chevron-down Created with Sketch Beta.
January 01, 2007

Civil Rights and the American Bar Association

by Paul M. Igasaki

The roots of the Section of Individual Rights and Responsibilities (IRR) lie in the civil rights movement of the 1960s. The Section’s future is tied to the civil rights movements that will emerge in the coming decades and beyond. IRR has provided leadership to the American Bar Association (ABA), the legal profession, and the nation on one issue after another. Since I joined the Section after serving on the ABA staff, I have seen it offer a vision of the legal profession not only as advocates of the rule of law but also of the law’s application as a tool of justice, equality, and human rights in our society.

I became a lawyer because, as a Japanese American, I could not reconcile my understanding of American civil rights with my family’s history as prisoners in racial relocation camps during World War II. Our rights are real only if we are willing to fight for them and, if we are truly dedicated to the integrity of the rule of law; as lawyers, it is our duty to fight for those rights—and especially for the rights of those least popular, powerful, or able to defend themselves. My commitment to this Section was secured when I appeared before the IRR Council and sought support for legislation seeking justice for Japanese Americans interned during World War II. Shortly thereafter, when Judge Abner Mikva sought my support in recruiting minority lawyers for the Section, I began an affiliation that has continued ever since.

IRR has been on the cutting edge of civil rights issues since its beginnings, and it will continue to play that role. Despite its relatively small size, the Section has played a leading role that some have called “the conscience of the profession.” But we must recognize that the civil rights movements of this country are not led usually by lawyers but by those who seek justice for themselves and our society. Ultimately, those movements lead us.

The United States is a nation of diversity. We are not bound together by the thousands of years of shared history, ethnicity, and religion that form the identities of other nations. We are held together by our promises, our laws, which give the tools to our people to know that each of us has rights that we will respect. Of course, our history is characterized by one battle after another, testing those promises as we extend them to all people by overcoming ignorance and biases that prevent their fulfillment.

Each struggle for justice has resulted eventually in an affirmative decision, a decision that, yes, these human beings are also entitled to the rights offered by the United States. Often, that has included accepting people as part of humanity was well as of our nation. That must continue and must be the mission of IRR. As Thomas Jefferson’s words in the Declaration of Independence have made clear, our rights are ultimately not ours by citizenship but because they are unalienable rights of humanity.

With the founding of our nation, the issue of slavery and the status of African Americans was left unresolved. The Civil War, Jim Crow, and the movements and legal cases of the 1950s and 1960s sought answers. We have made progress step by step, but the fight is ongoing. Affirmative action, a useful tool in overcoming the historical inequality faced by minorities and women, is now under attack and should be defended in education, employment, and public contracting. It is not a panacea, but we will not overcome our history and our inherent prejudices unless we make and defend a commitment to equality. It is safe to say that the ABA and the Section must fight to defend that tool.

In addition, as the ABA decided in response to our Section’s leadership at the 2006 Midyear Meeting, we need to consider where we stand on the status of African Americans in the United States. Inequality and injustice against African Americans continues. What is the enduring impact of African American slavery and Jim Crow laws? Assuming that this inequality is not inherent, what solutions might work? We can learn from the experience of the national Commission on Wartime Relocation and Internment of Civilians, authorized by the government in response to a movement of Japanese Americans. Symbolic reparations and a formal apology were recommended and eventually enacted to redress the wrongs of World War II. The Truth and Reconciliation Commission in South Africa, which sought to move that nation beyond the heritage of apartheid, also provides a model for us to consider. Rep. John Conyers Jr. (D-MI) has introduced a bill that would establish such a federal commission. Some have argued that to allow such a body would be tantamount to awarding reparations for slavery. The proposal does not suggest that. While reparations are certainly not off the discussion table, neither are other solutions to our nation’s pernicious racial problems, including making the case for ongoing affirmative action. A nation dedicated to justice must commit itself to acknowledging and correcting injustice in our history, especially when people are still paying the price for that history.

The founders similarly overlooked the rights of women when forming our nation. Throughout our history, women have led and made the United States what it is today, yet through most of our history little progress has been made in advancing their rights. The right for women to vote came only in the twentieth century. Rights against discrimination came as an afterthought emerging from the civil rights movement for African Americans. More progress has been made in recent years, but women continue to be held back by stereotypes, discrimination, and the “glass ceiling.” Domestic violence remains a serious problem. The rights of women to control their bodies continue to be fiercely contested in the area of abortion. The ABA has been involved in the heated exchanges of this debate. It remains a critical question of justice that IRR will continue to influence because the rights of women remain at the forefront of our work. Renewed effort to address the Equal Rights Amendment is another important issue that should be advanced by IRR.

Race is not simply a matter of black and white. In the 1960s, the particularly egregious racism and obvious race-specific barriers African Americans confronted made that the center point of civil rights struggles. Today, we recognize the more complex issues of a multiracial America. Asian and Pacific Americans, as well as Latinos, face racial discrimination and other unique barriers and issues. Native Americans, including Hawaiian and Alaskan peoples, have serious and historic difficulties that have not been adequately addressed. We must have the diversity of the nation represented at the table so these issues can be confronted and resolved in a nonpaternalistic and fair way. The ABA and IRR have dedicated themselves to the ongoing task of finding that representation.

The history of European immigrants moving into areas occupied by indigenous peoples, ultimately seizing their lands by force or trickery, is now an acknowledged part of our history. We must now commit ourselves to preserving these nations and living up to our agreements. The ABA, also at the Midyear Meeting in 2006, committed itself to supporting sovereignty for Hawaiian natives, again something that proposed congressional legislation, introduced by Sen. Daniel Akaka (D-HI), would address. Our Section’s Committee on Native American Concerns is robust, and combined with a Native American presence on the IRR Council, we hope to coordinate with Native American voices throughout the profession. Perhaps this is another area requiring a national inquiry to educate and bring greater acknowledgement of our responsibilities.

The rights of new Americans—both legal immigrants and those without documentation—remain a hot topic as Congress and the president consider new proposals. We have played a significant role in helping the ABA to make comprehensive and fair immigration reform a priority at a level not previously seen in the Association. On ABA Day in Washington, D.C., in 2006, hundreds of volunteers “worked” Congress on this complex issue. That was a starting point; even the most positive outcomes will likely involve serious limitations on the most basic standards of due process and equal protection. Detention for indefinite periods without representation and severe penalties for minor or ancient infractions are among the violations of our most basic legal principles. The immigration issue is before Congress again in 2007. Maintaining our rights at America’s door, especially as we demand human rights of other nations, should be a high priority. Our greatest tradition of diversity, involving the constant renewal of an increasingly global America, is another fight in which our Section must play a critical role. This is true despite efforts to isolate our nation in the face of terrorism. We are stronger if we maintain, rather than surrender, our values in the face of violence.

We have made progress, within the ABA and many other institutions, in advancing the rights of gay, lesbian, and transgender Americans. We have a long way to go with legislation, however. We still do not have a federal law, nor do many states, protecting against discrimination based on sexual orientation in jobs or public accommodations. Rather, we regularly encounter efforts to ban gays and lesbians from marrying, even at the level of federal and state constitutions. This directly challenges the progress toward greater inclusion that I mentioned above. Ultimately, the Section and the ABA must engage on these important struggles and also pursue justice for transgender people. Constitutional amendments should not discriminate. Rights of gay and lesbian parents, and prospective parents, should be legally protected. Both legal reform and education are badly needed. Ultimately, because progress will be uneven regionally, federal leadership
is necessary.

The baby boom, coupled with astonishing advances in medicine, has contributed to a pronounced increase in the percentage of senior Americans in our nation’s population. This trend will exert greater pressure to clarify questions about the rights of older Americans. With law firms currently being challenged for making decisions about the tenure of some of their partners, there is no question that the issue of rights of seniors to work will be among the most important areas of debate. Decisions can and should be made based on competence, not age. Even more complicated choices will arise involving pensions and Social Security, the right to drive, and in other areas, such as the right to live or die. These questions will become increasingly common. The rights of older Americans are likely to engender an even more powerful civil rights movement. IRR will need to keep abreast of these developments and prepare to take on the tough questions on behalf of equal rights for all.

The Americans with Disabilities Act of 1990 ( ADA) was a dramatic step forward on behalf of people with physical and mental disabilities. The interpretation and application of that law remains hotly contested. Surely, the ADA should receive a similar respect as do other civil rights laws, but I am afraid that we fall far short of that today. The suggestion that discrimination based on disability is somehow less egregious than those of race and gender is a dangerous step. Unfortunately, the courts have also been unduly harsh in defining what a disability is. Rather than adding restrictions, the ADA should be expanded to reach more people, and we need to advance the level of accommodations that will be held reasonable if we are to make the rights of people with disabilities a true civil right. Overcoming stereotypes, particularly with mental or psychological disabilities, will go far in reducing discrimination. The legal profession and the ABA need to play a much stronger role in this area. Among the ways to do this is to reach out and build a stronger voice within the association for lawyers with disabilities.

Over the years, the needs that our society has provided for are increasingly approaching the level of legal rights. Many cannot afford health coverage, and the quality of health care and medical options are very much affected by wealth and poverty. Movement toward education that is privately based is eroding the quality of nondiscriminatory public education. Rising tuitions and obsessive tax-cutting are widening the gulf between increasingly costly private education and struggling public schools. We need to live up to our responsibility of equal access for all to the highest quality of education and health care.

The Section maintains active work in a number of other areas. The rights of children are especially important as a segment of society that needs its rights to be guarded under the law. The rights of criminal defendants and poor civil litigants are also too often forgotten. Rights of privacy and freedom of speech are challenged by governmental abuses. Injury to the environment, especially with disproportionate impact on minorities and the poor, has spawned an environmental justice movement. IRR has active committees working in each of these areas, often sharing issues with other ABA entities. New issues will continue to arise in these areas. The death penalty, too often wrongfully applied and incapable of later correction, remains an area of Section advocacy. Support for a moratorium and ongoing damage to our national reputation for our record in this area will keep this an important issue. While the ABA does not oppose the death penalty absolutely, the serious problems in having a fair system for taking a human life that can be done with adequate certainty may lead the United States to eventually join the many countries that have halted executions. IRR is already a leader in these discussions and will continue to keep these issues before our profession.

As we continue to strive for the fairness that is demanded by our diversity, we must recognize areas where movements have pushed in the opposite direction. On the one hand, all people should be protected in the exercise of their chosen religion, or lack of it, as long as that exercise does not infringe on the rights of others. We need to examine ways to protect religious exercise or nonexercise. At the same time, however, the strongly held beliefs of some, in the name of religion, must not infringe on the rights of others. While some faiths urge their members to proselytize, the right of others not to be confronted about religion do come into conflict. The Nonestablishment Clause assures us that government will not establish any religion. Ideas like “intelligent design” can be an individual’s belief but should not override educational duties to teach scientific theories. Where religion is used to justify discrimination due to sexual orientation or to limit the rights of women or of families in making medical decisions, we must defend the rights of all individuals. In a world where very strong religious feelings abound, it is likely that this shall remain an area of continued debate. We must remind ourselves that it is at the heart of our nation’s heritage that it is the right of everyone in this country to have or exercise any religion or no religion, so long as it does not prevent the fundamental rights of others.

Terrorism is another movement that threatens our freedom. If we respond to it by eroding the rights that define America, we will not make ourselves safer; rather, we weaken our national identity. As a Japanese American whose family endured relocation and incarceration because they shared the ethnicity of a foreign enemy, I know how easily these abridgements of civil rights can be justified. Yet we must resist the temptation. In the end, terrorists that seek to disrupt the American way of life will have won if we do not resist.

America has progressed markedly since the beginnings of the Section of Individual Rights and Responsibilities. The United States was founded on eighteenth century versions of human rights that, translated to the twenty-first century by civil rights movements, still define a dynamic nation. IRR will lead our Association in many of these areas. We cannot do everything, and much of what we will be doing will be monitoring and developing ideas both with other ABA entities and civil rights and community organizations. But when the time is ripe to bring the voice of the legal profession to bear, it will certainly include IRR leading the way. I am proud of my association with the Section, proud of the ABA’s commitment to justice, and proud of those who fight for an America that lives up to its promise.

Paul M. Igasaki

Paul M. Igasaki is the immediate past chair of the ABA Section of Individual Rights and Responsibilities. He is deputy chief executive officer of Equal Justice Works and former vice-chair of the Equal Employment Opportunity Commission.