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The IHR Clinic blog is written and edited by students and recent alums of the University of Chicago Law School. Featured on the Huffington Post, the IHR Clinic blog examines contemporary issues in human rights, as well as social, political and cultural events viewed through the lens of human rights. 

School Segregation and the Elusive Right to Education

by Eian Katz, Class of 2018

One by one, the young members of the Arab-Israeli soccer team I was coaching submitted their surveys. The short questionnaire, administered by an Israeli nonprofit, probed the perceptions of the Muslim, Christian, and Druze minorities toward the Jewish state in which they lived. I studied the results intensely.

“Do you hate the Jews of Israel?” the survey asked.

“Some of them,” answered one player.

“Do you think that the Jews hate the Arabs?” it continued.

“Most of them,” he had circled.

Most revealing of all was the final question: “Do you have any Jewish friends?” I quickly sorted through the responses. All but one had marked, “no.”

It was a predictably dismal referendum on what I had been hoping to accomplish for the past year by working with Arab youths in Israel’s socioeconomic periphery. Yet it was likely naïve to have hoped for anything better. The attitudes captured by the survey are reflective of Israel’s radical racial isolationism, exemplified by its educational architecture—the state operates entirely separate Jewish and Arab public school systems. It is little wonder that cross-cultural friendships are a rarity.

While Israel may be a particularly egregious case, it is hardly unique among the world in its segregated classrooms. In Europe, which has a long history of schools discriminating against the Roma population, a new generation of migrants has been poorly assimilated into or actively excluded from public education. Similar trends have been identified in China, India, South Africa, and Latin America. And in the United States, six decades after Brown v. Board of Education, a number of observers have sounded the alarm on the resegregation of public schools.

Writing in 1954, the Brown court considered the psychological harm of segregation to be “amply supported by modern authority.” The consensus has only grown since then, through exhaustive study of the detrimental impact of racial segregation on educational outcomes and social progress. School segregation is closely linked with racial achievement gaps, though there is debate as to whether the relation is correlative or causative (confounding socioeconomic variables muddy the picture). Segregated schools in the United States are characterized by lower teacher salaries (contributing to higher teacher turnover rates and poorer quality), higher dropout rates, and skinnier budgets (even controlling for socioeconomic variation). Conversely, desegregation is tied to improved lifetime earnings and lower rates of incarceration. Nor has greater integration and diversity been found to hinder the achievement of the dominant race.

In recognition of the severity and global nature of the problem, the Council of Europe’s Commissioner for Human Rights (CHR) published a position paper this year ranking school segregation among “the worst forms of discrimination.” The paper presents “an expanded vision of the right to education” centered on the 4 As: availability, accessibility, acceptability, and adaptability. Drawing on the jurisprudence of the European Court of Human Rights (ECtHR), the CHR announced that, “states have a positive obligation—firmly entrenched in international human rights law—to tackle school segregation.”

The ECtHR’s, for its part, has repeatedly found differentiation in educational access to violate the European Convention on Human Rights’ prohibition on discrimination in interaction with its affirmation of the right to education (in a later protocol). Its foundational case on the subject, popularly dubbed “Europe’s Brown,” involved the disproportionate placement of Roma children in schools catering to special needs students in the Czech Republic. While the Court’s analysis focused on the Convention, it also relied on the authority of the International Convention on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Rights of the Child in ruling for the plaintiffs. In a subsequent case, the ECtHR found similarly that a Greek town ran afoul of its duties under the Convention by deliberately concentrating Roma pupils in one school within the district.

Following the lead of the European Commission against Racism and Intolerance (ECRI) and the US Supreme Court, the formula adopted by the ECtHR holds that “a difference in treatment is discriminatory if it has no objective and reasonable justification.” The CHR report canvassed some of the purported justifications commonly invoked by states. Some involve structural barriers such as linguistic differences, population distribution, and the specific needs of particular communities. Another category is comprised of value-laden expressions of preference for cultural preservation over heterogeneity and for parental choice (and the accompanying “white flight”) over state interference. Lastly, the political disenfranchisement of vulnerable populations inhibits their ability to protect their interests and advocate for reform, illustrated by the persistence of unfair testing procedures and the largely unchecked discretion of administrators in admissions decisions.

In the face of these stubborn obstacles, the CHR lamented that ECtHR decisions “have not necessarily translated into systematic desegregation strategies and the adoption of inclusive education policies.” But there is strong anecdotal evidence that segregation is a problem that can be solved. An analysis of the test scores of first- and second-generation immigrant students from the same country of origin revealed significant variation across host countries, suggesting a connection to “the capacity of school systems in host countries to nurture the talents of students with different cultural backgrounds.” The CHR concluded with a series of policy recommendations aimed at building this capacity, including strengthening anti-discrimination laws, reforming school admissions and selection processes, and regulating school choice.

Ari Shavit, an acclaimed Israeli journalist and author, describes the Israeli-Palestinian conflict as a symptom of “mutual blindness.” It’s a blindness I felt all too acutely over the course of a year working in Jewish- and Arab-only schools and community centers in the country. And it’s a blindness that shrouds the United States (where students have precious little exposure to other races) and other nations, too. In segregated schools, students are taught blindness. Social integration and meaningful fulfillment of the right to education will only be achieved when the veil is finally lifted.

How Not Even Citizenship Makes US Care: Military Detention of a US Citizen and the Acceptance of the Legal Black Hole

by Nino Guruli, Associate Director of the International Human Rights Clinic

A little over a month ago, news broke that the US military was holding an American citizen suspected of being an Islamic State fighter. The announcement was followed by the usual questions being asked within the legal community about the reach of the executive’s detention powers, whether this would finally bring the question of the AUMF’s application to ISIS before the courts, and speculation about what the US government was likely to do with this man given the available legal options and policy considerations. What did not follow was a great deal of public outrage, media scrutiny, and congressional engagement. In some ways this is surprising, given how much American citizenship of the person detained or killed by the US military in its counter-terrorism operations usually matters both for the legal community and the American public (recall what followed the drone strike that killed Anwar Al Awlaki and his sixteen year old son). Not until a US citizen was targeted and killed by a US drone strike, did there seem to be political and public appetite for asking some hard questions about where the authority to target individuals outside the battlefield came from and where the limits of that power lay (and whether the current legal framework does an adequate job of translating existing constitutional and international legal standards to the counter-terrorism context).

In a way, many within the US civil rights/human rights community leaned into the ‘citizens are also being detained/targeted’ argument as a way of making both the public and the bench and bar care about the powers being granted the executive. The hope, I assume, was that the practices would come under greater scrutiny and criticism if the use of these powers was presented as ‘it can happen to you’. Implicit in that argument is that it matters less if it’s happening to someone else. I do understand the law makes distinctions, necessary, logical, and constitutional, between citizens and aliens, though we should question how relevant that distinction should be outside of the immigration context. I also understand that there is a difference between law and morality, even as the two often overlap. But it should be less acceptable than it is to make certain core human rights (like the right not to be killed, tortured, or to have your freedom completely and indefinitely taken away) be dependent on citizenship. Some rights, like the right to vote, the reach of the right to free speech, or the warrant requirement of the 4th Amendment may be logically limited to our shores or our citizens. But what justifies making the citizen/alien distinction key when it comes to the right to be free from torture, to not be killed by US forces, to not be held by US powers? Other jurisdictions have come to the conclusion that such a distinction cannot be justified, subject matter specific factors (like individual conduct and dangerousness) are much more relevant for who can be detained or targeted. International human rights standards certainly do not sanction making such a distinction when life, liberty, and security are at stake.

International humanitarian law’s principle of distinction (distinguishing between civilians and combatants) and the ‘direct participation in hostilities’ standard for targeting in armed conflict does not focus on citizenship but on conduct. International human rights also provides rules for when preventive detention can be used and sets substantive and procedural standards for the exercise of that authority, none of which can be slackened because it is a non-citizen being detained.

Now, with another citizen detainee, we have the opportunity to reignite public discussion on the scope of the executive’s power, to let the citizenship of this detainee be the start of the conversation. We do not know much about this citizen detainee. We don’t know who the detainee is, where exactly he is being held, or what the US government plans to do with him. Will the military continue to hold him, indefinitely, as an enemy combatant? Will he be brought to the US for criminal prosecution? Will he be handed over to a third party (e.g. Iraq)? What we do know is that he surrendered to the Syrian rebel militia on September 12th and was then turned over to the US military. We also know that he is currently being held as an enemy combatant, under the government’s claimed AUMF power to wage war against the Islamic State. (See ACLU’s suit on behalf of the unnamed detainee).

On October 30th the Senate Committee on Foreign Relations will have a chance to ask Secretary of Defense Mattis and Secretary of State Tillerson questions about the AUMF. It has been over fifteen years since Congress passed the AUMF and we have had no further Congressional clarification on how far this authority reaches and what conduct makes someone subject to the powers it authorizes (the NDAA 2012 doesn’t really provide any additional limits or legal clarifications on the scope of the AUMF).

Given how little US courts have done to define the scope of executive power in this field (in effect deferring to the executive on substantive definitions and developing procedural/evidentiary rules that make judicial assessment of the evidence a mere formality) it is not surprising that Congress has not felt compelled to consider constitutional limits on executive power or to provide some clarification on where these powers can operate and what kind of conduct makes someone subject to the AUMF. The hearing on the 30th is an opportunity for Congress to ask this administration about the American citizen being held in detention and the administration’s understanding of the scope of the power to detain, and for the American public to ask itself how much citizenship should matter for the most fundamental rights the US Constitution and international human rights guarantee.

A Step Towards Police Accountability: The National Use of Force Data Collection Program

Maher Blog Graphic_0.jpg

Ryan Maher
University of Chicago Law School Class of 2018
photo by Salome Guruli

“Sixteen shots” was repeated in chant, with the brandishing of signs reading the same, as protesters took to the streets of Chicago. Heads were shaken in sadness and disbelief at the fact that Chicago youth Laquan McDonald was shot sixteen times by police, though he fell to the ground with the first shots.

Protest and demands for change arose not just from the killing itself, but also from the tragic magnitude of the violence.

But is sixteen shots a lot compared to other police shootings? It seemed like a firestorm when I first heard about it, and appeared even more excessive when I watched footage of the incident.

Police use force every day in the United States to maintain order and ensure compliance with the law. Whether it be a stern verbal warning, threat of arrest, use of a taser, or the discharge of a firearm, officers apply pressure to deter law-breaking or apprehend perpetrators.

It’s clear that officers must be permitted to apply some amount of force to police effectively. But the degree or kind of force available to an officer in any given situation runs along a spectrum. Tenets of justice and equality demand that every effort be applied to strike the right balance along that fine-lined spectrum; that unnecessary or excessive force is never used by police officers.

So what is a “normal” amount of shots fired at a subject? As a student in the International Human Rights Clinic at the University of Chicago Law School, I was involved in a project gathering and analyzing use of force by police in selected cities in the United States. It turns out that, while sixteen shots fired at one subject is higher than normal, it is not such an outlier.

Our study on police use of force did not come by this information easily. We spent over a year and a half collecting data from fewer than two dozen police departments, and still failed to obtain all of the statistics we set out to gather. Such important data should be systematically collected, centralized, and accessible. The difficulty we experienced in obtaining information about parameters like the number of shots fired by an officer at a human subject shows the urgent need for improved data collection, like that offered by the National Use of Force Data Collection Program.

The National Use of Force Data Collection Program

Among the numerous reforms that could be implemented to limit police use of force to its reasonable minimum is the DOJ and FBI’s National Use-of-Force Data Collection Program. The program will be administered by the Uniform Crime Reporting division of the FBI. Law enforcement agencies across the country will submit data on a variety of uses of force, ideally including all uses of tasers and firearms, to an easily-accessible, centralized collection. The reporting procedures used by agencies will also be evaluated to ensure agency accountability. The project will compile the information necessary to identify the causes of excessive or discriminatory uses of force by police officers.

The six-month pilot study for the program began on July 1, 2017, and will conclude on December 31, 2017. The first releases of information through the program will begin after the conclusion of the pilot study. During this study period, the FBI and DOJ are studying reporting techniques, ensuring data accuracy, and recruiting law enforcement agencies to participate in the program. To this last point, it is important to note that participation in the program is entirely voluntary, as neither the FBI nor the DOJ possess the authority to require this kind of data sharing from local law enforcement units. However, many law enforcement agencies have already expressed their commitment to the program.

At present, data on the use of force, including the number of shooting or taser incidents and fatalities, is sometimes obtainable from police departments, but only for those with the time and resources to initiate the months or years-long FOIA process on a department-by-department basis. With almost 18,000 state and local law enforcement agencies in the United States, piecing together a comprehensive picture of how force is used nationally is a Sisyphean feat for even the best-equipped organization.

As was mentioned above, our team at the University of Chicago Law School faced substantial obstacles in our data collection efforts. It took our group over a year and a half to obtain data on the number of shots fired by officers, targeting fewer than two dozen departments. Among the challenges faced were resistance on the part of information officers to facilitate our requests, prolonged timelines for data delivery, and, in a couple instances, delivery of the wrong data altogether.

During the open comment period on the National Use-of-Force Data Collection Program, the IHRC submitted comments jointly with Amnesty International regarding the types of information that should be tracked by the program (see comments here). To highlight a few of our recommendations: we advised increasing the incorporation of international standards delineating the appropriate use of force, ensuring that a wide range of demographic descriptors of subjects fired at by officers are captured, and including data on the usage of tasers.

What happens under President Trump?

As with many other federal programs, uncertainty abounds as to the implications of the Trump administration. Both President Trump and Attorney General Sessions are on record as opposing ongoing police reforms. (See a summary of Trump’s positions on criminal reform here, and Sessions’ here.) Moreover, Sessions voted against the reinstatement of funding for the COPS program, a DOJ effort that works to improve police-community relations, primarily through an information-sharing program. But at present, the signs point toward optimism. The program is moving ahead as planned and the pilot study is on schedule.

Problems may also arise from the voluntary nature of the program for state and local agencies. Neither the DOJ nor the FBI can directly require police departments to report on any uses of force. This raises serious concerns about the consistency and quality of reporting, especially in an environment already hostile to police reforms.

Moreover, the DOJ does not have a great track record for implementation of programs like this. The Death in Custody Reporting Act, which tracks civilian deaths resulting from interactions with law enforcement, has a record of non-compliance by states. This is especially concerning because DiCRA authorizes the DOJ to penalize non-complying states through a reduction in grant funding. There is no companion penal mechanism in the National Use of Force Data Collection Program.

By making information about how police use force in the United States readily accessible, government agencies and private groups can work towards understanding and remediating the causes of excessive force. To ensure the National Use of Force Data Collection Program is implemented, and implemented robustly, those concerned should keep abreast of developments related to the program, and to criminal justice reform generally. Phone calls to Senators and Representatives, as well as assistance to those NGOs working for criminal justice reform, can aid in the fight for this critical information.

The tragedy and injustice of events like the death of Laquan McDonald urgently call for redress. Deadly force should never be used where non-lethal force would suffice. Holding the police strictly accountable for the magnitude of force they apply is one step among many that need to be taken to reform policing in the United States.