.”11
In November 2001, three years after the original Memorandum
of Understanding went into effect, the Joint Committee on
School Safety asked principals whether they thought safety had
improved in their schools since the NYPD takeover of the
School Safety Division. The vast majority of principals polled –
67 percent – reported there that “there has been no change in
their school’s climate of safety” since the NYPD gained control
of school safety.12 Despite the sense of a lack of improvement in
school safety, the fourth anniversary date of the transfer –
September 16, 2002 – came and went. The Memorandum of
Understanding was not renewed, leaving no written policy governing the relationship between educators and the NYPD.
Under Mayor Michael R. Bloomberg, who succeeded Mayor
Giuliani in 2001, the lack of an official policy meant that the NYPD
remained in charge, excluding educators from decisions about
January 5, 2004
Mayor Bloomberg
announces the
Impact Schools program, which doubles NYPD presence at targeted
schools.
34
April 13, 2006
Mayor Bloomberg
announces the roving metal detector
program, which
subjects all middle
school and high
school students to
random police
searches.
9 The Over-Policing of New York City Schools
school safety and the school environment. By the end of his first
year in office, Mayor Bloomberg had won state legislative approval
for mayoral control of the schools and had eliminated the BOE
and the 32 community school boards, creating in their place a
centralized New York City Department of Education (DOE).
Impact Schools
In January 2004, city officials introduced – without meaningfully
consulting families, students, community leaders, or educators13
– the Impact Schools initiative. A joint effort of the NYPD, the new
DOE, and the Mayor’s Office, the Impact Schools initiative originally targeted twelve schools with high levels of reported crime
for heightened policing with a goal of creating safe school environments. These schools were identified using a computer system modeled on COMPSTAT, the NYPD program for identifying
neighborhoods to target for street crime intervention.14 Since
2004, 26 schools have been targeted by the program at various
times;15 the DOE intends that “[a]ll problem schools will eventually be addressed through the Impact Schools initiative.”16
The Impact Schools transferred even more control over the
school environments into the hands of the NYPD than the 1998
Memorandum of Understanding. The initiative doubles the
number of police officers permanently assigned to targeted
schools; institutes a zero-tolerance policy for infractions listed in
the New York City Discipline Code; and expedites the removal of
students via suspension procedures, such that a student with
two suspensions on his record who then receives one additional suspension is sent to an alternative school.17 A task force of at
least 200 uniformed police officers and supervisors, armed with
guns, is exclusively dedicated to policing Impact Schools alongside the SSAs already assigned to those schools.18 Appendix A
lists the current Impact Schools.
Schools With Permanent Metal Detectors
In April 2006, the city reported that 21 percent of middle schools
and high schools, 82 public schools in total, scan students using
permanent metal detectors on a daily basis.19 The NYCLU’s
recent investigation revealed that students on even more campuses than these 82 – at least 93,411 students attending at least
88 schools – must pass through permanent metal detectors to
enter their school buildings each day.20 Appendix A lists these 88
schools that were uncovered by the NYCLU’s investigation – an
investigation that was necessary because the city refused to disclose a list of schools with permanent metal detectors.
Schools Targeted By Roving Metal Detectors
On April 13, 2006, Mayor Bloomberg announced a further escalation of police activity throughout the school system, unveiling
a program which subjects all middle school and high school
students to NYPD-deployed “roving” metal detectors.21 The
deployment of the scanners at any given school is unannounced, designed to catch students by surprise and to reduce
the number of weapons in the school; it requires students at
targeted schools to submit not only to metal detector scans but
also to police searches and other policing activity. As soon as it
was implemented, the program began to cause chaos and lost
instructional time at targeted schools, each morning transforming an ordinary city school into a massive police encampment with dozens of police vehicles, as many as sixty SSAs and
NYPD officers, and long lines of students waiting to pass
through the detectors to get to class. It also appears to be an
expensive program: in the fiscal year 2006-2007, which followed the mayor’s announcement, the city’s budget allocation
for school safety equipment alone jumped 139 percent.22
Growing Concern Over School Policing Program
In November 2004, the New York City Council, concerned about
school safety, passed legislation requiring the NYPD and the
DOE to provide the public with information regarding criminal
incidents and certain non-criminal incidents in schools.23 Three
months later in January 2005, the City Council passed a law
requiring the NYPD to submit quarterly reports detailing the
number of SSAs assigned to every public school.24 Both of these
bills passed over the mayor’s veto.
Community members have sought transparency and accountability in school policing, but with little success thus far. In July
2005, dozens of students and advocacy groups rallied at City
Hall to protest the presence of armed police officers in schools
and to urge the NYPD and the DOE to establish a way to allow
students to help evaluate school safety personnel. The DOE and
the NYPD ignored the protest.25
In September of the same year, some 1,500 students from
DeWitt Clinton High School in the Bronx marched nearly two
miles to the local DOE office to protest police policies and practices that they said treated them like inmates and caused hourlong delays as the school’s 4,600 students lined up to pass
through metal detectors. Administrators met briefly with the
protest organizers, but the only remedy they promised was to
install more metal detectors to speed up the lines.26
In August 2006, more than 100 students rallied at the DOE
headquarters to protest the fact that policing practices in
schools detracted from the learning environment and made
them feel like criminals.27 To make their demands heard, the
students delivered a report card on school safety to the
Chancellor, and criticized the DOE for failing to respect students and listen to their concerns.28
On November 16, 2006, students citywide made yet another
attempt to reclaim their rights in school when about 800 students of the Urban Youth Collaborative announced a students’
Bill of Rights.29 The Bill of Rights reflects a deep concern about
the conduct of police personnel in schools, as evidenced by the
inclusion of the right “to attend school in a safe, secure, nonthreatening and respectful learning environment in which [students] are free from verbal and physical harassment, as well as
from intrusions into their bodily space and belongings by school
safety agents [and] police officers.”30
Sometimes the classroom feels like a jail cell. We have many people in
this jail cell of ours and security officers going around in the hallway to
reprimand us… I think before the city decides to post more security officers [in] our city’s schools, they should really think about the effect they
are going to have on… our educations. JANE MIN, FLUSHING HIGH SCHOOL, QUEENS
35
CRIMINALIZING THE CLASSROOM 10
III. POLICING IN NEW YORK CITY
SCHOOLS TODAY
Since the September 1998 takeover of school safety by the NYPD,
the number of police personnel in schools has spiked dramatically. Before the takeover, the school safety division employed
3,200 school safety personnel.31 By the start of the 2005-2006
school year, the number of officers had increased by over 50 percent to 4,625 SSAs.32 In addition to the unarmed SSAs, at least 200
NYPD officers patrol school hallways with guns at their hips.33
New York City has more SSAs, by far, than any other school district in the country. If SSAs were considered their own police
force, the number of SSAs alone would make the NYPD’s School
Safety Division the tenth largest police force in the country, with
more school safety agents than there are officers in the police
forces of Washington, D.C., Detroit, Baltimore, Dallas, Phoenix,
San Francisco, Boston, San Diego, Memphis, or Las Vegas.34
In fact, New York City has more SSAs per student than other cities
JB McGeever, an English teacher
at Jamaica High School in Queens,
describes the police presence at
school in the following article which
appeared in City Limits Weekly on
November 27, 2006.37
The campus of my public school building
in New York City is a fortress these days.
Gazing through the mesh caging of any
stairway window, I can spot faculty
deans, campus security (a branch of the
NYPD with arresting powers), as well as
regular NYPD uniformed officers
patrolling the grounds like medieval
sentries. As I move through the halls of
this majestic, 70 year-old building, I’m
forced to sidestep . . . two police officers,
9 mm Glock handguns bouncing off their
hips. . . . . New York’s Finest, Bravest, and
Brightest, all right here in one high
school – and no one’s quite sure why. . . .
[T]hose Glocks in their holsters, the
have police officers per citizen. San Antonio, which has a population approximately equal to the 1.1 million student enrollment in
the New York City public schools, employs half as many police officers per citizen as New York City employs SSAs per student.35
Police personnel use a variety of technologies to police schools,
including metal detectors and bag screens (both similar to the
equipment used in airports), handheld wand metal detectors,
ID scanners, and surveillance cameras.36 Police presence is on
the rise at all New York City middle schools and high schools –
whether they are Impact Schools, schools with permanent
metal detectors, or other schools targeted by the roving metal
detector program – without an examination of how it affects the
learning environment.
“hand cannons” at their hips. It simply
looks obscene in the halls outside my
classroom. This is supposed to be a
sanctuary. . . . What in the world are
these people doing with loaded weapons
in our halls? It’s just no way for a kid to go
to school. . . . .
Yet this is the way many of the city’s
teenagers attend high school each day.
Instead of using the auditorium for
assemblies and school plays, it’s been
turned into a weigh station for students
to adjust their backpacks and redo their
belts after removing them for the metal
detectors twice a week. Maybe this type
of indignity is worth the trouble at the airport or on your way to vacation in the
islands, but before gym class? . . . .
My girlfriend, who also teaches in the
building, . . . tells me, police guns were
pulled on two students today. “If I tell you
to do something, you better do it,” was
the cop’s explanation, which he related
to her. Before that he bragged how, in a
separate incident, a Muslim student
attempted to enter the building using
another student’s I.D. and the terrorism
unit was called in. . . . .
All it takes is for one student to have a
bad morning, to carry that burden to
school with him and then to act out on it,
something that occurs in countless variations throughout schools nationwide.
Instead of a routine suspension and a
call to Mom, Dad, or even Grandmama,
with NYPD presence inside a school the
end result could be a world of hurt that
no one ever imagined.
On our way out of the building, we pass
one of the flyers some of the students
have taped to the walls in an effort to win
back their school. It shows a graphic with
a pair of young handsgripping steel bars.
“This is not a penitentiary,” it says. “We
are students, not inmates.”
What has come of all this spending? Nothing, except tell kids that a
place they once thought was a sanctuary is not really safe after all. —
CODY ALONGI, TOWNSEND HARRIS HIGH SCHOOL, QUEENS
36
metal detectors, but their requests were denied on the ground
that the flyers were critical of an official DOE policy. Many of the
students at Aviation High School report that, as a result of the
October 24 incident, they lost confidence in school administrators and have become more distrustful of the NYPD.
Community School for Social Justice and the Health
Opportunities High School
IV. HOW POLICE PRESENCE AFFECTS
LEARNING ENVIRONMENTS
The circumstances at Wadleigh Secondary School on
November 17, 2006 – the day described in the opening pages of
this report – are not unique. The experiences of students and
educators at Aviation High School, the Community School for
Social Justice, the Health Opportunities High School, and Curtis
High School, all of which have received visits from the NYPD’s
roving metal detectors, show that the NYPD’s metal detector
program has caused widespread disruption in the New York
City public school system.38
Aviation High School
On October 24, 2006 approximately thirty police vans and cruisers
surrounded Aviation High School, a public high school in Long
Island City with approximately 2,100 students. Uniformed police
officers joined SSAs to install metal detectors through which every
student would have to pass in order to get into school.
Long lines encircled the school as students waited to pass
through the metal detectors. Although many students did not
set off the metal detectors, officers searched the bags of every
student who entered the building. Officers confiscated engineering tools required for class – one officer explained they were
“hazardous to society” – and the camera of the school’s yearbook photographer, Rich. Officers also threw out water bottles,
lunches and even cupcakes brought to celebrate a birthday.
Students were required to turn over cell phones. Many items,
such as the engineering tools, were never inventoried and were
never returned. The principal informed families that 617 electronic devices had been seized, but the NYPD never reported
how many other items were confiscated or simply discarded.
The NYPD brought its roving metal detectors to the building
that jointly houses the Community School for Social Justice and
the Health Opportunities High School on November 29 and 30,
2006. Approximately 150 students attend the two schools.
About forty SSAs and armed NYPD officers – one officer for
every four students – swarmed the school building along with
numerous police vehicles. The officers screamed at students
before they even entered the building, directing them to empty
their pockets and remove their belts, hair clips, and bracelets.
As students walked toward school, officers belittled them and
insulted their families. One officer demanded that Brian, a
twelfth grader, explain where he had gotten his nice coat: “I
know your mom ain’t buy that!”
In the cafeteria, where the metal detectors were installed, officers required students to remove all chin and eyebrow piercings. They searched students’ backpacks and confiscated their
cell phones, iPods, and food (some of which they ate and some
of which they threw away. They seized metal-studded belts, nail
files, perfume, hand sanitizer, loose change—including a $10
change roll—and CD players, none of which was returned.
Upon finding a blank CD in the backpack of one ninth grader,
Joshua, an officer said: “Is this rap? Then it’s probably why
you’re being searched.” A second officer then emptied Joshua’s
wallet until Joshua protested that his Fourth Amendment
rights were being violated, at which point the officer removed
his badge so he could not be identified.
Officers demanded that students remove their belts before
passing through the metal detectors, but refused students’
requests to do so in a private area. When a student set off the
metal detector while passing through, officers would yell, “We
got another one!” and then subject that student to yet another
As a result of the disruptions caused by the NYPD, the school
was forced to cancel all “zero-period” Advanced Placement
classes, labs, and leadership activities, which usually begin at
7:00 a.m. When first period began, shortly after 8:00 a.m., hundreds of students were still waiting in line outside of the school
to pass through metal detectors. At 8:45 a.m., the end of first
period, an estimated 200 students remained in line. An hour
later, when third period began, many students still waited to
pass through metal detectors. Typically the attendance rate at
Aviation High School is between 92 percent and 94 percent. On
October 24 that rate dropped to 70 percent.
Students and families who attempted to protest the NYPD
police action at Aviation High School that day were threatened
or silenced. After her son Jonathan Clark wrote a letter complaining about the incident to Chancellor Klein via email, one
parent received an angry phone call from Bernard Lopez, the
local head of school security. Students asked school administrators for permission to post flyers protesting the officers and
37
Aviation High School student
Rich.
CRIMINALIZING THE CLASSROOM 12
round of searches. Students who refused to pass through the
metal detectors were pushed through.
For no apparent reason, some students who passed through
the metal detectors without beeping were subjected to frisks
and intrusive searches. One ninth grader passed without setting off the metal detector, but an officer nonetheless forced
him up against a nearby wall. The officer ordered the young boy
to spread his legs and then ran a handheld metal detector up
and down his inner thighs – even as the student protested, “I
don’t think you’re supposed to be doing this.” That boy was just
one of many students who were pushed against the wall to be
frisked, searched, and have handheld metal detectors run up
and down their bodies that day.
In a clear violation of the Chancellor’s Regulations, female students were searched by male officers.39 After being pushed
against the wall for frisking, many girls were ordered to squat
for intrusive searches with handheld metal detectors. After
forcing one child to squat, a male officer repeatedly traced his
handheld metal detector up her inner thigh until it beeped on
the button of her jeans. “Is there something in your pants?” he
asked repeatedly. The frightened girl repeated that there was
not, but the officer kept at it, making her fear a cavity search,
until he finally let her go.
Officers threatened to arrest students who were found with cell
phones or food. They cut off students who tried to enter school
through alternate entrances while yelling, “Round them up!”
and chased down and arrested multiple students who, frightened by the police presence, tried to leave school for the day.
On both of the days when the roving metal detectors were
installed at the Community School for Social Justice and the
Health Opportunities High School, many students were late to
classes, and attendance rates dropped significantly. Students
and teachers alike reported that the disruptions caused by the
metal detectors and the police presence meant that no one
could concentrate on learning.
When one parent learned of the harrassment students had
faced at school, she made multiple phone calls to the NYPD in
an attempt to stop the officers from pushing students against
the wall and forcing them to squat for intrusive searches on
successive school days. When she reached the second-in-command of the roving metal detector team, she was told that not
a single student was forced into such positions. She expressed
disbelief based on her children’s experiences, and offered to
bring a video camera to the scene. “You’re not allowed to do
Aviation High School student
Jonathan Clark speaks to the
media in front of City Hall.
Jonathan C., an eleventh-grader
at Aviation High School in Long
Island City, reported on the metal
detector searches at his school in
this letter to the Department of
Education, sent October 24, 2006.
I am writing this letter in regards to the
random metal detector search which
was active in Aviation High School this
morning.
As I approached the school, the police
presence was overwhelming. As I
walked on, I was informed that the metal
detectors had arrived. …
I was treated as though I were a criminal.
The officers were rude and when I simply asked what the procedure should be,
I was yelled at for holding up the line. The
officer said to hurry up, throw my back-
pack on the scanner, and follow the line
of students through the metal detector.
The officer searching my school bag was
both unprofessional and disrespectful. I
was interrogated regarding the educational supplies that were in my book bag.
I was not the only student to be treated
so harshly. I personally was violated and
witnessed other students’ required tools
being confiscated. The United States Air
Force Junior ROTC members sustained
the worst treatment of all the students.
At this time, my basic right to communicate has unjustly been taken from me as
I am denied the right to carry a cell
phone. The DOE does not provide safe
transportation to and from school. I have
to commute great distances via the MTA
buses and subways. In denying me the
right to a cell phone you are denying me
the ability to remain in contact with family members. Should something happen
to myself, a family member or the like,
without a cell phone, how am I expected
to get help or receive information?
Furthermore, Aviation High School is a
trade school certified by the Federal
Aviation Administration, and as such, we
are required to possess tools of the
trade. How dare the NYPD and the DOE
be allowed to confiscate these tools
which are essential to our education as
certified aircraft mechanics? …
I cannot believe that the DOE and the
NYPD is able to violate our rights as both
citizens and students without any repercussions.
I love Aviation High School, it has
become my home away from home. …
But today, the enthusiasm that I woke up
with was stifled as I entered school …
They treat us like criminals rather than children. JULIA, NORMAN THOMAS
HIGH SCHOOL, MANHATTAN
The police like to put their hands on kids without reason. ALEXIS BATISTA,
MARTIN LUTHER KING HIGH SCHOOL OF THE ARTS AND TECHNOLOGY, MANHATTAN
38
13 The Over-Policing of New York City Schools
A student enters Curtis High
School.
that,” the officer responded. “It’s the law.” The officer denied
the parent’s requests to speak with his supervisor. Reflecting on
the incident later, the parent said: “I don’t want my children to
come to school feeling like they’re being criminalized. The students are not criminals, and I don’t want them treated like
criminals. A fear of retaliation really silences parents.”
Leah Wiseman Fink, an English teacher, observed the scene at
the metal detectors and snapped photographs for her personal use. But officers approached her and said she was banned
from taking pictures. DOE official Harmon Unger told Fink: “You
can’t take pictures of police action.” Unger later demanded that
Fink turn over her film. Intimidated by the NYPD officers present, she complied. Although Unger promised to send her
copies of any photographs unrelated to the NYPD, she has yet
to receive any prints. Thinking back on the scene, Ms. Fink
commented on how “freaked out” and “secretive” the police
were. “If I were treating kids like criminals,” she said, “then I
would do it in secret as well.”
Students choose to attend the Community School for Social
Justice and the Health Opportunities High School because of their
reputation for safety and cooperative learning, but the intrusive
scan seriously damaged the atmosphere of community that students, parents, and educators had worked so hard to build. “After
the metal detectors came in, I felt like this was a different school,”
twelfth-grader Brian says. “It just doesn’t feel right anymore.”
Leah Wiseman Fink wrote the following letter about her observations and experiences:
On this random Wednesday morning, scanners were
set up in the cafeteria of the public high school in the
South Bronx where I work. Students’ bags were
placed on a scanner, they were forced to walk
through metal detectors, and any item deemed inappropriate for school – including food, keys, and spare
change – were taken away. Many students were pat-
ted down, some even with their hands on a police car.
An overwhelming ratio of adults to students made
the cafeteria seem a lot like a police station.
My students were not the only ones treated like criminals today. During scanning, I was scolded for taking
photographs by the people running the process. Then
I had my film confiscated from me. . . .
[C]an we please not treat already-struggling, innercity teenagers who have gotten themselves to school
like they’ve committed a crime?
Curtis High School
On December 14, 2006 NYCLU and ACLU investigators had an
opportunity to observe the deployment of roving metal detectors
first-hand at Curtis High School, a school with nearly 2,700 students in Staten Island. This site visit was conducted with permission from the school principal and the Chancellor’s press office.
Approximately twenty NYPD vehicles surrounded the perimeter
of Curtis High School that morning. Metal detectors were set up
in the cafeteria; about sixty officers, both SSAs and full-fledged
NYPD officers, encamped in the cafeteria and swarmed to
areas outside the cafeteria.
All students were required to empty their pockets and take off
their belts before passing through the metal detectors. If a detector beeped as a student passed through it, an officer would
search that student using a handheld wand, requiring the student to lean against a table or wall, spread her legs, hold her
arms out, and lift each foot to be wanded. Officers searched the
bags of every student, confiscating iPods and cell phones (but this
time permitting students to keep their cameras, unlike at
Aviation High School). Officers even confiscated the tongue ring
of one tenth grader; explaining that it could be used as a weapon.
They’re treating us like criminals, like we’re animals.
STUDENT, CURTIS
HIGH SCHOOL, STATEN ISLAND
I’m late and points are getting taken off my grade for this.
CURTIS HIGH SCHOOL, STATEN ISLAND
39
STUDENT,
Biko is a student at Tilden High
School.
Due to a steady barrage of yelling and cursing by the officers,
noise levels in and around the cafeteria were deafening.
Tension filled the room, as students were clearly upset. As one
student sought to avoid the metal detectors by walking toward
the exit, three officers grabbed him and physically pushed him
through, ignoring his attempts to wriggle away and his protests,
“Get off me! I swear!”
Students and faculty alike expressed concern about the metal
detector program’s effects on the atmosphere of the school.
“This is ridiculous,” one student stated during the scan. “This is
so unnecessary. This isn’t a school anymore; this is Rikers.”
Another yelled: “We in prison, guys! We in prison!” Principal
Aurelia Curtis also felt the scan had done more harm than
good. She described the officers as “abrasive” and complained
that they treated students with disrespect. “’No weapons were
found,’” Curtis says. “’The whole tone of the building was disrupted and many students stayed home.’”40 Two-hundred fourteen more students stayed away from Curtis on the day of the
scan than had done so the day before.41
Lab, when Val Lewis, the Assistant Principal for Security,
stopped Biko in the hallway. Worried that he would be late to his
Chemistry Lab, which has a strict attendance requirement, Biko
pleaded with Mr. Lewis to allow him to continue walking to class.
He explained to Mr. Lewis that he had been talking to his math
teacher and was attempting to reach his chemistry class. Mr.
Lewis refused to listen to Biko’s explanation, and told Biko to go
to the “focus room,” the detention center at the school.
As Biko continued to talk with Mr. Lewis, Mr. Lewis grew angry
and threatened to send Biko to the principal’s office. Mr. Lewis
then ordered Officer Rivera, a police officer stationed at the
school, to arrest Biko. Officer Rivera then grabbed Biko and
slammed him against a brick door divider, lacerating Biko’s
face and causing him to bleed. Officer Rivera then sprayed
Mace at Biko’s eyes and face, causing Biko’s eyes to burn.
Rather than treat the student, Officer Rivera then called for
back-up on his radio, and proceeded to handcuff Biko.
At Wadleigh Secondary School, Aviation High School, the
Community School for Social Justice, the Health Opportunities
High School, and Curtis High School, the city’s roving metal detector program and its massive law enforcement squad caused serious disruptions to the learning environment. Even in the absence
of metal detectors, police personnel in schools routinely provoke
needless and indefensible confrontations with children.
After being escorted to the school security office by numerous
police officers and school safety agents, Biko was taken to a
hospital where he spent approximately two hours being treated
for his wounds, and spending most of his time in the hospital
handcuffed to a chair. He was then transported to the local
precinct, and then to central booking. Biko missed the rest of
his classes that day, and spent more than 28 hours in police
custody. He faces five criminal charges. The principal at the
school suspended Biko for four days.
Biko
Aisha
Biko is a seventeen-year-old junior at Samuel J. Tilden High
School. He plays center midfielder for the school soccer team
and is active in school and community activities.
Aisha is a fifteen-year-old tenth grader who attends Samuel J.
Tilden High School. On January 18, 2007, Aisha left a class a few
minutes late with a friend. As the two proceeded to the cafeteria, Assistant Principal Lewis stopped the girls outside the
“focus room” (school detention center), and ordered them
inside. Aisha began to protest, saying that they were not “roaming the halls” but were on their way to lunch. Her friend advised
On the morning of January 12, 2007, Biko chatted for several
minutes with his math teacher after class about additional work
assignments. He then hurried to reach his next class, Chemistry
I’m not used to having my body searched like that.
ROBIN JAMES, HEALTH
OPPORTUNITIES HIGH SCHOOL, BRONX
This is ridiculous. This is so unnecessary. This isn’t a school anymore;
this is Rikers. STUDENT, CURTIS HIGH SCHOOL, STATEN ISLAND
40
15 The Over-Policing of New York City Schools
her to follow Lewis’s instructions. Sergeant Lipscomb, an
armed police officer, stepped in, grabbed Aisha’s book bag, and
ordered her to the focus room.
Although Aisha responded, “That’s where I’m going,” Lipscomb
pushed her. Aisha protested loudly and informed Lipscomb that
she was going to take down his name and badge number. In
response, Lipscomb jerked Aisha’s left arm behind her back at
a painful angle, a jolt which also caused her right hand to slam
against the wall. Aisha cried out in pain.
Students inside the focus room began to protest, saying that the
two girls were just going to lunch. Aisha continued to cry. Mr.
Fannon, a teacher monitoring the focus room, tried to calm her
down. Aisha was forced to go to the dean’s office. There, a
female officer removed Aisha’s jacket and searched her. Officer
Rivera also searched Aisha’s backpack.
Thereafter, Aisha was taken to the police precinct where she
received a summons to appear in family court. The summons
did not indicate any charges against her. Aisha and her mother
returned home that evening to a phone call from Assistant
Principal Lewis apologizing for the incident.
Jimmy
Jimmy is a senior at the New York Harbor School in Bushwick,
Brooklyn. He is frequently on the honor roll, and has had no
encounters with police officers outside of school. In the fall of
2005, Jimmy walked through a metal detector at the school
entrance, set it off, then went to the back of the line to be scanned
again. Jimmy went through the metal detector a second time,
holding his pants up, since he had no belt on. An SSA ordered
Jimmy to remove a wallet from his back pocket. Jimmy complied
by turning over the wallet, but the SSA began yelling and accused
Jimmy of throwing the wallet at him. Jimmy continued walking,
aiming to reach his first-period class, when two other SSAs
grabbed him, handcuffed him, dragged him to a small room used
for disciplining students, and issued him a criminal summons.
Jimmy’s faculty advisor, Noah Heller, arrived at the detention
room along with an assistant principal and the principal and
asked the SSAs if all of the actions taken against Jimmy were
really necessary. In response, an SSA told Heller and his coworkers that they should shut up or be cuffed next. Weeks later,
Jimmy’s case was summarily dismissed in court.
On March 9, 2006, Jimmy was playing basketball in the school
gym. He took a break from the game to put sports equipment
away, but the game ended before he returned to the court. Still
dressed in a short-sleeved basketball shirt, Jimmy needed to
change into his street clothes, which he had left in the gym. As
One Youth Justice Board member
described his experience entering
his school with permanent metal
detectors.
In the morning, we wait in line. We
remove our belts, scarves, and hats.
Three security guards are at the door
with their radios. My pants are sliding off
my waist, and my belt, coat, scarf, and
hat occupy one hand while I swipe my ID
with the other. Just before we approach
the scanners there are two police offi-
he tried to enter the gym, he was stopped and denied entry by
an SSA. Jimmy walked around her, retrieved his clothes from
the bleachers, and came out to find the SSA waiting. He asked
her if she was going to arrest him. She said yes. Other SSAs
arrived, and Jimmy was handcuffed and issued a summons.
When he appeared in court on May 16, 2006, the charges were
again summarily dismissed.
“MM”
MM is a senior at the Bushwick School of Social Justice, a
school with permanent metal detectors. She has no criminal
record and no school disciplinary record. One morning, during
the winter of 2006, MM’s cell phone was confiscated by an SSA
when it was detected by a scanner. MM asked that her phone
be returned. In response, the SSA claimed that MM was threatening her. She and another SSA threw MM to the floor, handcuffed her tightly, and dragged her upstairs to a holding room.
MM was released about an hour later.
Quinn Kronen and Cara Wolfson-Kronen
On March 8, 2005, at least seven NYPD officers arrived at the New
School for Arts and Sciences after teachers called 911 to ask for
medical assistance for a student who had been involved in a fight.
Several teachers had successfully stopped the fight and controlled the situation before the police responded, and Cara
Wolfson-Kronen, a social studies teacher, informed the 911 operator that the fight had been defused. Despite this, one of the officers demanded that the teachers identify the students who had
been involved in the fight and said that they would be handcuffed.
Quinn Kronen, an English teacher, pointed out that those students were now peacefully sitting in the classroom. Officer
Bowen responded by yelling: “You fucking teachers need to get
your shit together. These kids are running crazy. You need to get
rid of them.” When Mr. Kronen objected to such language,
Sergeant Walter told Mr. Kronen that he had “better shut the fuck
up” or she would arrest him. When Ms. Wolfson-Kronen objected, Sergeant Walter said: “That is it; cuff the bitch.” Officers
arrested Ms. Wolfson-Kronen, paraded her out of school in
handcuffs and forced her to stand outside in sub-freezing temperature without a jacket. They also arrested Mr. Kronen.
The teachers were detained at the 41st Precinct for approximately two hours before being released. The charges against
them — disorderly conduct — were dismissed at their initial
court hearing, because their alleged wrongdoing did not constitute unlawful activity.
On March 22, 2005, Mr. Kronen and Ms. Wolfson-Kronen
cers standing with their hands on their
guns. After I place my things on the baggage scanner I walk through the metal
detector (with a sigh of relief that I completed my high school entry within 45
minutes). The police officer and school
safety agent observing the metal detectors yell at me, “You! Go get scanned!”
My heart races, not knowing why I am
being singled out. The police presence
gets stronger as I walk to where my body
gets completely searched with “the
wand.” The school safety agent grabs my
41
hands and extends them and places his
right foot between my legs and spread
them as he passes the wand across my
body. The wand beeps near my left pocket. The school safety agent signals nearby police officers as he grabs the external portion of the jeans and commands
me to remove the object. As I pull the
object – a forgotten pen with a metal cap
– the school safety agent watches closely. He realizes that it’s just a pen and calls
off the surrounding police officers. I can
finally go to my first class.
CRIMINALIZING THE CLASSROOM 16
received an anonymous letter signed by “The Brotherhood.”
The letter threatened them with physical harm for “messing up
with our fellow officers” continuing: “[i]f I were you I’d be planning my getting out of New York fast.” The teachers turned the
letter over to a police officer. The Civilian Complaint Review
Board and the Internal Affairs Bureau of the NYPD did not reach
any conclusions or resolution.
Survey and Interview Results
These episodes – and many other similar ones – prompted the
NYCLU to look closely at police conduct and policies in the New
York City Schools and their impact on the educational environments within the schools. As part of that inquiry, the NYCLU
conducted a survey of over 1,000 high school students at schools
with permanent metal detectors; interviewed students, teachers, school administrators, families, former BOE members, former DOE officials, United Federation of Teachers officials, and
NYPD officers; and observed the City’s roving metal detector
program and its massive law enforcement squad in action.
Survey participants and interviewees expressed serious concern that the following particular problems with over-policing,
discussed more fully below, undermine the educational missions of schools:
A. Derogatory, discriminatory, and abusive
comments and conduct;
B. Intrusive searches and confiscation of personal
items;
C. Intrusions on instructional time;
D. Arrests for minor non-criminal violations of
school rules; and
E. Retaliatory arrests of educators questioning the
NYPD’s treatment of students.
A.
Derogatory, Discriminatory, and Abusive
Comments and Conduct
reported that SSAs “are discriminatory toward homosexuals.” He
explained: “When it’s time for me to get scanned, the male security guards flip a coin to see who has to scan me. They don’t do this
to anyone else because I see when they scan other males.”
Educators worry that students suffer physical abuse at the hands
of police personnel in schools. A school aide at Paul Robeson
High School witnessed a Sergeant yell at, push, and then physically assault a child who would not turn over his cell phone. The
Sergeant hit the child in the jaw, wrestled him to the ground,
handcuffed him, removed him from school premises, and confined him at the local precinct. The school aide who witnessed
this abuse wanted to take action, but, like many faculty and staff,
did not know how to report the incident.
On November 3, 2006, seven students from LaGuardia High
School protested across the street from the school on behalf of
a classmate who had been arrested for allegedly pulling a fire
alarm lever. A SSA on school grounds saw the protestors across
the street and began to yell at them, and then crossed the
street, grabbed one 16-year-old student by his collar, called
him “a little shit,” and dragged him across the street and into
the school building.
B.
Intrusive Searches and Confiscation of Personal Items
Many students enter school with – or avoid school because of –
fear that officers will subject them to intrusive searches and
confiscate their personal items. Each morning at schools with
permanent metal detectors, SSAs order students to remove
their belts and other articles of clothing. Regularly, students
must walk into school holding up their pants, and officers order
students to lift their shirts. Fifty-eight percent of students surveyed reported that they have taken off and/or lifted up clothing
to enter school. Ninety-six percent of students surveyed reported that they have had to remove their belt or shoes to pass
through the metal detectors. At Evander Childs High School,
students reported that they frequently were required to remove
even their socks before passing through the metal detectors.
Students report that police personnel in their schools are deliberately disrespectful and verbally abusive. Fifty-three percent of
students surveyed reported that officers have spoken with them
in a way that made them feel uncomfortable. Countless students
reported that SSAs and police officers curse at them, scream at
them, treat them like criminals, and are “on power trips.” At
Martin Luther King Jr. High School, one student reported, SSAs
refer to students as “baby Rikers,” implying that they are convicts-in-waiting. At Louis D. Brandeis High School, SSAs degrade
students with comments like, “That girl has no ass.” Students
and educators alike reported that officers in schools are too hostile and aggressive, yelling at students and treating them with
disrespect, even when the students have done nothing wrong.
Students report that “the police like to put their hands on kids
without reason,” and that officers in schools are “perverts.”
Twenty-seven percent of students surveyed reported that officers touched or treated them in a way that made them feel
uncomfortable.
Students also reported discriminatory conduct by police personnel who stigmatize and harass gay, lesbian, bisexual, and transgender students. At one high school, the only openly gay student
Girls are particularly targeted for intrusive searches and inappropriate sexual attention. Girls whose under-wire bras set off
metal detectors must lift up their shirts so SSAs can verify that
Ilya Arbit, 17, reported an incident with school security in an article published in the Gotham Gazette
in December 2006.
My school dean and a stern male security guard escorted my friend and me to an
empty classroom near the dean’s office,
then ordered us to put our bags against
the wall and stand in the middle of the
After students pass through the metal detectors, officers frequently subject them to pat downs and frisks, and search their
pockets and backpacks. Fifty-three percent of students surveyed reported that officers had frisked them and searched their
pockets at the metal detectors. Seventy-six percent of students
surveyed reported that officers had searched their backpacks.
room. The dean checked our bags, opening every pocket, looking through my
folders, checking my wallet and cell
phone. The guard asked us to turn out
our pockets. Then he frisked us. That was
the first time I was ever frisked. It felt like
I was under arrest and they were about
to read me my rights.
But the dean said they would let us go,
42
since they didn’t find anything, but they
would still tell our parents what we had
done. What we had done was retrieve my
schoolbag bag from my friend’s car, a
block from the school, immediately after
gym class – returning to school on time,
but a few moments after everybody else.
I do not even go to an Impact school, and
yet I was made to feel like a criminal.
17 The Over-Policing of New York City Schools
they are not concealing metal objects. Multiple girls reported
that officers ordered them to unbuckle and/or unzip their pants
for the purpose of verifying that the students were not concealing cell phones. At Evander Childs High School, students
reported being patted down by officers of a different sex. One
high school student testified at a public meeting in February
2005 that girls at her school were routinely searched by male
officers, in violation of Sections A-432 I(A)(5) and A-432 II(B)(4)
of the Chancellor’s Regulations.
Students and teachers alike complain that male SSAs subject
girls to inappropriate behavior, including flirting and sexual attention. Teachers, principals, and a former DOE official reported that
SSAs are often not much older than the students they supervise
and not firmly instructed about the impropriety of flirting with students. “SSAs have never been seriously told to knock off the attention that they give to the girls,” one former DOE official said. “If
their supervisors just told them, ‘Don’t do it again,’ the SSAs would
probably stop. But there is no reliable mechanism for reporting or
disciplining SSAs involved in that kind of behavior.”42
Even parents seeking entry to schools are not exempt from inappropriate treatment by police personnel at metal detectors. A parent leader at Bronx Guild High School reported that, after her coat
buttons set off a metal detector, she was not offered an opportunity to take off her coat and put it through the scanner. Instead, she
was forced to lean over a table, feet apart and stand still while a
hand-held detector was run between her legs.
Police personnel conduct intrusive searches of students in a purported effort to seize weapons, but instead they confiscate students’ school supplies, personal items, and cell phones.
Principals, teacher and students complain that SSAs often make
up their own rules and prohibit students from bringing in food. The
food is sometimes thrown out or even eaten by SSAs.
With the implementation of the roving metal detector program
in April 2006, students at LaGuardia High School feared their
art supplies would be deemed “dangerous instruments” and
taken away. Their fears were borne out at schools like Aviation
High School, where – as noted above - the engineering tools
seized by the police, such as scales and t-squares, were seized
and never returned to students.
C.
Intrusions On Instructional Time
Over-policing in schools detracts from time that would otherwise
be devoted to learning. Daily, students must wait in long lines to
pass through metal detectors, making them late to class. Eightytwo percent of students surveyed reported that they have been
late to class because of the metal detectors. Thirty-nine percent
of students surveyed reported that they were late between one
and five times in the last month because of the metal detectors;
twenty-two percent of students surveyed reported that they were
late five to ten times in the last month for that reason; and twenty percent of students surveyed reported that they were late ten
or more times in the last month because of the scans.
At Jamaica High School in Queens, students must pass through
metal detectors on several randomly selected days each week.
Police tape closes off some staircases, and students are segregated by gender to ascend the remaining staircases and pass
through metal detectors. JB McGeever, an English teacher at the
school, reports that on scanning days students may arrive late to
classes through the third period because of lines for the metal
detectors. Scanning has even made students late for final exams.
At Evander Childs High School, students reported that they
receive detention for being late to class, even if lines at the
metal detector are the cause of such tardiness.
At many schools, some SSAs refuse to allow children who
arrive late to pass through the metal detectors at all. These students are forced to sit at the door for hours, hoping that a
teacher will intervene, direct the SSA to scan the students, and
allow them to attend class. This practice results in students
missing significant instructional time.
Although principals and teachers try to work with SSAs to prevent metal detectors from interfering with classes, tests and
extra-curricular activities, their requests often fall on deaf ears.
For example, in November 2005, two students who arrived late
at Pablo Neruda High School with the principal’s knowledge
were not permitted to enter the school building. They were
called “criminals” by the waiting SSAs and were told to enter
the building through the back entrance, which was closed.
When the students asked the SSAs to inform their principal that
they had arrived at school, the SSAs refused. Even when a
teacher attempted to intervene on the students’ behalf, the
SSAs threatened to write up the students as truants. These students were finally permitted to enter the building two hours
after they arrived at school.
Whitney, the 2006 valedictorian at Paul Robeson High School,
reported that she and the other students in her Advanced
Placement (AP) Calculus class were asked by their teacher to
come into school early—at 7:00 a.m.—so that they could have
breakfast together as a class before taking the AP exam. Their
teacher, who was providing breakfast, instructed the SSAs to let
the students enter the school early. When the class arrived and
attempted to enter their school building, the SSAs refused to
open the doors. The students waited nearly an hour before
being admitted. They then rushed through breakfast and took
the three-hour AP exam feeling more stressed and nervous as
a result of the SSAs’ conduct.
D.
Arrests of Students for Minor Non-Criminal Violations of
School Rules
“‘One thing you never want is to have the breaking of a school
rule resulting in an arrest,’”43 says William C. Thompson, Jr.,
now the New York City Comptroller, who, as former President
of the BOE, voted to transfer school safety control to the NYPD.
Unfortunately, the breaking of school rules frequently results in
children being handcuffed, arrested, and hauled off to
precincts, undermining any semblance of a nurturing educational environment in schools and deflating students’ self-confidence and engagement in school.
The arrest of Wadleigh Secondary School student Carlos, who
Anybody who leaves the line will be arrested. Anybody who refuses to
turn over their cell phone will be arrested. SCHOOL SAFETY AGENT, WADLEIGH
HIGH SCHOOL, MANHATTAN
43
CRIMINALIZING THE CLASSROOM 18
was reluctant to turn over his cell phone and requested that the
police officers speak with his mother,44 exemplifies these problems. Because of his arrest Carlos missed school, as he was first
locked in a police cell and then had to appear in Court. “I’ve never
had problems with the cops until they put me in handcuffs,”
Carlos said, reflecting on the incident. “Now I hate them.”
Students, families, and educators agree that officers are targeting
too many students for minor infractions that would be better off
without police intervention. Offenses that once were considered
minor violations of school rules are now treated as violations of
the penal law, resulting in harsher punishments for students.
Fighting in the hallway is classified as assault; swiping a classmate’s pencil case can be classified as a property crime; and talking back to an SSA or being late to class is disorderly conduct.
Principals frequently butt heads with police personnel over
whether students should be arrested for minor misconduct.
One principal, who acknowledged that sometimes cuffing a
student is necessary, stated that often police personnel needle
students into confrontations. “A special education student may
need to be handcuffed to restrain him from hurting himself and
others,” the principal said. “But that’s categorically different
from goading a kid into a confrontation and then cuffing him.”45
The city refuses to disclose the number of arrests that take place
in schools, and the NYPD refuses to make the numbers publicly
available.46 It has been reported that the Department of Probation
has begun an informal internal tally of the number of schoolbased delinquency cases, but the Department refuses to discuss
these numbers publicly.47 A DOE spokesman once commented:
“‘We don’t arrest kids, so we don’t track those numbers.’”48
Undocumented immigrant youth in city schools are particularly
fearful of being arrested in school. A report published by Desis
Rising Up and Moving (DRUM), a New York City communitybased organization that advocates on behalf of South Asian
immigrants, documents that thousands of undocumented immigrant youth in city schools fear that “if the police ask for their
identification and find out they don’t have papers or if they get
picked up by cops for any reason at all, including being late, being
in the hallway, or for just ‘looking suspicious,’ they could ultimately be detained in immigration detention and deported.”49
E.
Retaliatory Arrests Of Educators Questioning the NYPD’s
Treatment of Students
When educators act to protect students from abuse at the hands
of police personnel, officers too often retaliate against educators
by arresting them. As discussed above, in March 2005, Quinn
Kronen and Cara Wolfson-Kronen, the teachers at the New
School, were arrested without justification when they spoke out
against police misconduct. This incident is not an aberration.
Urban Assembly Academy of History and
Citizenship, October 200650
Students and staff yelled, “He’s a teacher, he’s a teacher.”
Another officer then grabbed Mr. Deveaux from behind and
slammed him onto the sidewalk, where his head hit the pavement, causing injury. While face down on the pavement, Mr.
Deveaux was handcuffed in front of onlooking children. Officers
searched his pockets and confiscated his wallet, house keys,
and school keys; his identification and keys were never returned.
The officers then hauled Mr. Deveaux to the police precinct,
where he was charged with assaulting a police officer, resisting
arrest, and obstructing governmental administration. Mr.
Deveaux denies these charges, since he did not assault the
police, nor did he resist arrest or obstruct justice. He simply
arrived on the scene in order to calm a situation that the police
then escalated. If the police had acted rationally and taken the
time to identify the educators at the scene, the situation could
have been resolved.
Donald Vogelman, Mr. Deveaux’s attorney, states, “Unfortunately,
the officers merely wanted to assert their power. This is an example of how the police do not work with educators, but have the
holier-than-thou attitude. By merely inquiring why an officer is
manhandling a student, a teacher can be charged with
obstructing justice and subject to unreasonable force and
arrest by the police.”
Bronx Guild High School, February 2005
On February 3, 2005, a principal and a school aide were arrested at Bronx Guild High School51 as a result of their attempts to
shield a student from an overzealous SSA, Officer Juan
Gonzalez. Officer Gonzalez barged into a classroom to arrest a
student for cursing in the hallway. The officer sought to effectuate the arrest without first consulting the principal, Michael
Soguero, in violation of the Chancellor’s Regulations.52 When
Principal Soguero reached the classroom, he asked Officer
Gonzalez to leave, but the officer instead tried to grab the student. When Principal Soguero physically intervened to protect
the student, Officer Gonzalez arrested him in front of a full
classroom of students. James Burgos, a school aide who tried
to help the principal, and the student were also arrested.
Principal Michael Soguero and the school aide spent the night in
jail. The student spent two nights in jail. Criminal charges were
pressed against all three. Principal Soguero and Mr. Burgos
were removed from their positions at Bronx Guild and were not
allowed back until the charges were finally dropped over two
months later on April 13. The student was “encouraged” to
transfer to a different school but missed school for several
months because she could not get a new school placement.
“Using profanity, I’m not supposed to suspend a child for that,”
Principal Soguero said later. “Yet an officer can issue a summons
for that and even put a child in cuffs and call it disorderly conduct.”53 Former City Council Member Eva Moskowitz, who served
as Chair of the City Council Education Committee, commented:
The arrest of Principal Michael Soguero highlights a
fundamental lack of coordination and communication
between school leadership, school safety agents, and
school-assigned police officers. . . . [I]t is clear the
Department of Education has not adequately
addressed the need for formal guidelines and training
to define the relationship between school administrators and school safety personnel. As a result, administrators and school safety are at best not working collaboratively. At worst, arrests are being made.54
On October 30, 2006, at approximately 3:00 p.m., Mr. Adhim
Deveaux, a math teacher at the Urban Assembly Academy of
History and Citizenship, received a phone call reporting that one
of his students was being assaulted on 170th St. and Sheridan
Avenue, right outside the school. Mr. Deveaux and other staff
members rushed to the scene in order to protect the student.
When Mr. Deveaux saw a police officer slam a student onto a
car, Mr. Deveaux approached the officer, explaining, “He’s my
student, I’m his teacher. He’s just a kid.”
In response, the police officer hit and then shoved Mr. Deveaux.
44
V. THE CITY’S CLAIM OF CRIME PREVENTION
The Bloomberg administration claims that increased policing
in schools is responsible for a significant decline in school
crime. But the National Center for Schools and Communities at
Fordham University shows that such claims are inflated:
Although the DOE reports declines as large as 59 percent for major crime incidents and 33 percent for all
crime at the Impact Schools, the numbers on which
these percentages are based are so low that even very
small numerical decreases create large percentage
changes. For example, at Christopher Columbus High
School behavior officially classed as violent crime
decreased from 17 incidents during the 2004-2005
school year to 10 during the 2005-2006 school year,
which represented a 41 percent decline on paper, but
only a small decrease in actual incidents.55
New York University educational analyst Deinya Phenix provides
further support for the conclusion that the Bloomberg administration’s claims about decreases in school crime are misleading. Regression analysis reveals that the decline in crime figures
at Impact Schools is not statistically significant compared to
simultaneous declines at other high schools. Crime in schools
had been declining for years before the Impact Schools program; proving, Phenix contends, that “the most important factor
in the decrease in school crime is the passage of time.”56
Despite the Bloomberg administration’s willingness to exaggerate small drops in school crime statistics, city officials routinely
downplay statistics that show a rise in school crime. Data
recently released by the Mayor’s Office show that major crime in
city schools increased by 21 percent from July through October
of 2006 compared with the same period in 2005.57 Although city
officials virtually ignored the data,58 a close examination of the
numbers is worthwhile. The rise in major crime incidents was
driven by an increase in grand larceny, typically theft, without
threat or force, of items worth more than $ 1,000, such as laptops or credit cards. The 197 incidents of grand larceny which
occurred from July through October 2006 — and which caused
the rise in major crimes59— could not have been prevented or
deterred by policing practices that rely on metal detectors.
plausible. From April 2006 to December 15, 2006, NYPD personnel confiscated 17,351 items from students through the roving
program.60 Over 70 percent of those items were cell phones, 29
percent were iPods and other electronic equipment, and a tiny
percentage of those items — .3 percent — were classified as
“dangerous instruments,” a category which can include pipes,
scissors, t-squares, scales, and other school supplies. Another
tiny percentage of those items — .7 percent — were classified as
weapons, a category which can include knives and box cutters.
Not a single gun was found. This means that despite all the
chaos, lost class time, and harassment that students suffer
from the roving metal detector program, 99 percent of items
seized by the NYPD as a result of that program pose no conceivable threat to school safety.
Education experts worry about the message that policing in
schools sends to New York City students. Pedro A. Noguera, a
professor at New York University’s Steinhardt School of
Education, recognizes that safety is a paramount concern in
schools, but concludes that over-policing may create as many
problems as it tries to solve. Noguera explains: “Schools that
rely on security guards and metal detectors to create safety
may end up creating an environment that is so repressive that
it is no longer conducive to learning.”61
Several members of the BOE who voted for the NYPD school
safety takeover in September 1998 have since come to regret
their decision. BOE member Irving Hamer says that he regrets
his vote and hates that he was part of a process that has resulted in the criminalization of school children, particularly children
of color.62 “I couldn’t then and still can’t understand why you
would have an armed police officer with mace and a firearm and
clubs and handcuffs in an already safe school,” Hamer says.
“There were some schools that were indeed troubled, but not all
schools. I did not and do not understand the lack of differentiation between schools with needs and those without.”63
Another BOE member, who asked to remain anonymous, states
the following about the transfer of responsibility for school safety from the BOE to the NYPD:
The ten years since the transfer to the NYPD have confirmed all my fears. I never felt that a school should
have armed police officers patrolling it. Schools are not
penitentiaries. It bothers me to see a nine-millimeter
gun strapped around the waist of an adult in school,
and it’s more than bothering to children.64
Indeed, any claims that the city makes about the NYPD roving
metal detector program increasing school safety are hardly
Principals are supposed to be in charge of the schools and should make rules
and run the school. Now every school is being invaded by the police. Everyone
including the teachers’ privacy are being invaded. I think the school should go
back to the old way and the principals should get control back of the school.
JESSE CREWS, FLUSHING HIGH SCHOOL, QUEENS
45
CRIMINALIZING THE CLASSROOM 20
VI. WHO SUFFERS?
All students are not equally likely to bear the brunt of over-policing in New York City schools. The burden falls primarily on the
schools with permanent metal detectors, which are attended by
the city’s most vulnerable children. The students attending
these high schools are disproportionately poor, Black, and
Latino compared to citywide averages, and they are more often
confronted by police personnel in school for “non-criminal” incidents than their peers citywide. These children receive grossly
less per-pupil funding on direct educational services than city
averages. Their schools are often large and overcrowded and
have unusually high suspension and drop-out rates.
A.
High Poverty Concentration
High schools with permanent metal detectors have more students living in poverty than schools without permanent metal
detectors. Students are considered poor if they qualify for free
lunch at school, meaning that their families earn less than 130
percent of the federal poverty level. During the 2004-2005
school year, poor students constituted 59 percent of children
attending high schools with permanent metal detectors but
only 51 percent of high school students citywide.65
C.
Criminalization of Non-Criminal Incidents
For each school, the DOE’s Annual School Report records the
number of “criminal” and “non-criminal” incidents in which
NYPD personnel are involved (although the report does not
meaningfully define these terms). In schools with permanent
metal detectors, the vast majority of incidents in which the
NYPD is involved are classified as non-criminal. In fact, 77 percent of police personnel interventions in such schools are noncriminal incidents.67
Police personnel are far more likely to be involved in non-criminal incidents at high schools with permanent metal detectors
than at the average city high school. In fact, the police get
involved in more than twice as many non-criminal incidents at
schools with permanent metal detectors than at a typical similarly-sized schools.68 These numbers show that students
attending schools with permanent metal detectors are subject
to increased criminalization for “non-criminal” incidents when
compared to their peers citywide.
B.
Disproportionate Impact on Children of Color
Children of color are disproportionately subjected to metal
detector searches. During the 2004-2005 school year, 82 percent of children attending high schools with permanent metal
detectors were Black and Latino, a minority enrollment rate
eleven percentage points higher than in schools citywide.66
46
21 The Over-Policing of New York City Schools
Librarians and books are in short supply at schools with permanent metal detectors. Available data shows that only 53 percent
of schools with permanent metal detectors have librarians,
while 73 percent of high schools citywide have librarians.73
Marlessa Lee, then a seventeen-year-old junior at DeWitt
Clinton High School, worried that the city prioritizes policing
over academics. Lee told the New York Times: “They have money
for metal detectors, but not for books.”74 At DeWitt, the largest
high school with permanent metal detectors in the city, there
are 4,511 students and not one school librarian.75
D.
Gross Under Funding of Education
Children attending high schools with permanent metal detectors receive grossly under-funded educations. In 2003, the New
York Court of Appeals ruled that New York City public schools
lack the necessary funding to provide a meaningful high school
education to students.69 In 2006, the State of New York was
ordered to pay New York City billions of dollars to make up for
shortfalls in educational funding.70
Even in comparison with children attending the average underfunded New York City high school, children at high schools with
permanent metal detectors receive substantially less funding
for direct services, which “include all services provided by the
school to support teaching and learning, including classroom
instruction, parent involvement, school safety, and building
maintenance.”71
In the 2003-2004 school year, the city spent an average of $9,601.87
on the education of a child at a high school with permanent metal
detectors, compared with a citywide average of $11,282.72 This
means that students at high schools with permanent metal
detectors benefited from only 85 percent of the direct services
funding that the average student citywide received. For students at the largest high schools with permanent metal detectors, the funding shortfall was even starker. A child at a high
school with more than 3,000 students and daily metal detector
scans received $8,066 of funding, equivalent to 71 percent of the
citywide average.
47
Students at the Impact Schools suffer from particularly acute
shortfalls in educational resources. In the year before the Impact
Schools program began, the 26 schools targeted by the program
spent, on average, $191 per pupil on textbooks, library books,
and librarians combined.76 By the 2004-2005 school year, that
expenditure at the Impact Schools had fallen 5 percent, to $180
per pupil.77 During the same period, citywide per-pupil spending
on textbooks, library books, and librarians rose by 12.5 percent,
reaching $198 per pupil in 2004-2005.78 Thus, while the Impact
Schools program flooded the schools with an increased police
presence and harsher disciplinary measures, these schools lost
educational resources both relatively and absolutely.
In his 2007 State of the City address, Mayor Bloomberg
announced his intention to overhaul the school funding system
so that schools would be funded based on pupils’ needs.79 If
properly implemented, such reforms can result in substantially increased funding for Impact schools and other schools with
permanent metal detectors. In the meantime, the money wasted on improper use of security can and must be put to better
use if city students are to receive the education they deserve.
D.
Large and Overcrowded
The New York City school system as a whole is overcrowded.
But high school buildings with permanent metal detectors are
among the largest and most overcrowded in the city. Eight
schools with permanent metal detectors serve more than 3,000
children, and two serve more than 4,400 children.80
The number of students enrolled citywide is 6 percent higher
than the number that the city has the physical capacity to educate.81 However, overcrowding is an even more serious problem
at high schools with permanent metal detectors, where there
are 18 percent more children than seats.82
CRIMINALIZING THE CLASSROOM 22
F.
Drop-Out Factories
Most high schools with permanent metal detectors have high
drop-out rates. Robert Balfanz of Johns Hopkins University
defines a “drop-out factory” as a school where fewer than 60
percent of ninth graders are still enrolled in twelfth grade,
regardless of whether or not they receive diplomas. According
to Daniel Losen, a senior policy analyst at The Civil Rights
Project at Harvard University, “[i]f all of the ninth graders [at
such schools] showed up in twelfth grade, the schools would
fall under their weight.” 85
Even based on the city’s inflated reports of graduation rates,86
available data shows that the vast majority of high schools with
permanent metal detectors — 70 percent — qualify as dropout factories.87
E.
Disproportionately High Suspension Rates
High schools with permanent metal detectors suspend children at far higher rates than similarly situated schools, even
after controlling for variables such as the proportion of English
language learners, students over-age for grade, attendance
rates, and standardized test scores.83 Overall, high schools with
permanent metal detectors issued 48 percent more suspensions than similar schools.84
48
23 The Over-Policing of New York City Schools
STUDENTS TAKING CHARGE:
Four Students Working to Change the Policing Regime in their Schools
Denise Melendez
Grade 10
Franklin K. Lane High School, Brooklyn
Denise Melendez, 16, is an activist and a student at Franklin K. Lane School in Brooklyn. “What got me
involved in this work was the harassment by security guards,” Melendez says. “It happened to me once. I was
walking down the hallway and they asked for a pass. I pulled the pass out slowly so they thought I had drugs
or something on me. So they took to the Deans Office and patted me down. I felt really violated. [Another
time] my friend was singing a song by Tupac. In the lyrics they say ’I wish I had a gun.’ They strip searched
him down to his boxers for singing this. And he got suspended for three days for that. I got really mad about
that as well.” In search of change, Melendez joined a community organization called Future of Tomorrow
(FOT). “When I heard FOT was doing campaigns to stop bad things in schools and fight for changes, I wanted to get involved,” Melendez says. We met with the principal about the harassment. It’s helping to make the
school better. We also had a town hall meeting with elected officials. They took us really seriously and that
helped us to get more attention on this issue.”
Adilka Pimentel
Grade 12
Bushwick School for Social Justice, Brooklyn
Seventeen-year-old Adilka Pimentel is an active member of the community organization Make the Road by
Walking and a leader in the movement to pass a Bill of Rights for New York City students. Pimentel decided
to get involved in that movement, she says, after witnessing several incidents of harassment by school safety agents, including one incident in which a student was placed in handcuffs for wearing a hat in school. “We
thought of the things that were being deprived to us students and thought of ways to fix them,” Pimentel
says. “I decided to do this because I am a senior and even though I graduate this year I wish that I would have
had the things that the Bill proposes back when I was in younger grades. I would like my younger siblings to
be able to enjoy an engaging curriculum and to be able to attend a school without a hostile environment. This
is important to the youth because we experience it first hand … My plans are to propose the bill to the mayor
and the chancellor and gain student and staff and even principal support and keep fighting until they pass
the bill of rights.”
Elizabeth Vincent
Grade 11
John F. Kennedy High School, Bronx
Elizabeth Vincent, 17, wakes up early every morning in order to arrive 45 minutes early at John F. Kennedy
High School in the Bronx so that she can be scanned without being late to class. “When I get on line, the line
is very long,” Vincent says. “It's annoying the way they scan us. … They treat us like just because we're young,
we're nothing. It's uncomfortable when they wand you all over your body. They think you have something on
your body that might be a danger to your school, but even if you don't, they treat you like that and it's very
uncomfortable. Sometimes I come early, but I have to wait on line so long that I am late for class. … They
have to come up with another way to make the school feel safe but not feel like a prison. Adult mediators
could help us figure out how to deal with conflicts, together as youth and adults, and then youth would not
be treated as prisoners.”
Maksuda Khandaker
Hillcrest High School
As a student at Hillcrest High School, Maksuda Khandaker often found himself without a desk. But there was
always enough money for policing. This distortion of priorities, Khandaker says, drove him to get involved,
through the community organization DRUM (Desis Rising Up and Moving), in a student movement to change
the way school safety works. “By replacing the school officers in our schools with mediators, they can solve
the root cause of violence in the schools,” Khandaker says. “Mediators can help students that cause this violence by talking with them one on one and finding solutions to their issues. However, with police officers
present in our schools, we're not making our schools safer; we're just adding more violence to it. Because
the police officers are not trained to work with students. Instead, they are trained to work with criminals. We
are the future generation, we will be the ones supporting this nation, so why are we treated as criminals?
Why are we locked up in our school? In South Asia, it is said that schools are a temple of knowledge. So what
about America--should we have to say that schools are prisons for criminals?”
49
CRIMINALIZING THE CLASSROOM 24
JULIA RICHMAN:
A Model for Successful and Respectful School Safety
By the early 1990s, Julia Richman High
School (JRHS) was the definition of a failing school. With an official enrollment of
about 2,400 students — primarily lowincome students of color — the school
had a 66% attendance rate and a 36.9%
graduation rate.
Freshman classes included 800 students. In 1996, the school’s final year, only
200 students participated in graduation
ceremonies; of those, only 10 received
diplomas.
The high school was a dilapidated building that looked and felt like a prison.
Students passed through metal detectors
every day, often not clearing the line until
ten or eleven o’clock. All students, even
those known to the School Safety Agents
assigned to the school (of which there
were over a dozen), needed identification
cards to enter the building. Students without IDs were routinely sent home.
Despite such measures, fights were common and guns often found their way onto
school grounds. The school was so infamous that nearby shop owners locked up
their stores during the day, admitting customers only by buzzing them in.
Recognizing JRHS as the worst high
school in Manhattan, the Board of
Education decided to close the school
and invited the Coalition for Essential
Schools to develop a plan to redesign it.
That plan called for the gradual phasingout of the old Julia Richman High School
and its replacement by a newly developed Julia Richman Educational
Complex (JREC). The new complex
would include six small schools, four of
them high schools.
The overhaul produced a model for
extremely successful school reconfiguration. Today, the six schools occupying
the building serve the same population
of students – but many more of them
come every day, and many more of them
graduate. The daily attendance rate is
91% and the graduation rate is 90%. 91%
of graduating students go to college.
Not surprisingly, the redesign included
an impressive shift in school safety
methods. The educational leadership of
the new complex refused to allow metal
detectors or scanners to be installed at
the school; instead, they proposed an
alternative security plan. Each of the
small schools would be responsible for
knowing and supervising its own students, and a small contingent of eight
school safety agents would work collaboratively with the educators to facilitate
the educational atmosphere of the
school. The school safety agents’ primary
responsibility would be to protect the
school from outside intruders. No NYPD
officers would be assigned to the school.
In the 2006-2007 school year, SSAs
reported only four fights on school
grounds – none of which involved a
weapon more dangerous than thrown
fruit. As of February 2007, the local NYPD
precinct had been involved in school matters only twice during the school year.
Educators and advocates attribute JREC’s
safety success to four main factors: educators’ control over the enforcement of
school rules; the restriction of school
safety actions to legitimate safety concerns; the mutual respect, collaboration
and constant communication between
the educational leadership of the school
and school safety; and the training of
SSAs for the school environment.
At JREC, educators, not SSAs or NYPD
officers, enforce the rules of the various
schools housed in the facility. Students
who arrive late are never stopped by
SSAs; instead, tardy students check in at
their school’s office and receive a late
pass. “Lateness, that’s not a security
problem,” one SSA says. “If you’re here, I
want you to come in.”
While SSAs from time to time intercept a
student returning from an unauthorized
trip off school grounds for lunch, any
resulting discipline is the responsibility of
school administrators, not SSAs. SSAs
also identify disputes among students
and are trained to intervene early to
defuse a situation before it can escalate.
They typically escort any student involved
in a fight on or near school grounds to the
school principal. In this way, JREC SSAs
have successfully protected the safety
and well-being of the school community,
prevented violence, and enhanced the
educational environment of the school.
According to several educators, the
training and leadership of the supervis-
50
ing SSA is key to the school’s outstanding safety record. A holdover from the old
JRHS era, that SSA nonetheless grew to
appreciate the philosophy of the new
school and maintained a close rapport
with students. She knows all the students’ names and clearly cares about
them. She believes that “kids do stupid
stuff all the time,” and that it is the
responsibility of school safety to help
them survive the foolishness of youth –
rather than having their lives defined by
it. “These are somebody’s children,” she
says, “Once they get a record, that’s it.”
Over the years, the supervising SSA has
effectively transmitted to her staff that
same individualized approach to gaining
students’ trust and respect. The high
regard that students have for the school
safety staff at JREC helps them to anticipate and defuse potential conflict.
Students will often inform school safety
when they learn of a fight in the offing
and will ask them to intervene. SSAs
from the school often appear on street
corners and in nearby subway stations at
the request of students in order to talk
with them and escort them back to
school to work things out peacefully.
Once back at school, students have
enough confidence in the SSAs that,
according to one SSA, eventually “they
spill it all,” explaining the reason for the
fight and who was involved.
JREC SSAs’ close relationship with students helps ensure the continued safety
of their school. Relations between
school safety personnel and educators
are built on mutual trust and respect.
Regular meetings with all six of the facility’s principals and regular daily checkins with the building manager are supplemented with ongoing conversations
and joint problem-solving by SSAs and
the educational staff. SSAs are fully integrated into the JREC community.
Administrators at JREC recognize that
the SSAs at their school — their genuine
caring and respect for students and faculty and their collaborative approach to
school safety — are a rarity within the
School Safety Division. They hope, however, that their approach can serve as a
model for the productive enforcement of
both safety and positive learning environments in New York City high schools.
the Miami-Dade Public Schools, and the Clark County School
District in Nevada – respectively, the second, fourth, and sixth
largest school districts in the country – the school police departments report to, and are supervised by, educators. Appendix B
elaborates on these models.
2. Establish clear rules of governance that allow educators,
rather than police personnel, to make the final decisions
regarding discipline in schools.
Educators, generally, and principals, specifically, should regain
authority of their schools’ environments. Barring exigent circumstances, school discipline decisions should be made by
educators, not police personnel, since it is crucial that school
discipline decisions take place within the context of a school’s
overall educational mission.
VII. RECOMMENDATIONS FOR
NEW YORK CITY
A. Restore educators’ authority over school discipline.
1. Bring New York City’s school policing program in line
with the nation’s other large school districts by restoring
control over school safety to educators.
The New York City Board of Education erred when it transferred
school safety responsibility to the NYPD in September 1998.
NYPD control of school safety is undermining the education that
city children receive each day. Educators, not police personnel,
should make decisions about school discipline and should control school safety. Currently, educators are denied that authority. The result is the host of problems detailed in this report.
Interviews with teachers, principals, former BOE members,
and a former DOE official revealed that many individuals familiar with policing practices in city schools believe that the solution is to restore control over school safety to educators.
Former BOE member Irving Hamer states:
Teachers and principals and counselors have experience and training to negotiate the lunchroom fight.
But with the NYPD in schools, the lunchroom fight
turns into an arrest and that’s wrong. Every school in
America has a lunchroom fight. I can’t understand
how and where a police officer is going to get the
appropriate experience and training to deal with that.88
Control over the School Safety Division – including the recruitment, training, and management of SSAs – should be transferred to the DOE, which will be able to coordinate educational
goals and safety outcomes in city schools.
Reestablishing the School Safety Division under educators’ control would put New York City in line with large urban school districts across the country which face school safety challenges similar to New York City’s. Of the fifteen largest school districts in the
nation, just three place school safety under the exclusive control
of law enforcement.89 Two of these — Fairfax County, Virginia, and
Orange County, Florida — utilize School Resource Officer (SRO)
models to create a symbiosis between the security officers and
the schools. New York City is alone among the largest districts in
placing in schools police personnel who are neither responsible
to the educational bureaucracy nor specifically trained to “educate, counsel and protect our school communities.”90
In fact, most of the nation’s largest school districts have their
own school police departments under the supervision of a
high-level education administrator, which allows for the prioritization and coordination of both education and safety outcomes. For example, in the Los Angeles Unified School District,
51
The 1998 Memorandum of Understanding between the BOE
and the NYPD affirmed the importance of this principle, stating
that “the imposition of school-based discipline shall continue to
be a pedagogical function exercised by superintendents, principals and other appropriate school personnel . . .”91 But the
same principle is directly contradicted by the NYPD Patrol
Guide, which in the section on “Handcuffing Students Arrested
Within School Facilities” states:
Whether probable cause to arrest exists will be determined by the Police Department. While the desires of
school personnel (principals, teachers, school safety officers, etc.) may be considered by the uniformed
member of the service in determining whether an
arrest is warranted, the views of school personnel
are NOT controlling.92 [Emphasis in original.]
Because NYPD personnel are instructed not to defer to educators, policing handicaps educators’ ability to manage the learning
environment. This policy also encourages school safety agents to
disrespect or ignore the educators and undermines educators’
authority and stature with their students. Unnecessary police
involvement leads to lost class time and erosion of students’
engagement in schools. It leads to the arrest of students for
minor violations of school rules and to the retaliatory arrests of
educators who seek to protect students from abuse by officers.
New York State Education Law clearly establishes principals’
authority over their schools.93 Although the city has developed
some policies governing the conduct of police personnel in
schools,94 the Chancellor’s Regulations and the NYPD Patrol
Guide do not reflect the state legislative mandate or the sound
principle of school governance. These deficiencies and contradictions must be corrected to ensure that educators regain the
ability to create supportive learning environments.
In June 2006 Mayor Bloomberg announced the “Empowerment
Schools” program, inviting nearly a quarter of city school principals to assume greater control over critical decisions in
exchange for being held accountable for educational performance.95 However, these principals lack the authority to make
key decisions regarding the enforcement of school discipline. It
is entirely inconsistent with the notion of principal responsibility and accountability to require them to defer to SSAs.
3. Ensure that principals play a meaningful role in selecting
and evaluating police personnel in their schools.
In the Chicago Public Schools, principals hire part-time law
enforcement officers for their schools.96 These “Safety
Supervisors” report directly to and are evaluated by the princi-
CRIMINALIZING THE CLASSROOM 26
pals of the schools in which they work. In New York City, although
school custodians are not officially employees of school principals, principals play a role in their evaluation and promotion,
which creates incentives for collaboration.97
In New York City, principals play no meaningful role in selecting
and evaluating the police personnel who work in their schools.
The current system is inconsistent with giving principals autonomy. Recently, Chancellor Klein told an audience of business
leaders that principals should become the Chief Executive
Officers of their schools:
No longer will principals be the agent for the bureaucracy in the building, where principals are told what
they need whether they want it or not. I believe that
we need to unleash the creative power of our great
leaders and educators, letting them select the tools
and support they want to meet the needs of the students they serve.98
An important step toward achieving Chancellor Klein’s vision of
principal autonomy is giving each principal meaningful opportunities to select and supervise police personnel assigned to his
or her building.
B. Train police personnel for the special
environment in schools.
The anecdotal evidence described above portrays police personnel behaving with an aggressiveness and belligerency that
is of questionable value on the streets and entirely inappropriate in school hallways. There is no reason children and educators should have to suffer the foul-mouthed invectives, abusive
behavior and summary punishment that, all too often, replace
the decorum and respect to which children and educators are
entitled. Police personnel must be trained to function in accordance with sound educational practices and to respect the differences between the street and the school.
The efficacy of policing in schools depends on students’ perceptions of whether officers are acting in legitimate and fair ways.
Leading social science research shows that strong, positive
relationships between school security officers and students
make schools safer. For example, a 2005 national report, sponsored by the National Institute of Justice, concluded that a “positive opinion” of a school safety officer is the most important variable that affects a student’s propensity to report crime.99Officers
who are viewed in a positive light by the student body are more
capable of obtaining information pertaining to crimes and delinquent acts.100 The quality of interaction between the officers and
the students – as measured by whether students knew officers’
names and engage in conversations with them – is far more
effective than merely placing officers in a school.101 The
researchers concluded, “it is a reasonable expectation for the
[school safety officers] to gain the trust and favorable views of
the students they encounter every day.”102
These conclusions are not novel. In 1999, the Vera Institute for
Justice reported in Approaches to School Safety in America’s
Largest Cities, prepared for the New York State Lieutenant
Governor’s Task Force on School Safety, that “[t]he effectiveness
of security staff appears to depend . . . on how fully integrated
into the school structure officers are and the extent to which they
have trusting relationships with students and staff.”103
The Memorandum of Understanding, which transferred control
over school safety to the NYPD, acknowledged the importance
of respecting the school environment. It required training for
law enforcement personnel working in schools on, among
other issues, “the unique culture, diversity and structure of
such environment.”104 And yet, no publicly available information
suggests that SSAs and police officers receive any training on
working with adolescent populations or minimizing disruptions
to the educational environments.105 Principals and teachers
report that many police personnel show no signs of having
received such training. They are particularly concerned about
the lack of sensitivity that some officers display towards the
needs of special education students.
The city must ensure that police personnel in schools gain
trust and respect from the students they serve daily by providing officers with specialized and adequate training on how to
collaborate with adolescents and educators. Such training
should involve teachers and principals, focus on enhancing the
school climate, and emphasize sensitivity in working with
diverse populations and students with special needs. The
training also should emphasize the importance of earning students’ trust and respect.
In addition, the training should encourage police personnel to
participate in the school community, rather than, in the words of
one teacher, be “brainwashed that they’re not part of the
school.”106 Currently, SSA turnover rates are high, and SSAs who
stay on the job are frequently transferred from one school to the
next – an effort by the NYPD School Safety Division’s to prevent
SSAs from developing inappropriate relationships with students.107 These dual factors contribute to a lack of understanding
of school needs. The School Safety Division should allow its officers to put down roots at a school with proper training about how
to establish friendly, but not sexual, relationships with children.
By establishing long-term relationships with students and educators, security officers will best serve the school community.
C. Limit policing in schools to legitimate security
concerns.
As demonstrated by this report, police personnel often treat
children like criminals, even if they have done nothing wrong.
Such over-policing in schools undermines the nurturing learning environment which educators strive to create and which
children need to learn. Safety officers in schools must focus on
legitimate security concerns. Accordingly, the city should adopt
the following reforms:
1. Police personnel must not handcuff or arrest students for
violating school rules, but should limit their intervention to
criminal activity. Such intervention must be with due regard
to the educational atmosphere of the schools.
Who knows who is in control — the police or the principal?
NYIESHA
SEWELL, FLUSHING HIGH SCHOOL, QUEENS
Building more schools would also be a smart decision in trying to
reduce violence in schools. DENISE LUNA, TOWNSEND HARRIS HIGH SCHOOL, QUEENS
52
27 The Over-Policing of New York City Schools
When a student violates a school rule, by, for example, loitering
in the hallway, that student, under the current regime, may be
arrested for breaking the law. What once clearly resided in the
domain of educators – a violation of the school code – is now
susceptible to police involvement. But police personnel should
not arrest, detain, or otherwise discipline students for minor
violations of school rules. Specifically:
•
Police personnel should not treat school supplies
and sandwiches as contraband.
Police personnel often make up their own rules that allow them
to confiscate students’ school supplies, lunches, and personal
items. Officers must be trained in the rules and required to
apply them uniformly. They should not be given discretion to
treat ordinary items as contraband.
•
Police personnel should not enforce the cell phone ban.
Students and families citywide are frustrated by the cell phone
ban, which is implemented by police personnel who search students and then seize their phones. The city should ensure that
the cell phone ban is not enforced through the heavy hand of the
NYPD. The ban puts every student at risk of being searched by
the NYPD in order to attend school. The policy fails to accommodate the legitimate purposes for which families might want
children to carry phones. In response to the uproar over the cell
phone confiscation policy, the New York City Council
Committees on Education and Public Safety held a hearing on
June 14, 2006, but no policy changes have resulted to date.
•
Police personnel should not search students without
individualized suspicion of wrongdoing.
When the roving metal detector program descends on a middle
school or high school, police personnel search all students
before allowing them to attend class. This practice is unnecessary, results in lost class time, and causes arbitrary interferences into students’ privacy. Absent individualized suspicion,
police personnel should not subject students to searches.
The presence of metal detectors in a school, along with police personnel, may reinforce the climate of fear on campus.113 A report
by the Center for the Study and Prevention of Violence found, “Use
of metal detectors may establish a fear that the school is not safe
because of the necessity of such extreme measures.”114
Metal detectors also serve as a flashpoint for conflicts between
police personnel and students. All too often, students passing
through metal detectors are subjected to derogatory, discriminatory, and abusive comments and conduct, intrusive searches, inappropriate sexual attention, confiscation of personal
items, and other forms of harassment and abuse.
School safety experts strongly advise that school districts do
not haphazardly install metal detectors in school buildings
without first studying the needs of each school community. Bill
Woodward of The Center for the Study and Prevention of
Violence recommends, “Before installing metal detectors, each
school must complete a needs and risk assessment study,
which includes an all-student, all-teacher, and all-parent
questionnaire.”115 He further emphasizes that it is crucial to use
evidence-based practices to determine what actually works in
improving school safety.116 There is no evidence that New York
City is following these thoughtful guidelines before installing
metal detectors in schools.
Metal detectors should not be introduced into any city school
without a review of alternative safety mechanisms, and a factbased determination that less intrusive mechanisms are
unavailable to ensure student safety in the face of a credible danger. Moreover, metal detectors should not be utilized as a longterm or permanent fixture in any school. Whenever introduced,
the need, efficacy, and alternatives should be reviewed regularly.
D. Create accountability mechanisms over policing
in schools.
The City of New York has repeatedly shielded policing in schools
from public scrutiny.
To achieve openness, the city should adopt the following reforms:
Reform of each of the aforementioned police practices is necessary to ensure that police personnel do not undermine the pedagogical mission of schools and subject children to increased
criminalization without cause. Enforcement of school rules is a
matter for school officials. Indeed, the Memorandum of
Understanding authorized police officers and SSAs to be
involved in enforcing rules, regulations, or procedures only in
furtherance of school security.108
When there are grounds for arrest within a school, police personnel must minimize disruption to school activities. Police
personnel must not barge into classrooms unless there is an
emergency that poses immediate health or safety risks,109 and
should avoid unnecessarily parading students and teachers in
handcuffs in school hallways.110
2. The city should reduce the use of permanent metal
detectors and evaluate the needs of each school community before installing metal detectors.
There is no objective evidence that metal detectors are effective
in making schools safe and keeping weapons out of schools.111
School security experts suggest that point-of-entry screenings
are easily evaded,112 and that metal detectors are effective only
where there is no other way to enter a school, such as through
an unlocked door or an open window.
53
1. Expand the jurisdiction of the Civilian Complaint Review
Board to accept complaints regarding school safety agents.
At present, no effective mechanism exists to hold SSAs accountable for inappropriate or abusive behavior in the schools. There
is an urgent need for a clear, meaningful and confidential
process to hold SSAs accountable for wrongdoing. This requires
an expeditious and fair process to adjudicate complaints.
Our investigation into how to file a complaint against an SSA
yielded contradictory and confusing information. As civilian personnel, SSAs are excluded from the jurisdiction of the Civilian
Complaint Review Board (CCRB), the independent body created
in 1993 in response to the chronic unresponsiveness of the
NYPD Internal Affairs Bureau. Thus, complaints against SSAs
are ostensibly received by Internal Affairs itself. This protocol,
however, is not widely known even within city government. 311
operators regularly direct those who try to file complaints
against SSAs to the DOE, which has no authority over them.
No phone number for filing complaints against SSAs is publicized. The phone system at the School Safety Division headquarters prompts a caller to press “1” to register a complaint.
Investigators were placed on hold for twenty minutes, on average, and then directed by an operator to call the School Safety
CRIMINALIZING THE CLASSROOM 28
borough office that covers the school at which the incident
occurred. An Integrity Control Officer within one of these offices
explained that he sends reports of “high-level” violations to
Internal Affairs, which may call on him to investigate or may
conduct an investigation itself.117 The School Safety Division and
Internal Affairs were unresponsive to multiple inquiries for
clarification of the mechanics of the complaint process.118
Internal Affairs also ignored a request for data on the number
of complaints filed against School Safety Agents.119
The CCRB currently handles complaints against schoolassigned police officers. The jurisdiction of the CCRB should be
expanded to accept complaints about SSAs. The City Council
should amend the City Charter to require that the CCRB adjudicate complaints against SSAs. If this change is implemented,
students, families, and educators must be notified, and the
CCRB must create avenues that facilitate the reporting of
school-based incidents.
Based on CCRB complaints about SSAs and school-assigned
police officers, the City should annually report information on
the number and nature of complaints against school-based
police personnel, and a breakdown of such complaints by year,
school, type of allegation, and any other pertinent information
that will allow the public to make an informed evaluation of the
performance of school safety measures.
2. Institute annual reporting requirements for policing activities in schools.
The NYPD has refused to disclose the number of arrests in
schools, the number of summonses issued in schools, and the
number and type of items confiscated in schools. The city
should require the NYPD to report, on an annual basis, (a) how
many children are arrested in school, on what grounds, and
whether the charges were dismissed in court; (b) how many
summonses are issued against children in schools, on what
grounds, and whether the charges were dismissed in court;
and (c) the number and type of items police personnel seize
from schoolchildren.
3. Conduct annual evaluations of school safety practices
and adopt practices with proven success.
cacy of policing in schools which targets vaguely defined student misconduct, using metal detectors and surveillance cameras, and imposing zero-tolerance policies — all policing techniques used in city schools. Experts have concluded that each
of these approaches is ineffective, at best, and detrimental, at
worst, for school safety and education.124 If haphazardly implemented, an increased police presence in schools exacerbates
disorder, impedes educators’ efforts to create a positive school
climate, encourages opposition to school rules, and undermines students’ motivation.125
Research on school safety emphasizes instead the development of positive relationships between students and school
safety officers; student engagement in school; involvement in
after-school programming; early identification of at-risk students coupled with intervention; implementation of conflict resolution programs; and incorporation of families and the community into school safety decisions.126 As the Safe and
Responsive Schools Project explains, “Preventive programs,
such as bullying prevention, peer mediation, or anger management, have far more data available to support their effectiveness than do technology-based fixes such as metal detectors
or video surveillance cameras.”127 Negotiation, conflict resolution, and anti-bullying awareness have been proven to improve
school safety, reduce gang activity, contribute to students’ selfconfidence, and promote educational outcomes.128 These techniques should be introduced into all New York City public
schools, and where the techniques are already in place, the
commitment to teaching them should be reinvigorated. In addition, city teachers should receive training in conflict education
and/or resolution training, since 98 percent of high school
administrators report that virtually no teachers in their schools
are trained in these methods.129
As the city has increased reliance on police for school safety, it
has sharply reduced the funding for programs such as these.130
The city should maximize reliance on alternatives to policing in
schools. Among other outcomes, such a shift would result in the
reduction of suspensions, arrests, and dropouts. That effect
would be hugely beneficial given that “exclusionary punishments
actually intensify certain adolescents’ conflicts with adults,” and
suspensions and arrests often fail to promote healthy development or teach a student to correct his or her behavior.131
The city does not adequately fund programs that teach students
alternatives to violence and that help them mediate their disputes.120 Guidance counselors at certain city high schools are
often responsible for 400 to 500 students, which precludes
counselors from reaching out to students in need.121 Many students are lost in large overcrowded schools, where they are disengaged from learning opportunities. Teachers also are not
adequately trained in the role of conflict education and resolution programming.122 Each of these factors detracts from
school safety and the learning environment which schools are
charged with providing.
On an annual basis, the city should evaluate its school safety
practices. The city also should engage an independent, probono consulting firm to analyze whether expenditures on policing in schools are used effectively to maximize the educational
missions of schools. This recommendation is in line with the
recent recommendation of the New York City Public Advocate
Betsy Gotbaum, who suggests, “The DOE in conjunction with the
Office of Management and Budget, should list all school safety
allocations . . . in line items in the city budget, making it possible
to track specific budget allocations for school safety.”123
Leading social science research raises questions about the effi54
VIII. CONCLUSION
This report demonstrates that New York City is over-policing its
schools with significant and consequential damage to the learning environment. The recommendations offered herein are
urgently needed to reform the city’s school policing program.
In sum, the city should take immediate and concrete steps to
restore educators’ authority over school discipline, train police
personnel to respect the school environment, and limit the
authority of police personnel to legitimate security concerns.
Accountability mechanisms over policing in schools also must
be established, including the creation of a meaningful mechanism that allows students, their families, and teachers to complain about wrongdoing by school-based police personnel.
The full implementation of all the reforms is necessary to transform New York City schools from places where students feel like
they are in detention to vibrant, positive learning communities
where students feel nurtured and engaged.
55
IX. APPENDIX
APPENDIX A:
High School of Hospitality Management
LIST OF SCHOOLS WITH DAILY METAL DETECTOR USE
High School of Medical Science
Hillcrest High School
Abraham Lincoln High School
HS for Service and Learning
Academy for College Preparation and Career Exploration: A
HS for Youth and Community Development
College Board School
Jamaica High School
Academy of Hospitality and Tourism
James Madison High School
Academy of Urban Planning
Jeffrey M. Rapport School for Career Development
Adlai Stevenson High School
John Adams High School
Astor Collegiate High School
Jonathan Levin High School for Media and Communications
Automotive Career and Technical Education High School
Kennedy High School*
Belmont Preparatory High School
Kingsbridge International High School
Bronx Expeditionary Learning High School
Lafayette High School
Bronx Guild High School
Louis D. Brandeis High School
Bronx High School for Law and Community Service
Magnet School of Law and Government
Bronx High School for Writing & Communication Arts
Manhattan Hunter Science High School
Bronx High School of Business
Martin Luther King, Jr. High School for Law, Advocacy &
Bushwick School for Social Justice
Community Justice
Business, Computer Applications & Entrepreneurship Magnet
Math, Science Research and Technology Magnet High School
HS
Monroe Academy for Business & Law
C.I.S. 313 School of Leadership Development
Newtown High School*
Canarsie High School*
Norman Thomas High School*
Celia Cruz Bronx High School of Music
Pablo Neruda Academy
Channel View School for Research
Paul Robeson High School
Christopher Columbus High School*
Samuel J. Tilden High School*
Collegiate Institute for Math and Science
Science, Technology and Research Early College
DeWitt Clinton High School
Secondary School for Journalism
Discovery High School
Secondary School for Law
Dreamyard Preparatory School
Secondary School for Research
EBC High School for Public Service in Bushwick
Sheepshead Bay High School*
Erasmus Campus - Business/Technology
South Shore High School
Erasmus Campus - Humanities)
Springfield Gardens High School
Evander Childs High School
Theodore Roosevelt High School
Excelsior Preparatory High School
Thomas Jefferson High School
Facing History School
Urban Assembly High School for History and Citizenship for
Far Rockaway High School
Young Men
Food and Finance High School
Urban Assembly Media High School
Fordham Leadership Academy For Business and Technology
Urban Assembly School of Design and Construction
Foreign Language Academy of Global Studies. (FLAGS)
Walton High School*
Franklin K. Lane High School
Washington Irving High School
Frederick Douglass Academy VI High School
West Bronx Academy For the Future
George Westinghouse High School
William H. Maxwell Vocational High School
Grace Dodge Vocational High School
Williamsburg High School for Architecture and Design
Graphic Communication Arts High School
Williamsburg Preparatory School
Harry S. Truman High School*
High School for Contemporary Arts
* Schools designated with an asterisk are current Impact
Schools.
High School for Law and Public Service
High School For Media & Communications
High School for Teaching and the Professions
High School of Arts and Technology
High School of Arts, Imagination and Inquiry
56
APPENDIX B:
other searches are conducted by employees of a private company, Safety Teams Corp., Inc., and are supervised by a school
administrator. Pursuant to a court order, School Resources
Officers are prohibited from participating in scans and other
searches, unless a weapon is found on a student.145
POLICING PRACTICES IN LARGE URBAN
SCHOOL DISTRICTS
The Los Angeles Unified School District, the Miami-Dade Public
Schools, and the Clark County School District each have their
own school police departments, which allow educators to prioritize and coordinate both education and safety outcomes.132
New York City should consider these districts in reformulating
its own approach to school safety.
A. Los Angeles Unified School District
The Los Angeles Unified School District is the second largest
school district in the country, smaller than only the New York
City school system.133 The school district has its own School
Police Department of over 600 sworn and civilian personnel,
including more than 370 police officers.134 The Chief of the
School Police Department reports to the Chief Operating Officer
for the Los Angeles Unified School District who, in turn, reports
to the School Superintendent.135 All School Police Department
budget requests must be approved by the Superintendent.136
This system gives educators, and specifically, the School
Superintendent, oversight over school police officers.
For issues beyond the expertise of school administrators, there
is collaboration with the Los Angeles Police Department
(LAPD). For example, with regard to training, each member of
the School Police Department must undergo the same training
as the LAPD, in addition to specialized training that focuses on
roles and responsibilities in an educational setting. According to
the current Chief Operating Officer, the School Police
Department officers are better suited and better trained to
interact with schoolchildren in an educational setting on a daily
basis than regular LAPD officers.137
Metal detectors are used in the Los Angeles Unified School
District as one aspect of safety initiatives. According to the Chief
Operating Officer, metal detector scans are not performed by
police officers. Instead, they are performed by certified school
administrators, such as assistant principals, who are specially
trained and authorized to perform the scans.138
B. Miami-Dade County Public Schools
The Miami-Dade County Public School system is the fourth
largest in the nation.139 The School Police Department is situated within the Miami-Dade School District infrastructure, and
operates independently of the Miami Police Department. The
School Police Department, which consists of certified Florida
police officers, is the second largest school police agency in the
United States with 215 sworn personnel.140 The Chief of the
School Police sits on the School Superintendent’s cabinet.141
The School Police Department lists as its mission “to be
responsive to the school community,” explaining that it is a priority “to becom[e] part of the school community through
improved communication, mutual setting of priorities, and
shared commitment to positive youth development.”142 As part
of this collaborative process, the School Police Department
works closely with state attorneys to determine whether incidents in school should be handled through the courts or
through school disciplinary procedures.143
There are no walk-through metal detectors in the Miami-Dade
County public schools.144 Handheld metal detector scans and
57
C. Clark County School District
The Clark County School District in Nevada is the sixth largest
in the nation.146 The Clark County School District has its own
School District Police with 145 sworn officers patrolling school
district properties.147
The School District Police has an established Bureau of
Professional Standards that investigates alleged misconduct by
school safety officers and other department personnel.148 The
Bureau of Professional Standards is housed within the office of
the Chief of Police. Since 1999, the Chief of School Police has
reported directly to the Superintendent of Schools.149 This
structure gives the Superintendent control over the investigation of misconduct and ultimate authority over the discipline of
officers. The Clark County School District does not have a single metal detector in any school.
CRIMINALIZING THE CLASSROOM 32
ENDNOTES
1
The following account is based on interviews with students and staff members who witnessed the
events taking place.
2
ACLU/NYCLU analysis of October 2006 enrollment, based on New York City DOE Register, at the 88
schools with permanent metal detectors that the ACLU’s investigation uncovered. A list of these
schools is available in Appendix A.
3
Edward N. Costikyan et al., Report of the Mayor’s Investigatory Commission on School Safety (1996).
4
Ibid.
5
Natasha Bannan, et al., “The Impact Schools Initiative: A Critical Assessment and Recommendation
for Future Implementation,” A Report for the Prison Moratorium Project by the PMP Capstone Team,
Wagner School of Public Service, New York University, April 2006, p. 21-22, at
http://www.nyu.edu/wagner/capstone/projects/pmp.pdf.
6
Lynnette Hollaway, “Board Votes to Give Police Control of School Security,” New York Times, Sept.
17, 1998, at B5.
7
Ibid.
8
ACLU/NYCLU telephone interview with Irving Hamer, January 11, 2007.
9
Susan Edelman, “Tempers Flare Over Timing of School-Crime Report Card,” New York Post, Sept.
18, 1998.
10
“Memorandum of Understanding Among The Board of Education of the City of New York, The
Chancellor of the City School District of the City of New York and the City of New York on The
Performance of School Security Functions by the New York City Police Department for the Benefit of
the City School District of the City of New York at Its Students and Staff,” 1998, para. 24.
11
Memorandum of Understanding, para. 25.
12
Adamma Ince, “Preppin’ for Prison: Cops in Schools Teach a Generation To Live in Jail,” Village
Voice, June 13-19, 2001. http://www.villagevoice.com/news/0124,ince,25511,5.html (Retrieved
January 23, 2007).
13
Bannan, “Impact Schools,” p. 25.
14
Drum Major Institute for Public Policy, “A Look at the Impact Schools” (June 2005), p.2.
http://www.drummajorinstitute.org/pdfs/impact%20schools.pdf (Retrieved January 23, 2007).
15
24 school buildings have participated in the Impact program. One, Erasmus Campus, is composed
of three smaller schools, bringing the total to 26.
16
New York City Department of Education. “School Safety Initiatives: Presentation to Panel for
Educational Policy,” Jan. 12, 2004, p. 5. http:// schools.nyc.gov/NR/rdonlyres/53AD9BAE-8C1B-4ED08537-50DED0798F44/1053/SuspensionDeckForEdPanel_FINAL.ppt (Retrieved January 23, 2007).
17
National Center for Schools and Communities at Fordham University, “Policing as Education
Policy: A Briefing on the Initial Impact of the Impact Schools Program” (August 2006), p.4.
18
New York City Department of Education, “Mayor Michael R. Bloomberg, Schools Chancellor Joel I.
Klein and Police Commissioner Raymond W. Kelly Announce Implementation of School Safety Plan,”
Press Release, January 5, 2004; Drum Major Institute, “Impact Schools,” p. 2; Diane Ravitch and
Randi Weingarten, “Public Schools, Minus the Public,” New York Times, March 18, 2004, p. A33.
19
New York City Department of Education. “Mayor Bloomberg, Schools Chancellor Klein And Police
Commissioner Kelly Announce A New School Safety Initiative Amid Significant Declines In Crime In
City Impact Schools.” Press Release. April 13, 2006. http://schools.nyc.gov/Administration/mediarelations/PressReleases/2005-2006/04132006pressrelease.htm. (retrieved January 23, 2007).
20
See footnote 2.
21
NYC Department of Education, “New School Safety Initiative.”
22
ACLU/NYCLU Analysis of Expense, Revenue and Contract Adopted Budgets, FY 2005-2007. New
York City Office of Management and Budget. http://www.nyc.gov/html/omb/html/budpubs.html
(Retrieved January 23, 2007).
23
A Local Law to amend the New York city charter, in relation to requiring the police department and
the department of education to provide the public with information regarding school violence, New
York City Council, Int. No. 226-A, (2004).
24
A Local Law to amend the administrative code of the city of New York, in relation to requiring the
New York City Police Department to provide information to the City Council regarding school safety
agents, New York City Council, Int. No. 322-A (2005).
25
Ellen Yan, “Students Rally for NYPD School Safety Review,” Newsday, August 1, 2005 at Local.
26
Janon Fisher, “Students Protest Use of Metal Detectors in Their Bronx School,” New York Times,
September 20, 2005, p. B4.
27
I. Hassan, “Demanding an Academic Ethos: Students Critique Cop Presnce,” City Limits, August 7,
2006.
28
Urban Youth Collaborative, “Bill of Rights,” at www.urbanyouthcollaborative.org/rights.html.
29
Ibid.
30
Ibid.
31
Hollaway, “Board Votes to Give Police Control,” B5.
32
NYC Department of Education, “New School Safety Initiative.”
33
See footnote 18.
34
ACLU/NYCLU analysis of data from Department of Justice, Federal Bureau of Investigations,
“Crime in the United States 2005,” Table 78. http://www.fbi.gov/ucr/05cius/data/table_78.html
(Retrieved January 23, 2007).
35
Ibid.
36
Youth Justice Board, “One Step at a Time: Recommendations for the School Community to Improve
Safety.” January 2006. p. 20. A 2004 bill passed by the New York City Council required the installation of
58
33 The Over-Policing of New York City Schools
surveillance cameras at every entrance to a City school, an initiative costing hundreds of millions of dollars.
David Andreatta, “Cams for All Schools as Crime Skyrockets,” New York Post, September 15, 2004, p. 6.
37
JB McGeever, “This is Not a Penitentiary: A View from Public School,” City Limits Weekly, November
27, 2006. http://www.citylimits.org/content/articles/viewarticle.cfm?article_id=2030 (Retrieved
January 23, 2007).
38
The following accounts of the events at Aviation High School, the Community School for Social
Justice, and the Health Opportunities High School are based on interviews with multiple students and
staff members who witnessed the events taking place. The account of the events at Curtis High
School is based on first-hand observation by ACLU/NYCLU investigators.
39
Sections A-432 I(A)(5) and A-432 II(B)(4) of the Chancellor’s Regulations generally require that students be searched by officers of the same sex.
40
Catherine Kirk, “Scanned,” Curtis Log, December 2006.
http://my.highschooljournalism.org/ny/statenisland/chs/article.cfm?eid=7308&aid=110478 (Retrieved
January 23, 2007).
41
Ibid.
42
ACLU/NYCLU interview with unnamed former DoE official, New York, December 12, 2006.
43
Bannan, “Impact Schools,” p.29.
44
This incident is described on the opening pages of this report.
45
ACLU/NYCLU telephone interview with principal, New York, December 15, 2006.
46
Leslie Albrecht, “Cracking Down on Shaquanna: How Mayor’s School Safety Initiative Affects Kids,”
Youth Matters, 2005.
http://www.jrn.columbia.edu/studentwork/youthmatters/2005/story.asp?course=youthmatters&id=43
4 (Retrieved January 24, 2007); for the refusal to disclose arrest data for Impact schools, see Ellen
Yan & Wil Cruz, Cops Make an Impact, Newsday, Mar. 20, 2005, p. A17.
47
Albrecht, “Shaquanna.”
48
Ibid.
49
DRUM – Desis Rising Up and Moving, “Education Not Deportation: Impacts of New York City School
Safety Policies on South Asian Immigrant Youth” (June 2006), p.4.
50
The following account was reported by Donald Vogelman, the attorney for Adhim Deveaux. Mr.
Vogelman stated that the account was based on his own investigation. ACLU/NYCLU telephone interview with Donald Vogelman, New York, February 9, 2007.
51
Bronx Guild High School is a non-Impact School housed within Adlai Stevenson High School, an
Impact School.
52
Chancellor’s Regulation A-412 § III.B.
53
Bannan, “Impact Schools,” p.18.
54
New York Civil Liberties Union, “Arrested Bronx Guild HS Principal, Student and School Aide To
Appear in Court,” March 23, 2005. http://www.nyclu.org/adlaistevenson_hs_pr_032305.html
(Retrieved January 24, 2007).
55
National Center for Schools and Communities, “Policing as Education Policy,” p. 9 (internal citations omitted).
56
Phenix, “Crime and Discipline,” pp. 12-13.
57
Elissa Gootman, “New York School Crime Up 21 Percent in First Third of Fiscal Year,” New York
Times, Feb. 15, 2007, B3.
58
Ibid.
59
Ibid.
60
Email to Donna Lieberman from unnamed correspondent, January 11, 2007.
61
Pedro A. Noguera, “Re-thinking School Safety,” Motion Magazine, June 2, 2004. http://www.inmotionmagazine.com/er/pn_re_safety.html (Retrieved January 23, 2007).
62
Ince, “Preppin’ for Prison.”
63
ACLU/NYCLU telephone interview with Irving Hamer, January 11, 2007.
64
ACLU/NYCLU telephone interview with unnamed former member of Board of Education, January
11, 2007.
65
ACLU/NYCLU analysis of 2004-2005 Annual School Reports. Available online at
http://schools.nyc.gov/daa/SchoolReports/default.asp. This and subsequent analysis of metal detector schools in this section includes only 80 schools, as data are drawn from the 2004-2005 Reports,
and 8 of the 88 schools identified as metal detector schools are too new to be included in that data.
66
Analysis of enrollment data from New York City DOE Register, provided by ATS. Data current as of
October 15, 2006. Available online at http://schools.nyc.gov/OurSchools/ .
67
ACLU/NYCLU analysis of 2004-2005 Annual School Reports.
68
Ibid. For this measure, the Annual School Reports compare each school to the average school of
similar size.
69
Campaign for Fiscal Equity, Inc. v. State of New York, 100 N.Y.2d 893 (2003).
70
Campaign for Fiscal Equity, Inc. v. State of New York, 8 N.Y.3d 14 (Nov. 20, 2006).
71
Drum Major Institute, “Impact Schools,” p. 5.
72
ACLU/NYCLU analysis of 2004-2005 Annual School Reports. The per pupil expenditure for metal
detector schools includes 63 schools, as the Annual School Reports lacked expenditure data for 18
schools that were included in all other calculations. 2003-2004 is the most recent year for which
expenditure data are available.
73
2006-2007 DOE Directory of School Library Personnel. Available online at
http://schools.nyc.gov/NR/rdonlyres/1EA9E450-E21F-4360-B9586C6A301D16A0/12784/Allschools.pdf. The directory confirms that 20% of schools with permanent
metal detectors have no school librarians, and publishes no information on the remaining 27% of
schools with permanent metal detectors.
74
Janon Fisher, “Students Protest Use of Metal Detectors in Their Bronx School,” New York Times,
September 20, 2005, p. B4.
59
CRIMINALIZING THE CLASSROOM 34
75
2006-2007 DOE Directory of School Library Personnel.
ACLU/NYCLU analysis of NYC DoE School Based Expenditure Reports, available at
http://www.nycenet.edu/offices/d%5Fchanc%5Foper/budget/exp01/ (Retrieved December 12, 2006).
This analysis includes the main educational institution on each Impact campus and the three main
schools on the Erasmus campus.
77
ACLU/NYCLU analysis of NYC DoE School Based Expenditure Reports.
78
ACLU/NYCLU analysis of NYC DoE School Based Expenditure Reports.
79
Diane Cardwell. “Bloomberg Seeks Further Changes for City Schools,” New York Times. January
18, 2007.
80
New York City DOE Register. Current as of October 15, 2006.
81
ACLU/NYCLU analysis of NYC DoE School Based Expenditure Reports.
82
ACLU/NYCLU analysis of NYC DoE School Based Expenditure Reports.
83
In order to meaningfully compare suspension rates in high schools, the Department of Education
places each school in a category of “similar schools.” It defines these schools as those in which
entering 9th and 10th graders are “generally alike” in terms of the proportion of English language
learners, students overage for grade, average daily attendance, and standardized test scores. “Parent
Guide and Glossary to the 2004-2005 Annual School Report for High Schools.” New York City
Department of Education, 16, at
http://schools.nyc.gov/daa/SchoolReports/05asr/Guides/PG_H_English.pdf.
84
ACLU/NYCLU analysis of 2004-2005 Annual School Reports.
85
Daniel J. Losen, “Behind the Dropout Rate,” Gotham Gazette, March 20, 2006.
http://www.gothamgazette.com/article/fea/20060320/202/1792/ (Retrieved January 24, 2007)
86
A variety of factors obscure the graduation rates of high school students in New York City. See generally ibid.
87
31 of the 89 schools qualify as drop out factories; 13 schools do not. There is no information for 35
metal detector schools, which are not old enough to have 2005 cohort rates. 9 metal detector schools
are too new to have Annual School Reports at all.
88
ACLU/NYCLU telephone interview with Irving Hamer, January 11, 2007.
89
ACLU/NYCLU research. List of largest districts is drawn from Dalton, Ben, Sable, Jennifer, and Lee
Hoffman. “Characteristics of the 100 Largest Public Elementary and Secondary School Districts in
the United States: 2003-04.” National Center for Education Statistics. September 2006. A-4. We
exclude Puerto Rico.
90
National Association of School Resource Officers website. http://www.nasro.org/about_nasro.asp.
91
Memorandum of Understanding, para. 2
92
NYPD Patrol Guide. Procedure No, 215-13. Handcuffing Students Arrested Within School Facilities.
Effective 1/1/2000.
93
Section 2590-i(1) of New York State Education Law provides, “[t]he principal shall be the administrative and instructional leader of the school . . . .”
94
Notably, the Chancellor’s Regulations prohibit strip searches, Regulation A-432 § I.A.8; allow students to ask questions about scans by hand-held metal detectors, id. at § II.B.6; and indicate that a
student should be searched, where possible, by an SSA of the same sex, id.at §§ I.A.5 and II.B.4.
95
Elissa Gootman, “Mayor to Give More Control to 331 Schools,” New York Times, June 13, 2006, B1.
96
ACLU/NYCLU telephone interview with Dave Wagner, Coordinator of Investigations, Bureau of
Safety and Security, Chicago Public Schools, October 20, 2006. The part-time law enforcement officers hired by the principals supplement the services of police officers stationed in the schools.
97
ACLU/NYCLU telephone interview with unnamed principal, December 15, 2006.
98
Beth Fertig, “Remake, Remodel: City Schools Get Another Overhaul,” WNYC, Feb. 21, 2007.
99
Jack McDevitt and Jenn Panniello, “National Assessment of School Resource Officer Programs:
Surveys of Students in Three Large New SRO Programs,” National Institute of Justice (February 28,
2005), pp. 1-3. http://www.cj.neu.edu/pdf/BOOK_NEU_Survey_D10.pdf (Retrieved January 24, 2007)
100
Ibid., p. 29.
101
Ibid., p. 5-6, 29.
102
Ibid., p. 30.
103
Vera Institute of Justice, “Approaches to School Safety in America’s Largest Cities”(Aug. 1999). p. 4.
104
Memorandum of Understanding, para. 12; ibid at para. 9 (“The training component . . . shall a . . .
include training of appropriate uniformed NYPD personnel who will be assigned primarily to school
security matters.”).
105
SSA training guides received by the NYCLU in response to a FOIL request included no such material. Other researchers have also not been able to access any such training materials. See, e.g.,
Bannan, “Impact Schools,” p. 60.
106
ACLU/NYCLU interview of unnamed principal, December 15, 2006.
107
ACLU/NYCLU interviews with two high-level officials of the United Federation of Teachers, January
24, 2007.
108
Pursuant to the Memorandum of Understanding, school security personnel were prohibited from
enforcing school-based discipline, but were authorized to enforce rules, regulations, and procedures of
the Board and its schools related to school security. Compare MOU, para. 2, with MOU, para. 18 (“In addition to enforcement of all laws that otherwise authorized to enforce within the City, the NYPD, through
school security personnel transferred pursuant to this MOU and through its police officers and otherwise,
is hereby authorized to enforce rules, regulations, or procedures of the Board and its schools which are
subject to implementation by superintendents and principals in furtherance of school security.”).
109
School districts across the county place similar limits on police interventions in the classroom.
110
This policy comports with the requirements of the United Nations Convention of the Rights of the
Child, Art. 28 §3: “States Parties shall take all appropriate measures to ensure that school discipline
is administered in a manner consistent with the child’s human dignity...”
111
Bannan, “Impact Schools,” p. 41.
76
60
35 The Over-Policing of New York City Schools
112
Tim Bete, “School Security,” School Planning and Management, January 1998, p. 10.
Tod Schneider, Hill Walker and Jeffrey Sprague, “Safe School Design: A Handbook for Educational
Leaders Applying the Principles of Crime Prevention through Environmental Design” (ERIC Clearinghouse
on Educational Management, Eugene, OR, 2000), p. 77. As cited in Bannan, “Impact Schools,” p. 51.
114
Delbert S. Elliot et al., “Safe Communities-Safe Schools: Safe School Planning and Law Related
Issues,” Center for the Study and Prevention of Violence (2002), p. 30.
115
ACLU/NYCLU telephone interview with Bill Woodward, October 23, 2006.
116
Ibid.
117
ACLU/NYCLU interview, Brooklyn, New York, December 8, 2006.
118
Telephone requests were placed to the Office of Public Information, the Executive Office of School
Safety, and the School Safety Division Investigative Unit. At the Investigative Unit, after multiple calls,
a secretary admitted that her boss, Lieutenant McDonald, had no intention of providing any information about the complaint process.
119
A December 15 telephone inquiry to the Office of Public Information was followed, by request, with
a faxed letter. We received no response.
120
ACLU/NYCLU interviews with two high-level officials of the United Federation of Teachers, January
24, 2007.
121
Ibid.
122
Office of the New York City Public Advocate, “Between Policy and Reality: School Administrators
Critical of Department of Education School Safety Policy,” February 2007, at p. 5.
123
Ibid.
124
See e.g. Russell Skiba, “Zero Tolerance: The Assumptions and the Facts,” Center for Evaluation
and Education Policy, Summer 2004, pp. 2-4.
125
Bannan, “Impact Schools,” pp. 45, 51, 59.
126
See e.g. David W. Johnson and Roger T. Johnson, “Conflict Resolution and Peer Mediation
Programs in Elementary and Secondary Schools: A Review of the Research,” Review of Educational
Research, Winter 1996, pp. 459-506. At 488, 494; J. B. Grossman et al., “Multiple choices after school:
Findings from the Extended-Service Schools Initiative,” Public/Private Ventures (2002), pp. 30-31; C.A.
McNeely et al., “Promoting Student Connectedness to School: Evidence from the National Longitudinal
Study of Adolescent Health.” Journal of School Health, Vol. 72 (4), 2002. As cited in Wald & Losen, at 5.
127
Skiba, Russell, Boone, Kimberly, et al. “Preventing School Violence: A Practical Guide to
Comprehensive Planning,” Safe and Responsive Schools (2000), p. 9.
http://www.indiana.edu/~safeschl/psv.pdf (Retrieved on January 24, 2007)
128
See generally Bannan, “Impact Schools,” pp. 47-58.
129
Office of the New York City Public Advocate, “Between Policy and Reality: School Administrators
Critical of Department of Education School Safety Policy,” February 2007, at p. 12.
130
ACLU/NYCLU interviews with two high-level officials of the United Federation of Teachers, January
24, 2007.
131
Advancement Project, “Opportunities Suspended: The Devastating Consequences of ZeroTolerance and School Discipline,” Advancement Project (2000), p. 9.
132
This Report cites Los Angeles Unified School District, the Miami-Dade Public Schools, and the
Clark County School District as models only to the extent that they have systems in place that allow
educators oversight over policing in schools. The Report does not endorse any other policing policies
and practices in these districts.
133
Dalton, Ben, Sable, Jennifer, and Lee Hoffman. “Characteristics of the 100 Largest Public
Elementary and Secondary School Districts in the United States: 2003-04.” National Center for
Education Statistics. September 2006. A-4.
134
Dan M. Isaacs, Chief Operating Officer, Los Angeles Unified School District, Testimony On Behalf
Of The Los Angeles Unified School District, Hearing on Combating Youth Violence: What Federal,
State and Local Governments Are Doing To Deter Youth Crime, Sept. 28, 2006, at
http://reform.house.gov/UploadedFiles/Isaacs%20Testimony.pdf.
135
Interview with Dan M. Issacs, Chief Operating Officer, Los Angeles Unified School District, Oct. 25, 2006.
136
Ibid.
137
Ibid.
138
Ibid.
139
Dalton, Sable & Hoffman. A-4. Excluding Puerto Rico.
140
Miami-Dade Schools Police Department, “Department Information,” at http://police.dadeschools.net/department-info.asp (last visited Feb. 22, 2007).
141
Interview with Edward Torres, Detective, Miami-Dade Schools Police Department, Oct. 25, 2006.
142
Miami-Dade Schools Police Department, “Mission, Vision and Values,” at http://police.dadeschools.net/mission.asp (last visited Feb. 22, 2007).
143
Interview with Edward Torres, Detective, Miami-Dade Schools Police Department, Oct. 25, 2006.
144
Ibid.
145
Ibid.
146
Dalton, Sable & Hoffman. A-4. Excluding Puerto Rico.
147
Clark County School District Police Department, “About CCSD Police Department,” at
http://www.ccsd.net/directory/police/about/index.phtml (last visited Feb. 22, 2007).
148
Clark County School District Police Department, “Bureau of Professional Standards,” at
http://ccsd.net/directory/police/chief/bps.phtml (last visited Feb. 22. 2007).
149
Clark County School District Police Department, “History of the CCSD Police Department,” at
http://ccsd.net/directory/police/about/history.phtml Interview with Thomas A. Kube, Executive
Director and Chief Executive Officer of the Council of Educational Facility Planners, Oct. 20, 2006.
113
61
DIGNITY
FOR
ALL?
Discrimination Against Transgender and Gender
Nonconforming Students in New York State
62
September 1, 2015
Dear friends,
I’m pleased to present this New York Civil Liberties Union report, Dignity for All? Discrimination Against
Transgender and Gender Nonconforming Students in New York State.
The report – initially released electronically on June 24, 2015 – was intended to bring attention to the
discrimination, harassment and violence that transgender kids experience in New York public schools,
and to bring to life the ongoing harms of our state’s failure to take necessary steps to ensure that all kids
can feel safe going to school and being themselves.
One day after the NYCLU released this report, Governor Cuomo responded by writing a letter to the State
Education Department expressing his “outrage” and calling the discrimination faced by transgender
students “completely unacceptable, dangerous … and in complete contradiction to the values of our great
state.” He demanded that the Department take immediate steps to address our report’s findings.
In a landmark victory for transgender students, the Department released a policy on July 20 mirroring
the model policy contained in the report, which was developed by the Empire Justice Center, Empire State
Pride Agenda and the NYCLU, with contributions and support from organizations across the state.
This policy will help families with transgender and gender nonconforming kids understand their rights
and what schools need to do to make them a reality. And it will help every school district understand how
to follow the law and protect the rights of transgender youth by:
• Respecting students’ right to privacy and confidentiality in regards to maintenance of student
records;
• Providing all students with access to restrooms and locker rooms that correspond with their
gender identity, and providing private bathrooms and changing spaces to all students who desire
additional privacy (although private facilities should never be forced upon any student), and providing
transgender students the same opportunities to participate in gender-segregated activities as other
students;
• Encouraging the regular training of all adults working in schools to ensure they understand the
range of gender identities and expressions and know what they must do to create a supportive
environment for all students; and
• Providing resources for school faculty to use to educate themselves and their students.
We urge all schools to adopt and follow the Model Policy for Creating Safe and Supportive School
Environment for Transgender and Gender Nonconforming Students included in this report in order to be in
compliance with state and federal laws.
All of New York’s children have the right to be themselves and get an education in a safe environment, no
matter where they go to school. The NYCLU will continue to work with advocates and the State Education
Department to ensure all students are treated with dignity and respect. And we welcome districts,
educators and students to reach out to us with questions or requests for support in following this policy.
We would like to thank the kids and parents who bravely shared their heartbreaking stories for this report;
our allies in the fight for equality across the state; and Governor Cuomo, the State Education Department
and the regents for acknowledging the failures demonstrated by this report and moving quickly to adopt
our guidance.
Sincerely,
Donna Lieberman
63
Dignity for All?
Discrimination Against Transgender and Gender Nonconforming Students in New
York State
June 2015
Acknowledgments
Dignity for All? was written by Lauren Frederico with Ujala Sehgal, who also edited it. It was additionally edited by Jennifer Carnig, Johanna Miller, Erin Harrist, Bobby Hodgson and Donna Lieberman. The report was illustrated by Noah Breslau. Additional support was provided by Becca
Cadoff. It was designed by Abby Allender.
The NYCLU would like to thank the many people who generously shared their stories with us for
this report. Dignity for All? was inspired by the requests for legal help we received from students,
parents and educators who continue to fight for equality across the state.
About the New York Civil Liberties Union
The New York Civil Liberties Union (NYCLU) is one of the nation’s foremost defenders of civil
liberties and civil rights. Founded in 1951 as the New York affiliate of the American Civil Liberties Union, we are a not-for-profit, nonpartisan organization with eight offices and nearly 60,000
members across the state. The mission of the NYCLU is to defend and promote the fundamental principles and values embodied in the Bill of Rights, the U.S. Constitution and the New York
Constitution, including freedom of speech and religion, and the right to privacy, equality and due
process of law for all New Yorkers. For more information, please visit www.nyclu.org.
NEW YORK CIVIL LIBERTIES UNION
125 Broad Street, 19th Floor
New York, NY 10004
www.nyclu.org
64
TABLE OF CONTENTS
I
Executive Summary
4
II Defining Gender
7
III Introduction: Dignity for All?
8
IV Discrimination under the Dignity Act: By the Numbers
11
V
Discrimination: A Transgender Student’s Perspective
13
VI Recommendations
23
VIIReferences
26
VIII Appendix (Model School District Policy)
65
Executive Summary
The spring of 2015 marked the 10th highly publicized suicide of a
transgender youth so far this year – an “epidemic” that transgender
youth and advocates have witnessed for years.
Transgender and gender nonconforming youth – across the country and in New York State – face serious
challenges.1 Nationally, a staggering 41 percent of people who are transgender will attempt suicide at
least once.2 The vast majority (almost 75 percent) of transgender students report being verbally harassed
at school in the past year, and one-in-three have been physically assaulted.3 More than half have avoided
going to school due to harassment, and one-in-six (15 percent) have left school altogether.4 Close to 60
percent experience family rejection.5 One-in-five transgender people experience homelessness during
their lives, and in New York City, the average age that a transgender person becomes homeless is only
13-and-a-half.6
Until recently, the experiences of transgender individuals were, all too often, hidden from public view. But
lately the efforts of transgender individuals and activists have drawn the media’s spotlight. Rolling Stone
named 2014 the “Biggest Year in Transgender History.”7 TIME magazine’s June 2014 cover called transgender rights the next civil rights frontier.8 In May 2015, The New York Times launched an unprecedented
editorial series about transgender rights.9 On social media, Facebook added more than 50 custom gender
options for users to choose from, including “transgender” and “gender non-conforming.”10 And during the
2015 State of the Union, President Barack Obama became the first U.S. president to say “transgender” in a
formal speech.11
The spotlight has freshly exposed an alarming truth: In New York State, transgender and gender nonconforming youth face discrimination and harassment every day. Despite New York’s reputation as a progressive leader, transgender New Yorkers face barriers when trying to access even the most basic services,
including an education. In public schools across the state, transgender and gender nonconforming children as young as five face relentless harassment, threats and even violence for trying to access their right
to an education.12
It’s not supposed to be that way.
In 2010, former New York Governor David Paterson signed historic, anti-discrimination legislation called
the Dignity for All Students Act into law. Unlike existing federal laws against discrimination, the Dignity Act
explicitly prohibits discrimination in schools on the basis of actual or perceived gender, gender identity and
gender expression.13 More than just compelling schools to respond to discrimination, the Dignity Act also
requires that schools take additional, affirmative steps to ensure they do not become hostile environments
for children. Schools must train staff and offer inclusive curricula, as well as report incidents of harassment to the state.14
Nonetheless, discrimination based on gender identity and expression is pervasive in New York public
schools and the rights of transgender and gender nonconforming children remain largely misunderstood
by educators and administrators.
| 4 | NYCLU
66
Without state guidance on how to follow the law and protect the basic rights of children who are transgender and gender nonconforming, districts and schools have come up with their own ad-hoc policies – most
of which are insufficient, against the law and deeply damaging to transgender and gender nonconforming
youth.
Vulnerable youth pay the price. Many transgender students and their families have courageously and successfully advocated within their schools to make changes. In some schools, educators and administrators
are leading the way. But individuals should not have to blaze new trails, to protect existing civil rights, one
school at a time.
Over the past five years, the NYCLU has received requests for legal assistance from transgender and gender nonconforming students and their families from communities large and small across the state. These
requests make painfully clear that the discrimination suffered by children who are transgender impacts
each and every aspect of their school day, from attendance to using the bathroom – daily indignities which
ultimately push many transgender youth out of school.
Discrimination against transgender and gender nonconforming students not only violates the law – it has
a lasting, damaging impact on the child targeted. Bullying of transgender youth has been connected to
depression and suicidal behaviors, unemployment and homelessness.15 Due to pervasive discrimination
and harassment in school, virtually all transgender students whose stories are featured in this report have
asked to leave school or have taken matters in their own hands by avoiding classes and disengaging from
the school community.
• School employees publicly interrogate Danny so often about his name that he stopped eating lunch,
then started avoiding school altogether. He is failing three classes and the school is threatening to hold
him back.16
• Josh is so afraid that his school’s refusal to let him use the locker room will out him to his fellow classmates that he asked to be home-schooled. His father is afraid Josh is at risk of physical or sexual
assault.
• Sara’s bullying has become so severe she suffers depression and anxiety symptoms and can only spend
half the day at school. Her school has never recorded or effectively addressed a single bullying incident.
• Jessie was physically attacked when she was only five-years-old.
This report explores school climate for transgender and gender nonconforming youth in New York State
since the passage of the Dignity Act. Telling the stories of real NYCLU clients, it documents the experiences of students facing discrimination. In some of these cases, the NYCLU was able to work with students to
address problems at school; in others, we continue to fight. This report also provides recommendations to
New York public schools on how to both comply with state and federal law and create a school climate that
nurtures and respects all of New York’s children.
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 5 |
67
RECOMMENDATIONS
Many New York public schools are failing to protect transgender and gender nonconforming students’
right to an education. The State Education Department must take immediate action to ensure New York
schools are following state and federal laws, and to provide transgender children the opportunity to become successful, supported young people with bright futures – instead of pushing them out of school. The
NYCLU recommends the Education Department take the following actions:
• Issue immediate guidance and training for all school staff. (See Appendix for Model Policy).
Issue clear and immediate guidance outlining the responsibilities of all schools to respect the
preferred names and gender pronouns of students, provide all students with access to restrooms
and locker rooms that correspond with their gender identity, provide private bathrooms and
changing spaces to all students who desire additional privacy, and provide transgender students
the same opportunities to participate in sports and physical education as other students.
Require mandatory and regular training for all adults working in schools – not just teachers – to
ensure they understand the range of gender identities and expression and know what they can do
to create a supportive environment for all students.
• Improve data collection and reporting. Increase oversight to ensure all schools are in compliance
with Dignity Act reporting requirements and revise the current Dignity Act reporting form to clarify what information must be captured. In addition, creating a shorter reporting period (currently,
schools report incidents only once every school year) would assist in tracking and addressing
ongoing violations.
• Ensure all schools have an accessible, confidential means of accepting complaints or reports of
discrimination, harassment and bullying.
• Pass and enforce a Commissioner’s Regulation to ensure transgender and gender
nonconforming youth have the same educational benefits and opportunities that all students are
entitled to.17
| 6 | NYCLU
68
Defining Gender
A person’s sex assigned at birth is the sex designation, usually “male” or “female,” assigned to them
when they are born, while gender identity is a term used to describe a person’s inner sense of being –
male, female, both or neither.
A cisgender person is someone whose sex assigned at birth corresponds to their gender identity. A transgender person is someone whose gender identity is different from the sex assigned to them at birth.
Transgender is an adjective that can also be used to describe people with a broad range of identities and
experiences that fall outside of traditional notions of gender.18
Gender nonconforming is used to describe people whose gender expression does not fit into gender stereotypes. Gender expression is the manner in which a person expresses gender to others, often through
behavior, clothing, hairstyles, activities, voice or mannerisms.19
The term transition is used to refer to the process in which a person goes from living and identifying as
one gender to living and identifying as another. For most youth, and for all young children, the experience
of gender transition involves no medical intervention. Rather, most transgender youth will undergo gender
transition through a process commonly referred to as social transition, during which they begin to live as
the gender consistent with their gender identity.20
Many transgender youth do not have supportive families and are unable to fully express themselves at
home for safety concerns. These youth may be openly transgender at school but not at home. (This is why
schools should always ask the student first before discussing their transition or transgender status with
their parent or guardian.)21
Some transgender youth have a diagnosis of gender dysphoria. Gender dysphoria is the formal diagnosis
used by medical and mental health care providers to describe people who experience a conflict between
their sex assigned at birth and the gender they identify with. Being transgender or gender nonconforming
is not a mental disorder. Rather, the diagnosis of gender dysphoria is assigned with the presentation of
clinically significant distress associated with the condition.22
Sexual orientation is not the same as gender identity. Sexual orientation refers to a person’s emotional
and sexual attraction to other people based on the gender of the other person. Transgender youth can
identify as lesbian, gay, bisexual or straight.23 Lesbian, Gay, Bisexual and Transgender (LGBT) is an acronym commonly used to discuss concepts related to sexual orientation and gender identity.
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 7 |
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Introduction: Dignity for All?
More and more people are starting to identify as transgender earlier in their lives.24 But youth who are
transgender and gender nonconforming face pervasive discrimination and bullying everywhere they turn.
Approximately 41 percent – close to half – of transgender and gender nonconforming individuals will attempt suicide at least once in their lives.25
Family rejection can have a devastating impact. As many as 40 percent of homeless youth identify as LGBT,
despite LGBT individuals composing only 10 percent of the general population. “Family rejection” is the
most commonly cited reason behind transgender homelessness. One-in-five transgender people experience homelessness during their lives.27 In New York City, the average age that transgender youth become
homeless is 13-and-a-half.28
Unfortunately, not only are transgender and gender nonconforming youth pushed out of their homes, they
are pushed out of their schools. As fraught as home environments can be, as one focus group of transgender youth in New York City reported: Attending school was reported to be “the most traumatic aspect of
growing up.”29
For youth to thrive in their schools and communities, they need to feel socially, emotionally and physically
safe and supported. But almost 75 percent of transgender students have been verbally harassed in school
because of how they express their gender.30 The Gay, Lesbian & Straight Education Network’s (GLSEN)
2013 National School Climate Survey found that almost two-out-of-three transgender students felt unsafe at school.31
Exacerbating the harassment by other students is the behavior of school staff, which often ranges from
indifference or misunderstanding to outright discrimination and hostility. Only one-third of transgender
students who reported victimization to school staff members feel that their situation was taken care of
adequately and effectively.32 School staff often treat transgender and gender nonconforming youth like
they are the problem, or they enforce discriminatory policies against them. For example, youth are unfairly
disciplined for wearing clothes that don’t conform to gender stereotypes and most (59 percent) of transgender students nationally have been denied access to restrooms consistent with their gender identity.33
Moreover, due to the widespread lack of family acceptance, many transgender youth do not have the
benefit of having a parent advocate on their behalf against bullying or discrimination in school. Family
acceptance has a protective effect against many threats to the wellbeing of transgender youth in the face
of extensive institutional discrimination.34 But many transgender and gender nonconforming youth receive
no such protection.
What is the impact of this discrimination and harassment?
More than half of transgender youth stay away from school on a regular basis.35 Drop-out rates are staggering, and those who stay in school have lower grade point averages and are less likely to plan on continuing their education.36
The impact of discrimination and school push-out can last a lifetime. The unemployment rate for people
who are transgender is twice the rate of the general population.37 One-in-five transgender individuals will
experience homelessness.38 And transgender people are funneled into the criminal justice system and are
disproportionately represented in jails and prisons.39
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In fact, anti-transgender harassment in schools has also been found to directly correlate with homelessness, unemployment and incarceration.40 One-in-four (25 percent) transgender and gender nonconforming
youth who were verbally harassed, physically or sexually assaulted, or expelled because of their gender
identity experience homelessness as compared to 14 percent of those who did not experience this mistreatment at school.41 For those transgender youth who had to leave school due to harassment, research has
found that nearly half (48 percent) were currently or formerly homeless.42
The health risks of harassment are also devastating. Studies have found direct links between bullying of
transgender youth and negative health outcomes including depression and suicidal behavior.43 The majority (51 percent) of transgender or gender nonconforming youth who were verbally harassed, physically or
sexually assaulted, or expelled because of their gender identity reported having attempted suicide. Of those
who were physically assaulted, 64 percent attempted suicide, and of those who had to leave school because
of the harassment, 68 percent reported having attempted suicide.44 Suicide attempt rates rose dramatically
when teachers were the reported perpetrators: 59 percent for transgender and gender nonconforming youth
harassed or bullied by teachers in K-12 or higher education.45
A Parent’s Perspective: Casey’s story
Casey, age 11, Capital Region
In 2003 I gave birth to a beautiful baby boy. Casey
had a full head of brown hair with blond highlighted
tips that many women pay a lot of money to have.
Casey, by the age of two, would say things like he
was a girl. When we were out and people would
comment on what a cute little boy I had, Casey
would quickly pipe up and state that he was a girl.
By the time Casey was eight, her mom learned
through a counseling center that what she needed to do for her child was let Casey live out the
rest of her life as a girl. She transferred Casey to
a new school so Casey could have a fresh start,
and was relieved when the new school agreed to
register Casey as female, having heard horror
stories and not knowing what to expect.
At first, her fourth grade year was off to a great
start: She was making new friends and was happier
than I’d ever seen her.
But Casey’s school started treating her differently from other students, and now her mom
is scared. Casey is not openly transgender. But
the school forces Casey to use a separate bathroom, making her feel “like a freak,” and she has
gotten in trouble for using the girls’ bathroom.
During breaks, when all the other girls go to the
bathroom, Casey is often left standing in the hallway by herself. Casey sometimes holds her urine
all day, or goes to the bathroom during class –
71
missing valuable learning time – to avoid questions from her friends.
During gym class, she is forced to use the nurse’s office instead of the locker room with her peers – so she
waits in the hallway or hides behind a vending machine until all of the students are gone before she goes
to get ready.
Rumors have started circulating. Casey dreads having to make up excuses about why she doesn’t use the
locker room like the other girls.
Casey’s mom thinks the anxiety has changed Casey. Her daughter gets very upset when people confront
her, and she has come home from school in tears. Casey cries at home and has emotional breakdowns
because of the way she is treated in school. Her mom knows about the suicide rates of transgender youth.
She’s worried about her daughter’s health and welfare.
Casey wants to change schools, even though it would mean leaving all of her friends. But her mother worries about the cost of moving again and has no way of knowing whether or not they will run into the same
problems in another district. She feels like there is nowhere to turn.
She just lay in my lap crying, and I cried knowing that I cannot do anything to help her.
Introducing the Dignity for All Students Act
The rights of transgender students are protected by a host of federal and state laws. Under federal law,
Title IX prohibits discrimination in schools on the basis of sex, which includes gender identity.46 The U.S.
Constitution’s Equal Protection Clause protects against differential treatment on the basis of sex, which
also includes gender identity.47 The First Amendment guarantees students the right to free expression,
including how they present their gender to others. Furthermore, transgender students also have a right to
privacy, and schools are required to keep their transgender status confidential.48
In 2010, New York State expanded on the protections already in place by adopting a historic anti-discrimination law called the Dignity for All Students Act. While the New York State Constitution – which requires
that all students have access to a sound, basic education – applies broadly to transgender youth, the
Dignity Act was the first time New York State law created explicit protections for students based on their
perceived or actual gender identity, gender expression and sexual orientation.49 Under the law, harassment is defined to include the creation of a “hostile learning environment” that interferes with a student’s
education or emotional wellbeing. The State Education Commissioner is ultimately responsible for helping
school districts create a learning environment free of discrimination or harassment, and schools must
investigate and report on all discrimination complaints.50
With the passage of the Dignity Act, New York became one of only 18 states, along with the District of
Columbia, that have passed measures to explicitly prohibit discrimination and harassment in schools on
these three categories, giving New York some of the strongest legal protections for transgender
students in the country.51
Unfortunately, in the five years since the Dignity Act passed, the State Education Department has failed
to issue guidance to school districts on how to follow the law regarding transgender youth. The rights of
transgender students still remain largely misunderstood by educators and administrators. In the absence of state guidance, a patchwork of problematic policies have cropped up among school districts and
schools.
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LGBT-Inclusive Anti-Bullying Laws by State
States (and Washington DC) with
LGBT-inclusive anti-bullying
laws designed to protect
students based on sexual
orientation and gender identity.
States that have not passed
LGBT-inclusive anti-bullying
laws.
Map credit: GLSEN
Well-intentioned superintendents and principals have made the mistake of adopting faulty policies from
other schools and districts regarding transgender youth even as they intend to follow the Dignity Act. As
one superintendent who reached out to the NYCLU said, It’s nerve-wracking not knowing if the policies we’re
adopting are going far enough and exposing us to lawsuits. We have to answer to students, parents and the
community. Different policies are circulating around the state. Where is the state guidance?
Discrimination under the Dignity Act: By the Numbers
Under the Dignity Act, schools are required to collect data on all incidents of discrimination or harassment
and report them annually to the State Education Department.
Discrimination based on “Gender Stereotypes”
While no single category of reported incidents captures all of the discrimination experienced by transgender and gender nonconforming students, reports of discrimination related to gender stereotypes are the
best indicators of school climate issues facing transgender and gender nonconforming youth.
Pervasive discrimination and harassment based on gender stereotypes impact all students, and create
particularly hostile learning environments for transgender and gender nonconforming students.53
Under the Dignity Act, discrimination based on gender stereotypes is reported under the categories of
“sex,” “gender” and “sexual orientation” (while “sexual orientation” is not the same as gender identity,
often, for example, homophobic remarks are used to harass students who do not conform to gender stereotypes).54
The Dignity Act does not include a specific reporting category for discrimination based on transgender
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 11 |
73
PERCENTAGE OF REPORTED INCIDENTS, BY CATEGORY
8
Sexual Orientation
7
Sex
Gender
5
Ethnicity
7
Weight
Race
Disability
55
7
Color
National Origin
Religion or Religious Practice
7
1
Other
4
1 2
status.55 Incidents impacting transgender and gender nonconforming students are generally reported –
when they are in fact reported — under these three categories.
Reporting under the Dignity Act shows that discrimination based on gender stereotypes – “sex,” “gender”
and “sexual orientation” – is the most commonly reported type of discrimination across New York.56
During the 2012–13 school year, New York schools reported 24,478 incidents of harassment and discrimination.57 The reported incidents occurred at schools in every county in the state. Of the incidents reported,
4,756 (19 percent) were incidents related to a student’s perceived or actual sex, gender or sexual orientation.58 No category of harassment or discrimination made up as many incidents as these three categories
combined, except “other” which covers a broad array of categories. Of the reported incidents, 1,863 were
related to a student’s perceived or actual sexual orientation, 1,738 were categorized under sex discrimination and 1,155 were based on gender.59
Incidents of discrimination based on gender stereotypes occurred in schools across the state, and in
some schools they made up the majority, if not all, of reported incidents. In 474 schools, at least half of all
harassment incidents per school involved students who were bullied, harassed or discriminated against
because of their sex, gender or sexual orientation.60 At 172 schools, all reported incidents related to one of
these three categories (sexual orientation, sex and gender).61
Data Limitations under the Dignity Act
Limitations in the current reporting requirements under the Dignity Act result in an incomplete picture of
the extent of harassment experienced by transgender students.
For one, the total number of transgender or gender nonconforming students in New York public schools is
unknown, and the Dignity Act data does not include a specific reporting category for discrimination related
to a student’s transgender status.62 While data collection and reporting of this demographic information
could help document the need for increased transgender student services, many advocates have concerns
about the ability of schools to collect this sensitive information ethically and confidentially.
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Further complicating any effort to quantify the extent of the harassment students who are transgender
and gender nonconforming face is severe under-reporting. During the 2012–13 school year, 4,654 schools
throughout New York State reported 24,478 incidents of harassment and discrimination under the Dignity
Act. Approximately one-third of schools (1,346) failed to report data altogether.63 Moreover, students and
staff are often unaware of how complaints should be reported. The Dignity Act requires every school to
have at least one designated staff member who is trained to handle issues related to the law’s protected
categories, including students reporting harassment or bullying related to gender (defined to include gender identity or expression) and sex.64 65 A 2013 survey of New York City high school students found that only
9 percent of students could correctly identify their Dignity Act coordinator.66 Anecdotal evidence collected
through the NYCLU’s statewide trainings and legal assistance process also confirms that many students
have never heard of the Dignity Act, and even fewer understand what it requires of schools.
In addition, transgender and gender nonconforming youth are less likely to report discrimination. GLSEN
found in 2013 that the majority of students, nearly 60 percent, of LGBT students who were harassed or
assaulted in New York schools never reported it to school staff.67 Among LGBT students who did report incidents to school authorities, only 32 percent said that reporting resulted in effective intervention by staff.68
Discrimination: A Transgender Student’s Perspective
Since the passage of the Dignity Act, the NYCLU has received a number of reports of discrimination from
transgender students and their parents from every corner of New York State – from districts as large as
New York City to smaller districts in the state’s most rural areas.
The following stories, pulled from these
reports, show that without guidance from the
State Education Department, transgender
youth in New York public schools are in crisis.
Widespread misunderstandings held by school
administrators and teachers impact each and
every part of the school day for transgender
students, from enrolling as a student to using
sex-segregated spaces like bathrooms to
taking part in routine activities like after-school
sports.
Most students featured in this report have
chosen to remain anonymous. Many keep
their transgender status private. Many felt
empowered to actively challenge discrimination
in their school environment, while others lack
the support systems to safely speak out. Some
students contacted the NYCLU with the support
of their families, but others fear family rejection
or conflict if they are vocal about their gender
MAP OF INTAKES BY NYCLU REGION
Lowest Concentration of Intakes
Highest Concentration of Intakes
identity or the issues they face in school.
Together, their stories demonstrate the range of
issues facing transgender youth across New York and
the urgent need for statewide guidance and reform.
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75
Mapping the School Day
STARTING SCHOOL: RECORDS AND ENROLLMENT
Danny, age 16, Long Island
Danny is a basketball player who is in the same school as he was before he transitioned. Danny just wants
to blend in, go to school and be himself. But his school refused to update his records, including his ID
card and name on attendance sheets, to reflect his correct name and gender pronouns. So on a regular
basis, Danny has to publicly explain that he is transgender. He is routinely harassed by hallway monitors
on his way to use the nurse’s office, where he has to change for gym class instead of the locker room. At
lunch time, cafeteria workers call him out of line and question him about the name and photo on his ID
card. Many times, Danny just doesn’t eat lunch. He told school officials about these occurrences but they
responded that he had to accept such challenges.
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Many days Danny dreads going to school so much that he is unable to
get out of bed and stays home. Formerly an honor student, he’s now
failing three classes due to poor attendance, will not be able to take
the Regents exams, and his school is threatening to hold him back
another year. His mother is afraid the school staff’s attitude is ruining Danny’s life.
They are causing him emotional harm, his mother said. And I can’t
afford to put him through summer school classes. I don’t know what
to do.
The issue of what name and pronoun to use when referring to a
transgender student is one of the first issues a school must resolve
to create a supportive environment.69 As in Danny’s case, failure to
update a transgender student’s records can not only put that student in uncomfortable situations throughout the school day, but also
effectively “out” that student as transgender, violating their constitutional right to privacy and even risking their personal safety.70
Alex, age 15, North Country
The summer before Alex entered ninth grade, he and his mom met with school officials to discuss his
transition. At the meeting, the superintendent said the school would need documentation to “prove” Alex
was a boy and that his transition was not just a “troubled student acting out.” When Alex told his guidance
counselor how distressing this was, he was told he would need to start hormone therapy or get a legal
name change in order to be recognized as male by the school.
Neither Alex nor his mother felt comfortable following up with school officials again.
All schools need to determine the gender identity of a student is a statement from that student.71 The process of transitioning is different for every young person, based on a variety of factors from personal choice
to access to mental health care.72 So a young person’s transition can occur with or without a medical
diagnosis of gender dysphoria or interventions like hormone therapy or gender reassignment surgery.73
Therefore schools should never require medical documents to affirm a student’s gender identity. Likewise, other state agencies like the New York State Department of Health no longer require proof of gender
reassignment surgery or hormonal treatments in order to change someone’s gender marker on a birth
certificate.
Unfortunately, the State Education Department fails to provide school districts with guidance on registering transgender students or providing support to students who transition while they are enrolled in the
same school. As a result, administrators routinely ask highly invasive and inappropriate questions in their
attempt to navigate the registration process with transgender youth and, in cases like Alex’s, wrongfully
require burdensome “proof” of a student’s gender identity.74
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77
HARASSMENT IN THE HALLWAYS
Sara, age 14, North Country
Sara leaves for school at 8:30 a.m. and by 10 a.m. she is texting me until I can come pick her up, said her
mother. Recently she was talking about cutting herself. I worry all the time that she is going to hurt herself and that one day she won’t reach out and text me when she is feeling depressed at school.
Sara suffered so much bullying in ninth grade that she had an emotional breakdown over her safety,
having to stay home for several weeks. She hears harassing comments throughout the day, whether she
is waiting in line for the vending machine or playing volleyball in gym. Her classmates routinely ask her
explicit questions during the school day like, Do you have a d--- in your pants?
One day we went shopping for a wig, and Sara was so happy. Only she came back to school to be bullied
by the other students. It was a really dark time. She wants friends so badly she is willing to tolerate just
about anything.
Telling her school’s Dignity Act coordinator about the bullying was out of the question – Sara saw him act
rudely to another transgender student at her school. But she told the guidance counselor about every incident. However, not a single incident was recorded or investigated – and therefore also not reported to the
State Education Department to help her or other transgender students in her school.
Moreover, the school said it would not take any action in response to the harassment because there were
no witnesses.
As a result of the ongoing bullying, Sara now suffers from anxiety and symptoms of depression. In school
she suffers from chronic stomachaches and headaches and is in and out of the doctor’s office. She goes to
the guidance counselor as often as six times a day.
I’ve never seen her like this before. I never know when she is going to burst into tears or start yelling. She
thinks no one likes her, even her family. I spend 75 percent of my time helping her deal with her anxieties
and bringing her to therapy.
Because of the ongoing harassment, and the anxiety it caused her, Sara and her mom have requested that
she be tutored at home for the remainder of the school year.
Students who are harassed because of their gender identity or perceived sexual orientation report higher
levels of depression and lower self-esteem.75 In one study of LGBT young adults, those who were harassed
at school during adolescence were 5.6 times more likely to report having attempted suicide.76 Students
who experience high levels of harassment based on gender identity are also twice as likely to miss class
or stay home from school, and have lower grade point averages compared to their peers.77 The effects are
tragic and lasting: Anti-transgender bullying has also been found to directly correlate with homelessness
and unemployment.78
Given the severe consequences of harassment, the Dignity Act requires schools to immediately investigate
all reports of discrimination and harassment, and after an investigation, they must take immediate steps
to resolve incidents and ensure students feel safe and supported. Moreover, the Dignity Act’s reporting
requirement – that schools document and track all reports of discrimination and harassment and report
them to the state – helps shine a light on schools where the environment is especially hostile for students,
to prevent harassment of other students. Unfortunately, Sara’s school is not alone in failing to comply with
the Dignity Act’s reporting requirements. One-third of schools in New York State did not report any data
whatsoever on harassment and discrimination for the 2012-13 school year.
78
IN THE CLASSROOM
Locke, age 17, Southern Tier
Like many transgender youth, Locke receives little support at
home. His mom refused to acknowledge his gender identity for
years. Locke was determined to make school a more supportive
place. But it has been a struggle.
I wanted my transgender status to remain unknown so that my
peers would only know me as a guy, Locke said. He was willing to advocate for himself. He went to the principal to ask for
access to the boy’s bathroom and to be called by his preferred
name and gender pronouns. But the principal refused. Unable to
use the right bathroom or locker room, Locke has to constantly publicly explain his transition. The school only agreed to put
“Locke” in parenthesis on attendance sheets next to his birth
name, like a nickname. Substitute teachers call out his birth
name in front of everyone when reading the roster, and Locke
has to repeatedly go in front of the class to re-explain his transition. People pick on him and rumors spread.
Locke is targeted by his regular teachers, too. One teacher repeatedly calls him his birth name and uses
female pronouns to refer to him. During class one day that teacher called Locke and his friends You girls
so many times that another student eventually protested. But Locke is afraid that he’ll be thought of as a
trouble-maker if he stands up for himself too much.
Locke is doing whatever he can to seek support. I wanted to create a supportive school environment but I
get depressed. For his birthday, he asked his mom for therapy. I go through hardships for no reason at all.
I just want to…be.
Consistent disregard for a transgender student’s preferred name or gender pronouns is a form of discrimination prohibited under the Dignity Act. Discrimination by teachers, like the teacher who harassed Locke,
can especially make students feel disrespected, alienated and unsafe.79 Teachers are in positions of power,
and their use of a student’s correct name and gender pronouns sets a behavioral example for the entire
school community. Research shows that transgender students who have been harassed by teachers show
“dramatically worse health and other outcomes.” For example, 51 percent of transgender or gender nonconforming youth who were harassed at school because of their gender identity reported having attempted suicide; these numbers rose dramatically when teachers were the reported perpetrators: 59 percent
harassed by teachers in K-12 or higher education reported attempting suicide.80
All staff are in need of more training and access to information about transgender and gender nonconforming youth.81 Moreover, “school staff” does not just include teachers – cafeteria workers, hallway
monitors, school safety officers and school administrators regularly interact with youth and play a role in
shaping school climate. But apart from a school’s designated Dignity Act coordinator, in New York State
many staff members receive little to no guidance about how to set up a gender-inclusive learning environment or the issues impacting transgender youth. Even trained Dignity Act coordinators express confusion:
While some coordinators might be clear on the rights of transgender students, many report feeling “powerless” to make changes to school policies or procedures in their school.82
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 17 |
79
LUNCH TIME
Mark, age 15, Capital Region
Mark, who is gender nonconforming, was eating lunch in the cafeteria when his principal pulled him
aside and asked him to remove his makeup. You’re a boy with a full beard. It’s not right. You can do what
you want to do in your own time, but this is distracting to other students. The principal then contacted
Mark’s father to let him know she had instructed Mark to remove his red lipstick and blue eye shadow,
even though identical makeup is allowed for female students. She said she wasn’t sure if Mark was going
through something personally, but that it was not appropriate for him to wear makeup to school and that it
was distracting to the educational environment.
The principal made him feel like he couldn’t be himself at school, said Mark’s father. My son doesn’t need
to feel bad about himself. He’s not hurting anyone. But his father is nervous that if he protests the principal’s behavior further, she will only retaliate by continuing to target Mark. I’m worried that the principal
will be watching what he is wearing every day. My son just needs to be comfortable in school.
Under the Dignity Act, all students have the right for their gender expression to be respected in school,
even when they don’t conform to gender stereotypes. Schools are permitted to enforce a dress code, but
they cannot enforce traditional stereotypes of “masculinity” or “femininity.” Fear that a student’s appearance will be “distracting” – as Mark’s principal told him – is not a legally sound reason to ask them to
change.83 Unfortunately in New York State, gender nonconforming students like Mark are often targeted
for “dress code violations” that lead to uncomfortable encounters with school staff or, in some cases, disciplinary action.84 Research shows gender nonconforming youth are disproportionately targeted by school
discipline policies, and receive harsher disciplinary action than their gender conforming peers.85
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BATHROOM BREAKS
Kate, age 14, Capital Region
When Kate transitioned to female, she had the support of a large group of friends at school. But the
school didn’t want her to use the girls’ bathroom. When she did, she’d get sent to the principal’s office and
threatened with suspension for insubordination, and staff would call her parents at home. Soon, all staff
knew she wasn’t allowed to use the girls’ bathroom and Kate was constantly confronted, which made her
anxious and afraid. Some teachers started telling her she had a bad attitude.
Kate felt like she was the school’s enemy. She started having anxiety attacks, where her breathing
changed and she became dizzy and overwhelmed. Or she would get choked up and have to fight back
tears. She brought her therapist to a meeting with the school’s superintendent to explain that school was
causing her mental distress, and that bathroom access was necessary for people with gender dysphoria.
When the superintendent refused, Kate broke down.
After a long dispute, the school eventually changed their policy and agreed to allow Kate to use the girls’
facilities. But it was too late. I was labeled a trouble-maker, said Kate. It’s like the faculty was against
me. Despite going through a year of disrupted education at her school, Kate chose to uproot herself and
transfer.
Prohibiting a transgender student from using the bathroom that corresponds with their gender identity is
discrimination under the Dignity Act.86 All students are entitled to have access to bathrooms and locker
rooms that correspond with their gender identity. Separate changing areas such as nurse’s offices or gender neutral bathrooms should be made available to students who want them, but never forced upon them.
Otherwise the school would be sending the message to other students that it is acceptable to treat transgender students differently. But bathroom access is an urgent problem for transgender students across
the state. In fact, almost all the requests for legal assistance received by the NYCLU regarding transgender students have dealt with issues related to restroom and locker room access.
Bathroom access is a critical health issue. Denying transgender youth access to bathrooms that correspond with their gender identity can lead to serious medical complications. Many transgender students
also keep their status private – they have a constitutional right to do so – and schools that refuse them
access to the appropriate bathroom almost certainly “out” them to their friends
and classmates. Transgender students
who are not allowed bathroom access
describe limiting trips to the bathroom,
even going all school day without using
the bathroom, out of fear they will be
arouse the suspicion of other students.
Routinely “holding it” can result in health
problems including dehydration, urinary
tract infections, kidney infections and
kidney-related problems.87
Being segregated is damaging to any student, but for a transgender student, like
Kate, segregation also undermines their
full integration into society. When transgender students challenge unfair school
policies like Kate did they can be labeled
as “trouble-makers” by their school or
81
face disciplinary action. Research also shows that transgender and gender nonconforming youth of color,
like Kate, experience discipline disparities and harsher punishment for the same or similar infractions
compared to their peers.88
GYM, SPORTS AND LOCKER ROOMS
Josh, age 17, Syracuse
Josh has to struggle for his basic needs at home and at school. At home, Josh’s parents are separated and
his parents did not always agree on how to support him. At school, where Josh is a serious athlete, other
students don’t know about his transgender status and he had been using the boys’ locker room without
incident. But a staff member reported Josh to the principal, and the school asked him to use the nurse’s
office instead until it creates an official policy for transgender students.
If Josh’s friends see him changing in the nurse’s office, they ask him questions. He’s afraid that if his
classmates find out he’s transgender, he’ll be subject to bullying, harassment and violence. Josh’s father
is scared, too: If he’s outed, he’s not going to be safe. He’ll be a target for physical or sexual assault.
So even though Josh is best at gym, he skips gym class, either
waiting in the principal’s or guidance counselor’s offices. One
day he just left school and his father picked him up early. I feel
so sad – straight out of a movie sad, said Josh. His gym class
average is declining, and his chances of staying on the honor
roll are now at risk. He has asked if he can be home-schooled.
I’m having a whole bunch of bad things going on at home, and
now a whole bunch of bad things are going on at school. It’s
setting me up for depression. I’ve been to nine different therapists. I went to one lady who said the devil was trying to work
through me.
School can make a huge difference. The school has signs that
say “safe space.” But the signs are wrong.
School districts may not treat transgender students differently
with regard to the services, benefits or opportunities provided to them, including all school activities and
intramural sports.89 Sports in particular can be a place for students to form friendships and establish a
sense of belonging.90 Most students featured in this report were discouraged or outright prohibited from
playing on teams that correspond with their gender identity.91 Denying transgender students the ability to engage in extra-curricular activities and sports can affect their college applications and academic
achievement and even fundamentally damage their ties to the school community.92
But even when the rules are clear, the lack of compliance with the Dignity Act in New York State means
that schools are denying transgender youth like Josh their rights and even putting them into danger.
Rather than pushing kids toward their diploma and higher education, the school climate is pushing transgender kids out. School push-out can take a range of forms: For some students it means dropping out or
transferring. For others it means disengaging from the school community, skipping class or opting out
of extracurricular activities. Even students like Josh who receive little support at home ask to stay there
rather than risk their safety in school.
| 20 | NYCLU
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PREVENTION?
Jessie, age 6, New York City
Six-year-old Jessie doesn’t conform to stereotypes about her gender. She plays with boys and wears
boys’ clothing. But at her public school in New York, she is already being bullied. Gender-based bullying
of Jessie began when she was a five-year-old in kindergarten. This year, in first grade, a classmate began taunting her for looking like a boy. Over several weeks the taunting escalated to kicking, hair-pulling,
knocking over her lunch tray and finally tackling her and hitting her repeatedly. Despite her mother filing a
report with the school, the bullying continues.
Her mother recognizes that Jessie may one day identify as male, though at her young age her gender
identity may still be forming. But school is making Jessie embarrassed and confused.
When she lined up with her female classmates after being asked to line up by gender, another kid made
fun of her and shouted, You’re a boy! Jessie doesn’t understand what these comments mean, but she said
the taunting made her heart hurt.
She doesn’t even want to tell me what’s happening, her mother said. I’m afraid she is going to get hurt.
She’s already experienced physical violence. I’m trying to protect her. I’m spending my time going to meetings with the school to see if they can bring in resources. Otherwise I could only imagine what would be
happening to her in school.
Under the Dignity Act, in addition to investigating, reporting and resolving incidents of bias-based discrimination, schools are required to take proactive measures to prevent them. One way for schools to accomplish this is by being mindful of the impact that separating students into “boys” and “girls” has on gender
nonconforming youth like Jessie. Whenever possible, schools should limit separating children by gender
– whether for class, school ceremonies or photos – to only when it has a clear and sound purpose.93 The
classroom is also one of the most effective places to promote respect. National research shows that LGBT
students who attend schools with LGBT-inclusive curricula are less likely to miss school for safety reasons and to report hearing negative comments.94
However, even though the Dignity Act requires schools to use inclusive curricula that promotes tolerance
and diversity, only 30 percent of New York students surveyed in 2013 were taught positive representations
of LGBT people and their history.95 A 2012 analysis of New York School’s health education curricula found
83 percent of districts did not teach students about gender identity or transgender people in health classes.96 When schools did discuss gender identity, nearly a quarter of the districts surveyed used materials
that reinforced gender stereotypes.97
When Jessie’s mom learned her daughter was being harassed, she contacted the principal and recommended that the school start using age appropriate lesson plans to address gender stereotypes as a way
to prevent future harassment. But the school resisted, claiming the administration “fulfilled all of their
training requirements” for the year and that parents in the community would not approve. “I’m going to
get 800 phone calls that we are teaching ‘gay stuff’ in school,” the principal said. Unfortunately, this isn’t
an isolated occurrence.
Education research shows that many teachers feel unprepared to work with transgender children, and
the lack of information about transgender students in professional training programs has left school
staff feeling “stressed, anxious and incompetent.”98 Feelings of stress and fear are heightened further by
the lack of information, guidance and protocols for school staff working with transgender youth. In such
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 21 |
83
situations, “district-wide policies and protocols provide security for educators because following protocol
means they are representing ‘official’ positions and will have ‘backup’ if anything goes wrong.”99 At all
levels, educators and administrators are often frustrated by the lack of information and protocol made
available to them.100
| 22 | NYCLU
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Recommendations
WHEN THE DIGNITY ACT WORKS:
Central Park East II elementary school in New York City was approached by a family looking
for a supportive school for their transgender child. The school’s principal recognized that
the first step was to make sure all of the staff felt equipped to support transgender and
gender nonconforming students. The principal planned a series of trainings for teachers and
administrative staff to ask questions and learn best practices, relying on free or low-cost
trainings from community-based organizations.101 Educating parents was also critical. The
school organized workshops for parents to ensure the whole school community understood
how gender diversity contributes to the academic and emotional success of all students.
Now, students at the school are not segregated by gender for forming lines, gym class
teams or classroom groups. Teachers try not to address students as boys and girls but
gender neutral terms like friends and kiddos. The school is also exploring how to create
gender neutral bathrooms. Parents and community members have ongoing education
opportunities and a support line to voice their concerns and get help from the school.
Without state guidance, school districts in New York have come up with their own patchwork of often inadequate or even illegal policies regarding transgender youth. Even superintendent and principals who are
committed to complying with the Dignity Act – some of whose schools are featured in this report – struggle
without guidance.
The following recommendations are necessary to improve school climate at all New York public schools
for transgender youth.
1. Pass a state regulation to ensure all schools are treating transgender and gender nonconforming
students equally. (See Appendix for Model Policy)
Schools need clear guidelines and support so they know how to follow both the letter and spirit of the
law and can provide a supportive learning environment for all students. States, cities and districts
across the country have paved the way and created model policies that all New York schools can
adopt. At a minimum, state-issued guidance and regulations should clearly state that all schools
are required to:
• Prevent and address all reports of discrimination and harassment, in accordance with the procedures set forth in the Dignity Act.
• Respect student privacy, and keep information about a student’s transgender status private and
confidential.
Dignity for All? Discrimination Against Transgender & Gender Nonconforming Students in NY State | 23 |
85
• Respect the preferred names and gender pronouns of all students, including updating school records and documents to reflect a student’s preferred name and gender.
• Provide transgender students the same opportunities to participate in sports and physical education that all other students enjoy.
• Provide all students with access to restrooms, locker rooms and changing facilities that correspond with their gender identity.
• Provide private bathrooms and changing spaces to all students, regardless of their gender identity,
who desire additional privacy. (No student can be required to use a private bathroom or changing
space.)
• Limit gender-segregated activities whenever possible. When students are separated by gender in
school activities (i.e., overnight field trips), permit transgender students to participate in accordance with their gender identity.
• Implement a dress code that supports the gender expression of all students.
• Provide resources for, and about, transgender or “transitioning” students, including age appropriate lesson plans and resources for parents.
2. Improve data collection and reporting.
• Increase oversight to ensure all schools are in compliance with current reporting requirements.
Approximately one-third of New York State schools did not report any Dignity Act data for the 201213 school year.
• Revise the Dignity Act reporting form to clarify existing categories and create new ones as needed. The category “other” accounts for more than half of all reported incidents. Training or guiding
definitions are needed to ensure educators understand the reporting categories. Adding additional
categories may also allow for a more accurate analysis of incidents. For example, adding “gender
expression” as a category could help capture incidents targeted toward transgender and gender
nonconforming students.
• Require Dignity Act reporting on a quarterly or semi-annual basis. Shorter reporting periods will
enable schools, districts and advocates to better understand the trends and patterns of reported
incidents in a school community and the impact of new policies or reform efforts.
• Require schools to report preventative measures taken to improve school climate. Data should be
reported about local training opportunities provided to school staff as well as the number of employees who participated.
3. Increase training opportunities for all school staff.
Most school staff receive little or no guidance on how to best support transgender and gender nonconforming students.
• Training is needed for all adults working in schools to ensure they understand the range of gender
identities and expression and how to take steps to create a supportive environment for all students.
• In addition, for the Dignity Act to be effective, school staff and students need access to informa| 24 | NYCLU
86
tion about what the law requires, what to do when incidents occur, and best practices to prevent
bullying and harassment. Trainings should be regular, mandatory and include a review of gender
inclusive school policies.
4. Increase student access to information.
• Incorporate positive information about transgender issues into curricula.
• Provide students and parents with information about the Dignity Act, how to file reports and identify adult allies at school.
• Students need access to trained adults when incidents of bullying, harassment or discrimination
occur in school. Individual schools should take proactive measures to ensure all students are empowered to recognize and report incidents impacting their school community.
• Provide students with information about transgender affirming mental health care resources and
health care providers.
• Ensure school computers are free of filtering software that blocks information about LGBT people,
history, rights and organizations.
• Provide students and staff with information about mental health care services and positive information about gender identity and expression. Materials can be integrated into health classes and
displayed in the nurse and guidance offices.
5. Promote positive behavioral interventions and supports.
The Dignity Act holds the State Education Commissioner responsible for helping school districts develop effective responses to bullying that are focused on solutions, intervention and education. When
bullying does occur in schools, punishing students should not be the primary form of intervention.
Instead positive methods for preventing and resolving conflict should be used to address harmful behavior and enable students to develop a stronger sense of empathy and compassion for each other,
as well as for their teachers.102
87
References
1 Cameron Langrell, “Wisconsin Trans Teen Bullied for Femininity Dies by Suicide,” The Advocate, 7 May 2015. Available at
http://www.advocate.com/politics/transgender/2015/05/07/wisconsin-trans-teen-bullied-femininity-dies-suicide (last visited
May 25, 2015).
2 Ann P. Haas, Philip L. Rodgers and Jody L. Herman, Suicide Attempts Among Transgender and Gender Non-Conforming
Adults, American Foundation for Suicide Prevention and Williams Institute, UCLA School of Law, Jan. 2014: 2. Available at
http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf (last visited May 25,
2015). See also Arnold H. Grossman and Danny R. D’Augelli, “Transgender Youth and Life-Threatening Behaviors,” Suicide
and Life-Threatening Behavior 37 (2007) 527-537 (finding overall 18 percent of interviewed transgender teenagers reported an
attempted suicide that was linked to their transgender identity).
3 Joseph G. Kosciw, Emily A. Greytak, Neal A. Palmer and Madelyn J. Boesen, The 2013 National School Climate Survey: The
Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools, Gay, Lesbian & Straight Education Network, Oct. 2014: 21-24 (hereinafter “GLSEN 2013 School Climate Survey”). Available at http://www.glsen.org/sites/default/
files/2013%20National%20School%20Climate%20Survey%20Full%20Report_0.pdf (last visited May 25, 2015).
4 Jaime M. Grant, Lisa A. Mottet, Mark Tanis, Jack Harrison, Jody L. Herman and Mara Keisling, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian
Task Force, Feb. 2011: 33 (hereinafter “National Transgender Discrimination Survey”). Available at http://www.thetaskforce.
org/static_html/downloads/reports/reports/ntds_full.pdf (last visited May 25, 2015). See also Emily A. Greytak, Joseph G.
Kosciw and Elizabeth M. Diaz, Harsh Realities: The Experiences of Transgender Youth in Our Nation’s Schools, Gay, Lesbian &
Straight Education Network, 2009: 25-29. Available at http://www.glsen.org/sites/default/files/Harsh%20Realities.pdf (last
visited May 25, 2015).
5 See id. at 2.
6 Lance Freeman and Darrick Hamilton, A Count of Homeless Youth in New York City, Empire State Coalition of Youth and
Family Services, 2008. Available at http://www.racismreview.com/downloads/HomelessYouth.pdf (last visited May 25, 2015).
See also Movement Advancement Project et al., Understanding Issues Facing Transgender Americans (2015). Available at http://
www.glaad.org/publications/understanding-issues-facing-transgender-americans (last visited May 26, 2015).
7 Samantha Allen and Nico Lang, “11 Ways 2014 Was the Biggest Year in Transgender History,” Rolling Stone 23 Dec. 2014.
Available at http://www.rollingstone.com/culture/features/11-ways-2014-was-the-biggest-year-in-transgender-history-20141223 (last visited May 25, 2015).
8 Katy Steinmetz, “The Transgender Tipping Point,” cover, TIME Magazine, 9 June 2014. Available at http://time.com/135480/
transgender-tipping-point/ (last visited May 26, 2015).
9 “The Quest for Transgender Equality,” New York Times 4 May 2015: A22; pt. 1 of a series, Transgender Today, begun 4 May
2015. Available at http://www.nytimes.com/interactive/projects/storywall/transgender-today (last visited May 26, 2015).
10 Will Oremus, “Here are all the Different Genders You Can Be on Facebook,” Slate, 13 Feb. 2014. Available at http://www.
slate.com/blogs/future_tense/2014/02/13/facebook_custom_gender_options_here_are_all_56_custom_options.html (last
visited May 26, 2015).
11 Alexandra Jaffe, “Obama makes historic ‘transgender’ reference in SOTU,” CNN, 20 Jan. 2015. Available at http://www.cnn.
com/2015/01/20/politics/obama-transgender-sotu/ (last visited May 26, 2015).
12 Based on legal intakes received by the NYCLU from 2009-14.
13 N.Y. Educ. Law § 11 (“‘Gender’ shall mean actual or perceived sex and shall include a person’s gender identity or expression”); see also N.Y. Educ. Law §§10-18, 801-a, 2801 (2012).
14 See id.
15 See National Transgender Discrimination Survey, supra note 4.
88
16 For most students in this report, pseudonyms have replaced actual names to protect their privacy. The ages of the youth
featured in this report refer to their age at the time the NYCLU first received their legal intake. Many of the events the students described therefore took place when the student was younger.
17 A model policy is available as an appendix to this report.
18 See Appendix at 6.
19 See National Center for Transgender Equality and Gay, Lesbian & Straight Education Network, Model District Policy on
Transgender and Gender Nonconforming Students (2014). Available at http://www.glsen.org/sites/default/files/Trans_ModelPolicy_2014.pdf (last visited May 26, 2015).
20 See, e.g., Eli Coleman, et al. Standards of Care for the Health of Transsexual, Transgender and Gender-Nonconforming People
7th ed., World Professional Association for Transgender Health, 2012 (hereinafter “Standards of Care”). Available at http://
www.wpath.org/uploaded_files/140/files/Standards%20of%20Care,%20V7%20Full%20Book.pdf (last visited May 26, 2015).
21 The First Amendment of the U.S. Constitution guarantees students the right to free expression, including how they present
their gender to others. Furthermore, transgender students also have a right to privacy, and schools are required to keep their
transgender status confidential. See Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (holding that “the Constitution does
indeed protect the right to maintain the confidentiality of one’s transsexualism”).
22 The Diagnostic and Statistical Manual of Mental Disorders, 5th ed. (American Psychiatric Association, 2013).
23 California School Board Association, Policy Brief: Providing a Safe, Nondiscriminatory School Environment
for Transgender and Gender-Nonconforming Students, (2014) 1. Available at
http://www.csba.org/~/media/E68E16A652D34EADA2BFDCD9668B1C8F.ashx (last visited May 26, 2015).
24 See, e.g., Colleen Owens, “Transgender patients seek endocrinology care more often,” Endocrine Today 12 (2014)
1. Available at http://www.healio.com/endocrinology/hormone-therapy/news/print/endocrine-today/%7B2aff76c9-adad-4b0d-b04e-623b37dde54d%7D/transgender-patients-seek-endocrinology-care-more-often-require-more-information (last visited May 26, 2015); Declan Harvey and Liam Smedley, “Referrals for young transgender people increase,” BBC
Newsbeat 5 Feb. 2015. Available at http://www.bbc.co.uk/newsbeat/31120152 (last visited May 26, 2015).
25 Haas, et al., supra note 2.
26 National Transgender Discrimination Survey, supra note 4, at 7.
27 See Freeman and Hamilton, supra note 6. See also Movement Advancement Project, et al., supra note 6.
28 As many as 40 percent of homeless youth identify as LGBT. See Haas, et al., supra note 2 (“Of all the agencies’ LGBT homeless clients, 68 percent have experienced family rejection and more than half (54 percent) experienced abuse in their family”).
29 Arnold H. Grossman and Danny R. D’Augelli, “Transgender Youth: Invisible and Vulnerable,” Journal of Homosexuality 51
(2006) 111, 122 (“Attending school was reported to be the most traumatic aspect of growing up”).
30 See GLSEN 2013 School Climate Survey, supra note 3.
31 Id.
32 Id.
33 Id.
34 National Transgender Discrimination Survey, supra note 4, at 7 (“In the face of extensive institutional discrimination, family
acceptance had a protective affect against many threats to well-being including health risks such as HIV infection and suicide”).
35 See Greytak, et al., supra note 4.
36 Harassment is negatively associated with transgender students’ grade point averages, and with their likelihood of stating
they plan to go to college. See id.
37 National Transgender Discrimination Survey, supra note 4, at 51.
89
38 One-in-five transgender people in the United States has been discriminated against when seeking a home, and more than
one-in-ten have been evicted from their homes, because of their gender identity. This data is provided by the National Center
for Transgender Equality and is available at http://transequality.org/issues/housing-homelessness (last visited May 27, 2015).
39 National Transgender Discrimination Survey, supra note 4, at 153.
40 See generally National Transgender Discrimination Survey, supra note 4 (experiences of anti-transgender harassment and
violence at school were correlated with a range of negative outcomes including unemployment, homelessness, incarceration
and resorting to drugs and alcohol to dull the pain of abuse).
41 See id. at 44.
42 Id.
43 See id. at 33-45. Fifty-one percent of youth who were verbally harassed, physically or sexually assaulted, or expelled because they were transgender or gender nonconforming reported having attempted suicide. Large majorities of those who had
been physically assaulted by peers (64 percent) and those who had been harassed (59 percent) or assaulted (76 percent) by
teachers or staff had at some point attempted suicide. See also Haas, et al., supra note 2.
44 Id.
45 Id.
46 Title IX of the Education Amendments of 1972. 20 U.S.C. §§ 1681 – 1688. In 2014, the Department of Education issued
official guidance confirming that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender
identity or failure to conform to stereotypical notions of masculinity or femininity.” Office for Civil Rights, U.S. Dep’t of Education, Questions and Answers on Title IX and Sexual Violence (April 29, 2014) 5-6. Available at http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (last visited May 27, 2015).
47 See U.S. Const., amend. XIV, § 1.
48 See Powell, F.3d 107 at 111.
49 The Dignity Act was signed into law on September 13, 2010 and took effect in 2012. It amended the New York State Education Law by creating a new Article 2, Dignity for All Students, and revising section 801-a on instruction in civility, character,
education, tolerance and respect for others. N.Y. Educ. Law §§10-18, 801-a, 2801 (2012).
50 Id.
51 A map created by GLSEN indicates states which have anti-bullying laws which specifically protect students on the basis of
sexual orientation and gender identity. These states include Arkansas, California, Colorado, Connecticut, Illinois, Iowa, Maine,
Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont and
Washington. Available at http://glsen.org/article/state-maps (last visited May 27, 2015).
52 Id. Map created by GLSEN. Available at http://glsen.org/article/state-maps (last visited May 27, 2015).
53 See generally National Transgender Discrimination Survey, supra note 4.
54 See New York State Department of Education, A Resource and Promising Practices Guide for School Administrators & Faculty,
Appendix A: Dignity for All Students Act (Dignity Act) Glossary and Acronym Guide (New York: New York State Department of Education 2013). Dignity Act guidance defines sex as the biological and physiological characteristics that define men and women.
Sex is different than gender, and people may have gender identities or gender expressions that differ from their sex. Sex and
gender discrimination and harassment may also overlap, particularly when a student is gender nonconforming, meaning he
or she expresses his or her gender in a way that does not conform to society’s expectations. Harassment directed toward that
student may take the form of both sexual harassment and gender harassment. See also William P. McFarland, “The Legal
Duty to Protect Gay and Lesbian Students from Violence in School,” Professional School Counseling, 4 (2001) 171.
55 N.Y. Educ. Law § 11[6). Student privacy concerns make ethical, and confidential, collection of information about transgender and gender nonconforming youth challenging.
56 NYCLU analysis of Dignity for All Students Act reporting via N.Y. Educ. Law § 15 (hereinafter “Dignity Act Data”) 2012-13.
90
57 Id.
58 Id.
59 Id.
60 Id.
61 Id.
62 Evie Blad, “Efforts Build to Track School Climate for LGBT Students,” Education Week, Oct. 2014. Available at http://www.
edweek.org/ew/articles/2014/10/22/09lgbt.h34.html (last visited: May 27, 2015).
63 Dignity Act Data, supra note 56.
64 In New York City, the NYCLU’s legal intakes indicate that the Dignity Act coordinator is often referred to as the “Respect for
All” coordinator or liaison.
65 Identifying and Appointing the Dignity Act Coordinator (DAC), 8 NYCRR §100.2[jj][4][vii].
66 The NYCLU’s Teen Activist Project (TAP) created and distributed a survey in 2013-14 to find out if students could identify Dignity Act coordinators in their schools. TAP members distributed and collected 370 anonymous surveys to their peers,
ranging from ninth to 12th grade, in New York City schools. The Teen Activist Program, Making Dignity a Reality: Dignity Act
Implementation, Report Back and Recommendations, New York Civil Liberties Union, June 2013. For a copy, contact the NYCLU
at [email protected].
67 Gay, Lesbian & Straight Education Network, School Climate in New York: State Snapshot (New York: GLSEN, 2014) (hereinafter “New York Snapshot”). Available at http://www.glsen.org/sites/default/files/GLSEN%202013%20New%20York%20
State%20Snapshot.pdf (last visited May 27, 2015).
68 Id.
69 See New York Civil Liberties Union, Policy for Creating a Safe and Supportive School Environment For Transgender and Gender
Nonconforming Students, June 2015: 6 (hereinafter “Model Policy”) (citing Application of Halligan, 361 N.Y.S.2d 458, 460 (4th
Dep’t 1974) (“[A]n individual possesses a broad right to assume a new name at common law and in most instances denial of
the application will accomplish little except delay the change and add to the confusion of records until a new name is established by usage”)).
70 Powell, 175 F.3d at 111.
71 The responsibility for determining a student’s gender identity rests with the student or, in the case of very young students
not yet able to advocate for themselves, with the parent. Confirmation of a student’s asserted gender identity is usually as
simple as a statement from the student; it may also include a letter from a parent, health care provider, school staff member
familiar with the student (a teacher, guidance counselor, or school psychologist, among others), or other family members or
friends. See Model Policy, supra note 69.
72 See Standards of Care, supra note 20, at 176-9.
73 While some transgender students may have a diagnosis of “gender dysphoria,” not all transgender youth want, or have access to, mental health care. See Eve Glicksman, “Transgender Today,” Monitor on Psychology, 44 (2013) 36. To the extent that a
student has a diagnosis, discrimination on the basis of disability is prohibited under New York State laws, including the Dignity
Act. Furthermore, standard treatment for transgender youth diagnosed with gender dysphoria is that the child be allowed to
live, uninterrupted, in the gender with which they identify. School policies that prohibit a student with gender dysphoria from
living fully in the gender they identify with is a form of discrimination on the basis of disability. See Wilson v. Phoenix House, 978
N.Y.S.2d 748, 750 (N.Y. Sup. Ct. 2013) (holding that gender dysphoria is a disability that must be accommodated under New
York law, and that a reasonable accommodation for a transgender woman is being “entitled to experience living as” a female);
Doe v. Bell, 754 N.Y.S.2d 846, 851 (Sup. Ct. 2003); N.Y. Civ. Rights § 40-c(2) (defining disability as consistent with the New York
State Human Rights Law).
74 Transgender youth registration is not the only context where problems have emerged due to school staff members acting
as “gatekeepers” to school enrollment. In New York State, widespread reports over the past several years indicated that
school staff members were creating unlawful barriers to enrollment for immigrant children across the state, prompting
the NYCLU to write a 2014 letter to Commissioner John King. See Donna Lieberman and Johanna Miller, letter to New York
91
State Department of Education Commissioner John King, 2014 (“We ask that the New York State Education Department
(‘SED’) take immediate steps to ensure that all districts in New York adopt enrollment forms and requirements that affirm
every child’s right to an education”). Available at http://www.nyclu.org/files/releases/SEDletter_studentenrollmentbarriers_10.30.14.pdf (last visited May 27, 2015).
75 Joseph G. Kosciw, et al., The 2011 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender
youth in our nation’s schools, Gay, Lesbian & Straight Education Network 2012: xiii-xx.
76 Stephen T. Russell, et al., “Lesbian, gay, bisexual, and transgender adolescent school victimization: implications for
young adult health and adjustment,” Journal of School Health 81 (2011) 223.
77 See Greytak et al., supra note 4.
78 See generally National Transgender Discrimination Survey, supra note 4 (experiences of anti-transgender harassment
and violence at school were correlated with a range of negative outcomes including unemployment, homelessness, incarceration, and resorting to drugs and alcohol to dull the pain of abuse).
79 See, e.g., Carrie Kilman, “The Gender Spectrum,” Teaching Tolerance 44 (2013). Available at http://www.tolerance.org/gender-spectrum (last visited: May 27, 2015).
80 National Transgender Discrimination Survey, supra note 4, at 3, 33.
81 Education research has found that lack of education about addressing the needs of transgender students, as well as lack
of awareness of the existence and experience of transgender students, poses significant impediments to educators responding in a professional and effective way. “Future school professionals have few opportunities in their training programs to
reflect on the likelihood that at some point, they will be working with LGBTQ or gender nonconforming children or parents.
In short, they have not been trained on how to work with these students, and this lack of training left them feeling stressed,
anxious, and incompetent when faced with creating accommodations for a transgender child.” Elizabeth Payne and Melissa
Smith, “The Big Freak Out: Educator Fear in Response to the Presence of Transgender Elementary School Students,” Journal
of Homosexuality, 61 (2014) 399, 405.
82 These reports consist of NYCLU interviews and intakes since 2009.
83 See Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
84 See Lambda Legal, Protected and Served? School Security, Policing and Discipline (Lambda Legal 2015). Available at http://
www.lambdalegal.org/protected-and-served-schools (last visited May 27, 2015).
85 Hilary Burdge, Zami T. Hyemingway and Adela C. Licona, Gender Nonconforming Youth: Discipline Disparities, School PushOut, and the School-to-Prison Pipeline, Gay-Straight Alliance Network, Oct. 2014: 4-5. Available at http://www.gsanetwork.org/
files/aboutus/GSA_GNC_FINAL-web.pdf (last visited May 27, 2015).
86 The Dignity Act prohibits the creation of a “hostile environment’ that may interfere with a student’s educational performance or opportunities, or harm their mental, emotional and/or physical well-being. The New York State Education Department, in the Promising Practices Guide for School Administrators & Faculty, supra note 54, defines school climate as “the quality
and character of school life.”
87 Jody L. Herman, “Gendered Restrooms and Minority Stress: The Public Regulation of Gender and its Impact on Transgender People’s Lives,” Journal of Public Management & Social Policy 19 (2013) 65-80. Available at http://williamsinstitute.law.
ucla.edu/wp-content/uploads/Herman-Gendered-Restrooms-and-Minority-Stress-June-2013.pdf (last visited May 27, 2015).
88 See Lambda Legal, supra note 84.
89 U.S. Department of Education, Office for Civil Rights, letter to Downey Unified School District Superintendent John Garcia
(2014) (hereinafter “Downey Letter”) (Title IX of the Education Amendments Acts of 1972 prohibits discrimination against students who do not conform to sex stereotypes in all federally funded school programs and activities, including sex segregated
sports). Available at http://www2.ed.gov/documents/press-releases/downey-school-district-letter.pdf (last visited: May 27,
2015).
90 Jon Douglas Willms, Student Engagement at School: A Sense of Belonging and Participation, Organisation for Economic
Co-Operation and Development, 2003. Available at http://www.oecd.org/edu/school/programmeforinternationalstudentassessmentpisa/33689437.pdf (last visited May 27, 2015).
91 See GLSEN 2013 School Climate Survey, supra note 3, at 58 (For students in general, prior research has shown that
92
participation in school activities like sports is positively linked to academic achievement and psychological well-being. Yet students who experience frequent harassment at school may choose not to spend additional time in that environment and may
be less likely to be involved in optional school activities like extracurricular clubs, and in fact, many students in our survey
reported specifically avoiding extracurricular activities because they felt unsafe or uncomfortable. These students may not
gain the same benefits from extracurricular participation as students who experience less frequent harassment.)
92 Id.
93 See Model Policy, supra note 69.
94 See generally GLSEN 2013 School Climate Survey, supra note 3. National research shows that LGBT students who attend
schools with LGBT inclusive curriculum are less likely to miss school because they feel unsafe and were less likely to report
negative comments about gender expression often or frequently.
95 New York Snapshot, supra note 67.
96 Melissa Goodman, et al., Birds, Bees and Bias: How Absent Sex Ed Standards Fail New York’s Students, New York Civil Liberties Union, Sept. 2012: 44. Available at http://www.nyclu.org/files/publications/NYCLU_SexEd_report.pdf (last visited May 27,
2015).
97 Id.
98 Payne, supra note 81, at 408.
99 Id.
100 Id.
101 The NYCLU and The Gender and Family Project of the Ackerman Institute for the Family held workshops at Central Park
East II.
102 Andrea M. Cohn, Positive Behavioral Supports: Information for Educators, National Association of School Psychologists,
2001. Available at http://www.nasponline.org/resources/factsheets/pbs_fs.aspx (last visited May 27, 2015).
93
Model Policy for Creating a Safe and Supportive School
Environment For Transgender and
Gender Nonconforming Students
Developed by the Empire Justice Center, the Empire State Pride Agenda and the NYCLU,
with contributions and support from organizations across the state.1
TABLE OF CONTENTS
Introduction
Definitions
The Law
Understanding the School Climate
Understanding Gender Identity
Gender Transition
Names and Pronouns
Privacy, Confidentiality and Student Records
2
2
3
3
4
6
6
7
Gender Markers on Student Records
8
Restrooms, Locker Rooms, and Changing Facilities
9
Physical Education Classes and Intramural and Interscholastic Athletic Activities
10
Other Gender-Based Activities, Rules, Policies and Practices
10
Education and Training
11
Communication with School Community and Families
12
Conclusion
12
1 Contributors and supporters include: Advocates for Children; Gay, Lesbian & Straight Education Network
(GLSEN); Gay & Lesbian Youth Services (GLYS) of Western New York, Inc.; Hetrick-Martin Institute; The Pride
Center of Western New York; New York Legal Assistance Group (NYLAG); The Lesbian, Gay, Bisexual & Transgender Community Center; Transgender Legal Defense & Education Fund (TLDEF); Make the Road New York;
Lambda Legal; The Queering Education Research Institute (QuERI); Long Island Gay and Lesbian Youth (LIGALY);
LGBT Network; Long Island LGBT Community Center; Services and Advocacy for LGBT Elders – Long Island
(SAGE-LI); Queens LGBT Community Center; Pride for Youth.
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INTRODUCTION
Federal, state and local laws require schools to treat transgender and gender nonconforming (GNC)
students equally and fairly. All students need a safe and supportive school environment to progress academically and developmentally. Administrators, faculty, staff and students each play an important part in
creating and sustaining that environment. This policy is intended to help school and district administrators take steps to create a culture in which transgender and GNC students feel safe, supported and fully
included, and to meet each school’s obligation to provide equal educational opportunities for all students
in compliance with the law. This guidance recognizes that transgender and GNC students enrolled in our
schools face disproportionately high rates of discrimination and harassment.
The purpose of this policy is to foster an educational environment that is safe and free from discrimination
for all students – regardless of sex, gender identity or expression – and to facilitate compliance with local,
state and federal laws concerning bullying, harassment, discrimination and student privacy.
In order to make this document as helpful as possible, illustrative examples that highlight frequently-asked questions appear in italics throughout. These scenarios, based on real-life examples from students and schools, provide context for how this policy can be followed.
DEFINITIONS
Understanding the terminology associated with gender identity is important to providing a safe and supportive school environment for students whose rights are protected under the law. The following terms
appear in this document and are defined to assist in understanding the guidance presented. These are the
most commonly used terms, though students may prefer other terms to describe their gender identity,
appearance or behavior. Terminology and language describing transgender and GNC individuals can differ
based on region, language, race or ethnicity, age, culture and many other factors. School staff and educators should inquire which terms students prefer and avoid terms that make students uncomfortable; a
good general guideline is to employ terms the students use to describe themselves.
Assigned sex at birth: the sex designation, usually “male” or “female,” assigned to a person when they are
born.
Gender expression: the manner in which a person represents or expresses gender to others, often through
behavior, clothing, hairstyles, activities, voice or mannerisms.
Gender identity: a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.
Gender nonconforming (GNC): a term used to describe people whose gender expression differs from stereotypic expectations. The terms “gender variant” or “gender atypical” are also used.
Sexual orientation: a person’s emotional and sexual attraction to other people based on the gender of the
other person. Sexual orientation is not the same as gender identity. Not all transgender youth identify as
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2
gay, lesbian or bisexual, and not all gay, lesbian and bisexual youth display gender-nonconforming characteristics.2
Transgender: an adjective used to describe a person whose sex assigned at birth does not correspond to
their gender identity.
Transition: the process in which a person goes from living and identifying as one gender to living and identifying as another.
THE LAW
This policy3 provides guidance on how to follow existing laws that protect transgender, GNC and all other
students from discrimination, bullying and harassment based on sex, gender identity or gender expression.
Specifically, New York’s Dignity for All Students Act (Dignity Act) is designed to prevent bullying, harassment and discrimination in public primary and secondary schools, including on the basis of gender identity.4 The Dignity Act includes gender as a protected category and defines gender as “a person’s actual or
perceived sex and includes a person’s gender identity or expression.”5 The Dignity Act’s “Resource and
Promising Practices Guide for School Administrators & Faculty” contains a section on creating an inclusive school community and fostering sensitivity to the school experience of LGBTQ students.6
UNDERSTANDING THE SCHOOL CLIMATE
Transgender and GNC students are targeted with physical violence and experience a hostile school environment at an even higher rate than their LGB peers, both nationally and in New York.7 In one 2011 national survey, 75 percent of transgender students reported having been verbally harassed in the previous
year, 32 percent physically harassed, and 17 percent physically assaulted.8 These high rates of bullying
correspond to adverse health and educational consequences. A different national survey, also conducted
in 2011, found that 51 percent of respondents who were harassed or bullied in school reported attempting
suicide, compared to less than 2 percent of the general population.9 Students also suffered harassment
2 California School Board Association, Policy Brief: Providing a Safe, Nondiscriminatory School Environment
for Transgender and Gender-Nonconforming Students, 1 (2014), available at http://www.csba.org/~/media/E68E16A652D34EADA2BFDCD9668B1C8F.ashx.
3 This policy is modeled on Massachusetts Department of Elementary and Secondary Education, Guidance for Massachusetts Public Schools Creating a Safe and Supportive School Environment, (2012), http://www.doe.mass.edu/ssce/GenderIdentity.pdf and GLSEN and the National Center for Transgender Equality, Model District Policy on Transgender and Gender
Nonconforming Students, (2013), http://www.transequality.org/PDFs/Trans_ModelPolicy_2013.pdf.
4 N.Y. Educ. Law §10-18 (2010); 8 NYCRR §100.2[l][2].
5 N.Y. Educ. Law §11(6).
6 New York State Education Department (NYSED), The Dignity Act, A Resource and Promising Practices Guide for School
Administrators & Faculty, Creating an Inclusive School Community: Sensitivity to the Experience of Specific Student Populations:
LGBTQ Children, Section II (Mar. 11, 2014), available at http://www.p12.nysed.gov/dignityact/rgsection2.html (defining LGBTQ
as “individuals who self-identify as either lesbian, gay, bisexual, transgender, or questioning”).
7 GLSEN (Gay, Lesbian, Straight Education Network), School Climate in New York (State Snapshot), 2 (2013), available at
http://glsen.org/learn/research/local/state-snapshots (finding the majority of New York K-12 students surveyed reported
being verbally harassed based on their gender identity/expression and/or sexual orientation).
8 GLSEN, 2011 National School Climate Survey, available at http://glsen.org/sites/default/files/2011%20National%20
School%20Climate%20Survey%20Full%20Report.pdf [hereinafter “National School Climate Survey”].
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so severe that it led almost one-sixth (15 percent) to leave a school in K-12 settings or in higher education.10 Moreover, LGBT students who are bullied and harassed are more likely to miss days of school, feel
excluded from the school community, and have lower academic achievement and stunted educational
aspirations.11
The Dignity Act and this policy reflect the reality that transgender and GNC students are enrolled in New
York public schools. These students, because of widespread misunderstanding and lack of knowledge
about their lives, are at a higher risk for peer ostracism, victimization and bullying. Educators play an essential role in advocating for the well-being of students and creating a school culture that supports them.
UNDERSTANDING GENDER IDENTITY
Transgender youth are those whose assigned birth sex does not match their internalized sense of their
gender (their “gender-related identity”), and GNC youth are those whose gender-related identity does not
meet the stereotypically expected norms associated with their assigned sex at birth. A transgender boy,
for example, is a youth who was assigned the sex of female at birth but has a clear and persistent identity as male. A transgender girl is a youth who was assigned the sex of male at birth but has a clear and
persistent identity as female. GNC youth range in the ways in which they identify as male, female, some
combination of both, or neither.
The responsibility for determining a student’s gender identity rests with the student or, in the case of
very young students not yet able to advocate for themselves, with the parent.12 One’s gender identity is an
innate, largely inflexible characteristic of each individual’s personality that is generally established by age
four, although the age at which individuals come to understand and express their gender identity may vary
based on each person’s social and familial social development. As a result, the person best situated to
determine a student’s gender identity is that student.
EXAMPLE:
In one town, the parents of a preschool-age child who was assigned “female” at
birth noted throughout the child’s early years that their child identified as a boy.
For as long as the parents could remember, the child preferred to play with boys
rather than girls, wanted a short haircut, rejected wearing any clothing that the
child identified as “something a girl would wear” and ignored anyone who called
him by his stereotypically feminine name. When it was time for the child to enter
kindergarten, the child said to his parents, “You have to tell them when I go to kindergarten that I’m a boy.”
9 Jaime M. Grant, et al., National Center for Transgender Equality and National Gay and Lesbian Task Force, Injustice at
Every Turn: A Report of the National Transgender Discrimination Survey, 3, 45 (2011), http://www.thetaskforce.org/downloads/
reports/reports/ntds_full.pdf
10 Id. at 3.
11 National School Climate Survey, supra note 7, at xv, 4, 21, 25-26, 40-41, 58, 61, 64-65, 122.
12 When used in this document, the term “parent” refers to parent as well as legal guardian.
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A school should accept the gender identity a student asserts. In most situations, determining a student’s
gender identity is simple. A student who says she is a girl and wishes to be regarded that way throughout
the school day should be respected and treated like a girl. The same applies to a student who says he is a
boy. Both students should be respected and treated as the gender identity they assert.
Many transgender people experience discrimination and some experience violence due to their status.
Some environments may feel safe and inclusive, and others less so, challenging a person’s ability to live
consistently with one gender identity in all aspects of life. For example, it is possible that a student assigned “male” at birth, with a female gender identity, who lives as a girl, does not express her female
gender identity all the time.
EXAMPLE:
In one case, a student agreed to present as a boy when visiting relatives until the
student’s parents could explain the student’s transgender identity to them. The fact
that the student did not exclusively assert her female identity did not alter the fact
that she had a female gender identity.
Confirmation of a student’s asserted gender identity is usually as simple as a statement from the student;
it may also include a letter from a parent, health care provider, school staff member familiar with the student (a teacher, guidance counselor or school psychologist, among others), or other family members or
friends. A letter from a social worker, doctor, nurse practitioner or other health care provider stating that
a student is being provided medical care or treatment relating to her/his/their gender identity is one form
of confirmation of an asserted gender identity. It is not, however, the exclusive form upon which the school
or student may rely. A letter from a clergy member, coach, family friend or relative stating that the student
has asked to be treated consistent with her/his/their asserted gender identity, or photographs at public
events or family gatherings are other potential forms of confirmation. These examples are intended to be
illustrative rather than comprehensive, and in most cases nothing beyond a statement from the student
should be required. Transgender and GNC students form a diverse community, and they may differ in how
they present, including differences in factors like their comfort level with being known as transgender or
GNC, their transition status, their age and their gender expression.
EXAMPLE:
In one middle school, a student assigned “male” at birth explained to her guidance counselor that she was a transgender girl who expressed her female gender
identity only at home. The stress associated with having to hide her female gender
identity at school was having a negative impact on her mental health, as well as
on her academic performance. The student and her parents asked if it would be
okay if she expressed her female gender identity at school. The guidance counselor
assured the student and her parents that she could. The fact that the student presented no documentation to support her gender identity was not a concern since
the school had no reason to believe the request was based on anything other than
a sincerely held belief that she had a female gender identity.
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5
GENDER TRANSITION
Many, though not all, transgender youth undergo the experience of gender transition. The term “gender
transition” describes the experience by which a person goes from living and identifying as one gender
to living and identifying as another. For most youth, and for all young children, the experience of gender
transition involves no medical intervention. Rather, most transgender youth will undergo gender transition through a process commonly referred to as “social transition,” whereby they begin to live and identify
as the gender consistent with their gender-related identity. Some transgender youth who are close to
reaching puberty, or after commencing puberty, may complement social transition with medical intervention that may include hormone suppressants, cross-gender hormone therapy, and, for a small number of
young people, a range of gender-confirming surgeries. The decision about whether and how to undergo
gender transition is personal and depends on the unique circumstances of each individual. There is no
threshold medical or mental health diagnosis or treatment requirement that any student must meet in
order to have his/her/their gender identity recognized and respected by a school.
Some transgender and GNC students have not talked to their families about their gender identity for reasons including safety concerns or a lack of acceptance. School personnel should speak with the student
first before discussing a student’s gender nonconformity or transgender status with the student’s parent
or guardian. For the same reasons, school personnel should discuss with the student how the school
should refer to the student, e.g., appropriate pronoun use when communicating with the student’s parent
or guardian.
NAMES AND PRONOUNS
The issue of the name and pronoun to use in referring to a transgender student is one of the first that
schools must resolve to create an environment in which that student feels safe and supported. Transgender students often choose to change the name assigned to them at birth to a name that is associated with
their gender identity. As with most other issues involved with creating a safe and supportive environment
for transgender students, the best course is to engage the student, and in the case of a younger student,
EXAMPLE:
In one situation where a transgender girl was entering high school, she and
her parent asked the principal to inform her teachers that even though her
school records indicate that her name is John, she goes by the name Jane and
uses female pronouns. With permission from Jane, the school principal sent
the following memorandum to the student’s classroom teachers:“The student
John Smith wishes to be referred to by the name Jane Smith, a name that is
consistent with the student’s female gender identity. Please be certain to use the
student’s preferred name in all contexts, as well as the feminine pronouns. It is my
expectation that students will similarly refer to the student by her chosen name
and preferred pronouns. Your role modeling will help make a smooth transition
for all concerned. If students do not act accordingly, you may speak to them
privately after class to request that they do. Continued, repeated and intentional
misuse of names and pronouns may erode the educational environment for Jane. It
should not be tolerated and can be grounds for student discipline. If you need any
assistance to make sure that Jane Smith experiences a safe, nondiscriminatory
classroom atmosphere, please contact me.”
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the parent, with respect to name and pronoun use, and agree on a plan to initiate that name and pronoun
use within the school. The plan also could include when and how this is communicated to students and
their parents. In the case of a transgender student who is enrolling at a new school, it is important that
the school respect the student’s privacy (see the following section) and chosen name.
New York law recognizes common law name changes.13 An individual may adopt a name that is different
from the name that appears on his/her/their birth certificate provided the change of name is done for
an honest reason, with no fraudulent intent. Nothing more formal than usage is required. Hence, when
requested, schools should accurately record the student’s chosen name on all records, whether or not the
student, parent or guardian provides the school with a court order formalizing a name change.
In sum, school personnel should use the student’s chosen name and pronouns appropriate to a student’s
gender identity, regardless of the student’s assigned birth sex. For those students who have been attending a school and undergo gender transition while attending the same school, it is important to develop a
plan for initiating use of the chosen name and pronouns consistent with the student’s gender identity.
PRIVACY, CONFIDENTIALITY AND STUDENT RECORDS
Under the Constitution, students have a right to keep their transgender status confidential if they
so choose.14 Under the New York Education Law,15 information about a student’s assigned birth sex,
name change for gender identity purposes, gender transition, medical or mental health treatment
related to gender identity, or any other information of a similar nature, regardless of its form, is part
of the individual’s student record, is confidential and must be kept private and secure, except in limited
circumstances. The Family Educational Rights and Privacy Act (FERPA) also protects the privacy of
education records and requires that personally identifiable information be kept secure and confidential.16 17
When a transgender or GNC student new to a school is using a chosen name, the birth name is considered
private information and may be disclosed only with authorization from the student or the student’s parents
as provided under the New York Education Law. If the student has previously been known at school or in
school records by his or her birth name, the principal should direct school personnel to use the student’s
chosen name. Every effort should be made to update student records (for example, attendance records,
Individualized Education Programs, etc.) with the student’s chosen name and not circulate records with
the student’s birth name. Records with the student’s birth name should be kept in a separate, confidential
file.
EXAMPLE:
One school nurse dealt with information in the student’s file by starting a new file
with the student’s chosen name, entered previous medical information (for example, immunizations) under the student’s chosen name, and created a separate,
confidential folder that contained the student’s past information and birth name.
13 Application of Halligan, 361 N.Y.S.2d 458, 460 (4th Dep’t 1974) (“[A]n individual possesses a broad right to assume a new
name at common law and in most instances denial of the application will accomplish little except delay the change and add
to the confusion of records until a new name is established by usage”).
14 Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999) (holding that “the Constitution does indeed protect the right to maintain the confidentiality of one’s transsexualism”).
15 N.Y. Educ. Law § 2-d (Unauthorized Release of Personally Identifiable Information).
16 20 U.S.C. § 1232g; 4 C.F.R. §§ 99.00 et seq.
17 For more information on student privacy, see NYSED’s Parents’ Bill of Rights for Data Privacy and Security at http://
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www.p12.nysed.gov/docs/parents-bill-of-rights.pdf.
When determining which, if any, staff or students should be informed that a student’s gender identity is
different from the assigned birth sex, decisions should be made in consultation with the student, or in the
case of a young student, the student’s parent or guardian. As a general matter, school personnel should
not share this information without express permission from the student or the student’s parents. The key
question is whether and how sharing the information will benefit the student.
EXAMPLE:
In one case, parents of a transgender elementary school student requested that
only the school principal and the school nurse be aware that the student was
assigned the sex of male at birth. After a discussion with the school principal, the
parents agreed that the student’s teacher, the school secretary and the district
superintendent would also be informed. In this situation, the school principal
kept the student’s birth certificate in a separate, locked file that only the principal
could access, and put a note in the student’s other file saying that the principal
had viewed the student’s birth certificate. In another situation, where a student
assigned “male” at birth came to school after April vacation as a girl, the school
principal and guidance counselor, in collaboration with the student and her parents, developed a plan for communicating information regarding the student’s
transition to staff, parents and students. The plan included who was going to say
what to whom, and when the communication would take place.
Transgender and GNC students may decide to discuss and express their gender identity openly and may
decide when, with whom, and how much to share private information. Whether a student decides to share
this information with peers or others does not change the obligation of school personnel to keep that
information private and treat it as confidential.
GENDER MARKERS ON STUDENT RECORDS
A gender marker is the designation on school and other records that indicates a student’s gender. For
all students, records that include an indication of a student’s gender should reflect that student’s gender
identity (for example, “male” or “female” on a permanent record). For most students, gender identity and
assigned sex at birth will align. For transgender students, however, a documented gender marker may
not reflect their assigned sex at birth. This means that if a transgender student whose gender identity is
male has a school record that reflects an assigned sex at birth of female, then upon request by the student
or, in the case of young students not yet able to advocate for themselves, by the parent or guardian, the
school should change the gender marker on the record to male. Schools are advised to collect or maintain
information about students’ gender only when necessary. This also applies to the use of gender markers
on documents generated from the school’s student information system (i.e. class schedules, report cards,
school pictures) and schools are advised to remove that information wherever possible.
In addition, transgender students who transition after having completed high school may ask their previous schools to amend school records or a diploma or transcript that include the student’s birth name and
gender. When requested, and when satisfied with the gender identity information provided, schools should
amend the student’s record, including reissuing a high school diploma or transcript, to reflect the student’s current name and gender.
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8
EXAMPLE:
One school reviewed the documentation requests it sent out to families and noticed
that field trip permission forms included a line to fill in indicating the student’s
gender. Upon consideration, the school determined that the requested information
was irrelevant to the field trip activities and deleted the line with the gender
marker request.
RESTROOMS, LOCKER ROOMS, AND CHANGING FACILITIES
All students are entitled to have access to restrooms, locker rooms and changing facilities that are sanitary, safe and adequate, so they can comfortably and fully engage in their school program and activities.
In meeting with the transgender or GNC student (and parent) to discuss the issues set forth in this policy,
it is essential that the principal and student address the student’s access to the restrooms, locker room
and changing facility. Each situation needs to be reviewed and addressed based on the particular circumstances of the student and the school facilities. In all cases, the principal should be clear with the student
(and parent) that the student may access the restroom, locker room and changing facility that corresponds
to the student’s gender identity. While some transgender or GNC students will want that arrangement,
others will not be comfortable with it. Transgender or GNC students who are uncomfortable using a
sex-segregated restroom should be provided with the least stigmatizing, safe and adequate alternative,
such as a single “unisex” restroom or the nurse’s restroom. Similarly, some transgender or GNC students
may not be comfortable undressing in the changing facilities that correspond to the student’s gender identity. Schools should provide private changing spaces to all students, regardless of gender identity, who
desire additional privacy. These alternative accommodations should be made available to all students who
request additional privacy, regardless of gender identity, but never forced upon them. The following are
examples of ways in which school officials have responded to these situations:
EXAMPLES:
In one elementary school, a transgender second-grader socially transitioned from
female to male. After consultation with the student’s family and in accordance with
the student’s wishes, the principal informed the staff: In order to foster an inclusive
and supportive learning environment, the student will begin using male restrooms, in
accordance with the student’s male gender identity and expression.
In one middle school, a sixth-grader socially transitioned from male to female over the
summer. Beginning in seventh grade, she used the girls’ restrooms and locker rooms.
In one high school, a transgender female student was given access to the female
changing facility, but the student was uncomfortable using the female changing
facility with other female students because there were no private changing areas
within the facility. The principal examined the changing facility and determined that
curtains could easily be put up along one set of lockers, providing private changing
areas for any students who wished to use them. After the school put up the curtains,
the student was comfortable using the changing facility.
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9
Some students may feel uncomfortable with a transgender or GNC student using the same sex-segregated restroom, locker room or changing facility. This discomfort is not a reason to deny access to the transgender student. School administrators and counseling staff should work with students to address the
discomfort and to foster understanding of gender identity in order to create a school culture that respects
and values all students.
It is strongly recommended that districts include an appropriate number of gender-neutral restrooms
commensurate with the size of the school, and at least one gender-neutral changing facility, into the
design of new schools and school renovations, in order to accommodate any student, regardless of their
gender identity, who desires increased privacy.
School staff as well as students and their families may find the use of restrooms and changing facilities to
be among the more challenging issues presented by this policy, perhaps due to issues of personal privacy. As emphasized in other sections of this policy, these issues should be resolved through dialogue with
students and parents and through leadership in creating safe and supportive learning environments.
PHYSICAL EDUCATION CLASSES AND INTRAMURAL AND INTERSCHOLASTIC
ATHLETIC ACTIVITIES
Physical education and school-based athletics are an important part of many students’ lives. Most physical education classes in New York’s schools are coed, so the gender identity of students should not be
an issue with respect to these classes. Where there are sex-segregated classes or athletic activities,
including intramural and interscholastic athletics, all students must be allowed to participate in a manner
consistent with their gender identity. With respect to interscholastic athletics, the New York Interscholastic Athletic Association should rely on the gender determination made by the student’s district; it will not
make separate gender identity determinations.
OTHER GENDER-BASED ACTIVITIES, RULES, POLICIES AND PRACTICES
As a general matter, schools should evaluate all gender-based policies, rules and practices and maintain
only those that have a clear and sound pedagogical purpose. Gender-based policies, rules and practices
can have the effect of marginalizing, stigmatizing and excluding students, whether they are transgender
or GNC or not. In some circumstances, these policies, rules and practices may violate federal and state
law. For these reasons, schools should consider alternatives to them.
Whenever students are separated by gender in school activities or are subject to an otherwise lawful gender-specific rule, policy or practice, students must be permitted to participate in such activities or conform to such rule, policy or practice consistent with their gender identity.
The Dignity Act provides a good opportunity for schools to review their gender-distinct policies. For example, some schools require students to wear gender-based garb for graduation or have gender-based dress
codes for prom, special events and daily attire. Schools should eliminate gendered policies and practices
such as these, or open up options that were previously gender-based to all students.
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EXAMPLE:
One school that previously had blue graduation gowns for boys and white ones for
girls switched to blue gowns for all graduates. The school also changed its gender-based dress code for the National Honor Society ceremony, which had required
girls to wear dresses.
Similarly, some classroom teachers may routinely include gender-based practices in the classroom. For
example, some teachers may have boys and girls line up separately to leave the classroom to go to lunch, the
gymnasium, restrooms or recess, and they may never have considered the educational value of non-gendered
alternatives, such as having students line up in the order of their birthdays, alphabetically by name or in the
order in which they are sitting.18
EDUCATION AND TRAINING
In order to further a safe and supportive school environment for all students, schools should incorporate education and training about transgender and GNC students into their anti-bullying curriculum, student leadership
trainings and staff professional development.
As with other efforts to promote a positive school culture, it is important that student leaders and all school
personnel, particularly school administrators, become familiar with the gender identity law, regulations, guidance and related resources, and that they communicate and model respect for the gender identity of all students.
The Dignity Act requires at least one staff member at every school be designated and trained as a Dignity Act
Coordinator to handle issues that arise in areas including, but not limited to, gender identity and expression.
In addition to trainings provided specifically for Dignity Act Coordinators, professional development for school
staff could include topics on gender identity and gender nonconformity;19 key terms related to gender identity
and expression; the development of gender identity; the experiences of transgender and GNC students; risk
and resilience data regarding transgender and GNC students; ways to support transgender students and to
improve the school climate for GNC students; gender-neutral language and practices and this guidance.
18 Human Rights Campaign Foundation: Welcoming Schools, Gender and Children: A Place to Begin for Educators,
(2013), available at http://hrc-assets.s3-website-us-east-1.amazonaws.com//welcoming-schools/documents/Welcoming-Schools-Gender-Children-Place-to-Begin1.pdf.
19 Examples include DASA Training in Harassment, Bullying, Cyberbullying and Discrimination in Schools: Prevention
and Intervention (http://www.p12.nysed.gov/dignityact/dasatraining.html) and DASA Harassment and Bullying Prevention and Intervention Guidance for Local Implementation (http://www.p12.nysed.gov/dignityact/documents/DASAGuidanceLocalImplementation.pdf).
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COMMUNICATION WITH SCHOOL COMMUNITY AND FAMILIES
Superintendents and principals need to review existing policies, handbooks and other written materials to
ensure that they are updated to reflect the Dignity Act’s and Title IX’s prohibition on sex, gender and gender
identity discrimination and may wish to inform all members of the school community, including school personnel, students and families, of the recent change to state law and its implications for school policy and practice.
This could take the form of a letter that states the school’s commitment to being a supportive, inclusive environment for all students, as well as the school’s legal obligation to provide equal educational opportunities for
all students. Such a letter might include the definitions provided at the beginning of this document and some
basic information about transgender and GNC youth; a link to the school’s anti-bullying and anti-harassment
policies; information about the Dignity Act and the school’s Dignity Act Coordinator; a link to this guidance; and
other resources, including individuals to contact with additional questions.
EXAMPLE:
A letter from one principal explained:
“All people have a gender identity. For most people, their gender identity matches
their assigned sex at birth. For transgender people, that is not the case. Transgender girls are individuals who were assigned the male sex at birth but whose
lived experience of who they are is female. Transgender boys are individuals who
were assigned the female sex at birth but whose lived experience of who they are
is male. As a school community, we want to provide a safe environment and support all of our students so they can achieve academically. That means making sure
that our school’s policies and practices are inclusive and respectful of all students,
including transgender students. Toward that end, we have … [describe steps taken
to follow the law].”
CONCLUSION
This guidance cannot anticipate every situation in which questions may come, and the specific needs of each
transgender or GNC student should be assessed and addressed on a case-by-case basis.
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12
Washington University Journal of Law & Policy
Volume 20 Poverty, Justice, and Community Lawyering: Interdisciplinary and Clinical Perspectives
January 2006
Revolutionary Lawyering: Addressing the Root
Causes of Poverty and Wealth
William P. Quigley
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Part of the Human Rights Law Commons, and the Law and Society Commons
Recommended Citation
William P. Quigley, Revolutionary Lawyering: Addressing the Root Causes of Poverty and Wealth, 20 Wash. U. J. L. & Pol’y 101 (2006),
http://openscholarship.wustl.edu/law_journal_law_policy/vol20/iss1/6
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106
Revolutionary Lawyering: Addressing the Root
Causes of Poverty and Wealth
William P. Quigley*
I am convinced that if we are to get on the right side of the
world revolution, we as a nation must undergo a radical
revolution of values. We must rapidly begin the shift from a
“thing-oriented” society to a “person-oriented” society. When
machines and computers, profit motives and property rights
are considered more important than people, the giant triplets
of racism, materialism, and militarism are incapable of being
conquered. A true revolution of values will soon cause us to
question the fairness and justice of many of our past and
present policies.
—Martin Luther King, Jr.1
* William P. Quigley is the Janet Mary Riley Professor of Law at Loyola University
New Orleans School of Law, and is the Director of the Law Clinic and the Gillis Long Poverty
Law Center. Part of this article was included in the author’s remarks at Washington University
School of Law conference, Poverty, Wealth and the Working Poor, in March, 2005. Comments
are welcome—contact me at [email protected].
I would like to thank Karen Tokarz and Peter Joy for their hospitality and for being great
role models for me and many, many others about how lawyers can live lives of justice.
Finally, I thank the people who have allowed me to do legal work by their side. They
continue to teach me about justice and the need to participate wholeheartedly in the ongoing
radical revolution of values.
1. Martin Luther King, Jr., Time to Break Silence, in A TESTAMENT OF HOPE: THE
ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER KING, JR. 231, 240–41 (James M.
Washington ed., Harper Collins pbk. ed. 1991) (1986).
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TABLE OF CONTENTS
INTRODUCTION .......................................................................................102
I. POVERTY, WEALTH, THE WORKING POOR, RACISM,
MATERIALISM, AND MILITARISM .................................................104
A. Social Justice Quiz.............................................................. 105
B. Growing Economic Inequality in the U.S. .......................... 108
C. World Economic Injustice .................................................. 110
II. LAW NEEDS REVOLUTIONARY CHANGE .........................................112
A. The Traditional Role of Lawyers in Supporting the Status
Quo ................................................................................. 113
B. Radical Change is Possible ................................................ 115
1. Taking Human Rights Seriously .................................... 117
2. Human Rights Trump Privilege and Property Rights .... 123
3. Re-defining Property...................................................... 127
4. Democratizing Corporations.......................................... 131
5. Demilitarizing and Reversing the Arms Race................ 138
6. Other Areas .................................................................... 142
III. BECOMING A REVOLUTIONARY LAWYER ......................................147
A. Solidarity ............................................................................ 149
B. Seek Out and Treasure Hope, Joy and Love....................... 150
C. Overcome Fear................................................................... 153
D. Continually Engage in Critical Re-education .................... 155
E. Community and Family Support......................................... 156
F. The Preferential Option for the Poor and Powerless ......... 158
G. Do Not Accept Reality—Particularly for the Future.......... 160
H. Create and Maintain an Interior Life................................. 162
I. Sustainable Living................................................................ 164
J. Victory or Failure—Be Humble and Ready to Start Over... 165
SIGNS OF HOPE AND CONCLUSION........................................................166
INTRODUCTION
There are more than enough lawyers in this world defending the
way things are. Plenty of lawyers protect and guide people and
institutions engaged in the injustices of our social, economic and
political systems, which are steeped in racism, militarism and
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materialism. They are plentiful and well-compensated. We need no
more of them.
Poverty, wealth, racism, materialism and militarism cannot be
changed by aiming at small revisions or modest reforms. If we are
going to transform our world, we need lawyers willing to work with
others to dismantle and radically restructure our current legally
protected systems. We need revolutionaries. Martin Luther King,
Jr.’s, call for a radical revolution of values can be the basis for
revolutionary lawyering.
Lawyers can be revolutionaries. Martin Luther King called each
of us to join together to undergo a radical revolution of values and to
conquer racism, materialism, and militarism.2 He did not say his call
extended to everyone except lawyers. He also did not call us to
merely reform racism, materialism and militarism. Revolutionaries
are called not just to test the limits of the current legal system or to
reform the current law, but also to join in the destruction of unjust
structures and systems and to tear them up by their roots. We are
called to replace them with new systems based on fairness and
justice.3
It is true that lawyers are rarely revolutionaries. In fact, the idea
may seem like an oxymoron (like corporate ethics), but some people
are, and others can be, revolutionary lawyers. Our profession is, at
the core of its practice, the primary profession world-wide that
protects and defends the machines, computers, profit motives and
property rights so rightly condemned by Dr. King.4 We use our
training, wealth, and position in society to facilitate commerce
without conscience, to accumulate wealth without responsibility, and
to serve the needs of corporations over and above the rights and
needs of people. Yet still, some lawyers can be revolutionaries.
Part I of this Article highlights some of the most glaring details
about poverty, wealth and the working poor and provides some facts
about racism, materialism and militarism, both nationally and
internationally. The briefest look at who is rich and who is poor, and
the reasons behind such status, demonstrates the continued accuracy
2. Id.
3. Id.
4. Id.
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of Dr. King’s prophetic description of why a radical revolution of
values is needed, now even more than when he first spoke these
words. Part II of this Article discusses some areas of the law that
need radical change, law that needs to be torn up by its roots and
replaced. Part III reflects on how lawyers who want to be
revolutionaries can do so. The Article concludes with signs of hope
and a charge to lawyers to consider joining the radical revolution of
Dr. King.
I. POVERTY, WEALTH, THE WORKING POOR, RACISM,
MATERIALISM, AND MILITARISM
Hope has two beautiful daughters: anger and courage; anger
at the way things are, and courage to change them.
—Augustine of Hippo5
One of my friends, who has gone to federal prison twice for
protesting U.S. training of military human rights abusers, is also a
counselor for incest survivors. She told me that in her experience,
there are only three ways to deal with evil. The first is to fight evil
with evil. The second is to say that there is nothing I can do and turn
away. The third is to look at evil head-on and try to meet it with
love.6
In order to address poverty, wealth and the working poor, we must
first look at these phenomena head-on, even if it angers us. We must
face the way things actually are in our nation and in our world. Then
we must have the courage to change them.
This section begins with a Social Justice Quiz to reveal some facts
about poverty, wealth and the working poor in light of racism,
materialism and militarism. The answers to these questions are in the
footnotes.
5. David Krieger, Rising to the Challenge of Peace, WAGING PEACE, Nov. 25, 2003,
http://www.wagingpeace.org/articles/2003/11/25_krieger_challenge-peace.htm.
6. Interview with Judy Bierbaum, School of Americas Watch, Columbus, Ga. (Jan. 22,
2004).
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A. Social Justice Quiz
1. In 1968, the minimum wage was $1.60 per hour.7 How much
would the minimum wage be today if it had kept pace with inflation?8
2. In 1965, CEOs of major companies made twenty-four times
more money than the average worker.9 In 2003, CEOs earned how
much more than the average worker?10
3. The nation has 3066 counties.11 In how many of them can
someone who works full-time and earns the federal minimum wage
afford to pay rent and utilities on a one-bedroom apartment?12
4. How much must the typical U.S. worker earn per hour to rent a
two-bedroom apartment if that worker dedicates thirty percent of his
income, as suggested, to rent and utilities?13
5. How many people in the United States earn poverty-level
wages of less than $8.19 per hour?14
6. To what are the combined populations of Alabama, Arkansas,
Iowa, Kansas, Kentucky, Maine, Minnesota, Mississippi, Nebraska,
North Dakota, Oregon, South Dakota and Tennessee equivalent?15
7. What do you get when you add to the last figure the populations
of Delaware, Hawaii, Montana, New Hampshire, New Mexico,
Rhode Island, Vermont, West Virginia and Wyoming?16
8. “In 2001, the average financial wealth for black households was
7. Paul K. Sonn, Citywide Minimum Wage Laws: A New Policy Tool for Local
Governments, ECON. POL’Y BRIEF (Brennan Ctr. for Justice, New York, N.Y.), June 2005, at 6
n.2, available at http://www.brennancenter.org/programs/downloads/minimumwage-policy
brief.pdf.
8. Id. at 1.
9. ECON. POLICY INST., STATE OF WORKING AMERICA 2004/2005: WAGES 2, available
at http://www.epinet.org/books/swa2004/news/swafacts_wages.pdf.
10. Id.
11. Study Finds Housing Costs Outpace Incomes of the Working Poor, N.Y. TIMES, Dec.
25, 2004, at A21.
12. In only four of the nation’s 3066 counties can someone who works full-time and earns
the federal minimum wage afford to pay rent and utilities on a one-bedroom apartment. Id.
13. The typical U.S. worker must earn $15.37 per hour in order to dedicate thirty percent
of their income to housing costs. Id.
14. More than thirty million workers in 1999. WILLIAM P. QUIGLEY, ENDING POVERTY
AS WE KNOW IT: GUARANTEEING A RIGHT TO A JOB AT A LIVING WAGE 24 (2003).
15. The number of people in the United States living below the official poverty line. Id. at
23–24.
16. The total number of people below 125% of the official poverty line—the combined
populations of twenty-two states. Id.
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only about 12% of the average for white households.”17 What was the
median financial wealth for blacks?18
9. In the entire twenty-eight year history of the Berlin Wall, 287
people perished trying to cross it. In the ten years since the Clinton
administration implemented the current U.S. border strategy with
Mexico, how many people have died trying to cross?19
10. Where does the U.S. rank worldwide in the imprisonment of
its citizens?20
11. In 2004, what was the direct reported U.S. military budget?21
12. In 2004, the U.S. military budget was how many times larger
than the Chinese military budget, the second largest spender?22
13. How many times larger is the U.S. military budget than the
combined spending of the “rogue states” of Cuba, Iran, Iraq, Libya,
North Korea, Sudan, and Syria?23 The U.S. military budget is larger
than how many of the next largest countries’ budgets combined?24
14. The difference in income per capita between the richest nation
and the poorest nation in 1750 was about five to one. What is it
today?25
17. ECON. POLICY INST., STATE OF WORKING AMERICA 2004/2005: MINORITIES 2,
available at http://www.epinet.org/books/swa2004/news/swafacts_minorities.pdf.
18. $1100, less than three percent of the corresponding figure for whites. Id.
19. Almost ten times as many—more than 2500 people—have died trying to cross. Marc
Cooper, On the Border of Hypocrisy, L.A. WEEKLY, Dec. 5, 2003, available at http://www.
commondreams.org/scriptfiles/views03/1204-10.htm.
20. First. In 2004, the United States imprisoned over 700 persons per 100,000. Russia was
second with 534. SENTENCING PROJECT, FACTS ABOUT PRISONS AND PRISONERS (2005),
available at www.sentencingproject.org/pdfs/1035.pdf.
21. In 2004, the direct reported U.S. military budget was over $399 billion, or $12,000 per
second. See Anup Shah, High Military Expenditure in Some Places, http://www.globalissues.
org/geopolitics/armstrade/spending.asp (last visited Feb. 5, 2006).
22. Eight times larger. Id.
23. The U.S. military budget was more than thirty times as large as the combined
spending of these seven “rogue states.” Id. Even if you add China and Russia’s military
spending to that of the seven potential enemies, all nine nations together spent $134.2 billion,
thirty-four percent of the U.S. military budget. Id.
24. The U.S. military budget is more than the combined spending of the next twenty-three
nations. Id.
25. Today, the difference between the richest nation, Switzerland, and the poorest nation,
Mozambique, is about 400 to 1. DAVID S. LANDES, THE WEALTH AND POVERTY OF NATIONS:
WHY SOME ARE SO RICH AND SOME SO POOR, at xx (1st ed. 1998).
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15. Of the 6.2 billion people in the world today, how many live on
less than $1 per day?26 How many live on less than $2 per day?27 The
richest 1% in the world receive as much income as what percentage
of the poorest?28
16. The U.S. Congress under President Bush has been more
generous in helping poor countries than under President Clinton.29 In
2003, the United States increased official development assistance to
poor countries by one-fifth.30 Where does the U.S. contribution rank
among the top twenty-two countries in proportion to our economy?31
17. Americans on average give how much per day in government
assistance to poor countries?32
18. Americans on average spend how much on soft drinks each
day?33
****
These eighteen questions and their answers illustrate that poverty,
racism, materialism and militarism have flourished, while working
people, human rights, and human dignity have been downsized.
There are an unlimited number of additional facts showing that
despite incredible world-wide wealth, there are millions of working
poor people in deep poverty in this country, and billions more
throughout the world.
26. Of the 6.2 billion people in the world today, 1.2 billion live on less than $1 per day.
UNITED NATIONS DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2002: DEEPENING
DEMOCRACY IN A FRAGMENTED WORLD 17 (Stephanie Flanders & Bruce Ross-Larson eds.,
2002), available at http://hdr.undp.org/reports/global/2002/en/pdf/front.pdf.
27. 2.8 billion people live on less than $2 per day. Id.
28. The richest 1% in the world receives as much income as the poorest 57% combined.
Id. at 19.
29. Nicholas D. Kristof, Op-Ed., Land of Penny Pinchers, N.Y. TIMES, Jan. 1, 2005, at
A23.
30. Id.
31. Last. Id.
32. Americans, on average, give fifteen cents per day in government aid to poor countries.
Id.
33. Sixty cents. Id.
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B. Growing Economic Inequality in the U.S.
Growing economic inequality in the U.S. is not some socialistspun critique. Work and poverty walk hand-in-hand.34 According to a
recent twenty-seven city survey of hunger and homelessness by the
U.S. Conference of Mayors, thirty-four percent of the adults
requesting emergency food assistance were employed.35 Even
bastions of unrestrained capitalism such as the Wall Street Journal
and The Economist note the growing income gap in the United States.
The Wall Street Journal recently published a series on the lack of
social mobility in the United States.36 It reported:
Escalators of social mobility haven’t compensated for the
growing distance between economic cellar and penthouse;
America has become more unequal in the past 35 years, but it’s
no more common for people to rise from poverty to prosperity
or to fall from wealth to the middle class. Researchers find less
intergenerational mobility in the U.S. than academics believed
a couple of decades ago. And available evidence suggests that
an American’s economic fate is more closely tied to his or her
parents than a continental European’s.37
The Economist agreed:
There is little doubt that the American social ladder is getting
higher. In 1980–2002 the share of total income earned by the
top 0.1% of earners more than doubled. But there is also
34. See generally STEPHANIE LUCE, FIGHTING FOR A LIVING WAGE (2004); QUIGLEY,
supra note 14; JEROLD L. WALTMAN, THE CASE FOR THE LIVING WAGE (2004).
35. Press Release, U.S. Conference of Mayors, Hunger, Homelessness Still on the Rise in
Major U.S. Cities 2 (Dec. 14, 2004), available at http://usmayors.org/uscm/news/press_
releases/documents/hunger_121404.pdf.
“The president and other political leaders should be focused on rewarding work with living
wages, not accepting that 34 percent of adults needing food are employed.” Claire McKeever,
Am Working and Hungry, SOJOURNERS, June 2005, at 10 (quoting Yonce Shelton, public policy
director for Call to Renewal in Washington, D.C.).
36. Bob Davis, Lagging Behind the Wealthy, Many Use Debt to Catch Up, WALL ST. J.,
May 17, 2005; Robert Frank, Rich vs. Richer: In Palm Beach, The Old Money Isn’t Having a
Ball, WALL ST. J., May 20, 2005; David Wessell, As Rich-Poor Gap Widens in the U.S., Class
Mobility Stalls, WALL ST. J., May 13, 2005; David Wessell, How Parents, Genes and Success
Intersect, WALL ST. J., May 26, 2005.
37. See Wessell, How Parents, Genes and Success Intersect, supra note 36.
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growing evidence that the ladder is getting stickier: that
intergenerational mobility is no longer increasing, as it did
during the long post-war boom, and may well be decreasing.38
The New York Times began this analysis with a series on class in
the United States.39 Bob Hebert summarized “The Mobility Myth”:
Consider, for example, two separate eras in the lifetime of the
baby-boom generation. For every additional dollar earned by
the bottom 90 percent of the population between 1950 and
1970, those in the top 0.01 percent earned an additional $162.
That gap has since skyrocketed. For every additional dollar
earned by the bottom 90 percent between 1990 and 2002 . . .
each taxpayer in that top bracket brought in an extra $18,000.
It’s like chasing a speedboat with a rowboat. Put the myth
of the American Dream aside. The bottom line is that it’s
becoming increasingly difficult for working Americans to
move up in class. The rich are freezing nearly everybody else
in place, and sprinting off with the nation’s bounty.40
Likewise, the enduring effects and practices of racism are part of
the institutional structure of this country and of many parts of the
world. In this country:
If you lined up all African-American families by the amount of
assets they owned minus their debts and then looked at the
family in the middle, that median family in 2001 had a net
worth of $10,700 (excluding the value of automobiles). Line
up all whites, and that median family had a net worth of
$106,400, almost 10 times more. Less than half of AfricanAmerican families own their own home, while three out of
four white families do. Latinos are even less wealthy: the
38. Minding About the Gap, ECONOMIST, June 15, 2005.
39. Anthony DePalma, 15 Years on the Bottom Rung, N.Y. TIMES, May 26, 2005;
Timothy Egan, No Degree, and No Way Back to the Middle, N.Y. TIMES, May 24, 2005; Bob
Hebert, The Mobility Myth, N.Y. TIMES, June 6, 2005; David Leonhardt, The College Dropout
Boom, N.Y. TIMES, May 24, 2005; Tamar Lewin, A Marriage of Equals, N.Y. TIMES, May 19,
2005; Janny Scott & David Leonhardt, Class in America: Shadowy Lines that Still Divide, N.Y.
TIMES, May 15, 2005.
40. Hebert, supra note 39.
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median Latino family in 2001 had only $3000 in assets, and
less than half own their own homes.41
No one seriously contests the disparities among whites, AfricanAmericans and Latinos in the United States. While some suggest that
these disparities are behind us, it is difficult to take those arguments
as anything other than evidence of continuing racism.
The racial wealth gap is not only real, but it is also understandable
and predictable when one considers decades of government policies
that directly, openly, and systematically discriminated against people
on the basis of race. Native Americans, Latinos, African-Americans
and Asians were consciously excluded by both law and practice from
many government wealth-building opportunities.42 Similar gaps exist
in employment, with more than one in ten African-Americans
unemployed—more than twice the rate for whites.43 Moreover, there
is evidence that this racial employment gap is increasing.44 Racism,
militarism and materialism are flourishing in the U.S.
C. World Economic Injustice
There is enough food to feed everyone in the world.45 Yet the
United Nations announced that the number of hungry people in the
world is increasing.46 There are approximately 798 million people
41. Meizhu Lui, DOUBLY DIVIDED: THE RACIAL WEALTH GAP 42 (2004), http://www.
racialwealthdivide.org/documents/doublydivided.pdf.
42. Randall L. Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745
(1989); James A. Kushner, Apartheid in America, 22 HOW. L.J. 547 (1979); Martha Mahoney,
Law and Racial Geography: Public Housing and the Economy in New Orleans, 42 STAN. L.
REV. 1251 (1990); john a. powell, Opportunity-Based Housing, 12 A.B.A. J. AFFORDABLE
HOUSING & COMMUNITY DEV. L. 188 (2003); Florence Wagman Roisman, Sustainable
Development in Suburbs and Their Cities: The Environmental and Financial Imperatives of
Racial, Ethnic, and Economic Inclusion, 3 WIDENER L. SYMP. J. 87 (1998); Les Payne, FDNY
Puts out No Welcome Mat for Blacks, NEWSDAY, Jan. 27, 2002, at B6.
43. Dena Libner, Unequal Recovery: Unemployment Rates Show African Americans
Losing Ground While Whites Regain Their Footing, DOLLARS & SENSE, May–June 2005, at 31,
available at http://www.allbusiness.com/periodicals/article/496969-1.html.
44. Id. at 30–31.
45. The Food and Agricultural Organization (FAO) of the United Nations noted in a 1998
report that “[i]f the available food was distributed according to need, it would be sufficient to
feed everyone in the world.” See FAO, Map Shows the Food Supply Gap Between Rich and
Poor Countries, http://www.fao.org/NEWS/1998/981204-e.htm (last visited Feb. 12, 2006).
46. Robert F. Drinan, Report Shows World Hunger Increasing, NAT’L CATHOLIC REP.,
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world-wide who are chronically hungry—one out of every seven
persons, and more people than the total population of Latin America
and sub-Saharan Africa combined.47 Other reports predict that the
number of hungry people is even higher.48
Over eleven million children under the age of five die each year
from preventable diseases like diarrhea, respiratory illnesses, measles
and malaria.49 In 2000, it was estimated that sixty percent of those
deaths were associated with undernutrition.50 Indeed, diarrhea is a
major killer of young children, and the risk of death from this
infectious disease is nine times higher for children who are
significantly underweight;51 in the 1990s it killed more children than
the total people lost to armed conflict since the Second World War.52
In sub-Saharan Africa alone, 4.8 million children under the age of
five die each year—nine children per minute.53
Over 14,000 children die each day from malnutrition and hunger
in a world that has enough food? And another 17,000 children die
each day from diseases that are preventable? Over 30,000 children
each day needlessly die of poverty and unjustly distributed
resources.54 There is food available in the countries where poor
people are starving, but it is not freely distributed. In Niger, for
example, the U.N. World Food Programme explains that “interfering
with the free market could disrupt Niger’s development out of
poverty.”55
Apr. 2, 2004, at 17.
47. Id.
48. Hunger Costs Millions of Lives and Billions of Dollars—FAO Hunger Report, FAO
NEWSROOM, Dec. 8, 2004, http://www.fao.org/newsroom/en/news/2004/51809/index.html
(estimating that there are 852 million hungry people world-wide).
49. FAO, THE STATE OF FOOD INSECURITY IN THE WORLD: 2002, at 6, available at
http://www.fao.org/docrep/005/y7352e/y7352e00.htm.
50. Id. at 7.
51. Id. at 6.
52. UNITED NATIONS DEV. PROGRAMME, HUMAN DEVELOPMENT REPORT 2003, at 9,
available at http://hdr.undp.org/reports/global/2003/pdf/hdr03_frontmatter.pdf.
53. UNITED NATIONS DEV. PROGRAMME, SUB-SAHARAN AFRICA—THE HUMAN COSTS
OF THE 2015 “BUSINESS-AS-USUAL” SCENARIO 1 (2005), available at http://hdr.undp.org/docs/
events/Berlin/Background_paper.pdf.
54. See supra notes 45–52 and accompanying text.
55. Jeevan Vasagar, Plenty of Food—Yet the Poor Are Starving, GUARDIAN (London),
Aug. 1, 2005, at 1.
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While there may be conflicting evidence on whether the world is
growing more or less unequal as a whole, there is little argument that
the distance between those at the very top and those at the very
bottom continues to grow dramatically.56 “The top one-tenth of U.S.
Citizens now receive a total income equal to that of the poorest 2.2
billion people in the rest of the world.”57
To repair this inequality, a radical revolution is needed. Laws that
create and support these unjust systems are one of the places to start.
II. LAW NEEDS REVOLUTIONARY CHANGE
There is a large and tragic divide between what is legal and what
is just. This part of the Article will discuss some areas of the law that
need radical change—old law that needs to be torn up by its roots and
replaced with new law. It is important, but ultimately insufficient, to
insist only on the right of every person to a job and living wages as a
means of addressing poverty, wealth and the working poor.58 The
root causes that support and underpin the current unjust systems must
instead be identified and dismantled.
It is impossible to build a better house unless one plans to change
the foundation. There is not space here to catalogue all the areas of
the law that need radical change, but I will briefly analyze several in
which change such as that called for by Dr. King can address root
causes of poverty, wealth and the working poor.59 Before looking at
56. Rich and Poor in the Global Economy: Interview with Bob Sutcliffe, DOLLARS &
SENSE, Mar.–Apr. 2005, at 13.
57. Id. Sutcliffe explains the differing indications of inequality:
Over the last 25 years, you find that the bottom half of world earners seems to have
gained something in relation to the top half (so, in this sense, there is less inequality),
but the bottom 10% have lost seriously in comparison with the top 10% (thus, more
inequality), and the bottom 1% have lost enourmously in relation to the top 1% (much
more inequality). None of these measures is a single true measure of inequality; they
are all part of a complex structure of inequalities, some of which can lessen as part of
the same overall process in which others increase.
Id.
58. QUIGLEY, supra note 14, at 100–36.
59. See King, Jr., supra note 1. Obviously, these categories could be more extensively
analyzed than they are in this Article. However, they are worth mentioning, even briefly, in
order to provoke further discussion and action.
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these areas of the law in critical and creative ways, we must start by
opening and freeing our minds.60
A. The Traditional Role of Lawyers in Supporting the Status Quo
Freeing our minds requires us to face the role that lawyers really
play in our world. As Louis Brandeis said in 1905: “Instead of
holding a position of independence between the wealthy and the
people . . . able lawyers have . . . neglected their obligation to use
their powers for the protection of the people.”61
Lawyers have lost their way.62 We only rarely suggest that our
profession is one of justice, because we know it is one of law. We no
longer worry whether people admire us, as long as they fear us. Some
wanted to be lawyers to help change the world and believed in our
country and in our system, but are now lost.
Our profession now follows the cruel definition of justice outlined
by Thrasymachus in Plato’s The Republic.63 This sweeping
discussion of justice is framed as a dialogue between Socrates and a
number of thinkers. One of the most cited passages from The
Republic is the speech by Thrasymachus.64 This young man
articulates a definition of justice that Plato and Socrates dispute, but
60. I recently saw a message about this spray-painted on a railroad car: “You can’t escape
from prison if you cannot see the bars.” One activist told me that “those who want a revolution
must realize that those who do not want change have very effectively set up camps of the status
quo in our imaginations, so that we cannot even think change is possible.” Conversation with
Karl Meyer, 2002.
61. Louis D. Brandeis, The Opportunity in the Law, 39 AM. L. REV. 555, 559 (1905).
62. See generally ANTHONY T. KRONMAN, THE LOST LAWYER: FAILING IDEALS OF THE
LEGAL PROFESSION (1993) (arguing that the emptiness of the legal profession has lost the ideal
of the lawyer-statesman, replaced by the soulless reality of the large urban law firm business);
SOL M. LINOWITZ & MARTIN MAYER, THE BETRAYED PROFESSION: LAWYERING AT THE END
OF THE TWENTIETH CENTURY (1994) (asserting that lawyering as a profession has been
abandoned and is now a well-paid business that pays lip service, if that, to the ideals of the
past); DEBORAH L. RHODE, IN THE INTEREST OF JUSTICE (2000) (arguing that the pursuit of
money, power and prestige at the expense of the public good removes the legal profession from
its connection with justice and meaning); JEAN STEFANCIC & RICHARD DELGADO, HOW
LAWYERS LOSE THEIR WAY: A PROFESSION FAILS ITS CREATIVE MINDS (2005) (arguing that
the internalized formalism of legal education and relentless pursuit of billable hours beyond real
creative and critical analysis of justice ruins the lives of lawyers).
63. PLATO, THE REPUBLIC 77–78 (Henry Desmond Pritchard Lee trans., 2d rev. ed.
Penguin Books 1974).
64. Id.
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the speech outlines what has become the current perspective on
justice. Thrasymachus, while arguing with Socrates about what
justice really is, says:
I say that justice or right is simply what is in the interest of the
stronger party . . . . Each type of government enacts laws that
are in its own interest, a democracy democratic laws, a tyranny
tyrannical ones and so on; and in enacting these laws they
make it quite plain that what is “right” for their subjects is
what is in the interest of themselves, the rulers, and if anyone
deviates from this he is punished as a lawbreaker and
“wrongdoer.” That is what I mean when I say that “right” is
the same thing in all states, namely the interest of the
established government; and government is the strongest
element in each state, and so if we argue correctly we see that
“right” is always the same, the interest of the stronger party.65
The majority of the legal profession has chosen to adopt
Thrasymachus’ definition as its workplan for law and justice. The
profession works for the interests of the strongest, the richest, and the
most powerful. In assisting the rich and powerful, lawyers are but
well-fed Doberman Pinschers, protecting the grand homes and
institutions of those in control.66 However, lawyers do not merely
protect the powerful; they also enable them.
Lawyers can be and often are destructive of real justice.67 Lawyers
draft justifications for torture.68 Lawyers draft defenses for tobacco
and other toxic poisoning.69 Lawyers help protect corporations as
they engage in fraud and deceit. Will history impose on today’s
lawyers the same criticisms that it imposed on the lawyers of slave65. Id.
66. I had a disappointing conversation with a bright young American student in Haiti who
was deeply interested in human rights. He wondered whether he could do more as a lawyer or a
doctor. He decided to go into medicine because, he said, “What can lawyers really do? Doctors
can at least help people directly in a concrete way. Lawyers . . . what can they actually do?”
67. See DAVID CAY JOHNSTON, PERFECTLY LEGAL: THE COVERT CAMPAIGN TO RIG OUR
TAX SYSTEM TO BENEFIT THE SUPER RICH—AND CHEAT EVERYBODY ELSE (2003).
68. Julie Angell, Ethics, Torture, and Marginal Memoranda at the DOJ Office of Legal
Counsel, 18 GEO. J. LEGAL ETHICS 557, 557–59 (2005).
69. Richard A. Daynard, Lawyer Management of Systems of Evil: The Case of the
Tobacco Industry, 5 ROGER WILLIAMS U. L. REV. 117 (1999).
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owners? How will it judge lawyers for the employers of child
laborers, or the lawyers for big corporate trusts? What about the
lawyers of Nazi Germany? What about the lawyers who prosecuted
Susan B. Anthony, Martin Luther King, Jr., Gandhi, or Nelson
Mandela? The lawyers who justify the expansion of nuclear
weapons? The lawyers who assist in implementing the death penalty?
What about the lawyers who defended segregation? Or redlining? Or
who lobby against increases in the minimum wage or health
insurance?70
Those who proclaim their neutrality despite their work for the
powerful must realize that neutrality is no excuse. As Archbishop
Desmond Tutu explained: “When the elephant has his foot on the tail
of the mouse, and you say you are neutral, the mouse will not
appreciate your neutrality.”71 Professors Shaffer and Rodes have
likewise observed that “[i]f we set out to deal evenhandedly between
rich and poor, we will inevitably end up favoring the rich. If we set
out to do no more than justice requires, we will end up doing less.”72
Current professional responsibility courses do not address justice
or fundamental inequality and the lawyer’s role in fashioning and
maintaining that inequality. Instead, the courses are rather like
learning the rules in a driver license manual in order to pass the test.73
Older lawyers are jaded and many young lawyers are just plain
lost. We must undergo, as Dr. King suggested, a radical revolution of
our values. For those who want to engage in another type of
lawyering, radical change is possible.
B. Radical Change is Possible
We have been taught to believe that radical change is impossible,
or at least very, very dangerous. People exploring the possibility for
70. For a discussion of lawyers’ roles in some of these areas, see Symposium, Lawyer
Collaboration with Systems of Evil, 5 ROGER WILLIAMS U. L. REV. 19 (1999).
71. WILLIAM SLOANE COFFIN, A PASSION FOR THE POSSIBLE: A MESSAGE TO U.S.
CHURCHES 36 (1st ed. 1993).
72. Thomas L. Shaffer & Robert E. Rodes, Jr., A Christian Theology for Roman Catholic
Law Schools, 14 U. DAYTON L. REV. 5, 17 (1988).
73. Thomas L. Shaffer, The Private Practice of Law as the Practice of Social Justice:
Hoffman, Field and Brandeis (unpublished manuscript, on file with author).
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serious change must constantly contend with false messages: “This is
the best we can do;” “We live in the most generous and best nation in
the history of the world;” “Unrestrained capitalism is the ultimate and
only way of solving all our problems;” “Our problems are too big for
anyone to handle;” “Go slowly;” “Just look out for number one;” “Do
not be a radical;” “Do not be a revolutionary;” and most importantly,
“Be afraid, be very afraid, of terrorists, illegal immigrants, black men,
pushy women, of people who are trying to take advantage of us, of
international cooperation, of accountability, and most of all, of big
change.”
Professor Robert E. Rodes, Jr., elegantly describes the message
that radical change in law is dangerous and bad as “a pervasive set of
assumptions introduced into the law by false consciousness. These
are the assumptions that stand in the way of imposing accountability
on the ruling class and making effective use of law for human
ends.”74
Rodes explains four sets of defective assumptions in support of
the status quo: (1) the values behind current law are the most
important ones for the law to implement; (2) the legal system is
basically good and the cost of change will outweigh any benefits; (3)
nothing can really be done for those who are left out of current legal
arrangements—their situation is an unfortunate but inevitable
consequence of this “basically beneficent system;” (4) the political
power of those who are left out of this system must be limited or they
are likely to upset it, because they cannot understand how good the
system really is, how inevitable their suffering is, or how fruitless and
counterproductive change will be.75
Despite these significant obstacles to radical change in law,
history shows that all good ideas for revolutionary change are at first
shocking, then resisted, then understood, then enacted, and then
described as inevitable. Indeed, as Gandhi said: “First they ignore
you, then they ridicule you, then they fight you, then you win.”76
74. ROBERT E. RODES, JR., PILGRIM LAW 108 (1998).
75. Id.
76. Quote DB, Mahatma Gandhi, http://www.quotedb.com/quotes/2776 (last visited Feb.
12, 2006).
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Cautioned by Gandhi, let us now turn to several areas of the law that
need radical change.77
1. Taking Human Rights Seriously
Taking human rights seriously starts with the simple, yet
revolutionary, statement that every single person in the world has
inherent and equal dignity and is an equal member of the human
family.
Whereas recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the
world . . .
....
Whereas the peoples of the United Nations have in the
Charter reaffirmed their faith in fundamental human rights, in
the dignity and worth of the human person and in the equal
rights of men and women and have determined to promote
social progress and better standards of life in larger freedom.
....
All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and
should act toward one another in a spirit of brotherhood.78
This is the foundation of the United Nations’ Universal Declaration
of Human Rights.79 Moreover, the principles expressed above form
77. Every one of these areas of law is immersed in issues of race, gender, class and sexual
identity. These areas are toxins which permeate every institution and person in our society.
They are injustices in themselves and they also increase the effects of other kinds of injustices.
Unlike a bunch of weeds, they cannot just be pulled out, for they are now in the very earth
itself. Challenging these must be a part of every effort to radically restructure our lives. They
are a part of every issue we face and a part of how we face ourselves.
78. Universal Declaration of Human Rights, G.A. Res. 217A, at pmbl. & art. 1, U.N.
GAOR, 3d Sess., 1st plen. mtg., U.N. Doc A/810 (Dec. 12, 1948).
79. Id.
Article 3. Everyone has the right to life, liberty and security of person.
....
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the foundation of most world religions.80 However, our world and our
country do not take human rights nearly seriously enough.81
The United States acknowledges, to some degree, those
procedural and political rights that are incorporated in our
Constitution, but repeatedly refuses to take seriously other social,
cultural, economic and political human rights.82 U.S. Supreme Court
Justice Ruth Bader Ginsburg acknowledged that “since the United
Nations’ 1948 adoption of the Universal Declaration of Human
Rights, the U.S. Supreme Court has mentioned that basic
international Declaration a spare six times—and only twice in a
majority decision.”83 However, the U.S. Supreme Court has taken
increasing notice of international human rights and practices in
Article 6. Everyone has the right to recognition everywhere as a person before the law.
Article 7. All are equal before the law and are entitled without any discrimination to
equal protection of the law.
....
Article 22. Everyone, as a member of society, has the right to social security and is
entitled to realization, through national effort and international co-operation and in
accordance with the organization and resources of each State, of the economic, social
and cultural rights indispensable for his dignity and the free development of his
personality.
....
Article 28. Everyone is entitled to a social and international order in which the rights
and freedoms set forth in this Declaration can be fully realized.
Id.
80. See ROBERT TRAER, FAITH IN HUMAN RIGHTS: SUPPORT IN RELIGIOUS TRADITIONS
GLOBAL STRUGGLE (1991). Traer cites many examples of religious support for basic
human rights, including liberal Protestants, id. at 19; Roman Catholics, id. at 33; conservative
Protestants, id. at 49; Jews, id. at 99; Muslims, id. at 111; and Hindus and Buddhists, id. at 129.
81. For examples, see JEANNE M. WOODS & HOPE LEWIS, HUMAN RIGHTS AND THE
GLOBAL MARKETPLACE 3–40 (2005).
82. “The United States has been also been characterized as a scofflaw for its refusal to
abide by those international documents and U.N. resolutions related to human rights to which it
has previously agreed.” Deborah M. Weissman, The Human Rights Dilemma: Rethinking the
Humanitarian Project, 35 COLUM. HUM. RTS. L. REV. 259, 313 (2004).
83. Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative
Perspective in Constitutional Adjudication, 40 IDAHO L. REV. 1, 8 (2003) (citing Knight v.
Florida, 528 U.S. 990, 996 (1999) (Breyer, J., dissenting); Dandridge v. Williams, 397 U.S.
471, 521 n.14 (1970) (Marshall, J., dissenting); Zemel v. Rusk, 381 U.S. 1, 4, 15 n.13 (1965);
Kennedy v. Mendoza-Martinez, 372 U.S. 144, 161 n.16 (1963); Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 776 (1961) (Douglas, J., concurring); Am. Fed’n of Labor v. Am. Sash &
Door Co., 335 U.S. 538, 550 n.5 (1949) (Frankfurter, J., concurring)).
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deciding recent cases, and many members of the Supreme Court have
written and spoken about the need to look to international law in
interpreting U.S. law.84
In a 2005 case outlawing the imposition of the death penalty upon
juveniles, Justice Kennedy observed “the stark reality that the United
States is the only country in the world that continues to give official
sanction to the juvenile death penalty.”85 Writing for the Court in
Lawrence v. Texas, Justice Kennedy made a point of citing a 1981
decision of the European Court of Human Rights, now authoritative
84. Justice Ginsburg advocated in 2003 for courts to look beyond our borders at
international law treaties and the experiences of other nations. See Ginsburg, supra note 83.
Justice Breyer has also advocated for a greater focus on international law in the U.S. courts.
See Justice Stephen Breyer, Address at the American Society of International Law 97th Annual
Meeting: The Supreme Court and the New International Law (Apr. 4, 2003) (transcript
available at http://www.humanrightsfirst.org/us_law/inthecourts/Supreme_Court_New_Interl_
Law_ Just_Breyer .pdf).
Justice Rehnquist wrote:
For nearly a century and a half, courts in the United States exercising the power of
judicial review [for constitutionality] had no precedents to look to save their own,
because our courts alone exercised this sort of authority. When many new
constitutional courts were created after the Second World War, these courts naturally
looked to decisions of the Supreme Court of the United States, among other sources,
for developing their own law. But now that constitutional law is solidly grounded in so
many countries, it is time that the United States courts begin looking to the decisions
of other constitutional courts to aid in their own deliberative process.
William H. Rehnquist, Constitutional Courts—Comparative Remarks, in GERMANY AND ITS
BASIC LAW: PAST, PRESENT, AND FUTURE—A GERMAN-AMERICAN SYMPOSIUM 411, 412
(Paul Kirchhof & Donald P. Kommers eds., 1993); see also Washington v. Glucksberg, 521
U.S. 702, 710 n.8, 718 n.16 (1997) (Rehnquist, C.J.) (referring to a decision of the Supreme
Court of Canada that upheld a ban on assisted suicide, and observing that “in almost every
western democracy[,] it is a crime to assist a suicide”).
In a 2003 speech at the Southern Center for International Studies, Justice O’Connor
discussed the concept of “transjudicialism,” and advocated a more robust use of international
law by American courts. See Justice Sandra Day O’Connor, Remarks at the Southern Center for
International Studies (Oct. 28, 2003) (transcript available at http://www.humanrightsfirst.org/
us_law/inthecourts/SOUTHERN_CENTER_INTERNATIONAL_STUDIES_Justice_O%27Co
nnor.pdf).
In another forum, Justice O’Connor said: “While ultimately we must bear responsibility for
interpreting our own laws, there is much to learn from other distinguished jurists who have
given thought to the same difficult issues that we face here.” Justice Sandra Day O’Connor,
Keynote Address Before the 96th Annual Meeting of the American Society of International
Law (Mar. 16, 2002), in 96 AM. SOC’Y INT’L L. PROC. 348, 350 (2002).
85. Roper v. Simmons, 543 U.S. 551, 574–75 (2005). The majority opinion goes on at
some length to review international human rights treaties and the practices of other countries.
Id. at 575–78.
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in forty-five countries, as part of its decision to protect consensual
sex between people of the same gender.86 In a 2003 case upholding
academic affirmative action, Justice Ginsburg, in a concurrence
joined by Justice Breyer, pointed out the importance of the
International Convention on the Elimination of All Forms of Racial
Discrimination, ratified by the United States in 1994.87 Justice
Ginsburg also noted the importance of the 1979 Convention on the
Elimination of All Forms of Discrimination Against Women, which
the United States has not ratified.88 In a 2002 decision invalidating
the death penalty for mentally disabled offenders, Justice Stevens
noted that “within the world community, the imposition of the death
penalty for crimes committed by mentally retarded offenders is
The
Supreme
Court’s
overwhelmingly
disapproved.”89
acknowledgment of international human rights is a step in the right
direction, but more is needed.
To radically change our world, we must start by taking human
rights much more seriously.90 We must respect the promise of all
human rights—personal, civil, political, social, economic and
cultural—in our laws. These promises are an overlooked part of U.S.
history.91 Perhaps one of the reasons that few people in power seem
to take human rights seriously is because these rights have
86. Lawrence v. Texas, 539 U.S. 558, 573 (2003) (citing Dugeon v United Kingdom, 45
Eur. Ct. H.R. 52 (1981)).
87. Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring).
88. Id.
89. Atkins v. Virginia, 536 U.S. 304, 316–17 n.21 (2002). The Atkins court also noted the
earlier decision of Thompson v. Oklahoma, in which the Court agreed that it was worthwhile to
consider the views of “respected professional organizations, by other nations that share our
Anglo-American heritage and by leading members of the Western European community.” Id.
(quoting Thompson v. Oklahoma, 487 U.S. 815, 830–31 n.31 (1988)).
90. See Alan Jenkins & Larry Cox, Bringing Human Rights Home, THE NATION, June 27,
2005, http://www.thenation.com/doc/20050627/cox.
91. See CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR’S UNFINISHED
REVOLUTION & WHY WE NEED IT MORE THAN EVER (2004). Sunstein’s book addresses one of
our nation’s best kept secrets—President Franklin D. Roosevelt’s proposed Second Bill of
Rights. In January, 1944, Roosevelt asked the nation to include a new set of rights for all
citizens that included a right to a job that earned a living wage, a right to decent housing, a right
to adequate medical care, and a right to a good education. Id. at ix. This book is a very welcome
addition to the dialogue about human rights. See also CHALLENGING U.S. HUMAN RIGHTS
VIOLATIONS SINCE 9/11 (Ann Fagan Ginger ed., 2005).
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implications.92 Certainly, being equal members of the same family
has implications.
I was with a group of people recently, and one person told me that
her sister had won the lottery—nearly twenty million dollars. But the
sister refused to share any of her winnings with her family members.
Everyone in the group was horrified and ashamed. How could this
be? The first people you share with are your sisters and brothers!
Well, some in our world have won a different kind of lottery, and
also refuse to share with their sisters and brothers. Most who have
won this lottery—based in large part on where they were born, the
color of their skin, their gender, their parent’s income, and their
opportunity for education—do not even think they “won,” but instead
think they “earned” their prize!93 Anyone who believes they earned
their own fortune by hard work should consider what they would
have achieved had they been borne in Sri Lanka or Haiti.94
Each person counts as much as everyone else. This is a radical
thought with even more radical consequences. If everyone is
inherently equal, they do not have to earn their equality, but are
entitled to equality in the same way as everyone else simply by the
fact that they are human. If everyone is equal and we are all members
of the same human family, what does it mean that some are so well
off, while tens of thousands of others die in poverty each day? What
92. See infra Part II.B.2.
93. Listen to Bill Gates, Sr.:
Individual effort is indispensable to wealth building. But success is not entirely the
result of individual brains and effort. Success is a product of having been born in this
country, a place where education and research are subsidized, where there is an orderly
market, where the private sector reaps enormous benefits from public investment. For
someone to assert that he or she has grown wealthy in America without the benefit of
substantial public investment is pure hubris.
WILLIAM H. GATES, SR. & CHUCK COLLINS, WEALTH AND OUR COMMONWEALTH 122 (2002).
94. Newsflash to those who think they earned their place in this world through individual
hard work. The working poor of the world work harder than anyone else. Many of the working
poor in the United States work several jobs to make ends meet. One out of every four workers
earns less than poverty level wages, even under the artificially low U.S. poverty guidelines. See
QUIGLEY, supra note 14, at 77.
Worldwide, many of the working poor start each day not knowing where their food will
come from for the next day—they work very, very hard to survive. They live each day in the
ultimate survivor reality. Recall that of the 6.2 billion people in the world today, one of every
five people, a total of 1.2 billion, live on less than $1 per day. See HUMAN DEVELOPMENT
REPORT 2002, supra note 26, at 5.
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does it mean to take human rights seriously in a world in which over
30,000 children die each day of hunger and preventable diseases,
while the average U.S. citizen contributes just pennies a day through
taxes for world poverty relief—less than they spend on soft drinks
each day?95
Part of taking human rights seriously is taking the idea of common
good seriously.96 Human rights include not only the right to human
dignity and equality, but also a full range of economic, social, civil
and political rights.97 We must insist that the Universal Declaration of
Human Rights be recognized and implemented as a starting point for
95. See Kristof, supra note 29.
96. See Universal Declaration of Human Rights, supra note 78.
Article 29. (1) Everyone has duties to the community in which alone the free and full
development of his personality is possible. (2) In the exercise of his rights and
freedoms, everyone shall be subject only to such limitations as are determined by law
solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and
the general welfare in a democratic society.
Id.; see also Pope John XXIII, Pacem in Terris ¶ 60-61, reprinted in CATHOLIC SOCIAL
THOUGHT: THE DOCUMENTARY HERITAGE 141 (David J. O’Brien & Thomas A. Shannon eds.,
1992).
It is agreed that in our time the common good is chiefly guaranteed when personal
rights and duties are maintained. The chief concern of civil authorities must therefore
be to ensure that these rights are acknowledged, respected, coordinated with other
rights, defended and promoted, so that in this way each one may more easily carry out
his duties. For “to safeguard the inviolable rights of the human person, and to facilitate
the fulfillment of his duties, should be the chief duty of every public authority.”
This means that, if any government does not acknowledge the rights of man or
violates them, it not only fails in its duty, but its orders completely lack juridical force.
Id. (internal citations omitted).
97. For an excellent overview, see WOODS & LEWIS, supra note 81.
The 1981 African Charter on Human and Peoples’ Rights explicitly recognizes the need
for these rights to be inter-related:
[I]t is henceforth essential to pay a particular attention to the right to development and
that civil and political rights cannot be dissociated from economic, social and cultural
rights in their conception as well as universality and that the satisfaction of economic,
social and cultural rights is a guarantee for the enjoyment of civil and political
rights….
Org. of African Unity [OAU], African (Banjul) Charter on Human and Peoples’ Rights, at 2,
OAU Doc. CAB/LEG/67/3rev.5 (June 27, 1981).
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the rights of all persons.98 These rights must be implemented in the
social and international order.99
Taking human rights seriously expands the idea of solidarity
beyond national borders, and the quest for respect, justice and human
dignity beyond individual laws. Many revolutionaries, including
Malcolm X, have promoted this idea.100 In its essence, taking human
rights seriously means putting people at the center of all policy
decisions and treating every single person with the dignity and
respect they deserve. Taking human rights seriously means a
fundamental change in the approach to law in the world and in this
country. It is a step that must be taken if we are to work towards
justice and the revolution of values.
2. Human Rights Trump Privilege and Property Rights
(1) The needs of the poor take priority over the wants of the
rich; (2) The freedom of the dominated takes priority over the
liberty of the powerful; (3) The participation of marginalized
groups takes priority over the preservation of an order which
excludes them.
—David Hollenbach101
98. These rights include: adequate food; jobs; living wages; healthcare; shelter; and free
quality education, including higher education. See Universal Declaration of Human Rights,
supra note 78, arts. 22–26.
99. “Everyone is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.” Id. art. 28.
100.
Malcolm X continually warned Black America that we should expand our horizons
beyond civil rights. Civil rights, he emphasized, set our struggle for freedom solely
within the context of the United States. Human rights, on the other hand, situated our
struggle internationally, and alongside the struggles against colonialism and foreign
domination that were taking place in Africa, Asia, the Caribbean and Latin America.
....
Malcolm helped us to better understand that our problem was not a law or set of
laws.
Bill Fletcher, Jr., Malcolm at 80, TRANSAFRICA FORUM NEWSLETTER (TransAfrica Forum,
Wash. D.C.), May 19, 2005, available at http://www.transafricaforum.org/Malcolmat80.html.
101. DAVID HOLLENBACH, CLAIMS IN CONFLICT: RETRIEVING AND RENEWING THE
129
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If the basic human rights of all are not met, as they cannot be
when one in five people in the world lives on less than one dollar per
day,102 then true human rights policy cannot honor the privileges of
those who have profited by current laws and institutions. True human
rights policy must anticipate the inevitable conflict between rights.
When there are conflicts, they must be resolved by a hierarchy of
values. Current arrangements privilege many, but, in the revolution of
values, must yield.103
In a new justice-based value system, people must be valued more
than property. Human rights must be valued more than property
rights. Minimum standards of living must be valued more than the
privileges that come from being well-off. Basic freedom for all must
be valued more than the privileged liberty of accumulated political,
social and economic power. Finally, the goal of increasing the
political, social, and economic power of those who are left out of
current arrangements must be valued more than the preservation of
the existing order that created and maintains unjust privileges.104
This principle of prioritizing human rights creates conflict because
it essentially turns current practice upside down. It looks at the world
from the perspective of the working poor, the powerless, and the leftout, and makes a conscious decision to make radical changes to that
world. No current rules, laws, or institutions are more important than
justice and equality. Prioritizing human rights will free advocates
from being bound by the privileges conferred by an unjust system.
However, undoing unjust privilege to reorder the world will not occur
without serious conflict and resistance from those who benefit from
current inequities.105
CATHOLIC HUMAN RIGHTS TRADITION 204 (1979).
102. Of the 6.2 billion people in the world today, one of every five people on earth, a total
of 1.2 billion, live on less than $1 per day. HUMAN DEVELOPMENT REPORT 2002, supra note
26, at 5; cf. Universal Declaration of Human Rights, supra note 78.
103. Current arrangements are more similar to what Dr. King described: “When machines
and computers, profit motives and property rights are considered more important than people,
the giant triplets of racism, materialism, and militarism are incapable of being conquered.”
King, Jr., supra note 1.
104. HOLLENBACH, supra note 101, at 203–07.
105. Id. at 204–05 (“Conflict between the needs of some and the wants of others, both
within nations and across national boundaries, is one of the predominant characteristics of
contemporary society. An adequate human rights policy cannot avoid this conflict if it is to be
responsive to the actual situation.”).
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To imagine a world in which each and every individual is
treated with respect and dignity, receives equal protection,
enjoys freedom, and is accorded social justice is to threaten
virtually any tradition or practice based on privilege and
hierarchy, birth or wealth, exclusivity, and prejudice. The
reason is not difficult to explain, for as one experienced
observer notes succinctly: “The struggle for human rights has
always been and always will be a struggle against authority.”
Visions of human rights, by their nature, defy the legitimacy
and threaten the existence of all forms of political, economic,
social, or cultural despotism, tyranny, dictatorship, oligarchy,
or authoritarian control . . . . They are thus capable of
presenting a potent focus and a resounding rallying cry for
those who want change.106
Visions of human rights have always presented a profound threat
to special privilege. They still do. From the perspective of those at the
top (those who thrive under current laws and policies), there does not
seem to be much need for radical reform. Indeed, radical reform may
even appear unjust to those who stand to lose their comforting
privileges. However, when examined from the underside, the need for
dramatic change is evident.
A radical revolution of values prizes the perspective of those at
the margins. Why? Because it is in listening to and standing with the
victims of injustice that the need for critical thinking and action
becomes clear. Liberation theology calls this the “preferential option
for the poor.”107 Those without property, wealth, food, and basic
106. PAUL GORDON LAUREN, THE EVOLUTION OF INTERNATIONAL HUMAN RIGHTS 283
(2d ed. 2003).
107. RODES, JR., supra note 74, at 96. Other scholars discuss how this preferential option
must be aimed at structural changes:
[T]he fact that there are poor in North America and in other parts of the world is not
an accident. It is the explicit outcome, the necessary result, of the way we have
structured society politically, economically, and culturally. Inequitable concentration
of wealth, income and power lead [sic] to tax laws, employment policies, welfare
programs, housing plans and other policies and structures which directly and adversely
affect the poor. Therefore the option for the poor will never be satisfied with responses
only of charity. There must also be a commitment to justice, to structural change.
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human rights are the members of our human family who show us the
injustices of our world and the directions needed for the revolution.108
Radical change requires more than traditional reforms that try to
solve problems without upsetting current power relationships. It is
not possible to bring about justice without radical change, and radical
change is not possible without reducing the power, influence and
comfort of those who have more than their fair share of the world’s
resources.
It is essential to apply these principles with an international
perspective.109 We are citizens of the world, and we must protect our
global common good in order to survive. Our sisters and brothers are
not just those in our families, our communities, or our nations—they
are across the world. A strategy that does not acknowledge our interconnectedness and interdependence can never be the basis for true
change.
Thus, human rights necessary for survival must trump property
rights. Likewise, human rights to basic needs and participation must
trump the privileges accumulated by those who benefit from an
unjust system. This will upset those at the top who enjoy these
privileges, but this is a predictable result in a world that needs
revolutionary change.
PETER J. HENRIOT, OPTING FOR THE POOR: THE CHALLENGE FOR THE TWENTY-FIRST
CENTURY (2004).
108. The Jewish and Christian scriptures demand constant attention to the needs of the
poor, the widow, the orphan, the refugee, and the worker. While these teachings have frequently
been ignored by the practices of organized religion, the principles remain vigorous.
The most searing criticism by the prophets of Israel was reserved for people and
institutions that failed to listen to the cries of the poor and who built up their own comfort and
power at the expense of the common good. See ABRAHAM J. HESCHEL, THE PROPHETS 5
(1962). “Prophecy is the voice that God has lent to silent agony, a voice to the plundered poor,
to the profaned riches of the world.” Id.; see also CLODOVIS BOFF & GEORGE V. PIXLEY, THE
BIBLE, THE CHURCH, AND THE POOR (Paul Burns trans., 1989).
109. See Fletcher, Jr., supra note 100 (discussing the importance of Malcolm X and the
need for a global connection to struggling people).
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3. Re-defining Property
We must lay hold of the fact that economic laws are not made
by nature. They are made by human beings.
—President Franklin Delano Roosevelt110
Support of private ownership does not mean that anyone has
the right to unlimited accumulation of wealth. “Private
property does not constitute for anyone an absolute or
unconditional right. No one is justified in keeping for his
exclusive use what he does not need, when others lack
necessities.”111
Any reason worthy of the name must therefore come to the
conclusion that all economic structures, institutions, and
actions must be reconstructed according to the logic of the
survival of all.112
In looking at poverty, wealth, and the working poor, we must look
at wealth, as well as poverty, in a radical new way. As such, the right
to property must be re-defined. Property rights must always be
subordinate to justice and peoples’ rights to basic survival. This is an
explicit part of the revolution of values that Dr. King sought.113
Undeniably, there is value in private property. Owning your own
home is generally understood as a right that is in the interest of
society and of the common good. But what about the situation in
which people with property rights have excessive amounts of
resources, while billions of others live on a dollar per day?114 What
110. President Franklin Delano Roosevelt, Nomination Address Before the Democratic
National Convention ¶ 54 (July 2, 1932), available at http://newdeal.feri.org/speeches/
1932b.htm.
111. Pastoral Letter from U.S. Catholic Bishops on Catholic Social Teaching and the U.S.
Economy: Economic Justice for All, ¶ 115, 35 (1986), http://www.osjspm.org/cst/eja.htm
(internal citations omitted).
112. ULRICH DUCHROW & FRANZ J. HINKELAMMERT, PROPERTY FOR PEOPLE, NOT FOR
PROFIT: ALTERNATIVES TO THE GLOBAL TYRANNY OF CAPITAL 159 (Elaine Griffiths et al.
trans., 2004).
113. See King, Jr., supra note 1.
114. For a great place to start the discussion on re-imagining property, see Joseph William
133
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about the previously mentioned fact that “[t]he top one-tenth of U.S.
Citizens now receive a total income equal to that of the poorest 2.2
billion people in the rest of the world”?115 It is apparent that a few
hold a large and inordinate share of the world’s resources, while
others have a grossly inadequate share. If private property is a valued
common good, should not everyone have access to it?
It is at this point, where massive scarcity and excess co-exist, that
the human rights of justice and equality are openly violated. If it is
true that no current rules, laws, arrangements or institutions are more
important than justice and equality, then it is time to change the rules;
it is time to re-define property rights.
In The Second Treatise of Civil Government, John Locke
described the right to private property in a manner that clearly limits
that right to those situations in which the conversion of common
property to private property does not harm the common good, and in
which it leaves sufficient amounts in common for others.116 Others
have argued that making common property private is only legitimate
when it actually provides a positive benefit to the common good.117
Likewise, some have stated that private property operates under a
“social mortgage,” meaning that the right to private property is
Singer, Property, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 240, 240–58 (David
Kairys ed., 3d ed. 1998).
115. See Rich and Poor in the Global Economy, supra note 56, at 13.
116. JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT AND A LETTER
CONCERNING TOLERANCE 15 (J.W. Gough ed., Blackwell Oxford 1946) (1690).
Sec. 27. Though the earth, and all inferior creatures, be common to all men, yet
every man has a property in his own person: this no body has any right to but himself.
The labour of his body, and the work of his hands, we may say, are properly his.
Whatsoever then he removes out of the state that nature hath provided, and left it in, he
hath mixed his labour with, and joined to it something that is his own, and thereby
makes it his property. It being by him removed from the common state nature hath
placed it in, it hath by this labour something annexed to it, that excludes the common
right of other men: for this labour being the unquestionable property of the labourer,
no man but he can have a right to what that is once joined to, at least where there is
enough, and as good, left in common for others.
Id.
117. See Jeffrey Riedinger, Property Rights and Democracy: Philosophical and Economic
Considerations, 22 CAP. U. L. REV. 893, 895–909 (1993).
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subject to the more fundamental principle that the goods of the world
are meant for all persons.118
Earlier thinkers, like Ambrose and Augustine in the 300s, took a
sharper view of the obligation to return private property to the
common good. Ambrose stated:
Not from your own do you bestow upon the poor man, but you
make return from what is his. For what has been given as
common for the use of all, you appropriate to yourself alone.
The earth belongs to all, not to the rich; but fewer are they who
do not use what belongs to all than those who do. Therefore,
you are paying a debt, you are not bestowing what is not
due.119
Augustine was even more pointed: “Take what suffices; other things,
superfluous things, are the necessities of others. The superfluous
things of the wealthy are the necessities of the poor. When
superfluous things are possessed, others’ property is possessed.”120
Thus, private property should be a protected right to the extent
that it provides to a person and their family the right to live in basic
human decency and to pursue their rightful place consistent with the
common good. However, when a person or entity claims property in
excess of what is necessary for basic human survival, and when there
are people who need these same basic elements, then it is time to redefine the laws of property to share the earth’s resources in a manner
more consistent with justice, equality and the shared human dignity
of all. If there are people in desperate need while others enjoy excess,
118.
It is necessary to state once more the characteristic principle of Christian social
doctrine: the goods of this world are originally meant for all. The right to private
property is valid and necessary, but it does not nullify the validity of this principle.
Private property, in fact, is under a “social mortgage,” which means that it has an
intrinsically social function, based upon and justified precisely by the principle of the
universal destination of goods.
Pope John Paul II, On Social Concern ¶ 42, reprinted in CATHOLIC SOCIAL THOUGHT, supra
note 96, at 393, 426.
119. CHARLES AVILA, OWNERSHIP: EARLY CHRISTIAN TEACHING 66 (1983).
120. Id. at 113.
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then justice dictates that the excess is no longer their private property.
To the extent that people possess what is not theirs, it is theft.
Such a re-definition of property is a basic ideal of the push for a
just living wage, both world-wide and in this country. Does a person,
corporation, or business have a right to take home a profit if they
have not paid their taxes? Do they have a right to take home a profit
if they have not paid their creditors? If the answer is no, then why
should they be allowed to take home a profit if they do not pay a
living wage to their workers? Paying a just wage is a fundamental
element of any business that employs people. If a business cannot pay
a just and living wage to its employees, why does the community
need that business? As one Republican U.S. Senator, who was a great
friend of business, argued, the right to a living wage is more
important than the right to operate a business.121
Thus, at the point of excess, private property ceases to be a right,
and the social mortgage can be exercised by proper authority to
provide for the basic unmet needs of others. At this point, excess
individual wealth actually belongs to the poor. If excessive wealth
can be the solution to life-threatening poverty, then it should be.
121. During a debate in the 1930s about enacting a minimum wage, Senator William E.
Borah of Idaho had the following exchange with other Senators:
MR. BORAH. “I look upon a minimum wage such as will afford a decent living as a
part of a sound national policy. I would abolish a wage scale below a decent standard
living just as I would abolish slavery. If it disturbed business, it would be the price we
must pay for good citizens . . . . I take the position that a man who employs another
must pay him sufficient to enable the one employed to live.”
MR. PEPPER. “What if he cannot afford to pay it?”
MR. BORAH. “If he cannot afford to pay it, then he should close up the business. No
business has a right to coin the very lifeblood of workmen into dollars and cents.
....
I insist that American industry can pay its employees enough to enable them to
live.”
MR. ELLENDER. “Without exception?”
MR. BORAH. “Yes; without exception. If it cannot do so, let it close up . . . . I am
opposed to peon labor, whether it is employed by one man or another. I start with the
proposition that the right to live is higher than the right to own a business.”
81 CONG. REC. 7775, 7795–96 (1937).
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Re-thinking property should also consider the push for
privatization—making formerly public assets and services private.
There is considerable movement towards privatizing formerly public
works and institutions, such as water, health, sanitation, education,
roads, and security. This movement will inevitably privilege those
with economic resources to the disadvantage of those without.
Privatization must be radically questioned, with the burden of
persuasion on those who seek it.122 Privatization must be challenged,
particularly when it seeks to privatize essential services and
resources.123 Even advocates of privatization are reluctant to take
such action without considerable public planning, participation and
accountability.124 Indeed, privatization must be accompanied by
public participation and transparent decision-making. Moreover,
there must be clear, prompt, and acceptable methods of reversing
privatization efforts without damaging community resources in cases
in which it is not in the common good. Re-defining property rights is
another step towards justice.
4. Democratizing Corporations
Democratizing economics is no more unlikely a task than
democratizing government—in a sense it’s only finishing the
task. It won’t happen overnight, but it’s a good bet it will
happen. Major system-wide change is possible. It happened
when the monarchy fell, and it can happen again. The lesson of
history is clear: democracy always wins in the end.
—Marjorie Kelly125
122. See DUCHROW & HINKELAMMERT, supra note 112 (“The currently fashionable
ideology of privatization must be questioned radically.”).
123. A great story about the successful efforts to resist privatization can be found in OSCAR
OLIVERA & TOM LEWIS, COCHABAMBA!: WATER WAR IN BOLIVIA (2004).
124. JOSEPH E. STIGLITZ, GLOBALIZATION AND ITS DISCONTENTS 54–59 (1st ed. 2002).
125. Robert Hinkley, Toppling the Corporate Aristocracy, COMMON DREAMS
NEWSLETTER (Common Dreams, Portland, Me.), Apr. 19, 2002, ¶ 34, http://www.common
dreams.org/views02/0419-09.htm (interviewing Marjorie Kelly).
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The leading lawyers of the United States have been
engaged mainly in supporting the claims of the corporations;
often in endeavoring to evade or nullify the extremely crude
laws by which legislators sought to regulate the power or curb
the excesses of corporations.
—Louis Brandeis126
To address the root causes of wealth and poverty, we must look at
democratizing the main form of world economic power: the
corporation. If we expect to bring about justice in our world,
corporations cannot be allowed to focus exclusively on “machines
and computers, profit motives and property rights” any more than
people can.127 Law and lawyers have played a fundamental role in the
growing problem of the corporation, and there must be a radical
change in both.
It is essential that corporations be brought under democratic
control and regulated for the purposes of the community and justice.
In order to do so, fundamental changes must be made. Revolutionary
thought must be directed toward re-asserting democratic control over
all elements of corporations, eliminating corporate personhood, and
phasing out socially unnecessary corporations.
It is time to recall the words of Justice Marshall, who wrote that a
corporation “is an artificial being, invisible, intangible, and existing
only in contemplation of law. Being the mere creature of law, it
possesses only those properties which the charter of its creation
confers upon it, either expressly, or as incidental to its very
existence.”128 It is time to reassert the democratic control of people
over corporations.
Massive corporate layoffs, environmental disasters, financial
fraud and collapse are common topics in the news.129 In three polls
126. Brandeis, supra note 61, at 560.
127. King, Jr., supra note 1.
128. Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 636 (1819).
129. See, e.g., Corporate Execs in Season, PITTSBURGH TRIB. REV., July 21, 2005,
available at http://pittsburghlive.com/x/tribune-review/s_355533.html (noting over 400 cases of
criminal fraud being pursued against corporate executives); Rex Nutting, Layoffs Surge to 17Month High, MARKETWATCH, July 6, 2005, at 1, available at http://www.marketwatch.com/
News/Story/Story.aspx?guid=%7B5E273562%2D1479%2D43BB%2DAA67%2DF00966B7B
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taken between 1996 and 2000, Business Week magazine found that
between 71% and 82% of those polled agreed with the statement that
“business has gained too much power over too many aspects of
[American] lives.”130
Most of the analysis of the essential problems of corporations has
not occurred in legal circles, but there are many “extra legal
critiques.”131 Lawyers need to listen and take leads from these
critiques, and ultimately help translate them into change.
There have always been corporate critics in the legal community,
and work on these issues continues.132 There is a growing group of
progressive corporate legal scholars who are trying to find ways to
make fundamental changes in corporate law and governance to
eliminate corporate political activities, limit corporate personhood,
change the responsibilities of directors, reform limited liability and
treat all large corporations as quasi-public entities subject to
increased social control.133
There are also a number of recent books documenting extensive
corporate problems and calling for significant change in the status
and regulation of corporations.134 These books suggest a range of
F96%7D&sideid=google (noting that over 110,000 people were laid off by automotive and
retail corporations in June, 2005, a dramatic increase).
130. Aaron Bernstein, Too Much Corporate Power?, BUS. WK. ONLINE, Sept. 11, 2000,
http://www.businessweek.com/2000/00_37/b3698001.htm.
131. Kellye Y. Testy, Capitalism and Freedom—For Whom?: Feminist Legal Theory and
Progressive Corporate Law, 67 LAW & CONTEMP. PROBS. 87, 88–89 (2004).
The leading think tank for dramatic change in corporations is the Program on Corporations,
Law and Democracy. For information on this group, see http://www.poclad.org/index.cfm (last
visited Feb. 12, 2006).
132. See, e.g., C.A. Harwell Wells, The Cycles of Corporate Social Responsibility: An
Historical Retrospective for the Twenty-First Century, 51 U. KAN. L. REV. 77 (2002).
133. Testy, supra note 131, at 88, 105–08; see also Douglas M. Branson, Corporate Social
Responsibility Redux, 76 TUL. L. REV. 1207, 1212–16 (2002); Ronnie Cohen, Feminist Thought
and Corporate Law, 2 AM. U. J. GENDER & L. 1 (1994); Thomas Linzey, Killing Goliath:
Defending Our Sovereignty and Environmental Sustainability Through Corporate Charter
Revocation in Pennsylvania and Delaware, 6 DICK. J. ENVTL. L. & POL’Y 31 (1997); Lawrence
E. Mitchell & Theresa A. Gabaldon, If I Only Had a Heart: Or, How Can We Identify a
Corporate Morality, 76 TUL. L. REV. 1645 (2002); Kellye Y. Testy, Linking Progressive
Corporate Law with Progressive Social Movements, 76 TUL. L. REV. 1227 (2002).
134. JOEL BAKAN, THE CORPORATION: THE PATHOLOGICAL PURSUIT OF PROFIT AND
POWER (2004); DAN BUTTS, HOW CORPORATIONS HURT US ALL: SAVING OUR RIGHTS,
DEMOCRACY, INSTITUTIONS, AND OUR FUTURE (2003); DEFYING CORPORATIONS, DEFINING
DEMOCRACY (Dean Ritz ed., 2001); CHARLES DERBER, REGIME CHANGE BEGINS AT HOME:
FREEING AMERICA FROM CORPORATE RULE 139
(2004); GEORGE DRAFFAN, THE ELITE
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reforms to make large corporations more ethical and accountable to
society, including:
• A Constitutional amendment declaring that corporations are
not natural persons and are not entitled to constitutional
rights;
• Granting states the power to revoke corporate charters
based on immoral conduct negatively impacting the
community (e.g., mass layoffs, pollution, plant relocation);
• Requiring corporations to allow employees to vote on
parity with shareholders and to serve on the board of
directors;
• Requiring corporations to make environmental and social
disclosures in addition to their financial disclosures;
• Allowing directors to focus on the long-term health of the
corporation by granting five-year terms for directors and by
issuing annual earnings reports (instead of quarterly);
• Requiring (rather than merely permitting) directors to take
account of so-called stakeholders in addition to
stockholders; and
• Amending the accounting rules and/or tax codes to reflect
the contributions of workers as an “asset” and to provide
incentives for socially responsible corporations.135
The efforts to rein in and reform corporations are very important
and should be supported. However, even more fundamental change is
needed to address the roles of corporate participation and leadership
in creating and maintaining global injustice. Corporate personhood
CONSENSUS: WHEN CORPORATIONS WIELD THE CONSTITUTION (2003); WILLIAM GREIDER,
ONE WORLD, READY OR NOT: THE MANIC LOGIC OF GLOBAL CAPITALISM (1997); THOM
HARTMANN, UNEQUAL PROTECTION: THE RISE OF CORPORATE DOMINANCE AND THE THEFT
OF HUMAN RIGHTS (2002); MARJORIE KELLY, THE DIVINE RIGHT OF CAPITAL: DETHRONING
THE CORPORATE ARISTOCRACY 147–49 (2001); DAVID C. KORTEN, THE POST-CORPORATE
WORLD: LIFE AFTER CAPITALISM (1999); LAWRENCE E. MITCHELL, CORPORATE
IRRESPONSIBILITY: AMERICA’S NEWEST EXPORT 97 (2001).
135. Douglas Litowitz, Are Corporations Evil?, 58 U. MIAMI L. REV. 811, 821–22 (2004).
140
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itself must be eliminated.136 Unfortunately, current law grants
corporations constitutional rights that make it exceedingly difficult
for democracy to rein them in—rights that the corporations have
exercised strenuously.137
The historical basis for corporate constitutional rights is weak.
The Fourteenth Amendment was passed in 1868 to ensure that all
citizens of the United States, particularly people of color, had full
rights. Nothing was ever said about granting constitutional rights to
corporations. But in 1886, the Supreme Court, in Santa Clara County
v. Southern Pacific Railroad,138 granted corporations legal
personhood under an unprecedented interpretation of the Fourteenth
Amendment.139 Ten years later, the Supreme Court, in Plessy v.
Ferguson, approved “separate but equal” racial segregation.140 Thus,
the Supreme Court interpreted the Fourteenth Amendment, explicitly
passed to assist former slaves, to give full rights to corporations,
while denying these rights to the exact people who were intended to
receive its protection. The irony was that “[i]n less than 30 years,
African Americans had effectively lost their legal personhood rights
while corporations had acquired them.”141
Inspiration for reversing corporate personhood can be found in a
powerful dissent by Justice Hugo Black in Connecticut General Life
Insurance Company v. Johnson.142 Justice Black pointed out that the
protections of the Fourteenth Amendment, which was established to
protect black citizens, instead had been used mostly to protect
corporations. “[O]f the cases in this Court in which the Fourteenth
136. For much more on this topic, see William Quigley, Catholic Social Thought and the
Amorality of Large Corporations: Time to Abolish Corporate Personhood, 5 LOY. J. PUB. INT.
L. 109 (2004).
137. See Richard L. Grossman, Wresting Governing Authority from the Corporate Class, 1
SEATTLE J. SOC. JUST. 147 (2002); Robert L. Kerr, Subordinating the Economic to the
Political: The Evolution of the Corporate Speech Doctrine, 10 COMM. L. & POL’Y 63 (2005).
138. 118 U.S. 394 (1886).
139. Writing about the case sixty years later, Justice William O. Douglas stated: “There
was no history, logic or reason given to support that view.” See Richard Grossman & Frank T.
Adams, Taking Care of Business, in DEFYING CORPORATIONS, DEFINING DEMOCRACY, supra
note 134, at 59, 68 (internal citations omitted).
140. 163 U.S. 537, 550–52 (1896).
141. Molly Morgan & Jan Edwards, Abolish Corporate Personhood, 59 GUILD PRAC. 209,
211 (2002).
142. 303 U.S. 77, 83–90 (Black, J., dissenting).
141
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Amendment was applied during the first fifty years after its adoption,
less than one-half of one per cent invoked it in protection of the negro
race, and more than fifty per cent asked that its benefits be extended
to corporations.”143
Organizations such as the National Lawyers Guild, the Green
Party, the Women’s International League for Peace and Freedom, and
Reclaim Democracy have initiated campaigns to abolish corporate
personhood.144 Lawyers must join those efforts and help reduce
constitutional rights of artificial business entities, while creating more
opportunities for the human rights of people.145
A final suggestion to reverse corporate dominance and
democratize corporations is to literally cut them down to size—to
dramatically cut back on large corporations. A major problem in
asserting democratic control over corporations is their massive size.
Major transnational corporations financially dwarf the countries in
which they operate, and are effectively unaccountable to the people
they impact. For example, Fortune magazine’s Global 500 rankings
for 2005 lists Wal-Mart as the world’s biggest corporation with
revenues of over $287 billion, making it larger than the economies of
more than 133 countries.146 Even the 100th largest corporation, Time
Warner, with revenues of over $42 billion, is larger than the
economies of eighty-nine countries.147 People in these large
institutions often do not see themselves as having any social
accountability.148 Given the size disparities between corporations and
many countries, much less between corporations and local
143. Id. at 90.
144. See QUIGLEY, supra note 14, at 128–29.
145. See Kimberly French, Taking on the System, UU WORLD, May–June 2003, available
at http://www.uuworld.org/2003/03/ feature1d.html; Tom Stites, How Corporations Became
‘Persons’, UU WORLD, May–June 2003, available at http://www.uuworld.org/2003/03/
feature1a.html; David Wolman & Heather Wax, Fighting City Hall, UU WORLD, May–June
2003, available at http://www.uuworld.org/2003/03/feature1b.html.
146. The 2005 Global 500, FORTUNE, available at http://money.cnn.com/magazines/
fortune/fortune500/; Nationmaster.com, Map & Graph: Countries by Economy, http://www.
nationmaster.com/graph-T/eco_gdp_ppp&int=-1 (last visited Feb. 21, 2006) (providing a listing
of the gross domestic product of each of the world’s countries, compiled from a CIA databook).
147. See The 2005 Global 500, supra note 146.
148. See Litowitz, supra note 135, at 832–41. Litowitz summarizes the positions of both
critics and proponents of corporations, but suggests that each side overlooks the ethical
problems of people desperate for work in large institutions.
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communities, how can there be a realistic expectation that individuals
can hold corporations accountable?
The problem of democratizing large corporations is one that can
be addressed by progressively eliminating the largest ones that
society determines it does not need.149 There is a historical basis for
citizens to re-assert control over growing and powerful business
interests by breaking them into smaller entities that can be regulated
by the people.150 The key question is the public good, and we should
determine the ways in which large corporations contribute to or harm
the public good. Some large corporations might actually be in
society’s interest, while others certainly are not. There is no reason
that a progressive, phased-in cap on corporate size cannot be
implemented,151 with the burden on large corporations to persuade the
public to which they are theoretically responsible that they should not
be broken into smaller units with more accountability, transparency,
and democratic control.
These are not prescriptions for a transition to a state-run market,
but rather a plan to exert democratic control over economic systems
that impact the daily lives of people and contribute in a powerful way
149.
I have one idea that is more radical, but still simple: A phased-in size cap for
corporations. The cap would limit the revenues, assets and number of employees of
any one corporation, and be lowered each year; and no individual or group of
individuals would be allowed to beneficially own or control more than one
corporation. The complexities of beneficial ownership and control have already been
worked out in most Western nations’ tax codes. The use of multiple corporations
serves no social or business purpose other than to evade taxes, obscure the true
ownership of “anonymous” corporations and evade legal responsibility and liability for
corporate wrongdoing. Spinning off businesses from those that exceed the size cap
would not be hard to do, and would democratize corporations and make them more
manageable and resilient, and redistribute wealth equitably and painlessly. I truly
believe that most of the emergent evils of corporations are more a function of their
sheer staggering size than their profit motivation.
How to Save the World, Undermining Corporatism: Some Old and New Ideas, http://blogs.
salon.com/0002007/categories/politicsEconomics/2004/07/08.html (July 8, 2004, 13:56).
150. Marjorie E. Kornhauser, Corporate Regulation and the Origins of the Corporate
Income Tax, 66 IND. L.J. 53 (1990).
151. See How to Save the World, supra note 149.
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to the current challenges of poverty and wealth.152 Will corporations
and their lawyers resist efforts to democratize? Of course they will. Is
that any reason not to do it? Of course not. It is time to re-assert
democratic control over corporations.
5. Demilitarizing and Reversing the Arms Race
Every gun that is made, every warship launched, every rocket
fired signifies, in the final sense, a theft from those who hunger
and are not fed, those who are cold and are not clothed. This
world in arms is not spending money alone. It is spending the
sweat of its laborers, the genius of its scientists, the hopes of its
children . . . . This is not a way of life at all, in any true sense.
Under the cloud of threatening war, it is humanity hanging
from a cross of iron.
—Dwight D. Eisenhower153
The United States has achieved unprecedented world military
domination and clearly intends to maintain it.154 The United States
remains the only nation to have used nuclear weapons on civilian
populations—actions that certainly would be considered war crimes
152. For other ideas about progressive challenges to economics as usual, see ROBIN
HAHNEL, ECONOMIC JUSTICE AND DEMOCRACY: FROM COMPETITION TO COOPERATION
(2005).
153. Dwight D. Eisenhower, Address Before the American Society of Newspaper Editors:
The Chance for Peace (Apr. 16, 1953), available at http://www.quotedb.com/speeches/chancefor-peace).
154. THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF AMERICA 1 (2002),
available at http://www.whitehouse.gov/nsc/nss.html [hereinafter NATIONAL SECURITY
STRATEGY]; see also THOMAS DONNELLY, THE PROJECT FOR THE NEW AMERICAN CENTURY,
REBUILDING AMERICA’S DEFENSES: STRATEGY, FORCES AND RESOURCES FOR A NEW
CENTURY (2000), available at http://www.newamericancentury.org/RebuildingAmericas
Defenses.pdf.
The U.S. is the world’s only superpower, combining pre-eminent military power,
global technological leadership, and the world’s largest economy . . . . At present the
United States faces no global rival. America’s grand strategy should aim to preserve
and extend this advantageous position as far into the future as possible . . . . Preserving
the desirable strategic situation in which the United States now finds itself requires a
globally preeminent military capability both today and in the future.
Id. at i.
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had the United States lost that war.155 As Martin Luther King, Jr.,
pointed out, militarism is one of the evils that must be addressed to
bring about a world based on justice.156
U.S. military dominance has come about at an unimaginable
financial, physical, and moral cost to the well-being of the world and
of the nation itself. Obviously, the costs include draining resources
away from opportunities to address poverty. In addition to the waste
of resources, there remains a justice question—under what theory of
human rights, justice or dignity can the United States stake its claim
to world military dominance and unilateral military and nuclear
action? Under what theory of human dignity and justice does the
United States justify huge stockpiles of nuclear weapons and the right
to use them again? The law and lawyers are often involved in
justifying and assisting our world military dominance. Justice must
work to radically undermine and root out the current legal practices
that allow the leaders of one nation a unilateral right to invade and
destroy the people of another by preemptive conventional or nuclear
actions. Otherwise, there can be no realistic expectation that human
dignity will be respected, or that the inequalities that result in poverty
will be fundamentally addressed at any time.
The United States’ global military dominance is breathtaking.157
Military spending in the United States, totaling over $450 billion,
represents 47% of all the money spent on militaries in the entire
world.158 This is more than the combined military budgets of the
United Kingdom, France, Japan, China, Germany, Italy, Russia,
Saudi Arabia, South Korea, India, Israel, Canada, Turkey and
Australia—the next fifteen countries combined.159 The United States
recently criticized China for increasing its military budget, while
155. Marcella David, Grotius Repudiated: The American Objections to the International
Criminal Court and the Commitment to International Law, 20 MICH. J. INT’L L. 337, 348–49
(1999).
156. See King, Jr., supra note 1.
157. ANDREW J. BACEVICH, THE NEW AMERICAN MILITARISM: HOW AMERICANS ARE
SEDUCED BY WAR (2005). Bacevich, a West Point graduate and Vietnam veteran, describes a
country that is moving beyond a militarized society into a society where civilians assume a
permanent military outlook on the world. Id. at 1–3.
158. Stockholm Int’l Peace Inst., The 15 Major Spenders in 2004, http://www.sipri.org/
contents/milap/milex/mex_major_spenders.pdf (last visited Feb. 21, 2006).
159. Id.
145
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maintaining one of its own that is seven to eighteen times larger.160
The U.S. military budget is more than thirty times as large as the
combined spending of the seven “rogue states” (Cuba, Iran, Iraq,
Libya, North Korea, Sudan and Syria).161
The United States maintains a world-wide military presence.162
The U.S. Department of Defense admits to having 725 military bases
in thirty-eight countries outside of the United States,163 in addition to
the 969 military bases within the United States.164 The United States
trains about 100,000 foreign soldiers each year,165 and is by far the
biggest seller of weapons—in only four years, from 1997 to 2001, we
exported over $44 billion worth of arms.166 Since World War II, the
United States has launched over fifty military and CIA interventions
in nations around the world, not counting the latest invasion of
Iraq.167
Nuclear weapons provide several specific challenges: staggering
costs, current perils, and the fundamental question of their legitimacy.
The cost to the United States of building and maintaining nuclear
weapons has been documented at more than $5.5 trillion from 1940
to 1996.168 What is $5.5 trillion? The amount spent on nuclear
weapons alone “exceeds the combined total over the same period of
federal spending on education, training, employment, and social
services; on agriculture; on natural resources and the environment; on
general science and space research; on community and regional
160. China’s Armed Forces: Casus Belli, ECONOMIST, June 11, 2005, at 1–2, available at
2005 WL 9244442.
161. The U.S. military budget is greater than the combined spending of the next thirteen
nations. See supra note 21.
162. See CHALMERS JOHNSON, THE SORROWS OF EMPIRE: MILITARY, SECRECY, AND THE
END OF THE REPUBLIC 154 (1st ed. 2004). In September, 2001, the United States deployed
254,788 military personnel in 153 countries. Id.
163. Id. (quoting the Department of Defense report titled Worldwide Manpower
Distribution by Geographical Area).
164. Tony Judt, The New World Order, N.Y. REV. BOOKS, July 14, 2005, at 5.
165. JOHNSON, supra note 162, at 132.
166. Id. at 133.
167. WILLIAM BLUM, KILLING HOPE: U.S. MILITARY AND CIA INTERVENTIONS SINCE
WORLD WAR II (2d ed. 2004).
168. See Stephen I. Schwartz, Check, Please!, BULL. ATOMIC SCIENTISTS, Sept.–Oct.
1998, at 34–35, available at http://www.thebulletin.org/article.php?art_ofn=so98schwartz_025.
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development, including disaster relief; on law enforcement; and on
energy production and regulation.”169
The United States is the only nation to have used nuclear weapons
on civilians, certainly a crime against humanity.170 Tens of thousands
were killed in these nuclear strikes.171 In Hiroshima, it is estimated
that 45,000 died the first day and 19,000 more died within four
months; in Nagasaki, an estimated 22,000 people died the first day
and approximately 17,000 others died within four months.172 The use
or potential use of nuclear weapons is generally considered to be
illegal. The International Court of Justice (ICJ) issued an opinion on
July 8, 1996, stating that “[t]he threat or use of nuclear weapons
would generally be contrary to the rules of international law
applicable in armed conflict, and in particular the principles and rules
of humanitarian law.”173 The court went on to conclude unanimously
that “[t]here exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control.”174
Yet, the United States continues to stockpile and maintain at
readiness thousands of nuclear weapons. The United States retains
169. Id.
170. David, supra note 155, at 348–49.
171. Jefferson D. Reynolds, Collateral Damage on the 21st Century Battlefield, 56 A.F. L.
REV. 1, 14–15 (2005).
172. URANIUM INFORMATION CENTRE, NUCLEAR ISSUES BRIEFING PAPER NO. 29,
HIROSHIMA, NAGASAKI, AND SUBSEQUENT WEAPONS TESTING 2 (2004), available at
http://www.uic.com.au/nip29.htm.
For photos documenting some of the devastation of Hiroshima and Nagasaki, see A PhotoEssay on the Bombing of Hiroshima and Nagasaki (unpublished manuscript), http://www.
english.uiuc.edu/maps/poets/g_l/levine/bombing.htm (last visited Feb. 21, 2006).
173. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J.
226, ¶ 105(2)E [hereinafter I.C.J. Advisory Opinion]. This part of the opinion was decided by a
vote of seven to seven and went on to say:
However, in view of the current state of international law, and of the elements of fact
at its disposal, the Court cannot conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance of selfdefense, in which the very survival of a State would be at stake.
Id.; see also FRANCIS A. BOYLE, THE CRIMINALITY OF NUCLEAR DETERRENCE (2002); JOHN
BURROUGHS, THE (IL)LEGALITY OF THREAT OR USE OF NUCLEAR WEAPONS 21–22 (1997);
NUCLEAR WEAPONS ARE ILLEGAL: THE HISTORIC OPINION OF THE WORLD COURT AND HOW
IT WILL BE ENFORCED (Ann Fagan Ginger ed., 1998).
174. I.C.J. Advisory Opinion, supra note 173, ¶ 105(2)F.
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over 10,000 nuclear weapons, over 5000 of which are currently
operational.175 The annual cost of maintaining the nuclear weapons
program was estimated in 1998 at $35 billion.176
The United States makes explicit its willingness to take
preemptive military action when it thinks that it or “[its] allies and
friends” are faced with danger.177 The invasion of Iraq shows the
willingness of the United States to take action based on the flimsiest
of frauds in order to exercise military power for political means.178
Under what concept of human dignity and justice can the United
States claim the right to be the world’s biggest military power for
now and the future?
Radical change is needed. Laws that justify the creation, presence
and deployment of nuclear weapons must be discarded. Laws that
justify and support spending on military dominance must likewise be
destroyed. Lawyers must work with others to reverse the direction of
these policies, or else there may be nothing left for anyone to defend.
We must demilitarize and reverse the arms race in order to redirect
resources to people, instead of to perpetual, preemptive, and possibly
world-ending wars.
6. Other Areas
There are many other areas of law that need revolutionary change.
These areas, including immigration policy, prison reform, education,
and reparations, are noted briefly here.
First, justice demands that we scrap current immigration laws and
most proposed reforms, and recognize that no person is illegal. It is a
strange version of justice that gives nearly global freedom of
175. Robert S. Norris & Hans M. Kristensen, U.S. Nuclear Forces, 2005, BULL. ATOMIC
SCIENTISTS, Jan.–Feb. 2005, at 73–75, available at http://www.thebulletin.org/article_nn.php?
art_ofn=jf06norris.
176. Brookings Inst., 50 Facts About U.S. Nuclear Weapons, Fact 50, http://www.brook.
edu/FP/PROJECTS/NUCWCOST/50.HTM (last visited Feb. 21, 2006).
177. NATIONAL SECURITY STRATEGY, supra note 154, at 14.
178. Robert M. Lawrence, The Preventive/Preemptive War Doctrine Cannot Justify the
Iraq War, 33 DENV. J. INT’L L. & POL’Y 16 (2004).
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movement to money and companies, but refuses it to people.179
Current globalization is based on the free movement of capital and
goods. Wal-Mart, Toyota, GM, Citibank, and other corporations are
allowed to set up shop anywhere and move freely between countries
with ease.180 People, however, are not nearly as free to migrate.181
National borders should be secondary to the pursuit of human rights.
Artificial boundaries between nations cannot be considered legal or
just reasons for excluding people from pursuing the conditions
necessary for human dignity.182 This is yet another area in which non179.
The major forces behind the drive for increased globalization are the transnational
corporations whose logic requires the free movement of capital, goods and skilled
peoples across borders. This free movement succeeds best when national sovereignty
is replaced by the “supra-sovereignty” of international agencies like the WTO, the IMF
and NAFTA. The rules imposed by these international organizations are designed to
give priority to the needs of capital.
A CD Focus on Sovereignty in Canada, CANADIAN DIMENSION, July 1, 2002, available at 2002
WL 7241846.
180. Id.
181. DUCHROW & HINKELAMMERT, supra note 112, at 146.
182. I ask my students: “What justice-based reason gives children born five miles north of
the Rio Grande unlimited economic and educational possibility, while children born five miles
south have geographically and legally imposed limits on their human potential?”
The myth that the United States welcomes all comers conflicts with actual practice. This
myth is based on real proclamations of principle, such as that of George Washington, who
stated that “[t]he bosom of America is open to receive not only the Opulent and respectable
Stranger, but the oppressed and persecuted of all Nations And Religions.” RESPECTFULLY
QUOTED: A DICTIONARY OF QUOTATIONS 169 (Suzy Platt ed., 1989), available at http://www.
bartleby.com/73/884.html. And who can forget the welcome of the Statue of Liberty: “Give me
your tired, your poor, Your huddled masses yearning to breathe free, The wretched refuse of
your teeming shore. Send these, the homeless, tempest-tost to me. I lift my lamp beside the
golden door!” Id. at http://www.bartleby.com/66/39/35139.html (quoting Emma Lazarus).
Yet the practice is quite different. Bill Ong Hing writes:
There have always been two Americas. Both begin with the understanding that
America is a land of immigrants. One America has embraced the notion of welcoming
newcomers from different parts of the world . . . . The other America has remained
largely mired in a Eurocentric (originally western Eurocentric) vision of America that
idealized the true American as white, Anglo-Saxon, English-speaking and Christian.
BILL ONG HING, DEFINING AMERICA THROUGH IMMIGRATION POLICY 5 (2004). For a
historical perspective on immigration, see Gerald L. Neuman, The Lost Century of American
Immigration Law (1776–1875), 93 COLUM. L. REV. 1833, 1846–59 (1993); see also SEYLA
BENHABIB, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS (2004) (advocating for
porous, but not absolutely open, national boundaries that would allow refugees and asylum
seekers).
149
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lawyers have taken leadership action.183 How can anyone be illegal if
we are all, according to the Universal Declaration of Human Rights,
sisters and brothers?184 No one is illegal and the law must be
fundamentally changed to reflect this principle.185
Second, the prison system in the United States is shameful and
must be abolished;186 not just reformed, but abolished.187 People
serious about justice must insist on radical change and demand a
process of reparation and reconciliation based on the human rights of
all, rather than based on retribution and vengeance.188 Our prison
183. “No Human is Illegal” was the theme of the 2003 Immigrant Workers Freedom Ride.
There are many groups trying to dismantle immigration policies that discriminate based on race,
gender and politics. See No One Is Illegal, http://noii.trick.ca/HomePage (last visited Feb. 21,
2006); No One Is Illegal-Toronto, http://sanspapier.revolt.org/ (last visited Feb. 21, 2006; see
also No Border, Welcome!, http://www.noborder.org (last visited May 14, 2006).
184. Universal Declaration of Human Rights, supra note 78, at art. 1.
185. Virginie Guiraudon, Book Review, No One Is Illegal: Asylum and Immigration
Control Past and Present, 17 J. REFUGEE STUD. 142 (2004); see also Anthony Gregory, In
Defense of Open Immigration, FREEDOM DAILY, Oct. 2004, available at http://www.fff.org/
freedom/fd0410e.asp.
186. See supra note 20 (noting that the United States ranks first worldwide in the
imprisonment of its citizens, with over 700 persons per 100,000 in prison).
What can the United States learn from the following nations that put so few people in
prison? Japan—45 per 100,000; Australia—110; Canada—105; Finland—50; France—80; Italy
95; Ireland—80; Sweden—65; and Iceland—30. PETER WAGNER & BRIGETTE SARABI, THE
PRISON INDEX: TAKING THE PULSE OF THE CRIME CONTROL INDUSTRY 40–41 (2003).
187. Again, non-lawyers are taking the lead in this area. Look particularly at the group
Critical Resistance, http://www.criticalresistance.org (last visited Feb. 21, 2006); see also
ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? (2003); THE CASE FOR PENAL ABOLITION (W.
Gordon West & Ruth Morris eds., 2000).
A good source on prison reform is MICHAEL JACOBSON, DOWNSIZING PRISONS: HOW TO
REDUCE CRIME AND END MASS INCARCERATION (2005). Jacobson’s story is interesting in part
because he ran much of the New York City penal system for years. For a good summary of the
different approaches to prison, reform and abolition, see Vanessa Huang, Two Million
Imprisoned=Too Many, ALTERNET, Aug. 4, 2005, http://www.alternet.org/story/23889/.
188. DAVIS, supra note 187, at 107. Interestingly, the U.S. Catholic Bishops agree with
Professor Davis. While not calling for absolute abolition, the U.S. Catholic bishops clearly
indicated the need for a transformation of the current system in a 2000 statement. U.S.
CONFERENCE OF CATHOLIC BISHOPS, RESPONSIBILITY, REHABILITATION, AND RESTORATION:
A CATHOLIC PERSPECTIVE ON CRIME AND CRIMINAL JUSTICE (2000), available at http://www.
usccb.org/sdwp/criminal.htm. As a result of this analysis, the Catholic bishops concluded that
the criminal justice system must change from a punitive and retributive one to one that
emphasizes restorative justice and insists that punishment have a constructive and rehabilitative
purpose. Id. at 13–19.
For more on Catholic social thought and offenders, see William P. Quigley, Prison Work,
Wages, and Catholic Social Thought, 44 SANTA CLARA L. REV. 1159, 1167–75 (2004); see
also Alvin J. Bronstein & Jenni Gainsborough, Using International Human Rights Laws and
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system is the end result of a profoundly dysfunctional, racist, and
anti-poor process almost satirically termed the criminal justice
system.189 Society certainly can and should protect itself from the
people who endanger it, but prisons are not the answer.190 Forcibly
detaining people in inhumane conditions does not further the
common good. Moreover, the system ensnares far more than just the
criminally dangerous. “Jails and prisons have become, in effect, the
country’s front-line mental health providers.”191 If we created a
decent mental health care system, ten to twenty percent of the current
jail and prison population could be released.192 If currently illegal
drugs were decriminalized, twenty-five percent of people in jail could
be released.193 The American prison system demands radical change.
Standards for U.S. Prison Reform, 24 PACE L. REV. 811 (2004).
189. TARA HERIVEL & PAUL WRIGHT, PRISON NATION: THE WAREHOUSING OF
AMERICA’S POOR (2003) (demonstrating clear connections between poverty and prisons, race
and prisons, and private profit and prisons).
For an excellent short examination of some of the major flaws in the criminal law system,
see David Cole, Two Systems of Criminal Justice, in THE POLITICS OF LAW, supra note 114, at
41; see also KATHERINE BECKETT & THEODORE SASSON, THE POLITICS OF INJUSTICE: CRIME
AND PUNISHMENT IN AMERICA (2000); JOHN IRWIN & JAMES AUSTIN, IT’S ABOUT TIME:
AMERICA’S IMPRISONMENT BINGE (1994).
190. The discussion about alternatives to prison must start with the premise that there is not
a single solution. Prison is used now as the final answer to crime and social protection, but
many other options are available. Imagining and working toward a world without prisons means
addressing underlying causes of crime, as well as coming up with creative responses to failure.
The abolition movement is not looking for a magic prison substitute, such as placing everyone
under house arrest or electronic monitoring, but a true radical transformation which will address
the dignities of the victim and of society, as well as the dignity of the offender, in a just way.
See DAVIS, supra note 187, at 105–15.
The movement to abolish prisons seeks to progressively replace them and the rest of the
present criminal justice system with various models of restorative justice. See THE CASE FOR
PENAL ABOLITION, supra note 187, at sec. IV; see also Jim Holt, Decarcerate?, N.Y. TIMES
MAG., Aug. 15, 2004, at 20–21.
191. HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND OFFENDERS WITH
MENTAL ILLNESS 16 (2003), available at http://www.hrw.org/reports/2003/usa1003/.
192. “Somewhere between two and three hundred thousand men and women in U.S.
prisons suffer from mental disorders, including such serious illnesses as schizophrenia, bipolar
disorder, and major depression.” Id. at 1.
193. About 25% of the two million people who are behind bars are there for drug
offenses—not violent or other offenses indirectly connected to criminalized drugs, but drug
offenses themselves. Walter Cronkite, Prisons Needlessly Overpopulated with Drug Offenders,
CENTRE DAILY TIMES, Aug. 6, 2004, available at http://www.mapinc.org/tlcnews/v04/n1118/
a03.htm?155; see also Bureau of Justice Statistics, Prison Statistics: Summary Findings,
http://www.ojp.usdoj.gov/bjs/prisons.htm (last visited Feb. 21, 2006). “Between 1995 and
2001, the increasing number of violent offenders accounted for 63% of the total growth of the
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Tragically, the U.S. and many other countries have failed to
provide an adequate education to the people who need it most.194
Worse, many have grown discouraged and have lost the impetus to
imagine and work for radical change.195 The right to adequate
education must be dramatically re-imagined and re-invigorated, both
in the United States and globally.196 Given the new demands of work,
this right must include a right to free higher public education.197
Finally, victimized peoples and nations deserve reparations to
counterbalance the continuing effects of injustice.198 Theologian
Walter Brueggeman states that the definition of justice is to “sort out
what belongs to whom, and to return it to them.”199 Reparations
should be made to people who have been subjected to injustices by
governments or corporations.200 Reparations should also be made
State prison population; 15% of the total growth was attributable to the increasing number of
drug offenders.” Id.
194. In the United States, the failure to provide an adequate education to those who most
need it is the result of many factors, including the historical legacies of racial discrimination in
housing, transportation and employment; systematic withdrawal of public support during
integration; and the prevalence of low-wage work.
195. Witness the unfortunate movement toward using high-stakes tests as an indicator of
individual educational progress and achievement. See William P. Quigley, Due Process Rights
of Grade School Students Subjected to High-Stakes Testing, 10 B.U. PUB. INT. L.J. 284 (2001).
196. Eric Berger, The Right to Education Under the South African Constitution, 103
COLUM. L. REV. 614 (2003); Sumi Cho, From Massive Resistance, to Passive Resistance, to
Righteous Resistance: Understanding the Culture Wars from Brown to Grutter, 7 U. PA. J.
CONST. L. 809 (2005); James A. Gross, A Human Rights Perspective on U.S. Education: Only
Some Children Matter, 50 CATH. U. L. REV. 919 (2001); C. Raj Kumar, International Human
Rights Perspectives on the Fundamental Right to Education—Integration of Human Rights and
Human Development in the Indian Constitution, 12 TUL. J. INT’L & COMP. L. 237 (2004).
197. Mark Dudzic & Adolph Reed Jr., Free Higher Ed!, NATION, Feb. 23, 2004, available
at 2004 WLNR 17889313.
Make every public institution of higher education free for all who meet the admissions
standards. No means testing, no service or work requirements, no minimum or
maximum ages. Just make it free for all. Free higher education is a simple idea that has
a profound resonance with the shared values of the American people. Recent polls
have shown that more than 80 percent agree that a college diploma is essential to
success. Seventy percent think higher education is being priced beyond the income of
the average family.
Id.
198. Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22
HARV. C.R.-C.L. L. REV. 323, 381–83 (1987).
199. WALTER BRUEGGEMANN ET AL., TO ACT JUSTLY, LOVE TENDERLY, WALK HUMBLY:
AN AGENDA FOR MINISTERS 5 (1997).
200. A variety of groups are deserving beneficiaries of reparations. For material on
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internationally where appropriate.201 Reparations often address core
issues of racism—social structures that perpetuate the advantages
compiled over hundreds of years of privilege.202
These areas of law are but a few of those that support current
systems of racism, militarism and materialism, and that must be
radically changed. While nearly every area of the law is in need of
radical change, lawyers must become revolutionaries for that change
to occur.
III. BECOMING A REVOLUTIONARY LAWYER
It is not enough merely to call for freedom, democracy, and
human rights. There has to be a determination to persevere in
the struggle, to make sacrifices in the name of enduring truths,
to resist the corrupting influences of desire, ill will, ignorance,
and fear. Saints, it has been said, are the sinners who go on
trying . . . It is his capacity for self-improvement and selfredemption that which most distinguishes man from the mere
brute. At the root of human responsibility is the concept of
indigenous Australians, see Michael Legg, Indigenous Australians and International Law:
Racial Discrimination, Genocide and Reparations, 20 BERKELEY J. INT’L L. 387 (2002).
For information on African-Americans, see Jeremy Levitt, Black African Reparations, 25
S.U. L. REV. 1 (1997); Kyle D. Logue, Reparations as Redistribution, 84 B.U. L. REV. 1319
(2004); Alfreda Robinson, Corporate Social Responsibility and African American Reparations,
55 RUTGERS L. REV. 309 (2003); Edieth Y. Wu, Reparations to African-Americans, 3 CONN.
PUB. INT. L.J. 403 (2004).
For reparations material on Mexican-Americans, see Jon Michael Haynes, What is It About
Saying We’re Sorry? New Federal Legislation and the Forgotten Promises of the Treaty of
Guadalupe Hidalgo, 3 SCHOLAR 231 (2001).
For material on reparations for Japanese-Americans and Holocaust survivors, see Alfred L.
Brophy, Some Conceptual and Legal Problems in Reparations for Slavery, 58 N.Y.U. ANN.
SURV. AM. L. 497, 499–500 (2003).
On reparations and Haitian-Americans, see Malissia Lennox, Note, Refugees, Racism, and
Reparations: A Critique of the United States’ Haitian Immigration Policy, 45 STAN. L. REV.
687 (1993).
201. See Libby Adler & Peer Zumbansen, The Forgetfulness of Noblesse: A Critique of the
German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, 39
HARV. J. ON LEGIS. 1 (2002); Peter G. Fischer, The Victims’ Trust Fund of the International
Criminal Court–Formation of a Functional Reparations Scheme, 17 EMORY INT’L L. REV. 187,
192–204 (2003).
202. See Christian Sundquist, Critical Praxis, Spirit Healing, and Community Activism:
Preserving a Subversive Dialogue on Reparations, 58 N.Y.U. ANN. SURV. AM. L. 659 (2003).
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perfection, the urge to achieve it, the intelligence to find a path
towards it, and the will to follow that path . . . It is man’s
vision of a world fit for rational, civilized humanity which
leads him to dare and to suffer to build societies free from
want and fear.
—Aung San Suu Kyi203
The world does not need more lawyers that support the status quo.
We need revolutionaries.204 Over the years, I have listened to
hundreds, maybe thousands, of people who are actively working to
make radical changes in the world. From those conversations, I have
distilled a few principles regarding what I term “reflective activism,”
and I will share these here.
It is my observation that some people interested in radical change
are not activists, but hyper-activists. Hyper-activists want radical
change now, and will work like crazy to achieve it. When it does not
come immediately, or within two or three years, they become burned
out and give up. Those that practice reflective activism remain
committed and active agents of social change over the long haul.
Revolutionaries must be committed to the long haul, and what
follows are my thoughts about how best to do that.
These are not specific instructions, or a cookbook for radical
action, but rather reflections on remaining committed to radical
change. Revolutionary change is not the sprint of a specific
campaign, but a marathon of life work. What is needed is not a map
of where to go, because the destination continually changes, but
rather a compass that will help orient us toward the goals we seek in
our journey. These principles can help orient us toward a lifetime of
acting as revolutionaries, and help us deal with the joys and defeats
that are inevitable in such a journey.
Becoming a revolutionary lawyer first involves “un-learning”
most of what we were taught in law school and what we have learned
203. LAUREN, supra note 106.
204. Many lawyers have been called revolutionaries, including Mahatma Gandhi, Nelson
Mandela, many signers of the Declaration of Independence, and Thurgood Marshall. But see
RICHARD DELGADO & JEAN STEFANCIC, FAILED REVOLUTIONS: SOCIAL REFORM AND THE
LIMITS OF LEGAL IMAGINATION (1994).
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in the practice of law. We must change teachers and skills, but, most
of all, we must change our minds and hearts. We must be humble and
admit what we do not know. We must learn from our “clients” and be
willing to be uncomfortable.
A. Solidarity
If there is a first principle of radical change, it is the principle of
solidarity.205 Radical change only comes about by working with
people; it is never the result of working for people.206 Liberation is
never something that people do for others, but something that people
achieve with others. This is best summed up by the quote: “If you
have come to help me, you are wasting your time. . . . But if you have
come because your liberation is bound up with mine, then let us work
together.”207
Working in solidarity means that we must constantly challenge
racism, paternalism, patriarchy, homophobia, classism, nationalism
and all of the other violent divisions hard-wired into our selves and
our systems. Those systems of division were set up and are
maintained to keep us from being in solidarity with others struggling
for justice.208 We must make common cause with others to identify
and overcome those divisions. Solidarity also means no borders;
globalized liberation is the goal.209
205.
Solidarity requires that one enter into the situation of those with whom one is solidary
[sic]; it is a radical posture. If what characterizes the oppressed is their subordination
to the consciousness of the master, as Hegel affirms, true solidarity with the oppressed
means fighting at their side to transform the objective reality which has made them
these “beings for another.”
PAULO FREIRE, PEDAGOGY OF THE OPPRESSED 34 (Myra Bergman Ramos trans., 1970).
206. “Political action on the side of the oppressed must be pedagogical action in the
authentic sense of the word, and, therefore, action with the oppressed.” Id. at 53.
207. University of the Poor, Welcome Letter, http://www.universityofthepoor.org/schools/
social/welcome.html (last visited Feb. 21, 2006) (quoting Lilla Watson, an aboriginal artist and
social worker).
208. BETSY LEONDAR-WRIGHT, CLASS MATTERS: CROSS-CLASS ALLIANCE BUILDING FOR
MIDDLE-CLASS ACTIVISTS (2005) (addressing class, race, gender, sexual orientation and other
divisions in the effort to bring about radical change).
209. JEREMY BRECHER ET AL., GLOBALIZATION FROM BELOW: THE POWER OF
SOLIDARITY (2000); GLOBALIZE LIBERATION: HOW TO UPROOT THE SYSTEM AND BUILD A
BETTER WORLD (David Solnit ed., 2004).
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People should never expect to achieve revolutionary change alone,
but only by organizing with others to confront injustice and to create
new ways of living.210 Solidarity also means that unless each of us
realizes that we directly and personally benefit from actions for
change, we will not have enough reason to keep working for
justice.211 Moreover, solidarity also returns us to the first principle of
the 1948 Universal Declaration of Human Rights, that all people are
sisters and brothers and have an inherent right to human rights and
dignity.212 This simple statement has truly revolutionary implications.
Solidarity is our first principle.
B. Seek out and Treasure Hope, Joy and Love
The dominant tendencies of our day are unregulated global
capitalism, racial balkanization, social breakdown, and
individual depression. Hope enacts the stance of the
participant who actively struggles against the evidence in
order to change the deadly tides of wealth inequality, group
xenophobia, and personal despair. Only a new wave of vision,
courage and hope can keep us sane—and preserve the decency
and dignity requisite to revitalize our organizational energy
for the work to be done. To live is to wrestle with despair yet
never allow despair to have the last word.
—Cornel West213
210. William P. Quigley, Reflections of Community Organizers: Lawyering for
Empowerment of Community Organizers, 21 OHIO N.U. L. REV. 455, 456 (1994) (“Community
organizing is the essential element of empowering organizational advocacy.”); see also
KIMBERLY A. BOBO ET AL., ORGANIZING FOR SOCIAL CHANGE (3d ed. 2001); DEREK
DENCKLA & MATTHEW DILLER, COMMUNITY LAWYERING: THEORY AND PRACTICE (2000);
BILL MOYER, DOING DEMOCRACY: THE MAP MODEL FOR ORGANIZING SOCIAL MOVEMENTS
(2001); RANDY SHAW, Lawyers: Allies or Obstacles to Social Change?, in THE ACTIVIST’S
HANDBOOK: A PRIMER 185, 185–211 (updated ed. 2001).
211. “It is only the oppressed who, by freeing themselves, can free their oppressors.”
FREIRE, supra note 205, at 42.
212. See Universal Declaration of Human Rights, supra note 78. “Whereas recognition of
the inherent dignity and of the equal and inalienable rights of all members of the human family
is the foundation for freedom, justice and peace in the world . . . .” Id. at pmbl.
213. Cornel West, Prisoners of Hope, in THE IMPOSSIBLE WILL TAKE A LITTLE WHILE: A
CITIZEN’S GUIDE TO HOPE IN A TIME OF FEAR 293, 296–97 (Paul Rogat Loeb ed., 2004).
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No one can sustain the long haul of a life dedicated to
revolutionary change without hope, joy and love. If your life and
work do not involve generous doses of real hope, joy and love, then
you must make radical changes before you can join with others in
changing our world.
Some may think that a high priority on love is inconsistent with
revolutionary change, but they are mistaken. Love is one of the most
radical forces for change.214 I am talking here about real love, not
Hallmark-card love—love that energizes people to undertake actions
that otherwise seem impossible; love that is willing to sacrifice for
others; love that can triumph over the most challenging obstacles;
love that accepts our mistakes and those of others and goes forward
anyway.215
Joy is also fundamental. Justice work cannot be only rockbreaking toil. There is wonderful joy in the shared struggles for peace
and justice. There is joy in solidarity. And, in truth, there is much joy
214. The revolutionary Che Guavara stated:
Let me say, with the risk of appearing ridiculous, that the true revolutionary is guided
by strong feelings of love. It is impossible to think of an authentic revolutionary
without this quality . . . One must have a large dose of humanity, a large dose of a
sense of justice and truth, to avoid falling into extremes, into cold intellectualism, into
isolation from the masses. Every day we must struggle so that this love of living
humanity is transformed into concrete facts, into acts that will serve as an example.
ERNESTO CHE GUEVARA, MAN AND SOCIALISM IN CUBA 43 (1967).
215. One of my favorite quotes about love is taken from Dostoevsky and was a favorite of
Dorothy Day’s, a radical Catholic who helped start the Catholic Worker Movement. The quote
is:
Love in action is a harsh and dreadful thing compared with love in dreams. Love in
dreams is greedy for immediate action, rapidly performed and in the sight of all. Men
will even give their lives if only the ordeal does not last long but is soon over, with all
looking on and applauding as though on the stage. But active love is labor and
fortitude, and for some people too, perhaps, a complete science. But I predict that just
when you see with horror that in spite of all your efforts you are getting farther from
your goal instead of nearer to it—at that very moment I predict that you will reach it
and behold clearly the miraculous power of the Lord who has been all the time loving
and mysteriously guiding you.
FYODOR DOSTOEVSKY, THE BROTHERS KARAMAZOV 49–50 (Constance Garnett trans., Ralph
Matlaw ed., W.W. Norton & Co. 1976) (1879).
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in the shared companionship and humor that are essential parts of
every campaign for radical change.216
Hope is likewise essential. So many people are unable to join
actions challenging injustice because they are paralyzed by a sense of
futility and despair—exactly what the powerful want. Hope offers
opportunity. But hope, as noted above, is not the same as optimism.
Hope is the conviction that if people created the injustices imposed
on us, then the dreams of our sisters and brothers and of ourselves
can be realized if and when enough people join together to work for
change. Hope recognizes that the history of justice is built on the
work of others who we will never know, but who share in the
unexpected advances toward justice.217
216.
It is hard to sustain ourselves in difficult work if the only reward is the possibility that
somewhere down the line our work may have some positive effect, though we may be
long dead. That’s a lot to ask of people. We all want more than that out of life. We
want joy and love. At least every now and then, we want to have a good time,
including a good time while engaged in our work. No political movement can sustain
itself indefinitely without understanding that, not just because people need—and have
a right—to be happy, but because if there is no joy in it, then movements are more
likely to be dangerous. The joy—the celebration of being human and being alive in
connection with others—is what fuels the drive for change.
People find joy in many different ways. As many people over the years have pointed
out, one source of joy is in the struggle. I have spent a lot of time in the past few years
doing political work, and some of that work isn’t terribly fun. Collating photocopies
for a meeting for a progressive political cause isn’t any more fun than collating
photocopies for a meeting for a corporate employer. But it is different in some ways: It
puts you in contact with like-minded people. It sparks conversation. It creates space in
which you can think and feel your way through difficult questions. It’s a great place to
laugh as you staple. It provides the context for connections that go beyond superficial
acquaintanceships.
Robert Jensen, Citizens of the Empire: Real Hope is Radical, THINKING PEACE, http://www.
thinkingpeace.com/Lib/lib023.html.
217. Id.
The hope comes not from some delusional state, but from what I would argue is a
sensible assessment of the situation. Cynicism might be an appropriate reaction to
injustice that can’t be changed. Hope is an appropriate response to a task that, while
difficult, is imaginable. And once I could understand the structural forces that
produced injustice, I could imagine what a world without those forces—and hence
without the injustice—might look like. And I could imagine what activities and actions
and ideas it would take to get us there. And I could look around, look back into history
and realize that many people have understood this and that I hadn’t stumbled onto a
new idea.
Id.
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We cannot give what we do not have. If we want a world that is
more loving, more joyful, and more hopeful, then we must first have
those qualities in abundance in our own lives. If we do not have
them, we must seek them out, find them, and integrate them into our
lives. Justice-seekers are sometimes dismissed as fanatical, scary
people, and, truthfully, some of us are like that some of the time. That
is called burnout, and it is a part of most people’s jobs. However, if
you are dedicated to helping bring about revolutionary change and
you are regularly burning out, you must make a change—either a
change in what you are doing or a change in yourself.218
C. Overcome Fear
There is a popular bumper sticker that says “No Fear.” For
purposes of revolutionary change, that phrase is mistaken. There is
plenty to be fearful of. Fear is a technique of control often used by
those in power to scare people away from thinking about and acting
for fundamental change.219 Courage is not having no fear, but rather
facing our fears, overcoming them, and taking action despite them.220
218.
If you find yourself blowing up at people, getting irritated over the littlest problem, or
not enjoying your work, you need to review your work habits. If you are working
excessive hours, you will become less effective in the time you do work and will begin
thinking of yourself as a martyr (and everyone will avoid you). The social change
movement of the 2000s does not need more martyrs. It needs effective, well-balanced
organizers who are building power by involving people in winning real victories.
BOBO, supra note 210, at 340–41.
219. See Fascism, THE COLUMBIA ENCYCLOPEDIA (6th ed. 2000), available at
http://www.bartleby.com/65/fa/fascism.html.
The growth of democratic ideology and popular participation in politics in the
nineteenth century was terrifying to some conservative elements in European society,
and fascism grew out of the attempt to counter it by forming mass parties based largely
on the middle classes and the petty bourgeoisie, exploiting their fear of political
domination by the lower classes. Forerunners of fascism, such as Georges Boulanger
in France and Adolf Stöker and Karl Lueger in Germany and Austria, played on
people’s fears of revolution with its subsequent chaos, anarchy, and general insecurity
in their efforts to gain political power. They appealed to nationalist sentiments and
prejudices, exploited anti-Semitism, and portrayed themselves as champions of law,
order, Christian morality, and the sanctity of private property.
Id.
220. “The brave man is not he who feels no fear, For that were stupid and irrational; But
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A willingness to be uncomfortable is part of the challenge of
being a revolutionary. I am uncomfortable when in new places, with
new people, with challenging ideas and when called to new ways of
living and acting. We must be willing to push the envelope and to go
to new places, both personally and professionally.221
We must also prepare to be criticized.222 If you take any action,
much less challenge the status quo, many people will not like it. As
Dom Helder Camara said: “When you speak about the poor, you are
a holy person; if you speak about the root causes of poverty, you are
a communist.”223 Those who profit from current arrangements will
criticize and attack.224 If you cannot take conflict and criticism, you
cannot be in this struggle.225 Moreover, it is important to actually
he, whose noble soul its fears subdues, And bravely dares the danger nature shrinks from.”
JOANNA BAILLIE, Basil: A Tragedy, in 1 THE COMPLETE POETICAL WORKS OF JOANNA
BAILLIE 39 (1832), available at http://www.bartleby.com/73/353.html.
221. Marc Galanter, A Vocation for Law? American Jewish Lawyers and Their
Antecedents, 26 FORDHAM URB. L.J. 1125, 1131 (1999). “As modern readers, we tend to
respond to the prophets’ elevated universal morality and admire their courage, while filtering
out their group-centered and god-centered revivalism and retaining a ‘thin residue of ethical
monotheism, cultic criticism and social justice.’” Id.
222.
It is not the critic who counts; not the man who points out how the strong man
stumbles, or where the doer of deeds could have done them better. The credit belongs
to the man who is actually in the arena, whose face is marred by dust and sweat and
blood; who strives valiantly; who errs and comes short again and again, because there
is no effort without error and shortcoming; but who does actually strive to do the
deeds; who knows the great enthusiasms, the great devotions; and spends himself in a
worthy cause; who at best knows in the end the triumph of high achievement, and who
at the worst, if he fails, at least fails while daring greatly, so that his place shall never
be with those cold and timid souls who know neither victory nor defeat.
Theodore Roosevelt, Speech Given at the Sorbonne, Paris, France: Citizenship in a Republic
(Apr. 23, 1910), reprinted in 13 THE WORKS OF THEODORE ROOSEVELT 510 (1926), available
at http://www.bartleby.com/73/10.html.
223. This quote is attributed to Dom Helder Camara in FRED KAMMER, DOING
FAITHJUSTICE: AN INTRODUCTION TO CATHOLIC SOCIAL THOUGHT 156 (1991). For
background on Camara, see Beatriz Lecumberri, Brazil’s Helder Camara, Champion of Poor,
Dies at 90, AGENCE FRANCE PRESSE, Aug. 28, 1999.
224. Men in authority will always think that criticism of their policies is dangerous. They
will always equate their policies with patriotism, and find criticism subversive. HENRY STEELE
COMMAGER, FREEDOM AND ORDER: A COMMENTARY ON THE AMERICAN POLITICAL SCENE
(1966).
225.
If there is no struggle there is no progress. Those who profess to favor freedom and yet
deprecate agitation, are men who want crops without plowing up the ground, they want
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listen to criticism, because some of it is accurate and can help adjust
our actions to achieve our goals.
D. Continually Engage in Critical Re-education
To live a life of radical change, we must continually and critically
re-educate ourselves. Conventional education is not about
independent or critical thinking. Rather, it reinforces the idea that
there is nothing anyone can do to change this best of all possible
worlds.226 Part of the challenge of revolutionary thought is
revolutionary re-education.
Independent and critical thinking is our job.227 If we fail to do our
job, no one will educate us about alternatives to the status quo, and
no one will insist that we learn about alternative views. For example,
corporate mainstream media has little interest in telling the truth
about justice or in showing justice-based alternatives.228 If all we do
rain without thunder and lightning. They want the ocean without the awful roar of its
many waters. This struggle may be a moral one, or it may be a physical one, and it
may be both moral and physical, but it must be a struggle. Power concedes nothing
without a demand. It never did and it never will.
Frederick Douglass, Speech Delivered at Canandaigua, New York: West India Emancipation
(Aug. 4, 1857), reprinted in 2 THE LIFE AND WRITINGS OF FREDERICK DOUGLASS 437 (Philip
S. Foner ed., 1950), available at http://www.bartleby.com/73/443.html.
226. See FREIRE, supra note 205. Paulo Freire spends quite a bit of time discussing the
failings of conventional education. It is the “banking” concept of education, where “knowledge
is a gift bestowed by those who consider themselves knowledgeable upon those whom they
consider to know nothing. Projecting an absolute ignorance on others, a characteristic of the
ideology of oppression, negates education and knowledge as processes of inquiry.” Id. at 58.
Freire goes on to state that “[t]he more completely [the students] accept the passive role
imposed on them, the more they tend simply to adapt to the world as it is.” Id. at 60.
227. See RETHINKING GLOBALIZATION: TEACHING FOR JUSTICE IN AN UNJUST WORLD
(Bill Bigelow & Bob Peterson eds., 2002). The book is accessible and includes many thoughtprovoking stories, cartoons and examples. My favorite is a cartoon of a small fish being pursued
by a medium fish who is being pursued by a large fish. The small fish says, “There is no justice
in this world!” The medium size fish says, “Sometimes there is justice in this world.” And the
big fish says, “The world is just!” Id. at 73.
228. For example, consider the lack of mainstream coverage of a memo contradicting the
U.S. version of how the invasion of Iraq came to be. See David Michael Green, Downing
Street: A Dead-End in American Media, IN THESE TIMES, July 13, 2005, http://www.inthese
times.com/site/main/article/2252.
For other examples, see Eric Alterman, Lying Liars & the Presidents Who Employ Them,
NATION, July 18, 2005, http://www.thenation.com/doc/20050718/alterman; John Nichols &
Robert W. McChesney, FCC: It Could Get Worse, NATION, Feb. 21, 2005, http://www.the
nation.com/doc/20050221/nichols.
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is read or watch mainstream news, we are not likely to hear very
much about justice. We will, however, hear a lot about driving cars,
drinking beer and staying slim.229
The Internet provides many opportunities for re-education, but it
is up to us to seek them out and critically analyze them.230 There are
also social justice films and documentaries that can help.231
Biographies of revolutionaries are often a great inspiration and can
assist in real education.232 Likewise, we should discover the real
histories of social justice and revolutionary movements—these can be
both inspiring and comforting as we realize the humanity of the
organizing efforts involved.233 It is no excuse to say that we are too
busy engaging in social justice or revolutionary activity, because reeducation will help ensure that the activities we engage in are just.
E. Community and Family Support
A radical friend of mine, Daniel Berrigan, was asked, “Who are
your heroes?” He replied, “I don’t believe in heroes, I believe in
community.”234 There is no such thing as the solo revolutionary or
229. Read JEAN KILBOURNE, CAN’T BUY MY LOVE: HOW ADVERTISING CHANGES THE
WAY WE THINK AND FEEL (1st Touchstone ed. 1999). Then watch television and think about
what mass media actually sells us—women as objects, corruption of relationships, addiction,
and violence. There is nothing about radical change—unless it is the new “American
Revolution,” brought to us by Chevrolet.
230. See, e.g., Alternative Media Watch, http://www.zmag.org/altmediawatch.htm (last
visited Feb. 21, 2006).
231. For some suggestions, see BLUEPRINT FOR SOC. JUST., Apr.–May 2005, available at
http://www.loyno.edu/twomey/blueprint/vol_lviii/No-08_AprMay_2005.pdf.
232. As one wise student advised me: “Listen to the elders of other movements.” See
ROBERT SHETTERLY, AMERICANS WHO TELL THE TRUTH (1st ed. 2005) (discussing numerous
and diverse U.S. citizens from whom we could profitably learn).
233. This author has enjoyed learning from: TAYLOR BRANCH, PARTING THE WATERS:
AMERICA IN THE KING YEARS, 1954–63 (1988); TAYLOR BRANCH, PILLAR OF FIRE: AMERICA
IN THE KING YEARS, 1963–65 (1998); ADAM HOCHSCHILD, BURY THE CHAINS: PROPHETS AND
REBELS IN THE FIGHT TO FREE AN EMPIRE’S SLAVES (2005); PAUL GORDON LAUREN, THE
EVOLUTION OF INTERNATIONAL HUMAN RIGHTS: VISIONS SEEN (2d ed. 2003); NONVIOLENT
SOCIAL MOVEMENTS: A GEOGRAPHICAL PERSPECTIVE (Stephen Zunes et al. eds., 1999);
LINDA RABBEN, FIERCE LEGION OF FRIENDS: A HISTORY OF HUMAN RIGHTS CAMPAIGNS AND
CAMPAIGNERS (2002).
See also the analysis of the civil rights movement, the anti-nuclear energy movement, the
gay and lesbian movement, and the globalization movement in MOYER, supra note 210.
234. Panel with Daniel Berrigan at Loyola University New Orleans Institute for Ministry
(Jan. 17, 1998).
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solo activist. Anyone trying to live this life must have a supportive
community.235 For many, this will be family; for others, it will be
close friends. These communities often change over time, but to
engage in a life working with others for radical change, we must
constantly create and engage in communities.
Families, life partners and close friends are important for the long
haul. If the person closest to you does not share your values, you are
in deep trouble. If all of your friends only watch SportsCenter or
recreationally shop, you are in trouble. You must expand your circle
and add some new friends. True justice-seeking friends and families
not only support us, but also pull us into justice work.
We can only swim against the stream for so long if we try to do it
alone. Psychologists have proven that it is extremely difficult for a
person alone to resist even clearly unreasonable commands of
authority.236 The presence of even one person who dissents from an
incorrect majority view will greatly enhance the ability of others to
stand up for what they believe is correct.237 The ability of one lone
person to dissent against the conventional wisdom and to work for
justice is more than most of us can handle, but with allies, our
abilities and our opportunities expand dramatically.
235. “We all need personal support networks, families and close friends, who can share our
joys and sorrows. Developing close relationships requires time . . . . Strong relationships
provide organizers with a base of support for sustaining themselves for the long haul and
assistance in developing self-confidence.” BOBO, supra note 210, at 341.
236. See Ric Simmons, Not “Voluntary” But Still Reasonable: A New Paradigm for
Understanding the Consent Searches Doctrine, 80 IND. L.J. 773 (2005) (describing the
Milgram experiments). Professor Stanley Milgram conducted a series of experiments in the
1960s in which he asked volunteers to administer increasingly strong electric shocks to people
who failed to answer questions correctly. Though the subjects evidenced incredible pain,
apparently even fatal shocks continued to be given by person after person who followed
authority and did as ordered. Id. at 802–04.
237. See Kenneth B. Davis, Jr., Structural Bias, Special Litigation Committees, and the
Vagaries of Director Independence, 90 IOWA L. REV. 1305, 1318 (2005).
When asked to compare the length of a series of lines, subjects were induced to give
clearly incorrect responses after a number of other perceived subjects (actually
confederates of the experimenter) had done the same. When, on the other hand, a
second unwary subject was added to the experiment or one of the confederates was
instructed to give the correct answer, the level of conformity declined significantly.
Id. (describing the Solomon Asch study).
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F. The Preferential Option for the Poor and Powerless
Whenever you are in doubt, or when the self becomes too much
with you, apply the following test. Recall the face of the
poorest and the weakest person whom you have seen, and ask
yourself if the next step you contemplate is going to be of any
use to that person. Will that person gain anything by it? Will it
restore that person to a control over his or her own life and
destiny? In other words, will it lead to freedom for the hungry
and spiritually starving millions? Then you will find your
doubts and your self melting away.
—Mahatma Gandhi238
Liberation theology has given the community seeking radical
change a wonderful gift by emphasizing a principle called the
“preferential option for the poor.”239 This is not a new thought, as the
above Gandhi quote and many biblical verses attest, but it is a new
description of an important way of thinking and acting. Advocates of
liberation theology define all poverty as oppression, and call for all
who seek to change the world to adopt a “preferential option for the
poor.”240
238. Mohandes Gandhi (Aug. 1947), in MOHANDAS GANDHI: ESSENTIAL WRITINGS 190–
91 (John Dear ed., 2002).
239. The “preferential option for the poor” has been described as a challenge “to create
conditions for marginalized voices to be heard, to defend the defenseless, and to assess
lifestyles, policies and social institutions in terms of their impact on the poor . . . to strengthen
the whole community by assisting those who are most vulnerable.” Univ. of Notre Dame, Ctr.
for Social Concerns, An Introduction to the Principles of Catholic Social Thought,
http://centerforsocialconcerns.nd.edu/mission/cst/cst4.shtml (last visited Feb. 21, 2006).
240. “So first we need to have direct knowledge of the reality of oppression/liberation
through objective engagement in solidarity with the poor. This pre-theological stage really
means conversion of life, and this involves a ‘class conversion,’ in the sense of leading to
effective solidarity with the oppressed and their liberation.” LEONARD BOFF & CLODOVIS BOFF,
INTRODUCING LIBERATION THEOLOGY 23 (1987); see also Gerald West, The Bible and the
Poor: A New Way of Doing Theology, in THE CAMBRIDGE COMPANION TO LIBERATION
THEOLOGY 131 (Christopher Rowland ed., 1999).
In other words, theologies of liberation require that we not only make “an option for
the poor,” but that we also accept the epistemological paradigm shift in which the poor
and marginalized are seen as the primary dialogue partners of theology. Theology
begins with the reality, experience, needs, interests, questions, and resources of the
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This justice perspective demands that we turn our world view
upside down and look at fairness from the point of view of those
billions who live at the base of the mountain. From the top, things
look natural and inevitable. From the bottom, however, who would
not question the inequality? Looking from the bottom, we easily see
the racism, militarism and excessive materialism of those who are
perched comfortably at the top.
Since we in the United States live at the top of the mountain, we
are not naturally in a position to understand the perspective of those
at the bottom. Therefore, we must continually re-educate ourselves
about justice and injustice. The conventional wisdom from the top is
that “we are doing all we can,” “things are much better than they used
to be,” and “don’t worry about it; someone else is working on this
right now.” True re-education is our job. A preferential option for the
poor insists that we vigorously challenge the current social,
economic, military and religious arrangements that teach us these
false truths.241
It is incumbent upon us to seek out the voices of the poor and
listen to them. The media is not going to do that for us. The view of
the United States from Haiti, Sri Lanka, South Africa, or China looks
quite different than the view from Washington, D.C. Likewise, the
view of the United States from the perspective of inner-city
underemployed or unemployed workers and their families, or from
those in prisons or domestic violence shelters, is quite different than
views from other perspectives.
[A]n option for the poor is not primarily the choice of a lessaffluent life-style by individuals or groups. It is a commitment
to resist the structural injustice which marks our world. The
person who makes such an option is undertaking to work to
change the unjust economic, social and political structures
which determine how power and resources are shared out in
the world . . . . An “option for the poor” . . . means a series of
poor and marginalized.
Id. For more on this topic, see HENRIOT, supra note 107.
241. William P. Quigley, Seven Principles for Catholic Law Schools Serious About a
Preferential Option for the Poor, 1 U. ST. THOMAS L.J. 128, 129 (2003).
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choices, personal or communal, made by individuals, by
communities, or even by corporate entities . . . . It is the choice
to disentangle themselves from serving the interests of those at
the “top” of society and to begin instead to come into solidarity
with those at or near the bottom.242
Turn the world upside down and look at it from the perspective of
workers, the poor and the international community. The rich and
powerful think the current system works fine most of the time.
Billions of others do not agree. We must engage in solidarity with
those others to participate in the radical transformation that our world
needs.
G. Do Not Accept Reality—Particularly for the Future
Somewhere deep inside us we seem to know that we are
destined for something better than strife. Now and again we
catch a glimpse of the better thing for which we are meant—
for example, when we work together to counter the effects of
natural disasters and the world is galvanized by a spirit of
compassion and an amazing outpouring of generosity; when
for a little while we are bound together by bonds of a caring
humanity . . . . when we sign charters on the rights of children
and of women; when we seek to ban the use of antipersonnel
land mines; when we agree as one to outlaw torture and
racism. Then we experience fleetingly that we are made for
community, for family, that we are in a network of
interdependence.
—Desmond Tutu243
If you work for radical change, people will frequently tell you that
the future is already determined, and there is nothing anyone can do
about it. Do not believe them. In the past, slavery was widespread
242. DONAL DORR, OPTION FOR THE POOR: A HUNDRED YEARS OF VATICAN SOCIAL
TEACHING 3, 4 (rev. ed. 1992).
243. Desmond Tutu, No Future Without Forgiveness, in THE IMPOSSIBLE WILL TAKE A
LITTLE WHILE, supra note 213, at 394–95.
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and legal; women were prosecuted and jailed for voting; domestic
violence was an acceptable part of relationships; child labor was
legal; labor unions were outlawed; only white men with substantial
property could vote; there was no minimum wage; and the disabled
were told to stay at home and hide away, as were gays and
lesbians.244 Everyone who worked to bring about those changes was
told repeatedly that it was useless to organize for justice, that the
present was the best that could be done under the circumstances, and
that the powerful would never allow change.
Refuse to accept the reality of those who think that our future is
pre-determined by the powerful and will never change.245 Certainly
never accept our current reality as the inevitable future. Accept no
limits. Never let anyone tell you what you can achieve or who you
can become. Challenge injustice even if you do not know the
solution. Do not accept false choices—demand a third way.246 Our
choice is not between living a life of justice and starving, or sellingout and prospering. Demand and create another livable option.
Moreover, our choice is not between merely accepting the situation,
or making superficial reforms. We can insist on a third way in order
to create a just system. As Dorothy Day said: “Our problems stem
from our acceptance of this filthy, rotten system.”247 Do not accept it,
transform it!
244. See THE TREE OF LIBERTY: A DOCUMENTARY HISTORY OF REBELLION AND
POLITICAL CRIME IN AMERICA (Nicholas N. Kittrie & Eldon D. Wedlock, Jr., eds., 1986)
(documenting the struggles for suffrage, freedom, and civil rights).
245. “The secret weapon of Jesus and Gandhi, of Martin Luther King and Nelson Mandela,
of Shirin Ebadi and Wangari Maathai, and of all great human rights activists, is simply the
willingness to suffer loss after loss, again and again, until you win!” Letter from Fr. Gerard
Jean-Juste to U.S. Ambassador to Haiti (Nov. 9, 2004), available at http://www.aristide.org/
articles/LetterHaitianJail.htm.
246. Jean Bertrand Aristide recalls asking a four-year-old girl named Florence if the pool in
which she was going to swim for the first time was big or small. She answered, “It is beautiful.”
Later, when asked which she preferred, cola or rum, she responded firmly, “I prefer juice.”
When I presented two options, big or small, she created a third one. When I asked
which she preferred, rum or cola, again Florence created a third choice. Florence is a
child responding in a spontaneous way. But we adults thinking rationally—can’t we do
the same? When presented with only two options, we can create a third way.
JEAN-BERTRAND ARISTIDE, EYES OF THE HEART: SEEKING A PATH FOR THE POOR IN THE AGE
OF GLOBALIZATION 19–20 (2000).
247. Jim Forest, What I Learned About Justice from Dorothy Day, SALT OF THE EARTH,
1996, available at http://salt.claretianpubs.org/issues/DorothyDay/learned.html.
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H. Create and Maintain an Interior Life
Many people are aware of the world’s suffering; their hearts
are filled with compassion. They know what needs to be done,
and they engage in political, social, and environmental work to
try to change things. But after a period of intense involvement,
they may become discouraged if they lack the strength needed
to sustain a life of action. Real strength is not in power, money
or weapons, but in deep, inner peace.
—Thich Nhat Hanh248
We cannot do anything for peace without ourselves being
peace. If you cannot smile, you cannot help other people smile.
If you are not peaceful, then you cannot contribute to the peace
movement. We know that our situation is very dangerous. A
nuclear war can happen at any moment. Practicing meditation
is to practice awareness of what is going on. Therefore, if we
are aware, if we know what is going on, we will be peace and
make peace, so that the worst may not occur.
—Thich Nhat Hanh249
The insistence that the oppressed engage in reflection on their
concrete situation is not a call to armchair revolution. On the
contrary, reflection—true reflection—leads to action.
—Paulo Freire250
Have you ever seen a gerbil running furiously on a wire wheel?
That gerbil illustrates the difference between action and progress.
There is a tendency in working for change to get wrapped up in being
active, even hyper-active, without actually making any progress.
248. THICH NHAT HANH, PEACE IS EVERY STEP: THE PATH OF MINDFULNESS IN
EVERYDAY LIFE 99 (1991).
249. Thich Nhat Hanh, Being Peace, in PEACE IS THE WAY: WRITINGS ON NONVIOLENCE
FROM THE FELLOWSHIP OF RECONCILIATION 153, 156–57 (Walter Wink ed., 2000).
250. See FREIRE, supra note 205, at 52.
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One important way to recognize the difference between action and
progress is to create and maintain an interior life of reflection. Some
people call this meditation, while others call it reflection, prayer, or
yoga. Whatever you call it, people who want to change the world
must have this interior life. Nelson Mandela gave the following
advice about reflection while in jail:
You may find that the cell is an ideal place to get to know
yourself, to search realistically and regularly the process of
your own mind and feelings. In judging our progress as
individuals we tend to focus on external factors such as one’s
social position, influence and popularity, wealth and standard
of education . . . but internal factors may be even more crucial
in assessing one’s development as a human being: honesty,
sincerity, simplicity, humility, purity, generosity, absence of
vanity, readiness to serve your fellow men—qualities within
the reach of every soul—are the foundations of one’s spiritual
life . . . At least if nothing else, the cell gives you the
opportunity to look daily into your entire conduct to overcome
the bad and develop whatever is good in you. Regular
meditation, say of about fifteen minutes a day before you turn
in, can be very fruitful in this regard. You may find it difficult
at first to pinpoint the negative factors in your life, but the
tenth attempt may reap rich rewards. Never forget that a saint
is a sinner who keeps on trying.251
We must create inner peace in order to engage in purposeful
action. Without inner peace and a true sense of direction, we spend
much of our time reacting to outside influences and day-to-day
distractions, instead of trying to achieve justice and peace. Life is
hectic enough, and not dedicated to radical change. If we are going to
find and build peace, love and understanding in this world, we must
be prepared. A healthy interior life is part of our preparation to live as
fully as we can each and every day.
251. NELSON MANDELA, MANDELA: AN ILLUSTRATED AUTOBIOGRAPHY (1st ed. 1996).
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I. Sustainable Living
[H]umanity’s consumption and waste production today exceed
the Earth’s capacity to create new resources and absorb waste
. . . We are, as a result, liquidating certain natural capital to
support current resource use, thereby reducing the Earth’s
capacity to support future life.252
Sustainability is a revolutionary principle because it assumes that
every person has a right to enough of the world’s resources to
survive, and that no person has a right to take more than his or her
fair share. This is a profoundly un-American idea, and it challenges
every person and institution in the United States.
The United States represents less than five percent of the
population of the world.253 According to the U.S. Geological Survey,
the United States consumed approximately 39% of the world’s oil
production, 23% of the world’s natural gas production, and 23% of
the world’s coal production in 1998.254 Europe and Japan consume
less than half as much energy per person as the United States.255
Does the rest of the world wake up each day and say, “Let’s give
the United States an extra large helping of energy today, tomorrow
and every day?” No. The unequal global distribution of resources is a
justice issue. We must acknowledge that the current wealth of the
252. MATHIS WACKERNAGEL ET AL., REDEFINING PROGRESS, ECOLOGICAL FOOTPRINT OF
NATIONS, NOVEMBER 2002 UPDATE, at 8 (2002), available at http://www.rprogress.org/
publications/ef1999.pdf. The Worldwatch Institute reports:
Calculations show that the planet has available 1.9 hectares of biologically productive
land per person to supply resources and absorb wastes—yet the average person on
Earth already uses 2.3 hectares worth. These “ecological footprints” range from the 9.7
hectares claimed by the average American to the 0.47 hectares used by the average
Mozambican.
Worldwatch Institute, The State of Consumption Today, http://www.worldwatch.org/press/
news/2004/02/04 (last visited Feb. 21, 2006).
253. THOMAS M. MCDEVITT & PATRICIA M. ROWE, U.S. CENSUS BUREAU, THE UNITED
STATES IN INTERNATIONAL CONTEXT: 2000, at 1 (2002), available at http://www.census.gov/
prod/2002pubs/c2kbr01-11.pdf.
254. U.S. Geological Survey, U.S. Energy and World Energy Production and Consumption
Statistics, http://energy.cr.usgs.gov/energy/stats_ctry/Stat1.html (last visited Feb. 21, 2006).
255. Allen R. Myerson, U.S. Splurging on Energy After Falling off Its Diet, N.Y. TIMES
WEB, Oct. 22, 1998, http://www.colorado.edu/Economics/morey/4545/auto/offdiet.html.
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United States is built in part on structural injustices around the world.
We must acknowledge that the United States takes precious nonrenewable resources from others—either by direct force or by
unequal bargaining power.
Recall that over one billion people in the world live on less than
one dollar per day, and that over two billion people live on less than
two dollars per day.256 Consider these facts about U.S. standards of
living: as of 2003, there were more private cars than licensed drivers,
and gas-guzzling sport utility vehicles were among the best-selling
vehicles; new houses were 38% larger in 2002 than in 1975, despite
there being fewer people per household on average; an estimated
65% of U.S. adults are overweight or obese, leading to an annual loss
of 300,000 lives and at least $117 billion in health care costs in 1999;
in 2002, 61% of U.S. credit card users carried a monthly balance,
averaging $12,000 at 16% interest, and amounting to approximately
$1900 per year in finance charges—more than the average per capita
income of at least thirty-five countries in purchasing power parity.257
Sustainability is a direct challenge to consumerism and
materialism. We cannot live lives of affluence without profiting from
an unjust distribution of resources. We as individuals and as
institutions must change dramatically for a just distribution of global
resources. This requires a transformation of personal, community,
national and international standards and practices. We must look
seriously at our lifestyles and institutions and radically modify them.
True justice must address the local, national and global inequalities of
poverty and wealth. The absence of sustainable living is another
glaring example of why we must continually work for change.
J. Victory or Failure—Be Humble and Ready to Start over
Whether there is victory or failure (and the revolutionary will
have plenty of both), we must learn from our experiences and be
ever-ready to start over. When we fail, we must take time to heal our
256. See HUMAN DEVELOPMENT REPORT 2002, supra note 26.
257. See Worldwatch Institute, supra note 252. There are many ways to calculate how
sustainable our individual lifestyles are. One of the most graphic is the ecological footprint. See
Earth Day Footprint Quiz, http://www.earthday.org/footprint/index_reset.asp?pid=5007745635
675848 (last visited Feb. 21, 2006).
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wounds and learn from that experience. When we succeed, we must
celebrate with the community and savor the victory, so that it can
sustain us in the struggles ahead. Being open to new ideas means that
we must cultivate humility.258 And, if you are like me, you have
plenty to be humble about.
Finally, we must care for ourselves as well as the world and our
community on this journey toward radical change. As the Buddha
said: “You can search throughout the entire universe for someone
who is more deserving of your love and affection than you are
yourself, and that person is not to be found anywhere. You yourself,
as much as anybody in the entire universe, deserve your love and
affection.”259
SIGNS OF HOPE AND CONCLUSION
I am convinced that if we are to get on the right side of the
world revolution, we as a nation must undergo a radical
revolution of values. We must rapidly begin the shift from a
“thing-oriented” society to a “person-oriented” society. When
machines and computers, profit motives and property rights
are considered more important than people, the giant triplets
of racism, materialism, and militarism are incapable of being
conquered. A true revolution of values will soon cause us to
question the fairness and justice of many of our past and
present policies.
—Martin Luther King, Jr.260
This Article begins and ends with Dr. King’s speech titled Time to
Break Silence. It is time for lawyers to break silence and admit the
profound changes that are necessary to bring about justice in this
country and in this world. It is time for lawyers to switch sides and
258. Bill Quigley, Ten Ideas for Social Justice Organizing After September 11, BLUEPRINT
SOC. JUST., Nov. 2001, available at http://www.loyno.edu/twomey/blueprint/vol_lv/No03_Nov_2001.html.
259. SHARON SALZBERG, LOVINGKINDNESS: THE REVOLUTIONARY ART OF HAPPINESS 25
(1st ed. 1995).
260. See King, Jr., supra note 1.
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work for justice, instead of continuing to labor at the disposal of
those who pay us well to defend the injustices of current systems and
institutions.261 Thankfully, there are signs of hope for the vision of
Dr. Martin Luther King, Jr.
In the United States, a grassroots coalition of immigrant farm
workers fighting for better wages recently won a huge upset victory
over a transnational corporation. They did so by organizing
community, college and church groups nationwide.262 In fact, state
and local authorities have passed over 130 living wage ordinances in
order to diminish the gap between work and poverty.263 Many other
local and campus-based living wage campaigns have been
initiated,264 in addition to movements that seek to raise the integrity
of work and working conditions.265
Respect in the United States for international human rights is
beginning to grow, often led by local initiatives.266 Major human
261. I must admit that some of these suggestions for radical change could be wrong. One
never knows about the vitality of ideas until they are tested in action, but I am very confident
that the problems identified here are real and demand radical revolutionary changes. Others
may well have better ideas—indeed, I hope so.
262. See Coalition of Immokalee Workers, http://www.ciw-online.org/news.html (last
visited Feb. 21, 2006) (describing the coalition’s boycott of Taco Bell).
263. For examples of living-wage victories, see Living Wage Resource Center, Living
Wage Successes, http://www.livingwagecampaign.org/index.php?id=1958 (last visited Feb. 21,
2006).
Florida recently voted overwhelmingly for a raise in its minimum wage and voted to index
the raise to inflation, lifting the wages of over 850,000 workers. Tyler Hauck, Florida’s LowWage Workers Get a Pay Raise, DOLLARS & SENSE, May–June 2005, at 7.
264. ACORN’s Living Wage Resource Center lists many local and university-based
campaigns. See Living Wage Resource Center, Living Wage Campaigns Underway,
http://www.livingwagecampaign.org/index.php?id=1960 (last visited Feb. 21, 2006).
265. PHILOSOPHICAL AND SPIRITUAL PERSPECTIVES ON DECENT WORK (Dominique
Peccoud ed., 2004) (collecting hope-filled perspectives from religious traditions such as
Confucianism, Hindu, Buddhist, Islam, Jewish, Catholic, and Protestant).
266. See U.S. Human Rights Network, www.ushrnetwork.org (last visited Feb. 21, 2006);
Human Rights First, http://www.humanrightsfirst.org/index.html (last visited Feb. 21, 2006)
(formerly Lawyers for Human Rights).
There have been many local efforts to adopt and enforce international human rights
protections in various cities. Examples include Berkeley’s efforts to prevent human rights
violations since 9-11, El Paso’s protection of immigrants, and San Francisco’s protection of the
rights of women. See Ann Fagan Ginger, Report of 180 Types of U.S. Human Rights Violations
Since 9/11, TRUTHOUT, July 8, 2005, http://www.truthout.org/docs_2005/070805P.shtml;
Jenkins & Cox, supra note 90.
Washington University Open Scholarship
173
p101 Quigley book pages.doc
168
7/21/2006
Journal of Law & Policy
[Vol. 20:101
rights organizations have emphasized human rights violations in the
United States, thereby helping to encourage dialogue on the issue.267
There are even signs of hope in law schools. Law schools have
expanded clinical programs that directly introduce students to justice
issues and often directly challenge assumptions.268 New human rights
programs (including clinical programs) teach the basics of human
rights to the next generation of lawyers. Law schools realize the
necessity of loan-forgiveness programs, which enable highlyindebted graduates to undertake social justice work.269 This is how
we will rediscover the essence of justice.
There are enough lawyers in this world defending the way things
are. Plenty of lawyers protect unjust people and institutions in our
social, economic and political systems. Plenty of lawyers work for
structures that perpetuate and increase the racism, militarism and
materialism in our world. These lawyers are plentiful and wellcompensated. True structural and fundamental change will not come
by aiming at small revisions or reforms. If we are going to transform
our world, we need lawyers willing to work with others toward a
radical revolution of our world. We need no more lawyers defending
the status quo. We need revolutionaries.
267. Amnesty International and Human Rights Watch have started taking a much more
aggressive stance for human rights monitoring in the United States. See Amnesty International’s
Human Rights Concerns, http://www.amnestyusa.org/countries/usa/index.do (last visited Feb.
21, 2006); Human Rights Watch, http://www.hrw.org/ (last visited Feb. 21, 2006).
268. Fran Quigley, Seizing the Disorienting Moment: Adult Learning Theory and the
Teaching of Social Justice in Law School Clinics, 2 CLINICAL L. REV. 37 (1995).
269. See, e.g., American Bar Association, Loan Repayment and Forgiveness Overview,
http://www.abanet.org/legalservices/lrap/home.html (last visited Feb. 21, 2006).
174
http://openscholarship.wustl.edu/law_journal_law_policy/vol20/iss1/6
STATE
OF
INJUSTICE:
How New York State Turns
its Back on the Right to
Counsel for the Poor
“The amount of money someone
makes should not determine how
justice is served.”
DONALD TELFAIR, NEW YORK STATE DEFENDANT
“In all criminal prosecutions, the
accused shall enjoy the right to . . .
Assistance of Counsel . . . ”
UNITED STATES CONSTITUTION, SIXTH AMENDMENT
175
State of Injustice:
How New York State Turns its Back on the Right to
Counsel for the Poor
September 2014
ACKNOWLEDGMENTS
This report was written by Ujala Sehgal, Helen Zelon and Lauren Alexander. It was edited by Jennifer
Carnig, Christopher Dunn, Donna Lieberman and Corey Stoughton. Additional support was provided by
Sejal Singh, Mariko Hirose, Erin Harrist and lawyers from the firm of Schulte Roth & Zabel LLP. It was
designed by Li Wah Lai, who generously donated her time. Graphics and additional support were provided
by Abby Allender.
ABOUT THE NEW YORK CIVIL LIBERTIES UNION
The New York Civil Liberties Union (NYCLU) is one of the nation’s foremost defenders of civil liberties and
civil rights. Founded in 1951 as the New York affiliate of the American Civil Liberties Union, we are a notfor-profit, nonpartisan organization with eight offices and nearly 50,000 members across the state. The
mission of the NYCLU is to defend and promote the fundamental principles and values embodied in the Bill
of Rights, the U.S. Constitution, and the New York Constitution, including freedom of speech and religion,
and the right to privacy, equality and due process of law for all New Yorkers. For more information, please
visit www.nyclu.org.
176
CONTENTS
Executive Summary................................................................................................................................1
I. The Right to Counsel: From Clarence Gideon to Kimberly Hurrell-Harring................................5
New York’s History of Neglect....................................................................................................6
Hurrell-Harring: A Class Action Lawsuit Intent on Change.......................................................7
II. How New York’s Poor Defendants Are Denied Justice...................................................................8
Public Defense Eligibility............................................................................................................9
Initial Attorney Contact.............................................................................................................10
Arraignment..............................................................................................................................10
Attorney-Client Communication...............................................................................................12
Research, Investigators and Experts........................................................................................13
III. Defense Attorneys: Set Up to Fail.................................................................................................16
“Cattle Call Criminal Justice”..................................................................................................16
Absent Oversight.......................................................................................................................18
IV. How Underfunding Created a Broken System..............................................................................20
V.Recommendations..........................................................................................................................23
VI. Endnotes........................................................................................................................................25
177
EXECUTIVE SUMMARY
“You have the right to remain silent. Anything you say can and will be used against you
in a court of law. You have the right to an attorney. If you cannot afford an attorney, one
will be provided for you.”
If you watch enough television, you’ve probably heard the Miranda rights – your
rights if you’re accused of a crime and arrested. Most Americans know those words
as well as they know the Pledge of Allegiance. Those rights give us a sense of
freedom and security. They define who we are as Americans.
The right to an attorney is guaranteed under the United
States Constitution. In 1963, the United States Supreme
Court unanimously ruled in Gideon v. Wainwright that
everyone accused of a crime is entitled to a competent
lawyer even if he or she cannot afford one.
But more than 50 years later, poor and often innocent New
Yorkers are forced through the criminal justice system and
sent to jail undefended and alone.
Almost immediately after the Supreme Court’s ruling
in Gideon, New York abdicated its constitutional duty by
dumping the responsibility for public defense on its 62
counties. There were no standards and no oversight.1
As a result, today there is a jumble of inadequate public
defense systems across the state. Not until 2010 did the
state create an agency related to public defense, the Office
of Indigent Legal Services, which has been consistently
underfunded and unable to provide meaningful oversight.
Meanwhile, New York has turned its back on decades
of studies and official reports warning that indigent
defendants are consistently denied their right to counsel.
James Adams was arrested for
stealing deodorant from a drug
store in Onondaga County. Without
a lawyer, he was charged with
two felonies and a misdemeanor,
and his bail was set at $2,500 –
an amount he could not afford.
His lawyer did not visit him in jail
for more than 90 days, and did
not show up at court hearings. At
trial, he was acquitted of the two
felony charges and sentenced to
time served. While he sat in jail
for months, he lost his job and his
family was evicted.2
As a result, justice in New York often is available only for
those who can afford it.
178
STATE OF INJUSTICE
1
Undefended and Alone. Every day in courtrooms across New York State, people
accused of crimes who can’t afford a private attorney stand alone. They stand
alone at arraignment, the initial hearing before a judge when bail is set and the
defendant must plead guilty or not guilty. They stand alone while law enforcement
and prosecutors conduct investigations and talk to experts to build cases against
them, using resources the accused will never have access to themselves.
They stand alone as they accept or reject plea bargains, often unaware of the
consequences of their actions.
New York’s public defense attorneys feel alone, too – caught in a system in
which they are forced to carry caseloads that make them violate their own
rules of professional conduct by providing woefully
inadequate representation to their clients.
Jacqueline Winbrone was held
in Onondaga County on $10,000
bail for criminal possession of
a weapon – a gun her husband
admitted he put in her car. She
called her attorney for five days
straight but he did not respond.
Winbrone’s husband died during
the 50 days she was in custody
awaiting trial. Her lawyer failed
to notify her when the case was
ultimately dismissed.3
The impact of this broken system is magnified because it
involves New York’s most vulnerable residents. Children
are needlessly separated from parents and placed in foster
care, even though a competent attorney might have easily
negotiated the parent’s release from custody. Too often, the
sick and elderly who depend on family members for care
deteriorate as their spouses and relatives languish in jail,
awaiting trial. Those who live paycheck-to-paycheck are the
first to lose their homes and jobs when no lawyer is there to
negotiate bail.
The poor may suffer the most obvious effects, but all
New Yorkers pay the price. There are no public safety
benefits to sending innocent people to jail or locking up
minor offenders for too long. Instead, New Yorkers bear
significant moral and social costs, not to mention the
financial burden of funding expensive and unnecessary
incarceration.
In 2007 the New York Civil Liberties Union and the
law firm Schulte Roth & Zabel LLP sued New York State over its failure to
represent poor, or indigent, defendants.4 The class-action lawsuit, HurrellHarring et al. v. New York, focused on five New York counties: Onondaga,
Ontario, Schuyler, Suffolk and Washington (Ontario County has since settled
with the NYCLU).
This report examines the disgraceful state of public defense in New York State,
focused on these five counties. The data and personal accounts in this report were
gathered from testimony, affidavits, budget requests and other materials obtained
through the discovery process in the Hurrell-Harring lawsuit.
2
NEW YORK CIVIL LIBERTIES UNION
179
KEY FINDINGS
This report reveals how New York’s public defense system routinely fails poor
people accused of crimes.
•
In Onondaga County in 2012,
where there are routinely more
than 10,000 public defense cases
a year, defendants never met with
an attorney outside of court in
almost one-third of public defense
cases. Most of them ultimately
plead guilty to criminal charges.5
•
Although effective counsel often
requires a factual investigation and
forensic expertise, defense counsel often fail to consult expert witnesses
in New York.6 Experts were consulted in effectively zero percent of the
tens of thousands of cases in Suffolk County.7 In Onondaga County in
2011, investigators were not hired in 99.7 percent of cases.8
•
The New York State Bar Association and national legal experts
recommend that attorneys carry
no more than 150 felony cases a
year.9 In New York State, public
defense attorneys have been
known to carry as many as 420
felony cases a year, in addition
to misdemeanor cases and, in
some instances, family court
cases.10
•
Public defense attorneys have
severely limited budgets for
investigations, paralegals and
workplace basics, including
computers.11 In Washington
County in 2012, the seven attorneys in the Public Defender’s Office
shared a single computer.12
Poor defendants never met an attorney
out of court in almost one in three
public defense cases in Onondaga
County in 2012 – where there are often
more than 10,000 public defense
cases a year.
180
STATE OF INJUSTICE
3
RECOMMENDATIONS
The time to end New York’s shameful failure to provide adequate public defense
is now. New York’s approach to public defense undermines our state’s historic
reputation as a national beacon of fairness, equality and justice. As a progressive
leader of a politically progressive state, Governor Andrew Cuomo should recognize
the travesty that New York began decades ago and take immediate steps to correct it.
Three broad reforms are essential to advance New York’s commitment to equal
justice for all, ensure fair outcomes in criminal cases and improve the efficiency of
our judicial system. State leaders including Gov. Cuomo should:
4
•
Immediately ensure that there is a lawyer representing every poor criminal
defendant in New York at the initial court appearance, and ensure that the
lawyer has previously met with the defendant and is prepared to contest the
charges and advocate for pre-trial release or affordable bail.
•
Immediately reduce the huge caseloads of public defense attorneys so they
have the time to communicate with defendants, investigate cases, research
and file legal motions, and be prepared for court.
•
Replace the disorganized and underfunded county-based arrangement for
public defense with a true system run by New York State with adequate
funding, standards and supervision to assure poor criminal defendants
receive the defense to which they are entitled under the Constitution.13 n
NEW YORK CIVIL LIBERTIES UNION
181
I. The Right to Counsel:
From Clarence Gideon to
Kimberly Hurrell-Harring
More than half a century ago, a poor Florida drifter named Clarence Gideon was
arrested for breaking into a pool hall near his temporary, $6-a-week lodging.
Gideon, who quit school after eighth grade and ran away from home, asked the
court for an attorney to defend him because he could not afford one. But at the
time, counsel for poor or indigent defendants was only provided in death penalty
cases. Forced to defend himself, Gideon was convicted and sentenced to five
years in prison.14
From the prison library, Gideon handwrote a five-page petition to the
Supreme Court, requesting an appeal. The court heard his case and, in
1963, ruled unanimously that the guarantee of counsel, as codified in the
Sixth Amendment, is a fundamental right of all Americans. The court also
made clear that, through the due process clause of the 14th Amendment,
states are responsible for providing counsel when defendants cannot afford
representation.
In the Gideon v. Wainwright decision, the court called the right to counsel
“fundamental.” Justice Hugo Black wrote:
In our adversary system of criminal justice, any person hauled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial unless
counsel is provided for him. . . This seems to us to be an obvious truth. . .
[L]awyers in criminal courts are necessities, not luxuries.
Since Gideon, a series of Supreme Court cases has established that the right
to counsel requires more than the mere assignment of an attorney. The Sixth
Amendment has been interpreted to require effective assistance.15 In 1972, the
Supreme Court expanded on the duties and purpose of a lawyer: “Counsel is
needed so that the accused may know precisely what he is doing, so that he is
fully aware of the prospect of going to jail or prison, and so that he is treated
fairly by the prosecution.”16
182
STATE OF INJUSTICE
5
NEW YORK’S HISTORY
OF NEGLECT
The Right to Counsel in New York State
New York State’s Constitution, like
In 1965, two years after the Supreme Court
ruled that states were responsible for providing
counsel to people who could not afford it, New
York responded by shifting this burden onto its 62
counties. Each county was required to come up
with its own plan and provide for public defense
itself. By January 1967, the New York State
Bar Association had already detected serious
shortcomings in the state’s provision of indigent
defense.22
the U.S. Constitution, guarantees the
right to counsel.17 New York’s Criminal
Procedure Law provides that a defendant
is entitled to counsel for any offense
other than traffic infractions.18 Various
court decisions have made it clear that
the right to counsel encompasses the
Over the next five decades, a series of reports
would go on to document the state’s ongoing
public defense crisis. Most recently, in 2006,
a commission headed by former New York
State Chief Judge Judith Kaye investigated
public defense practices in New York. The
commission concluded that the state is “severely
dysfunctional” and “structurally incapable” of
providing effective representation, persistently
failing to satisfy its constitutional obligations.23
right to investigation of your case and
expert review when it is necessary to
mount a proper defense.19 As the state
is bound to provide defendants with
an attorney, these resources must be
provided by the state if defendants
cannot afford representation.
To this day, state funds cover no more than
a small fraction of the cost that New York’s
counties pay to provide lawyers to the poor.
While New York created a state wide Office
of Indigent Legal Services (ILS) in 2010, it is
effectively incapacitated due to underfunding.24
The state has refused to fully fund the ILS since
it first began submitting budget requests.25
As of the 2014-15 fiscal year, the ILS does not
guarantee a single county any amount of money
for public defense. It can only redistribute small
amounts of grant money, which it then cannot
afford to monitor or evaluate.26
In addition, the rules of the legal
profession in New York also require all
attorneys who represent clients to be
diligent and prompt in their assistance.20
If attorneys have too many clients, too
few resources, too little expertise or
otherwise
unmanageable
caseloads,
they violate their duties as members of
the bar.21
Sadly, not much has changed in the 50 years
since Gideon v. Wainwright. According to ILS
director William J. Leahy, persistent, destructive
gaps in county public defense systems are “a result of the state tossing the ball
to the counties in 1965.”27 Leahy added that “most, perhaps all, counties do not
currently comply” with laws requiring indigent representation.28
6
NEW YORK CIVIL LIBERTIES UNION
183
HURRELL-HARRING: A CLASS ACTION LAWSUIT
INTENT ON CHANGE
Following its own investigations, in 2007 the New York Civil Liberties Union and the law firm Schulte Roth
& Zabel LLP filed Hurrell-Harring et al. v. New York, a landmark class action lawsuit on behalf of poor New
Yorkers denied proper counsel. The lead plaintiff, Kimberly Hurrell-Harring, was a 31-year-old nursing
assistant and mother of two who committed a misdemeanor by trying to bring a small amount of marijuana
to her husband in prison.29 Such a misdemeanor rarely results in jail time, especially as Hurrell-Harring
was a first-time offender. But her court-appointed lawyer – since disbarred – had her plead guilty to a
felony. She spent four months in jail and lost her job and her home.30
The NYCLU’s lawsuit cites long-standing, systemic denials of counsel to poor criminal defendants like
Hurrell-Harring across New York State. The lawsuit originally focused on five counties across the state –
Onondaga, Ontario, Schuyler, Suffolk and Washington – to demonstrate how delegating the responsibility
of public defense to counties is a widespread failure. One county, Ontario, settled with the NYCLU in
September 2014 before the Hurrell-Harring lawsuit goes to trial, after making efforts to enhance public
defense services and pledging further improvements should state funding become available. 31
Hurrell-Harring v. New York is slated to go to trial in the fall of 2014. New York’s counties, fed up with bearing
an impossible burden, are increasing the pressure on Gov. Andrew Cuomo to fix the broken public defense
system. The call for a state-managed public defense system as the only way to stop failing vulnerable
defendants, overcrowding prisons and violating New Yorkers’ fundamental rights is getting louder. As of
July 2014, 14 New York counties have formally passed resolutions asking the state to take over public
defense and settle the Hurrell-Harring lawsuit.32
The data and personal stories in this report, which date from before 2005 through 2014, were gathered from
the collection of testimony, affidavits, budget requests and other materials uncovered through the discovery
process in the Hurrell-Harring lawsuit. n
184
STATE OF INJUSTICE
7
II. How New York’s Poor Defendants
Are Denied Justice
New York’s criminal justice system has a series of protections built into it that
occur the moment someone is arrested.
Today, if you are accused of a crime, you should retain an attorney as soon
as possible. Your attorney needs time to review facts before your initial court
appearance – your arraignment – that might persuade the judge to release you
from custody, such as your ties to the community and
your criminal history (or lack thereof). The earlier a
defense attorney enters your case, the better chance
Robert Kulas was charged with assault
he or she has to protect your rights and provide
and evidence-tampering. After nearly
effective representation.
You must be brought before a judge in your local
criminal court for arraignment within 24 hours of
being arrested, and your lawyer must be present
during arraignment to advocate on your behalf.33
During arraignment, the judge will determine whether
or not you can be released from custody on bail or
whether you must be remanded to jail while you await
the resolution of your case.
two months of waiting, he finally spoke
to his Onondaga County public defense
attorney. Without investigating his side
of the story, the attorney advised him
to take a plea bargain for five years in
prison. The attorney then left to feed his
parking meter and never returned.
After arraignment, your case can be resolved through
a plea bargain, dismissal or trial. Your attorney should
meet with you to discuss and evaluate the merits of
plea bargaining and to keep you apprised of hearings,
plea bargain offers and other procedures affecting your case and your life. Your
attorney should also continue to investigate your case throughout its resolution.
Investigation includes interviewing witnesses, collecting physical evidence and
consulting experts. Public defense attorneys should work with investigators to help
gather and analyze evidence. Experts are often necessary to present an effective
defense (e.g., insanity or battered woman’s syndrome) or to provide an opinion
independent of the prosecution’s expert. Any fact-finding can have critical influence
on the outcome of your case and the decisions you make.
In New York, however, failures in the public defense system have occurred and
continue to occur at every step of this process. From attorney assignment to case
resolution, poor and vulnerable New Yorkers are falling through cracks.
8
NEW YORK CIVIL LIBERTIES UNION
185
Despite applying three times for
a public defense attorney, Shawn
Chase was forced to wait roughly
five months before meeting an
attorney. (Chase’s application was
denied because his parents’ income
exceeded
poverty
minimums,
even though 20-year-old Chase
received
no
financial
support
from them and did not personally
meet the income threshold). He
testified at trial without discussing
or preparing for his testimony
beforehand with his attorney. He
was found guilty and sentenced to
60 days at the Schuyler County Jail
for driving under the influence.
Onondaga County disqualifies
people for public defense in
certain cases where they own
a car even if they have no
actual income.
PUBLIC DEFENSE
ELIGIBILITY
In New York, requests for representation are often
denied due to counties’ drastically low minimum income
thresholds or other regulations that limit poor defendants’
eligibility for public defense services.
In Schuyler County, the Public Defender’s Office based
eligibility on state and federal poverty guidelines to keep
costs down, so that a person with an annual income of
$12,763 in 2007 would likely be deemed ineligible for public
defense.34 According to the county’s former chief public
defender, more than 40 percent of defendants referred to
the Public Defender’s Office between 2004 and 2006 were
denied services because they were deemed “not indigent.”35
In Washington County, one poor defendant who had an
annualized income of $10,320 a year and was supporting
her son was denied public defense services.36
Some counties also fail to take into account financial
obligations, such as mortgages, in calculating whether
people qualify for public defense, forcing defendants
to choose between paying their mortgage or hiring an
attorney. Onondaga County disqualifies people for public
defense in certain cases if they own a house or a car, even if
they have no actual income and have no equity in the house
or car.37
Some counties also exclude defendants 20-years-old and
younger from accessing public defense services if their
parents have enough money to afford an attorney, even
when the defendant is not living with or dependent on his or
her family’s financial support.38 “Many of those clients were
not able to locate or access their parents, or their parents
refused to provide the financial information required,” said
one former Onondaga County public defense attorney.39 In
Washington County, one applicant with no personal income,
but $8,840 annualized from unemployment, was denied
based on his girlfriend’s income.40
As a result, many people too poor to afford an attorney are
nonetheless unable to access public defense services in
New York State.
186
STATE OF INJUSTICE
9
INITIAL ATTORNEY
CONTACT
For those defendants who are deemed eligible
for public defense services, the sooner the
defense attorney enters their case, the better
equipped the lawyer is to protect their rights. If
a public defense attorney enters a defendant’s
case right away, there is also less chance that
the poor defendant will be trapped in jail for
excessively long periods of time, unable to go
to work and support his or her family. However,
thousands of poor defendants in New York
State have had no attorney contact outside of
court for a full month after a lawyer has been
assigned to them.41
In Onondaga County, for example, more
than 1,600 poor criminal defendants in 2012
were still waiting to communicate with their
attorneys outside of court a full month after the
attorney’s appointment.42 One in four people
charged with felonies were still waiting to see
their attorney outside of court within two weeks
of arrest.43
“My Attorney Only Met Me to Get Paid.”
Richard Love, Onondaga County
Richard Love was arraigned without a lawyer
and held on charges of grand larceny and
criminal possession of a forged instrument at
the Onondaga Justice Center, awaiting trial.
After his arraignment, Love was given a piece
of paper with the contact information for his
assigned counsel. Love was often unable to
even leave his attorney a voicemail. The only
way he could feasibly call anyone from inside
the jail was by making a collect call or calling
a toll-free number that allowed incarcerated
people to leave messages for public defense
attorneys, but that voice mailbox was often
full. Love was never able to reach his attorney
directly. While he sat in jail, his lawyer failed
ARRAIGNMENT
Arraignment before a judge is the critical
moment when charges are read, bail is set
and defendants are either jailed or released,
pending trial. Most people lack the training
and knowledge to challenge spurious charges
or make an effective bail request on their own.
While a lawyer should ideally begin working with
a client before arraignment, a New York Court of
Appeals ruling requires legal representation at
arraignment.44
Despite the critical importance of having counsel
at arraignment, poor defendants in New York
appear alone at arraignment as a matter of
course. There are simply not enough lawyers to
attend every arraignment in understaffed public
defense offices, especially arraignments that
10
NEW YORK CIVIL LIBERTIES UNION
to inform him of plea deal offered by the
prosecution. He was eventually sentenced to
two- to four-years imprisonment.
“My attorney only saw me in jail once in the
month and a half he represented me, and
that was just so I could sign the form he
needed to get paid,” Love said. “And my case
was no exception. All around me there were
others relying on public defense attorneys
they seldom heard from – like me, they
would wait around in jail for months, just
hoping that something was being done on
their behalf.”
187
“I Wish I’d Had Someone on My Side.”
Gia Callaway, Suffolk County
After Gia Callaway was arrested and charged with robbery, she was arraigned in a
Suffolk County court. Before she appeared for her arraignment, no one had interviewed
her about what happened in her case. At arraignment, the attorney present on her
behalf did not ask a single question that might have affected the outcome – such as
about her criminal history or about reducing her bail. She wound up remanded to
the county jail in Riverhead to await trial with a new attorney. Once there, she made
multiple attempts to contact her new attorney through the Legal Aid Society but was
unable to get through.
Callaway sat in jail for about four months before her assigned attorney visited her.
During that time, she stopped hearing from her husband and lost her home and
possessions. When her attorney finally visited her, their discussion lasted less than
15 minutes.
“I have nothing left, nothing to return to . . . I just wish I would have had someone on
my side,” she said.
Unbeknownst to her and without her consent, Callaway’s lawyer had her court
appearance adjourned numerous times.
“I was never asked if I wanted to be in court. It wasn’t until after reading my court
documents that I was even aware of each of the adjournments requested by my own
counsel,” said Callaway.
Worse yet, despite the existence of multiple witnesses and video footage, her lawyer
never investigated the evidence in her case, discussed defense strategy with her or
explained her what her options were. He only urged her to take a plea deal – which
resulted in her sentence of one-and-a-half to three years.
“I was railroaded through the system – just another name for them to get through,”
she said. “The facts of my case did not matter.”
188
STATE OF INJUSTICE
11
occur at night or on weekends.45
According to Schuyler County’s former chief public defender Connie Fern Miller,
in 2007 there were 11 courts across the county that met weekly, so it was virtually
impossible for the one part-time assistant public defender to appear more than
once a month at each court. Defendants routinely appeared at arraignment without
an attorney in both felony and misdemeanor cases.46
Without counsel at arraignment, poor defendants are often incarcerated or stuck
with exorbitant bail they cannot afford, when an attorney could have negotiated
a conditional release. Once a defendant is in jail, communication becomes
increasingly difficult, and postponements of court dates happen without the person
knowing, sometimes for several weeks or months. While awaiting trial, defendants
lose their families, homes and jobs, all at the taxpayers’ expense.
ATTORNEYCLIENT
COMMUNICATION
Following an arraignment, whether
the defendant remains in custody
or is released, court proceedings
continue until the criminal case
is resolved. It is essential that
attorneys meet with their clients
to discuss and evaluate the merits
of plea bargaining and keep
clients informed of hearings, plea
offerings and other procedures.
Poor defendants are routinely
ignored by their assigned public
defense attorneys as they make
efforts to find out what is happening
in their case or express their
preferences for plea bargains
or trials. Last-minute communication is the default mode in New York State.
Defendants meet with their attorneys mere minutes before they are scheduled to
appear in court. Conversations about potential defenses and plea bargains that
should be private take place in public corridors and waiting rooms – even in the
courtroom when prosecutors are within earshot.47
Profound, systemic dysfunction regarding attorney-client contact was present
across all five counties covered in this report.
•
12
In Onondaga County, there was no client-attorney contact outside of court
in one in three cases in 2012.48
NEW YORK CIVIL LIBERTIES UNION
189
•
•
In Ontario County between
2010 and 2012, for one out
of every four clients, public
defense attorneys billed
30 minutes or less for time
spent communicating with
or interviewing clients.49 In
40 percent of felony cases,
public defense attorneys
billed zero minutes
preparing their clients for
sentencing.50 In fact, in
one in five cases, attorneys
spent more time preparing
their billing statements for a case than interviewing the client
involved.51
•
In Suffolk County, training materials suggest that public defense
attorneys spend no more than five to 10 minutes with each client.52
•
Defendants who do not have contact with attorneys – or who are
subjected to a revolving door of “serial” attorneys who briefly appear
and are summarily replaced, without notice or the defendant’s consent
– are at an enormous disadvantage in the criminal justice system. This
can have dramatic consequences on their lives.
RESEARCH, INVESTIGATORS
AND EXPERTS
Investigators and experts are often necessary in criminal cases, either for essential
fact-finding or preparing a defense. But across all five counties reviewed in this
report, legal research, investigation and expert consultation are denied to poor
defendants on a regular basis.
•
In Onondaga County, attorneys spent an hour or less conducting any
kind of investigation in 98 percent of cases.53 Lawyers spent less than an
hour on legal research in 94 percent of felony cases and 99 percent of
misdemeanors.54
•
Of the more than 14,000 cases reviewed in Onondaga County in
2011, investigators worked on fewer than 50 cases (0.3 percent of all
cases), and experts were used in only 22 cases.55 Not a single expert
was consulted in the 23 cases for which charges included murder,
manslaughter or homicide.56
•
In Ontario County, based on a review of the assigned counsel billing
statements between 2010 and 2012, attorneys billed zero minutes for
investigating in 61 percent of cases and zero minutes for research in 65
190
STATE OF INJUSTICE
13
percent of cases.64 Public
defense attorneys failed to
speak to a single witness
in almost 90 percent of all
cases. In fact, seven in 10
attorneys spent more time
preparing their billing
statements than they did
interviewing witnesses.57
•
In Schuyler County, out
of the hundreds of cases
handled by public defense
attorneys from 2011-2012,
investigators were used
in six cases, and experts
were rarely used, if ever. 58
•
In Suffolk County, out of
the tens of the thousands
of cases in 2010-2011,
experts were consulted in
17 cases – approximately zero percent.59 n
In Suffolk County, out of the tens
of thousands of cases in 2010-2011,
experts were consulted in 17 cases –
approximately zero percent.
14
NEW YORK CIVIL LIBERTIES UNION
191
One Case, Six Useless Attorneys
Eric Witherspoon, Suffolk County
Eric Witherspoon was held in jail for more than two years in Suffolk County without being
found guilty of anything.
Witherspoon was held in jail awaiting his trial after he was arraigned on three-year-old
burglary charges. He went nine months without any private communication with his public
defense attorney.
As the father of an adolescent boy, Witherspoon said that “the hardest thing was not being
able to tell my son anything. I had no idea what was going on in my case. There was nothing I
could say when he asked about what was happening.”
In an initial conversation with the county’s Legal Aid Society, Witherspoon asked that his
attorney preserve several of his rights, including the right to a grand jury hearing. But on
his second court date, Witherspoon learned that his attorney had ignored his wishes and
submitted waivers to those rights without his consent. When he asked to speak to his attorney
about this, the attorney said he was too busy. Witherspoon remained in jail with no idea of
what was happening with his case.
“At every turn they refused to listen,” Witherspoon said. “It felt as though I was talking to
a wall.”
Witherspoon worked with three separate Legal Aid lawyers and three separate assigned
public defense attorneys on his case. He was not indicted for a full year after his arrest, and
he didn’t learn that one of his legal advisers was no longer representing him until he arrived
for a court date to find a new attorney had been assigned to him. At that point he was so
frustrated he elected to represent himself, with only a third assigned attorney as an adviser.
Eventually, he lost at trial and was sentenced to 20 years in prison.
192
STATE OF INJUSTICE
15
III. Defense Attorneys:
Set Up to Fail
One attorney who signed up
to
take
public
Onondaga
defense
cases
County’s
found
getting essential resources like
investigators for his cases to be
an uphill battle. The county would
question why he had spent time
on work such as communicating
with clients and drafting motions,
and delay reimbursing him for
his upfront costs. Eventually, he
couldn’t afford to cover the costs
of being a public defense attorney
and stopped taking those cases.
The widespread constitutional violations taking place in New
York’s public defense system are not the fault of the state’s
overworked, underfunded public defense attorneys. Rather,
the state fails its poor criminal defendants by first failing the
attorneys whose job it is to represent them.
From county to county, public defense services are
inconsistently provided through county-run public
defender’s offices, local legal aid societies, “assigned
counsel programs” that contract with private attorneys,
or through a combination of the three. These different
mechanisms are subject to varying degrees of funding and
oversight, none of which are sufficient.
In large parts of New York State, public defense attorneys
retained by the counties lack the tools and time they
need to adequately defend clients. Defense attorneys
often carry unmanageable caseloads without budgets
for investigations, paralegals and workplace basics
like computers. Furthermore, a lack of supervision and
oversight results in attorneys essentially practicing in a
vacuum, without direction or evaluation. It is no wonder
their professional responsibilities go unmet.
In Washington County in 2012, caseloads
were not tracked at all. Assistant
public defense attorneys were asked twice
a year about their caseloads; the number
was written down on a Post-it note that
was not kept.
16
NEW YORK CIVIL LIBERTIES UNION
193
“CATTLE CALL
CRIMINAL
JUSTICE”
Attorneys who represent poor
defendants in most of New
York State shoulder caseloads
that exceed professional
recommendations on top of having
thin-to-nonexistent support staff. This
puts them – and their clients – at a stark
disadvantage next to the prosecutors
who have lighter caseloads and greater
support.
The New York State Bar Association
and national legal experts recommend
that attorneys carry no more than 150
felony cases or 400 misdemeanor cases
a year.60 In “most upstate counties,”
caseloads routinely outstrip recommended
maximums “by a factor of 1.5 or 2 or 3 or 4
or 5,” according to Office of Indigent Legal
Services director William J. Leahy.61
In New York State, public defense
attorneys carry up to 420 felony cases a
year, in addition to misdemeanor cases
and, in some instances, family court cases.
•
•
•
“Cattle Call Criminal Justice”
Donald Telfair, Suffolk County
On August 10, 2013, Donald Telfair was brutally
assaulted by a group of individuals who thought
that he had robbed them earlier that evening.
The assault was so severe that Telfair was
hospitalized overnight for multiple procedures,
and his fractured jaw was wired shut.
Telfair met his lawyer at his arraignment the
next day — in front of the judge and prosecutor.
His attorney didn’t ask him any questions about
what had happened or about his criminal history.
Suffolk County’s Legal Aid Society
consists of nearly 70 attorneys
who carry more than 25,000
criminal cases a year.62 In the
County Court Bureau, 11 attorneys
each carried on average 255 felony
cases in 2010.63 In the District
Court Bureau, attorneys carried
on average 600 cases a year – or
200 cases at any given time.64
When the prosecutor made blatant errors by
In Onondaga County, one assigned
counsel attorney indicated that he
carried 400 to 600 cases a year –
of which 280 to 420 were felony
cases – as much as three times
the recommended maximum for
felony cases.65
standing before you — it is all about getting
In Washington County in 2012,
caseloads were not formally
tracked at all. Assistant public
defenders were asked twice a year
about their caseloads; the number
was written down on a Post-it note
that was not kept. The caseloads
of private attorneys who took on
public defense cases were not
even discussed.66
mischaracterizing his history, Telfair’s attorney
failed to protest. Telfair had to address the court
himself — with his jaw wired shut.
“Everything in the court was rushed,” Telfair
said. “It’s cattle call criminal justice. It is all
a numbers game, no matter that a person is
through the court calendar for the day.”
Unable to post bail, Telfair was sent to Suffolk
County jail, where he remained for months, until
he took a plea bargain for one-and-a-half to three
years. By then, he had already served the bulk of
the time he would anticipated he would have to.
“The system is broken and needs to be fixed,”
Telfair said. “The amount of money someone
makes should not determine how justice is
served.”
194
STATE OF INJUSTICE
17
ABSENT OVERSIGHT
New York State’s failure to provide oversight means that both state officials and
poor defendants are in the dark about the lack of justice for poor New Yorkers.
In much of New York State, virtually any lawyer can sign up to be part of assigned
counsel programs that contract with counties to provide public defense services.
As one assigned counsel program administrator in Onondaga County said,
to qualify to take on misdemeanors, “All you need is a pulse and malpractice
“My Children Were Victims of the Broken System.”
Donnell Stepney, Onondaga County
Donnell Stepney was driving with some friends when police officers stopped the car, pulled
him out of the passenger seat and brutally beat him. Upon searching the vehicle, the officer
found a 9mm handgun that belonged to the driver. Stepney and the driver were both arrested
for criminal possession of a handgun and other charges and taken into custody.
The driver owned the handgun and plead guilty to possessing it, so the charge of gun
possession against Stepney should have been dropped. However, Stepney’s lawyer failed to
submit the driver’s guilty plea as evidence in Stepney’s trial.
“All he kept telling me was to take the plea [bargain]. But I wasn’t guilty,” Stepney said.
After the trial, Stepney’s attorney gave him a file filled with documents he had never seen.
It was clear Stepney had been excluded from the defense process all along.
“The hardest part of all this is that I was robbed of the ability to take care of my children,”
he said. “I was all they had.”
Stepney was eventually sentenced to eight years in prison. After his incarceration, his three
children were placed in a home by the Department of Social Services.
“There is not a day that goes by that I don’t think about those kids,” Stepney said. “If I had
committed this crime, I would have taken the plea deal and served my time. But I didn’t. So
I went to trial, hoping my lawyer would put the government to the test. Instead, I became
the victim of a broken system and so did my children.”
18
NEW YORK CIVIL LIBERTIES UNION
195
insurance.”67 Once a lawyer is engaged in public defense work, he or she is
subject to minimal ongoing oversight.68
•
In Onondaga County, no prior criminal defense or trial experience is
required to sign up to take on misdemeanor public defense cases through
the assigned counsel program.69 Nor does the county or the assigned
counsel program supervise the work of the attorneys who are part of the
assigned counsel program.
•
Ontario County did not supervise the work of public defense attorneys
that are part of its assigned counsel program or ensure that they met
standards for representation.70 It did not offer training, legal research
resources (physical or electronic) or monitoring. (As its 2014 settlement
agreement with the NYCLU shows, Ontario has since established a
public defender’s office, minimum attorney practice standards and
reporting requirements.)71
•
Schuyler County has no written policies for attorneys beyond a general
manual for all county employees. Apart from paying for attorneys to meet
their basic requirements to retain their licenses, the Public Defender’s
Office does not offer any training or orientation to its attorneys.72 There is
no written plan for how cases are assigned through its assigned counsel
program, and no evaluation or review of their performance.73
•
The Suffolk County Legal Aid Society, which handles the bulk of cases for
poor defendants, does not offer formal training for new attorneys, who only
shadow experienced attorneys for one week. One former Legal Aid Society
attorney described his experiences as “being thrown out there without any
proper training.”74 Suffolk County also does not offer written policies or
processes for evaluating potential conflicts.75
•
Washington County does not offer formal training, reviews or written
standards for attorneys.76 n
196
STATE OF INJUSTICE
19
IV. How Underfunding Created
a Broken System
Lane Loyzelle was accused of
stealing $20. He was arraigned
without a lawyer, and the bail
was set at $2,500, an amount he
could not afford to pay. He saw
an attorney once, after waiting
13 days, but no subsequent visits
occurred for months. While in
pretrial incarceration, he lost his
job. With no confidence that he
New York State is bound by federal law to provide legal
representation to criminal defendants who cannot
afford counsel. But New York’s decision to delegate its
responsibilities to its counties has permitted the state to
retreat from its financial and ethical responsibilities.
State money accounts for only 16 to 28 percent of the money
the five counties covered in this report spent on mandated
public defense. It’s plain that funding for public defense
services is not a state priority. Between 2008 and 2012,
New York swept more than $40 million from the Indigent
Legal Services Fund – the main source of state funding for
public defense services – and re-deposited it into the state’s
general fund to support other agenda items. In the fiscal
year of 2014, New York authorized an additional $11 million
sweep.77
could go to trial with an attorney
This inadequate state funding has been especially
harmful for poor defendants because counties generally
opt to spend their own funds on district attorneys rather
he accepted a plea offer for three
than on public defense attorneys, despite the obvious
months incarceration.
overlap in caseloads. The differences in resources and
salaries can be stark. Moreover, the pay gap between
public defense attorneys and prosecutors widens over
time, pushing qualified attorneys out of public defense
and into private practice or the District Attorney’s office.78
he hadn’t heard from in months,
20
•
In 2012, Onondaga County’s annual expenditure on its assigned counsel
program – which handled roughly 95 percent of its public defense cases
– was less than half of the county District Attorney’s budget.79 In 2011, the
county spent $28,161 on investigators in indigent defense cases, while it
funded the District Attorney’s Investigations Bureau with 35 times that
amount – $997,414 – enough to hire 11 full-time employees.80
•
Onondaga County also refuses to reimburse attorneys for routine
expenses and delays payment on statutorily authorized reimbursements.
NEW YORK CIVIL LIBERTIES UNION
197
No One Checked the Evidence
Ray Robinson, Onondaga County
Ray Robinson moved to Onondaga County from his native Queens. He had worked hard to
rebuild his life after a childhood history of abuse, persistent mental health issues and a
record of petty crime that led to multiple stays at juvenile facilities.
While incarcerated for 15 years on drug charges, Robinson experienced an awakening: “I
realized the life of want I was living came at a cost, and it wasn’t worth it.” Upon release, he
threw himself into construction work and volunteering at shelters.
In 2011, Robinson’s ex-girlfriend accused him of threatening her life in a text message,
characterizing him as a dangerous gangbanger. Robinson, confident of his innocence, went
to the precinct the next morning after receiving a call from police. But at the precinct his
phone was confiscated, and he was arrested, fingerprinted and placed in a holding cell.
“The officers assumed I was guilty because of what I had done in the past,” he said. Robinson
was issued a restraining order and arraigned in court without an attorney.
When he was finally assigned an attorney, Robinson implored him to review the actual text
message in question. His attorney declined to do so, insisting that Robinson take the plea
deal being offered by the prosecution.
“’Just take the deal,’ he would say to me,” Robinson said. “It was as if he was working with
the prosecutor.”
After six months of being stonewalled by his defense attorney, Robinson asked the court
for a hearing to determine if there was enough evidence. The judge agreed. When the
public defense attorney and the prosecutor looked at the actual text message in question,
Robinson’s misdemeanor charge was knocked down to a violation, for which Robinson
was fined.
Half a year of court proceedings could have been avoided if Robinson’s lawyer had
investigated one single piece of evidence – the text message on Robinson’s phone.
198
STATE OF INJUSTICE
21
Having waited up to a year for reimbursements, some attorneys in
Onondaga County have stopped taking cases through the assigned
counsel program altogether.81
•
In Schuyler County, no written policies or procedures guide the provision of
legal services to indigent defendants. The Public Defender makes $40,000
less than the District Attorney.82
•
In Suffolk County, prosecutors are far more richly resourced than public
defense attorneys, both in salary and staff. For example, Suffolk County’s
Legal Aid Society employs five investigators, while the District Attorney’s
office employs 56 investigators.83 Suffolk’s Legal Aid Society has no
paralegals, while the DA’s office has eight.84
•
In Washington County, where more than 1,400 cases were referred for
public defense in 2011, at the time the Chief Public Defender and all of the
Chief Public Defender’s six assistant public defenders worked part-time
and carried private practices. The county did not fund full-time assistant
public defense attorneys, paralegals or legal assistants. All seven attorneys
shared one computer.85
Poor defendants and the
attorneys representing them
are not the only victims
of New York’s abdication
of its responsibility to
provide public defense.
The broken system also
harms taxpayers, who are
financially responsible
for the state’s decisions
and bear the economic
burden of prolonged prison
stays, unnecessary court
proceedings and wrongful
conviction lawsuits. n
22
NEW YORK CIVIL LIBERTIES UNION
199
V. Recommendations
The Supreme Court’s command is clear: All criminal defendants, no matter the
crimes of which they are accused, are entitled to representation. Yet thousands
of people move through New York’s criminal justice system every year without an
active, competent advocate – exacting tolls of harm that ripple outward to families,
communities, cities and towns.
New York has squandered its reputation as a national leader in protecting
fundamental principles of fairness, equality and justice. To restore that reputation,
ensure fair outcomes in criminal cases and improve the efficiency of our justice
system, the state should immediately take the following steps:
•
Immediately ensure that there is a lawyer representing every poor
criminal defendant in New York at the initial court appearance, and
ensure that the lawyer has previously met with the defendant and is
prepared to contest the charges and advocate for pre-trial release or
affordable bail.
New York must immediately follow the mandate issued by the state’s
highest court in 2010 and expand and make permanent existing grant
programs that allow county public defense programs to hire enough
lawyers to be both present and prepared at every arraignment in the state.
•
Immediately reduce the huge caseloads of public defense attorneys so
they have the time to communicate with defendants, investigate cases,
research and file legal motions, and be prepared for court.
New York State law limits caseloads for attorneys – but only in New York
City.86 Lawyers and defendants throughout the rest of the state deserve
the same standard. The state must develop a system to accurately weigh
attorney caseloads using existing, widely accepted and well-tested
standards. The state must also require county defense providers to track
and monitor caseloads, and ensure that adequate funding exists to bring
caseloads in line with those standards.
•
Replace the disorganized and underfunded county-based arrangement
for public defense services with a true system run by New York State
with adequate funding, standards and supervision to ensure poor
200
STATE OF INJUSTICE
23
criminal defendants receive the defense to which they are entitled under
the Constitution.
The state must end its abdication of responsibility for public defense – an
unfunded mandate to the counties – by transforming the New York State
Office of Indigent Legal Services (ILS) into an agency with the power and
resources necessary to manage New York’s public defense system. As
it now stands, ILS has no enforcement authority and distributes a small
number of state grants that do little to repair the fundamental flaws in the
justice system.
•
24
Counties still bear 75 to 90 percent of the costs of public defense services.
That equation must be flipped. The state, through ILS, should bear the
majority of the costs of public defense, and ILS must be given the power
and independence to ensure that state money is spent efficiently and in the
best interests of criminal defendants who cannot afford counsel. n
NEW YORK CIVIL LIBERTIES UNION
201
VI. Endnotes
1 Information on the Office of Indigent Legal Services (ILS) is available at https://www.ils.ny.gov (last visited Sept. 2, 2014). See also
Plaintiffs’ Memorandum of Law In Opposition to the State Defendant’s Motion for Summary Judgment at 39, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. October 3, 2013) [hereinafter Plaintiffs’ Memorandum of Law].
2 The facts of this account and the other accounts in this report are drawn from court filings and other sources.
3 See id.
4 Amended Class Action Complaint, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. November 8, 2007), available at
http://www.nyclu.org/files/Amended%20Class%20Action%20Complaint.pdf (last visited Sept. 2, 2014). In 2014, Ontario County settled with
the NYCLU. The settlement agreement is available at http://www.nyclu.org/files/NoticeofClassActionandProposedSettlement.pdf (last
visited Sept. 2, 2014).
5 Almost one-third (30.91 percent) of Onondaga County defendants in 2012 never met with their attorney outside of court. Affidavit of Gary
King at 61, Oct. 1, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter King Affidavit].
6 See Plaintiffs’ Memorandum of Law, supra note 1, at 24, 44, 47. See also Affirmation of Erin Beth Harrist in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 64, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov.
8, 2007) [hereinafter Harrist Affirmation].
7 This data is based on public defense cases in Suffolk County between 2010 and 2011. See King Affidavit, supra note 5, at 32.
8 Statistics on Suffolk County and Onondaga County are available in Plaintiffs’ Memorandum of Law, supra note 1, at 23- 24.
9 See ABA Standing Committee On Legal Aid and Indigent Defendants, Ten Principles of a Public Defense Delivery System, American
Bar Association, Feb. 2002. Available at http://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/
ls_sclaid_def_tenprinciplesbooklet.authcheckdam.pdf (last visited Sept. 2, 2014).
10 Affirmation of Kristie M. Blase in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment Ex. 176,
Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (“We handle about 4 to 600 cases an attorney”). See also
Plaintiffs’ Memorandum of Law, supra note 1, at 67 (Onondaga County); id. at 66 (Ontario County); id. at 19 (Schuyler County); id. at 18
(Washington County, noting that cases are not formally tracked).
11 See Plaintiffs’ Memorandum of Law, supra note 1, 61-62.
202
STATE OF INJUSTICE
25
12 In 2012, the Public Defender’s Office in Washington County consisted of the Chief Public Defender and six part-time public defenders,
all of whom shared one computer. Affirmation of Matthew Schmidt in Opposition to State Defendant’s Motion for Summary Judgment at
18, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter Schmidt Affirmation].
13 Existing state standards are available on the New York State Defender’s website at http://www.nysda.org/PublicDefenseStandards.
html (last visited Sept. 2, 2014).
14 Background on Clarence Gideon is available on Wikipedia at http://en.wikipedia.org/wiki/Gideon_v._Wainwright (last visited Sept. 2,
2014).
15 McMann v. Richardson, 397 U.S. 759 (1970).
16 Argersinger v. Hamlin, 407 U.S. 25 (1972).
17 A “party accused shall be allowed to appear and defend in person and with counsel.” N.Y. Constitution, art. 1 § 6 (1938). See also
People v. Arthur 22 N.Y.2d 325 (1968); People v. Benevento, 91 N.Y.2d 708 (1998).
18 See N.Y. C.P.L. 180.10(3)(c); N.Y. C.P.L. 170.10 (3); N.Y. C.P.L. 210.15 (2)(c).
19 Plaintiffs’ Memorandum of Law, supra note 1, at 46-47.
20 N.Y.S. Bar Ass’n Rule 1.3, available at http://www.nysba.org/WorkArea/DownloadAsset.aspx?id=50671 (last visited Sept. 2, 2014).
21 National Legal Aid and Defender Association, Performance Guidelines for Criminal Defense Representation (4th ed. 2006). Available at
http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines (last visited Sept. 4, 2014).
22 Commission on the Future of Indigent Defense Services, Final Report to the Chief Judge of the State of New York, June 2006: 8. Available
at http://www.nycourts.gov/ip/indigentdefense-commission/IndigentDefenseCommission_report06.pdf (last visited Sept. 2, 2014).
23 Id. at 40.
24 Plaintiffs’ Memorandum of Law, supra note 1, at 12-14, 57 – 62.
25 Id. at 13.
26 “ILS has neither the authority nor the capacity to enforce the standards it has promulgated.” Id. at 12, 39.
27 Id. at 41.
28 Id. at 38.
29 Id. at 77.
30 Complaint in Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. November 8, 2007), available at http://www.nyclu.org/
files/releases/public_defense_complaint_110807.pdf (last visited Sept. 2, 2014).
31 See Settlement Agreement Regarding Claims Involving Ontario County in Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y.
App. Div. November 8, 2007), available at http://www.nyclu.org/files/releases/executed_ontariocounty_settlement_agreement.pdf (last
26
NEW YORK CIVIL LIBERTIES UNION
203
visited Sept. 2, 2014).
32 The number of counties that have passed resolutions can be obtained from the National State Defenders Association at www.nysda.
org (last visited Sept. 2, 2014).
33 Hurrell-Harring v. State of New York, 15 N.Y.3.d. 8, 25. (2010).
34 Schuyler County public defense eligibility in 2007 was based on the state’s 2007 poverty guidelines. See Affirmation of Connie Fern
Miller at 3, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) [hereinafter Miller Affirmation].
35 Id.
36 Schmidt Affirmation, supra note 12 at 9.
37 Affirmation of Mariko Hirose in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 19, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (discussing how assets may detract from public defense eligibility in Onondaga County) [hereinafter Hirose Affirmation].
38 See, e.g., Miller Affirmation, supra note 34 at 3; Schmidt Affirmation, supra note 12 at 9.
39 Affirmation of Christine Cagnina in Opposition to State Defendant’s Motion for Summary Judgment at 2, Hurrell-Harring v. State, appeal
docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007).
40 Schmidt Affirmation, supra note 12, at 9.
41 See Plaintiffs’ Memorandum of Law, supra note 1, at 50; King Affidavit, supra note 5, at 59.
42 King Affidavit, supra note 5, at 59.
43 See Plaintiffs’ Memorandum of Law, supra note 1, at 22.
44 Hurrell-Harring, 15 N.Y.3.d. 8, 25. (2010).
45 Miller Affirmation, supra note 34, at 3-4.
46 Id.
47 Affidavit of Gia Callaway at ¶ 18, Sep. 30, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007); Harrist Affirmation, supra note 6 at ¶ 161; Affidavit of Donald Telfair at ¶ 13-24, Sep. 30, 2013, Hurrell-Harring v. State, appeal docketed No.
8866-07 (N.Y. App. Div. Nov. 8, 2007).
48 Almost-one third of Onondaga County defendants (30.91% in 2012) never met with their attorney outside of court. King Affidavit, supra
note 5, at 61. See also Plaintiffs’ Memorandum of Law, supra note 1, at 49.
49 King Affidavit, supra note 5, at 96.
50 Plaintiffs’ Memorandum of Law, supra note 1, at 23.
204
STATE OF INJUSTICE
27
51 Id. at ft. 14. See also King Affidavit, supra note 5, at 108.
52 Plaintiffs’ Memorandum of Law, supra note 1, at 55. Suffolk County training materials are not publicly available.
53 Plaintiffs’ Memorandum of Law, supra note 1, at 54.
54 Id. at 24.
55 Id. at 23.
56 Id.
57 King Affidavit, supra note 5, at 103-110. These estimates are based on a sample of assigned counsel billing statements between 2010
and 2012 in Ontario County. Prior to 2010, the Ontario County Assigned Counsel Program handled all of the county’s public defense cases.
In April 2010, Ontario County opened a Public Defender’s Office, which proceeded to take on the majority of trial level public defense
cases. As of October 2013, for example, the Ontario County Assigned Counsel Program was estimated to handle between “10-15 percent”
of trial level public defense cases, and all cases in which there is a conflict between the Public Defender’s Office and a criminal defendant
unable to afford counsel. See Affidavit of Normal Lefstein at 12, Oct. 8, 2013, Hurrell-Harring v. State, appeal docketed No. 8866-07 (N.Y.
App. Div. Nov. 8, 2007).
58 Affirmation of Matthew Yoeli in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 23-24, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007) (indicating experts may never have been used) [hereinafter Yoeli
Affirmation].
59 Investigation and expert data is based on cases in Suffolk County from 2010-1011. See Plaintiffs’ Memorandum of Law, supra note 1, at
23-24; King Affidavit, supra note 5, at 32.
60 See Ten Principles of a Public Defense Delivery System, supra note 9.
61 See Plaintiffs’ Memorandum of Law, supra note 1, at 68.
62 Id. at 20.
63 Id. at 64; Harrist Affirmation, supra note 6, at ft. 12.
64 Harrist Affirmation, supra note 6, at 94.
65 Plaintiffs’ Memorandum of Law, supra note 1, at 67.
66 Schmidt Affirmation, supra note 12, at 5.
67 Renee Captor, Assigned Counsel Administrator of Onondaga County, interview with a party associated with the Office of Indigent Legal
Services, Apr. 9, 2012. This document is on file at the NYCLU.
68 Plaintiffs’ Memorandum of Law, supra note 1, at 70.
69 Hirose Affirmation, supra note 37, at 8.
28
NEW YORK CIVIL LIBERTIES UNION
205
70 Affirmation of Brooke Menschel in Support of Plaintiffs’ Opposition to State Defendant’s Motion for Summary Judgment at 12, HurrellHarring v. State, appeal docketed No. 8866-07 (N.Y. App. Div. Nov. 8, 2007).
71 Plaintiffs’ Memorandum of Law, supra note 1, at 17, 70.
72 Other than paying for continuing legal education credits (CLEs), the Public Defender’s Office in Suffolk does not offer any training or
orientation to its attorneys. See Yoeli Affirmation, supra note 58, at 5.
73 Id. at ¶¶ 233 -234.
74 Several attorneys indicated that their training program only consisted of shadowing more senior attorneys for a week. See Harrist Affirmation, supra note 6, at 4-6.
75 Id. at ¶ 128 (“[E]vidence demonstrates that there is no LAS [Legal Aid Society] policy requiring a search through WebCrims, nor do all
LAS attorneys use WebCrims in order to check for conflicts.”)
76 Plaintiffs’ Memorandum of Law, supra note 1, at 71.
77 Id. at 13-15, 49.
78 Id. at 61-62
79 Id. Data on the number of public defense cases in 2012 is from the New York State Unified Court System Office of Court Administration, on file with the NYCLU. The Unified Court system Office of Court Administration’s contact information is available at http://www.
nycourts.gov/admin/oca.shtml (last visited Sept. 2, 2014).
80 See 2012 Onondaga County Annual Budget at 3-104, 3-105, on file with the NYCLU. See also Plaintiffs’ Memorandum of Law, supra
note 1, at 44.
81 Id. at 59.
82 Id. at 60.
83 Harrist Affirmation, supra note 6, at ¶ 116.
84 Id. at ¶ 226.
85 Schmidt Affirmation, supra note 12, at 18. In 2012, Washington County’s Public Defender’s Office consisted of the Chief Public Defender and six part-time public defenders.
86 New York City caseload standards were passed in 2009. John Eligon, “State Law to Cap Public Defenders’ Caseloads, but Only in the
City,” New York Times 5 Apr. 2009. Available at http://www.nytimes.com/2009/04/06/nyregion/06defenders.html (last visited Sept. 2, 2014).
206
STATE OF INJUSTICE
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208
209
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Plaintiffs #1-21, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
THE COUNTY OF SUFFOLK; SUFFOLK
COUNTY POLICE DEPARTMENT;
COMMISSIONER EDWARD WEBBER,
individually and in his official capacity;
SUPERVISORY JOHN DOE
DEFENDANTS, individually and in their
official capacities; LIEUTENANT
MILAGROS SOTO, individually and in her
official capacity; SCOTT GREENE,
individually and in his official capacity;
OFFICER BRIDGETT DORMER,
individually and in her official capacity;
JOHN DOE DEFENDANTS, individually
and in their official capacity,
Case No.:15-CV-2431 (ADS)
FIRST AMENDED COMPLAINT
Defendants.
PRELIMINARY STATEMENT
1.
Defendant County of Suffolk and Defendant Suffolk County Police Department
(the “SCPD”) have subjected Latinos1 to an ongoing policy, pattern, and practice of
discriminatory policing. For many years, SCPD officers have targeted Latinos for unfounded,
race-based traffic or pedestrian stops, searched or detained them and wrongfully taken their
personal property (money), issued unjustified traffic citations, or otherwise harassed them.
2.
Despite being fully aware of these discriminatory policies, practices, and/or
customs, Defendant SCPD and Defendant Suffolk County have ignored or covered those
1
The terms “Hispanic or Latino,” used interchangeably in this Complaint, reference a person of Cuban, Mexican,
Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race, the definition of
Hispanic or Latino origin used in the 2010 Census. U.S. Census Bureau, Overview of Race and Hispanic Origin:
2010, (Mar. 2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf.
1
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practices up and, more generally, failed to take the actions necessary to investigate and eliminate
these practices. As a result, Defendant SCPD and Defendant Suffolk County have not only
allowed these discriminatory policies, practices, and/or customs to continue unabated for years,
but have actually facilitated and encouraged them through the failure to adopt and implement
adequate police training and supervision policies; the disruption of the implementation and
analysis of traffic stop data collection systems that would have identified officers engaged in
discriminatory policing; the failure to adequately investigate complaints lodged by Latino
victims; and the failure to engage in even-handed law enforcement.
3.
Not surprisingly, after conducting an investigation that began as early as 2009, the
United States Department of Justice Civil Rights Division (the “DOJ”) and the United States
Attorney’s Office for the Eastern District of New York (collectively, the “United States”) found
that Defendant SCPD’s police practices discriminated against Latinos.
Despite the United
States’ present oversight, both Defendant Suffolk County and Defendant SCPD have failed to
deliver the necessary reforms and continue to carry out these discriminatory policies, patterns,
and practices.
4.
Plaintiffs #1-21, all Latino residents of Suffolk County subjected to these
unlawful actions by Defendant SCPD, bring this class action lawsuit for themselves and all
others similarly situated seeking declaratory, injunctive, and monetary relief against Defendants
for engaging in a continuing pattern and practice of race-based stops, frisks, searches, detentions,
deprivation of property, unlawful ticketing, and other forms of harassment of Latinos in Suffolk
County.
5.
As a proximate result of Defendants’ actions and inactions, members of the Class
have suffered and continue to suffer irreparable loss and injury, including but not limited to
2
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economic loss, humiliation, embarrassment, physical and emotional distress, mental anguish, low
self-esteem, and deprivation of their civil rights. For these injuries, members of the Class seek
declaratory and injunctive relief, as well as punitive and compensatory damages.
6.
These claims are brought pursuant to the Fourth, Fifth, and Fourteenth
Amendments to the Constitution of the United States, 42 U.S.C. § 1983, Title VI of the Civil
Rights Act of 1964, 42 U.S.C. § 2000d, and the common law of the state of New York.
Plaintiffs further seek attorneys’ fees and litigation costs under 42 U.S.C. § 1988(b).
JURISDICTION AND VENUE
7.
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331, 1343, and 2201. Supplemental jurisdiction over the state law claims is conferred by 28
U.S.C. § 1367(a).
8.
Venue is proper in the Eastern District of New York because all of the acts,
omissions, violations, events, and conduct alleged herein occurred in the Eastern District.
PARTIES
I.
Plaintiffs2
9.
Plaintiff 1 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
10.
Plaintiff 2 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
11.
Plaintiff 3 is a Latino male residing in the County of Suffolk and regularly using
the roads and walkways of Suffolk County as a pedestrian and motorist.
2
The names of Plaintiffs #1-21 are being withheld for fear of retaliation. A motion has been filed with the Court
asking for Plaintiffs to remain anonymous throughout the proceedings.
3
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12.
Plaintiff 4 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a passenger and motorist.
13.
Plaintiff 5 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
14.
Plaintiff 6 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
15.
Plaintiff 7 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
16.
Plaintiff 8 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
17.
Plaintiff 9 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
18.
Plaintiff 10 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
19.
Plaintiff 11 is a Latino female residing in the County of Suffolk and regularly
using the roads of Suffolk County as a motorist.
20.
Plaintiff 12 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
21.
Plaintiff 13 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
22.
Plaintiff 14 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
4
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23.
Plaintiff 15 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
24.
Plaintiff 16 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
25.
Plaintiff 17 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
26.
Plaintiff 18 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
27.
Plaintiff 19 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
28.
Plaintiff 20 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
29.
Plaintiff 21 is a Latino male residing in the County of Suffolk and regularly using
the roads of Suffolk County as a motorist.
30.
Each of these Plaintiffs has been stopped in Suffolk County based upon his/her
race without legal justification, searched without probable cause, detained, subjected to the
wrongful deprivation of property by Defendants, and/or ticketed unlawfully.
31.
The named Plaintiffs bring this action on behalf of themselves and as
representatives of the Class of all similarly situated Latinos in Suffolk County who are, have
been, or will be at risk of being subject to discriminatory and unconstitutional policing services
by Defendant SCPD, including policies, patterns, and practices permitting racially targeted stops,
frisks, detentions, searches, the wrongful deprivation of property, unlawful traffic citations,
and/or the failure to conduct even-handed, race-neutral investigations of crimes and police
5
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misconduct perpetrated against Latinos, in violation of the Fourth, Fifth, and Fourteenth
Amendments.
II.
Defendants
32.
Defendant Suffolk County is a municipality organized and existing under the laws
of the State of New York. It is authorized under the laws of the State of New York to maintain a
police department, the SCPD, which acts as Suffolk County’s agent in the area of law
enforcement for which Suffolk County is ultimately responsible. Suffolk County assumes the
risks incidental to the maintenance of a police force and the employment of police officers. The
County of Suffolk has caused the injuries to Plaintiffs and evinced a deliberate indifference to
Plaintiffs’ legal rights.
33.
Defendant Suffolk County Police Department conducts traffic control and
enforces the laws in the County of Suffolk. The SCPD has implemented and continues to
enforce, encourage, and sanction a policy, practice, and/or custom of unconstitutional stops,
frisks, detentions, and searches, which are being done without the reasonable suspicion required
under the Fourth Amendment. Moreover, many of these illegal police encounters have resulted
in the deprivation of property and/or unlawful ticketing of Latino motorists and pedestrians in
Suffolk County, in violation of the Fifth Amendment.
The SCPD has implemented and
continues to enforce, encourage, and sanction a policy, practice, and/or custom of using race
and/or national origin as the determinative factors in deciding to stop, frisk, detain, and/or search
individuals, in violation of the Equal Protection Clause of the Fourteenth Amendment. Further,
the SCPD has failed to properly train, supervise, and investigate the racially motivated behavior
of SCPD police officers and properly direct criminal and non-criminal investigations to ensure
appropriate and race-neutral remedial police action is taken, in violation of the Equal Protection
Clause of the Fourteenth Amendment. The SCPD, at all relevant times, employed the individual
6
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Defendants named herein.
The SCPD has caused the injuries to Plaintiffs and evinced a
deliberate indifference to Plaintiffs’ legal rights.
34.
Upon information and belief, Suffolk County and the SCPD have been and are
recipients of federal financial funds.
35.
Defendant Commissioner Edward Webber is and was, at the times relevant
herein, the Commissioner of Police for Suffolk County, and is and was responsible for the
policies, practices, and/or customs of the SCPD. Defendant Webber oversees the direction of
criminal and non-criminal investigations to ensure that appropriate even-handed, race-neutral
police action is taken with respect to the investigation of crimes and police misconduct
perpetrated against Latinos. He is and was, at all times relevant herein, responsible for the
hiring, screening, training, retention, supervision, discipline, counseling, and control of the police
officers under his command who are or were employed by the SCPD, including the individual
Defendants named herein. Defendant Webber has caused the injuries to Plaintiffs and evinced a
deliberate indifference to Plaintiffs’ legal rights.
36.
Defendant Scott Greene is a former officer and Sergeant of the SCPD who
engaged in the violation of Plaintiffs’ civil and constitutional rights by unlawfully targeting
Latinos in Suffolk County and stopping, frisking, detaining, searching, wrongfully depriving
them of their property, and/or issuing unlawful traffic citations. Defendant Greene was arrested
on January 31, 2014 after being caught stealing money from an undercover Latino police officer
during a sting operation run by the Suffolk County District Attorney’s Office. He was, at all
relevant times, employed by the SCPD.
37.
Lieutenant Milagros Soto holds a supervisory position within the SCPD, and is or
was, at all times relevant herein, responsible for the policies, practices, and/or customs of the
7
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SCPD; the direction of criminal and non-criminal investigations to ensure that appropriate
even-handed, race-neutral police action is taken with respect to the investigation of crimes and
police misconduct perpetrated against Latinos; and the hiring, screening, training, retention,
supervision, discipline, counseling, and control of the police officers under her supervisory
command who are or were employed by the SCPD, including the individual Defendants named
herein. Lieutenant Soto was specifically tasked with investigating allegations made by Suffolk
County Latinos concerning traffic stops during which they were robbed. During the course of
this investigation, Defendant Soto ignored evidence that SCPD officers besides Defendant
Greene were involved in the “stop-and-rob” scheme. In so doing, Defendant Soto failed to act
on this information indicating pervasive constitutional violations throughout the SCPD or to take
any steps to remedy these wrongs after being informed of them, thereby allowing these
unconstitutional policies or practices by the SCPD to continue unabated, evincing a deliberate
indifference to Plaintiffs’ legal rights resulting in their injury.
38.
SUPERVISORY JOHN DOE Defendants, whose identities are unknown to
Plaintiffs, hold supervisory positions within the SCPD, and are or were, at all times relevant
times herein, responsible for the policies, practices, and/or customs of the SCPD; the direction of
criminal and non-criminal investigations to ensure that appropriate and even-handed, raceneutral police action is taken with respect to the investigation of crimes and police misconduct
perpetrated against Latinos; and the hiring, screening, training, retention, supervision, discipline,
counseling, and control of the police officers under their supervisory command who are or were
employed by the SCPD, including the individual Defendants named herein. SUPERVISORY
JOHN DOE Defendants have caused the injuries to Plaintiffs and evinced a deliberate
indifference to Plaintiffs’ legal rights.
8
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39.
Officer Bridgett Dormer, with Rank and Badge/ID Number 741/310/34741, is a
member of the SCPD who engaged in the violation of Plaintiffs’ civil and constitutional rights by
unlawfully targeting Latinos in Suffolk County and stopping, frisking, detaining, searching them,
wrongfully depriving them of their property, and/or issuing unlawful traffic citations while they
were residing or traveling in Suffolk County. Defendant Dormer was, at all relevant times,
employed by the SCPD.
40.
Individual JOHN DOE Defendants, whose identities are unknown to Plaintiffs,
are Suffolk County police officers who engaged in the violation of Plaintiffs’ civil and
constitutional rights by engaging in the pattern and practice of unlawfully targeting Latinos in
Suffolk County and stopping, frisking, detaining, searching them, wrongfully depriving them of
their property, and/or issuing unlawful traffic citations. The individual JOHN DOE Defendants
were, at all relevant times, employed by the SCPD.
CLASS ACTION ALLEGATIONS
41.
Plaintiffs #1-21 bring this action, pursuant to Rule 23 of the Federal Rules of
Civil Procedure, on their behalf and as representatives of the following class of individuals:
All past, present, and future Latino individuals who are, have been,
or will be at risk of being subject to discriminatory and
unconstitutional policing services by the Suffolk County Police
Department, including policies, patterns, and practices permitting
racially targeted stops, frisks, detentions, searches, the wrongful
deprivation of property, unlawful traffic citations, and/or the
failure to conduct even-handed, race-neutral investigations of
crimes and police misconduct perpetrated against Latinos, in
violation of the Fourth, Fifth, and Fourteenth Amendments (the
“Class”).
42.
Plaintiffs #1-21 and the Class bring this action for compensatory and punitive
damages pursuant to Rule 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure.
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43.
Plaintiffs #1-21 and the Class have suffered personal injury as a direct and
proximate result of Defendants’ actions herein for which an award of declaratory and injunctive
relief and compensatory and punitive damages is appropriate.
44.
The named Plaintiffs herein are members of the Class they seek to represent.
45.
The Class includes hundreds, if not thousands, of individuals. Members of the
Class are so numerous that joinder is impracticable because, based on information and belief,
many of the member of the Class are not aware of the fact that their constitutional rights have
been violated and that they have the right to seek redress in court. Many members of the Class
are without the means to retain an attorney to represent them in a civil rights lawsuit. Moreover,
many Class members who have been victimized by Suffolk County and the SCPD’s
unconstitutional practices do not bring individual claims for fear of retaliation and reprisal by
SCPD officers.
There is no appropriate avenue for the protection of the Class members’
constitutional rights other than a class action.
46.
There are questions of law and fact common to the Class including, but not
limited to:
(a)
whether the SCPD engages in a policy, practice, and/or custom of subjecting
each Class member to arbitrary, racially discriminatory stops, frisks, detentions,
searches, the wrongful deprivation of property, and/or unlawful traffic citations at
the hands of Defendant Greene, Defendant Dormer, and individual JOHN DOE
Defendants;
(b)
whether SUPERVISORY JOHN DOE Defendants, SCPD Commissioner Edward
Webber, Lieutenant Milagros Soto, SCPD, and Suffolk County’s failure to
properly train, supervise, and investigate the racially motivated behavior of SCPD
police officers and properly direct criminal and non-criminal investigations to
ensure that appropriate and even-handed, race-neutral investigations of crimes and
police misconduct perpetrated against Latinos constitutes deliberate indifference
to the violations of the Plaintiffs’ and Class members’ constitutional rights;
(c)
whether Suffolk County, Commissioner Webber has encouraged, sanctioned,
and/or failed to rectify unconstitutional stops, frisks, detentions, searches, the
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wrongful deprivation of property, and/or unlawful ticketing by members of the
SCPD;
(d)
whether the Class as a whole is entitled to relief including, but not limited to,
compensatory and punitive damages in an amount due to the Class as a whole,
with distribution to individual Class members based on a Class-wide formula;
(e)
whether the Class as a whole is entitled to permanent injunctive relief against
Defendants, including, but not limited to, a mandatory injunction;
(f)
whether the Class as a whole is entitled to a declaratory judgment that the acts of
Defendants alleged herein and to be provided by the evidence constitute
actionable violations of the civil and constitutional rights of each member of the
Class; and,
(g)
whether the Class as a whole is entitled to an award of its attorneys’ fees and
litigation costs to be paid by Defendants under 42 U.S.C. § 1988(b).
47.
These and other questions of law and/or fact are common to the Class and
predominate over any questions affecting only individual Class members.
48.
The claims of the named Plaintiffs are typical of the claims of the Class they seek
to represent in that the named Plaintiffs and all members of the proposed Class are Latinos in
Suffolk County who were illegally stopped, frisked, detained, searched, wrongfully deprived of
property, and/or issued unlawful traffic citations by members of Defendant SCPD, and/or
subjected to the failure of the SCPD to adequately investigate crimes and police misconduct
perpetrated against Latinos pursuant to the SCPD’s racially discriminatory policies, practices,
and/or customs.
49.
As long as the SCPD engages in the policy, practice, and/or custom of
unconstitutional stops, frisks, detentions, searches, the wrongful deprivation of property, and/or
issuance of unlawful traffic citations by members of the SCPD, and/or the failure to adequately
investigate crimes and police misconduct perpetrated against Latinos, the named Plaintiffs are,
and will remain, at high risk of being illegally stopped, frisked, detained, searched, wrongfully
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deprived of property, and/or burdened by unlawful traffic citations by members of the SCPD.
Indeed, several of the named Plaintiffs have been victimized recently. The proposed Class seeks
injunctive relief and damages as a result of injuries its members have sustained due to
Defendants’ conduct. Thus, the pursuit of damages by the Class representatives for their injuries
and losses will work to benefit the entire proposed Class they seek to represent.
50.
Plaintiffs will fairly and adequately represent and protect the interests of the
members of the Class they represent. The named Plaintiffs have retained counsel competent and
experienced in class action litigation. Accordingly, the interests of the Class will be adequately
protected and advanced. In addition, there is no conflict of interest between the named Plaintiffs
and members of the Class. The interests of the named Plaintiffs are aligned because members of
the Class have an interest in securing their right to prospective relief preventing future harmful
conduct by Defendants and compensatory and punitive damages as a consequence of any injuries
caused by Defendants’ conduct.
51.
Notice can be provided to Class members by published notice.
52.
Certification of the Class is appropriate pursuant to Fed. R. Civ. P. 23(b)(3)
because the questions of law and fact common to the members of the Class predominate over any
questions affecting only individual members. This class action is superior to other available
remedies for the fair and efficient adjudication of this controversy.
53.
In the alternative, certification of the Class is appropriate pursuant to Fed. R. Civ.
P. 23(b)(2) because Defendants have acted in a similar, virtually identical, way against each
member of the Class, so that final injunctive relief, specifically appropriate mandatory
injunctions, with corresponding declaratory, compensatory, and punitive monetary relief, is
appropriate respecting the Class as a whole.
12
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STATEMENT OF FACTS
I.
Suffolk County, through the SCPD, Targets Latinos for Unlawful Stops and
Searches, “Stop-and-Rob” Schemes, and Other Forms of Discriminatory Policing or
Harassment
54.
Defendants have engaged in, and are continuing to engage in, a pattern and
practice of discriminatory and unconstitutional conduct toward Latinos in Suffolk County, which
includes widespread (a) targeting Latino motorists for illegal traffic stops; (b) targeting Latinos
through unjustified checkpoints; (c) targeting Latinos in a “stop-and-rob” scheme, that results the
wrongful and unjustified deprivation of property during unconstitutional traffic stops; (d) failing
to adequately investigate crimes and police misconduct perpetrated against Latinos; and
(e) otherwise harassing Latinos because of their race and/or national origin.
55.
Upon information and belief, prior to Defendant Greene’s arrest, the SCPD had
within its possession the traffic stop data as well as the GPS and police radio data necessary to
determine that members of the SCPD were systematically targeting Latinos during traffic and
other stops.
A. SCPD Officers Targeted Plaintiffs for Traffic Stops or Unlawful Searches
Because of their Race
56.
In or around July or August 2012, Plaintiff 3 was pulled over while driving in
Suffolk County by a JOHN DOE Defendant SCPD Officer. The officer who stopped Plaintiff 3
gave no explanation for the stop, for which there was no lawful basis. The SCPD officer asked
him for his driver’s license, and then issued a ticket for driving without a license. He believes
that he was pulled over solely because he is Latino.
57.
Plaintiff 5 has been stopped while driving in Suffolk County numerous times over
the past five to seven years by various JOHN DOE Defendant SCPD police officers, including
one such stop in summer 2012. The SCPD officer would ask for his driver’s license and then,
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during most stops, issue tickets for driving without a license. Plaintiff 5 was given no legitimate
reason as the initial basis for such stops, for which there was no lawful basis. He believes that he
was stopped solely because he is Latino.
58.
Plaintiff 6 has been stopped while driving in Suffolk County by various JOHN
DOE Defendant SCPD officers numerous times a year over the past fifteen years, including one
such stop in April 2014. The SCPD would ask for his driver’s license and then, in many
instances, issue tickets for driving without a license or not carrying proof of insurance. Plaintiff
6 was given no legitimate reason for the initial basis for such stops, as there was no such basis
for the stops. He believes that he was stopped solely because he is Latino.
59.
Plaintiff 7 has been stopped while driving in Suffolk County by various JOHN
DOE Defendant SCPD officers numerous times over the past fourteen years, including as
recently as January 2015. On multiple occasions, SCPD officers told Plaintiff 7 that he was “in
America” and needed to “speak English.” The SCPD officer would ask him for his driver’s
license, and then usually issue a ticket for driving without a license or for an unfounded
violation. Plaintiff 7 also has been stopped by various JOHN DOE Defendant SCPD officers
while walking on the street near his home in a predominantly Latino neighborhood in Suffolk
County. SCPD officers gave no explanation for these stops, for which there was no lawful basis.
Plaintiff 7 believes he was stopped solely because he is Latino.
60.
In or around August 2010 and separately in or around January 2012, Plaintiff 8
was driving in Suffolk County when he was stopped by various JOHN DOE Defendant SCPD
officers. Plaintiff 8 was not told the basis for these stops, and there was no legitimate basis for
such stops. He believes he was pulled over solely because he is Latino.
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61.
Plaintiff 9 has been stopped while driving in Suffolk County numerous times by
various JOHN DOE Defendant SCPD officers, including as recently as fall 2012. The SCPD
officers would ask him for his driver’s license, and then usually issue a ticket for driving without
a license. Plaintiff 9 was not told the basis for these stops, for which there was no lawful basis.
He believes he was stopped solely because he is Latino.
62.
In or around summer 2012, Plaintiff 10 was stopped by Defendant Greene at a
friend’s house in Suffolk County. A few minutes later, a second officer, JOHN DOE Defendant,
arrived at the house and asked for his ID and vehicle registration and searched his car without
permission or probable cause. Plaintiff 10 believes he was stopped and searched solely because
he is Latino.
63.
In or around summer 2013, Plaintiff 10 was driving in Suffolk County when a
JOHN DOE Defendant SCPD Officer pulled him over. The officer did not provide a reason for
stopping Plaintiff 10, and there was no lawful basis for the stop. Plaintiff 10 took off his seatbelt
in the sight of the officer to give the officer his identification and car registration. The officer
then issued Plaintiff 10 a ticket for not wearing a seatbelt along with a ticket for driving without
a license. Plaintiff 10 believes he was pulled over solely because he is Latino.
64.
Plaintiff 11 has been pulled over by various JOHN DOE Defendant SCPD
officers while driving in Suffolk County numerous times over the past four years, including in
September 2013. The SCPD officers who stopped her would provide a false reason for pulling
her over, such as stating that she had a broken tail light when she did not. The SCPD officers
would ask her for her driver’s license, and then usually issue a ticket for driving without a
license.
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65.
During some of these stops, Plaintiff 11 was stopped by Defendant Greene who
made disparaging remarks about Latinos, including one such stop in July or August 2013.
Plaintiff 11 had heard from her friends and family that Defendant Greene’s practice was to pull
over Latinos and steal their money. For this reason, Plaintiff 11 tried not to carry money on her
person. When Defendant Greene pulled her over, he would sometimes call another SCPD police
officer to the scene to issue her a ticket. Plaintiff 11 believes she was repeatedly stopped without
legitimate cause solely because she is Latina.
66.
Additionally, from summer 2006 to September 2013, Plaintiff 10 and Plaintiff 11
lived together in Medford, NY. An SCPD officer regularly came to their house in his patrol car
and in uniform and entered without permission. Upon information and belief, the officer in
question was Defendant Greene. Defendant Greene would provide no explanation for entering
the house but would proceed to illegally search their rooms without consent. Plaintiff 10 and
Plaintiff 11 did not report these illegal searches because they were scared of what would happen
to them if they did. Because of this continued harassment, Plaintiff 10 and Plaintiff 11 moved to
a different town in Suffolk County. Plaintiff 10 and Plaintiff 11 believe that they were the
targets of this harassment solely because they are Latino.
67.
Plaintiff 14 has been stopped while driving in Suffolk County numerous times by
various JOHN DOE Defendant SCPD police officers. During such traffic stops, the SCPD
officers would typically ask him for his driver’s license, and then usually issue a ticket for
driving without a license. For example, in December 2011 or January 2012, Plaintiff 14 was
driving in Suffolk County with his cousin and two children in the vehicle. An SCPD officer
pulled him over without explanation or any legitimate basis for the stop. Upon information and
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belief, the officer in question was Defendant Greene. Plaintiff 14 believes that he was routinely
stopped solely because he is Latino.
68.
In or around June 2013, Plaintiff 18 was driving in Suffolk County when he was
pulled over by JOHN DOE Defendant SCPD Officer. The officer stated that Plaintiff 18’s
license plate had fallen off. The officer asked for his license and registration, and Plaintiff 18
replied that he did not have a license but gave the officer the insurance and vehicle registration.
The officer returned with tickets for driving without a license and having an expired inspection
sticker. Afterward, Plaintiff 18 saw that the license plate was still firmly affixed to the car.
Plaintiff 18 believes he was stopped solely because he is Latino.
69.
Upon information and belief, in March 2011, Plaintiff 20 was stopped while
driving in Suffolk County by two JOHN DOE Defendant SCPD Officers. The officers did not
provide any explanation for the stop, for which there was no lawful basis. One JOHN DOE
Defendant SCPD Officer ordered Plaintiff 20 to exit the car and put his hands on the car; the
officer unlawfully searched his person and car without consent or probable cause. Plaintiff 20
believes he was stopped and searched solely because he is Latino.
B. SCPD Officers Targeted Plaintiffs for Traffic Stops at Checkpoints in Areas
Where Disproportionate Numbers of Latinos Live and Travel
70.
Over the past decade the SCPD has routinely set up checkpoints in predominantly
Latino neighborhoods throughout Suffolk County. The purpose of the checkpoints is not to
inspect for sobriety or other specific illegal conduct. Rather, the purpose is to target Latinos in
Suffolk County and ask for documentation without having any basis for believing that a crime or
traffic violation has been committed. The overwhelming majority of these checkpoints are set up
in predominantly Latino neighborhoods and the vehicles stopped are predominantly those with
Latino drivers and passengers.
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71.
Since 2008, Plaintiff 5 has been stopped at least two times at checkpoints in his
predominantly Latino neighborhood in Suffolk County, including an incident in or about March
2010. The checkpoints were manned by multiple JOHN DOE Defendant SCPD police officers
who were stopping Latino drivers and asking for identification. Plaintiff 5 was not given an
explanation for why he was stopped, and there was no legitimate basis for the stop. During
Plaintiff 5’s first checkpoint stop he received two tickets, including a ticket for driving without a
license. During Plaintiff 5’s second stop, he received a ticket for driving without a license.
Plaintiff 5 saw many other Latinos stopped at the same checkpoints and believes he was stopped
solely because he is Latino.
72.
Plaintiff 6 has also been stopped at checkpoints on two or three occasions by
multiple JOHN DOE Defendant SCPD police officers, between 2003 and 2009. Plaintiff 6 was
not given an explanation for being stopped, and there was no legitimate basis for these stops.
Notwithstanding, Plaintiff 6 would get tickets for driving without a license or insurance, even
though the car that he was driving was insured. Plaintiff 6 saw many other Latinos stopped at
the same checkpoints and believes he was stopped solely because he is Latino.
73.
Plaintiff 7 has been stopped at numerous checkpoints in predominantly Latino
neighborhoods in Suffolk County by multiple JOHN DOE Defendant SCPD police officers,
including a recent stop in July 2014. Plaintiff 7 was not given an explanation for being stopped,
and there was no legitimate basis for these stops. Notwithstanding, Plaintiff 7 would get tickets
for driving without a license.
Plaintiff 7 saw many other Latinos stopped at the same
checkpoints and believes he was stopped solely because he is Latino.
74.
Plaintiff 11 has been stopped at checkpoints multiple times in the past few years
by multiple JOHN DOE Defendant SCPD police officers, including an incident in September
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2013. For example, in summer 2013, Plaintiff 11 was stopped by JOHN DOE Defendant SCPD
Officer at an SCPD-manned checkpoint in Suffolk County and asked for her license and
registration. Several months later, in September 2013, Plaintiff 11 was stopped again at a
checkpoint in a predominantly Latino neighborhood. JOHN DOE Defendant SCPD Officer
issued Plaintiff 11 a ticket for driving without insurance, even though she had insurance and
showed her insurance card to the officer. Plaintiff 11 was not given an explanation for why she
was stopped, and only ever saw other Latino drivers stopped at these checkpoints. Plaintiff 11
believes she was stopped and ticketed solely because she is Latina.
75.
In September 2012, Plaintiff 14 was stopped by multiple JOHN DOE Defendant
SCPD police officers at an SCPD-manned checkpoint while driving with his children in an area
in Suffolk County that is heavily traveled by Latinos. Plaintiff 14 was given no explanation for
the stop, and there was no legitimate basis for the stop. The officers asked for Plaintiff 14’s
driver’s license and then arrested him for driving without a license and for failing to pay
previously unpaid traffic tickets. Plaintiff 14 saw many other Latinos stopped at the same
checkpoint and believes he was stopped solely because he is Latino.
76.
In October 2009, Plaintiff 17 was stopped at a checkpoint in Suffolk County
manned by numerous JOHN DOE Defendant SCPD officers.
The officers provided no
explanation for the stop, and there was no legitimate basis for the stop. The SCPD officer asked
him if he had a driver’s license. Plaintiff 17 gave JOHN DOE Defendant SCPD Officer an
international driver’s license and then received a ticket for driving without a license. Plaintiff 17
saw many other Latinos stopped at the checkpoint and believes he was stopped solely because he
is Latino.
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77.
In or around December 2010, Plaintiff 17 was stopped at a checkpoint in a
predominantly Latino neighborhood in Suffolk County manned by multiple JOHN DOE
Defendant SCPD officers and was asked for his driver’s license. Plaintiff 17 was instructed to
get out of the car and was illegally searched without permission or probable cause. Plaintiff 17
was then arrested by a JOHN DOE Defendant SCPD Officer for failing to pay a traffic ticket that
he believed he had previously paid. Plaintiff 17 saw many other Latinos stopped at the same
checkpoints and believes he was stopped solely because he is Latino.
C. The SCPD Subjected Latinos, Including Named Plaintiffs, to its Criminal and
Discriminatory “Stop-and-Rob” Scheme
78.
For many years, Latinos in Suffolk County have been subjected to a stop-and-rob
scheme whereby Defendant Greene and various JOHN DOE Defendant SCPD officers had a
practice and pattern of targeting Latino drivers for unlawful stops and searches during which
cash was stolen. Suffolk County Latinos were specifically targeted based on the belief that these
drivers were likely to be undocumented and therefore prone both to carry cash and to not report
any theft.
79.
Defendant Greene would station his patrol car on Suffolk County thoroughfares
frequently used by Latino motorists or near common destinations in Latino neighborhoods,
including certain laundromats, gas stations, and local delis. When Defendant Greene spotted a
Latino driving past, he would pull the driver over without any legitimate justification. Defendant
Greene would then request the driver’s license and registration. In the event that a valid license
was not produced, Defendant Greene would request the driver’s wallet and walk away from the
driver’s vehicle or alternatively ask the driver to exit the vehicle, whereupon he would search the
driver and/or the interior of the vehicle, without permission or probable cause, to locate the
driver’s wallet.
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80.
Defendant Greene would then search the wallet, and if the driver was carrying
cash, would steal money, and then return the wallet to the driver or to its location in the vehicle.
In some of the instances, other JOHN DOE Defendant SCPD officers would be present and
participate during the stop-and-rob.
81.
On January 30, 2014, Defendant Greene was arrested following a sting operation
conducted by an undercover detective acting under the supervision of the Suffolk County District
Attorney’s Office. The sting operation involved the undercover Latino officer driving in the
Medford, Coram, and Farmingville areas of Suffolk County to see if Defendant Greene would
pull him over. Upon stopping the undercover officer, Defendant Greene requested that the
detective exit the vehicle so that it could be searched, at which point Defendant Greene was
recorded on video stealing $100 from an envelope in the vehicle’s interior.
82.
On March 24, 2014, Defendant Greene was indicted on twenty-one counts of
criminal conduct in connection with stopping and stealing money from seven Latinos in Suffolk
County. On June 24, 2014, Defendant Greene was indicted on an additional 60 counts of
criminal conduct in connection with stopping and stealing money from another twenty Latinos in
Suffolk County.
In connection with each victim, Defendant Greene is charged with three
offenses: grand larceny in the fourth degree as a hate crime, grand larceny in the fourth degree,
and official misconduct.3
83.
In March 2014, shortly before several stop-and-rob victims were scheduled to
testify before the grand jury, multiple JOHN DOE Defendant SCPD officers went to the homes
of Plaintiff 1, Plaintiff 13, and Plaintiff 15, each of whom was scheduled to testify. The officers
repeatedly attempted to discuss Defendant Greene’s case despite the SCPD’s prior commitment
3
Plaintiffs #1-21 maintain that to the best of their recollection, the dates alleged below are accurate and consistent
with the information provided. Certain minor discrepancies may exist with respect to the dates enumerated in the
corresponding indictments issued against Defendant Greene and the dates provided herein, notwithstanding.
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that no SCPD officers would contact victims during the course of the investigation into
Defendant Greene and that all contact would originate from the Suffolk County District
Attorney’s Office.
84.
Many Latinos, in addition to the named Plaintiffs, driving through Suffolk County
have been the victim of this stop-and-rob scheme. Multiple victims recounted to members of the
SCPD that their stop-and-rob experiences involved SCPD officers other than Sergeant Greene.
1. Victims A, B, and C Were Stopped and Robbed by Multiple SCPD
Police Officers
85.
In or around Fall 2008, three Latino Suffolk County residents, Victims A, B, and
C, had finished a landscaping job in Suffolk County and were sitting in their employer’s parked
truck waiting for him to drive them home when an SCPD patrol car with two SCPD police
officers approached. The first police officer asked Victim A for his driver’s license. Victim A
said he did not have one but was just waiting for a ride and not driving the truck. The police
officer ordered Victims A, B, and C out of the truck. The police officer then searched the truck
without consent from the owner or Victims A, B, and C. Victims A, B, and C were told to place
their hands on the truck while they were illegally frisked and searched by both police officers
without their permission. The officers then illegally searched the men’s wallets. The officers
returned to their patrol car with the wallets. A while later, the officers returned the wallets and
left. Victims A, B, and C found that $100 had been stolen from each of their wallets.
2. Victim D and Victim E Were Stopped and Robbed by Multiple SCPD
Officers
86.
In spring 2011, Victim D, a Latino male residing in Suffolk County, was walking
with a friend, Victim E, also a Latino male residing in Suffolk County, to a convenience store
near their homes. Both men were stopped without cause by an SCPD police officer just outside
the convenience store.
The officer then illegally frisked both men without permission or
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justification. The officer removed and took possession of Victim D’s wallet during the search
and kept it with him when he returned to his police car. The officer derisively referred to Victim
E, who did not have a wallet or any identification on him, as “Fernando.” A second SCPD
officer arrived in another patrol car. The officer eventually returned the wallet and let the men
go.
87.
After the SCPD officers left, Victim D found that $100 had been stolen from his
wallet and immediately called 911, demanding to speak to an operator in Spanish. He was
placed on hold, and the call was disconnected.
Victim D called again and told a
Spanish-speaking dispatcher that $100 had been stolen from him by SCPD officers, that he had
pictures of the officers and a witness to the incident, and that he would call the media if his $100
was not returned to him. The dispatcher told Victim D not to call anyone and promised to speak
to the precinct boss. When the dispatcher called Victim D back, she told him to stay put and that
an officer would meet him there to return the money. Shortly afterward, a different, Englishspeaking officer met Victim D near the convenience store and handed him $100. The officer,
whom Victim D had not seen before, stated, “Amigo, this money fell out of the wallet,” and told
him “Don’t call 911 anymore, or the news.”
88.
In early February 2014, Victim D learned that Defendant Greene had been
arrested for targeting Latino drivers by stopping and stealing from them. Victim D contacted the
District Attorney’s office and was later interviewed by Lieutenant Milagros Soto.
Approximately a week after his initial interview, Victim D spoke to Defendant Soto, who told
him that she had located and listened to the audio recordings of both Victim D’s initial call to
911 and the 911 operator’s call to the precinct commander, and that both of these recordings
corroborated his story.
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89.
Upon information and belief, despite Defendant Soto’s having heard the two
audio recordings confirming Victim D’s encounter, neither the SCPD, the District Attorney, nor
Defendant Soto initiated any criminal or departmental charges against any SCPD “commander”
or other officer for this attempt to prevent Victim D from disclosing what had happened to him.
3. Plaintiff 1 Was Stopped and Robbed
90.
In or about September 2012, an SCPD officer stopped Plaintiff 1 while he was
driving in Suffolk County. The SCPD officer did not tell Plaintiff 1 why he had been stopped,
and there was no legitimate basis for the stop. Upon information and belief, the officer in
question was Defendant Greene.
91.
After determining that Plaintiff 1 did not have a license or other identification,
Defendant Greene ordered Plaintiff 1 to get out of the car, walk to the back of the car, and face
away from him. Defendant Greene then illegally searched Plaintiff 1’s person and car without
consent or probable cause.
While patting down Plaintiff 1, Defendant Greene removed
Plaintiff 1’s wallet from his pocket and took it with him to his patrol car. Defendant Greene
returned to Plaintiff 1’s car and allowed him to leave without issuing a ticket. Plaintiff 1 realized
that $200 had been stolen. Plaintiff 1 believes that he was illegally stopped and robbed from
solely because he is Latino.
92.
In or around September 2012, approximately two weeks after the first stop,
Plaintiff 1 was stopped by an SCPD officer while driving back from the bank, where he had
withdrawn $450. The SCPD officer pulled him over and asked for a license or ID. The officer
did not provide an explanation for why Plaintiff 1 had been pulled over, and there was no
legitimate basis for the stop. Upon information and belief, the officer in question was Defendant
Greene.
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93.
Defendant Greene ordered Plaintiff 1 out of the car, searched Plaintiff 1 without
justification or permission, and took Plaintiff 1’s wallet. Defendant Greene went to the patrol car
with the wallet, then returned and told Plaintiff 1 he could go. When Plaintiff 1 found that there
was only $250 remaining in his wallet and that Defendant Greene had stolen $200. Plaintiff 1
believes that he was illegally stopped and robbed solely because he is Latino.
94.
After this second incident, Plaintiff 1 became fearful of leaving his house and no
longer carried large amounts of cash for fear of being robbed by the police. Over the next two
years, Plaintiff 1 was stopped an additional four times by Defendant Greene without being told
why he was stopped.
4. Plaintiff 2 Was Stopped and Robbed
95.
In June 2012, Plaintiff 2 was driving in Suffolk County and when he pulled into
his driveway, an SCPD officer approached his car. Plaintiff 2 gave the officer his vehicle
registration and Mexican ID. The police officer did not explain why he had stopped him, and
there was no legitimate basis for the stop. Upon information and belief, the officer in question
was Defendant Greene.
96.
Defendant Greene told Plaintiff 2 to place his wallet on the passenger seat and to
get out of the car. Defendant Greene illegally frisked Plaintiff 2 without justification or consent
and took him to the front of the patrol car. Defendant Greene then proceeded to illegally search
Plaintiff 2’s car without permission. When finished, Defendant Greene left. Plaintiff 2 then
found $100 was stolen from his wallet. Plaintiff 2 believes that he was illegally stopped and
robbed from solely because he is Latino.
97.
That afternoon, Plaintiff 2’s sister-in-law, who speaks English, called and
reported the incident to the SCPD.
Plaintiff 2 later received a letter in English about the
complaint. Then, in January 2013, after about six months had passed, Plaintiff 2 received a call
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from the SCPD asking him to make a report in person. Plaintiff 2 did not keep his appointment
because he did not fully understand the procedures and was afraid of what might happen to him.
Soon after, Plaintiff 2 went to the Internal Affairs Office to make a report with his brother and
his cousin, Plaintiff 3, who had also been the victim of the stop-and-rob scheme.
98.
After this incident, Plaintiff 2 became afraid to drive due to his belief that he
would be stopped because of his race, and stopped regularly doing so. Plaintiff 2 was eventually
hospitalized for ten days in September 2014 for depression and anxiety.
5. Plaintiff 3 Was Stopped and Robbed
99.
Sometime in August 2012, while walking home, Plaintiff 3 was stopped by an
SPCD officer who pulled into his driveway. The officer then instructed Plaintiff 3 to place his
hands on the patrol car while he was unlawfully frisked without justification or his consent.
Upon information and belief, the officer in question was Defendant Greene.
100.
Defendant Greene asked for Plaintiff 3’s identification, and when told that he only
had a Mexican consular ID, removed Plaintiff 3’s wallet from his back pocket. When Plaintiff 3
tried to turn around, Defendant Greene put a hand on his shoulder and told him not to move.
Defendant Greene returned the ID and then left. Plaintiff 3 found that $100 had been stolen from
his wallet. Plaintiff 3 believes that he was illegally stopped and robbed from solely because he is
Latino.
101.
A few weeks later, Plaintiff 2 called Plaintiff 3 and told him that he had been
stopped and robbed by an SCPD police officer. Plaintiff 2’s sister-in-law filed a report by
telephone on behalf of both men.
102.
Accompanied by Plaintiff 2, Plaintiff 3 went to the SCPD in September 2012 to
file an in-person report with Defendant Lieutenant Milagros Soto from the SCPD. The two men
were told that there would be an investigation and that there had been reports of others who had
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also been stopped and robbed. On or around January 2013, Lieutenant Soto called Plaintiff 3 to
say that he needed to be interviewed again. Lieutenant Soto did not contact him again until
January 2014, when she arrived at his house unannounced.
6. Plaintiff 4 and Plaintiff 5 Were Stopped, and Plaintiff 4 Was Robbed
103.
In or around October 2013, Plaintiff 4 was a passenger in Plaintiff 5’s car when an
SCPD patrol car pulled them over. The officer did not give a legitimate reason for stopping the
men, and there was no legitimate basis for the stop. Upon information and belief, the officer in
question was Defendant Greene.
104.
Defendant Greene asked Plaintiff 4 and Plaintiff 5 for their driver’s licenses,
which he then took with him to his patrol car. When Defendant Greene returned, he illegally
searched Plaintiff 4’s person and belongings without permission and took his wallet and cell
phone from his pockets while standing behind Plaintiff 4. Defendant Greene then returned both
items.
105.
Defendant Greene also instructed Plaintiff 5 to get out of the car and then illegally
frisked Plaintiff 5, without consent or justification, and took everything out of his pockets,
including his wallet and some loose cash. Defendant Greene then told the two men that they
could leave.
Plaintiff 4 found that $100 had been stolen from his wallet.
Plaintiff 4 and
Plaintiff 5 believe they were illegally stopped and robbed from solely because they are Latino.
7. Plaintiff 6 and Plaintiff 7 Were Stopped and Robbed
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106.
In or around January of 2013, Plaintiff 7 was driving in Suffolk County with
Plaintiff 6 when an SCPD officer pulled them over without explanation or a legitimate basis.
Upon information and belief, the SCPD officer was Defendant Greene.
107.
Defendant Greene asked for Plaintiff 7’s driver’s license, and when Plaintiff 7
replied that he did not have one, Defendant Greene instructed him to get out of the car.
Defendant Greene illegally searched Plaintiff 7’s pockets without permission and removed his
wallet and cell phone while telling Plaintiff 7 to keep looking forward. Defendant Greene
returned Plaintiff 7’s belongings and instructed him to return to the car.
108.
Defendant Greene next instructed Plaintiff 6 to get out of the car. Defendant
Greene illegally searched Plaintiff 6’s pockets without permission and removed his wallet,
telling him to look forward and not turn around. Defendant Greene asked Plaintiff 6 if he was
carrying money and if he knew how much.
Defendant Greene then returned Plaintiff 6’s
belongings to the car and instructed him to return to the vehicle as well.
109.
After the officer left, Plaintiff 7 found that $100 had been stolen from his wallet,
and Plaintiff 6 found that $200 had been stolen from his wallet. Plaintiff 6 and Plaintiff 7 believe
they were illegally stopped and robbed from solely because they are Latino.
8. Plaintiff 8 Was Stopped and Robbed
110.
In or around spring 2011, Plaintiff 8 was driving in Suffolk County and was
stopped by an SCPD officer. The officer asked for Plaintiff 8’s ID and registration but did not
provide any explanation for the stop, and there was no legitimate basis for the stop. Upon
information and belief, the SCPD officer in question was Defendant Greene.
111.
Defendant Greene told Plaintiff 8 that he needed to check his wallet. Defendant
Greene instructed Plaintiff 8 to stand behind the patrol car and put his hands on the trunk.
Defendant Greene proceeded to conduct an illegal search of Plaintiff 8’s car without his consent.
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Defendant Greene then let him go. Plaintiff 8 found that $200 had been stolen from his wallet.
Plaintiff 8 believes that he was illegally stopped and robbed solely because he is Latino.
112.
In or around January 2014, Plaintiff 8 was driving in Suffolk County when he was
pulled over again by an SCPD officer. Upon information and belief, the SCPD officer in
question was Defendant Greene. Defendant Greene asked Plaintiff 8 for his ID and vehicle
registration. Defendant Greene then stated that he needed to check Plaintiff 8’s wallet and
instructed him to stand by the patrol car. Defendant Greene illegally searched the vehicle,
including the trunk, without justification or consent.
Defendant Greene then returned
Plaintiff 8’s wallet and let him leave. Plaintiff 8 found that $150 had been stolen. Plaintiff 8
believes that he was illegally stopped and robbed from solely because he is Latino.
9. Plaintiff 9 Was Stopped and Robbed
113.
In or around March 2013, Plaintiff 9 was driving in Suffolk County when he was
illegally stopped by an SCPD officer. The officer did not provide any explanation for the stop,
and there was no legitimate basis for the stop. Upon information and belief, the SCPD officer in
question was Defendant Greene.
114.
Defendant Greene asked for Plaintiff 9’s driver’s license, and Plaintiff 9
responded that he did not have one. Defendant Greene ordered Plaintiff 9 out of the car, illegally
frisked him without permission, and took his wallet. Defendant Greene asked if he could search
his car, to which Plaintiff 9 consented. Defendant Greene left the wallet on the dashboard before
he departed. Plaintiff 9 found that $100 had been stolen from his wallet. Plaintiff 9 believes that
Defendant Greene stopped and robbed him over solely because he is Latino.
115.
Two weeks later, Defendant Greene again stopped Plaintiff 9 while he was
driving in Suffolk County. Defendant Greene did not explain why he had pulled over Plaintiff 9.
Plaintiff 9 commented that he knew the officer and commented on the prior stop. Defendant
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Greene asked if he had been issued a ticket, to which Plaintiff 9 responded that he had not been
ticketed. Plaintiff 9 noticed a look of recognition, and Defendant Greene released Plaintiff 9
without issuing him a ticket. Plaintiff 9 believes that he was illegally stopped solely because he
is Latino.
10. Plaintiff 10 Was Stopped and Robbed
116.
Plaintiff 10 estimates that since 2005, he has been stopped by Defendant Greene
on numerous occasions, and robbed during several of those stops. After the first few times
Plaintiff 10 was stopped and robbed by Defendant Greene, he stopped carrying money other than
for basic necessities or gas. If Plaintiff 10 was stopped and did not have money on him,
Defendant Greene would often contact other JOHN DOE Defendant SCPD officers to issue
tickets.
117.
In or around summer 2005, an SCPD officer stopped Plaintiff 10 in Suffolk
County. Upon information and belief, the SCPD officer in question was Defendant Greene.
Defendant Greene asked for Plaintiff 10’s driver’s license and vehicle registration. Defendant
Greene then ordered Plaintiff 10 out of the car and illegally searched his person without
justification or permission. Defendant Greene removed Plaintiff 10’s wallet from his pocket, and
Plaintiff 10 heard the officer fumbling with it before putting it back in his pocket.
After
Plaintiff 10 was told that he could go, he found that $600 had been stolen from his wallet.
Plaintiff 10 believes that he was illegally stopped and robbed from solely because he is Latino.
118.
In or around summer 2012, Plaintiff 10 was hired for a construction job in Suffolk
County that required him to travel back and forth between two Suffolk County towns. A few
days into the job, an SCPD officer began to repeatedly stop Plaintiff 10 on the way to or from
this job, without providing an explanation, and without legitimate basis for the stop. Upon
information and belief, the SCPD officer in question was Defendant Greene. On multiple
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occasions, Defendant Greene stole money from Plaintiff 10’s wallet during these stops, usually
in amounts under $100. If Plaintiff 10 was not carrying any cash, Defendant Greene would call
JOHN DOE Defendant SCPD officers to the scene and have them issue tickets for driving
without a license.
Plaintiff 10 quit the job to avoid this continued harassment and theft.
Plaintiff 10 believes that he was repeatedly targeted for these illegal stop-and-robs solely because
he is Latino.
119.
Around winter 2012, Plaintiff 10 was driving in Suffolk County when he was
pulled over by Defendant Greene without any explanation or basis for the stop. Defendant
Greene instructed Plaintiff 10 and the two passengers to get out of the car and illegally searched
all of their pockets without permission. None of the passengers were carrying a lot of money,
but Defendant Greene stole $6 from one of the passenger’s pockets. Defendant Greene then
called JOHN DOE Defendant, a second SCPD officer who came and issued Plaintiff 10 a ticket
for driving without a license.
11. Plaintiff 12 Was Stopped and Robbed
120.
In or around May 2012, Plaintiff 12 was driving in Suffolk County when he was
stopped by an SCPD officer. Upon information and belief, the officer in question was Defendant
Greene. Defendant Greene provided no explanation for the stop, and there was no legitimate
basis for the stop. Defendant Greene asked for Plaintiff 12’s driver’s license. Defendant Greene
ordered Plaintiff 12 to put everything from his pockets on the seat and to get out of the vehicle.
Plaintiff 12 did so, leaving his cell phone and wallet in the vehicle. Defendant Greene then
searched the car without consent, including a search of the trunk. Defendant Greene did not ask
for permission for this search, and Plaintiff 12 did not consent. When Plaintiff 12 returned to his
vehicle, he noticed that his wallet had been moved and that $100 had been stolen. Plaintiff 12
believes that he was illegally stopped and robbed from solely because he is Latino.
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12. Plaintiff 13 Was Stopped and Robbed
121.
In or around February 2013, Plaintiff 13 was driving in Suffolk County with a
passenger in the car when an SCPD patrol car pulled him over. Upon information and belief, the
officer in question was Defendant Greene. Defendant Greene asked for Plaintiff 13’s license,
and Plaintiff 13 replied that he did not have one.
Defendant Greene also asked for the
passenger’s ID, which he took to his patrol car. Upon returning, Defendant Greene then ordered
Plaintiff 13 to get out and place his hands on the car. Defendant Greene searched the car and
then searched Plaintiff 13 without justification or permission and removed his wallet, causing a
$100 bill to fall to the ground. Defendant Greene picked up the bill. Defendant Greene then
returned the wallet, telling Plaintiff 13 he could leave. Plaintiff 13 found that $100 had been
stolen. Plaintiff 13 believes that he was illegally stopped and robbed from solely because he is
Latino.
122.
A couple months later, in or around April 2013, Plaintiff 13 was driving in
Suffolk County with a passenger in the car when he was stopped by an SCPD officer without
explanation or basis for the stop. Upon information and belief, the officer in question was
Defendant Greene. Defendant Greene asked for Plaintiff 13’s license, and Plaintiff 13 replied
that he did not have one but provided another form of identification. Defendant Greene also told
the men to get out of the car and illegally searched the car without permission. Both men left
their wallets in the glove box of the car. Defendant Greene frisked both men and then told them
they could leave. Plaintiff 13 found that $40 had been stolen from his wallet. Plaintiff 13
believes that he was illegally stopped and robbed from solely because he is Latino.
13. Plaintiff 14 Was Stopped and Robbed
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123.
In or around early May or June 2011, Plaintiff 14 was driving in Suffolk County
when he was stopped by an SCPD officer and asked for his license. The officer did not provide
an explanation for the stop, and there was no legitimate basis for the stop. Upon information and
belief, the officer in question was Defendant Greene. Plaintiff 14 handed Defendant Greene his
consular ID. Defendant Greene then took Plaintiff 14’s wallet and instructed him to get out of
the car. Defendant Greene illegally searched Plaintiff 14’s car without permission and them told
him that he could leave. Plaintiff 14 found $100 had been stolen from his wallet. Plaintiff 14
believes that he was illegally stopped and robbed from solely because he is Latino.
14. Plaintiff 15 Was Stopped and Robbed
124.
In May 2012, Plaintiff 15 recalls driving in Suffolk County when he was pulled
over without explanation or any legitimate basis by an SCPD officer. Upon information and
belief, the SCPD officer in question was Defendant Greene.
Defendant Greene asked
Plaintiff 15 for his license, and Plaintiff 15 gave him his Honduran passport. Defendant Greene
then instructed Plaintiff 15 to get out and go to the back of the patrol car. Plaintiff 15 did so,
leaving his keys on the dashboard and his wallet in the center console between the two front
passenger seats. Defendant Greene frisked and illegally searched Plaintiff 15’s person without
permission, and illegally searched the car, including the glove box and the trunk, without
permission, before leaving.
Plaintiff 15 found that $20 had been stolen from his wallet.
Plaintiff 15 believes that he was illegally stopped and robbed solely because he is Latino.
15. Plaintiff 16 Was Stopped and Robbed
125.
In or around August 2012, Plaintiff 16 was driving in Suffolk County when he
was pulled over by an SCPD officer who did not provide an explanation for the stop. Upon
information and belief, the SCPD officer in question was Defendant Greene. Defendant Greene
asked for Plaintiff 16’s ID and vehicle registration and then searched Plaintiff 16’s person and
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car. Plaintiff 16’s wallet was in the car. Plaintiff 16 found that $150 had been stolen from his
wallet. Plaintiff 16 believes that he was illegally stopped and robbed from solely because he is
Latino.
16. Plaintiff 17 Was Stopped and Robbed
126.
In or around August 2010, Plaintiff 17 was stopped by an SCPD police officer
while driving in Suffolk County. The SCPD officer provided no explanation for the stop, and
there was no legitimate basis.
Upon information and belief, the officer in question was
Defendant Greene. Defendant Greene asked for Plaintiff 17’s ID and vehicle registration and
instructed him to exit the car. Defendant Greene then took Plaintiff 17’s wallet and returned to
his patrol car with Plaintiff 17. Defendant Greene showed Plaintiff 17 that he had unpaid tickets
in the system. Plaintiff 17 responded that he had paid them all. Defendant Greene then escorted
Plaintiff 17 to the trunk of Plaintiff 17’s car and asked to review his paperwork again. Following
that review, Plaintiff 17 was told that he could go. Plaintiff 17 found that about $100 had been
stolen from his wallet. Plaintiff 17 believes that he was illegally stopped and robbed solely
because he is Latino.
17. Plaintiff 18 Was Stopped and Robbed
127.
In June 2013, Plaintiff 18 was stopped by an SCPD officer while driving in
Suffolk County. Upon information and belief, the SCPD officer in question was Defendant
Greene. Defendant Greene did not explain the reason for the stop, and there was no legitimate
basis. Defendant Greene ordered Plaintiff 18 to get out of the car and put his hands on the
vehicle. The officer then opened the car doors on both sides, and illegally searched inside
without permission or justification. Defendant Greene likewise illegally searched Plaintiff 18’s
person, including his pockets, without permission, and then told him that he could leave.
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Plaintiff 18 found that $100 had been stolen from his pockets. Plaintiff 18 believes that he was
illegally stopped and robbed from solely because he is Latino.
18. Plaintiff 19 Was Stopped and Robbed
128.
Around June 2012, Plaintiff 19 was driving in Suffolk County when he was
stopped by an SCPD officer. The officer provided no explanation for the stop, and there was no
legitimate basis. Upon information and belief, the officer in question was Defendant Greene.
Defendant Greene ordered Plaintiff 19 to get out of the car and illegally frisked Plaintiff 19
without permission. Defendant Greene insisted that Plaintiff 19 hand over his wallet and took it
with him while he looked into the vehicle. Defendant Greene then returned the wallet and said
that Plaintiff 19 could leave. Plaintiff 19 found that $150 had been stolen from his wallet.
Plaintiff 19 believes that he was illegally stopped and robbed from solely because he is Latino.
129.
Around September or October 2012, Plaintiff 19 was driving in Suffolk County,
when he was stopped by Defendant Greene on two separate occasions during that timeframe.
Defendant Greene provided no reasonable explanation for the stop, and there was no legitimate
basis. During both encounters, Plaintiff 19 told Defendant Greene that he recognized him and
that the officer had stopped him before. Defendant Greene asked if he had previously issued any
tickets to Plaintiff 19, and Plaintiff 19 replied that he had not. Defendant Greene then let
Plaintiff 19 go. Plaintiff 19 believes that he was stopped solely because he is Latino.
19. Plaintiff 20 Was Stopped and Robbed
130.
Around February 2013, Plaintiff 20 was driving in Suffolk County when he was
pulled over by an SCPD officer. No explanation was given for the stop, and there was no
legitimate basis. Upon information and belief, the SCPD officer in question was Defendant
Greene. Defendant Greene asked for Plaintiff 20’s ID, and when Plaintiff 20 took out his wallet
to get it, Defendant Greene took the wallet and illegally searched it without permission.
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Defendant Greene then returned the wallet and let Plaintiff 20 go. Plaintiff 20 later noticed that
$100 had been stolen from his wallet. Plaintiff 20 believes that he was illegally stopped and
robbed from solely because he is Latino.
20. Plaintiff 21 Was Robbed by an SCPD Officer Summoned to the Scene
of a Traffic Accident
131.
While driving with his wife and children in Suffolk County, Plaintiff 21 was
involved in a car accident in October 2014. After the accident, Plaintiff 21 provided the SCPD
officer who responded to the scene with his driver’s license, insurance card, and registration.
Upon information and belief, the SCPD officer in question was Defendant Dormer. Defendant
Dormer searched the car with Plaintiff 21’s consent. She also unlawfully frisked Plaintiff 21
without seeking permission or obtaining consent. She then took Plaintiff 21’s wallet with her to
her squad car. Due to injuries caused by the accident, an ambulance took Plaintiff 21 to the
hospital. Plaintiff 21 tried to recover his wallet which contained $300 in cash by inquiring at the
hospital, calling the police immediately after his physical examination, and then later visiting the
third precinct police station on at least four separate occasions to determine what happened to his
wallet. Neither Defendant Dormer nor the SCPD returned Plaintiff 21’s wallet. Plaintiff 21
again visited the third precinct in February 2015 to file a written complaint and formally lodge
his grievance against Defendant Dormer. Despite clear SCPD protocols requiring the police
officer on duty to take Plaintiff 21’s written complaint, when Plaintiff 21 asked to fill out a
written complaint, he was told, “No, come back tomorrow at 3pm, the person who can talk to
you about your complaint will be here then.” He arrived the next day at the third precinct, at
3pm, on time, and was told that the person he was supposed to speak with at 3pm was not there.
To date, the SCPD has not returned his wallet, which contained his driver’s license, credit cards,
other personal information, and $300 in cash.
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D. In Addition to Targeting Latinos for Unfounded Law Enforcement Activities,
Defendant SCPD has Failed to Provide Policing Services to Latinos in a RaceNeutral Manner by Neglecting to Protect and Serve Latino Victims of Crime
132.
Latinos in Long Island have long been the victims of racial and ethnic
discriminatory policing. A 2008 survey conducted by EraseRacism found that 52% of Latinos in
Long Island have experienced discrimination because of their racial or ethnic background,
including discrimination by the SCPD. See EraseRacism, “Black and Latino Experiences with
Discrimination
on
Long
Island,”
(2008),
available
at
http://www.eraseracismny.org/storage/documents/housing/Long_island_survey_report_2009.pdf.
133.
A review of 2012 hate crime data conducted by BiasHELP, Inc. an affiliate of The
Long Island Network of Community Services, Inc., reveals that Nassau and Suffolk Counties
accounted for 27% of New York State hate crimes in 2012, despite the fact that Nassau and
Suffolk Counties contain just 18.6% of New York State’s population. Suffolk County was found
to have the highest concentration of hate crimes at 117 (as compared to Nassau’s 61), and only a
5% arrest rate for such crimes, the lowest arrest rate in New York state. Between 2011 and 2012
alone, Suffolk County had experienced a 200% rise in reported hate crimes.
134.
Despite the disproportionately high rate of hate crimes in Suffolk County, the
SCPD has had a long history of failing to adequately protect Latinos against hate and/or any
other crimes, including the failure to investigate crimes perpetrated against Latinos. Examples
include:

In July 2007, four young Caucasian men attacked two Suffolk County Latino
residents. When one of the victims went to the police to report the attack, an
SCPD officer asked him why he didn’t stay in his own country. Upon
information and belief, no arrests were made.

In July 2008, two Suffolk County Latino residents were attacked by a group of
Caucasian teenagers. When the SCPD arrived, they told one of the victims to “go
home” or else “fight them again if you want.” Upon information and belief, no
arrests were made.
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
In November 2008, one of the above-mentioned Suffolk County Latino residents
was attacked a second time when a group of teenagers threatened him and his
friend, saying that they wanted to kill a Hispanic. Upon information and belief,
the police were called, but no arrests were made.

In February 2009, a Latino resident of Suffolk County was walking home when
three men jumped out of a car, yelled racial slurs, and beat him. The man’s
injuries required major surgery. The attack was reported to the SCPD, but no
arrests were made.

In April 2009, a Latino Suffolk County resident was driving when he was hit by a
car with two Caucasian passengers. The two men yelled “Stupid Mexican!” and
when the victim got out of the car to talk to them, they beat him until the SCPD
police arrived. No arrests were made.
135.
In addition to failing to investigate and prosecute hate crimes aimed at Latinos,
the SCPD also has a history of underreporting hate crimes to the New York State Division of
Criminal Justice Services (the “DCJS”).
For instance, a June 18, 2010 memo regarding
2004-2010 Hate Crime Statistics reveals that the hate crime data reported to the DCJS differed
from the total number of hate crime incidents that actually occurred in Suffolk County. In 2011,
the U.S. Department of Justice likewise found that the SCPD did not accurately track or trend
monthly reported hate crime data, noting that the underreporting issue dated back to at least June
2004, when the then–New York State Hate Crimes Reporting Coordinator wrote a letter to the
SCPD noting that SCPD had not been correctly reporting hate crimes to the DCJS.
136.
Legislators in Suffolk County have proposed and passed several ordinances
targeting Latinos.
In 2007, then–County Executive Steve Levy co-founded “Mayors and
Executives for Immigration Reform,” a national group that promoted immigrant-cleansing
ordinances. Some of Suffolk County’s anti-immigrant ordinances and practices have been found
illegal
by
a
federal
judge.
See
Valdez
v.
Town
No. 2:05-cv-04323-JS-ARL, 2005 WL 3454708 (E.D.N.Y. Dec. 15, 2005).
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Brookhaven,
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137.
In January 2007, Suffolk County Legislators Jack Eddington and Joseph
Caracappa introduced an anti-loitering/solicitation bill that attempted to ban Latino day laborers
from seeking employment along county roadways by making it unlawful for day laborers to
loiter or stand along county roadways for the purpose of attempting to solicit products or
services.
138.
When the bill failed to pass, certain legislators wrote to then–SCPD
Commissioner Richard Dormer encouraging stronger police enforcement of traffic safety laws,
believing that the problems outlined in these anti-loitering bills could be adequately addressed by
the officers of the SCPD. The SCPD agreed to enforce the traffic laws which would “achieve the
same objectives as were contained” in the anti-loitering bill.
In April 2007, then–Suffolk
Assistant Chief of Patrol Robert Ponzo, sent an e-mail to the SCPD commanders stating that
“[s]tarting immediately any person operating a motor vehicle who is not licensed will be
summarily arrested if he or she had no other form of identification.”
139.
Upon information and belief, during the first three weeks of the new policy,
Suffolk County police arrested 50 people for driving without a driver’s license or other form of
identification, compared to 66 arrests for the same offense in all of 2006, primarily on roads
heavily travelled by Latino drivers. Upon information and belief, approximately 77% of these
drivers were identified in the accompanying police reports as Latino. 66% of all of the arrests
took place in the Third and Sixth precincts, communities with larger Hispanic populations than
other parts of Long Island. This 2007 policy to arrest all unlicensed drivers drew public criticism
that it led to the aggressive pursuit and stopping without cause of undocumented Latino
immigrants driving on Suffolk County roads. Then–Suffolk Administrative Judge H. Patrick
Leis III publicly noted that a majority of the arrests for unlicensed driving were taking place in
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Farmingville—an area where Hispanic day laborers have long been known to congregate and
look for work. Judge Leis expressed surprise that these cases were going to district court and
that many of the arrestees were Latino. Suffolk County District Attorney Thomas J. Spota
likewise publicly stated that he was concerned that the policy disproportionately impacted
Hispanic residents.
140.
As a result of these concerns, then–Commissioner Dormer suspended the policy
for a mere two weeks in May 2007, only to reinstitute it.
Upon information and belief, the
SCPD’s 2007 review of this policy was insufficient given that at the time, the SCPD did not
collect traffic stop data from all precincts to even permit an assessment of whether racial
profiling was, in fact, occurring. Accordingly, at the time Dormer made this decision, complete
data was not available to refute allegations of racial profiling tied to the “no identification arrest”
policy.
141.
Upon information and belief, the 2007 directive to arrest all unlicensed drivers
has led to the racial profiling of undocumented Latino immigrants driving on Suffolk County
roads.
In 2009, then–Suffolk County Police Benevolent Association Vice President Noel
Digerolamo publicly stated that he believed this 2007 directive to arrest all unlicensed drivers led
to the aggressive pursuit and stopping without cause of undocumented Latino immigrants driving
on Suffolk County roads.
142.
A 2009 report issued by the Southern Poverty Law Center indicates that Latinos
were disproportionately targeted by this arrest policy, given that Latinos accounted for roughly
14% of the Suffolk County’s population in 2009, but accounted for roughly 50% of the
individuals fined for motor vehicle violations.
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143.
Upon information and belief, this policy—which was enacted as a means to target
and harass undocumented Latinos in Suffolk County—is still in effect today.
II.
The DOJ Investigates and Finds Defendant SCPD’s Policies and Practices
Discriminate Against Latinos
144.
On November 8, 2008 a gang of seven teenagers known as the “Caucasian
Crew” surrounded and fatally stabbed Marcelo Lucero, a 37-year-old Ecuadorian resident of
Suffolk County. Though Caucasian Crew members engaged in robbing Latinos and described
such activities as “beaner hopping” on a weekly basis in Patchogue prior to the death of Marcelo
Lurcero, they were never questioned or arrested by the SCPD for the dozens of prior assaults and
robberies that they had committed on Latino laborers.
145.
In response to the Caucasian Crew’s activities, former County Executive Steve
Levy minimized the significance of the Lucero hate-crime murder at the time, describing it as a
“one-day story.” The failure by Suffolk County government to take these issues seriously has
contributed to SCPD’s ongoing pattern, policy, and practice of discriminatory policing affecting
Latinos. SCPD’s failure to investigate this series of robberies against Latino laborers, in turn,
allowed this pattern of assaults and robberies to continue unabated.
146.
After having their complaints to the SCPD go unanswered, dozens of Latino
victims of similar “street crimes” stepped forward to the DOJ to report how their complaints to
police appeared to go uninvestigated and unsolved.
147.
In response to such Latino community reports, the United States opened an
investigation into the SCPD’s possible discriminatory policies and practices in early 2009. After
conducting an initial investigation, they found sufficient evidence to justify opening a formal
investigation into the SCPD on September 1, 2009. The investigation focused on discriminatory
policing allegations, including claims that the SCPD discouraged Latino victims from filing
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complaints and cooperating with the police, and failed to investigate crimes and hate crime
incidents involving Latinos.
148.
Upon information and belief, the United States provided then–SCPD
Commissioner Dormer and other SCPD command staff oral recommendations regarding its
concerns about biased policing throughout the course of its investigation, including in
February and March 2010 and again in May 2011.
149.
The United States investigation found rampant and systemic discrimination by the
SCPD against Latinos. On September 13, 2011, the United States issued a Technical Assistance
Letter which found:
(a)
SCPD officer training was inadequate and several SCPD policies and procedures
were insufficiently detailed and inconsistent with general police practices.
(b)
SCPD’s policy that required questioning a person arrested for a crime about his or
her immigration status “when there is a reason to believe” that the arrestee is an
“undocumented person” or the officer “knows or reasonably suspects” the arrestee
is “born outside the country” was subject to discriminatory abuse and too vague to
provide officers with necessary guidance.
(c)
Many members of the Latino immigrant community felt that bias-motivated
crimes were abetted by SCPD through inaction.
(d)
SCPD’s procedures for receiving, investigating, and tracking reports of police
discriminatory conduct were inadequate.
(e)
SCPD’s procedure for handling citizen complaints concerning discrimination and
misconduct were inadequate.
(f)
The SCPD did not have a policy that explicitly prohibited officers from engaging
in conduct that tended to discourage a citizen from making a complaint regarding
criminal or illegal conduct.
(g)
SCPD’s early warning system was inadequate due to the extremely limited scope
of the data collected and the absence of any predictive monitoring structure.
(h)
SCPD’s vigorous program of using roadblocks and police checks to primarily
request documentation of citizenship is unacceptable. The United States
instructed SCPD to ensure that officers at checkpoints inspect only for sobriety or
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other specific illegal conduct and not conduct identity checks or otherwise ask for
documentation without a basis for believing that a crime has been committed.
150.
In or around December 2013, the United States reached a limited settlement
agreement with the SCPD (the “Agreement”) which makes clear that the SCPD’s policies and
practices were insufficient to prevent the targeting of, and discriminatory behavior toward,
Latinos in Suffolk County by the SCPD, in violation of the Equal Protection Clause and other
constitutional rights.
151.
The Agreement requires that the SCPD implement appropriate policies and
training on bias-free policing. The Agreement is in effect only until the SCPD is determined to
have “substantially complied” with all of the requirements for at least one year.
152.
Despite the Agreement’s requirement that the SCPD must make all non-
confidential audits and reports related to compliance publicly available, such information has
been withheld from the public. For example, the SCPD has engaged in wholesale redactions of
all available data or failed to release data such as its hate-crime maps, which have to date only
been released in a high-level summary format—such that members of the public cannot
scrutinize the data. Moreover, the SCPD has instituted a policy that annual traffic stop data will
only be released to the public if the report reveals no evidence of biased based policing.
153.
The Agreement has not adequately addressed all of the problems of
discriminatory policing in Suffolk County.
For instance, upon information and belief, the
SCPD’s revised procedure for the collection of traffic stop data no longer requires that the reason
for a traffic stop be recorded prior to an officer exiting his vehicle. Instead, demographic and
other information regarding the traffic stop may be entered upon completion of the stop,
allowing for potential manipulation by SCPD officers. Moreover, a review of the bi-annual
SCPD compliance reports required by the Agreement reveal that the SCPD has not implemented
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the peer review model of analysis recommended by the United States of the traffic stop data
collected.
154.
Similarly, many of the stops in the most recent pattern of unlawful stop-and-rob
practices targeting Latinos took place during the time period allocated for implementation of the
Agreement. Further, none of the policy and training revisions allegedly made pursuant to the
United States’ agreement with the SCPD appear to have thwarted the unlawful stops endured by
the named Plaintiffs nor facilitated the receipt of police-related misconduct complaints, such as
that attempted by Plaintiff 21.
Instead, based on his experience, the obstructionist
discouragement of complaints remains the norm at the SCPD despite United States supervision.
All of the deficiencies demonstrate that the Agreement was an insufficient means of ending and
preventing future discrimination against and harassment of Latinos in Suffolk County.
III.
Defendant SCPD’s “Stop-and-Rob” Scheme and Other Discriminatory or
Unconstitutional Police Practices are a Direct and Proximate Result of the Policies,
Practices and/or Customs of Defendant SCPD and Defendant Suffolk County
155.
The pervasive unconstitutional practices of Defendant SCPD, including the
targeting of Latinos for unconstitutional traffic stops, frisks, searches, wrongful deprivation of
property, and/or unlawful traffic citations, are a direct and proximate result of policies, practices,
and/or customs devised, implemented, enforced, and sanctioned by Defendant Suffolk County,
Defendant SCPD, Defendant Commissioner Webber, and the SUPERVISORY JOHN DOE
Defendants whose identities are presently unknown, with the knowledge that such policies,
practices, and/or customs would lead to constitutional violations. These policies, patterns and
practices not only include SCPD Commissioner Richard Dormer’s 2007 order to officers to
arrest any person operating a motor vehicle who is not licensed if they are unable to offer another
form of identification, but also the failure to develop and implement an adequate early warning
system; the failure to properly screen, train, and supervise SCPD officers; the failure to
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adequately monitor and discipline SCPD officers; the encouragement, sanction, and failure to
rectify Defendant SCPD’s custom and practice of unlawful traffic stops, frisks, detentions,
searches, the wrongful deprivation of property, and/or the issuance of unlawful traffic citations;
and the failure to properly direct criminal and non-criminal investigations to determine the full
reach of the “stop-and-rob” scheme described above.
A. Despite Being Aware of Discriminatory Policing Practices, Defendant Suffolk
County and Defendant SCPD Failed to Develop and Implement an Adequate
Early Warning System
156.
Per the 1994 Violent Crime Control and Law Enforcement Act, 42 U.S.C. §
14141, the DOJ developed professional safeguards and best practices for law enforcement
agencies across the country in a variety of different areas, such as monitoring and deterring
racially motivated practices when stopping and questioning the drivers of vehicles, passengers,
or any other persons. These include instituting policies and training concerning racial targeting
and implementing an early warning system to collect and analyze data on racial profiling in an
effort to identify poor officer performance and provide a system for correcting behavior.
157.
For instance, the Performance Assessment Review System (“PARS”), is a well-
known early warning system implemented by the Pittsburgh Bureau of Police pursuant to a
consent decree entered into with the DOJ concerning discriminatory policing. Upon information
and belief, the DOJ first recommended the widespread adoption of early warning systems akin to
PARS in its 2001 report, “Principles for Promoting Police Integrity.” PARS tracks data such as
arrests; citizen complaints; civil or administrative claims arising from official duty; civil claims
regarding domestic violence, untruthfulness, racial bias, or physical force by officers; traffic stop
data, and more. This data is analyzed to suspicious patterns of activity. Similarly, in 2001, the
Commission on Accreditation for Law Enforcement Agencies (“CALEA”) adopted a new
standard calling on police agencies to maintain an early warning system as an essential
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component of a well-managed law enforcement agency. Upon information and belief, the SCPD
is expected to meet CALEA accreditation standards.
158.
Despite being aware of certain discriminatory policing practices, the SCPD failed
to properly adopt and/or implement an effective early warning system and other well-recognized
best practices.
Upon information and belief, had the SCPD instituted these professional
safeguards, it would have promptly identified the inexplicably high number of traffic stops of
Latino drivers in Latino neighborhoods at the hands of Defendant Greene and individual JOHN
DOE Defendants.
159.
Upon further information and belief, in February 2005, the SCPD installed a
system that can be used to collect and maintain traffic stop and other police data for statistical
review and analysis. In 2006, the SCPD began recording the race of motorists pulled over on the
Long Island Expressway and Sunrise Highway as part of a pilot initiative program, which was
later expanded to all of Suffolk County in 2009. Upon information and belief, the traffic data
collection program required that, amongst other information, officers conducting any
self-initiated vehicle or traffic stop record the race of the motorist. The data collected is to be
maintained by the SCPD for statistical review and analysis and published.
160.
Upon information and belief, neither the data collected nor any analysis
performed thereof has ever been publicly released or analyzed in any meaningful way despite the
SCPD’s internal police policy and procedure directives to do so. Had the data been properly
collected and analyzed according to best police practices, the results would have shown that
officers were disproportionately stopping and searching Latino motorists in Suffolk County.
Upon information and belief, these policies, patterns, and practices will continue, given the
insufficiencies in the SCPD’s performance pursuant to its Agreement with the United States.
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B. Despite Being Aware of Unconstitutional and Discriminatory Policing Practices
Targeting Latinos, Defendant Suffolk County and Defendant SCPD Failed to
Properly Screen, Train and Supervise SCPD Officers
161.
Although aware that the work of the SCPD requires extensive training, superior
judgment, and close supervision, the County, Defendant SCPD, Defendant Commissioner
Webber, and the SUPERVISORY JOHN DOE Defendants have failed to properly screen, train,
and supervise SCPD officers, knowing that such failures would result in Fourth, Fifth, and
Fourteenth Amendment violations. Pursuant to the DOJ Agreement, Defendant Suffolk County,
Defendant SCPD, Defendant Commissioner Webber, Defendant Lieutenant Milagros Soto, and
the SUPERVISORY JOHN DOE Defendants were required to implement numerous training
requirements concerning policies prohibiting racial profiling.
On information and belief,
Defendants have failed to properly train and supervise SCPD officers, including supervisors,
concerning the legal and factual bases for conducting stops and searches that comply with the
Fourth and Fourteenth Amendments in an effective manner.
162.
The inadequate screening, training, and supervision of SCPD officers are a direct
and proximate cause of the SCPD’s rampant unconstitutional stop, searches and deprivation of
property. As a direct and proximate result of Defendants’ failure to screen, train, and supervise
SCPD officers, Latinos have been subjected to unlawful stops and searches, many times simply
because of their race and/or national origin. By failing to properly screen, train, and supervise
SCPD officers, Defendant Suffolk County, Defendant SCPD, Defendant Commissioner Webber,
Defendant Lieutenant Milagros Soto, and the SUPERVISORY JOHN DOE Defendants have
acted recklessly and with deliberate indifference to the constitutional rights of those who would
come into contact with the SCPD.
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C. Despite Being Aware of Unconstitutional and Discriminatory Policing Practices
Targeting Latinos, Defendant Suffolk County and Defendant SCPD Failed to
Monitor and Discipline SCPD Officers
163.
Defendant SCPD’s widespread discriminatory practices are also a direct and
proximate result of the failure of Defendant Suffolk County, Defendant Commissioner Webber,
Defendant Lieutenant Milagros Soto, and the SUPERVISORY JOHN DOE Defendants to
properly and adequately monitor, discipline, and take necessary corrective action against SCPD
officers who engage in, encourage, or conceal unconstitutional practices. Among other things,
these Defendants knowingly, deliberately, and recklessly have failed: (a) to take appropriate
disciplinary action and corrective measures against SCPD officers who have engaged in
unconstitutional stops, frisks, detentions, searches, the wrongful deprivation of property, and/or
unlawful traffic citations; (b) to adequately monitor SCPD officers who have received a
substantial number of complaints; (c) to devise and implement appropriate oversight,
disciplinary, and remedial measures in the face of evidence that no charges are brought or tickets
issued (other than driving without a license) against the majority of Latinos stopped by SCPD
officers; and (d) to conduct adequate auditing to determine if the stops, frisks, detentions, and
searches conducted by SCPD officers comply with written policies.
164.
In December 2013, a Newsday investigation of misconduct cases involving SCPD
officers found that, despite a series of high-profile police misconduct cases from the period
2008–2013, individual SCPD officers were subject to some of the weakest oversight in the
country due to failures of Defendant Suffolk County and Defendant SCPD. Amongst other
findings, Newsday discovered that more than 100 officers involved in serious misconduct cases
were found to have either remained on the job or continued to work for years before retiring.
165.
As a direct and proximate cause of the above policies, practices, and/or customs,
Latinos have been, and will continue to be, subjected to unconstitutional stops, frisks, detentions,
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searches, the wrongful deprivation of property, and/or unlawful traffic citations by the SCPD,
simply because such individuals happen to be Latino.
Through such acts and omissions,
Defendant Suffolk County, Defendant Commissioner Webber, Defendant Lieutenant Milagros
Soto, and the SUPERVISORY JOHN DOE Defendants have acted recklessly and with deliberate
indifference to the constitutional rights of individuals who would come into contact with the
SCPD.
D. Though Aware SCPD Officers Were Targeting Latinos, Defendant Suffolk
County and Defendant SCPD Have Encouraged, Sanctioned, and Failed to
Rectify these Unconstitutional and Discriminatory Policing Practices
166.
Defendant Suffolk County, Defendant Commissioner Webber, Defendant
Lieutenant Milagros Soto, and the SUPERVISORY JOHN DOE Defendants have created a
pervasive culture of indifference, bias, and animus among the police force toward Latinos in
Suffolk County. With the knowledge that such acts and omissions would create a likelihood of
Fourth, Fifth, and Fourteenth Amendment violations, Defendant Suffolk County, Defendant
Commissioner Webber, Defendant Lieutenant Milagros Soto, and the SUPERVISORY JOHN
DOE Defendants also have encouraged, sanctioned, and failed to rectify or sufficiently
investigate the SCPD’s unconstitutional practices. Despite several named Plaintiffs recounting
that their stop-and-rob experiences involved multiple SCPD officers, Defendant SCPD and
District Attorney Officials have maintained the position that there is no indication of the
involvement of SCPD officers other than Defendant Greene in targeting Latinos in Suffolk
County.
167.
As a direct and proximate result of the above policies, practices and/or customs,
Latinos have been subjected to unconstitutional stops and searches simply because of their race
and/or national origin. Through such acts and omissions, Defendant Suffolk County, Defendant
Commissioner Webber, Defendant Lieutenant Milagros Soto, and the SUPERVISORY JOHN
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DOE Defendants have acted recklessly and with deliberate indifference to the constitutional
rights of those who would come into contact with the SCPD.
CAUSES OF ACTION
First Cause of Action
Claims of Named Plaintiffs and Class Members Pursuant to 42 U.S.C. § 1983 against All
Defendants for Violations under the Fourth, Fifth, and Fourteenth Amendment
168.
Defendants Suffolk County Police Department, Suffolk County, Suffolk County
Police Department Commissioner Edward Webber, Lieutenant Milagros Soto, SUPERVISORY
JOHN DOE Defendants, Scott Greene, SCPD Officer Bridgett Dormer, and JOHN DOE
Defendants have sanctioned a policy, practice, and/or custom of stopping, questioning, and
searching individuals, including named Plaintiffs and Class members, due to their ethnicity
and/or national origin without having the reasonable articulable suspicion of unlawful activity
required by the Fourth Amendment and the Equal Protection Clause. (See, e.g., ¶¶ 56-131.)
169.
Defendants’ constitutional violations were and are directly and proximately
caused by policies, practices, and/or customs enforced, encouraged, and sanctioned by the SCPD
and Suffolk County, including:
(a)
SCPD Commissioner Richard Dormer’s 2007 order to officers to arrest any
person operating a motor vehicle who is not licensed if they are unable to offer
another form of identification and Commissioner Webber’s refusal to rescind such
a policy currently in use today;
(b)
the failure to develop and implement an adequate early warning system to
determine whether the number of stops and/or tickets issued involving Latinos
was excessive based upon a peer review system of each SCPD police precinct to
account for the local driving population variations and traffic volume for the
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county, and to review the demographic information regarding persons who were
stopped, searched and/or ticketed to determine whether any particular group of
persons was being unlawfully targeted so as to properly and adequately monitor
and discipline SCPD officers;
(c)
the failure to adequately screen, train, and supervise SCPD officers; including the
individual police officer defendants, as to the reasonable, justifiable and proper
and improper circumstances for stopping and/or searching Latinos in Suffolk
County;
(d)
the encouragement of and failure to rectify SCPD’s custom and practice of
targeting Latinos for unfounded, race-based stops, frisks, questioning, searches,
and detentions, culminating in either the wrongful deprivation of personal
property (money) whenever possible or the issuance of unjustified, yet costly,
traffic citations; and
(e)
the failure to adequately investigate alleged crimes and police misconduct
perpetrated against Latinos in a race-neutral fashion.
170.
These failures reflect a deliberate indifference on the part of each Defendant with
respect to the Fourth, Fifth, and Fourteenth Amendment rights of the named Plaintiffs and other
members of the Class. As a result of the policies and/or customs of Defendant SCPD and
Defendant Suffolk County, including but not limited to those mentioned above, the other
individual Defendants expected that their actions would not be properly monitored by
supervisory officers and that misconduct would be tolerated and encouraged, and this belief was
a substantial factor causing their unlawful conduct. Therefore, as a direct and proximate result of
these enumerated failures, Defendant SCPD and Defendant Suffolk County as well as the above
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named individual Defendants deprived Plaintiffs and other Class members of their constitutional
right to be free from unreasonable searches and seizures and other discriminatory practices, and
to Equal Protection under the law, and are liable to Plaintiffs under the Fourth, Fifth, and
Fourteenth Amendment, as well as 42 U.S.C. § 1983.
171.
The named Plaintiffs and other members of the Class have no adequate remedy at
law and fear that they will continue to be stopped, searched, and/or otherwise harassed and
treated in a discriminatory manner by SPCD officers unless Defendants are enjoined from
continuing the SCPD’s unconstitutional policies, patterns, and/or practices.
Second Cause of Action
Claims of Named Plaintiffs and Class Members Pursuant to Title VI of The Civil Rights
Act of 1964, 42 U.S.C. § 2000d, et seq. against Defendants SCPD and Suffolk County
172.
Defendant Greene and Individual JOHN DOE Defendants’ decisions to stop,
frisk, detain, search, and/or steal from, and/or unlawfully ticket Plaintiffs were based solely on
their actual or perceived race, ethnicity, and/or national origin. (See, e.g., ¶¶ 56-131.)
173.
Defendant Greene and Individual JOHN DOE Defendants were acting in
accordance with the pattern and practice of discrimination on the basis of perceived race,
ethnicity, and/or national origin that were established and tolerated within Defendant SCPD and
by Defendant Suffolk County.
174.
Defendants SCPD and Suffolk County receive federal financial assistance and
funding from the United States government. As recipients of federal financial assistance, the
SCPD and Suffolk County are legally required to provide and conduct their programs and
activities in a racially and ethnically non-discriminatory manner.
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175.
The conduct of Defendant SCPD and Defendant Suffolk County have denied and
will continue to deny Plaintiffs the right to be free from discriminatory treatment under 42
U.S.C. § 2000d.
Third Cause of Action
Named Plaintiffs #1-4, #6-10, #12-20’s Claims Pursuant to 42 U.S.C. § 1983 against
Defendant Greene for Violations under the Fourth, Fifth, and Fourteenth Amendment
176.
Acting under the color of law and without any basis to form a reasonable
suspicion that Plaintiffs #1-4, #6-10, and #12-20 were engaged or about to engage in unlawful
activity, Defendant Greene subjected Plaintiffs #1-4, #6-10, and #12-20 to unequal treatment by
unlawfully targeting and stopping Plaintiffs #1-4, #6-10, and #12-20 because they are Latino.
Defendant Greene intentionally discriminated against Plaintiffs #1-4, #6-10, and #12-20 based
upon their ethnicity and their national origin with no legitimate basis for the stops conducted.
(See, e.g., ¶¶ 62; 65-66; 78-82; 90-130.)
177.
Acting under color of law, Defendant Greene stole money from Plaintiffs #1-4,
#6-10, and #12-20 during the course of the unlawful stops. (See, e.g., ¶¶ 78-82; 90-130.)
178.
By the actions described above, Defendant Greene intentionally deprived
Plaintiffs #1-4, #6-10, and #12-20 of the following constitutional rights: (1) to be free from
unreasonable searches and seizures, (2) to due process under the law with respect to their
property rights; and (3) to equal protection under the law. Accordingly, Defendant Greene is
liable to Plaintiffs #1-4, #6-10, and #12-20 under the Fourth, Fifth and Fourteenth Amendments
and 42 U.S.C. § 1983. These violations of Plaintiffs #1-4, #6-10, and #12-20’s constitutional
rights were a direct and proximate result of the acts and omissions of Defendant Greene.
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179.
As a result of the foregoing, Plaintiffs have suffered injuries and damages, have
been deprived of their civil rights, and fear that they will continue to be stopped without good
cause.
Fourth Cause of Action
Named Plaintiff 21’s Claims Pursuant to 42 U.S.C. § 1983 Against Defendant Dormer for
Violations under the Fourth, Fifth, and Fourteenth Amendment
180.
Acting under the color of law and without any basis to form a reasonable
suspicion that Plaintiff 21 was engaged or about to engage in unlawful activity, Defendant
Dormer subjected Plaintiff 21 to unequal treatment by unlawfully targeting and stopping Plaintiff
21 because he is Latino, during the investigation of a traffic accident. Defendant Dormer
intentionally discriminated against Plaintiff 21 based upon his ethnicity and national origin with
no legitimate basis for the stop conducted. (See ¶ 131.)
181.
Acting under color of law, Defendant Dormer stole Plaintiff 21’s wallet,
containing money, during the course of this unlawful stop, occurring during the investigation of a
traffic accident. (See ¶ 131.)
182.
By the actions described above, Defendant Dormer intentionally deprived
Plaintiff 21 of the following constitutional rights: (1) to be free from unreasonable searches and
seizures, (2) to due process under the law with respect to their property rights; and (3) to equal
protection under the law. Accordingly, Defendant Dormer is liable to Plaintiff 21 under the
Fourth, Fifth, and Fourteenth Amendments and 42 U.S.C. § 1983.
These violations of
Plaintiff 21’s constitutional rights were a direct and proximate result of the acts and omissions of
Defendant Dormer.
183.
As a result of the foregoing, Plaintiff 21 has suffered injuries and damages, has
been deprived of his civil rights, and will continue to be stopped without good cause.
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Fifth Cause of Action
Named Plaintiffs #3, #5-11, #14, #17-18, and #20’s Claims Pursuant to 42 U.S.C. § 1983
against JOHN DOE Defendants for Violations under the Fourth and Fourteenth
Amendment
184.
Acting under the color of law and without any basis to form a reasonable
suspicion that Plaintiffs #3, #5-11, #14, #17-18, and #20 were engaged or about to engage in
unlawful activity, JOHN DOE Defendants subjected Plaintiffs #3, #5-11, #14, #17-18, and #20
to unequal treatment by unlawfully targeting and stopping Plaintiffs #3, #5-11, #14, #17-18, and
#20 because they are Latino.
JOHN DOE Defendants intentionally discriminated against
Plaintiffs #3, #5-11, #14, #17-18, and #20 based upon their ethnicity and/or their national origin
with no legitimate basis for the stops conducted. (See, e.g., ¶¶ 56-61; 63-64; 68-77.)
185.
By the actions described above, JOHN DOE Defendants intentionally deprived
Plaintiffs #3, #5-11, #14, #17-18, and #20 of the following constitutional rights: (1) to be free
from unreasonable searches and seizures and (2) to equal protection under the law. Accordingly,
JOHN DOE Defendants are liable to Plaintiffs #3, #5-11, #14, #17-18, and #20 under the Fourth
and Fourteenth Amendments and 42 U.S.C. § 1983. These violations of Plaintiffs #3, #5-11,
#14, #17-18, and #20’s constitutional rights were a direct and proximate result of the acts and
omissions of JOHN DOE Defendants.
186.
As a result of the foregoing, Plaintiffs #3, #5-11, #14, #17-18, and #20 have
suffered injuries and damages, have been deprived of their civil rights, and fear that they will
continue to be stopped.
Sixth Cause of Action
Claims of All Named Plaintiffs against Defendant Webber, Defendant Soto, and
SUPERVISORY JOHN DOE Defendants
187.
Defendant Commissioner Webber, Defendant Soto, and SUPERVISORY JOHN
DOE Defendants knew that members of the SCPD were violating Plaintiffs’ Fourth Amendment
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right to be free from unreasonable searches and seizures; their due process rights under the Fifth
and Fourteenth amendments; and their Fourteenth Amendment right to equal protection under
the law. (See, e.g., ¶¶ 2; 35; 37-38; 86-89; 132-167.) Defendant Webber, Defendant Soto, and
SUPERVISORY JOHN DOE Defendants could have taken action to investigate, address, and
prevent violations of the Plaintiffs’ rights, but they knowingly and deliberately failed and refused
to do so despite the availability and presentation of evidence suggesting that racial profiling was,
in fact, occurring, that multiple officers were participating in a “stop-and-rob” scheme, and/or
that claims of police misconduct against Suffolk County Latinos were being ignored and left
uninvestigated.
188.
As a result of Defendant Webber, Defendant Soto, and SUPERVISORY JOHN
DOE Defendants’ knowing and deliberate failure to investigate, address, prevent, or punish
discrimination, such conduct became an accepted custom and practice in the Department.
189.
By their acts and omissions, Defendant Webber, Defendant Soto, and
SUPERVISORY JOHN DOE Defendants knowingly and intentionally disregarded repeated,
pervasive, and ongoing violations of the rights of Latinos, including Plaintiffs, and knowingly
and intentionally failed to protect Plaintiffs and other Latino members of the public, thus
subjecting them to violation of their rights under the Fourth Amendment right to be free from
unreasonable searches and seizures, their due process rights under the Fifth and Fourteenth
amendments, and their Fourteenth Amendment right to equal protection under the law and
42 U.S.C. § 1983.
190.
Defendant Webber, Defendant Soto, and SUPERVISORY JOHN DOE
Defendants further failed in their superintendent duties with regard to violations of Plaintiffs’
rights under the Fourth Amendment right to be free from unreasonable searches and seizures,
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their due process rights under the Fifth and Fourteenth amendments, and their Fourteenth
Amendment right to equal protection under the law, in violation of 42 U.S.C. § 1983.
Seventh Cause of Action
Claims of All Named Plaintiffs Pursuant to 42 U.S.C. § 1983 against Defendant Suffolk
County and Defendant SCPD for Violations under the Fourth, Fifth, and Fourteenth
Amendments
191.
Defendant SCPD, Defendant Suffolk County, Defendant Commissioner Webber,
Defendant Soto, SUPERVISORY JOHN DOE Defendants, Defendant Greene, Defendant
Dormer, and JOHN DOE Defendants have sanctioned a policy, practice, and/or custom of
stopping and searching individuals without the reasonable articulable suspicion of unlawful
activity required by the Fourth Amendment and based solely on their ethnicity and/or national
origin in violation of the Equal Protection Clause, often culminating in the wrongful deprivation
of personal property (money) pursuant to the Fifth Amendment and/or the issuance of unlawful
traffic citations.
192.
The individual Defendants’ constitutional violations were and are directly and
proximately caused by policies, practices, and/or customs enforced, encouraged, and sanctioned
by Defendant SCPD and Defendant Suffolk County, including but not limited to:
(a)
SCPD Commissioner Richard Dormer’s 2007 order to officers to arrest any
person operating a motor vehicle who is not licensed if they are unable to offer
another form of identification, and Commissioner Webber’s refusal to rescind
such a policy currently in use today;
(b)
the failure to develop and implement an adequate early warning system to
determine whether the number of stops and/or tickets issued involving Latinos
was excessive based upon a peer review system of each SCPD police precinct to
account for the local driving population variations and traffic volume for the
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county, and to review the demographic information regarding persons who were
stopped, searched, and/or ticketed to determine whether any particular group of
persons was being unlawfully targeted so as to properly and adequately monitor
and discipline SCPD officers;
(c)
the failure to adequately screen, train, and supervise SCPD officers, including the
individual police officer defendants, as to the reasonable, justifiable and proper
and improper circumstances for stopping and/or searching Latinos in Suffolk
County;
(d)
the encouragement of and failure to rectify Defendant SCPD’s custom and
practice of targeting Latinos for unfounded race-based stops, frisks, searches, and
detentions, culminating in either the wrongful deprivation of personal property
(money) or the issuance of unjustified, yet costly, traffic citations; and,
(e)
the failure to adequately investigate alleged crimes and police misconduct
perpetrated against Latinos in an even-handed, race-neutral fashion.
193.
These failures reflect a deliberate indifference on the part of each Defendant with
respect to the Fourth, Fifth, and Fourteenth Amendment rights of the named Plaintiffs. As a
result of the policies, practices, and/or customs of Defendant SCPD and Defendant Suffolk
County, the other individual Defendants expected that their actions would not be properly
monitored by supervisory officers and that misconduct would be tolerated and encouraged. This
belief was a substantial factor causing their unlawful conduct.
Therefore, as a direct and
proximate result of these enumerated failures, Defendant SCPD and Defendant Suffolk County
as well as the above named individual Defendants deprived Plaintiffs of their constitutional right
to be free from unreasonable searches and seizures and other discriminatory practices and
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unlawful conduct, as well as their right to equal protection under the law, and are liable to
Plaintiffs under the Fourth, Fifth, and Fourteenth Amendment, as well as 42 U.S.C. § 1983.
194.
The named Plaintiffs have no adequate remedy at law and fear that they will
continue to be stopped, searched, and/or otherwise harassed and treated in a discriminatory
manner by SPCD officers unless Defendants are enjoined from continuing Defendant SCPD’s
unconstitutional policies, patterns, and/or practices.
Eighth Cause of Action
Claims of All Named Plaintiffs #1-4, #6-10, and #12-21 Against Defendants Greene and
Dormer for Conversion
195.
Defendant Greene and Defendant Dormer unlawfully took money from Plaintiffs
#1-4, #6-10, and #12-21 during the course of the unjustified and unlawful stops. Plaintiffs #1-4,
#6-10, and #12-21 had legal ownership over the money in their possession when they were
stopped by Sergeant Greene and Defendant Dormer. (See, e.g., ¶¶ 78-82; 90-131.)
196.
By the actions described above, Defendant Greene and Defendant Dormer
violated Plaintiffs #1-4, #6-10, and #12-21’s possession or right to possession of that money and
are liable to Plaintiffs #1-4, #6-10, and #12-21 for conversion of property.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray that the Court grant them relief as follows:
(a)
Certify this case as a class action under Rule 23;
(b)
Enter a declaratory judgment finding that the actions of Defendants alleged in this
Complaint violate Plaintiffs’ constitutional rights as guaranteed under the Fourth,
Fifth, and Fourteenth Amendments.
(c)
Enter a preliminary and permanent injunction barring Defendant from continuing
to engage in the unlawful, discriminatory conduct alleged in this Complaint;
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(d)
Enter a preliminary and permanent injunction directing that Defendants take all
affirmative steps necessary to remedy the effects of the discriminatory conduct
alleged in this Complaint and to prevent repeated occurrences in the future,
including but not limited to:
(i)
the adoption, institution, and implementation of policies designed and
intended to prevent such wrongful acts in the future, including but not
limited to the adoption, institution, and implementation of an early
warning system compliant with standard best police practices as
recommended by the DOJ.
a. SCPD’s IAPro system shall be amended to collect traffic stop data
detailing why officers commence a traffic stop at the initiation or
inception of a stop prior to exiting the vehicle, rather than upon
completion of the stop as presently mandated by SCPD policies in
effect.
b. Analyses of traffic stop data collected pursuant the early warning
system shall be performed and include studies using a peer officer
comparison review system, in which the data of stops and other
activity of any given SCPD officer will be compared to other
SCPD officers working in the same location or on the same detail.
c. A court-appointed independent monitor shall supervise the
analysis of all data collected and tabulated by the SCPD early
warning system and any problem officers subsequently identified
for further scrutiny and/or reprimand through such a system for a
five year review period, subject to renewal based upon SCPD
performance.
Accordingly, the independent monitor shall
facilitate and oversee quarterly command staff meetings to discuss
officers who have been flagged by SCPD’s early warning system
and appropriate actions to be taken as well as any mitigating
circumstances and data to be considered. The independent
monitor shall issue recommendations to SCPD supervisors
regarding what remedial measures should be undertaken to
address individual problem officers and report back to the Court
with respect to the sufficiency of all remedial actions, monitoring
and/or intervention undertaken by SCPD supervisors on a sixmonth reporting cycle. The costs associated by this oversight are
to be covered by the SCPD.
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(ii)
the appointment and authorization of a Special Master or Monitor to
review the Department of Motor Vehicle Records of those Class members
identified and expunge all traffic citations received as the result of an
illegal and pre-textual motor stop by the individual as of yet unnamed
SCPD JOHN DOE Defendants as well as Defendants Greene and Dormer;
(iii)
the institution of an independent Citizen Complaint Review Board for
Suffolk County with the power to receive, investigate, hear, make findings
and recommend action upon complaints by members of the public against
members of the SCPD that allege misconduct involving excessive use of
force, abuse of authority, discourtesy, or use of offensive language,
including, but not limited to, slurs relating to race, ethnicity, religion,
gender, sexual orientation and disability.
The findings and
recommendations of the Board, and the basis therefore, shall be submitted
to the Monitor and SCPD Police Commissioner for appropriate remedial
action directed at the SCPD officers involved.
(iv)
the adoption, institution, and implementation of a policy governing the
regular public disclosure of all data related to SCPD’s early warning
system as well as all analyses of said data conducted without regard to
whether the data indicates the presence or absence of racial profiling,
including but not limited to the traffic stop data collected.
(v)
adoption, institution, and implementation of a comprehensive training
regimen for police officers and officials, including intensive ethics
training, designed and intended to minimize the risk that such wrongful
acts will occur in the future; and,
(vi)
the appointment and authorization of a Special Master or Monitor to
assess the eligibility of Class members for U-Visas certifications based
upon whether they have been helpful, are being helpful or are likely to be
helpful in the investigation or prosecution of qualifying criminal activity
and endorse United States Citizenship and Immigration Services Form I918 Supplement B, U Nonimmigrant Status Certification regarding the
same.
(e) Award compensatory damages in an amount to be determined at trial that would fully
compensate the Plaintiffs and other Class members, plus prejudgment interest, for the
economic loss, humiliation, embarrassment, physical injury, and mental and emotional
distress, including, but not limited to, loss of self-esteem and continued stress and anxiety
caused by Defendants’ violations of the law alleged in this Complaint;
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(f) Award punitive damages to Plaintiffs and other Class members in an amount to be
determined at trial that would punish Defendants for the willful, wanton, and reckless
misconduct alleged in this Complaint, and that would effectively deter Defendants from
future discriminatory behavior;
(g) Award Plaintiffs and other Class members their reasonable attorneys’ fees, expert fees,
and costs; and
(h) Order all other relief deemed just and equitable by the Court.
Dated: May 18, 2015
New York, New York
/s/ Juan Cartagena______ ________
/s/ Elan DiMaio_____________________
Juan Cartagena
Nancy M. Trasande
Foster Maer
LatinoJustice PRLDEF
99 Hudson St. - 14th Floor
New York, NY 10013
Tel: (212) 219-3360
Fax: (212) 431-4276
Email: [email protected]
Email: [email protected]
Email: [email protected]
Elan DiMaio
Zach Bench
SHEARMAN & STERLING, LLP
599 Lexington Avenue
New York, New York 10022-6069
Tel: (212) 848-4000
Fax: (212) 848-7179
Email: [email protected]
Email: [email protected]
Heather L. Kafele
SHEARMAN & STERLING LLP
801 Pennsylvania Ave., NW, Suite 900
Washington, DC 20004
Tel: (202) 508-8000
Fax: (202) 508-8100
Email: [email protected]
Attorneys for Plaintiffs
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Litigating and Advocating for Social Change
Panelist Bios
Deborah N. Archer
Co-Director of the Impact Center for Public Interest Law
An expert in the areas of civil rights and racial discrimination, Deborah N. Archer is a Professor of Law, CoDirector of the Impact Center for Public Interest Law and Dean of Diversity and Inclusion. Dean Archer was
previously an assistant counsel at the NAACP Legal Defense and Educational Fund, Inc., where she
litigated at the trial and appellate level in cases involving affirmative action in higher education, employment
discrimination, school desegregation, and voting rights. She was also a Marvin H. Karpatkin Fellow with the
American Civil Liberties Union, where she was involved in federal and state litigation on issues of race and
poverty. Prior to joining New York Law School, Dean Archer was an associate at Simpson, Thacher &
Bartlett LLP.
As Co-Director of the Impact Center, Dean Archer works with students and faculty to leverage the power of
law and legal education to advance social justice, enrich the professional development of NYLS students,
and have a positive impact on public interest law. And, as Director of the Racial Justice Project, she
continues to work to protect the constitutional and civil rights of people of color and increase public
awareness of racism, racial injustice, and structural racial inequality. Dean Archer has also participated as
amicus counsel in several cases before the U.S. Supreme Court and U.S. Courts of Appeal, including Ricci
v. DeStefano, Fisher v. University of Texas, Shelby County v. Holder, and Texas Dept. of Housing and
Community Affairs v. The Inclusive Communities Project.
Dean Archer graduated with honors from Smith College in 1993 and was awarded her J.D. from Yale Law
School in 1996. She clerked for Judge Alvin Thompson in the United States District Court for the District of
Connecticut. Dean Archer is a member of the National Board of Directors of the American Civil Liberties
Union and the Executive Committee of the Board of Directors of the New York Civil Liberties Union. She
was selected as an Aspen Ideas Festival Scholar and has also served on the Association of the Bar of the
City of New York’s Civil Rights Committee and on the Committee on Civil Rights of the New York State Bar
Association.
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Juan Cartagena
President and General Counsel, Latino Justice
LatinoJustice: http://latinojustice.org/
Juan Cartagena is President and General Counsel of LatinoJustice PRLDEF. He is a constitutional and civil
rights attorney who has vast experience litigating cases on behalf of Latino and African American
communities in the areas of voting rights, employment discrimination, language rights, access to public
education for poor and language minority children, and housing.
He formerly served as General Counsel and Vice President for Advocacy at the Community Service
Society of New York. At CSS he also directed the Mass Imprisonment & Reentry Initiative which focuses on
the effects these policies have on poor and minority communities. In the 1990s he worked at the
government of Puerto Rico's Department of Puerto Rican Community Affairs in the United States where he
served as Legal Director. Previously, he was Associate Counsel at the Community Service Society and
before that he worked as a Staff Attorney at the former Puerto Rican Legal Defense & Education Fund
(now LatinoJustice PRLDEF).
Mr. Cartagena is a former Municipal Court Judge in Hoboken, NJ. From 2005 to 2011, Mr. Cartagena also
served as General Counsel to the Hispanic Bar Association of New Jersey.
A graduate of Dartmouth College and Columbia University School of Law, Mr. Cartagena lectures on
constitutional and civil rights issues at Rutgers University in New Brunswick. He has written numerous
articles on constitutional, human and civil rights laws, and has been recognized for his work on the political
representation of poor and marginalized communities – especially Puerto Rican and Latino communities.
His current research interests include the effects of mass imprisonment on Latino, and particularly Puerto
Rican, communities, unlawful trespass arrests as an element of the NYPD’s stop and frisk practices, and
employment discrimination issues affecting persons with previous criminal histories.
His work on a national level with the Voting Rights Act, the National Voter Registration Act and the Help
America Vote Act led to invitations in 2005-2006 to testify before the U.S. House and Senate on the
reauthorization of the Voting Rights Act and its effects on Latino communities in New York and New Jersey.
Mr. Cartagena has served on numerous boards of community-based organizations and government task
forces in New York and New Jersey, including, most recently, Governor Paterson’s Task Force on
Transforming New York State’s Juvenile Justice System and Governor Corzine’s Blue Ribbon Advisory
Panel on Immigrant Policy. He has received numerous awards for his contributions to the field of civil rights
law, among them the Freedom Fighter Award, Jersey City NAACP; Liberty Bell Award, Superior Court of
New Jersey – Hudson Vicinage; Martin Luther King, Jr. Social Justice Award, Dartmouth College; 2006
Professional Lawyer of the Year Award, New Jersey Commission on Professionalism in the Law; Felix A.
Fishman Award, New York Lawyers for the Public Interest; Legal Services Award, New York City Bar
Association
Mr. Cartagena lives with his family in Jersey City. He is active in various community activities including
cultural activities that highlight the diversity of Jersey City’s neighborhoods.
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Donna Lieberman
Executive Director, New York Civil Liberties Union
New York Civil Liberties Union: http://www.nyclu.org/
Donna Lieberman has been executive director of the New York Civil Liberties Union since December 2001.
She has also served as the associate director (1988 - 1993) and founder/director of the NYCLU
Reproductive Rights Project (1990 - 2000).
Under Lieberman's leadership the NYCLU has expanded the scope and depth of its work, supplementing
and strengthening the pursuit of litigation with an aggressive legislative advocacy and a field organizing
program that works on behalf of civil liberties and civil rights. As a result, the organization is widely
recognized as the state's leading voice for freedom, justice and equality, advocating for those whose rights
and liberties have been denied, especially for those most marginalized by society. Its accomplishments
have included the following:
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Reforming the Rockefeller Drug Laws through an aggressive, statewide campaign that educated the
public and help persuade legislators to end more than three decades of injustice by substantially
revising New York State’s notoriously harsh and ineffective mandatory minimum drug sentencing
scheme; and by publishing a report, The Rockefeller Drug Laws: Unjust, Irrational, Ineffective, which
synthesized the legal, social and economic arguments and research supporting the call for
comprehensive reform.
Protecting protest by publishing two major reports on police tactics at demonstrations (Arresting
Protest, which documented unlawful police interference with protesters at the February 15, 2002 antiwar demonstration on the eve of the Iraq war, and Rights & Wrongs at the RNC, which covered the
2004 Republican National Convention); deploying hundreds of protest monitors out of the “Protecting
Protest” storefront office near the convention center; prevailing in major post-convention litigation
challenging the NYPD’s “command and control” tactics, which interfered with the right to protest, and
challenging the unlawful arrest, detention and fingerprinting of demonstrators at the convention; and
uncovering the NYPD’s massive and unlawful political surveillance operation.
Fighting for families by prevailing in a landmark lawsuit in which a state appellate court unanimously
ruled that New York State must recognize the marriages of gay and lesbian couples who were lawfully
married in other states or countries (Martinez v. County of Monroe);
Challenging the government’s misuse of the national security interest as a pretext for violations of
individual rights, including the Bush administration’s use of torture, the detention at the U.S.-Canada
border of American citizens who attend Islamic conferences (Tabbaa v. Chertoff), the FBI’s use of
secret National Security Letters and corresponding gag orders (Doe v. Holder), and the federal law
giving government agents virtually unchecked power to intercept Americans’ international e-mails and
telephone calls (Amnesty v. McConnell).
Protecting students’ rights in the context of aggressive military recruitment by prevailing in a lawsuit on
behalf of high school students challenging illegality in the Department of Defense military recruitment
data mining operations (Hanson v. Rumsfeld); by publishing a report, We Want You(th)!, documenting
the New York City Department of Education’s failure to protect students’ privacy and prevent
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aggressive military recruiting in the public schools; and leading a nationwide campaign to help students
protect their right to withhold personal contact information from military recruiters and to put an end to
excessive and abusive military recruiting tactics in the schools.
 Reframing the debate on surveillance of lawful activity in New York by pursuing the decades old
Handschu lawsuit, which limits political surveillance by the NYPD; publishing a major report, Who’s
Watching?, that examines the scope and impact of unregulated public and private video camera
surveillance on the rights of privacy, speech and association; and challenging the NYPD and U.S.
Department of Homeland Security’s refusal to disclose their plans to create a massive surveillance
system in lower Manhattan (NYCLU v. NYPD, NYCLU v. U.S. Dept. of Homeland Security).
 Defending pregnant and parenting women from discrimination by prevailing in a pregnancy
discrimination lawsuit on behalf of six Suffolk County police officers forced to take unpaid leave after
the department denied them light duty assignments (Lochren v. Suffolk County); and successfully
representing women who have been discriminated against for breastfeeding in public (King v. Fossil).
 Exposing and challenging racial profiling and other misconduct by law enforcement obtaining access to
the NYPD’s electronic database of more than 2 million stop-and-frisk encounters, the vast majority of
which involved people of color who had committed no crime; and by publishing a report, Mission
Failure: Civilian Review of Policing in New York City 1994-2006, which raised awareness among the
public and lawmakers about the need to strengthen the city’s Civilian Complaint Review Board.
 Confronting aggressive policing in public schools by publishing Criminalizing the Classroom: the Overpolicing of the NYC Schools, which stirred major public debate over the aggressive and
counterproductive over-policing that has plagued New York City schools and cheated students out of
nurturing educational environments since the NYPD took control of school safety in 1998; by publishing
Safety With Dignity: Alternatives to the Over-Policing of Schools, which documenting the successes of
six New York City public high schools in maintaining safe, nurturing educational environments without
using metal detectors, aggressive policing and harsh disciplinary policies; and by leading a campaign
to bring transparency and accountability to the unchecked police presence in New York City’s public
schools.
 Fighting for due process for indigent defendants by filing a lawsuit against New York State on behalf of
20 defendants in Onondaga, Ontario, Schuyler, Suffolk and Washington counties challenging the
state’s failure to provide them constitutionally adequate public defense services (Hurrell-Harring, et al.
v. State of New York).
Lieberman began her public interest legal career as a criminal defense lawyer in the South Bronx office of
the Legal Aid Society, and she later acted as executive director of the Association of Legal Aid Attorneys,
UAW. She served on the faculty of the Urban Legal Studies Program at City College for nearly a decade.
She appears regularly in local and national news coverage and on op-ed pages throughout the state. She
also speaks frequently at local and national events on reproductive rights, police practices, freedom of
speech, and other civil liberties and civil rights issues.Lieberman graduated magna cum laude from Harvard
in 1970 and earned her J.D. from Rutgers University School of Law in 1973.
Publications
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“The Danger of Remaining Silent.” It’s a Free Country. Eds. Goldberg, Danny, Victor Goldberg and Robert
Greenwald. New York: RDV Books/Akashic Books, 2002. 143-148.
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Diller, Rebekah, Donna Lieberman, Tiffany Miller. “Legal Issues in Healthcare of Adolescents.” Adolescent
Sexual Development and Sexuality. Eds., Gaffney & Roye. Kingston, NJ: Civic Research Institute, 2003.
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Chu, Yueh-ru, Rebekah Diller, Jessica Feierman, Jaemin Kim, Donna Lieberman, Anna Schissel.
Teenagers, Healthcare and the Law. New York: NYCLU, 2002.
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Benjamin, Elisabeth Ryden, Annie Keating, Donna Lieberman, Jana Lipman, Anna Schissel, Miriam Spiro,
Cassandra Stubbs. The Rights of Pregnant and Parenting Teens. New York: NYCLU, 2002.
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“Legal Issues in the Reproductive Health Care of Adolescents.” Journal of the American Medical Women’s
Association volume 54, Number 3. (Summer 1999). Written with Jessica Feierman.
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“Physician-Only and Physician Assistant Statutes: A Case of Perceived, but Unfounded Conflict.” Journal of
the American Medical Women’s Association volume 49, Number 5. (September/October 1994) Written with
Anita Lalwani.
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Numerous op-ed pieces and NYCLU reports.
Recent Awards
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The New York State Bar, the Association’s Civil Rights Committee, and Committee on Minorities in the
Profession Haywood Burns Memorial Award, 2008.
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Honored by the New York State Senate and recipient of Senate Proclamation and Legislative Resolution,
2009.
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Vincent Warren
Executive Director, Center for Constitutional Rights
Center for Constitutional Rights: http://ccrjustice.org/
Vincent Warren is the Executive Director of the Center for Constitutional Rights. He oversees CCR's
groundbreaking litigation and advocacy work, which includes using international and domestic law to hold
corporations and government officials accountable for human rights abuses; challenging racial, gender and
LGBT injustice; and combating the illegal expansion of U.S. presidential power and policies such as illegal
detention at Guantanamo, rendition, and torture. Prior to his tenure at CCR, Vince was a national senior
staff attorney with the American Civil Liberties Union, where he litigated civil rights cases, focusing on
affirmative action, racial profiling, and criminal justice reform. Vince was also involved in monitoring South
Africa's historic Truth and Reconciliation Commission hearings, and worked as a criminal defense attorney
for the Legal Aid Society in Brooklyn. Vince is a graduate of Haverford College and Rutgers School of Law.
Vince is a frequent guest on MSNBC’s Melissa Harris Perry Show, The Reid Report, and Up with Chris
Hayes, and has appeared on Moyers & Company with Bill Moyers. His writing has been featured in the
New York Times Room for Debate, on the Huffington Post, and on CNN.com, among many publications.
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