Civil Rights Since 9/11 Conference at UT Law

I had the good fortune to attend the “Civil Rights since 9/11” Conference on Feburary 3rd at the law school.  The conference featured several prominent speakers, headlined by Susan Herman, President of the ACLU and author of the recently published book Taking Liberties: The War on Terror and the Erosion of Democracies.  I thought I would take a few minutes to summarize and reflect on one of the panels I took in.

The first panel of the day was on the topic of “qualified immunity” as it applies to high-level government officials being sued for promoting policies that led to the violation of constitutional rights in the wake of the 9/11 attacks.  The panel featured Rachel Meeropol – Staff Attorney, Center for Constitutional Rights, Alexander Reinert – Associate Professor of Law, Cardozo Law School, and Lee Gelernt – Deputy Director, ACLU National Immigrant Rights Project, and was moderated by the law school’s own Jennifer Laurin.  The main thrust of the panel’s discussion was that “qualified immunity,” which protects government officials from liability for constitutional violations, presents a major challenge to post 9/11 civil liberties litigation. No surprises there.  None of the panelists were optimistic that the present Supreme Court was about to reverse course and open the courts to litigants seeking discovery from high-level national security and justice officials, let alone hold these officials liable for violating the constitutional rights of Muslim and Arab-American citizens rounded-up by the FBI and local law enforcement post 9/11. 

Despite their sobering message, however, the panelists raised some interesting questions about the future of post 9/11 civil liberties litigation and the courts’ position on qualified immunity.  One question raised by the panel was whether the trial courts will permit discovery against lower-level officials (prison guards, FBI agents, etc,) while the appellate courts weigh qualified immunity defenses raised by high-level officials.  According to the panel, the trial courts have taken different positions on this issue.  Some courts have allowed discovery to advance against low-level defendants even while the appellate courts address qualified immunity issues, while other courts have delayed all discovery until qualified immunity issues have been resolved. 

The other interesting question raised by the panel had to do with whether the Supreme Court is likely, in the future, to decide any constitutional issues raised in post 9/11 civil liberties suits before ruling on the question of qualified immunity.  Or, whether the Supreme Court is likely to dodge any constitutional issues by upholding the qualified immunity of high-level officials and declining the opportunity to decide any constitutional questions. The answer to this question obviously has major implications for future litigation against high-level government officials for constitutional violations.  Civil liberties advocates and their clients hope that the Court shows a willingness to invalidate certain government policies as unconstitutional, even while shielding high-level government officials from liability.  The opposite would be truly unfortunate and warrant serious consideration as to whether, for the client’s sake, it is worth naming high-level officials as defendants.

The issues surrounding qualified immunity obviously highlight the tensions between national security interests and civil rights and civil liberties.  There are obvious reasons for protecting government officials from private actions seeking to hold them liable for the actions they took to protect the country from serious and imminent threats.  We want our officials to act decisively in response to national emergencies and the fear of being sued should not keep them from doing so.  On the other hand, by its very definition, qualified immunity is qualified and not absolute.  The Court should decide where this immunity ends and what is necessary to overcome it, because fairness and justice require that high-level officials be held equally accountable for policies that lead to severe abuses of constitutional freedoms as the low-level officials who carry out these policies.

A (Small) Victory for the Right to Federal Habeas

Last month, the Supreme Court issued a decision that marks a victory for death row inmates in post-conviction appeals. The case of Maples v. Thomas presented a particularly appalling case of ineffective assistance of post-conviction counsel. Cory Maples, an Alabama death row inmate, had been represented pro bono in his state post-conviction proceedings by two attorneys from the New York offices of Sullivan & Cromwell (Alabama is the only state that does not provide court-appointed counsel in post-conviction). Maples was seeking state post-conviction relief on grounds that his trial counsel had been ineffective. While Maples’s petition was pending in the state trial court, his attorneys left Sullivan & Cromwell and did not inform Maples or the court that they would no longer serve as his counsel. The Alabama trial court denied Maples’s petition and sent notice of the order to his attorneys at Sullivan & Cromwell. The mail was returned, unopened, to the trial court clerk, who took no further action. In the meantime, the 42-day period Maples had to file an appeal expired.

An Alabama Assistant Attorney General sent a letter to Maples, informing him that he had missed the deadline to file an appeal in the state court and that he had four weeks remaining to file a federal habeas petition. Maples filed a petition for federal habeas relief, but the District Court denied his petition on the grounds that the issue was procedurally defaulted because he had failed to timely appeal the state trial court’s order. The Eleventh Circuit affirmed.

The Supreme Court, in a 7-2 decision, reversed the Eleventh Circuit, holding that Maples had shown the requisite cause to excuse his procedural default. Generally, a federal court may not review a habeas petition when a state court has declined to address the claims raised because the prisoner failed to meet a state procedural requirement. This procedural bar may be lifted only where the prisoner can show cause for the state court procedural default. The Supreme Court has consistently held that attorney negligence in post-conviction proceedings does not qualify as cause. However, the Court held that the exceptionally egregious facts of Maples’s case constituted cause for the procedural bar. A client, the Court held, “cannot be charged with the acts or omissions of an attorney who has abandoned him.”

The victory of Maples may be a small one. It’s likely the holding will be narrowly applied only to cases as extraordinary as that of Cory Maples. But in the realm of federal habeas, where procedural defaults have become the norm and substantive review of the merits the exception, any progress in the rights of indigent petitioners is certainly noteworthy.

On the same day the Supreme Court heard oral argument for Maples, it also heard oral argument for Martinez v. Ryan. Martinez presents the question whether a prisoner has a right to effective assistance of state habeas counsel where state habeas presents the first opportunity to raise an ineffective-assistance-of-trial-counsel claim. The Court has yet to issue its opinion in Martinez. Here’s hoping the Court will continue on the trajectory of upholding, rather than constricting, the rights of indigents in post-conviction proceedings.  

Tennessee's "Don't Say Gay" Bill

A group of Tennessee lawmakers in the state House Education Subcommittee voted Wednesday to place the controversial bill HB0229 on track to be voted on by the full House before their adjournment in the spring. HB0229, colloquially referred to by opponents as the “don’t say gay” bill, would declare it illegal for any “public elementary or middle school [to] provide any instruction or material that discusses sexual orientation other than heterosexuality.” The bill, the product of a cadre of representatives headed by House Education Subcommittee chair Joey Hensley, represents the most recent in a series of attempts by Tennessee conservatives to define what constitutes appropriate discussion of sexual orientation.

The drafters of the bill argue that discussion of homosexuality is a “complex subject with societal, scientific, psychological, and historical implications” and that kids are too immature and unready to appreciate discussion of the matter until they reach high school. Instead, they assert, any discussion of sexuality outside the realm of “natural human reproduction science” should be the exclusive purview of the parents. This casting of the bill as “pro-parent” instead of “anti-gay” has seen the measure receive support from both sides of the aisle, including prominent Tennessee Democrat John DeBerry, who said of the bill “The basic right as an American is my right to life, my right to liberty and my right to the pursuit of happiness . . . Within that includes being able to run my home, raise my children as I see fit and to indoctrinate them as I see fit."

Opponents of the bill assert that it represents another in a long line of efforts by state conservatives to silence and stigmatize discussion of “unnatural” lifestyles, as well as to send a signal that homosexuality is an unwelcome element in educational discourse. Community leaders across the state, such as Rev. Thomas Kleinert of Nashville, encapsulate opponents’ frustration: "Our children have to deal with [homosexuality] long before they've reached sufficient maturity . . . Silence in the classroom only adds to the cloak of pain and shame, whereas open, age-appropriate conversation may give them a chance and the courage to talk to an adult they trust."

The furor around this bill is centered around one of the most salient social issues of the last few years: the role of schools (and, by extension, the government) in influencing the ways children are taught to relate to LGBT individuals. Religious conservatives, traditionally in opposition to gay rights, use laws such as the one contemplated by HB0229 to silence discussion about topics they find immoral, quashing the contribution of dissenting voices. To them, this is beneficial, as it limits potential “negative” influences that would conflict with parents’ intentional indoctrination of their own sexual morays during their children’s formative years.

Is silence, even in the name of parents’ rights, the most sensible policy choice? Recent evidence suggests otherwise. A similar school policy prohibiting discussion of LGBT topics is already the standard in Anoka, Minnesota – a town located in Michelle Bachmann’s notoriously conservative congressional district – and has come under fire recently as a potentially-contributing factor in a number of suicides that occurred over the recent year. Supporters of the “gag rule” on LGBT discourse, such as the Minnesota Family Council, argue that the school district is merely employing a “policy of neutrality” and that discussion of sexual orientation should not advertently attempt to portray representations of homosexuality in a positive light. Such portrayals, they argue, contravene the moral lessons that they are teaching their children, and are so controversial that they do not belong as part of the public curriculum.

The effects of the gag policy look somewhat different from the perspective of the actual teachers and school administrators, however, leading several prominent educators to express their frustration publicly. They argue that the neutrality policy creates arbitrary limits to effective education by disabling discussion of the role of gay rights in American society, the contributions of LGBT Americans throughout history, and the mechanics of sexual attraction in both biology and health classes. More insidiously, however, the policy, in the eyes of Colleen Cashen, a school counselor, creates “an air of shame” and stigmatization, sending the not-so-subtle message to LGBT individuals that any unconventional expressions of their gender/sexual identity will not be tolerated.

The net effect of this is twofold: 1.) It does nothing to stop the repeated instances of homosexual bullying reported at Anoka schools, as school administrators fear that they are being obliged to “ignore, minimize, dismiss, or in some instances, to blame the victim for the other students’ abusive behavior” as a result of the policy. 2.) LGBT students are unable to find guidance in this environment, leading to assumptions that their identity confusion is a source of guilt and lessens their worth as individuals.

Ultimately, the opposition to gag rules, such as the one contemplated in Tennessee, derives from the recognition that discussions about sexual identity and orientation don’t end simply because they are declared off limits by the legislature. By blocking the entrance of the guidance of teachers and trained counselors into the discussion that children are already having about themselves and their peers, Tennessee conservatives may very well be inviting their own climate of stigmatization and isolation. 

Eating Poor in Texas

“We don’t get many people around here buying these . . . vegetables, I mean.”  This poor Wal-Mart cashier—for the life of him he could not figure out what he held in his hand so that he could put the code into the register.  Iceberg Lettuce: 1 – Rural Northeast Texas Health and Wal-Mart Cashier: 0. 

At least that small East Texas town has a supermarket.  Other places are not so lucky.  The United States Department of Agriculture has declared many census blocks around the country “food deserts.”  These areas are defined not by the absence of places to get food at all, but by the absence of healthy food.  Overpriced corner stores lacking basic produce, staples, and cheap prices along with fast food restaurants supply the demand for food in many of these neighborhoods and, in some cases, whole communities.

Houston, Texas, epitomizes the problem.  According to a December 2010 Food Trust study, Houston has among the fewest grocery stores per capita in the country for a total of 185 too few grocery stores overall.  Areas where people are further than a mile from a grocery store can be seen in a map produced by the University of Houston, and predominantly featured are poor, minority neighborhoods.  And the USDA’s Food Desert Locator literally paints the city red with food deserts in which people lack ready access to nutrition.

Poor communities in North Houston, the Fifth Ward, the Third Ward, and other locales around the city are dependent upon public transportation more so than their wealthier neighbors, and as such, what few grocery stores are available are hard to access.  Comparing, for example, the Third Ward to the Greater Houston Metropolitan Statistical Area, in the Third Ward only 51% of people travel to work (and presumably, travel to the grocery store) in their personal car by themselves versus 78% for the area as a whole.  Twenty-one percent of Third Ward residents travel by public transport versus 2% of the Greater Houston area.

However, Houston might also stand as a testament of how to approach this tremendous civil rights challenge of getting people access healthy food within their reach.  At-large councilman of Houston Stephen Costello is pushing the City Council to give tax breaks and other incentives to grocery stores that build in food deserts.  As of November 2011, at least three such incentivized projects were underway; however, while these stores are located close to areas deemed food deserts, none are in Third Ward neighborhoods.  Only time will tell if the city will throw its energy into more of these projects, and furthermore that it will spend its money on targeting the worst-off areas most in need of a good supermarket.

Supermarkets will solve the problem of food deserts but not the challenge of limited income, and, perhaps equally difficult, the challenge of reconciling healthy eating with years of a different lifestyle.  Efforts to change how people eat will come with a risk of imposing on people new food choices against their preferences, which is doomed to fail.  Thinking of a luckier part of the Fifth Ward in Houston, the meat section of a local H-E-B there is lined for a good fifteen feet with super-sized packages of chicken legs, chicken wings, and chicken thighs.  And if a person does not feel like cooking, a fried chicken restaurant is available near the front.   It seems like a stereotype because it is one, lived out in the form groceries.  This H-E-B has a small produce section, but I saw nary a soul stopping to add greens to her basket.   The meat section: crammed.  All of this is not to judge people for their lifestyles, or even to criticize H-E-B for giving the people what they want.  Instead, I hope to encourage a dialogue of understanding, education, and compromise combined with a discussion of how best to provide easy access to healthy, high quality, affordable food to the poor of cities like Houston. 

Ralph C. Mayrell

Staff Editor

NYPD Stop and Frisk Program Disproportionate Impact on Communities of Color

Earlier this week, the New York Civil Liberties Union issued a press release announcing the results of its most recent analysis of NYPD street stops. The NYCLU has been tracking the NYPD’s stop-and-frisk program since 2002, when the Department first began collecting data on the controversial practice. During this period, the NYCLU reports, the number of documented street encounters increased 603 percent, from 97,296 in 2002 to 684,330 in 2011. In case the numbers aren’t sufficiently compelling, NYCLU Executive Director Donna Lieberman offers a provocative metaphor: “Last year alone, the NYPD stopped enough totally innocent New Yorkers to fill Madison Square Garden more than 30 times over.” Consider this a somber counterpoint to the “Linsanity” currently sweeping the city.

Of course, the total number of stops doesn’t tell the whole story. In fact, it’s the story that’s not being told that warrants the most scrutiny. The numbers don’t tell a story of stops involving whites, Asians, or Native Americans—eighty seven percent of stops in 2011 involved blacks or Latinos, despite the fact that these groups together comprise only fifty two percent of the city’s population. Nor do they tell a story of stops protecting the public from incipient crimes—eighty eight percent of all documented stops since 2002 have resulted in no arrests or summonses. Nor, for that matter, do they even tell a complete story—the stop-and-frisk database is famously plagued by inaccurate reporting, and the statistics can’t even begin to measure the impact of aggressive policing on police-community relations. Every now and again, an essay or op-ed article reminds us of the distinctly personal consequences of routine stop-and-frisks, but by and large, the public equates “police misconduct” with “police brutality.” The veritable epidemic of stops involving blacks and Latinos consistently flies under the radar.

Beyond raising critical issues of civil liberties and civil rights, the stop-and-frisk program creates an environment of mutual suspicion and, for the communities affected, competing impulses to defiance and resignation. Defiance finds expression in protests, online dissemination of videos labeled “NYPD brutality,” and refusals to submit to police authority—whether through non-compliance with an order to “stop” or through claims of ignorance when questioned about a crime. Resignation, for its part, often takes the form of parents raising their children to anticipate police encounters—admonishing them to carry identification and keep their hands out of their pockets—and young people of color growing to expect frisks upon sighting a patrol car or one of the ubiquitous dark-colored sedans that signals the arrival of a plainclothes unit. There may be an estimated eight hundred languages extant in New York, but the non-verbal communication of a drawn firearm or a pat-down is understood by all.

Admittedly, the issue is more complicated than the numbers or the well-worn anecdotes suggest. The NYPD contends that the disproportionate impact of stop-and-frisk on communities of color is attributable to the generally high levels of violent crime in certain neighborhoods (e.g., Crown Heights, East New York, Jamaica, etc.) that happen to house large populations of blacks and Latinos. In this view, stop-and-frisk is a proactive approach to law enforcement—one that focuses on early intervention rather than post-crime investigation—and the NYCLU’s focus on the percentage of civilians released without criminal sanctions is misleading. Indeed, if it’s true that officers are stopping crimes before they occur, then in the vast majority of cases there would be no basis for charging the “suspect.” Moreover, the NYPD points out, in many cases communities want the police presence. The Trespass Affidavit Program, under which landlords authorize the police to question suspected trespassers in private residential buildings, attests to this fact. Perhaps most compellingly, the NYPD argues, policing is a verifiably dangerous job, and we don’t want officers’ hands to be bound when they sincerely believe they’re at risk. Frisks are a self-protective measure that’s minimally invasive and, ideally, used sparingly.

The problem is, statistically and anecdotally, stops and frisks seem to be rather discretionary. According to the most recent statistics published by the Civilian Complaint Review Board (CCRB), the independent agency tasked with overseeing the NYPD, between January and June 2011, 31.3% of all complaints involved at least one allegation of question, stop, frisk and/or search. Under New York law, officers do have broad authority to question civilians suspected of engaging in criminal activity, and, assuming they can articulate a legitimate basis for believing that the civilian was in possession of a weapon, to perform limited self-protective frisks. See People v. De Bour, 40 N.Y.2d 210 (1976). However, not only are these powers fairly tightly circumscribed, but they decidedly do not permit searches of a civilian’s person or possessions—one of the most common allegations investigated by the CCRB. Furthermore, the CCRB’s data is entirely dependent on civilian reporting, and is therefore necessarily incomplete. Like the NYPD’s stop-and-frisk numbers, they paint only a partial picture of life under Mayor Michael Bloomberg and Police Commissioner Ray Kelly.

Stop and frisk is a complicated, and deeply divisive, issue. This piece hasn’t even touched on the practice of questioning civilians in New York public housing developments (in 2010, the CCRB issued a recommendation to the NYPD for retraining of its officers on legal standards), or the breakdown of stops by borough, neighborhood, and Precinct. The bottom line is: This is a conversation that needs to continue year-round, not simply when the newest data is released. 

Texas's New Abortion Ultrasound Law

In Texas Medical Providers Performing Abortion Services v. Lakey, decided last month, the Court of Appeals upheld Texas’s new abortion ultrasound law, holding that Sections 171.012(a)(4) and 171.0122 were not in conflict in an unconstitutionally vague way.  Section 171.012(a)(4) of the new law lists what the physician must do: have a sonogram performed, display the sonogram images, perform a heart auscultation, and provide verbal explanations of the sonogram images and heart auscultation.  The court noted that the Section specifically does not require the physician to ensure that a woman views the sonogram images or that she listens to the heart auscultation of the fetus or the doctor’s explanations of both.  The court acknowledged that physicians are not responsible for a woman’s choice to refuse to look or listen to the information being provided to her.  The court further stated that Section 171.0122 expressly gives the unconditional right of every pregnant woman to refuse to view the sonogram or hear the fetal heartbeat.      

While it may be possible for a woman to avert her eyes to the sonogram of her fetus by turning away, I imagine it would be practically impossible for a pregnant woman to simply not listen to the heartbeat of her fetus.  Having never been pregnant myself, I can only anticipate the emotional weight that the heartbeat of a woman’s fetus carries, but I assume it is both deep and immense.  Pretending that a woman can simply cover her ears when faced with such a sound shows either ignorance or naiveté on behalf of the court.  And given that a woman cannot truly refuse to listen to the heartbeat of the fetus she carries, that the State would force her to listen to it while it continues to allegedly give every woman a right to choose to have an abortion during her first trimester is cruel.  The act basically insinuates that the woman is murdering what could be her future child by blatantly shoving its heartbeat in her face.  Such State-mandated torture mirrors the actions of protesters who stand outside abortion clinics mocking and tormenting the women who enter and places an undue burden on women exercising their constitutional rights to receive abortions.    

Furthermore, the new law provides an exception for rape and incest victims, although they must certify their status as victims in order to avoid the law’s requirements.  The fact that the law includes this exception shows that even those who wrote it must understand that providing a woman with an abortion need not include forcing her to hear the heartbeat of the fetus inside her.  There’s no medical reason to do so.  There’s no ethical reason to do so.  The proposed law forces physicians to become protesters of abortion by requiring them to persecute women who are simply choosing to exercise a legal right.      

Learning from Our Parents’ Protests: Occupation Unidentified

One consistent critique of the Occupy protests has been their lack of leadership.  Michael Moore called it a “leaderless movement” during his visit to the Denver protests last week.  What Moore seems to admire about the movement is precisely what has been a sore spot for Denver Mayor Michael Hancock.  As concerns about sanitation, health, and safety in Occupy protest sites grow, particularly as winter approaches, it is easy to understand the Mayor’s frustration.  It is considerably more difficult to negotiate arrangements for sanitation, and health and safety with a leaderless group. 

Earlier this week Denver Occupy acquiesced to the Mayor’s insistence that some kind of leadership be selected for the group.  Inspired by the Citizens United ruling treating corporations as people, the Denver protestors elected a well-known fixture at the protest in a landslide, Shelby.  Charismatic and photogenic, Shelby has been receiving a lot of attention, which she seems to be heartily enjoying.  It should probably be mentioned that Shelby is a three year-old Border Collie mix.  No word from the Mayor’s office on how this new diplomatic relationship is progressing, though I suspect there are concerns about the Mayor bribing the young and impressionable Shelby with cookies, ear rubs and walkies. 

Perhaps a tongue and cheek selection of a leader is the only kind possible with the Occupy protests.  The protests consist of a demographically diverse group and it seems that each protestor is there for a different reason.  This lack of focus has been fodder for much criticism and humor at the expense of the movement.  To outsiders at least it seems the only thing that ties this protest together is outrage.  Some Occupy protests have developed elaborate ways of attempting consensus (see Kristine Baumstark’s October 17, 2011 post in this blog; A similar system is in use at the Denver protest), which may help protestors feel like they are being heard, but are unwieldy and ill-adapted to timely or “big picture” decisions.  The lack of national leadership makes changes in national government policy virtually impossible.  Without leadership to articulate a coherent purpose there is no way to negotiate with or appease this crowd.

A lack of leadership, coupled with (or caused by) unfocused outrage, makes it difficult to envision the Occupy movement doing more than fizzling out when the cold hits.  Apart from hoping its press attention will spur broader public engagement, it is difficult to see just how the movement hopes to affect change.  This is not to criticize the protestors’ ideals (goodness knows, there are a number of subjects of outrage represented that I agree with), but generalized outrage does not appeal to me for the same reason that I’ve never felt the urge to scream at an ocean.  Sure you can do it, but why?  

Previous civil rights movements’ protests were successful in affecting change because they were focused.  When disability advocates in the 1960s and 70s held sit in protests there was little confusion as to why they were there – they were outraged, but with a purpose.  Rather than protesting for disability rights generally they would have a sit in at the regional transportation authority protesting for public transportation accessibility or lobby for what would become the Americans With Disabilities Act. 

The point is this: The jokes about the Occupy movement are getting tired, illnesses and injuries among the protestors are increasing, and it’s getting cold outside.  It is time for the protestors to articulate a vision for their movement or find leaders who can do it for them.  Failing to do so gives the people in power a pass to ignore the popular movement as a curio of flashes and bangs that disappear in the blink of an eye and are forgotten almost as quickly.   

Mandatory Child Abuse Reporting

The world of sports was rocked this week by former Penn State assistant football coach Jerry Sandusky’s indictment for allegedly abusing eight young boys over the last fifteen years.

As the week progressed, it was revealed that Penn State officials knew about Sandusky’s actions, at least to some extent,  and failed to take action.  The fallout included the firing of long-time head football coach Joe Paterno and the departures of university President Graham Spanier, Athletic Director Tim Curley, and Senior Vice President for Finance and Business Gary Schultz.  Additionally, a graduate assistant coach who witnessed Sandusky abusing a young boy and did not report it to the police has been placed on administrative leave.

Paterno’s firing, although supported by much of the country, has raised the question in many people’s minds: Was he required to go to the police, or did he fulfill his duty by telling his superiors about what his graduate assistant witnessed?

Based on statements made thus far, it appears unlikely Paterno will face charges for failing to report to the police because he fulfilled his duty by reporting to his superiors, the athletic director and vice president of the university.  However, some people familiar with Penn State are speculating that Paterno filled such an authoritative role within the university that his decision not to go to the police guided everyone else in their inaction.

Almost every state, including Pennsylvania, has legislation naming specific professions whose members are mandated by law to report mistreatment of children to law enforcement.  Those statutes typically include professions such as social workers, teachers and other school personnel, doctors, child care providers, and law enforcement officials.   Pennsylvania’s statute does not require someone in Paterno’s position to report suspected abuse to law enforcement.

Many mandatory-reporting statutes specify which communications are privileged and which are beyond that privilege and must be reported.  For example, states often exempt communications between an attorney and his or her client, but require communications between a doctor and patient or husband and wife indicating possible abuse to be reported. 

In making these laws, states must strike a balance between a desire to protect children and an individual’s constitutional rights.  Most recently this analysis has arisen in connection with mandatory reporting statutes that compel a clergy member to disclose information in a manner that impinges on his religious beliefs.  Only a few courts have spoken on this conflict so far, as many of these statutes arose more recently after the Catholic priest child abuse scandal.  Those courts that have addressed this issue tend to support the state and uphold the reporting statute.

The ACLU has also spoken out against expanding mandatory reporting statutes in some instances.  Last spring the ACLU of Illinois described a pending bill that expanded mandatory reporting of child abuse to cover every employee or volunteer of any organizations that provides or refers for reproductive health care as “creating cumbersome and unnecessary bureaucracy and training requirements for non-profit organizations and diverting time and money from patient care.”

Although it appears Paterno did not violate a legal duty to report, it remains to be seen whether mandatory reporting laws will be changed in Pennsylvania or elsewhere as a result of these events.  The media storm will inevitably continue and people will debate Paterno’s legacy, but we’d do best to remember the true victims of this abuse – the young boys whose lives were changed forever. 

Zombify Wall Street

This is a post in two parts. Part I approaches the Occupy Wall Street movement as a largely un- or misinformed person, talking like I know what I’m talking about. In other words, it’s a commentary/discussion of OWS before the author did any research whatsoever. Knowledge about the movement was limited to brief conversations with other people and general, if light, media awareness. Part II is a reflection on Part I based on subsequent research.

Part I

As a mathematic equation, I understand Occupy Wall Street (OWS) as follows:

Variety of People+Varying Degrees of Anger/Dissatisfaction+Extensive Media Coverage=OWS.

Notably this is only one element (hunger for brains) away from a zombie occupation.

Humor aside, having a hunger for brains seems like it might be an improvement for the protestors. As it stands, they don’t appear to have a hunger for anything besides doing “something” about the 1%.  Indeed, the title “Occupy” is apt: all the protestors seem to be doing is occupying, camped out in front of building were other people come to work.

I am, of course, being unfair. OWS is at a protesting disadvantage because it’s not protesting anyone or anything in particular. There is not a particular company, government body, or individual who has specifically earned OWS’s ire. It’s protesting “the way things are.” It’s not so much protesting the 1%, that top tier of economic society where all the wealth is. It’s protesting the fact that such an imbalance exists. And since there is no particular business or person to be mad at, OWS has settled on the most obvious physical manifestation. In New York, that’s Wall Street. In other cities protestors have decided upon city hall or some other equivalent representation of “the institution.”

And let’s be honest, when we talk about the imbalance that has brought occupiers to the streets, I think we all carry a little chip on our shoulders. If it’s really true that 1% of the people in our country have most of the wealth (and I honestly don’t know, I just have seen signs to that effect), then I can certainly see that some protesting is in order. Or at least a strongly worded letter. Because you and I and everyone else want some of that money, need some of that money. And if the current economic or government or social system is encouraging this type of imbalance then we should encourage change in those systems.

The problem then, is not that the occupiers don’t have a valid complaint. In fact our country was founded on a pretty similar complaint. The problem is that OWS has identified a predicament without proffering a solution. Imagine, for example, if the Continental Congress had issued their grievances in the Declaration of Independence without later establishing a working and lasting resolution in the Constitution. A solution is one of the reasons we had the American Revolution and not the French Revolution (yes, I know about the gross historical inaccuracies here. It’s only for illustration).

Obviously the analogy is asking a lot from the protestors who appear (from pictures) to be a mix of honest, hardworking, recently unemployed, average Americans and vagrant hippies. But it’s not necessary for the protestors to channel the Founding Fathers. Some indication of some sort of leadership or clear goal or demands would suggest more is going on behind the eyes than a dull throb of angst, simmering occasionally to anger.

I guess, in summation, that I agree with OWS that there is a problem with the balance of money and power in our society and I think it’s fine that they’re waving around signs saying so. But I don’t trust or expect them to do anything lasting about it. And so, frankly, I expect OWS to go the way of Elian Gonzales, a vaguely remembered event that used to be a big deal.

On the other hand, if OWS develops a hunger for brains, I think we’ll be talking about it for years to come.

Part II

Okay. So I want to spend as little time as possible apologizing for anything I wrote above that is inaccurate, insulting, or otherwise an indication of gross ignorance. The ignorance was intentional and is intended to demonstrate a possible attitude an average “mind-my-own-business” American may have to OWS. Unfortunately, I don’t know what to think anymore about anyone’s attitude toward OWS.

I am simply blown away by how much is being said and written about OWS. To the point where I don’t really know what to say that hasn’t already been said, it would seem, hundreds of times over.  And this is after seven weeks (ending November 4).

I’ve faulted OWS pretty heavily for the lack of a clear message. And I am far from being the only one. But after learning more, I’m less certain that’s a bad thing. The movement is very, very young. Yes, it is made up of a wide collection of people with amorphous views all united behind generalized dissatisfaction with the current economic situation. And no, they don’t know what exactly to do about it. And as far as I can tell, no one is really talking for OWS; everyone is talking about OWS. But, I have been convinced that all this is just fine for right now. I am convinced that it is more important for OWS to focus on surviving than it is to focus on clear demands.

I did a Google Trends search, which allows you to look at the frequency with which terms have been searched on the engine and, as you might expect, “Occupy Wall Street” skyrockets in the end of the third quarter of 2011, coinciding with the OWS’s first activities in mid-September. Just for perspective, I compared the result with searches for “Facebook,” “Google,” and “Wikipedia.” OWS didn’t measure up (Facebook has the commanding lead).  The most interesting comparison I made was to “Tea Party,” which had a similar meteoric rise in early 2009, coinciding with the movements February 2009 protests. Both also rapidly tail off. Fortunately for the Tea Party, interest has continued to some degree and so has the Party itself. It’s too early to tell whether, OWS will have a similar continuing existence, or if it will fade into obscurity.

If it does fade, it will not matter what OWS demands. And survival may be a struggle. With the winter coming on fast, Occupy Wall Street may be forced to stop occupying Wall Street. It remains to be seen how much the solidarity and loyalty of the organization depends on its literal visibility on the streets of New York and other cities. What form will the movement’s strong social network presence take? Can a leader or a group of leaders emerge from the morass? Difficult times are ahead.

But like a rough stone rolling, each obstacle that OWS manages to overcome will help to refine and define the movement. If it survives, it will prove that it is worth listening too. And I have no doubt that if it survives, the movement will have a found a clear voice.

And it will say “BRAAAAAAIIINS….”

Just kidding.

Glen Ellsworth

Deliberately Indifferent Training and Brady Violations

John Thompson spent 18 years in prison following convictions for attempted armed robbery and murder. A month before his scheduled execution, an investigator hired by Thompson’s lawyers made a discovered a lab report which exonerated Thompson of the attempted robbery charge.  The report contained results of a test conducted on blood left by the robber on the clothing of one of the victims. The robber had type B blood. Thompson’s is type O. The prosecutor in Thompson’s attempted robbery case deliberately withheld the test results from defense counsel despite Brady v. Maryland  in which the Supreme Court held that a prosecutor has a duty to disclose exculpatory evidence to the accused. At Thompson’s subsequent trial on the murder charge, he understandably declined to testify so that the attempted robbery conviction could not be used for impeachment purposes. In course both convictions were overturned. A second trial on the murder charge produced a defense verdict after 35 minutes of jury deliberation.

When Thompson sought compensation from the District Attorney’s office, his legal options were limited. The actual prosecutors who committed the Brady violations were immune from liability. Thompson could only successfully bring a §1983 action against Connick, the New Orleans District Attorney, in his official policymaker capacity, under a theory of municipal liability. Thompson could not sue Connick on the basis of respondeat superior, disallowed by Monell v. New York City Department of Social Services. A municipality is subject to liability under § 1983 only when the violation of the plaintiff's federally protected rights was caused by enforcement of a municipal policy, a custom or practice, or a decision of a final policymaker. 

Under City of Canton, deliberately indifferent training may also give rise to §1983 liability. §1983 municipal liability may be based upon deliberately indifferent training that was the moving force of the violation of the plaintiff's federally protected rights. To make out such a claim, the plaintiff must demonstrate specific training deficiencies, and either a pattern of constitutional violations of which policymaking officials are charged with knowledge, or a showing that training is obviously necessary to avoid constitutional violations. Thompson sued under the Canton supported theory that additional training of the District Attorney’s employees was obviously necessary to prevent Brady violations.

The overwhelming evidence provided by Thompson was breathtaking. The jury found for him in less than thirty minutes to the tune of 14 million. The Fifth Circuit affirmed but the Supreme Court reversed. The Court did not take issue with the jury instructions or with the facts as presented. So what could possibly have been the problem? The majority opinion essentially claimed it is impossible for a jury to ever find deliberate indifference when it comes to prosecutors and Brady violations, regardless of the facts.  Prosecutors are already trained in the law.  Therefore, it can never be obvious to a policymaker (the DA) that additional training in the law is needed to prevent constitutional violations on the part of subordinates. As such, deliberate indifference can never be established.

The opinion ignores the evidence in the record, shows contempt for the concept of jury fact-finding, creates a new, categorical exemption from current law for prosecutors (without admitting it), and leaves a wrongly accused man who spent 14 years wasting away on death row with nothing. 

Will Ellis

Drug Testing For Welfare Recipients

A judge in a Florida district court issued an injunction blocking a law that would require welfare applicants to submit to a drug test.  Though the judge’s decision that such a test would be an unreasonable search under the 4th Amendment has triggered a prompt appeal from the Department of Children & Families and disapproval from the Governor Rick Scott, the issue is not unique to Florida nor 2011.  Three dozen states have debated drug tests for people receiving state assistance in one form or another, with Arizona, Indiana, and Missouri passing such programs.  Michigan instituted a program briefly in 1999 before ceasing it after a lawsuit was filed.

           

Unsurprisingly, the issue has come to the fore as the government labors to pay its bills and high unemployment rates persists. The arguments for and against the drug tests are relatively well-established.  Proponents of the test argue that in order for the state to spend its funds wisely it should screen its recipients, and that drug testing potential welfare recipients is no different than companies drug testing potential employees. Opponents argue that welfare recipients do not represent the government in the same way that employees represent companies, and that requiring drug tests without individual suspicion reinforces stereotypes about drug use amongst the poor. 

If the state denies funding to welfare recipients or the unemployed based upon drug testing, why not require any recipients of state funds, including corporate CEOs, to submit to similar testing? Recent examples of executive misconduct do little to dispel that reasoning. In fact, the Florida judge found a lack of a compelling state interest by citing statistics concluding that the percentage of welfare recipients who use drugs is in line with the rest of the general populace. The study has come under some criticism. 

The purported wisdom of the government’s policy in Florida lies in the savings it provides.  Previous attempts at instituting drug tests for welfare recipients had proven more costly than beneficial. In the brief period the Florida program was operational, it realized savings in part by seeing decreased welfare applications.  However, there is no guarantee that this will continue.  Instituting a drug testing policy certainly requires fixed costs, and eventually welfare recipients who are drug users might find a way to circumvent the testing requirements (for example, using a non drug-using friend or family member).  Running a welfare program necessarily carries the risk that some of the money dispensed will be wasted.  Adding another level of bureaucracy to address one negative consequence and that might create others (such as an increase in crime as drug users look for other sources of money) does not seem an effective answer.  If a state government commits to a welfare program, it may be better off recognizing the reality that its program will not work perfectly, but that the differences it can make will outweigh the obstacles it encounters.

           

Charles Falck

Taking Students to Court for School Misbehavior

In Texas, the municipal courthouse is the new principal’s office.  School districts increasingly rely on ticketing to address low-level student misbehavior.  This means more students are being fast tracked into the criminal justice system.  Moreover, whether and when a school district issues tickets is completely discretionary.  This means students from certain school districts, and minority students, are disproportionately ticketed and pushed into the criminal justice system.

Since the 1990s, Texas schools have begun commissioning and padding school-based police forces.  Today, police patrol the hallways of most Texas public schools.

The increase in school-based policing coincides with schools’ increasing reliance on Class C misdemeanor ticketing to address student misbehavior.   The percentage of non-traffic tickets issued to juveniles grew from 2% in 1994 to an astounding 40% in 2008.  In Austin ISD, a recent 31% growth in police staff coincided with a 50% increase in student ticketing.  Dallas ISD recently experienced a 24% growth in police staff and a corresponding 95% jump in ticketing.   Overall, in the 2006-07 school year, Texas juveniles received a total of 275,000 non-traffic tickets.

The increasing use of ticketing as punishment for school misbehavior is concerning because of the criminal consequences for youth.  Students receiving tickets must appear in municipal court.  Students who are convicted have criminal records.   Moreover, courts issue warrants for arrest when students fail to appear or pay the court-ordered fine.   In other words, receiving a ticket for school misbehavior may put a student on the fast track to the criminal justice system.

The criminal consequences are doubly concerning because most tickets are issued for low-level, non-violent offenses.    Only 12% of tickets issued during Texas’ 2006-07 school year were for violent or weapons offenses.  The majority (52%) of tickets issued in 2006-07 were for the misdemeanors “disorderly conduct” and “class disruption.”   The disorderly conduct and class disruption categories include typical, arguably trivial, school misbehaviors like using profanity, yelling out answers in class, physical scuffling with another student, throwing paper airplanes in class, and throwing food in the cafeteria.

School districts have wide discretion when it comes to ticketing.  This means different districts answer the question of whether to ticket differently.  Some districts ticket sparingly, while others ticket regularly.  For example, in 2006-07, Humble ISD issued 431 tickets to its student body of 31,144, yielding a ticketing rate of 1%.  Compare to Galveston ISD, which issued 921 tickets to its student body of 8,430, yielding a ticketing rate of 11%. 

Different districts answer the question of when to ticket differently, too.  For example, Austin ISD only issues tickets for fighting when one student assaults another, whereas Houston ISD issues tickets for various types of fighting, including “mutual combat” between two students.   Districts also answer the question of when to ticket differently for students with different skin colors.  Across the state, African American students are disproportionately ticketed.  In a typical example, Dallas ISD issued 62% of its tickets to black students.  Yet black students comprise only 30% of total enrollment.

Overall, recent growth in school-based policing had coincided with a vast increase in the number of tickets issued to Texas students for low-level, non-violent school behaviors.  Therefore an increased number of students are pushed into the criminal justice system.  Moreover, ticketing policies vary from school district to school district, and from student to student.  Therefore students from certain school districts, and minority students, are disproportionately pushed into the criminal justice system.  The overall increase in the number of tickets issued, and the discretionary nature of ticketing, must be addressed by the Texas legislature.  Possible legislative solutions include (1) mandating a graduated model whereby students cannot receive tickets until their third consecutive offense, and (2) entirely eliminating ticketing for the low-level offenses of disorderly conduct and class disruption.

Note:  All data and statistics referenced in this post are from a recent Texas Appleseed study.

Citation:  Texas Appleseed, Texas’ School-To-Prison Pipeline: Ticketing, Arrest & Use of Force in Public Schools (2010), available at http://www.texasappleseed.net/images/stories/reports/Ticketing_Booklet_web.pdf.

Therese Edmiston

The Decline of African-American Players in Baseball

In 2010 and 2011, the Texas Rangers Major League Baseball Club won the first two American League pennants of their otherwise mediocre existence.  In both cases, they clinched the pennant with an active roster littered roughly equally with a mixture of Anglos and Latinos, except for one lonely African-American – 41-year old journeyman relief pitcher Darren Oliver.  However, the Rangers do have an African-American manager who America is falling in love with – the always enthusiastic, hyperactive Ron Washington.  While the playing roster itself has only one African-American contributor, the team leader is none other than the New Orleans bred African-American baseball lifer Washington, who still makes his home in the city’s infamous Ninth Ward.

            

This construction of a Major League Baseball (MLB) team is less surprising than it probably should be.  The MLB Racial and Gender Report Card, issued annually by The University of Central Florida’s Institute for Diversity and Ethics in Sports, gave MLB an “A” for its racial hiring practices in 2011.  This grade follows “A” grades in both 2010 and 2009.  Major League Baseball is receiving credit for increasing its number of minority front office employees, managers, and coaches.  The overall number of non-white players is also increasing, largely due to the percentage increase of Latino players in the game from 13% in 1990 to around 27% today.  However, this progress comes at a time when the number of African-American players in the game is steadily decreasing, from 17% in 1990 to a paltry 8.5% in 2011. 

Several factors are often cited to as the reasons for this decline.  One is that the sport itself is inherently more expensive to play than other sports, because of both the cost of equipment and the cost of joining a league. A good bat can cost between $300 and $600, and on top of that, a player needs gloves, batting gloves, and uniforms.  Furthermore, youth baseball (pre-high school) has become all about traveling teams, which cost a significant amount in both fees and traveling expenses.  Finally, at the collegiate level, NCAA Division I schools only award 11.7 baseball scholarships a year, reduced from 20 in 1981.  These costs push young African-Americans towards sports such as basketball and football, which can usually be participated in cheaply by comparison.  This disparity in the costs of playing the respective sports has contributed to the National Basketball Association (NBA) and the National Football League (NFL) being made up of roughly 80% and 70% African-American athletes, respectively, while MLB lags far behind.

Another factor causing the decline of African-American baseball players is the way the game markets itself.  Curtis Granderson, an All-Star center fielder with the New York Yankees who is also black, says when he played with Detroit that the team showed white players on all of their billboards around town, even though their roster had several black stars such as Granderson, Gary Sheffield and Jacque Jones.  Other All-star caliber African-American players such as Ryan Howard and Carl Crawford cannot seem to break into the house-hold name category.  Meanwhile, Barry Bonds, who is arguably the biggest African-American baseball star of his generation, is mostly vilified rather than celebrated as a result of his suspected steroid use, and right or wrong baseball has chosen to mostly disassociate itself with Bonds since his retirement from the game.  Young black athletes need star players that are both adequately marketed and look like them in order to retain their interest in the game, and there just is not enough of those players in today’s game.

A factor that perhaps is not discussed enough is the evolution of the economics of the game.  A black athlete who grows up in America cannot enter into the MLB draft until he’s 18, and a player picked in the first round (the only round where a player has a better chance than not to actually play an MLB game at some point) will get an average signing bonus of over $2 million.  Meanwhile, most Latin American players are signed at age 16 by a major league team for a six-figure contract, and only recently did elite-level Latin players begin receiving seven-figure deals.  As a result of both the age restriction and higher signing bonuses in America, teams sign three to four Latin American players for every young African-American athlete.  It is simply a “very pragmatic business [decision]” according to Jimmie Lee Solomon, the MLB executive vice president for baseball operations.

This brings us back to the Rangers, who were well-known to be in dire financial straits for the years leading up to their first pennant in 2010.  While the Latin American players on Texas’ current roster are mainly the product of shrewd trades, their commitment to signing and developing young Latin players is shown in the makeup of the team’s prospects: in both 2010 and 2011, 50% of the Rangers’ top 10 prospects were Latin born players.  50% were white.  0% was African-American.  The Rangers are now generally considered to be among the smartest teams in baseball, and one reason is their harvesting of cheap talent in Latin America while passing over young black players who cost more and are subject to more stringent labor restrictions.  As long as this model is a winning model, one can expect it to be mirrored by other organizations, and the number of African-Americans in the game may even further decline as a result.

Joel Eckhardt

Net Neutrality and the Amazon Fire

It could be said that the nature of technological development and the nature of government regulation are diametrically opposed. One is constantly evolving and enthusiastically pursued at an unprecedented rate; the other a system of compromises begrudgingly instituted after months of fettering debate. It’s unsurprising, then, that the speed of legislation pales in comparison to the speed at which tech companies are able to develop new, better and different products. In recent years, attempts made by the government to protect the media consumption and expression rights of its citizens have often been thwarted by Internet service providers that are incredibly motivated to direct the flow of online traffic to suit their interests.

                                                                                                                    

In fact, the current batch of FCC rules regarding net neutrality, instituted just last year, are already being sidestepped by new technologies. Amazon’s newest toy, the “Fire” tablet (an offshoot from their “Kindle” line of e-readers), has become the target of criticism regarding its browser’s processing system. The Kindle uses a new browser technology dubbed “Silk,” which allows for faster page load times on the tablet computer. Although this new browser technology would usually be seen as an improvement, complaints have surfaced about the browser’s potential to serve as a gatekeeper for certain web sites.  

In 2010 the FCC banned ISPs from employing this very practice. Unfortunately, with the way the FCC has defined the term “ISP,” Amazon may be able to escape any enforcement of its rule by arguing that they are not technically an ISP.  Until the FCC can modify its definition of ISP to include mobile devices like the Fire, manufacturers of these products will be able to escape regulation that protects the freedom of expression and consumption its users are entitled to via net neutrality rules.

What’s more, because the Fire is designed around the oft-touted cloud technology, Fire users face a risk that the new device may violate their privacy rights. This is because the cloud system of computing stores user data in off-device locations, which can then be farmed for consumer data at any time. Concerns have been raised that this technology would allow the corporation to collect web-browsing data on any of its users. 

In a world where the web has replaced television as the most popular news delivery source, it is clear that we need to protect our citizens’ rights to free consumption and expression on the Internet. It follows, then, that our government must adapt its practices to account for the unprecedented pace at which technologies are developing and altering the landscape of media consumption in this country. 

Ben Cukerbaum

Horizontalism and the Occupy Movement

          As the Occupy movement stretches across the nation, the United States is experiencing yet another episode of protest sparked by the ongoing economic recession and its effect on the widening wealth gap between the nation’s economic classes. In a decentralized outpouring of frustration, individuals are assembling to make their voices heard – although the voices lack a unified ring.
          At this point, the movement’s concrete goals seem unclear. While some localities have developed specific calls for action (e.g. Chicago, which issued a list of twelve demands on Sunday, October 16), the movement still lacks an overarching mission statement apart from the vision of decreasing wealth disparity. Various scholars point to the movement’s potential power from this disunity – one that is giving “time for activists to find each other, for them to identify common grievances and goals, even to identify their political opponents and how to attack the problem” (per Michelle Nickerson, Assistant professor of history at Loyola University).
          As we examine the movement in light of this disunity, its efficacy may hinge upon the strength of its organizational strategy and process. While Obama’s 2008 campaign and the Tea Party’s rise are recent examples of successful public assembly to achieve political ends, the Occupy movement may not fit within this policitized framework.

          Organizer, lawyer, and postdoctoral fellow at the Committee on Globalization and Social change Marina Sitrin argues that the movement fits better into “horizontal” framework – one that recognizes the need for individuals to come together and make change outside of the government. She cites Argentina after the 2001 economic recession as a protypical example of such a movement,  gaining strength from its “from the people, by the people” approach outside of a traditional political context. She hopes that this is the beginning of a societal shift, in which people begin to form participatory units outside of the traditional political context to create change within their own communities.

          Does this movement have the power to give back Americans the strength of their social capital, which Robert Putnam’s Bowling Alone argues has disappeared as we become more socially disconnected in the internet age? Whether widespread and decentralized organization can spring from the Occupy movement is yet to be seen. However,  in examining the movement’s efficacy, we must look less to its political accomplishments and focus on the ways it expands our strength in achieving ends in workplaces, schools, and towns across the United States.

If Canada isn’t enough for Occupy, then what is?

In late September 2008, after the federal government took over Fannie and Freddie Mac and the bankruptcy of Lehman Brothers, my development studies professor looked at the class and said something along the lines of “well class, modern capitalism as we know is going to change and I’m not sure what will happen.” In the years following 2008 it became clear the changes to modern capitalism would not be nearly as cataclysmic as my professor speculated—the Second Great Depression never materialized. In recent weeks however a new questions has been brought to the forefront—what should the modern capitalism look like.

The Occupy Protests have spread from Wall Street to over 70 major cities in the US. There is no unifying manifesto of the protests across America. Instead protestors have vented their frustration about the status quo of the economy. An often repeated fact is that almost forty percent of the wealth in America is held by the top one percent of Americans. The protestors identify themselves as the other ninety-nine percent of Americans.

An interesting off-shot has been the spread of the protests across the forty-ninth parallel to Canada. Fifteen Canadian cities have seen Occupy Protests as of October 14, 2011. The protests have found traction in Canada despite the presence of a more progressive tax system, less income inequality than the U.S., and the supervision and regulation of financial institutions, which are the very things American Occupy Protests implicitly advocate. But, in the view of the Canadian protestors, the Canadian system is still not enough to be what the modern economy should be.

The prevalence of the protests across the forty-ninth parallel raises an important question about what the ideal end result for the Occupy Protests in America will be. If the Canadian progressive tax system, and supervision of the financial sector is not enough to satisfy the Occupy Protest, then what will be? The protestors have been quick to vent their frustration with the status quo, but without a concrete vision of what the economy should look like, the Occupy Protest will have difficulty changing the status quo. Hopefully, if the protests continue, a clear message will be articulated other than just we don’t like the way it is. 

On the Scene at Occupy Austin

The other day I had occasion to be at Austin City Hall.  It was about 4:30 in the afternoon and I observed that the Occupy Austin group in the plaza was small and quiet, but the atmosphere was festive. There were colorful signs and banners hung on the walls and steps, and chalked messages on the concrete of the plaza. I was shocked, I admit, that the crowd wasn’t larger.

I walked back through the plaza about 7:30. The atmosphere was a bit different—still festive, but more active.  There were people standing by the curb holding signs, encouraging passing drivers to honk their support (which they did, regularly). There was a small, subdued drum circle, and more movement, more milling around. The crowd had probably doubled in size. “Ah,” I thought, “They’ve come from work.” An astute observation on my part, if I do say so myself, because what I’ve read, seen, or heard about the Occupy Wall Street movement is minimal (a first year law school student doesn’t have much time to keep up with current events).

So I began to wonder what was going on. Who are these people, exactly, and what do they want? Who’s in charge? Curious, I started exploring the Occupy Austin website http://occupyaustin.org, where I read their General Assembly Minutes from October 2^nd. Because it’s in writing, I didn’t get the full benefit of a live GA, where the group uses “the people’s mike” and hand signals to discuss and decide issues. 

If you’re unfamiliar with this system, there’s a great 4-minute primer here: http://www.npr.org/blogs/money/2011/10/05/141048592/occupy-wall-street-where-everybody-has-a-say-in-everything. In short, everyone repeats what is being said by everyone else so that everyone can hear what everyone is saying. And yes, when put into practice, it feels just that circular.

I’m sympathetic to the reasons behind this specific approach (the police won’t allow bullhorns, with which I’m also sympathetic), but it takes a really, really long time to get anywhere. The GA is where facilitators lead the group through decision-making by consensus using hand signals. You may have heard about the GA in Occupy Atlanta where it took 10 minutes to decide to NOT hear respected Civil Rights leader John Lewis speak. How they spend their time is at their discretion, but it took TEN minutes. Some members of the Occupy movement want to actually overthrow the government in its present form. Groovy. It’s gonna take a hellacious long time to make it happen at this rate.

But, back to the Occupy Austin GA. As I continued reading the transcript of the October 2^nd GA, it became obvious that the movement consists of many different demographics, which I find hopeful—calling themselves the 99% and then actually striving for that as a reality. Sure, there will be a good percentage of people out there who think the Occupy movement is ludicrous, but calling it a movement of the 93.7% doesn’t sound as good as 99%. Anyway, I was right—many of the participants hold full-time, 40-hour a week jobs (“Wow, you mean they aren’t all drop-outs and slackers who could never hold a job and now that the economy soured and even Starbucks won’t hire them and they don’t know what else to do in the afternoons after they’ve smoked the last of their stash, they decided to just hang out at the plaza and try to make life difficult for those of us who do work and pay taxes like true, God-fearing Americans?”—and yes, I’ve seen all of this and more aimed at the participants in online comments to news articles and blogs).

There’s the “underage” set, teenagers, who have stricter guidelines from the city about when they can assemble and under what conditions, but that’s okay; they’ll have plenty of time to protest at will when they get older. There are folks there with little ones (the community specifically addresses child care issues so adults can march), members of the LGBT community, union and labor, and even slow-foodies who are resisting corporate control by growing their own food. There’s a blog entry on Occupy Austin’s website written in Spanish.  Elsewhere in the blogosphere I read of the middle-aged, middle-class white dude who said he was economically “well off” standing next to a leather clad young man who was out of work; they were getting along, communicating and wanting the same fundamental changes to come out of the movement.

Several exchanges during the October 2^nd GA had to do with the police. I don’t remember seeing a single officer when I walked through, but I imagine there must have been a few. The facilitators stressed that the group had been given the go-ahead from the city government to assemble in the plaza, with one caveat—no sleeping in the plaza. The group decided to occupy in shifts, so no problem there. Otherwise, the facilitators reminded everyone, the police are public servants looking out for the safety of those in the plaza. Someone in the crowd (and hence the crowd in toto) suggested that everyone should be on the look out for any violence so that it could be dealt with immediately.  Someone else warned, a bit more ominously, “There could be provocateurs, government entities, so be aware and put a stop to it.”

It appears that the police and the Occupy participants had been on peaceful terms until this Thursday when four people were arrested for not leaving the plaza so it could be pressure-washed. Now, I have a problem with this last bit of the story for two reasons: one, some of the participants were using the corner of the plaza as their own private urinal, in which case, the city has every right to clean the place; but two, the city claimed that it “needed” to clean the chalk off the concrete—say what? Occupy Austin needs to be self-policing of its members or it will continue to have trouble with the city, and deservedly so. The city has a duty to the citizens of the city—100% of us. But…really? What harm is chalk going to do? It can wait until Dec 7^th, the self-imposed end to the occupation.

Kristine Baumstark