Member Groups

The Challenge
The newsletter of the ISBA’s Standing Committee on Racial and Ethnic Minorities and the Law

January 2017, vol. 27, no. 2

Chair’s column: Ringing in the New Year with trepidation over the new D.C. landscape and dismay at the intolerance of ‘burkinis’… Tempered with faith in my fellow lawyers

As I write this column at the start of 2017, I find myself feeling anxious and fearful about what the future holds rather than excited about the potential for new opportunities and challenges that await us—as one is supposed to anticipate on the brink of a new year. A substantial reason for this atypical feeling is my fear about how we will ultimately be impacted by the controversies that have arisen from media coverage and other communication sources in response to degrading statements made by public figures about persons who are deemed “other” than the person uttering the comments. Those who fall in the category of “other” include Muslims, other minorities, immigrants and refugees, the disabled and women—who are routinely demeaned except when comments are just “locker room banter.”

Within that context, I am reflecting, almost wistfully, upon the advances the ISBA and its leadership have made to become more inclusive and to expand diversity at all levels, and also, despite some setbacks, the progress we have seen in the communities where we live and work. That progress has been palpable in our enhanced awareness of and sensitivity to both the differences among us and to the value that those differences contribute to an enriched environment wherever we gather. And we are grateful that such an environment can often be found in our workplaces, our places of worship, our board rooms, our cultural and social arenas, and our homes—as well as in the spaces where we resolve disputes and solve problems, including our courtrooms, our offices and our mediation venues.

During the election period and since November 9, we have been learning about a substantial and growing population of Americans who are intolerant of anyone other than heterosexual Caucasians, referred to by themselves as the “real Americans.” And I recently read in a NYT article of a movement among some individuals who align with the Alt-Right for a disbanding of the “United States” as we know it in favor of separate nation-states divided by race, religion and ethnicity, thus isolating various groups of people from those who differ from or disagree with each other. It is reminiscent of the internment camps in which we imprisoned the Japanese during WWII.

Learning about such thinking among what should be “my fellow Americans” reminded me of a recent trend in France and other places that seek to ban Muslim women from wearing their chosen beach attire because it poses a security threat. The particular clothing item, dubbed a “burkini,” consists of a pair of pants, a long-sleeve shirt and a head covering all made of swimsuit material—created by a woman in the fashion industry who wanted to offer an option to Muslim women interested in wading into the water, a common activity at beaches during the summer. This outfit allows such women to cover themselves as their religion and culture require but enables them to swim like others who are visiting the beaches.

According to the article in the August issue of the International NYT that covered this phenomenon, entitled “When a swimsuit is a security threat,” 15 towns in France had issued bans against the wearing of the burkini, claiming that such attire posed a security risk. The burkini was being described as attire that “ostentatiously displays a religious affiliation” and, at a time when France was being targeted by terrorists, was “likely to create risks to public order.” This form of beach attire was also called the uniform of “extremist Islamism, not of the Muslim religion.”

In a touch of irony revealing an absurd inconsistency, French Prime Minister Manuel Valls stated that the swimsuit is part of “the enslavement of women,” suggesting a view of Muslim women as victims who need protection from their own culture, yet at the same time, law enforcement was patrolling beaches in the French towns looking for offenders. When found, the women in burkinis were issued tickets and in the process, humiliated in public and before their families simply for wearing a different kind of swimsuit. It almost seems that those women in burkinis could have avoided a ticket by disrobing in public—maybe down to the bikinis commonly worn by European women that cover almost nothing.

And in case you didn’t know, such singling out of Muslim women—in different environments—has been upheld by the European Court of Human Rights so that it is permissible for schools to ban female teachers from wearing their head scarves in the classroom and to bar a university student from sitting for an exam while wearing her head scarf. In one case, the court stated that a woman in a hijab could not deliver “the message of tolerance, respect for others and, above all, equality and nondiscrimination that all teachers in a democratic society must convey to their pupils.” (Dahlab v. Switzerland, 2001).

These rulings arise from the Court’s application of a public safety exception to the broad freedoms of thought, conscience and religious expression set forth in Article 9 of the European Convention on Human Rights. Such rulings are still difficult to absorb considering, among other examples, that the Catholic Church seems to allow, nay REQUIRE, their nuns to wear “habits” in the classroom and elsewhere, but who knows what would happen if a group of nuns showed up at a beach and walked into the water to swim —fully clothed. Would they too be issued tickets by the local police? It is also part of the Jewish Orthodox faith for the women to cover their heads and limbs in public so as not to expose their bare flesh but we don’t (yet) deem them security risks and require them to cease such a religious practice when they travel outside of their own neighborhoods.

Because of the implications that inhere in such specific, targeted discriminatory actions for impeding the already difficult work of teaching, spreading and even enforcing tolerance in the future, it might be tempting to fall into despair. That is what I feel lately on some mornings because I can’t figure out how to counter the increased variety and intensity of ways in which individuals from different cultures and other countries, and of different colors, are being sidelined and demonized.

Now more than ever we must keep vigilant and not retreat from our responsibilities because that is easier than facing the challenges. We all know how fortunate we are to have our professional, collegial, bar-associated and other friendship support networks of people who are inspired by one another to continue our work—to assure that we don’t leave alone, and sobbing in the dark, those less fortunate and those who may be targeted because they are labeled as different. Instead, we must let our voices be heard and make sure our alliances for pursuing justice for the mistreated remain strong. As Rabbi Hillel the Elder expressed 2,000 years ago in his three questions: If I am not for myself, who will be for me? But if I am only for myself, what am I? And if not now, when?

Addenda…

Upcoming CLE Programs

I got carried away in my above narrative and neglected to mention that, starting in January of 2017, we are featuring a terrific four-part CLE Series on Housing Justice vs. Housing Injustice that will start off with an analysis of a recent SCOTUS Opinion on prosecutions under the Fair Housing Act and how barriers to affordable housing for many groups of people are reinforcing segregation and the inequality of resources available in predominantly minority populations. In addition, in the late spring or early summer, we are offering a two hour CLE studio program on Implicit Bias that will cover both courtroom dynamics and the law firm setting. The fabulous program panel includes DePaul Law School Dean Jennifer Rosato Perea, Loyola Law School Prof. Juan Perea and Chasity Boyce, Diversity and Inclusion Projects Manager with Skadden Arps—and the program moderator is our very own Masah Renwick. Information on both of these practice relevant programs can be found under the CLE programs section on the ISBA website or by contacting the CLE Department.

REM Committee Vote on ABA Model Rule 8.4(g)

In addition, we want to share with you our report on the action our REM Committee took at its last meeting—in December, during the ISBA Mid-Year Meeting—on the ABA Model Rule 8.4(g) which the ABA’s House of Delegates approved at its Annual Meeting in August, with some modifications to the Rule as it had been originally proposed. As background, at the ISBA’s June 2016 Annual Meeting in Rosemont, REM had discussed the proposed rule change (as all committees and section councils were asked to do) and voted 9-3 to oppose it, citing numerous reasons for our decision. Those reasons included that Subsection 8.4(g) was too broad in scope, may be constitutionally suspect due to its seeming restraint on free speech and association, and would be difficult to enforce. Moreover, we believed that existing state and federal laws prohibiting discrimination and sexual harassment provide recourse for complainants. Then at the June Assembly meeting, Assembly members voted resoundingly to oppose the proposed Model Rule.

However, as the Illinois Supreme Court is now weighing whether to adopt the new Model Rule, the Commission on Professional Responsibility requested the ISBA to submit its position on the approved ABA Model Rule. Accordingly, the ISBA leadership asked all Committees and Section Councils to reconsider the Model Rule as amended and to report their votes to the Assembly which was scheduled to discuss and vote upon the new Model Rule at its December 10th Meeting.

In anticipation of the December 10th Assembly Meeting and in order to promote an informed vote among our REM members, we invited attorney Trisha Rich, a partner at Holland & Knight who, among other things, concentrates her practice in the field of ethics, to “deconstruct” the new Rule for us. After many questions from and an extended discussion among our REM members both during and following Trisha’s presentation to us on the purpose and potential impact of subsection (g), the REM Committee, by 8-3 (+ a few abstentions), reversed its June vote and approved the ABA Model Rule 8.4(g) despite some of the same concerns as previously expressed.

On the whole, we determined that the Rule articulated an important “code of conduct” for attorneys that holds us to a higher standard regarding the kind of discriminatory and harassing conduct of a sexual nature that is similarly regulated by most other professional associations. We also determined that, based upon disciplinary reports from the IARDC, too many attorneys, especially in law firms, appear not to be abiding by standards set by state and federal anti-discrimination statutes and laws. Finally, we expressed confidence that the IARDC would be able to capably manage any increase in complaints based upon the new Model Rule.

As you all know, our voice at the December 10th Assembly Meeting was almost a lone voice among the Assembly members who again voted overwhelmingly to oppose the new Model Rule 8.4(g), even as amended, for many well-articulated reasons. While the voice vote to support the new Model Rule was almost inaudible, REM stands by its support and anxiously awaits whatever action the Illinois Supreme Court decides to take. In addition, we are eager to hear about the vote to be taken by the Chicago Bar Association which was also asked to submit its position regarding the Rule.

COUNT ME IN Reception = Save a Seat for Me at the Table!

We’d be remiss if we didn’t note the very successful Reception held at the Sheraton on the Friday evening of the Mid-Year Meeting and hosted by the ISBA’s Diversity Leadership Council and the Six Constituent Diversity Committees that are represented on the DLC. As Cook County Circuit Court Chief Judge Timothy Evans would say, let’s give a BIG ‘round of applause’ to DLC Chair Cory White, with support from his planning committee, and to Director of Section Services Melissa Burkholder (who is also Staff Liaison for REM), for staying the course in organizing this event and making sure that everything, down to the small but important details, would go smoothly—and it did!

Besides the wonderful energy and synergy circulating throughout the party room the entire evening—supplemented by the free-flowing wine and tasty appetizer treats—we were gifted with some inspiring words from President Vince Cornelius. After welcoming everyone to the event, President Cornelius, as he routinely does, got right to the heart of the matter…and what matters to all of us the most: the importance of connecting diversity initiatives to the goal of inclusion, so that those to whom the door is opened and a hand extended will find a seat at the table with us. Once the table—and all tables—are populated with wonderfully representative individuals who are eager to share their ideas and explore issues, and are willing to contribute the brain power and the labor, we will be able to accomplish almost anything. Such a formula for progress would surely make the world a kinder, better and more productive place in which to live, love, laugh, dream and work.

Thanks to all who attended. We hope you were able to take home some visuals from the fun photo booth to remind you of what a great time you had chatting with friends, making new acquaintances and getting geared up to work together on some new diversity and inclusion projects.