OurFuture.org Blogs: Alan Jenkins

An American in Paris, and Beijing, and London...

Alan Jenkins — Mon, 16 Nov 2009 08:10:20 -0800

During a series of trips through Europe and Asia that I completed last week, I was reminded that the Americans with Disabilities Act really is the Americans with Disabilities Act, and why our nation should be so proud of that milestone. So many of the offices, buildings, public facilities, train and plane stations that I visited were largely inaccessible to people in wheelchairs and with other disabilities. The relative progress that America has made on this issue benefits not only people with disabilities, but all of us.

Passed by Congress and signed by the first President Bush in 1990, the ADA ensures equal opportunity irrespective of disability in employment, transportation, telecommunications, public accommodations and state and federal services. Just as importantly, the law ushered in a new mindset about who we are as a society, and what equal opportunity means in America.

Equal opportunity, the ADA has helped teach us, is not about treating people identically, but about treating all of us as equals. For example, giving people in wheelchairs “access” to the same courthouse steps offered to people who can walk up those steps—as Tennessee tried to do in an important 2004 Supreme Court ADA case—is treating people identically, but not as equals. The Court correctly held in that case, Tennessee v. Lane, that requiring George Lane to crawl up a Tennessee courthouse staircase to participate in his own trial was not only unconscionable, but illegal. (Remarkably, the Court’s four most conservative justices at that time would have held that Congress lacked the power to outlaw such state practices in this manner).

Like all steps that expand opportunity, the ADA is as much about America and all Americans as it is about people with disabilities in particular. Enforcement of the Act has enabled millions of Americans to participate fully in our economy, in our democracy, and in the social fabric of our society. That benefits all of us, and it upholds our nation’s highest values. Who knows, for example, how high our national unemployment rate would be today if the 41.2 million Americans who have disabilities, according to the US Census, were unable to participate in the jobs they are qualified to do.

At the same time, the Act has improved our thinking about what an inclusive society should mean in the 21st century. One important concept that the ADA helped to advance, for example, is “universal design,” the idea that a wide range of buildings, products, and environments can be created, from the design stage, to accommodate people with different abilities and purposes—think of how modern US sidewalks dip down to the street at the curb to accommodate people in wheelchairs, but also kids with bicycles, baby boomers with artificial knees, delivery carts, and ultimately, all of us. Conceptually and in practice, the ADA has helped our nation improve itsunderstanding and implementation of opportunity—the idea that everyone should have a fair chance to achieve his or her full potential.

My comparison to Europe and Asia is not meant to suggest that the people of those continents are somehow less concerned about people with disabilities. I saw many Parisians, for example, scramble to give up their subway seats to people with limited mobility far more quickly than my fellow New Yorkers do (when they do it at all). And there are areas in which certain countries in these continents are ahead of the global curve on this issue. My point, rather, is that, as a national law covering the private and public sectors, backed by enforcement in the courts and by the US Department of Justice, and widely covered in the press, the ADA has helped to bring transformative positive change to our country that is more than the sum of its parts.

That said, our nation, too, has important work still to be done in order to ensure fully equal opportunity irrespective of disability. Mental illness, for example, still carries inappropriate stigma in our country, and is poorly addressed by many employers, insurance providers, and others.

And on the global stage, the United States has signed, but not ratified, the international Convention on the Rights of Persons with Disabilities—meaning that the President has signed the treaty, but Congress has not yet approved US participation in it. While the convention includes many of the same protections offered by the ADA, it is an important vehicle for sharing best practices within the international community, developing knowledge about particular issues such as children with disabilities, and recognizing that equal opportunity irrespective of disability is a human right that all nations should uphold. Congress should move immediately to ratify the Convention, using the International Day of Persons with Disabilities—three weeks from now on December 3—as an impetus to at least kick off public discussion on the subject.

Other steps are also needed. The ADA is under constant legal attack from noncompliant companies and governments, and the Supreme Court has sent mixed signals regarding its reach and constitutionality—in 2008, Congress passed, and the second President Bush signed, the ADA Amendments Act, expressing the need to reinstate the full intent of the law after the Supreme Court had unduly restricted it in a line of cases. The federal government and public interest groups must hold the Court to a proper reading of the law, while showing why it is both constitutional and crucial. Companies, governments, and other institutions must provide training and support to staff on implementing the letter and spirit of the Act. And the Civil Rights Division of the Justice Department, badly in need of rebuilding after eight years of neglect, must provide clear guidance on ADA implementation, while aggressively pursuing violations of that and other equal opportunity laws.

Finally, as we approach the 20th anniversary of the ADA next year, it’s important that the law’s purpose and contributions to our nation be documented and shared widely, particularly with a younger generation of Americans who came of age after its passage. As my recent travels reminded me, advances in equal opportunity can become an invisible part of the environment over time. That’s generally a good thing, but it can also lead us to forget why they are so important. It’s crucial to explain again and again that, like the Civil Rights Acts that proceeded it, the ADA is helping America to be America.

Coming Clean on the Stimulus

Alan Jenkins — Tue, 20 Oct 2009 08:34:33 -0700

A report issued by the White House and the Education Department on Monday showed that the federal economic stimulus package (the American Recovery and Reinvestment Act) has so far created or saved 250,000 education jobs. The report is the first hard evidence of the Recovery Act’s contribution to the nation’s economic health, and previews more extensive data that will be released October 30.

The report is good news for at least two reasons. First, it documents how public investment is helping to pull the nation back from the brink of a devastating economic depression. And, second, it includes crucial information that should inform the ongoing investment of stimulus funds to achieve a full recovery—especially when it comes to job creation. In analyzing the full October data, however, it is important to ask not only how many jobs were created and what infrastructure was built, but also whether we are investing in a lasting economic recovery that will include our entire nation.

Because stimulus funds are flowing largely through traditional state and local channels, particular attention is needed to ensure that they reach the communities and populations that need them most, that distribution is fair and transparent, and that progress is measured in terms of greater and more equal opportunity for all Americans.

If the last year has shown us anything, it is that we are all in it together when it comes to the economy. When all communities have access to jobs, education and health care, and can contribute to our economy through spending, taxes, and entrepreneurship, we all do better. And when millions of our people are shut out from economic participation, we are all held back. It’s in our national interest to foster the economic participation of all Americans, and to invest in the infrastructure of opportunity, particularly where it’s been ignored in the past.

Monday’s education report includes some encouraging details on this front. It reports, for example, that schools in Lafayette, Indiana are using Recovery Act funds to extend the school day and year in two schools with the highest rates of poverty. West Hartford, CT is using funds to provide after-school math and reading help for the town’s neediest elementary schools, and Hillsborough County, FL is using its incentive pay program to attract and keep highly-qualified teachers working with the most at-risk students. Along with saving hundreds of thousands of jobs, these investments go a long way toward the Recovery Act’s education goal, which is “to stimulate the economy in the short term, while investing in education advancements to ensure the long-term economic health and success of our nation.”

At the same time, however, there continues to be a troubling lack of information about the overall accountability and equity of stimulus investments on the ground. There is no indication in Monday’s report, for example, as to whether innovative efforts to expand opportunity are the norm, or simply sporadic points of light. The report is silent, moreover, on whether African American and Latino students—who are disproportionately concentrated in our nation’s most under-resourced schools—are benefiting from stimulus investments to the extent that their pressing need and overrepresentation in our public schools would dictate. The Administration has done well in identifying such interventions as priorities, but we simply don’t know how or whether they are playing out on the ground.

The same lack of information has plagued the larger recovery effort so far. While the government’s stimulus tracking website—www.recovery.gov—offers some useful information, it is currently inadequate for determining, for example, whether jobs reach women and men on an equal opportunity basis, or whether transportation and health care infrastructure projects are serving communities that reflect comparative need and the growing diversity of our nation.

Lack of transparency has been an even bigger problem at the state and local level. Residents and community groups around the country have been frequently frustrated in their attempts to identify and participate in needed initiatives. And, with a few exceptions like New York City’s NYC Stat website, state and local stimulus tracking sites are strikingly uninformative.

Eight months into the economic recovery, the lack of transparency or a documented focus on greater and more equal opportunity is disappointing. But that can and should change, starting now. For the October 30th data release and going forward, the Administration should document online and in its reporting how each stimulus investment is or is not expanding opportunity to disconnected communities. It should disaggregate employment, education, entrepreneurial, and infrastructure data by race, gender, and disability, as well as by other demographic characteristics like rural/urban/suburban, along which opportunity has frequently been segregated.

In considering future disbursements of Recovery Act funds—some $228 billion in contracts, grants, and loans remains to be distributed—federal agencies should require fund applicants to share with the public detailed information about stimulus project choices, and to invite and consider public input in determining investments. As I have urged before in this column, governments at each level should employ Opportunity Impact Statements to ensure that greater and more equal opportunity for all residents are prioritized.

The stimulus and other timely efforts are helping to stave off an economic meltdown of catastrophic proportions. But the hard work of lasting recovery lies ahead. Moving from fiscal survival to broadly shared economic security and prosperity requires a focus on opportunity for all.

The Speech I Hope the President Will Give

Alan Jenkins — Mon, 07 Sep 2009 20:31:40 -0700

My Fellow Americans:

I speak to you tonight at a crucial moment in our nation’s history. When you elected me president almost one year ago, you voted in favor of hope, and in favor of change. You voted for the idea that we are all in it together, and that we share a common responsibility to uphold the public good. You rejected the old politics of special interests, of legislative gridlock, and the failed notion that you’re better off on your own than as part of one indivisible nation.

You called out—in veterans’ halls and in union halls, in congregations and from small businesses, in senior centers and on college campuses—that this is America and, in America, we can fix what’s broken, and we can do it together.

Tonight our nation faces a crucial test of that profoundly American resolve. Will we rise together and ensure the basic security for our people that comes from affordable, quality health insurance? Or will we allow the cynics and the fear mongers, and the entrenched interests to extinguish that hope? Can we transcend the partisan bickering and solve the biggest problems facing our nation? Can we be the country we were meant to be?

Tonight, my fellow Americans, I come to you with a clear answer to that question: Yes We Can.

We will reform our health insurance system this year. And we will reform it with one core value at its center: that health care is a basic human right, as essential to leading a productive and fulfilling life as food and shelter. It is not a consumer good. It is not a luxury. It is a public good and a human right. No one in our great nation should have to go without that human right. And starting this year, 2009, no one will.

Protecting the human right to health care is not only about those who cannot afford health insurance, or those whose insurance does not cover their actual health needs. It is not only about the elderly among us, or the sick, or about our vulnerable children and youth. It is about all of us.

When workers cannot afford the care they need, our entire nation’s prosperity suffers. When businesses that do offer coverage are crippled by spiraling costs, our entire nation’s competitiveness is in jeopardy. When half of all personal bankruptcies are due to health care related debts, our entire nation’s economic security is enfeebled. When parents cannot afford to take their children to the doctor, our entire nation’s future is at risk. And when 22,000 Americans die, as they will again this year, solely because they lack health insurance, we are failing to be the country we were meant to be.

That will not happen on my watch. And so we will reform our nation’s health care system this year. We will uphold the human right to health care, and we will do it by ensuring that any legislation that I sign includes four non-negotiable elements:

First, it will cover everyone. All the time. No preexisting condition, no change or loss of job, no red tape or clerical error will stand in the way of your access to needed care. Where you live, what you look like, where you come from, will pose no barrier to your health care coverage.

Second, it will be affordable. To everyone. I’m going to say that again. It will be affordable to everyone.

Third, it will be comprehensive. It’s both just and economically sound that the care Americans need for a healthy and productive life—preventive care, emergency care, reproductive and neonatal care, geriatric care, mental health care—must be covered.

Now if you want that Botox injection for cosmetic reasons, you may have to save up your pennies. But when it comes to basic care, you will be covered.

And fourth, it will insist upon high quality care, holding our health care system accountable to patients while supporting our nation’s committed health care professionals.

Let me be clear. I will veto any plan that does not ensure these four essential elements.

But I am confident that I will not be called upon to veto a bill. Because it is clear that the American people want reform that includes these core elements. And I am confident that their elected representatives in Congress will respond to that demand.

So we will reform our health insurance system this year. We will reform it with Republican votes if possible, but we’ll reform it solely through with our Democratic majority if necessary. There are two ways of avoiding gridlock—one is through compromise and the other is through resolve. As you know, I prefer compromise. But if good faith negotiation is not forthcoming, we will use our party’s votes in Congress to achieve the change that’s needed. That’s what a majority means in our democracy.

Now, there’s been a lot of talk about public options, cooperatives, and other tools for getting this job done. It’s important to remember that they are only tools. I continue to believe that a public option—which means that the government will stand behind the guarantee of health care coverage if and when there are gaps in privately run insurance—is the most effective way to achieve our goals. I will not be inflexible in crafting reform, but I do insist that any attack on a public option or any other tool I’ve offered be accompanied by a concrete alternative that will achieve the core goals I’ve outlined: cover everyone, be affordable to everyone, be comprehensive for everyone, ensure the highest quality care for everyone.

We’ve also seen a lot of confusion and misinformation out there about this process—some of it in good faith and some of it the result of deliberate deception. For those Americans who are understandably confused about the elements of reform, we’ll be launching a new area of the whitehouse.gov website to provide clear information and to answer questions. We will also be setting up telephone hotlines in each region of the country to answer questions and provide information. And I am encouraging every member of Congress who supports commonsense health insurance reform to prepare their constituent service staff to do the same.

I also ask you, the American people, to ask of any proposal or counterproposal that’s out there, including mine: does it cover everyone? It is affordable to everyone? Is it comprehensive for everyone? Will it ensure the highest quality for everyone?

For the small group of organizations and politicians who are intentionally deceiving and scaring their fellow Americans with falsehoods about our vision of health insurance reform, you are on the wrong side of history. And you will fail. The American people want an insurance system that protects their fundamental human right to health care and, starting today, my administration and my allies in Congress will be relentless in communicating what reform will and will not mean.

We will not be jumping to counter every outrageous claim that you may make. That’s an old Washington game that we will no longer be playing. But we will be clear, plainspoken and rigorously honest about what our vision of reform will mean for all Americans. And I call upon our nation’s news media to fulfill their important responsibility to separate fact from fiction.

One clearly legitimate concern is the cost of this plan to the American people. Health insurance reform is an investment in America’s future that we cannot afford not to make. It is also true, however, that our nation must make sacrifices in the short term in order to finance that long-term investment. In addition to the savings we’ll accrue through economies of scale and reductions in waste and fraud, affluent Americans—those who’ve benefited most from our national prosperity—will have to pay somewhat more in taxes in the short term. This should be no surprise, as it was among the promises I made during my campaign. But, over time, this investment will pay off in dollars in cents, in economic security and prosperity, and in the innovation and opportunity that it will unleash in the American people. That dividend will benefit the most affluent Americans in at least the same proportions as it will benefit our nation as a whole.

So I say to you, my fellow Americans, that at this critical moment in our history, we will rise to the challenge. We will look back upon 2009 as the year that America fulfilled the human right to health care for all of its people, and year that we made a historic downpayment on our future.

The Quiet Revolution in Criminal Justice Reform

Alan Jenkins — Mon, 10 Aug 2009 08:28:35 -0700

A panel of federal judges has ruled that conditions in California’s overcrowded prisons violate the constitution. Quoting Governor Arnold Schwarzenegger’s words from 2006, the court found that "immediate action is necessary to prevent death and harm.” The state must formulate a plan by mid-September to reduce the prison population by nearly 43,000 inmates over the next two years.

As the state scrambles to comply with the order, they should look to successful reforms in other states that are reducing crime, saving money, and upholding constitutional values.

While the nation is debating hot button issues like health care reform and economic recovery, states around the country have been quietly reforming their criminal justice laws to prioritize rehabilitation and prevention over retribution and execution.

Texas—long known for harsh criminal justice sentencing—is investing in drug courts, where people can avoid prison by undergoing treatment and submitting to close supervision by a judge. The state has also reduced its average probation time from 10 years to 5.

Maryland now has one of the country's most advanced community-based corrections programs and has made significant investments in drug treatment programs. New York has rolled back its harsh Rockefeller drug laws, under which many people have languished in prison for decades based on low-level drug convictions.

New Mexico, New York, and New Jersey have all ended the death penalty after many years. And Rhode Island has restored the right to vote to people who’ve served their time for felony offenses, with other states contemplating similar moves.

In some important instances, the federal government has quietly followed suit. In 2008, President Bush signed into law the Second Chance Act, to help people with criminal records reenter society. President Obama’s Drug Czar, Gil Kerlikowski, is pushing for treatment over incarceration. And centrist Virginia Senator Jim Webb is pushing for a blue ribbon commission on reforming the nation’s incarceration practices.

Why is this happening now? Three factors: Crime, Cost and the Common Good. Crime is at historic lows, states are strapped for cash, and they are realizing that it is in everyone’s interest to rehabilitate rather than incarcerate people forever or execute them.

These governments are finding that investing in crime prevention and the opportunity for rehabilitation promotes public safety and saves money. And they are finding that, in resisting those measures, they’ve been behind public opinion, which has favored rehabilitation for several years now.

Despite more than a decade of falling crime rates, the US has the world’s highest incarceration rate—more than one out of every 100 adults in the US is in prison or jail; that’s the highest rate in our nation’s history, and the highest in the world. But that may be starting to change. States and the federal government are increasingly investing in drug treatment over imprisonment, in community policing over aggressive sweeps of neighborhoods, and in solutions like drug courts that help people get back on track.

California can learn from examples around the country. As Prison Law Office Director Donald Specter told the LA Times, "If done right, this could be a win-win situation for the entire state, as the prisons will be safer for my clients and the staff who work there, taxpayers will save hundreds of millions of dollars a year and communities will be safer as a result."

In this economy, however, the biggest question is whether the rehabilitation programs that make these changes work—and that make them economical in the long run—will continue to be funded. Without them, we may see a new cycle of crime and over-incarceration.

Race and Law Enforcement: What We Do Know

Alan Jenkins — Tue, 28 Jul 2009 08:05:29 -0700

Only two people know what actually went down between Professor Henry Louis Gates and Sergeant James Crowley last week, and even they disagree—apparently in good faith—about what transpired. So as the two prepare to have a beer with President Obama later this week, let’s move on to a more productive conversation about race and law enforcement.

Whatever happened at Gates’s Cambridge home, Americans correctly see disparate law enforcement based on race as a serious problem that needs remedying. In a 2007 national poll commissioned by The Opportunity Agenda, 84% of Americans agreed that “when the police stop and search people solely based on their race or ethnicity they are violating their human rights.”

As many explained in subsequent focus groups, this treatment, when it occurs, is also a violation of American values. As a Caucasian participant in Columbus, OH, explained, “Life, liberty and pursuit of happiness. You’re restricting people’s ability to be happy in their life… that’s a violation of their human rights.”

Many also noted that unwarranted police stops are frequently accompanied by disrespectful treatment. As an African-American woman in Houston asserted, “the majority of the time they [police officers] mistreat them when they pull them over, they talk bad to them or hit them or disrespect them. They don’t just say, ‘May I see your driver’s license?’ They say, ‘Whatchya doing boy, why are you here? You don’t have any business over here, do you live here?’”

And we heard from many Latino participants that officers increasingly, and inappropriately, link their race and ethnicity to stereotypes about immigration status: “They should not pull you over just to ask for your papers because when you are getting pulled over they are supposed to have just cause. They need to have a reason for why they are pulling you over. They can’t just say, ‘Oh, he’s Mexican, let’s pull him over and find out if he is from here or not.’ I am Hispanic, but I was born here and that doesn’t give you the right to just pull me over for no reason at all and ask me if I am here legally. That is a violation of my rights.”

To say that racial profiling is a real problem that needs real solutions is not to dispute that the vast majority of police officers are working hard to enforce equal justice—a fact that Americans of all races also acknowledge. Indeed, one of the complexities of racial bias in law enforcement, research shows, is that it frequently occurs in settings of great subjectivity and discretion. Does a customs agent search a fidgety passenger, or let her pass? Does a traffic cop ignore a faulty taillight, or stop and ticket the driver? Does a beat cop ignore a pedestrian’s angry reaction, or push back and possibly escalate the situation to an arrest? Officers can lawfully do many things in these situations, so long as racial biases do not play a part.

Those same complexities call for clear approaches, combined with training, that rely on objective evidence and circumstances to the greatest extent possible. That’s why the Supreme Court has, for over 40 years, required officers to have an articulable suspicion of illegal conduct before stopping and frisking a passerby. It is the same reasoning that the framers of our Bill of Rights used in requiring that home searches be both “reasonable” and authorized by a warrant.

Those who fear that racial bias was afoot in the Gates-Crowley encounter are implicitly calling for an objective rule for law enforcement: when you’ve confirmed the identity and homeownership of someone, in their own home, and there is no evidence of danger or criminality, withdraw from the situation. We can’t know what’s in your heart or mind, but we do know how to minimize the possibility of bias, of escalation, and conflict that erodes public confidence in law enforcement.

Those kinds of objective approaches are especially important when it comes to criminal charges like “disorderly conduct”—the charge leveled, then dropped, against Gates. "It's probably the most abused statute in America," Eugene O'Donnell, a professor of law and police studies at John Jay College of Criminal Justice, told Time magazine. Similarly, having local law enforcement enforce federal immigration laws along with their local policing duties increases the likelihood for mistakes and bias.

So as President Obama turns down the heat on the Gates-Crowley debacle, let’s have a calm and cool conversation about the changes necessary to prevent similar situations in the future, and to rebuild trust between law enforcement and diverse communities around our country.

Wrong About Ricci

Alan Jenkins — Tue, 30 Jun 2009 07:00:47 -0700

Yesterday the U.S. Supreme Court issued its much-anticipated decision in Ricci v. DeStefano, the New Haven firefighters case. While the Court’s decision was disappointing in many respects, it preserved employers’ ability, and obligation, to ensure freedom from discrimination in the workplace.

Ricci involved the city of New Haven’s attempts to ensure the fair and accurate selection of captains and lieutenants in its fire department. After administering a new promotions exam, the city found that the test was severely discriminatory in practice, excluding all African-American applicants from consideration. Contrary to most news reports about this case, that was the beginning of the city’s careful inquiry, not the end.

Because what race you are is no predictor of your firefighting skills, the city took that lopsided outcome as a sign that the test might be flawed, triggering an extensive research and hearings process. In four days of hearings, the city’s concerns were confirmed. They learned of multiple flaws in the existing selection process, that it did not reliably select the most qualified candidates, and that other Connecticut cities like Bridgeport had effective selection systems that, unlike New Haven’s, were not discriminatory in practice.

Based on that evidence, the city set aside the results of the flawed test. They were then sued by several white, and one Latino, firefighter, who had done well on the test and argued that cancelling it discriminated against them based on their race.

The district court and court of appeals ruled for the city, finding that it had the power under our civil rights laws to set aside a flawed and discriminatory selection process in order to seek a better one. The US Supreme Court took up the case and, yesterday, by a 5-4 margin, the high court disagreed.

The Supreme Court’s decision is disappointing because it makes it harder for employers voluntarily to ensure a workplace free of discrimination. The Court adopted a new standard in such cases, holding for the first time that employers must have a “strong basis in evidence” that an existing process is discriminatory in order to set it aside.

That’s overly burdensome, because it requires employers to begin documenting a case against themselves in order to alter a business practice that they believe to be flawed. And it ignores the significant efforts that New Haven actually took in this case—days of hearings, expert testimony, research on alternative practices—before deciding that it’s existing selection process was inaccurate and unfair.

As Justice Ginsburg noted in her dissenting opinion for four members of the Court, the firefighters who did well on the original test warrant our empathy, but no one has a right to be hired pursuant to a flawed or discriminatory selection process.

At the same time, yesterday’s decision did have some encouraging elements. A majority of the Justices clearly understand that employment discrimination remains a serious problem in our society, and that employers and government have a responsibility to take proactive measures to address it. Justice Kennedy’s opinion for the Court, for example, noted that “employers’ voluntary compliance efforts…are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination.”

There’s no question that we’ve made a lot of progress in our country when it comes to race relations. But research and experience make clear that discrimination continues in different forms. For example, research has found that identical resumes with African-American-sounding names like “Jamal” receive fewer call-backs than white-sounding names like “Brad.” And researchers at Princeton University found that white job applicants with criminal records on their resume received more call-backs than identically-qualified African American applicants with no criminal record. A friend-of-the-court brief filed by The Opportunity Agenda assembled much of this evidence.

As Justice Ginsburg noted in her dissent, fire departments around the country, including in New Haven, have a long history of excluding minorities and women. And that history is often perpetuated today, through old boy networks, word of mouth hiring, and, frequently, flawed and biased testing procedures. As Justice Ginsburg explained in her dissent, “while many Caucasian applicants could obtain materials and assistance from relatives in the fire service, the over-whelming majority of minority applicants were ‘first-generation firefighters’ without such support networks.”

Despite yesterday’s disappointing ruling, the law still requires employers to avoid policies that are discriminatory in practice, and there is still a range of steps that employers can take voluntarily to make sure they are providing equal opportunity in the workplace. Specifically, for example, employers must scrutinize their selection procedures closely for fairness and accuracy before administering them to actual candidates. And when there appears to be discrimination in practice, they need to collect additional information about potential flaws and alternatives before acting either way.

Another important step is moving toward more accurate and comprehensive selection criteria, rather than written tests, especially for jobs like fire department captain, that focus on leadership and decisionmaking ability in the field. Bridgeport, Connecticut and many other departments use assessment centers that effectively measure leadership and communication skills, as well as applicants’ ability to handle emergencies. Bridgeport’s system promotes the most highly qualified candidates and, unlike New Haven, that city’s fire lieutenants and captains are largely proportionate to the city’s Latino and African-American populations. As Matthew Colangelo of the NAACP Legal Defense Fund told the New York Times yesterday, “Most cities have long since realized that a pencil and paper test, which largely measures memorization, is not the best way to identify who will be the best leader.”

Now that the case has been decided, the Obama Administration has an important role to play by giving employers guidance on their equal opportunity obligations in light of the decision. The Equal Employment Opportunity Commission, the Department of Justice, and the Labor Department should work together to provide clear guidelines and practical recommendations.

That task has greater urgency today, because of federal economic stimulus investments that the White House says will create or save 3.5 million jobs. Ensuring an equal opportunity to access those jobs irrespective of race and gender is the responsibility, not only of enlightened employers, but also of our elected leaders.

Missing Luke

Alan Jenkins — Mon, 15 Jun 2009 19:14:58 -0700

I learned last week that my friend and law school classmate Luke Cole had died in a car accident while vacationing with his wife in Uganda. Luke was an incredible guy with an infectious positive energy about him and the belief that he could change the world for the better. In a number of big and small ways, he did.

Luke became an environmental justice lawyer before most of us in the public interest legal field even knew what environmental justice was. He didn’t invent the concept, but he realized early on that communities of color—from American Indian reservations in the West to hog farming communities in the South to inner-city neighborhoods in the Northeast—were struggling with common problems of multiple environmental hazards and inadequate environmental protection. He realized, too, what government and private research would eventually confirm: that the racial character of these communities was the greatest predictor of the level of environmental degradation they would suffer. Greater than class. Greater than region of the country.

At a time when only neighborhood organizers and community groups were decrying this problem, Luke realized that lawyers could have a respectful, supportive role to play in addressing this deadly situation across the country.

Over the course of his 20-year career, Luke represented African-American and Latino residents of Camden, NJ, fighting the concentration of abandoned factories, a chemical plant, waste-treatment plants, automotive shops and a petroleum coke transfer station in their community. He represented the mostly-Latino residents of Kettleman City, CA in their campaign to stop Chemical Waste Management Inc. from building a toxic-waste incinerator. He defended the Timbisha Shoshone tribe in its effort to halt open-pit gold mining with cyanide on ancestral land in Death Valley. And he assisted the residents of Kivalina, an Inuit village in northwest Alaska, in a claim that a company’s zinc and lead mine had polluted the village water supply.

He had a huge impact, not only through his cases, but through his tireless and eloquent argument that equal access to a clean environment is a fundamental human right.

At the same time, Luke was funny. He was silly. He was the only guy in our law school class who used words like “stoked” and “gnarly” with no irony. He was a political cartoonist and he could be a bit cartoonish himself.

I last saw Luke in January at an inauguration party. He was beaming, joking, marveling along with the rest of us that our law schoolmate, Barack Obama, was now president. But he was quick to point out that we’d all have to stay vigilant. As always, his optimism was tempered by realism and a distrust of the powerful, whoever they may be.

Why Progressives Should Join the Call for Commonsense Immigration Reform

Alan Jenkins — Tue, 02 Jun 2009 08:12:17 -0700

This week, thousands of community leaders and hundreds of local organizations are holding events in 40 cities to kick off the Campaign to Reform Immigration for America. In a national campaign launch event at the National Press Club and Campaign Summit on Wednesday in Washington, DC, they will call for commonsense immigration reform that offers real solutions, upholds our nation’s values, and moves us forward together.

Progressives should join and support this effort, for at least three reasons:

First, the campaign offers workable policies that will benefit struggling American citizens as well as immigrants around the country. One of the chief flaws of our broken immigration system is that the 12 million undocumented men, women, and children in our country have no realistic way to get legal and participate fully in our economy and society. They are subject to exploitative wages and working conditions that have ripple effects throughout our national workforce. And the tax dollars that their lawful income would bring are sorely needed by cash-strapped states, cities and towns. By contrast, the punitive approaches offered by immigration opponents—building walls at the border or rounding up and deporting 12 million people—are neither realistic nor humane.

Second, commonsense immigration reform will advance our shared values of fairness, accountability, and shared prosperity. Creating a system for undocumented immigrants to get legal, pay full taxes, learn English, and participate fully will be fairer for everyone, and will end the raiding of homes, due process violations, and detention of families (including young children) that none of us want to see in America, but that became part of the immigration landscape during the Bush administration.

Third, fixing our broken system is key to addressing many of the other priorities that progressives care about, from health care reform, to the strengthening of labor protections, to creating an economy that works for everyone. Commonsense immigration reform is not just another issue; it’s integral to building a stronger and more prosperous nation.

President Obama has said that he will begin moving immigration reform forward this summer. Progressives should stand behind him every step of the way, and ensure that the policy that emerges upholds our values, as well as our shared interests.

Obama's Wrong Note

Alan Jenkins — Mon, 04 May 2009 19:36:07 -0700

During the presidential campaign, candidate Barack Obama spoke eloquently about race in America and its continuing relevance to our national progress. But at the press conference marking his first 100 days, President Obama got it wrong.

Black Entertainment Television reporter Andre Showell asked the President:
“As the entire nation tries to climb out of this deep recession, in communities of color, the circumstances are far worse. The black unemployment rate, as you know, is in the double digits. And in New York City, for example, the black unemployment rate for men is near 50 percent. My question to you tonight is given this unique and desperate circumstance, what specific policies can you point to that will target these communities and what's the timetable for us to see tangible results?”

The President’s response was disappointing. After recounting a number of health care initiatives, he argued that “those probably disproportionately impact African-American and Latino families simply because they’re the ones who are most vulnerable.” He concluded, “so my general approach is that if the economy is strong, that will lift all boats as long as it is also supported by, for example, strategies around college affordability and job training, tax cuts for working families as opposed to the wealthiest that level the playing field and ensure bottom-up economic growth. And I’m confident that that will help the African-American community live out the American dream at the same time that it’s helping communities all across the country.”

Unfortunately, it’s just not true that fixing the economy aiding poor communities will necessarily close the racial opportunity gap. In 2000, after a decade of remarkable economic prosperity, the poverty rate among African Americans and Latinos taken together was still 2.6 times greater than that for white Americans. From 2001 to 2003, as the economy slowed, poverty rates for most communities of color increased more dramatically than they did for whites, widening the racial poverty gap. From 2004 to 2005, while the overall number of poor Americans declined by almost 1 million, to 37 million, poverty rates for most communities of color actually increased. In other words, contrary to the President’s assumption, reductions in poverty do not inevitably close racial poverty gaps, nor do they reach all ethnic communities equally.

Nor will increasing employment, alone, close racial gaps. In 2007, when the economy was still relatively strong, Latinos earned just 73 cents for every dollar earned by whites, and African Americans earned just 75 cents. Latina women earned just 59% of what all men earned. And, as I’ve written in this column before, the statistics on “wealth”—which economists describe as assets minus debt—are far worse: for every dollar of wealth held by whites, Americans of color held only 15 cents.

All of those numbers predate the current economic crisis. They show, among other things, that rising economic tides do not reliably lift all boats.

The president was wrong, but he was not completely wrong. Creating jobs, expanding health insurance, building community clinics, will indeed aid all Americans. And African Americans, Latinos, and Native Americans are, in fact, disproportionately unemployed and uninsured. But it will take more than that to ensure truly equal opportunity. It will require attacking predatory lending targeting communities of color. It will require addressing racial bias in employment and housing and in the criminal justice system. It will require investing specifically in abandoned and segregated inner-city schools. And it will require targeting job training and debt counseling, and business opportunities at communities that have been cut off from opportunity.

The thing is, President Obama is trying to do many of those things. He is investing in neglected schools, for example, and reinvigorating the nation’s anti-discrimination enforcement. But to be successful, he will also need to explain to the American people why those steps are necessary.

Torture, Accountability, and the Future

Alan Jenkins — Tue, 21 Apr 2009 06:48:06 -0700

Article 1 of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides, in simple terms, that “torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession….” The Convention reaffirms the basic principle that intentionally inflicted suffering destroys the dignity of victim, the torturer, and the society that allows it.

Article 2 of the Convention provides that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture,” and that “an order from a superior officer or a public authority may not be invoked as a justification of torture.” In other words, "no torture" means no torture. Ever.

With the release and analysis of Justice Department memos seeking to justify extreme interrogation methods by the CIA, we now know that the techniques included, at least, forced nudity, slamming detainees into walls, 11-day sleep deprivation, dousing detainees with frigid water, putting them in dark, cramped boxes—sometimes with insects to exploit their profound fears. C.I.A. interrogators used waterboarding, the intentional near-drowning of suspects to inspire fear of impending death, 266 times on just two key prisoners over a short period of time.

The methods described in the memos are chilling. They are un-American. And they are unquestionably torture. As a former Justice Department official myself, I read with near disbelief the lengths to which the memos’ authors twisted law and logic to provide cover to ghastly and inhumane practices that would be clearly illegal if perpetrated against animals, much less another human being. Consider one memo’s description of waterboarding:

“In this procedure, the individual is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual's feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual's blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of suffocation and incipient panic," i.e., the perception of drowning. The individual does not breathe any water into his lungs. During those 20 to 40 seconds, water is continuously applied from a height of twelve to twenty-four inches. After this period, the cloth is lifted, and the individual is allowed to breathe unimpeded for three or four full breaths. The sensation of drowning is immediately relieved by the removal of the cloth. The procedure may then be repeated. The water is usually applied from a canteen cup or small watering can with a spout. You have orally informed us that this procedure triggers an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning. You have also orally informed us that it is likely that this procedure would not last more 20 minutes in anyone application.”

Yet the same memo concludes that this practice—even when combined with others—is not torture because, while it does constitute a threat of imminent death, it does not inflict “prolonged mental harm.” That is so, the memo claims, because the CIA “advised us that the relief is almost immediate when the cloth is removed from the nose and mouth.” “In the absence of prolonged mental harm,” the memo continues, “no severe mental pain or suffering would have been inflicted, and the use of these procedures would not constitute torture.”

Consider it for a moment. You are a prisoner. You are slapped in the face by interrogators. You are grabbed by the face and pushed hard and loudly into walls. You are stripped naked. You are deprived of sleep for 11 days straight. You are placed in a small, dark box. You are deathly afraid of insects, and told that a stinging insect is being placed in the box with you. You are doused in cold water. Your face is covered by a cloth and you are intentionally made to feel that you are drowning, to death. But it is not torture, because you somehow did not experience prolonged mental harm.

I am ashamed. I’m ashamed that someone who shares my profession, who studied the same Constitution that I did, who worked for the same government I did in the same building where I worked, allowed this to happen. Endorsed it. Said that it was not torture. Said that it was consistent with our laws and our beliefs as Americans.

These were not snap decisions made on the battlefield. The CIA knew that these techniques were questionable, and asked the Justice Department for reasoned legal guidance. DOJ attorneys sat safely in their offices on Pennsylvania Avenue and clinically rationalized heinous acts on behalf of the American people. In all of our names.

And let’s be clear. Few would deny that Abu Zubaydah—waterboarded 83 times in August 2002 by C.I.A. officers—and Khalid Shaikh Mohammed—waterboarded 183 times in March 2003—are heinous, murderous villains. Khalid Shaikh Mohammed, in particular, is the self-described planner of the Sept. 11, 2001, terrorist attacks, which killed 3,000 Americans. We reject torture based on our nation's values, not based on theirs. The "inherent dignity of the human person" that underlies the Convention Against Torture is as much about our dignity as it is about those who endure torture and humiliation at the hands of our agents.

Although the United States government prosecuted some Japanese interrogators at war crimes trials after World War II for waterboarding and other methods described in these memos, President Obama says that C.I.A. officers who used the same methods with the approval of the Justice Department will not be prosecuted, and he has suggested that he opposes congressional proposals for a “truth commission” to examine Bush era interrogation and eavesdropping methods. While remaining mum on whether the memos’ authors might be subject to prosecution, the President said that “nothing will be gained by spending our time and energy laying blame for the past,” according to the New York Times.

That’s correct, but irrelevant. Accountability for possible human rights violations is not about blame, but about justice and preventing future atrocities. Indeed, we are obligated as a nation to fully investigate this conduct and to hold any violators—whatever their station—accountable. Failing to do so could perpetuate a new violation of the Convention Against Torture, which provides that suspected torturers must be investigated and, where the evidence supports it, prosecuted through a fair trial. Each party to the treaty “shall make these offences punishable by appropriate penalties which take into account their grave nature.”

Further, the decision whether to bring potential human rights violators to justice does not belong only to the President. The Senate Intelligence Committee has begun a yearlong, closed-door investigation of the C.I.A. interrogation program, and other congressional inquiries seem certain. Three of the memos’ authors, John C. Yoo, Jay S. Bybee, and Steven G. Bradbury, are the subjects of a pending report by the Justice Department’s ethics office. Some are calling for the impeachment of Bybee, who is now a federal judge. And there will undoubtedly be private lawsuits against the architects, as well as the implementers, of these monstrous techniques.

Facilitating a fair legal vetting of these claims is similarly part of our national human rights obligations; Article 14 of the Torture Convention provides that parties to the treaty “shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.”

Releasing the torture memos was a just and courageous act on the part of the Obama Administration. In the months to come, the Administration will have to grapple with the full implications of the acts that those memos detail, and the steps necessary to prevent either impunity or future violations. A clear-eyed look back will be crucial to moving forward.