Confronting the Charlottesville Within Us

Yolanda Borquaye
Opinion Editor

After Charlottesville, friends from across the country called me to check in. Typically, their first remarks were of horror or shock. But for me, horror and shock fell much lower on my list. Instead, I first felt a sense of familiarity.

I remembered my mother’s face as she listened to the news while getting us ready for school. One morning, reporters droned on about how a white man had burned a cross on his black neighbor’s lawn in a town less than two miles away. My mother mumbled that she couldn’t believe “the Klan was resurfacing.”

I remembered the first day of sixth grade when my classmate passed me a note while our English teacher was reading a passage from “Night” by Elie Wiesel. In the note, he had drawn a picture of the Confederate flag with “the South will rise again” written in bubble letters.

I remembered years earlier when our third-grade persuasive writing assignment was to join in on the statewide debate for the new flag that would replace the Confederate bars and stripes flag that was plastered across Georgia’s state buildings. Though in these instances physical violence was absent, the hateful sentiments that enable the kind of physical violence we saw in Charlottesville, colored my childhood memories in Georgia.

And then, I felt confused as people continued describing the events in Charlottesville. As I listened to these well-meaning white friends discuss race in America, I could hear the binary they were creating. They took great care to say that these events were done by “them [over there],” and “we [over here]” would never do that.  It was as if they were trying to create a moral dichotomy that would absolve them their responsibility to dismantle the racism sown into the fabric of American society, as if they were distancing themselves from Charlottesville and failing to wrestle with how they are complicit in American systemic racism.

For them, the issue of race was neatly packaged in morality. It was not the ever-present reality that racism impacts even our smallest interactions. The labels of morality that have been attached to issues of racism fail to illuminate the entire picture of events like Charlottesville. These labels of “good” versus “bad” blind potential allies and all of us subjugated to racism to the reality that though some may not be intentionally racist, the system we all operate in is still racist.

The events in Charlottesville were unmistakably horrific and tragic. But so were the deaths of Philando Castile and the controversial acquittal this past summer that mirrored an age-old pattern. So was the assumption that a 12 year-old child playing with a toy gun was an immediate threat that warranted execution. And so is being followed by a white store clerk who continually encouraged me to buy t-shirts that were on sale at the back of the store in the back after repeatedly insisting that I needed the professional blouses I was touching.

Because of the degrees of violence found within racism, a binary centered on morality makes it easy to move people from one side or the other; to identify a racist or a non-racist.  The physical violence makes it easy to point at and attack the extremists like those seen in Charlottesville, while failing to do the same to the more subtle daily macroaggressions or to the larger system of racism that engulfs us.

Racism is part of the makeup of America regardless of whether you are old or young, or whether you are in the South or the North. Racism infects every facet of our culture like a virus that attacks a kindergarten classroom. Though some students may have to stay home with fevers and chills, while others are simply congested or have a chest cough, they all still have the virus. Racism in America functions the same way.  It operates 24 hours a day, seven days a week, during times of peace and prosperity and times of chaos. Racism is here under the Trump administration and racism was here under Obama’s as well.

It is time we stop looking at it as just a moral issue from which we can exonerate ourselves depending on how close we are on the spectrum to its most ugly parts and instead treat it like the all encompassing, never ending, harsh environment that it is.



Op-Ed: What’s Missing from the Dakota Access Pipeline Story?

Written by James Mayer

As opposition to the Dakota Access Pipeline grows around the country, the cultural heritage issues that are central to the Standing Rock Sioux’s fight are disappearing from the national conversation, replaced by a whitewashed narrative of environmental activism.

A Texas-based company, Energy Transfer Partners, is building the nearly 1,170-mile pipeline to carry oil from the oil fields of North Dakota to Illinois. The pipeline passes less than a mile from the Standing Rock Sioux reservation, through the Sioux’s traditional lands and, importantly, across several culturally significant burial grounds and sacred places. Dakota Access also crosses the Missouri River, the Standing Rock Sioux’s major source of fresh water, just upstream from the reservation. Energy Transfer Partners has already received a permit from the Army Corps of Engineers, yet the Standing Rock Sioux say they were not consulted during the permitting process and claim the pipeline will destroy significant cultural heritage sites. In September, a federal judge denied an injunction to stop construction until the legal issues were resolved.

The Standing Rock Sioux oppose Dakota Access because it destroys their cultural heritage by damaging sacred sites, destroying traditional burial grounds, and degrading ancestral lands, and this is the foundation of their legal challenge to Dakota Access. Central to the community’s legal case is that they were not consulted in the development or permitting of the pipeline, in violation of the National Historic Preservation Act. The Sioux allege that Energy Transfer Partners did not consult with them in surveying the pipeline route and did not approach them for input until permits were nearly approved. Until Dakota Access respects and accommodates the community’s cultural heritage, the Standing Rock Sioux will continue to fight.

This is not to say that environmental concerns are not also at the heart of the community’s struggle against Dakota Access, because environmental issues are central to the protests and are the basis of two supplemental legal claims. However, the mainstream focus on environmentalism, and the inevitable comparison to Keystone XL, are silencing the issues of cultural heritage and cultural sustainability that drive the opposition to the project. For many Indigenous communities, environmentalism and cultural heritage are indistinguishable. Separating environmental concerns from cultural contexts whitewashes the issue, marginalizes Sioux agency as a key element of this protest, and devalues the community’s cultural heritage.

The fight against Dakota Access is not just about environmental concerns due to a proposed river crossing near the Standing Rock Sioux’s reservation. It is a struggle for cultural democracy: the idea that all communities should have a voice in the public cultural issues that concern us, from how we are educated to how the government treats our community’s concerns; how business concerns are weighed; how problems are identified and solved; who has a say in civic life; and, ultimately, how our political system operates. Cultural democracy holds that all cultures have a right to coexist equally, that one doesn’t dominate over another. Removing Sioux cultural heritage concerns from the Dakota Access fight subsumes Indigenous cultures to mainstream white, liberal culture. The government’s alleged disregard for the Standing Rock Sioux community’s cultural heritage and environmental concerns over the pipeline is a gross violation of the democratic principles that are enshrined in the Constitution. The Standing Rock Sioux’s opposition to the pipeline should be a reminder to lawyers and future lawyers that culture matters.

If you want to learn more about this issue, I encourage you to join one of the various events on the Access Pipeline happening on campus, including the NYU Law chapter of the American Constitution Society’s lunch talk this ThursdayProfessor Stephen Pevar, a Senior Staff Attorney in the ACLU’s Racial Justice Program and an expert on Indian and tribal rights, will discuss tribal sovereignty, how it fits into the Dakota Access Pipeline case, and his role in the ongoing litigation.

Op-Ed: Nasty Woman: Why This Republican is Swiping Left on Trump

Written by Cristina Stiller

Believe you me, it is a lonely road being a Republican at NYU Law.

There’s this party game—it’s like truth or dare, but without the dare—where a group of friends can ask you anything for two minutes and you have to answer every question truthfully. As you can imagine, the game almost immediately devolves into a series of increasingly intimate questions about your sex life. But when my friends found out I was a Republican? Well apparently, that’s even kinkier than that one time you tried a butt plug and liked it.

For two minutes, my friends drilled me on the intricacies of my political beliefs. Here’s the TL;DR results of that endeavor: I’m a fiscal Republican, in the purest sense of the word. I’m a big fan of keeping the federal government (and the states) out of my bed and out of my womb. And I fully support policies that ensure they stay out of everyone else’s as well. You could say I lean Libertarian (although I know where Aleppo is—shocking, but true). But I keep my Republican registration card because, well, primaries are a thing.

There aren’t many of us roaming the fabled halls of this venerated institution. But for those of you who want hard, quantitative facts, let me give you a totally statistically relevant, not-at-all anecdotal idea of the ratios we’re dealing with. Last year, Professor Nelson asked the roughly 100 kids in my Property class, “How many of you are Conservatives?” I was the only person to raise my hand. You can’t argue with the facts, people.

Now, maybe there were one or two closeted Republicans lurking in the back row. Or maybe, everyone knew that whoever raised their hand would be required to have their ass in the chair for the remainder of the semester, never to skip again, if only to defend the faith. But whatever the case, the number of us who would actually dare to mutter those three dirty words, “I’m a Republican,” are thin on the ground.

And this was all well before my party decided that now was as good a year as any to totally and completely botch the presidential election.

So let me tell you a little bit about my party’s candidate. He wants to ban me. If he can’t get away with that, he at least wants to register me. He’s probably not a big fan of my Hispanic mom. He’s certainly not a fan of the fact that we speak Spanish in these United States of America. Oh yeah, and he wants to grab my…

I’d comment on his fiscal policies, but to be honest I’m not really sure he has any. Before law school, I worked as the Communications Director of a hotly contested Congressional (yes Republican) campaign, so I like to consider myself generally abreast of these sorts of things. But when you pick through the “I’m very, very rich,” it’s hard to find much policy left.

Heck, I’d even comment on his social policies. But given that the Liberal Media and Crooked Hillary apparently keep twisting everything the Donald says—even if he’s said it on tape, because how reliable can that be, am I right?—well, it’s even hard to put a finger on what those social policies might be.

So while it’s safe to say that we don’t really know what my party’s candidate actually believes, what I do know is this: there is no choice to be made here. This is not a case of the lesser of two evils. Do I love Hillary Clinton? No. Am I chiming into the endless siren song of #imwithher that has overtaken each and every one of your NYU Law friends’ Facebook feeds? Hardly.

But I value living in a country where I’m represented by someone who is smarter than me; not someone who just says they’re smarter than me. I value living in a country where the person I nominate for president is someone who is intensely qualified for the job, even if she doesn’t agree with everything I believe. I value living in a country where I will be represented by someone who will fight to ensure that the freedoms I enjoy today will still be here come November 9th; not someone who will endeavor, as a matter of great pride, to set the clock back 50 years.

So let me be the first to say: my party fucked up. Royally. We’ve made a mockery of this election; we’ve made a mockery of this country. We have paraded a racist, bigoted, womanizing Oompa Loompa in front of televisions and newspaper reporters worldwide and we have said, “Look world: this is who we are and this is what we have become.”

But this is not who I am. And this is not what we have to become. That’s why I’m proudly supporting Hillary Clinton this election. She’s got my woman’s vote. She’s got my Muslim vote. She’s got my Latina vote. And she’s got my Republican vote.

Op-Ed: A New Voice for Disabled Students and Allies

Written by Chantalle Hanna, with additional reporting by Aditi Juneja

Americans with disabilities comprise about 22 percent of the non-institutionalized population and 30-40 percent of people who are incarcerated. They are employed at a rate that is less than half the national average and are twice as likely to live under the poverty line. These gaps are exceedingly profound among people with cognitive disabilities or mental health conditions. 23 percent of people shot and killed by police so far this year have a mental health condition, while an estimated 33-50 percent of individuals killed by law enforcement had some disability. Disability is pervasive, yet all too often, it is forgotten in decision making by policymakers, professors, and peers.

I became interested in disability issues when a family member was diagnosed with autism, which at the time seemed devastating. In time, I discovered that I was most troubled not by inherent differences in cognition, communication, or behavior, but by what amounted to a prognosis of a marginalized life. To unburden a diagnosis of difference from despair, we must dismantle societal barriers, including stigma.

Disability rights frameworks envision a more inclusive society. By applying a disability lens to society, we can see our undeniable interdependency. This realization promotes respect for our differences and respective contributions.

I am troubled that professors at the law school are not always thoughtful in discussing disability when it intersects with the material being covered. This can happen, for example, by referring to people with cognitive impairments not as people first but merely incompetents, or through erasing from the curriculum how society has decided to allocate the right to contract and who is implicitly excluded from participating in that right.

I believe that in order to be effective lawyers we need to be intersectional and inclusive advocates. Furthermore, I believe that disability advocacy is often not about advocating in place of, but rather amplifying, the voices of those that are disabled and using my (temporarily) able-bodied privilege to promote access for those that are too often excluded from these spaces. This, of course, is part of a broader conversation about how to be an effective ally regarding all aspects of identity. There are plenty of people with disabilities who are self-advocates. Two of them are my co-founders of a new student group called the Disability Allied Law Students Association.

Our goal is to create both community and advocacy for those with disabilities and their allies. Our focus for the coming year will be to collaborate with other student groups to make sure disability is included in the important conversations already happening around campus surrounding topics such as criminal justice reform, employment, and immigration. We hope you’ll join us in this quest for disability rights, inclusion, and social justice.

Op-Ed: Why We’re Getting the Vote Out for Hillary and You Should Too

Written by Hugh Baran and Heather Stoloff

We are now a week away from election day. This election will have a significantly larger impact on our lives than our school work for the next week will. As law students, the outcome of this election could shape our careers. It will certainly affect legislation, enforcement, and judicial appointment, including tipping the balance on the Supreme Court. It is imperative that students take action and get involved before it is too late. Acknowledging the importance of encouraging involvement, the Office of Student Affairs asked professors to excuse absences and record classes for students participating in Election-related activities. Studying for finals can happen into December but the fight to win this election has to happen now.

A team of NYU Law students are heading down to #GetOuttheVOTE in Charlotte, North Carolina from November 5th to November 8th. Due to generous donations, mostly from NYU faculty and friends, we now have funds in place to cover the airfare, housing, and on-the-ground transportation of at least 20 students who want to go to North Carolina. We are continuing to fundraise in hopes of covering more students. We encourage students to join us and help get out the vote for Hillary Clinton this weekend.

By all accounts, North Carolina is one of the most important states during this election. A win for Hillary in North Carolina would be a powerful rejection of the politics of the alt-right. Trump is aggressively targeting his voter suppression efforts in North Carolina, attempting to disenfranchise North Carolinians. It is going to take person-to-person contact to ensure he won’t succeed. We also have a very serious chance to elect the former leader of the North Carolina American Civil Liberties Union (ACLU), Deborah Ross, to the United State Senate and topple an awful GOP senator, in the race that could prove decisive in Senate control and, hence, determine the fate of the 9th seat on the Court. And we can help defeat Governor McCrory, who signed and is defending the heinous and hateful H.B. 2 “trans bathroom bill” — the most anti-LGBTQ law in the country, which repealed Charlotte’s anti-discrimination law and banned trans people from using public restrooms. Winning this race is critical to undoing this hateful law.

Please join us in North Carolina to get out the vote for Hillary Clinton in this historic election! If you are interested or have any questions, please email Hugh Baran, Heather Stoloff, Molly Griffard or Sara Maldonado.

Op-Ed: Law Schools Can Help Crack the Glass Ceiling

Written by Aditi Juneja

As many public interest 3Ls interview for post-graduate opportunities and 2Ls interview for internships, there may be one thing we are forgetting: the glass ceiling. Students applying to firms have access to the Chambers Associate Guide to inform them about benefits, vacation time, flexible work arrangements, paid parental leave, retirement plans, and healthcare coverage. The Chambers Guide also provides students applying to firms with statistics regarding diversity, both at the associate and partner level, for women, ethnic minorities, and LGBT people. However, students interested in public interest organizations may have to research this information independently. As a result, a range of information may or not be available to public interest law students depending on the employer. Thus, public interest students don’t have the information necessary to choose internships and jobs with employers where they will be supported and have the greatest chance of advancement.

Of course, the glass ceiling in law firms also continues to be a problem. Although the reasons are unclear, a recent study found that female partners at law firms earn 44% less than male partners. In fact, three black women were so frustrated with the culture at law firms that they banded together (beginning on Twitter) to start their own law firm. But law students choosing the firm route have the information to know which law firms make more or less of an effort to retain lawyers through their benefits policies and which law firms actually promote lawyers who are not straight, white, men.

Law students interested in public interest, who may not find these to be immediate concerns, are often only in a position to learn this information if they ask during the hiring process. Unfortunately, women who “lean in” and negotiate about money often face a backlash for doing so. Women might be equally hesitant to ask about employee benefits. Similarly, a recent study shows that women and minorities who promote other women and minorities receive worse performance reviews by their bosses. It would, therefore, make sense that women and other minorities would be reluctant to ask about diversity numbers during hiring.

Fortunately for us, NYU Law has a wonderful Public Interest Law Center that puts together information about the hiring practices of public interest employers, including information on the experiences of interns and recent graduates employed at those places full time. They also work with the Office of Career Services to bring many public interest employers to NYU for On Campus Interviews and the Public Interest Legal Career Fair. As an institution, NYU Law can go beyond asking the basic questions like starting salary and expected responsibilities of newly hired attorneys and ask public interest employers what benefits they provide and statistics on diversity within the organization. This would allow public interest students to have access to the same information that students applying to firms have, without risking any potential backlash from interviewers for asking the questions.

Public interest students should also be able to assess if an employer has supportive policies and if they are likely to face challenges in advancing within an organization. And, as a highly-ranked law school, NYU has the opportunity to be a leader amongst law schools in asking these questions on behalf of their students.

The current JD student body is diverse: we are fifty percent women, thirty-one percent students of color, and we have a thriving LGBT community. I know that NYU works hard to constantly improve in creating an inclusive environment for its students. Shouldn’t we also work hard to make sure that our students are taking jobs with employers who will support them in achieving their full potential?

Op-Ed: Raise the Age

Written by Falon D. Rainer

New York is one of only two states that continue to prosecute youth over 15 as adults, regardless of the severity of the crime. Holding children liable as adults is likely to increase recidivism among teens, puts them in great risk of physical and mental harm, and it is a practice that goes against what we know about the developing teenage brain. Raising the age of adult liability to 18 would ensure that the State is protecting young people from the harmful effects of the adult criminal justice system while providing them the specific support they may need.

Under New York law, any adolescent over the age of 15 charged with committing any criminal act is treated as an adult from arrest through release and re-entry into their community. What does this look like? A 16-year-old who has been arrested has no right to notify their parent or guardian. They are subject to interrogation by law enforcement without parental presence or consent. Once housed within any state correctional facility, their age and likely inexperience with the system means they are extremely vulnerable and more likely to be the victim of physical or sexual assault. Further, the youth’s criminal record will not be sealed, thus causing them to deal with the collateral consequences of a criminal conviction for the rest of their lives. At 16, this may cause the youth’s family to be evicted from subsidized housing while deeming the youth ineligible for federal loans for higher education or certain professional licenses. All of this happens while the youth is rapidly developing their sense of self and identity.

Tens of thousands of children face this reality each year; the overwhelming majority for misdemeanor offenses. The injustice in black and brown communities is even more stark; we know that 80 percent of youth who are sentenced to incarceration are Black or Latino. Governor Cuomo’s Commission on Youth, Public Safety, and Justice, a group that includes members from law enforcement, advocacy organizations, and the court system, recently reported that New York ranks last in the nation on justice for 16- and 17-year-olds and they unanimously recommended raising the age to 18. But this legislation has been repeatedly and continues to be stalled in state budget negotiations. Science also tells us that what we are doing is wrong. We know that teens are often impulsive and lack the ability to fully grasp consequences. But because the teenage brain is still developing, adolescents are also more likely to respond well to intervention. Even the Supreme Court has accepted the argument that juveniles are receptive to change.

We must raise the age. Raising the age that someone can be criminally liable as an adult in New York would mean that 16- and 17- year-olds would be brought into family court rather than criminal court. In family court, the child’s parents would be immediately notified of their arrest and involved in every step of the court proceedings. If the judge finds that the youth has committed a delinquent act, she has the ability to tailor the remedy to the child’s needs. For example, she could confine the child to a detention center that provides mental health or drug counseling and anger management. Or she could determine that the child is need of increased structure within the child’s home and order participation in a mentoring program, a curfew check, mandatory tutoring, or structured extra-curricular activities. In the adult system, youths are often left without targeted services or interventions. It’s like we’re telling these young people that their single act of crime has given them one enduring identity: criminal.

Those opposed to the Raise the Age legislation in New York cite budget concerns. But states like Rhode Island who have recently enacted legislation to raise the age for adult prosecutions have reported saving millions of dollars in incarceration costs. Connecticut and Illinois have similar legislation and are reporting a drop in juvenile crime.

When we prosecute youth as adults, we’re missing the opportunity to connect them with services that will greatly reduce their chances of reoffending. This is a loss for the child, their family, and their entire community. This practice is a sign of the system’s desire to prioritize punishment over rehabilitation. We know that adolescents are less blameworthy and more rehabilitative than adults. We know that prosecuting youth in the adult system increases their likelihood of committing crimes or future violent acts. In order to protect our youth, support communities in need, and operate a system that is not unduly punitive, we must raise the age of adult criminal liability in New York.