On Friday, January 16th the Supreme Court agreed to hear four cases – drawn from the states of Kentucky, Michigan, Ohio and Tennessee – challenging those states’ refusal to issue marriage licenses to same-sex couples and/or to recognize same-sex marriages validly performed in other states. The Supreme Court Litigation Clinic is co-counsel for petitioners in the Kentucky matter, Bourke v. Beshear, 14-574, and assisted in crafting and filing the petitioners’ reply brief on December 22, 2014. The Court is expected to hear argument in April 2015, and to decide the case by the end of June.
The Justices will be limiting the scope of argument to two questions:
(1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? and
(2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
Going forward, clinic faculty and students will be working with a team of attorneys on the merits phase of this case as it proceeds to argument. For further reading, see SCOTUSBlog. ◊
Congrats to SLS students Nisha Kashyap (JD ‘15) and Stacy Villalobos (JD ‘15), who on December 11th were each awarded a fellowship with the Skadden Fellowship Foundation! Now in its 26th year, this highly competitive program funds a total of 28 elite law school graduates and law clerks to work for nonprofit organizations in the public interest. Eight of the 2015 fellows are from California, and Nisha and Stacy are among them.
Nisha – an alum of both the Youth and Education Law Project and the Community Law Clinic – will join The Alliance for Children’s Rights in Los Angeles, where she will work with the L.A. Opportunity Youth Collaborative to dismantle the common barriers to educational attainment that transition-age foster youth encounter, using direct services, stakeholder training, and state and local policy advocacy.
Stacy’s fellowship will take place at The Legal Aid Society’s Employment Law Center in San Francisco, which focuses on direct representation to low-wage, immigrant women workers in Fresno, California. The Center uses community education, impact litigation and advocacy to expand and protect clients’ rights, capitalizing on recently passed state laws to strengthen worker protections. Stacy is an alum of the Immigrants’ Rights Clinic and is continuing her work in the Advanced Clinic in the Winter quarter ◊
On December 8th, Reuters released its comprehensive three-part series, Echo Chamber, examining the influence of an elite cadre of private law firms and advocates from nonprofits to university-based clinics, in bringing and successfully litigating cases before the U.S. Supreme Court. The influential and successful public-interest work of the Supreme Court Litigation Clinic is mentioned as a counterweight to the perceived — if not overwhelming — trend toward the interests of big business.
The study shows that 43 percent of the Court’s docket is comprised of certiorari petitions filed by less than one percent of all lawyers who filed 17,000 petitions over a nine-year period. ◊
The Environmental Law Clinic celebrated a big win on November 20, 2014, when the U.S. Bureau of Land Management rejected an application to build a large-scale solar project in a remote, undisturbed part of California’s Mojave Desert. Clinic student Elizabeth Hook (JD ‘15) authored the most extensive set of public comments on the proposed project on behalf of the clinic’s client, the National Parks Conservation Association.
The Bureau’s decision is the first time the agency has rejected an application for a “variance” under its Western Solar Plan. That Plan prioritizes development in designated zones and allows for development outside of those zones only where strict criteria are met. In rejecting the project, which was proposed by Iberdrola Renewables, the Bureau concluded that the project did not meet the criteria and was not in the public interest.
As the clinic’s comments explained, large-scale renewable energy development is needed to combat climate change, but such development must be balanced against the need to preserve irreplaceable natural and cultural resources. The lands that Iberdrola had proposed for development were part of the remote Silurian Valley, an unusually intact desert landscape surrounded by three national park units and home to important ecological and cultural resources found in few other places. The proposed project likely would have fragmented critical habitat, degraded important cultural and historic sites, and impaired one of the last truly wild places in the Mojave Desert. The Bureau’s decision to reject the proposed solar project will help ensure that large-scale renewable energy development occurs responsibly on federal public lands. ◊
Clinical legal education is a vital part of law school education, and provides real-world experience to students facing a competitive job market. Rachelle M. Navarro (JD ’11) reflects on her personal experiences in the Immigrants’ Rights Clinic, and weighs in on the importance of enhancing clinical education in her recent article, A Recent Grad Assesses Clinical Education, published in the American Bar Association’s The Journal of the Section of Litigation, Vol. 41 No. 1 (Fall 2014). Navarro is a litigation associate at the New York office of Davis Polk & Wardwell. ◊
Director of the Youth and Education Law Project, Professor William Koski, spoke to a group of parents, school administrators and public officials on November 7, 2014 about the state of education in California. The talk, hosted by Educate Our State, focused on the topic of charter schools, per capita spending on education for students, as well as the notion of education as a basic civil right. Professor Koski’s message is clear. In order for California to address the needs of its students and equal access to education, leaders must put education at the forefront of the legislative and budgetary agenda. ◊
During the week of October 27, 2014 Sarracina Littlebird (JD ’16), along with four other students in the International Human Rights and Conflict Resolution Clinic and their supervisors, attended the 153rd Period of Sessions of the Inter-American Commission on Human Rights in Washington, DC. Last week, we featured Naomi Tom’s (JD ’16) account of the experience. Below, Cina shares her perspective.
The IACHR hearings brought to light the power of naming and shaming for me. Although the IACHR’s mandate endows it with certain authority over member states, the core of the power that IACHR wields seems to lie in the way it brings accusations to public and international attention.
During the hearings, Commissioners engaged in an artful diplomatic dance. They softly communicated their concerns about state actions and avoided coming out with guns blazing, throwing pointed accusations at the states, or levying heavy threats of enforcement action. One reason for this nuanced tactic lies in IACHR’s interest in supporting a cooperative environment by avoiding the alienation of participating states with threats or forceful public admonitions. In any other confrontation context – where no concrete punishment or threat is being levied – the defendant has an easy out by simply denying the accusations. Yet that generally does not happen in the Inter American Commission’s system. Even with no direct threat of punishment, the states often still choose to modify their behaviors (or at least say that they will/are) in response to the accusations of the petitioners at these public hearings. I was puzzled as to why.
My thought is that the change must be precipitated by the public documentation of these hearings and, by extension, the underlying allegations. There is something about the presence of media and representatives from other countries recording the accusations brought against them that behooves respondent states to at least appear that they are doing something to combat the manifold issues raised by the petitioners. The fact that reputation holds so much power is fascinating to me. Understandably, states desire to appear honorable in the eyes of other countries so that those nations in turn will not hesitate to engage politically and economically with them.
But I wonder if some of this seeming cooperation among states is attributable to a basic human instinct that abhors criticism. Feedback from peers is an important guideline toward appropriate behavior and growth. And, in order for feedback to work, one must pay attention when others are saying that what they are doing is wrong. In fact, not reacting to criticism from peers (or feeling shame for one’s wrongful actions) is what distinguishes a sociopath. Does this indicate that the success of human rights work is gained through appealing to the workings of a rational collective psyche, rather than for more logical reasons?
The week in D.C. definitely made me appreciate all of the psychological and emotional massaging and negotiating that takes place in human rights work. It certainly appears as though working with someone’s psyche is a more potent tool than working with someone’s actions or the “hard” facts of a situation in this field. ◊
In the aftermath of the often contentious and costly race for California’s Superintendent of Public Instruction earlier this month, Professor William Koski, director of the Youth and Education Law Project, shares his views on the state of education reform in California in his recently published op-ed piece in the San Francisco Chronicle.
Professor Koski challenges politicians and pundits alike to “get back to work” and strive toward meaningful education reform, rather than become mired in spiraling partisanship that moves no agenda forward. Focusing on the need for nuanced solutions to improve teacher quality and close the teacher quality gap, Professor Koski stresses compromise and incremental change that will benefit the most vulnerable of California’s students and their most important resource, our teachers.◊
During the week of October 27, 2014, Naomi Tom (JD ’16), one of five students from the International Human Rights and Conflict Resolution Clinic (IHRCRC), had the opportunity to attend the 153rd Period of Sessions of the Inter-American Commission on Human Rights (IACHR) in Washington, DC. Naomi shares her impressions of this unique experience as well as highlights of some of the hearings she witnessed.
One of the most valuable functions of the IACHR is to hear cases brought by individuals across the Americas seeking justice from an international commission in a public setting. The 153rd Period of Sessions were held between October 23 to November 7, 2014, and we were fortunate to attend sessions and hearings held October 27 through October 31. We observed cases brought by indigenous individual petitioners before IAC member states such as Argentina, Costa Rica, Ecuador, Mexico and Nicaragua, as well as the United States.
It was a unique experience to observe petitioners from various states utilizing this forum to bring their complaints to the Commission. Both sides to an argument were able to present their views uninterrupted during the first twenty minutes of the hearing, allowing each party to state their case and in the manner most effective – which varied depending on the issue and the petitioners. At all but one hearing that our group attended the state gave their response second. At times this setup served to undermine the states’ position from the outset. In general, it seemed as though publicity given to certain sessions may have been the most effective tool for increasing state responsiveness and compelling government officials to be more truthful and transparent during proceedings. The function of the Commissioners was to ask each side questions that ended up either strengthening or undermining the parties’ arguments.
Highlights from Observed IAC Cases. The full chronology of hearings, together with video and still photos, can be viewed here.
Case 12.626 – Jessica Lenahan, United States. Petitioner Jessica Lenahan spoke about the night her daughters were killed, when her husband, who was under a restraining order, took the girls and proceeded to enter a shootout with the local police. By the time local authorities responded, it was too late. It was powerful to listen to her testimony as she addressed the state respondents directly, asking for reparations and apologies for their lack of an appropriate response during the situation. The state, in turn, largely talked around Lenahan’s requests without ever actually addressing them, stating that they had no authority to launch investigations of individual cases, and refusing to offer the apology requested.
Human Rights Situation of Persons Deprived of Liberty in Buenos Aires (October 28). It was unconvincing to watch the state present a video depicting prisoners baking bread and tending pigs, when only minutes before we heard recounts of prison visits describing rotting food and peeling paint in the facilities.
National Human Rights Program in Mexico (October 30). In the wake of the disappearance and suspected murders of 43 missing Mexican students, media coverage and public protests leading up to and following this hearing were on full display. A group of protesters stood outside the courtroom chanting “Cuando?” (When?) and “Ahora!” (Now!) as a call to the Mexican government to fully investigate the students’ disappearance. When the Mexican state observed a moment of silence for the missing students, media and audience members clamored to capture the images in photographs and video. Such coverage contrasted sharply with other sessions, such as during the Monitoring the Report of the Commission on the Situation of Human Rights in Jamaica session (October 28), which was disappointingly sparsely attended.
My general impressions: the public nature of these sessions heightens the need for states to be cautious in their responses; at times they conceded that certain areas needed improvement, while at other times they were evasive. In one case, the “Human Rights Situation of Persons Deprived of Liberty in Texas,” the state didn’t even show up. States had varying opinions of the authority of the IACHR, and some were more vocal of their criticisms than others. As these hearings gain more publicity, as seen particularly during several of the Latin American sessions, perhaps states such as the United States and Venezuela will become more responsive. Regardless of the level of commitment by various states to the IACHR’s proceedings, it was fascinating to see the way in which they interacted with petitioners and to hear their responses regarding a number of critical human rights issues in this public forum. ◊