Children of immigrants should not be punished, court says

Late last week, recently confirmed U.S. district court judge Tanya Walton Pratt temporarily enjoined a the Indiana Department of Health's practice of denying paternity affidavits to men who were unable to provide the state with their Social Security number. The state's practice, started in July 2010, effectively denied U.S. citizen children whose fathers could not produce a Social Security number, the opporunity to have their father's name on their birth certificate and be legitimated.

Judge Pratt found the evidence to show likelihood of success on the merits that this practice is a violation of the Equal Protection clause, and analyzed U.S. Supreme Court jurisprudence which has found that children should not be punished by their parents' immigration status. She also found that legitimating children is in the public interest. The court ordered the Indiana Department of Health to revert back to its previous practice accepting the paternity affidavits without the Social Security numbers. The court noted that there had been no change in law
that led to the change in practice, only a change in personnel at the Indiana Department of Health.

There has been some negative reaction to the opinion, see for example comments by readers in the Indianapolis Star newspaper, which reported the decision: ("If they don't have papers they don't need to be in this country, much less this state. Send their butts back to where they came from. Just another example of our tax money being wasted on illegals."). However, this decision strikes me as a well reasoned and sensible opinion, since the Supreme Court jurisprudence is clear regarding not holding children responsible for the actions of their parents.
The case, L.P. v. Commissioner of Health, Case No. 1:10 cv- 1309-TWP- TAB, was filed by the Indiana Civil Liberties Union and continues pending in the Southern District of Indiana.

This case brings to bear concerns about U.S. citizen newborns born of undocumented parents, who may be affected by state policies and practices. There appears to be a trend: in California, there have been ballot proposals to deny birth certificates to children born of parents who cannot prove their immigration status in the United States. Other states, like Arizona, have attempted to enact legislation to identify the birth certificates of these children differently than the rest of the birth certificates issued in this state.

No need for Spanish warnings, federal court says...

Thanks for Prof. Alberto Bernabe, of Chicago's John Marshall School of Law, who has brought this recent case to my attention. In Farias v. Mr. Heater, 2010 WL 4814660, the United States District Court of the Southern District of Florida found that there is no duty to provide safety warnings about products in Spanish. In doing so, the court dismissed the lawsuit of a Spanish speaker who had sued the manufacturer of two space heaters purchased at a Home Depot in Miami, following a fire in her home caused by the heaters.

In the court's view, the plaintiff, who has limited command of the English language (she did understand the word "caution") failed to investigate the danger to which she had been alerted by the manufacturer in the user's manuals for the heaters. The court also distinguished an earlier case, Stanley Industries v. W.M. Barr, 784 F.Supp. 1570 (S.D. Fla. 1992) in which a duty to warn in Spanish was found when the product was marketed specifically to a Spanish speaking population.

Prof. Bernabe has mixed feelings about this opinion, which I encourage you to have a look at in his Torts blog http://bernabetorts.blogspot.com. To me, the opinion does not recognize the reality of the limited availability of adult education English instruction for immigrants in the U.S. When last I worked directly with immigrant clients, I recall their dismay at the long waits for English classes. I don't imagine the situation has improved much in this age of budget cuts for education and human services, so this case puts immigrants' safety at risk, and as such, is cause for concern.

Happy New Year and Political Amnesia

With 2010 ending concluding the nation thereby ends a harmful year of legislative enactments that bordered on the edge of hate crimes against gente de color generally but within the framework of this post Latinas/os specifically. Several of the harmful trajectories "chosen" harmed the nation and took America into the realm of the "against humankind" category.


Two such routes include the "kill ethnic studies" and anti-immigrant hysteria based legislation that defied the legal formalism of long established preemption law and federal state relationships. Isn't it something when such law is not engaged but instead rules are selectively employed to harm concrete population groups to garner favor and promote the skullduggery of political parties?

Yet political amnesia also caused the nation to travel down a dire and negative path. This approach directly and divisively ignored the contributions from communities of color of the past and into the future. Contemplate the labor and efforts of our communities that built and labored on the nation's railroad systems that shortened distances and expedited commerce. How would the agricultural sector fare without the work of farm laborers who are even into the present facing economic hardship? How about the efforts of fearless students and other activists that challenged state goons that sought to preclude their right to the franchise? Their efforts added immeasurable strength to the promises constitutional drafters sought and made. The list of such contributions is endless and benefited the nation's economic, social and political base.

Additionally fear based legislation and its mongers fail to reconcile the weakness of their stance in promoting harmful legislation with the future base needs of the nation. When presented with an invaluable opportunity through the DREAM Act the fear promoting politicians willingly chose a path with no return and thereby turned their backs on the nation. Try and reconcile the talent the affected students would have brought to the economic and well-being base of the nation. Even more specifically, the anti-votes are difficult to reconcile with the innumerable exceptions to current immigration law that permits the entry and permanent residence of many from foreign nations. Span the congressional record for such exceptions that were based inter alia on humanitarian, social, political or other purposes. It is not difficult to conclude that race looms over the political zeitgeist of the times.

Space limitations leave much that has to be left for another post but the passing of Latina/o fearless leaders and activists that fought so many civil rights and political battles mandate our asking "who will replace them?" Can we ever look back at this past year without a big sigh?

In surveying the political debris field this past year also brought a few amazing transformative changes from brave and honorable state and federal representatives and gives hope for the forthcoming new year. Consider the much appreciated news that Florida now and finally recognizes that children need the same-sex parents that sought to adopt them. Illinois also brought news on the civil rights front by recognizing same sex unions. Breathless in their scope but the media also brought attention to a joint collective effort. Specifically the rescue of the Chilean miners that was made possible by the actions of individuals from throughout North and South America.

The rescue underscores even more fundamentally when such collective action works. It further brings much hope for yet other seemingly insurmountable battles that the last elective season promises. Consider hope is needed because legislation is already being introduced to strip certain classes of babies from their citizenship status. One canot wonder about other problems that need attention and how anti-baby legislation is employed to divert constituents from the harsh economic times of the present.

The end of the passing year also obligates a look to the future that the New Year will bring but first mil gracias to the students who led the charge to enact progressive legislation and to protect ethnic studies and their supporters. Students have long engaged in civil rights activities including the present Puerto Rican student strikes of the present. From the past the Chicana/o Blowouts of East L.A. or the walk-outs of South Texas witnessed many students arrested for daring to protest educational disparities and inequities. The successes of the past opened many doors of the present and the present active challenges of students against colonialism and its entrenched tactics is much appreciated.

In saying adios to 2010 and looking to 2011 let us accordingly and for the well-being of the nation indulge a prayer, or a blessing, or a ritual or even one of those fascinating new year's eve superstitions with a firm conviction. Specifically like those brave students of the past and the present who battled so much let us also neither fear nor hide from the forthcoming political amnesia the last election cycle promises to bring.

Two Steps Forward? Part Two

Earlier this month I wrote about a dialogue at the annual LatCrit conference on the subject of whether Latinos/as have a better life in the United States than they did some 50 years ago. I disagreed with remarks at the conference celebrating progress made, at least from the eyes of undocumented immigrants. Here I look from the similar perspective of the U.S. farm worker, most of them Latino/a and many of them undocumented. When César Chávez and Dolores Huerta started organizing Latino/a farm workers in the early 1960s in Delano, California, few were unionized and their work pay and conditions were miserable.

No doubt in the last 50 years some slight progress has been made—the grape boycott brought national attention to the plight of farm worker. The United Farm Workers union, among other achievements, helped outlaw use of the back-breaking short-handled hoe in California fields. At the same time, miserable conditions prevail today for U.S. farm workers. By 2005, only 2 percent of California’s field laborers were represented by a union. Wages are abysmal, with most farm workers making less than $10,000 a year. Labor contractors manipulate any wage protections by charging excessively for transportation and work equipment. A 2004 UC Berkeley study found that in addition to the sex trade, forced labor is prevalent in other U.S. labor sectors, including agriculture (10 percent) where Latino/a immigrants are often victims of involuntary servitude. Farm workers have slipped from the national consciousness after their brief heyday in the 1960s and 70s during the grape strike and the high-profile organizing efforts of the UFW.

But a green sprout has pushed through in Oregon. At a ceremony I attended earlier this year, our local union, Pineros y Campesinos Unidos del Noroeste (PCUN) broke ground on a leadership institute building and last Friday held a forum to begin galvanizing volunteers to support the institute. http://www.pcun.org/gallery/87. In 2006 the Los Angeles Times blasted the UFW for straying from the roots of organizing farm workers and for engaging in such endeavors “far from the fields” as owning a Spanish-language radio station and trying to create a larger anti-poverty social movement. PCUN’s Radio Movimiento, an FM station, and its leadership institute, might be similarly criticized by those with a shallow understanding of the history of the challenges farm labor unions face. Only a struggle that aims to unite the Latino immigrant community in its allied industries and to teach the history of the movement struggles can gain ground against the seemingly intractable dynamics of agri-business and the globalized economy that have ravaged farm workers. I am looking forward to contributing to the leadership institute to help create a new generation of movement leaders to continue the honorable struggle of workers in the fields and beyond. ¡Viva la Causa!

Conservative Insecurity and Immigrants

This week the Oregon Commission on Hispanic Affairs, on which I am an appointed commissioner, sparked controversy by asking the Multnomah County (includes Portland) Board of Commissioners to opt-out of the federal Secure Communities program. We attached a letter from Homeland Security Secretary Janet Napolitano that acknowledges the existence of such a procedure.

San Francisco’s Board of Supervisors is to be credited for pushing the opt-out issue and gaining this formal recognition. Following Napolitano’s acknowledgment on September 7th, so far at least two counties, California’s Santa Clara County and Virginia’s Arlington County, have invoked the opt-out procedure. http://www.deportationnation.org/2010/09/counties-on-west-east-coast-vote-to-opt-out-of-secure-communities/. In Oregon, our Commission letter this week sparked immediate controversy. National hate radio blowhard Lars Larson commented on his program that our Oregon Commission is complaining because the County is checking backgrounds of criminals who are rapists, drug dealers and killers. Of course, the knock on Secure Communities is that it is being used primarily to target immigration status violators rather than for dangerous criminals. In fact, our Commission letter specifically indicated that we support the deportation of those immigrants convicted of serious crimes. As expected, conservative commentators can’t be concerned with such nuances, as they are looking for stories to support their two-pronged belief that all undocumented immigrants are dangerous criminals, and that Latino organizations are complicit in the supposed carnage.

Rants of a former advocate of diversity/scholarship in the legal academy....

While many of my fellow bloggers on the site typically submit posts on a variety of important topics that directly affect the Latina and Latino community, I have found myself often writing about more general issues related to the challenges and costs of diversity. While I typically write on Latina-Latino-related issues in my articles and books, I find blogging a great way to not only vent about what is currently on my mind, it is a useful vehicle to begin to collect my thoughts on future book projects.

In an effort to continue my ruminations on subjects that have captured a good deal of my attention of late, and perhaps to overcome a case of writers block, I will attempt here to recast my views on the value of diversity as well as the importance of scholarship in the legal academy.

In terms of diversity, there is little doubt about the legal academy's stated support for the value of diversity. There are several well-known statements by both the ABA and AALS. Indeed, if there is any profession in the world that should, and in fact has made statements about the importance of diversity, it is legal education. For instance, the AALS's powerful statement on diversity issued in 1995, provides that "the commitment to diversity reaches beyond merely granting access to persons from underrepresented groups, but actually increasing the number of minorities in the profession." The ABA likewise has a similar goal "to promote full and equal participation in the legal profession by minorities, women, and persons with disabilities." The AALS announced that it: "expects that by providing an educational experience and environment at its members schools that is inclusive and representative of our multicultural society, there will be increased and more meaningful representation and access for all members of society before our many different legal forums and systems."

These statements are truly impressive, but the question I have found myself asking is whether they are enough. Do law schools meet their respective obligations to promote diversity by merely pronouncing that they support it? Most would respond to this question by saying " obviously not." Yet most law schools fall terribly short of truly being diverse environments. Some might counter by saying law schools actually do better in terms of both students and faculty than many other disciplines and cynics like me should be grateful. Really? If this last approach is true, attempting to meet the goal of diversity is a gift to the less qualified. We, the beneficiaries of diversity goals and programs like affirmative action should be eternally grateful for what we have been given.

The problem is that when examining the facade of merit and inclusion, what some still see is a profession that extols inclusions, but exists in a state, to put it as generously as possible, where peculiar statistics exist. For instance, virtually every law school in America has at least one African-American faculty member, but most, irrespective of the size of the faculty, have no more than a handful at best( excluding HBCU's, that obviously have become experts on recruiting and retaining faculty of color). As I have written and spoken about elsewhere, for African-Americans, this profession's view of diversity for most law schools resembles a 1960s dinner party by an appropriately liberal Northerner--there is the one diverse invitee and the obligatory second. Are there really so few African-Americans out there? Or do we still use the classic, but inaccurate argument, that there is a dearth of qualified candidates? I think my fellow travelers know the answer here. I would nonetheless love to hear from them.

And as the handful of you that know my work would understand, the statistics for Latinos and Latinas are even more bleak. Indeed, as I have written about in the past, half of American law schools, despite their stated commitments to diversity, do not have a single Latina or Latino faculty tenured or tenure-track member. Yet Latinas and Latinos represent roughly 10% of law school student bodies and these individuals are the largest minority group in the country. How about the qualified candidate argument? As the work of AALS President-elect Michael Olivas has illustrated, Latina and Latino faculty have qualifications that typically exceed those of non-minority candidates. More recently, Profssor Olivas questioned Hispanic Business Magazine's ranking of top law schools for Hispanics by noting: "if these figures are to (not) be believed. Even counting as “Hispanic faculty,” those
who have eaten in Mexican restaurants, these are inflated." If the above is true, and diversity is either avoided, or distorted, then what is at play in this era of a "post-race" world? Can someone explain this to me before I jump ship?


If in fact advocating for diversity and arguably a more just academy is a waste of time and actually against my own interests in terms of advancement, I am left with the choice of being tactical. Shouldn't I ponder whether I should formally abandon my writings of social justice and civil rights, and merely attack diversity and openly write about opposing affirmative action? Perhaps this way I can prove myself worthy? Perhaps this way I can prove I should not be feared? At the very least, it may leave me less frustrated with statements like " scholarship is the coin of the realm for this profession." Is it really? In actuality, just a few years ago I never would have asked that question, but experience with school after school suggests my cynicism may stem from some truths.

If abandoning diversity isn't worthwhile and support of diversity isn't dangerous, what happens to race scholars like myself that achieve or exceed, by any objective measures, the label of being successful scholars? Do schools clamor for our services? Do the postulates of supply and demand come into play and make us valuable in the market place? If not, what then is at play here?

Irrespective of what your responses are to these questions, I hope you think about them as we approach our faculty recruiting season. Do we really believe in diversity in our profession? Let's not lose sight of what I recently told a school, that I am sure I frightened: if we believe in diversity, there should be a value to it and that value must be measured against the costs that are all too often used to discount reasons to hire a diverse candidate. The realities are, statistically speaking, for every racially and ethnically diverse professor there are at least 20-30 non-diverse professors, and the numbers are worse for faculty candidates. Unless diversity means something real and has a true quantifiable value, there is always a reason not to hire that potentially scary and different faculty member.

Ethnic Studies and the Power of Ideas

We blogged earlier about Arizona's new law which is designed to suppress ethnic studies. Will Arizona be successful in this effort to eliminate ideas? It seems unlikely. Richard Delgado has recently observed that "ideas are not easy to kill" and that "education is an inherently destabilizing force that cannot readily be contained." (Liberal McCarthyism and the Origins of Critical Race Theory, 94 Iowa law Review 1505, 1544 (2009)). Arizona is finding this out. Instead of suppressing the ideas that ethnic studies generates, Arizona's new law has created greater interest in such studies and the number of students who are enrolled in such programs has almost doubled this year in Tucson, Arizona. (Mary Ann Zehr, Education Week, Tucson Students Aren't Deterred By Ethnic Studies Controversy, http://www.edweek.org/login.html?source=http://www.edweek.org/ew/articles/2010/09/22/04ethnic_ep.h30.html&destination=http://www.edweek.org/ew/articles/2010/09/22/04ethnic_ep.h30.html&levelId=1000).