Tag Archives: judicial policy

Frightening beyond words

I know, I know.

I’ve heard all the arguments about how the Voting Rights Act isn’t dead, about how there are still lots of options for those alleging infringement of their civil rights, about how the Supreme Court’s June ruling really only tinkers with this fundamental human rights protection.

And, you know, standing on the Edmund Pettus bridge in Selma this summer,

I’m.Just.Not.Buying.It.

What’s scary to me this Halloween?

That our Supreme Court could honestly think that, somehow, history couldn’t repeat itself. That racism is over. And that getting a lawyer to fight for your right to vote is anything like equal citizenship.

That’s just frightening.

I have often found myself wishing that those who, today, take their right to vote for granted would have to pass a citizenship test, witnessing what aspiring Americans go through for the same chance to help shape our democracy.

I’ve altered that: now I wish that we all had to walk in the steps of John Lewis and the freedom fighters whose steps marked a generation and threw down a gauntlet that changed us forever.

It was an incredibly powerful walk across that bridge, imagining the fear and remembering how, just a few weeks before, the highest court in the United States prematurely declared that the fight was won.

We must not only not forget. That suggests that this is, somehow, a relic of history.

We must, instead, keep walking.

To do otherwise is too scary to contemplate.

Beach 313sm
Ready to walk

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Sobbing with every step

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My husband knew I would want this picture

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The church where courage was forged

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The What: Maintaining the balance of powers

OK, so, I’m cheating a little bit for this last post of “what week”, because, while this is about a policy itself, it’s one that would–in fundamental and actually quite frightening ways–affect the how of policymaking, too.

In Kansas this legislative session, and in some other parts of the country, too, there have been explicit attempts to cut the judiciary out of the policymaking process.

In my state, this has taken the form of a proposed constitutional amendment to stipulate that only the legislature has the authority to determine what appropriate funding for public education is, so that, essentially, the ‘right’ level of funding is whatever the legislature decides to give, and students and schools would lose their right to seek redress from the courts.

It would be damaging to public education.

And it would be a really dangerous precedent.

History is replete with examples of when judicial advocacy has been a successful path to social justice. Even when individual justices, or even the entire judiciary, is fairly conservative, the way in which the court operates can sometimes lead to surprising conclusions.

In ways that are really promising for the pursuit of the ideals on which the country was founded.

Individuals with disabilities entitled to access, people of color pursuing equal opportunity, gays and lesbians seeking the right to marry…all deserve to have all of the channels of our government open to them.

Sometimes social workers, as advocates, can lose sight of the importance of some of these ‘process’ threats. We have not been very active in the campaign finance debate. We tend to be absent in the fights over collective bargaining rights.

And, so far, at least in Kansas, social workers have not been very present in the constitutional amendment battle about the role of the judiciary, either. Maybe, in part, that’s because school finance isn’t seen as ‘our fight’. And there are plenty of things that are. This session alone, we’ve faced budget cuts, more tax restructuring, drug testing TANF recipients, and elimination of some early intervention programs. Among others.

But if we lose on these ‘whats’, we will find ourselves with very constrained options for pursuing tomorrow’s ‘hows’.

If the other side changes the rules of the game, we will find it harder and harder to win.

It’s certainly not that the judiciary is always a slam-dunk for justice.

But it’s part of the system that, over time, has worked better for securing liberties than any other. And we face far better odds with the courts at the table than without.

So, this, too, has to be our fight.

The What: We Still Need Voting Rights

More ‘whats’, in policy change.

Or, in this case, policy not-change.

Because, let’s be real:

We still need The Voting Rights Act.

We’re in the era of evidence-based policymaking, right?

Has there ever been a more successful piece of civil rights legislation in the history of the U.S.? No, really?

And so the idea that its very effectiveness is reason to scrap it is not just offensive (and it is; I am fairly chilled by hearing an Alabama official refer to ‘state sovereignty’ as reason to oppose a federal civil rights law). It’s dangerous.

I’m all for the role of the courts in policymaking (more on that tomorrow).

I just think that the U.S. Supreme Court should rule that the Voting Rights Act stands.

I’m glad that there’s a tremendous amount of advocacy going on, even while the Court deliberates.

If you haven’t already checked out these compelling videos showing how VRA provisions in various affected states are making a difference in how people can exercise their civic rights, check them out.

Look at this really great (although, again, disturbing) infographic on why we still need the Voting Rights Act.

You can’t call Antonin Scalia to point out that, Mr. Justice Sir, the right to vote is not a “racial entitlement”, because, um, voting isn’t an entitlement. That’s why it’s called the Voting Rights Act (He, of course, took objection to that, too, supposedly because it makes the legislation too popular for members of Congress to vote against? Como on, two members of the Kansas congressional delegation voted against the Violence Against Women Act, for crying out loud. These people are not afraid of catchy names.)

But you can tell everyone who will listen (friends, family, neighbors, the guy waiting at the post office) that, yes, we still need the VRA. We still need voting rights, in this age of photo identification and proof of citizenship and long lines at fewer polling places.

People bled for the right to vote in Alabama. That history leaves scars, not just on individual psyches but on institutions and ways of doing business.

That is why we need the Voting Rights Act.

Still.

Supreme Stakes

It’s the first Monday in October.

And here’s all I really want to say:

It has been a really big year for the judicial system (Um, the ACA, anyone?), in policymaking, and (in the crystal ball that I don’t really have) I see that continuing for quite a while.

With such polarization in the legislative and executive arenas, there is a lot of ‘envelope-pushing’ these days. And, when envelopes are pushed, sometimes details can get overlooked.

Like the Constitution.

I think we’ll see a lot more anti-immigrant legislation, which, while the Supreme Court has already green-lighted many of the Arizona-style provisions, is still likely to run afoul of preemption and equal protection, in particular, in legislators’ zealousness to ‘out-anti-immigrant’ each other.

It’s easy to imagine that Kansas might be the site of a showdown over abortion rights, and that that battle could end up in court. Kansas, too, is likely to abdicate its constitutional responsibilities in education, and many states are seriously failing students of color, in particular, in ways that invite court action. Depending on what happens in the November elections, we could see another attempt at campaign finance reform legislation, which could challenge some of the findings in the Citizens United decision.

What does this mean, on this October 1st?

That social workers had better be paying close attention, not just to the decisions that courts hand down, but to the issues where they should be asked to decide, too.

We have three branches for a reason and, even though we certainly can’t guarantee the outcome when we turn to the courts, we can’t afford to ignore one of the tools at our disposal.

The stakes are high, as I imagine the founders knew they would be, and we just might need to go to court.

A lot.

The Legacy of Brown: We Must Not be Bought

Not long ago, I stood with my oldest son at the Brown v. Board of Education National Historic Site in front of a photo that contrasted a segregated school for African Americans in South Carolina (one-room schoolhouse with sagging shingles and missing boards) with a rather opulent school (large brick building) for white students.

The “unequal” part was obvious, and even more glaring than the “separate”.

Looking at those pictures, I remembered a section of The Race Beat, a book I read recently about journalists who covered the civil rights movement, that described the efforts of some segregationists in both the North and South who were eager to spend more on schools for children of color, especially in the lead-up to the Brown v. Board of Education decision.

Because they were willing to pay a lot to maintain the status quo.

That’s how much maintaining an oppressive system was worth.

Holding hands with my son, who started Kindergarten in public school this year, I was thinking about those brave parents, the ones whose names are on the collection of lawsuits that, together, became known as Brown v. Board. And wondering whether they were ever tempted, as I would have been, if my child had been in that rickety schoolbuilding, to take the money.

Even knowing what it cost.

Obviously, our entire country has benefitted tremendously from their refusal to be bought. They understood that separate could never be equal, and they knew that their little boys and girls deserved integrated schools and the access to power and full participation that only integration can bring, rather than a spiffed-up segregated school, with better-paid teachers and textbooks in the classrooms.

They were right, and they were patient in that impatient about injustice but amazingly able to wait for real solutions way, and their intransigence was a witness that sparked the greatest movement for social equality our country has ever seen.

And the next thing I thought, as my son’s attention moved on to the next part of the exhibit, was…

I hope we can be as brave. And as tough. And as smart.

Times are tough, these days, for social service nonprofit organizations and for many of those we serve. We’re perennially out of money, and in begging-mode, and we are confronting serious challenges in a political context that’s often impervious to our sufferings.

That’s a dangerous combination, because it can breed a desperation that can push us to accept compromises that we know take us backwards, concessions that violate our most honored principles.

I see it when private organizations join together to pay for public services that the state has abandoned–we’re reaching for a Band-Aid because the need is so urgent, but we’re excusing public abdication of responsibilities core to our social contract.

I see it when organizations scramble to align themselves with even objectionable programming opportunities (“marriage promotion“, anyone?), because they’re trying to find ways to stay afloat, and to curry favor with government officials.

I even see it in myself, when I’m reluctant to take an Administration on on one front because we’re still negotiating on another–no, it’s not money at stake, but something arguably more valuable–my integrity.

I’m sure Linda Brown’s parents wanted her to go to a nice school. They may have even been approached with offers of upgrades, if they would just “be quiet”.

We need to all be thankful that they did not.

And we must, in the words of the song to which my 3 oldest kids and I danced in the gallery of the Brown site, in what used to be a school only for children with a certain color skin, we must not be moved.

Or bought.

Even when we don’t like the outcome…

Photo courtesy of the Library of Congress

Maybe you’re not like me, but some moments stick in my mind, serving as powerful lessons of critical truths, primarily because…

I was so totally, abjectly, entirely wrong.

One of those moments came back to me last week when I was talking with some students about judicial policymaking and the significant strides for social justice that have been made through the court system (yes, I have the coolest job ever).

One of my students responded pretty vociferously that such decisions, while fortunate and even laudable from our particular perspective, are still concerning, because they happen in an “undemocratic” judicial system over which we have very little influence, in terms of the traditional levers of public pressure. She raised the Citizens United ruling on campaign finance as a glaring example of how court decisions can, in their trademark “fly in the face of public opinion” way, just as easily go against us, as for us.

And she’s not wrong, of course. From Plessy v. Ferguson to the present day, the annals of judicial policymaking in the United States (whether or not the courts want to acknowledge it as, in fact, “judicial policymaking”) are littered with cases that, from the perspective of social work values or our vision of justice, went the “wrong way.”

And yet.

The moment that came back to me was when, as I crafted the press release about the Federation for American Immigration Reform’s lawsuit against Kansas’ instate tuition law for immigrant students, I was powerfully reminded of the role that our judicial institutions play in protecting the rights of the vulnerable, and serving as a true check on other forms of power. I thought that my line, in the release, about opposing this “appeal to the courts to overturn legislation adopted democratically by elected Kansans” was a strong argument. After all, what’s not to like about majority rule?

A lot, actually.

One of our partners on the legislative advocacy to pass the instate tuition law was quick to call me, in response to the draft I circulated. He pointed out that we were, at the same time, hoping that the Kansas Supreme Court would call the legislature on its woefully inadequate school finance formula, in particular the way that it fails our lowest-income districts. He (pretty kindly, it must be said) noted that the instate tuition case would be heard down the street from the Brown v. Board of Education National Historic site, a brick and mortar representation of how majority rule can be so dangerous, and how courts can, in fact, spark a revolution.

He didn’t say, and he didn’t have to, that we can’t have it both ways.

Our judicial system is an indispensable part of our governance, when we celebrate it (thanks, SCOTUS, by the way, for refusing to hear the appeal of the California instate tuition lawsuit last summer!) and when we loathe it.

And access to that judicial system, and continual attention to its integrity, must continue to be rallying points for social justice advocates. Like it or not.

I took that line out of the press release.

And we won the case. And the appeal.

But even when we lose, I’m glad the courts are there.

What lessons for advocates in Roe v. Wade?

Opposing sides from last year's commemorative march

The U.S. Supreme Court issued its decision in the Roe v. Wade case almost 38 years ago, on January 22, 1973.

More because I finally got around to it than because I have such a keen sense of timing, I just finished reading Wrath of Angels, a quite compelling story of the battle over abortion in the United States, co-written by an investigative reporter from Kansas City who I know somewhat from her work on extremist groups associated with the anti-immigrant movement.

But, really, this post isn’t about abortion.

Instead, when I looked back at the pages I’d marked as I read, I found that what resonated with me the most were the lessons that this extraordinarily contentious, long-lived, and influential debate holds for advocates in other social justice arenas, as a sort of extreme case study that crosses multiple policy jurisdictions and has left a mark on all of American politics.

  • Public opinion may be more malleable, and more fickle, than we think. Several observers have called Roe v. Wade the ‘fastest social revolution in history’, but, just 7 years after the Supreme Court decision (issued contrary to American public opinion, which was mostly opposed to abortion), opinion polls showed considerable alignment with the expansions of reproductive freedoms the decision codified, as well as the limitations it embraced. To me, this suggests that social justice advocates should not necessarily focus as much energy on bringing “the public” to our side, but rather on working through policy mechanisms to force the changes we know our communities deserve, creating space for the rest of the nation to catch up.
  • We must be ready to fight on multiple fronts at the same time. Advocates on both sides of the abortion issue struggled to cope with a suddenly nationalized debate; where once they had fought state-by-state, building relationships with those policymakers and studying those processes, overnight they were dealing with a national issue that required a national strategy. I see a similar dilemma in the movement for immigrants’ rights; while congressional passage of comprehensive immigration reform is the end goal, advocates are also playing defense against restrictive state legislation and trying to advance something progressive at the state level as federal action remains elusive. It’s hard to play on both of these courts at the same time, particularly on an issue (like both abortion and immigrants’ rights) with important judicial tactics, as well.
  • Winning on language is huge. The anti-abortion (or “pro-life”–language figures into every aspect of this debate!) effort, in particular, has demonstrated a sophisticated understanding of the importance of definitions, as evidenced in the push to have fetuses defined as children, even in areas of policy seemingly far removed from questions of reproduction itself. When we forget that how people talk about our issues matters at least as much as what they’re actually saying, we may have already lost.
  • Sometimes, movements may need to strategically exclude. This last piece is controversial for me, especially because social workers and community organizers (and I consider myself both) are rather instinctively inclusive, but I was quite transfixed by the account of the debate within the anti-abortion camp about excluding men from all of their demonstrations, in order to avoid the charge that their cause was about men controlling women’s lives, and to provide a counterbalance to the predominantly feminist reproductive health care providers they were combating. Ultimately, this commitment didn’t last long, and the major anti-abortion organizations did come to be dominated by men. But, still, it made me think: how might I feel differently about that movement, and its role in our politics, if it was authentically led by women? Which leads me to ask, should movements exclude to send a message, given how important messages are? And THAT question raises all kinds of issues about my own work within a community that’s not my own, and the kind of message that might have sent, and whether immigrants would be better off if they excluded non-immigrants from positions of leadership within their own struggle, too.

    While, obviously, I welcome your comments and questions and responses to these reflections on the theme of Roe v. Wade’s legacy for other campaigns and other causes, I’d also love to hear from those social workers who are better scholars of this particular struggle than I, about what this anniversary means for you. This post may be more about what we can learn from this epic battle than about the battle itself, but those lessons wouldn’t exist without the sacrifices of those who have gone before.