On December 22, 2015, the Section of Civil Rights and Social Justice held a roundtable discussion by telephone among past and current leaders of the Section or of the American Bar Association. The goal was to have lawyers from different eras reflect on the role of lawyers in the Section and in the profession in fighting for change in society. The discussion has been edited extensively for space reasons, and the valuable comments of some participants were omitted. The participants were:
• Mike Greco, past Section chair and former ABA president
• Takeia Johnson, commissioner, ABA Commission on Sexual Orientation and Gender Identity
• Michelle Philo, current Young Lawyers Division liaison to the Section
• Andrew Rhoden, current Law Student Division liaison the Section
• Anna Romanskaya, Young Lawyers Division chair-elect
• Mark Schickman, moderator, immediate past Section chair
• Robyn Shapiro, past Section chair
• Tanya Terrell, director of the Section
• Marna Tucker, past Section chair
• Penny Wakefield, past director of the Section
Mark Schickman: The ABA Section of Individual Rights and Responsibilities (IRR) was born in the ’60s. How did that era, known for its activism, help form IRR?
Mike Greco: To set the table a little bit, on June 21, 1963, President Kennedy invited 250 lawyer leaders from around the country to the White House for a little chat. He was concerned that the legal profession was on the sidelines as people were being killed every day in the South. He urged these lawyers to do something about it.
The Lawyers’ Committee for Civil Rights was formed within weeks. The ABA formed the Committee on Individual Rights and Responsibilities in 1964. And that committee then became the Section of Individual Rights and Responsibilities.
Schickman: We’re looking today at significant violence against African American communities, calls to ban religious minorities in America, the government logging the calls of every American. Have we made much progress in the civil rights struggle while IRR has been around?
Greco: I find it ironic that despite the best efforts of our Section and the ABA and so many people that one could say we haven’t come very far, have we? On the index of equality, civil rights for all, are we now back to the violent days of the ’60s? We have work to do as a Section.
Marna Tucker: I disagree a little bit with Mike’s assessment of how far we’ve come. I think what we’ve seen in the almost 50 years that I’ve been involved with the Section and with the civil rights movement, it’s cyclical to the extent that I remember the violence issue in the ’60s and ’70s as a general outpouring against the violence by the police. It was categorized as police brutality, and everyone was calling them pigs.
And that led to a lot of changes. And we were involved in that to a great extent. A lot of changes in how the police behaved, community policing occurred. I think it was [Justice] Sandra Day O’Connor who said that every generation needs to be educated about our rights and responsibilities.
So I think we have to educate every generation again. But I don’t think that we haven’t made progress.
Takeia Johnson: I think about two different things: the 13th Amendment and Michelle Alexander’s book, The New Jim Crow. All of this ties together in a sense. The 13th Amendment abolished slavery, except as punishment for a crime, right? And so when you think of the issue of mass incarceration in the prison-industrial complex, this has developed out of the evolution from slavery and has through the decades. I think that that’s one of the issues of civil rights that we have to deal with.
I also think about 1954 and Brown v. Board of Education when segregation was made unlawful. But in the city of Chicago, issues of redlining occur and so you segregate city, state, and essential resources, and you end up with de facto segregation. In Chicago, almost 50 schools closed a few years ago, and those were primarily schools where black and brown children attended.
But while we have seen some advancements, laws in the books saying that segregation is unlawful, and Section 1983 civil rights claims, we still have the blue wall of silence where it’s very hard to bring a successful civil rights case against police.
Schickman: Andrew, as our ABA Law Student Division liaison to the council today, what is your view?
Andrew Rhoden: I think we have progressed as a country in different sectors. We don’t have the hate that we used to have as far as people actually being physically lynched in public. But I will say as a black male in our community, I remember a few years ago when I was coaching in West Virginia and going to Hampton, Virginia, I got pulled over in Maryland. An officer had me and my cousin get out of the car and lay on the red dirt in our suits because he felt we were suspicious.
These are things that people are being subjected to every day. Unfortunately, everybody is not going to be calm with a police officer because we are frustrated about being pulled over and being singled out. And that’s why we’re starting to see these ongoing police brutality concerns.
Schickman: So one can argue that we still don’t have an even playing field: large numbers of incarceration of primarily African American males, a huge income gap, public school segregation possibly greater today than it was in the 1960s. So how do we address these kinds of issues? And is an organization like IRR, now the Section of Civil Rights and Social Justice, still an effective tool today to get this done?
Tucker: Lawyers should be playing an even greater role. But what I see and what history has taught me is right now—because we’re in a situation of being very fearful for our safety from terrorists and outside sources—the public looks to a minority group and blames them just like Hitler did and other despots have done for centuries.
We also have huge differences in economics, education, and where people live. And this is where the Section and lawyers can be very helpful. On those two things—the economic differences that have created continued segregated housing and education, and the fear of violence from terrorists. Those two we can have some strategic roles as lawyers.
The law says you shouldn’t discriminate in housing. But the fact is you look at the way people live in this country and the places where violence occurs the most are in the poor economic sections of the country. That’s where the economic pressure and the violence is the worst. And we haven’t really desegregated those areas.
Legally, people may be able to move where they want to move, but if they don’t have the money and they don’t have the education, they’re stuck in very terrible breeding grounds of poverty and violence. I think this Section needs a strategic plan to look at what can we do to change the housing dynamic in this country through legislation, elections.
Penny Wakefield: After East LA had its terrible riot in the ’90s, we had an all-day session in Los Angeles where we brought in students and local community activists, pastors, a range of people and did a daylong series of discussions on race relations. Cruz Reynoso chaired the event. And, of course, the overarching question was: What can lawyers do about it?
The passion of the people was twofold. First, they were very surprised that lawyers would be interested in hearing what they had to say. And second, at the bottom line, they said what Marna was saying: ”Get us out of here.”
We had a hearing in Kansas City, Missouri, a few years later. And I think people from every part of the community agreed that for all of the trying to bring students into different parts of the community, the same things that had produced Brown v. Board of Education were still present there. Again, the question came up: What does an organized bar do about this? The call from President Kennedy to get lawyers moving involved a very specific task. A litigator didn’t need to have been involved in civil rights to know what to do to help people get through their court hearings down in the South.
Schickman: We talked about education. This month we have maybe the most well-known public figure in America calling for a ban on a religious minority, and 25 percent of America agrees with him, according to a Newsweek poll. Is it incumbent upon lawyers to be doing something about that?
Tanya Terrell: Section Chair Lauren Rikleen and I have been discussing how disappointed we are that the media doesn’t challenge those people more when those types of comments are being made.
We are planning special programming to educate people, particularly journalists, about what the Constitution actually says.
Greco: The question for the Section is how are we strategically going to address these issues? I have a list of some of them that are interrelated.
First, race and affirmative action issues. The Supreme Court will issue a decision in the Fisher II case. We don’t know what the decision is going to be, but I’m pessimistic about it. We have to redouble our efforts on affirmative action and race.
Second, gun control because the killings that are happening aren’t just police brutality; there are people out there with guns who are killing people of color. We have to address gun control.
Third, immigration and refugee issues, which relate to some of the things that these crazy candidates are saying without being challenged.
Fourth, gender equality issues. We haven’t done as much as needs to be done for women and other people on gender equality issues.
Finally, death penalty abolition, which has taken a backseat.
And we have serious privacy issues that are getting worse, not better. So each of these issues presents challenges.
Terrell: Our leadership has actually been very aggressive on those five issues. On the immigration issue, we’ve been working closely with the ABA Commission on Immigration to plan programming addressing some of the rhetoric around immigration, again trying to educate the public about what the Constitution actually says.
Last year, we created a Committee on Religious Freedom which Mark initiated because there was no committee in the ABA that focused on the religious freedom issue.
Schickman: One of the issues that I looked at when I was chair was privacy. Any time we put something in an e-mail, we’re waving privacy rights because the communication to the e-mail provider is to a third party. But today, more and more people say the government ought to be reading everything because it’s the only way to stop terrorists. Must the Section recognize that Americans are willing to trade constitutional rights for security, is that where we are?
Greco: We have to fight that mentality by education and the ABA taking strong positions against it.
Schickman: Michelle, reading the pulse of newer lawyers in the profession, is the message of civil rights and civil liberties passé? When Mike says we have to fight an attitude that would trade civil rights for security, is that where the legal profession is right now?
Michelle Philo: We are in a different place than we were 50 years ago, and that’s how I think a lot of young lawyers view that. We just celebrated the 50th anniversary of the Civil Rights Act. And in that, we are aiming for equality and we partially achieved that on paper via legislative action for the last 50 years.
The number of issues has broadened since 50 years ago, so we should be looking for solutions outside the field of law. It’s going to be important that we incorporate the socioeconomic philosophies to enhance the actual implementation of the law.
Today, we have fewer attorneys per capita and the practice of law has changed. So the pillar that the ABA used to stand on 50 years ago as an advocate is not necessarily the pillar that the ABA is today. Maybe we look for new solutions and partner with other professionals outside the law to gain a greater collective voice.
Rhoden: There’s still a purpose for us, and there are many who want to take part. We have to establish some type of grass root efforts.
The solution is to team up with different youth and undergraduate organizations to give them an avenue to say you can make it out of your situations, these are the avenues and steps to take, successfully doing it without creating violence in the city. We need to do this in a proactive way. There has to be a means for people especially from the inner cities to believe they have an avenue for getting out.
Tucker: I’m very moved by what the younger lawyers are saying on how they view the role of the Section, the role of the lawyer now. And I do think so much of it is because the rights of privacy have just changed with social media.
People are living in a very changed world, and I like the idea of partnering with nonlawyer groups to be more activist. Supreme Court briefs have a place but maybe lawyers can do more in terms of activism in our communities, going to schools and working with people trying to make some of these changes.
Schickman: Looking back at your terms leading the Section, what were the challenges that you were facing? Do they have any resonance to the kinds of things we’re hearing today?
Robyn Shapiro: Related to some of the privacy issues we’ve been talking about but somewhat removed is privacy in light of the advances we’re making in genetics.
And I’m particularly concerned about the “right not to know.” We have a rather obvious privacy issue relating to national security. But the issues that are staring us in the face, as well, have to do with emerging information that we have on the advances in science and technology, to know way more than we’ve known about people. How are we going to use that and how are we going to protect against misuse of it? How are we going to protect people’s right not to know?
Schickman: The right not to know also ties into the right to be anonymous, which becomes nearly impossible today. One of the issues that Mike raised also was the issue of immigration and refugees. That was one of the founding principles of our nation; we are a nation of immigrants that is now in the process of pulling up the bridges, and protection of immigration rights has been another major effort of the Section where, again, maybe the public will is not with us.
Greco: Exactly as you just said, this is a nation of immigrants. And now, people have forgotten that, and our leaders forget that they are second-, fourth-, or fifth-generation immigrants.
Schickman: The difficulty is memories tend to fade. Especially within the Jewish community, this immigration issue hits very close to home. For a long period of history, swap the word Jew for Muslim, and you had the same kind of mindless bigotry. And historically, in the run up to the Holocaust, there was a fear of letting Jews from Europe into this country for fear that they had German names and Polish names and could not be trusted. And it led to death by the millions. Now 70 years past the Holocaust, the eyewitnesses are just about extinct. I think the Section is the eyewitness to history and needs to take the front-row personal view toward that.
Greco: I agree.
Schickman: Those of us who have been in this battle for 40 years or more may ask: “What have we accomplished?” I’m of the view that the battle for civil rights is a fight that has to keep being waged even if it’s never going to be won, and maybe especially if it’s never going to be won, and that fighting the battle is what’s important.
Wakefield: One outstanding example we have of the difference it’s made to have the Section involved is the death penalty issue. The numbers of changes that have occurred in the states and the way the court decisions are going now, many people have told me simply it wouldn’t have occurred unless the ABA had been at the forefront more than 20 years. And so staying in the course on these issues really does make a difference.
Greco: Yes, I think the death penalty is a good example of the long process where we never gave up. But it’s another example of an issue that we can’t put aside. We have to work on all of them all the time in ways that make it clear that the lawyers of the ABA have to protect these rights. We have to protect the Constitution.