By Ria Tabacco Mar

In February, Ketanji Brown Jackson made history by being the first Black woman nominated to the U.S. Supreme Court. In accepting the nomination, Judge Jackson paid homage to Constance Baker Motley, the first Black woman to serve as a federal judge, with whom Judge Jackson shares a birthday.

Listening to Judge Jackson’s remarks, there was another great lawyer I wished were alive to see this achievement: Pauli Murray.

In 1971, Murray wrote a letter to President Nixon purporting to apply for a seat on the Supreme Court. “I am a Negro woman 60 years old,” Murray wrote. (Though Murray identified as a woman in the letter, Murray often expressed a male gender identity; not knowing what pronouns Murray would use today if given a choice, I use Murray’s name instead.) The letter continued:

“It should be of passing interest that I represent the largest group of minority status in the United States — namely, female. The Court would be more representative of the composition and interests of the population of the United States if a qualified woman were appointed. My application is to forestall the popular misconception that no qualified women applied or are available.”

One of the greatest legal minds of the 20th century, Murray was not widely known outside legal circles until recently. While still a law student at Howard University, Murray argued that separate was inherently unequal, work that formed the basis for the landmark victory in Brown v. Board of Education. Murray was among the first to theorize that the 14th Amendment’s guarantee of equal protection under law, the premise of the Brown decision, could be used to challenge laws that discriminated based not only on race, but also on sex.

That work formed the foundation of Ruth Bader Ginsburg’s advocacy during her years as director of the ACLU’s Women’s Rights Project, as Ginsburg herself acknowledged repeatedly. Murray also served the ACLU on its national Board of Directors and as part of an advisory committee guiding its women’s rights work and was a co-founder of the National Organization for Women. The letter to President Nixon recounts none of these accomplishments (some of which admittedly did not happen until later), condensing them into a single sentence: “I am a Constitutional lawyer whose specialty is human rights.”

Murray knew, of course, that one does not “apply” to be a justice of the Supreme Court. That was an unspoken rule, alongside another implicit requirement: being a white man. Today, there have been 115 justices, 108 of them white men.

At the time of Murray’s letter, only white men had been tapped to serve on the high court. In fact, a single Black woman — Constance Baker Motley — had been nominated to any federal court in the country. Judge Motley faced unique barriers as a Black woman. President Lyndon B. Johnson initially hoped to nominate her to a seat on the prestigious Second Circuit Court of Appeals vacated by Thurgood Marshall when he was elevated to the Supreme Court. Marshall had been confirmed three times by that point — first as Solicitor General and then again for each court on which he sat.

But senators objected to the idea of Judge Motley, a Black woman, in such an influential post. Without key votes, President Johnson nominated her for a district court judgeship instead. Judge Motley faced obstacles on the bench as well, as litigants questioned her ability to be impartial and called for her recusal in civil rights cases. That Murray decided to write to President Nixon in the first place reflects the ugly history of discrimination faced by Black women like Judge Motley.

Yet Murray’s letter manages to hold complexity. It is simultaneously cutting and deeply funny, opening with a referral to Murray’s cardiologist as proof of physical heartiness. The letter goes on to point out that Murray’s nomination would sail through the vetting process — because Murray’s activism had already been subject to FBI surveillance.

Murray’s many gifts to us include not only legal brilliance but humor and joy. I often tell my team in the Women’s Rights Project to think like Pauli Murray. This Women’s History Month, my hope is that we can laugh like Murray did, too.

Ria Tabacco Mar is director of the ACLU’s Women’s Rights Project.

Date

Monday, March 21, 2022 - 2:15pm

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Murray knew that one does not “apply” to be a justice of the Supreme Court. That was an unspoken rule, alongside another implicit requirement: being a white man.

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Following a white militia member’s killing of two protestors and the wounding of a third in Kenosha, Wisconsin last year, ACLU Racial Justice Program staff attorney Leah Watson and her team spent months investigating exactly what happened and how the Kenosha Police Department and the Kenosha County Sheriff’s Department put protesters in harm's way. We invited Ms. Watson to walk us through the painstaking investigation and what she and her team uncovered.

Along with reviewing more than 800 records and 50 hours of video footage obtained through months of relentless legal effort, the team also conducted more than 40 interviews with community members to fully understand what happened. As explained in a blog by Ms. Watson, this is what they found:

Leah Watson
“On the night of August 25, law enforcement not only failed to protect protestors calling for police accountability and more humane treatment of Black people, but actively put them in harm’s way. Officers enabled and encouraged predominantly white, right-wing armed civilians and militia groups that night, creating a situation in which tensions escalated and people were killed.”

Noting the nationwide surge of violent white supremacist groups, Ms. Watson pointed out that Michigan is a state where vigilance is especially needed because of its long history as a militia hotbed. Ms. Watson also connected the dots linking a newly emboldened militia movement to another area of her work: Protecting a public education system that promotes inclusion, diversity, critical thinking, and fact-based teaching, even when those facts make some people uncomfortable.

“The core principals are the same,” Ms. Watson explained. “There is a concern for preserving the role of white supremacy across these institutions at the expense of constitutional freedoms.”

Throughout the country, fierce attempts are underway to ban books, prevent the teaching of our nation’s racism, past and present, and to censor educators. In one school district Language Arts teachers were ordered to not use the words “white supremacy” or “diversity. The response from Ms. Watson and her colleagues was to file a lawsuit that is still underway. “I think it's all part of a backlash into what seemed like might be an opening for racial justice following the killing of George Floyd,” said Ms. Watson.

People fearful of losing their long-held white privilege are pushing back as hard as ever, in a multitude of ways.

“Combatting that threat begins with vigilance and zealous protection of constitutional rights for all, including those protesting police brutality or learning about race and gender in schools,” said Ms. Watson “In order to address systemic racism, we must first acknowledge and talk about it.”

And then you fight it with all the resources you can muster, as Ms. Watson and others at the ACLU are doing.

Date

Tuesday, March 15, 2022 - 1:15pm

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Why the ACLU of Michigan is back in federal court fighting the state’s destructive Sex Offender Registry Act on behalf of me and thousands of others

By Anonymous  

As a registered sex offender in Michigan, my story is both an outlier and, sadly, all too common.  

In many ways, I’m no different than the roughly 45,000 other Michiganders – more than the entire population of the city of Midland – who must endure daily obstacles and harm under the state’s Sex Offenders Registry Act (SORA), even though the courts have repeatedly ruled that it is unconstitutional. What makes my case unusual is the fact that I was placed on the registry despite never committing a sex offense of any kind.  

I’m not saying I never broke the law. I did.  

Growing up Detroit’s west side, I fell into a life of crime at an early age. I started selling drugs and stealing things while still in middle school and kept it up in high school, but still managed to graduate with honors in English. In 1990, at the age of 20, I was arrested while attempting to rob a McDonald’s I’d recently been fired from.   

Because I forced the manager and her 14-year-old son, at gunpoint, back inside the restaurant after she had closed it for the night, the charge of kidnapping was tacked on to the other felonies filed against me. In a deal with the prosecutor, I pled no contest to child kidnapping and guilty to all the other offenses.  

Retroactive Shock 

While I was in prison, SORA passed into law. And because it was applied retroactively, I came under SORA’s onerous umbrella. I didn’t realize all this until the time of my potential release approached, and I was told I had to take sex offender classes to qualify for parole.  

I was stunned. No one ever told me that because I pled no contest to child kidnapping my crime could become a registrable offense. My debt to society for a crime committed as a young man was a heavy one: 19 years behind bars. Because I’d determined to cause my family no more heartache and hardship, I worked hard to rehabilitate myself during my time in prison.  

I made great progress over the years, at one point helping run a program teaching others how to resolve disputes nonviolently. I mentored younger men as well to help them deal with life in prison, and to show them that growth and change are possible.  

I also spent years preparing and planning for my release, because I was determined to make my return a success. My goal was to do more than just survive in the outside world. I wanted to help others, and to give back to my community.  

What I had no inkling of was the destructive toll SORA takes. That harsh reality came crashing down on me as soon as I was released in 2009, and all my well-laid plans were shredded.  

Obstacle After Obstacle 

Try finding an apartment when your name is on the sex offender registry. I can tell you from experience, it is virtually impossible. The same is true for getting a job.  I was afraid to even visit anyone who lived near a school. That was just the start. 

Through perseverance, however, I managed to find a way forward, despite all the obstacles SORA created.  

Sometimes I was able to get temporary work with friends. Or I would find some job, but that would last only so long before my status became an issue. Because of my presence on the list, some women would refuse to work with me, or there would be subtle forms of harassment from co-workers, and I’d leave before anything led to trouble. But my choices were limited – no jobs near schools, or jobs that would cause me to go anywhere near schools, like landscaping or delivery services.  

I had a hard time wrapping my mind around all of it. I would lie awake in bed at night thinking, “What am I going to do to make it through this?” But I stuck to the discipline that helped me survive prison and kept moving forward.  

Instead of working for others, I started my own business, doing asbestos removal, lead abatement, debris removal and other things of that nature. As a business owner, I’ve been able to employ other people. From the start, part of my focus has been on hiring other returning citizens.  

Eventually, I was able to save enough money to buy a home on a land contract. It’s located on the block where I grew up. People there know me, and my story, and what the truth is. In that way, I’m fortunate not to be treated as a total pariah, as others plagued by SORA so often are.  

Fighting for Justice 

In an attempt to get some sort of justice for myself, and to make life less of a nightmare for others on the registry, I became one of six plaintiffs in a federal lawsuit, Does v. Snyder, filed in 2012 by the ACLU of Michigan and the University of Michigan Clinical Law Program.  

We were challenging the constitutionality of Michigan’s SORA, and the courts ultimately agreed with us. In 2016, the U.S. Sixth Circuit Court of Appeals ruled that Michigan cannot continue casting people out as “moral lepers” solely on the basis of a past offense without any determination that they actually pose a risk to the community.  

The court also determined what anyone who has ever been on the registry knows with certainty: it is punitive, and that is not acceptable. To continue punishing people after they’ve served their sentence – and to continue doing so for the remainder of a person’s life without any individualized consideration, as SORA does for the vast majority of people on the registry – is not justice.  

But even after the courts said SORA is unconstitutional, Michigan just kept enforcing it.  So, my lawyers brought a class action lawsuit, Does II v. Snyder. In February 2020, the courts said that the Does I rulings apply to everyone on the registry. The Michigan Legislature rewrote the law at the end of that year, but the new law isn’t much different from the old law.  

Because of that we’ve again gone back to court in this ongoing effort to obtain justice for me and others on the list. This newest federal class action lawsuit, known as Does III, was filed last week against state officials by the ACLU of Michigan.  

Does III is necessary because SORA still fails to provide for individual review of cases or any chance for removal from the registry. This forces tens of thousands of people, including people like me who didn’t even commit a sex offense, to be branded as sex offenders and subjected to extensive, and in most cases, life-long restrictions, without any consideration of our individual circumstances. That is a violation of our due process and equal protection rights. The lawsuit also argues that SORA imposes unconstitutional punishment by retroactively extending to life the registration terms of thousands of people. 

The Cruelty Continues 

Just like under the old law, I’m still required to register as a sex offender for life, even though I never committed a sexual offense.  I think about the depth of that injustice, and feel the harmful effects of it, every single day. 

Despite all the progress I’ve made as a person, and despite a decade of litigation by my lawyers, I am still required to register as a sex offender. Unless the ACLU and its allies are ultimately successful, I will be forced to continue doing so until the day I die.  

I didn’t receive a life sentence. Neither did thousands of others trying to survive under the oppressive conditions SORA creates. But living under SORA, it sure feels like I got a life sentence. I am publicly branded as a sex offender for a crime that had nothing to do with sex.  

It is cruel, and it must end.  

 

Date

Thursday, February 10, 2022 - 8:30am

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