The ABA House of Delegates approved an array of new policies Aug. 6-7 during the association’s Annual Meeting in Chicago.
Policies adopted by the delegates include a call for an end to separation of families at the U.S. border, support for actions to eliminate gender-based violence in the workplace, support for access to technology for those with disabilities, and opposition to discrimination against transgender members of the military. The delegates also amended the ABA’s dues structure and identified steps the association will take to provide ABA members with access to more and better content, including hundreds of free continuing legal education programs.
During the House of Delegates meeting, outgoing ABA President Hilarie Bass passed the gavel to Montana lawyer Robert M. Carlson, who began his one-year term as the association’s president (see article, page 5). Judy Perry Martinez, of New Orleans, will serve as president-elect before assuming the presidency in August 2019.
Other highlights of the meeting included a speech by Deputy Attorney General Rod J. Rosenstein, who said that lawyers should be united in the goal of advancing the rule of law throughout the United States and around the world. “You are the guardians of the rule of law, a concept that developed over many centuries and today is fundamental to human liberty,” he said.
In addition, Bryan Stevenson, founder and executive director of the Equal Justice Initiative, received the ABA Medal, which recognizes exceptionally distinguished service by a lawyer or lawyers to the cause of American jurisprudence. He urged ABA members to do more “to create opportunities for people who feel marginalized and excluded.”
The following is a summary of major policy resolutions approved by the delegates.
Administrative Law
State Administrative Law Judges. Adopts the ABA Model Code of Judicial Conduct for State Administrative Law Judges, dated August 2018, and urges state, local and territorial governments to enact and adopt ethical principles in accordance with the Model Code.
Civil Rights
Law Enforcement Equipment. Urges Congress to enact legislation or regulations that implement the federal interagency “Law Enforcement Equipment Working Group Recommendations Pursuant to Executive Order 13688” to ensure that law enforcement agencies receive only military equipment that is appropriate for community and campus policing and provide proper training in the use of the equipment that includes the protection of civil rights and civil liberties.
Affordable Care Act. Supports an interpretation of Section 1557 of the Affordable Care Act, 42 U.S.C. §1811(a), that its prohibition on sex discrimination by covered health programs or activities includes, but is not limited to, discrimination on the basis of sexual orientation and gender identity, sex stereotyping, pregnancy, and pregnancy-related medical conditions (including false pregnancy, termination of pregnancy, childbirth, and recovery). Urges reinstatement by the U.S. attorney general of a guidance letter concerning interpretation of Title IX of the Education Amendments of 1972 to prohibit discrimination against LGBTQ individuals, and urges withdrawal of a Department of Justice interpretation of Title VII of the Civil Rights Act that does not protect transgender citizens against discrimination.
Gender-based Violence. Urges governments and international institutions to adopt and implement legislation and regulations to eliminate, prevent, and provide remedies for gender-based violence in the workplace, including sexual harassment, by virtue of their actual or perceived sex (including pregnancy), family responsibilities, sexual orientation, gender identity, gender expression, or status as a victim of domestic or sexual violence.
Military Service. Urges the federal government to recognize that service by persons who otherwise meet the standards for accession or retention, as applicable, in the United States Armed Forces should not be restricted, and transgender persons should not be discriminated against based on gender identity.
Courts/ Judiciary
Fines and Fees. Adopts the black letter and commentary to the ABA Ten Guidelines on Court Fines and Fees, dated August 2018, and urges governmental agencies to promulgate law and policy consistent with the guidelines.
Criminal Justice
Legal Assistance. Urges bar associations, law schools and other stakeholders to develop and increase educational initiatives, clinics, and experiential courses through which law students provide legal assistance to pre-trial detainees, immigration detainees, and incarcerated individuals reentering society.
Unanimous Juries. Urges Louisiana and Oregon to require unanimous juries to determine guilt in felony criminal cases and to reject the use of non-unanimous juries where currently allowed in felony cases.
Disability Rights
Alternatives to School Expulsion. Urges governments to: enact law and adopt policies that prohibit the use of out-of-school suspension and expulsion of pre-kindergarten through second grade students, except when a student poses an imminent threat of serious physical harm to self or others; require ongoing training of teachers, administrators, and other school staff on alternatives to school exclusion; and provide sufficient funding and resources to ensure the provision of alternatives to school exclusion.
Access to Technology. Urges all courts and other appropriate government entities to interpret Titles II and III of the Americans with Disabilities Act (ADA) to apply to technology, and goods and services delivered thereby, regardless of whether the technology exists solely in virtual space or has a nexus to a physical space (subject to all statutory requirements, limitation, exceptions, exemptions and defenses). Urges that Titles I and III of the ADA be interpreted to ensure that technology is accessible to and usable by all persons, including those with visual, hearing, manual and other disabilities, and that all technology relating to the provision of legal services be equally accessible to people with a wide range of abilities and disabilities.
Dispute Resolution
Diversity. Urges providers of domestic and international dispute resolution to expand their rosters with minorities, women, persons with disabilities, and persons of differing sexual orientations and gender identities (“diverse neutrals”), and to encourage the selection of diverse neutrals.
Sexual Harassment Claims. Urges legal employers not to require mandatory arbitration of claims of sexual harassment.
Domestic Violence
Emergency Training. Urges all emergency management agencies to provide proper training to staff and volunteers to respond to unique needs of intimate partner violence and sexual violence victims during and after a disaster.
Elder Law
Human Rights. Supports in principle the Inter-American Convention on Protecting the Human Rights of Older Persons, and encourages the United Nations to draft a convention on the rights of older persons.
Family Law
Alimony. Urges Congress to enact former Sections 215 and 682 of the Internal Revenue Code that, before their repeal in the Tax Cuts and Jobs Act of 2017, allowed payors of alimony to deduct the payments and required payees to treat alimony payments as taxable income.
Leave Policies. Urges governments to enact legislation providing employees with job-guaranteed paid sick days and job-guaranteed paid family and medical leave.
Immigration Law
Unaccompanied Immigrant Children. Adopts the black letter ABA Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States, dated August 2018, to replace the original 2004 version of the standards.
Family Separations at the Border. Urges executive branch and congressional action to ensure that the federal immigration policies and practices of separating minor children from their parents at the border immediately cease and not be reinstated, and that children who have already been separated from their parents under such policies have a safe and expedited procedure for being reunited with their parents while ensuring that parents’ and children’s individual and independent legal claims are protected.
Intellectual Property
Copyright Office. Urges Congress to approve appropriations to the Library of Congress necessary to enable the U.S. Copyright Office to adequately staff, maintain, modernize, and enhance its services, facilities, databases, studies, and digital projects.
International Law
Attacks on the Legal Profession. Reaffirms the ABA’s commitment to advance the rule of law and condemns the harassment, arbitrary arrest and detention, arbitrary disbarment, denial of due process, other ill-treatment, and killings of judges, lawyers, other members of the legal profession, and their extended families throughout the world for serving in their designated capacities.
Human Rights. Recognizes the important role that non-lawyer human rights defenders, journalists and others play in protecting justice and the rule of law, and deplores attacks on those professions, as well as on individuals, aimed at silencing or intimidating human rights voices.
Legal Education
Standards. Concurred with several actions of the Council of the Section of Legal Education and Admissions to the Bar, including expansion of the opportunity for online legal education under the ABA Standards and Rules of Procedure for Approval of Law Schools.
Legal Profession
Lawyer Advertising. Amends Model Rules 7.1 through 7.5 and related comments of the ABA Model Rules of Professional Conduct regarding lawyer advertising and lawyer communication with clients.
ABA Dues. Amends the dues structure for the ABA effective on Sept. 1, 2019, and takes steps to provide ABA members with access to more and better content, including hundreds of free continuing legal education programs and information curated and delivered according to members’ individual interests.
Maritime Law
Jones Act. Urges Congress to permanently exempt Puerto Rico from the Jones Act, which requires that all goods shipped between U.S. ports be transported by U.S. vessels operated primarily by U.S. citizens and permanent residents.