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Language Barrier Begins to Fall at City Hospitals


photo by anuarsalleh
Photo (cc) anuarsalleh
By and large, hospital communication services have improved for patients who speak languages other than English.

A trip to the hospital poses challenges for everyone -- stressful conditions, baffling paperwork, unfamiliar terms and frightening circumstances. People with limited English proficiency often find the situation even more daunting. For years, New Yorkers who did not speak English well often had to enlist family members or friends as interpreters, sometimes requiring them to miss a day of school or work.

Now, though, that may be starting to change, according to a recent study. Since the New York State Department of Health adopted new regulations on language access and patient rights more than a year ago, hospitals have improved their communications with patients who speak limited or no English, particularly those who speak Spanish.

For the study, Make the Road New York, the New York Immigration Coalition and Korean Community Services of Metropolitan New York monitored 10 private and public hospitals in New York City in late 2007 and early 2008. They focused on Spanish and Korean-speaking patients. The study found that there is significant progress with Spanish-speaking patients but communications with Korean-speaking patients remain a problem.

"It's impossible to provide quality health care unless patients can communicate their symptoms clearly, understand their diagnosis and knowingly consent to medical procedures," said Andrew Friedman, co-executive director of Make the Road New York, a citywide civil rights organization, in a press release. "We are impressed by the improvements at these hospitals for Spanish speakers, and we applaud them."

Researchers found that 79 percent of the patients interviewed in four hospitals had received assistance in their language from a bilingual doctor, nurse, other staff member, interpreter or telephonic interpreting service. It was a significant improvement from two years ago when only 29 percent of the patients received assistance in their native languages.

About 31 percent of all patients reported knowing they had the right to language assistance services, although that figure reached 76 percent among Spanish speakers at Woodhull Medical and Mental Health Center. Half of the patients at Flushing Hospital Medical Center also reported being told about the availability of free language assistance.

Services for Spanish Speakers...

The study found many language assistance services for the Spanish-speaking community. At Woodhull and Wyckoff Heights hospitals in Brooklyn, nearly nine of out 10 Spanish-speaking patients said that they were helped by Spanish-speaking staff.

At Queens Hospital Center, 84 percent of Spanish-speaking patients said they saw signs about free language assistance services. More than 50 percent reported receiving translated written materials at Elmhurst Hospital Center, while at Woodhull, 45 percent received telephonic interpretation, a service to meet the need for spontaneous, unscheduled access to an interpreter over the phone.

...But Not Koreans

The findings were not so positive for the Korean speakers. In Queens, where Koreans make up about 3 percent of the population, the two monitored hospitals -- Flushing Hospital Medical Center and Queens Hospital Center -- failed to provide sufficient language assistance. Only 25 percent of the patients interviewed received some form of hospital-based interpretation, and none received general translated written materials.

As few as 35 percent of Korean-speaking patients said they understand hospital forms and many of them rely on family members and friends to translate for them. About a third of them bring their own interpreters to hospitals.

"We found some improvements at the hospitals compared to the past, but it's not nearly enough," said Grace Lee, health advocate for Korean Community Services. "There are 80,000 Korean speakers in the city, and hospitals need to be prepared to find an interpreter."

Dozens of Languages

The New York Health and Hospitals Corp., which administers all public hospitals in New York City including Queens, Elmhurst and Woodhull, provides many hospital forms and instructions printed in 12 languages, including Korean, Chinese, French, and Russian.

According to Stefanie Trice, HHC's senior director of the Office of Culturally and Linguistically Appropriate Services, all the corporation's employees have access to an online database providing those forms and are trained to use them.

"It meets 98 percent of our needs but we would translate any language that is needed by request," said Trice. "Last year we had requests for interpretation in 118 languages." She added that signs offering free language assistance are printed in 16 languages and are posted everywhere in all HHC hospitals.

Public vs. Private Hospitals

Among the 10 hospitals in the study, public hospitals appear to out-perform the private ones. While 31 percent of the patients said they are informed of the free language services in public hospitals, only 23 percent of private hospital patients said they had received this information. In addition, 53 percent of the patients reported seeing signs about free language service in public hospitals, but only 39 percent saw the signs in private hospitals. Patients in public hospitals also were less likely to say they had problems making appointments and understanding their medical bills than those at private hospitals.

Some private hospitals have established special programs to serve people from immigrant communities. Beth Israel Medical Center, which was surveyed in the study, established its Asian Services Program and Latino Health Institute to address the needs of those two groups. Flushing Hospital Medical Center's psychiatry department offers Asian and South Asian behavioral programs and a Spanish-speaking program.

Despite the positive findings, the study found persistent problems. Almost half -- 48 percent -- of patients surveyed said they wanted to ask questions but could not because of language barriers. In addition, 28 percent said they did not understand follow-up instructions, and 21 percent believe that their medical care was affected by the language they speak.

What the New Rules Are

The new regulations, adopted in September, 2006, require all hospitals to develop a language assistance program to ensure all patient have access to the hospital's services.

Under the rules, hospitals must:

* Provide ongoing education and training for administrative, clinical and other employees who have direct contact with patents on providing service with regard for cultural and language differences;

* Identify the language of preference and needs of each patient upon initial visit to the hospital;

* Post signs in public locations, including at entrances, informing visitors that free language assistance is available;

* Document patient's language of preference, language needs and the acceptance or refusal of language assistance.

The language assistance should be available to patients needing emergency services within 10 minutes of when they request it and to other patients within 20 minutes. The new regulations also forbid the use of family members or friends as interpreters, unless the patient agrees to it or refuses to use the free service offered by the hospital. Hospitals should also provide translations and transcriptions of important hospital forms and instructions in any language spoken by more than 1 percent of people in the medical center's service area.

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University in Union, New Jersey. He is also a documentary filmmaker whose work focuses on immigrant and Asian American issues. 

The Quest for Childcare: Few Spaces, Little Information


Photo by Katia Strieck

Many parents in New York, particularly lower-income ones, struggle to find safe, affordable childcare. Although New York City offers low-cost or free childcare, there are not enough places for every child. And even when a program is available, many immigrant families do not know how to navigate the complicated system to receive this service.

A new study by the Coalition for Asian American Children and Families makes it clear that the needs of many immigrant children are not being met. According to the 2000 Census, more than 54 percent of children in New York City live in immigrant families. The study focused on six immigrant communities in the city: Bangladeshi, Chinese, Dominican, Haitian, Korean and Russian.

More than 345,500 children under age six from low-income families qualify for city childcare programs, but the city has space for less than 100,000 youngsters. This places a particular burden on families who cannot afford private childcare, which costs $180 per week for preschool and $267 for infant care, the Coalition for Asian American Children study found.

"We want to figure out what kind of political, policy or implementation barriers are keeping immigrant families from accessing these programs," Wayne Ho, executive director of the coalition. "We want to provide a voice for immigrant parents so that they can share what their perspectives, preferences and expectations are for early childhood education."

Faced with a shortage of places, many families resort to informal care, such as unlicensed family members or someone they know socially. However, many immigrants do not even have that option since they work irregular hours. So some immigrant families send their children back to their native countries to be raised by the grandparents. In the Fujianese community, this arrangement is so common that services are available to transport babies between the U.S. and China. Most Fujianese children, though, remain here.

"About 80 percent of our children are Fujianese," said Sandy Kwok Lo, assistant director of the Childhood Henry Street Settlement Day Care Center on the Lower East Side. "Many of their parents work out of state so they entrusted their kids to the grandparents or babysitters. Their communication skills are so low and they are not well versed in American culture. ... They simply have no time or skill to monitor the children."

"Many of these children have developmental, social, and emotional issues," added Lo. "So we are starting to notice the need to refer them to special services."

Lack of Affordable Childcare

Currently there are three types of early childhood education available in the city, including the Child Care and Head Start programs, administered by the New York City Administration for Children's Service. Child Care is a subsidized program that aims to support working families and is for children up to age 13. Head Start seeks to promote school readiness and child development and is free for children ages 3 to 5 from very low-income families.

The third program is the universal pre-kindergarten program for all 4-year-olds in the city. It is offered as a half-day or full day program in local elementary schools and community-based sites, and there is no eligibility requirement or fees. However, many parents complain that their children did not get into the school of their choice -- or even a school nearby -- and that there are not enough full-day programs.

Meanwhile, according to the coalition study, from 1995 to 2005, New York City has witnessed a major increase in the use of informal care, in which an unregulated caregiver watches up to two children at home. This accompanies a decrease in enrollment in daycare centers and in family and group childcare, where licensed care providers, with an assistant, can take care of up to 12 children at their residence.

To address this, the Administration for Children's Services is launching an ambitious plan called "Project Full Enrollment" to fills all the spaces in the city's childcare programs. The average cost per child including administrative expenses is $13,000 per year. According to this plan, childcare providers will be reimbursed for the actual number of children enrolled rather than the projected budget.

Training Providers

Once enrolled in daycare, an immigrant child may confront special issues. The Coalition for Asian American Children and Families study points to a growing need for bilingual teachers and for training to help providers reach and serve the diverse immigrant communities in New York City.

"The greatest need is to hire more bilingual staff," said one of the program directors interviewed. "We saw a dramatic increase in enrollment when bilingual staff was hired, material translated and staff represented the community."

In the Henry Street Settlement Day Care Center, which serves 97 children at full capacity, Lo said she makes sure that at least there is one Chinese-speaking staff in each classroom.

Many providers, though, complain that funding from the city is not adequate to provide the kind of staff and training to better respond to the needs of immigrant families -- particularly given the high cost of real estate in the five borough. Many of them said they need more money to offer translation services.

"The biggest challenge for my program is to ensure that the materials that the parents should be reviewing are available in Chinese," said Nina Piros, director of early childhood programs at the University Settlement on the Lower East Side, which serves 149 children, most of them Chinese. "It is not something that is budgeted in terms of cost for translation. Most programs don't have it covered."

Another problem, Piros pointed out, is finding qualified staff, other than paraprofessional and entry-level employees, who are bilingual Chinese speakers.

"We had openings for a daycare center director and social worker with a MSW (Master of Social Work) last year, and we were hoping to hire bilingual Chinese speakers to reflect our community," said Piros. "But we did not get even one applicant with that kind of background."

Families' Knowledge and Awareness

Many parents, the coalition's report found, experience difficulties obtaining services because of lack of knowledge and language skills. Literacy Assistance Center's Referral Hotline, funded by New York State and New York City, was recently terminated. Now parents have to call 311, the city's official information line. To better reach the immigrant communities, the coalition study calls for more direct outreach in ethnic media. It also advocates a partnership between higher education institutions and communities to research the needs of immigrant communities and provide training for childcare providers.

"I think the biggest challenge really comes down to outreach and education," said Ho, the coalition's executive director. "Immigrant families just don't know what resources are out there. The communications that they get about services are either incorrect regarding whether undocumented immigrants or legal permanent residents can access these programs. These communications are not translated, and if they are translated, the translations are often wrong or incorrect."

That leaves many parents unsure about what to do.

"It is crazy and hard," said a Haitian parent interviewed in the report. "It would be hard to access childcare as a new immigrant even if you speak the language. It is a difficult process anyway."

Many immigrants are reluctant to take advantage of the subsidized childcare because they believe it will hurt their chances for citizenship.

"I think I would prefer to use a private Korean childcare center because it is an easier process and I don't feel comfortable disclosing personal information," said a Korean parent. "If I use any public assistance it could jeopardize my citizenship."

Clearly, though, the demand for childcare remains huge.

"I have people coming from all boroughs to ask me to help them with their applications," said Lo. "Many parents call every week. I must have 10 or 15 pages of waiting list. I don't even know how to return their calls."

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University in Union, New Jersey. He is also a documentary filmmaker whose work focuses on immigrant and Asian American issues.  

Puffing Up Marijuana Charges


photo by icognito
Photo (cc) Incognito

Much has been written about statistics showing that police "stop-and-frisks" in New York City are directed primarily at young African American and Latino males, but until now little attention has been paid to the link between those stops and a huge increase in marijuana arrests under the Giuliani and Bloomberg administrations. These arrests, like the stops, are skewed toward men of color.

Between 1997 and 2007, New York City police arrested 353,000 people for possession of marijuana -- 11 times the number arrested during the previous decade, according to Harry Levine, a professor at Queens College, and Deborah Peterson Small, executive director of Break the Chains, a national group that sees the conduct of the "war on drugs" as a civil rights issue. In their 102-page report, "Marijuana Arrest Crusade: Racial Bias and Police Policy in New York City 1997-2007," they found that African Americans accounted for 52 percent of those arrested and Latinos for 31 percent -- even though reports have found generally higher use of the illegal weed by whites. Few other U.S. cities make marijuana arrests at these rates.

The report also found the police often tried to increase the charge from a violation to a more serious misdemeanor. The possession of seven-eighths of an ounce of pot or less is a violation punishable by a ticket and a $100 fine; a misdemeanor carries arrest and criminal charges. Police, according to the report, "typically discovered the marijuana by stopping and searching people, often by tricking and intimidating them into revealing it." That "kicked up" the charge from a violation to a misdemeanor for having marijuana "open to public view."

Creating Crime?

The misdemeanor charge means, the person arrested is handcuffed, photographed, fingerprinted, held overnight, arraigned in criminal court, plagued with permanent criminal records, and charged with the crime of having marijuana 'burning or open to public view," Nat Hentoff wrote in an article on the report.

This is "a humiliating, degrading, alienating experience," Levine and Small said. "The arrests create permanent criminal justice records which limit employment and educational opportunities."

Edward McCarthy, a legal aid supervisor in Manhattan criminal court, said he regularly sees the effects of the arrests. "Every day in New York City," McCarthy said, "many young men, mostly blacks and Hispanics, are arrested for possessing small amounts of marijuana. ... They are stopped by police, often as part of a stop and frisk, and are usually tricked or intimidated into taking out and handing over their contraband." Then, McCarthy continued, the young men spend the night in jail. "Legal Aid attorneys who work in the city's criminal courts see this every day," he said.

These arrests are expensive too. They "cost taxpayers up to $90 million a year," according to a release from the New York Civil Liberties Union.

The report attributes the explosion of arrests partly to the police desire for overtime. Levine noted the increase began under Rudolph Giuliani' second police commissioner, Howard Safir, whose background was in narcotics. "Morale was low in the department," Levine said, and the opportunity to make these arrests at the end of a shift was seen as "a way to fix the overtime issue." One of the report's recommendations is to pay police more so that they don't resort to these kinds of arrests to pad their checks.

As mayor, Michael Bloomberg continued the arrest policy -- even though Bloomberg acknowledged during his first mayoral campaign that he had used pot and liked it, a quote that a pro-marijuana group used in an ad campaign. The mayor's office referred requests for comment for this article to the police department.

The Police Response

In response to questions on the report, Paul Browne, deputy commissioner for public information, replied with an e-mail statement he had issued when the report came out earlier this spring. "The NYCLU has used an advocate for marijuana legalization to mislead the public with absurdly inflated numbers and false claims about bias," it said. (The Marijuana Policy Project, a pro-legalization group, provided some of the funding.)

Browne disputes the report's contention that most of the people arrested had only committed a possession violation. "The higher misdemeanor number was for individuals smoking marijuana in public and/or in possession of between 25 grams to 8 ounces of marijuana, not the 'few grams' that Levine described," he said.

Browne, however, refused to respond to question for more detail on this, despite repeated e-mails and phone calls. He would not, for example, provide information on what percentage of the misdemeanor arrests involved seven eighths of an ounce or less or respond to charges that police try to "kick up" the violations to misdemeanors.

He also did not provide a racial breakdown of the arrests. On May 30, a judge ordered the NYPD to open its database on stop-and-frisk arrests to the civil liberties union and other groups seeking to see them. This does not include the marijuana arrest figures.

Browne also said the report did not mention that these arrests decreased by 25 percent between 2003 and 2006. (Browne's complete statement is on a New York Times blog.)

Pot and Public Safety

In his statement, Brown said, "Attention to marijuana and lower level crime in general has helped drive crime down."

While no one disputes the need to address crime, some officials question whether the marijuana arrests represent a sound way to accomplish that.

"We have to make sure that we continue to live in a safe city," Rep. Anthony Weiner, a likely candidate for mayor, told Gotham Gazette. "But we also have to make sure that tensions between citizens and police are reduced and that police are making smart decisions. Some of the data raises questions about whether these [arrests] have been handled correctly."

"The NYPD routinely targets young men based on their skin color and where they live. Arresting and jailing thousand for marijuana possession does not create safer streets," said Donna Lieberman, executive director of the New York Civil Liberties Union.

Another likely mayoral candidate, City Comptroller William Thompson said he questioned "the huge disparity in the numbers of African Americans and Latinos arrested."

Maria Alvarado, a spokesperson for City Council Speaker Christine Quinn, said that disparity "raises concerns about racially biased policing" that she said "will be addressed by the council's Public Safety and Civil Rights Committees."

(Thompson, Quinn, and Weiner, by the way, all acknowledge past use of marijuana, Thompson and Quinn both saying their last time was "a long time ago," while Weiner's was in high school.)

Council Member Peter Vallone, Jr., chair of the public safety committee and a former prosecutor, expects to hold hearings in the fall on stop-and-frisk arrests including the marijuana arrests.

"I'm not going to jump to conclusions. Some facts are manipulated, especially by groups like the NYCLU," he said. Vallone said the number of blacks and Latinos stopped is not in and of itself an indication of racial bias. He explained that most stops are based on the identifications that victims of crime give to police, which is why, for instance, the vast majority of those stopped are male even though more than half the population is female.

He did question the misdemeanor charges, however. ""The police have every right to ask you to display what you have. You're free to say no. If, however, someone displays in response to a police request, it would be improper to charge them with displaying," Vallone said.

In the meantime, the civil liberties union is developing an advocacy plan on the arrest policy. To formulate it, the group will talk with district attorneys and elected officials and try to obtain additional data, according to Jennifer Carnig, director of communications for the New York Civil Liberties Union. "The report was just the first step--an effort to shine a light on this issue," she said in an e-mail.

Levine believes that public officials will have to become involved in the next step. "Police Commissioner [Ray] Kelly and other top officials at the police department, who have directed police officers to make these arrests, are unlikely to change NYPD practices until pressured to by the City Council, the State Legislature and other officials," he said.

Such changes cannot come too soon in the view of Norman Siegel, a civil rights lawyer and likely candidate for public advocate. These arrest "are too often unconstitutional and they have a ripple affect on the city in increased alienation and disrespect for law. We need to confront these issues sooner rather than later, including opening up discussions with the NYPD."

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

Protecting Incarcerated Gay and Lesbian Youth


youth justice

Young New Yorkers who are defined by themselves or others as LGBTQ - lesbian, gay, bisexual, transgender or questioning their identity - are often at risk for mental, emotional and physical harm in school, at home, and in social and employment situations. They may experience discrimination, harassment, bullying and violence because of their sexuality, sexual preference and personal style. The risks these teens face in state-run residences, including correctional facilities, can be particularly daunting and dangerous.

Now the New York State Office of Children and Family Services has amended its policies to add gender identity, gender expression and sexual orientation to the characteristics protected from discrimination i.e., race, creed, color, age, sex, national origin, religion, marital status, mental or physical disability. The policy is designed to protect youth from discrimination or mistreatment in all residential settings, including jails, prisons and juvenile detention centers.

"All adolescents experience developmental and social challenges," the policy statement said. "However, LGBTQ youth frequently face additional pressures based on their gender identity or sexual orientation."

As a result, the policy states, "The majority of LGBTQ youth report alcohol and drug use as common mechanisms for coping with feelings of severe isolation," additional and typical risks, which presumably must now be addressed."

What the Policy Does

Effective March 2008 all of the agency's staff and private contractors are prohibited from engaging in any form of discrimination against or harassment of youth on the basis of gender identity and expression, or sexual orientation. The policy states that discrimination or harassment of youth for these reasons by staff or other youths, "will not be tolerated."

The agency promises to retrain staff and provide information to all youth in state facilities about their rights and how to report violations. Under the policy, staff are obligated to report violations by colleagues.

The Office of Children and Family Services policy, though, goes beyond simply prohibiting discrimination. It also seeks to make these young people more comfortable with their identities.

For example, it states, "Clinicians should help LGBTQ youth explore their feelings about their gender identity or sexual orientation, along with related issues and questions, in a safe, affirming manner. Clinicians should help youth reduce co-occurring problems or distress related to their gender identity or sexual orientation, and develop their strengths, coping skills, and resiliency."

LGBTQ Decision-making Committees will have to be established in all facilities. Placement in specialized lesbian, gay of transgender units and facilities will be considered, where appropriate, for individual youth. Also, health care clinicians shall not assume any pathology simply because a youth expresses a particular gender identity or sexual orientation.

In other medical issues, those who may be taking hormones, perhaps in the context of gender reassignment, will be treated in accord with the protocols for the continuation of other prescribed medications.

Staff members have been instructed to use politically correct language and that "homosexual" or "transvestite" are "antiquated and have been replaced with "gay," "lesbian," "bisexual" and "transgender." Morever, each individual may choose a new first name and their preferred pronoun for self-reference. Staff must use those names and pronouns. Residents may wear undergarments of their choice regardless of gender, although uniforms are required for outer clothing. Finally, transgender youth have a right to one-person sleeping quarters and individual showers "to allow for privacy." Presumably that avoids the designation of male or female quarters.

Transgender youth may request either a male or female staff member to perform any necessary strip searches. The request "will be accommodated, whenever possible, considering staffing and safety needs."

CASHING IN ON CRIME

Crime doesn't pay, but those convicted of it do. The consequences of criminal convictions have increased, at least financially, in the form of both new and increased victims' assistance fees, fines and mandatory surcharges imposed on defendants.

After every conviction in a criminal case, the defendant is informed of his or her sentence, right to appeal, possible post-incarceration supervision and how much it will cost in U.S. currency. The mandatory element of the law means that the sentencing judge has no discretion to waive or reduce the amount, even if a defendant is indigent or unable to pay. The charges can, however, be deferred until, for example, the individual is released from prison or jail.

Fees and charges apply whether the offense is a felony, misdemeanor or violation. Felons must pay a mandatory surcharge of $300. A misdemeanor conviction will cost $175, and a violation $95. In addition, both felonies and misdemeanors carry a crime victim assistance fee of $25. There are additional penal law fees imposed on sex offenders that can be as high as $1,000 and a DNA databank fee. Most vehicle and traffic law convictions, although not governed by the penal law, carry mandatory fines.

According to Alan Rosenthal, the director of justice strategies at the Center for Community Alternatives, a statewide organization serving former offenders, the fees and charges "create real barriers to a person's re-entry [following incarceration]. These things are counterproductive to the goal of public safety, they cause road blocks."

Sarah From, director of public policy and communications for the Women's Prison Association points out that women who are released from prison on parole, or who may have been sentenced to probation, depend on public benefits, which are not sufficient to cover the fines and charges. Many live in shelters or face eviction, are unemployed and almost always have dependent children. Some who work may earn only $25 a day in transitional employment programs.

These women usually do not have sufficient income to come up with the money owed back to the state in the form of surcharges and fees that were, in effect, part of their sentence following guilty pleas or convictions. Those who go to court to seek additional time to pay the money owed may lose a job or a day's pay. Failure to make payments can result in parole violations meaning a return to prison.

From says the fees are often found to be "confusing, persistent and unnecessarily burdensome."

In addition, Rosenthal points out that many employers now check credit histories as well as criminal records. For people who have police records and also have been unable to pay money to the state, "it is a deadly combination." In fact, Rosenthal says, the entire scheme of financial consequences, "can lead to more crime. Here, we are using the criminal justice system not to improve public safety, but for revenue; these are measure that undermine public safety."

Many states are increasing their reliance on financial penalties, according to David Udell, director of the Justice Program at the Brennan Center at NYU School of Law, who is studying the issue. He cautions, "As fines increase, no one is looking at recidivism." Udell argues that "loading debt onto people who are in the system in the first place due to lack of financial resources" overlooks the risk of further crime while focusing on the revenue generated by the fees and charges.

Gov. David Paterson signed the new law in the final hours before the April budget deadline, but state legislators and monitors of criminal justice legislation say that they were unaware that the changes were pending until they were enacted. Rosenthal, for example, said, "Most of the legislature was in the dark until the last second, but obviously not Paterson, [Senate Majority Leader Joe] Bruno and [Assembly Speaker Sheldon] Silver." Citing a press release issued by the governor's office, projecting a $40 million addition to the state treasury from new and increased fees, Rosenthal said, "It's absolutely for revenue, pure and simple. It has nothing to do with public safety or crime control. It's easier than raising taxes."

Brooklyn Assemblymember Hakeem Jeffries said he plans to introduce legislation that "would give judges would give judges discretion to waive fees and surcharges when it is clear there is an inability to pay. Forcing an individual into further debt will undermine reintegration into society."

In the meantime, the new financial consequences go into effect this summer.

CAPITAL PUNISHMENT UPDATE

New York's death penalty is dead. That is the opinion of legislators and Albany observers. Following the Court of Appeal's striking down of the state's capital punishment statute in People v LaValle, efforts to enact a new law have met with little support, and less enthusiasm. The Assembly Codes Committee had two new death penalty bills before it, but did not release them for consideration and vote by the entire Assembly.

Whether this reflects a growing public discomfort with capital punishment or a change for economic or moral reasons, Codes Committee Chairman Joseph Lentol told the New York Law Journal, "You just don't hear the same kind of clamoring on the landscape of America for the death penalty and that's true also for the State of New York."

Responding to the change, Attorney General Andrew Cuomo, said, "I feel a sadness that it has been so hard for us to free ourselves from capital punishment."

Meanwhile, the Senate has approved a bill to restore the death penalty for defendants convicted of killing on-duty police and correction officers. Despite a vote of 36 to 23 in favor of the bill, there is no possibility of it becoming law without the Assembly.

In comments to the New York Law Journal, Senator George Maziarz, a Republican of Niagra Falls, blamed the "narrow-mindeness" of Assembly Democrats for the demise of the death penalty.

Emily Jane Goodman is a New York State Supreme Court Justice. 

 

 

 

With Rallies and Protests, Many Overseas Chinese Back the Olympics


illustration

Bing Yuan is a strong supporter of the 2008 Beijing Olympics. It is not hard to know that because he is wearing his support on his head - a hat decorated with the five mascots of the Beijing Olympics known as Fu Was, or fortune dolls.

Draped in a big star-spangled banner, Yuan, a native of China's Jiangsu Province, is among the thousands of people who gathered in a May 4 rally on Foley Square to support the 2008 Beijing Olympics. Many of his fellow demonstrators had painted the Chinese flag on their faces while other waved big flags and signs that read "One World, One Dream," the theme song for the Beijing Olympics.

With the media having focused on the anti-China protests surrounding the Olympics torch relay, the rally is among the most recent efforts by overseas Chinese in New York to counter negative publicity on the Chinese government's crackdown on Tibet's independence movement and the country's poor human rights record and involvement in Sudan. Now, with the Beijing Olympics less three months away, people on all sides of the issue are working to advance their cause.

The Separation of Sport and Politics

"Politics and sports are two separate issues," said Yuan, who has lived in New York for 14 years and works for a computer company. "I have no problem if they use a peaceful channel. ...Hijacking Olympics is absolutely wrong -- particularly the use of violence to hijack the Olympic torch."

Yuan is referring to clashes by pro-Tibet and human right activists with Olympics torch runners in Europe, Australia and Asia. Officials in San Francisco changed the torch's route there at the last minute to avoid the protestors.

"It took Western countries at least 100 years to develop their human rights," added Feng Ming Wang, a friend of Yuan's and a graduate student at Rutgers University. "China is a developing country. It needs economic resources and people's understanding to develop human rights. ... If the Western countries invest more efforts into helping us develop human rights and not just the media distortion, that will help us a lot."

The Foley Square rally, titled "Love China in New York," was spearheaded by One China NY. A group of Chinese Olympics supporters organized the group over the Internet and received donations from several Chinese business associations. It then publicized the demonstration on the Internet and with flyers in some Chinese-owned stores.

John Liu, the Taiwan-born City Council member from Flushing, Queens, helped the group secure a permit to hold the rally.

"For thousands of years, people all over the world, no matter what their governments say or do, they come together for the Olympics," said Liu as he addressed the rally. "One opportunity every four years, no matter what the politics, no matter what the principles, just come together to engage in sports."

During the rally, two small airplanes with streamers reading "Go to 2008 Beijing Olympics" and "CNN Jack Cafferty is a liar" flew overhead. They were sponsored by the Beijing Association of New York. The event also featured exhibitions on Tibetan culture and history that emphasized its growth under Chinese rule as well as Beijing's urban development.

Questioning the Coverage

Those supporting the Olympic direct some of their ire at the media. The well-attended Manhattan rally did not receive much attention from English-language press but got extensive coverage from the local Chinese-language paper, as well as Xinhua News Agency, the official news agency for China.

"You don't see any Western media here," said Joachim Stroh, who was wearing a Beijing Olympics T-shirt and resides in Brooklyn with his Chinese wife. "It is so one-sided. Now we have the Chinese people here voicing their opinions. But nobody cares."

"China's human rights issue is misunderstood," added Stroh. "Look at China. What a gigantic country this is. You come up with measures of tiny spots where you have this human rights issue. That's not to compare to what happened here in the past and compared to the sheer size of the country.

Earlier in April, 200 overseas Chinese staged a protest against CNN's Jack Cafferty who, during an April 9 broadcast of "The Situation Room," called the Chinese "goons and thugs" and referred to Chinese products as "junk." CNN said that the comment was directed at the Chinese government in the context of the Olympics.

China's Ministry of Foreign Affairs issued an official request for apology from Cafferty and CNN. The network responded, "CNN would like to clarify that it was not Mr. Cafferty's, nor CNN's, intent to cause offense to the Chinese people, and would apologize to anyone who has interpreted the comments in this way."

Student Protests

One of the most noticeable sights in the Foley Square rally was the presence of young Chinese graduate students. Many served as volunteers and passionately sang patriotic songs while waving the Chinese national flags.

Ling Hui Wu, a first-year graduate student from Stony Brook University on Long Island, found out about the rally online and came with her roommates.

"I want to support the Olympics and spread love and peace," said Wu, holding a placard with a peace symbol. "I have been thinking about doing this for a long time. Politics and the Olympics should be separate. Everyone should just love each other."

Yi Yang, a graduate student at Penn State University who was in New York for the weekend, came to the event with his family. He learned about the rally from a www.mitbbs.com popular Chinese-language Website for overseas Chinese.

"We had a similar event at our school but it was smaller," said Yang. "I am here to support the Olympics and protest against CNN's distorted report. Our voice needs to be heard." However, when asked about his opinion on China's human rights record and Tibet, Yang did not wish to comment.

Outside New York City, similar rallies were held on many university campuses, including Yale, Cornell, Louisiana State, Colorado State and the University of Washington.

Turmoil Over Tibet

For their part, Tibetans and their supporters in New York argue that it is the Chinese government that is using the Olympics for political advantage. Tenzin Dorjee, deputy director of the New York-based Students for a Free Tibet, has participated protests of the torch relay in Greece, Paris and San Francisco. He was at the rally in Foley Square and was greeted by insults when he tried to distribute flyers there.

"The Chinese government is using the Olympics as an opportunity to legitimize its occupation of Tibet, said Dorjee, who is of Tibetan descent and was born in India. "Right now with the global spotlight on China, Tibetans and their supporters around the world are speaking out to show Chinese leaders that until Tibet is free, the Chinese government will never get the acceptance that it so desperately seeks."

"For us Tibetans, our basic rights have been denied. It has been extremely painful," he added. "But now when the Chinese government is seeking international acceptance and glory, suddenly we have an influence to deny that. When we do that, the Chinese government is realizing that it is also painful to not get what they want."

Tsomo Tsomo, a Tibetan college student in New York, was among the hundreds of protesters outside the United Nations headquarters in early April. She said Tibetans must protest now while the world has its gaze on China because of the Olympics.

"China absolutely does not deserve to host the Olympics," Tsomo told the News Hour. "Its now or never for us."

Some overseas Chinese are sympathetic to such arguments. "I feel like the Olympics shouldn't be in China because of Tibet," Kim Chen, a native of Fujian Province and a sales clerk in Flushing, told the New York Times. "I feel the protesters should be protesting."

"The Olympics is just a game. And you cannot separate politics from the Olympics, despite your wishes," wrote Chinese-American blogger Jen-hao Liu in a New York Times online forum. "Let's just boycott the whole thing. It is no longer a simple, noble sports event. It has already been corrupted by politics and the decisions of the Chinese government."

Growing Tensions

Occasionally, the demonstrations in support of Beijing have gotten out of hand, with the students' displaying a zealous nationalism.

At Duke University, a Chinese freshman named Grace Wang was harassed by fellow Chinese students and received a death threat after she attended a pro-Tibet vigil in a dining hall on campus. Her picture was posted on the Internet with the word "traitor" on her forehead, and her parents' house in Qingdao, Shandong Province, was painted with graffiti saying, "kill everyone in the house."

At the University of Southern California, a student was asked to leave a lecture after he threw a bottle at the visiting Tibetan monk. At the University of Washington in Seattle, the Chinese Students and Scholars Association staged a protest during the Dalai Lama's speech, and pressured the university administration not to allow him to speak on any political issues.

The Olympics are set to begin with an elaborate opening ceremony on Aug. 8. As organizers plan the extravaganza, some Western political leaders are reportedly considering whether to boycott the event to protest Chinese policies. As the officials mull their plans for August, Chinese actions and the connection between sports and politics seem certain to remain hot topics among Beijing's supporters and opponents on New York's streets and campuses.

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University in Union, New Jersey. He is also a documentary filmmaker whose work focuses on immigrant and Asian American issues. 

Reversing the Tide Against Protest


Image by Brendan Themes
The proposed First Amendment Assembly Act would be a reversal of some of
NYPD's 2003 RNC-related restrictions.

New York has long prided itself as a place of protest, where dissidents of all stripes could take to the streets and be heard. But over the past several years, the right to demonstrate has taken a beating here. Now some City Council members are seeking to reverse that trend.

The council members have proposed a measure that would significantly modify the New York Police Department's new regulations governing permits for parades and demonstrations. The First Amendment Assembly Act, Intro 743, reasserts the council's right to legislate in this area and seeks to make the police more accommodating in allowing protests, demonstrations and other gatherings in public spaces. The stated goal of the bill is to promote "fair and transparent accommodation of competing uses of city public spaces, which means to encourage First Amendment assemblies by de-criminalizing mere participation in, or proximity to, them."

As the bill's sponsors work to garner support for it, a court settlement was reached on a key case involving protest in the city. On April 15, the New York Civil Liberties Union settled a lawsuit with the Police Department. As part of the agreement, the police pledged not to send horses into crowds of demonstrators without providing warning and giving crowds the opportunity to disperse. The department said it would not create penned spaces that "become traps," according to a New York Civil Liberties Union release, and "to assure that protestors have the information that they need to get into demonstration areas."

The suit covered three cases, including the massive anti-war protest of February 2003 where demonstrators were denied the right to march past the United Nations and were confined to pens on side streets. The settlement finalizes a temporary order issued by federal Judge Robert Sweet in 2004 just prior to protests of the Republican National Convention, barring the police from certain restrictive practices.

Under the settlement, two demonstrators, who alleged police mistreatment during the 2003 anti-war protest, were awarded $10,000 and $15,000 respectively.

Protests, Parades and Permits

The City Council bill introduction is the latest move in a long debate that arose out of mass bike rides by the group Critical Mass. Rebuffed by the courts in its effort to restrict the rides under existing regulations, the police department tried in 2006 to create new ones. The rules would have required permits for any group of 20 or more using a public street or sidewalk. They would have also given the police the right to arrest two or more people or vehicles that failed to observe traffic rules for "parading without a permit" in addition to whatever traffic infraction they committed.

While Police Commissioner Ray Kelly claimed that the rules would "in no way impinge on free speech," the administration withdrew them after an uproar from the politicians, the press and civil liberties groups. The Association of the Bar of the City of New York wrote a 19-page report calling the regulations "critically flawed."

In January 2007, the police department issued modified regulations, obligating groups of 50 or more to obtain parade or demonstration permits. While Christopher Dunn of the New York Civil Liberties Union called the new regulations "an improvement," he told the New York Times, "we still do not believe that lawful bike rides, with as few as 50 bikes, should require police permits."

Police spokesman Paul Browne responded, "Some critics will find fault no matter how reasonably the rules are drawn."

City Council Speaker Christine Quinn embraced the new rules, the paper said, promising to "ensure we strike the proper balance between protection of civil liberties with the need for public order."

The council had felt the rules proposed in 2006 " were too restrictive," said Anthony Hogrebe, deputy press secretary for the speaker. "The NYPD made changes based on the concerns we expressed, and we have continued to monitor the new regulations to make sure that both civil liberties and public safety are being protected."

The modified regulations, however, remain unacceptable to many civil liberties groups. The group www.radicalhomosexualagenda.org Radical Homosexual Agenda (click on "Letter to Quinn") demonstrated against Quinn, who is herself an out lesbian and former community organizer, complaining, "These rules justify the police suppression of spontaneous crowds."

What the Bill Would Do

Councilmember Rosie Mendez and eight of her council colleagues have responded to these and other concerns by proposing the First Amendment Assembly Act. "Groups wishing to assemble and stay within the limits of the law should not be required to obtain a permit," Mendez said in a release. "The First Amendment is our permit. Larger assemblies that want the police to assist in managing traffic along their route and ensure security should be able to apply for a permit through a fair and transparent process. This bill sets forth clear guidelines for each instance."

The bill makes the application process easier and requires the police department to respond in a timely fashion to requests for permits. If it turns down a request, the department must provide written reasons for the rejection. The bill also recognizes that some demonstrations arise spontaneously in response to breaking news, leaving no time to obtain a permit. In such instances, "the department shall, consistent with the interests of public safety, seek to assist, facilitate, and otherwise encourage the rights of persons to organize and participate in [assemblies]."

These changes would mark a substantial change in emphasis on civil liberties in a city whose government sharply restricted anti-war demonstrations in 2003, has denied requests for large rallies in Central Park and rounded up people they thought might protest when the city hosted the Republican National Convention in 2004.

Mark Taylor of www.assembleforrights.org Assemble for Rights, a coalition of 22 groups working for this bill, said, "It is a big deal to us that the City Council make these regulations, not the police department."

Washington, D.C.'s Approach

The New York bill is modeled on a law adopted in 2004 in Washington, D.C., another city that is the scene of large demonstrations.

Civil rights attorney Gideon Oliver, who played a role in drafting the legislation, said, "the most important thing it does is that it decriminalizes 'parading without a permit' and points to best practices not just in Washington, D.C., but in other cities with large populations." He added, "It will provide the police department and other city agencies with the kind of information they need to police events."

Oliver said that a big part of what motivated Washington to write the law was all the money its government had to pay out in lawsuits brought by aggrieved demonstrators. "But Bloomberg doesn't care and the taxpayers don't seem to" here in New York, he said.

Washington's law, according to Taylor, is "very clear with their police department that unless there's violence or major disruption, their job is to facilitate public assemblies and work with organizers. The police are not allowed to wade in and make indiscriminate arrests as the New York Police Department has several times." Many of the arrests New York police made at the Republican National Convention were thrown out of court on that basis.

While New York's department is fully capable of being cooperative in policing gatherings, Taylor said, "sometimes they have a different approach based on the content of speech," such as when the action is against "police violence and corruption" or involves gay activists or people of color.

Last May, for example, police surrounded about three dozen young people on their way to a wake for a teenage friend. The teenagers were cursed at, handcuffed and thrown into police wagons, Bob Herbert reported in the Times "According to the police, the youngsters at the scene were on a rampage, yelling and blocking traffic. That does not seem to be the truth."

The First Amendment Assembly Act may be a heavy lift in a City Council where term-limited members with their eyes on higher office are loathe to be perceived as either anti-cop or as second-guessing their judgment. While many council members hold press conferences and attend rallies complaining about police misconduct or restrictions on civil liberties, few take the initiative to write new laws, such as this one, that address the problem in a more systemic fashion.

The bill has been referred to Council Member Peter Vallone Jr.'s Public Safety Committee and has not been given a hearing date. Neither the police department nor Mayor Michael Bloomberg's office would comment on the legislation.

"We've made it clear to the speaker that if she wants to be a good leader, she can't ignore civil liberties," Taylor said. "We know she has done good things as Speaker, but she can't take a pass on this."

Mendez said Quinn is well aware that Mendez has been developing this legislation and worked closely with the council's legal staff in drafting it. She plans to work on getting a lot more sponsors for the bill and will be asking for a meeting with Quinn on it. "She has to balance needs," Mendez said. "But I expect honesty from her and I know I will get it."

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  

Document Jam Could Keep Immigrants from Voting


To many immigrants, the right to vote in the United States represents the full realization of their American dreams and a validation of many years of hard work and struggle. It means that they are active members of the American society and equal to native-born Americans -- at least in the eyes of the law.

This year, though, many immigrants who thought they would be able to vote in the November presidential election may not be eligible because of delays in processing their applications for citizenship. Because of a rapid rise in applications, the federal government has been taking an average of 16 to 18 months to review the applications, up from around seven months a year ago.

Even the Department of Homeland Security, which has responsibility for reviewing the applications, concedes that a problem exists. "There may be a significant number ... that have applied at this date that don't make it through" in time for the election Homeless Security Secretary Michael Chertoff told a recent congressional hearing

In an effort to pressure the administration to clear the backlog of citizenship applications by legal immigrants, the Puerto Rican Legal Defense and Education Fund (PRLDEF) in New York filed a class-act lawsuit against the Department of Homeland Security to demand that the immigration authorities to complete hundreds of thousands pending naturalization petitions in time for the new citizens to vote in November.

"It is insulting to the people who applied for citizenship," said Cesar Perales, PRLDEF's president and general counsel. "Especially after they learned English and passed the civics and history test to qualify for citizenship, they still have to wait. They should have all been ready to cast their vote as American citizens in November. ... It is very typical of the American government. They don't care about the immigrants. They don't want them to be a part of the American society."

In the lawsuit, PRLDEF demands that the U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security, process all application filed before March 26 by September 22.This would give the new citizens time to register to vote and meet the Bush administration's own goal of processing all applications within six months.

Beating the Fee Increase

The backlog springs largely from a sharp increase in 2007 in citizenship applications. A total of 460,294 citizenship applications were filed in July 2007 alone, the Associated Press reported, an increase of about 650 percent increase from July 2006. And that was not an isolated event. Throughout the first half of 2007, the citizenship agency received far more applications than it had in the same month a year earlier.

The large influx of applications is widely believed to be a result of the drastic fee increase last summer. On July 30, 2007, the fee for naturalization applications rose 69 percent, to $675 from $400. All other immigration-related application fees went up as well. Immigration officials justify the increases by noting that Congress has required that federal immigration and naturalization services be self-supporting.

Critics of the large fee hikes argue that they will place U.S. citizenship out of reach for many legal immigrants. But proponents counter that immigrants should be willing to save and sacrifice if they want to enjoy the benefits of being citizens.

Regardless of the merits of the increase, critics of the immigration agency said officials should have anticipated its effects. ""The fee hike is no small increase," said Norman Eng, communications director of the New York Immigration Coalition, an umbrella advocacy group. "So the fact they didn't expect so many people would try to get their application before the deadline. ...They only have themselves to blame for their lack of foresight."

Too Late to Vote

The backlog has affected immigrants in New York and around the country. More than 90,000 legal immigrants in New York State have been waiting for up to three years for their naturalization applications to be processed, PRLDEF said in a statement. Currently, 1.1 million foreign-born New Yorkers are eligible for citizenship, according to the New York Coalition.

In their statement, PRLDEF officials were particularly critical of the effect this could have on the election.

"We've already witnessed unprecedented numbers of Latinos going to the polls during this election season. Hundreds of thousands more are being denied that same opportunity," said Perales.

"Thousands of immigrants will be wrongly denied the most wonderful opportunity our government offers us, the ability to participate in the democratic process," said Foster Maer, one of PRLDEF's attorneys. "When people follow the rules, so should the government."

Breaking the Logjam

Two weeks after the lawsuit, immigration services director Emilio Gonzalez announced that his agency had lowered its projections for how long it would take to process naturalization applications. Citing the sharp increase in applications last summer, Gonzalez said the individuals who filed for citizenship during the summer of 2007 can anticipate an average processing time of 13 to 15 months, a three-month improvement from the 16 to 18 months projected in January, though far from the Bush administration's six-month target.

The immigration agency blames the Federal Bureau of Investigation for some of the delay, noting the FBI has to check all names. To address the backlog there, Citizenship and Immigration Services and the FBI announced a joint plan. The bureau said it has already dealt with all name check cases pending more than four years and by May hopes to complete all name checks pending more than three years. By June 2009, the FBI hopes to process 98 percent of all name checks within 30 days and to spend no more than 90 days to clear cases that are deemed difficult.

To speed its own processing, the immigration agency has hired retired employees and encouraged workers to work overtime voluntarily. The agency scheduled naturalization interviews on Saturdays and Sundays as well as after traditional business hours. It also plans to add nearly 3,000 new employees, place workers in offices with the greatest backlogs, quadruple the funding for overtime and use Asylum Office facilities and staff to conduct naturalization interviews.

"By the end of the year, I expect USCIS will have finished 36 percent more naturalization cases than last year without compromising national security or the integrity of the naturalization process," said Gonzalez.

But PRLDEF's Perales is not satisfied. "The review of these applications is not going to be done in time for these legal immigrants," he said. "They can't keep answering the question with the vague notion of national security."

Eng said that the government needs to send a more welcoming message. "There needs to be a commitment to immigrants and to encouraging immigrants to get involved and to be part of our civic life," he said. "The message that this backlog debacle sends is that we don't care about you. That's not the right message. That's not what this country is founded on."

Meanwhile, Gonzalez plans to step down on April 18 after serving as the director of Citizenship and Immigration Services since January 2006.

In an editorial, the New York Times said Gonzalez will leave behind a gummed-up bureaucracy and perhaps a million empty promises. "Those who know the citizenship system say it is 'dumbfounding' that Gonzalez and his agency did not foresee the surge, not only because the fees went way up, but also because 2008 is a presidential election year - always a time when would-be citizens hurry to get their papers in," reads the editorial.

Larry Tung, a native of Taiwan, teaches media and film courses at Kean University. He is also a documentary filmmaker whose work focuses on immigrant and Asian American issues. 

Taking a New Look at Discrimination in New York


illustration
Gotham Gazette image by Ya-Hsuan Huang

Last month, New York City paid $21 million to settle a class action lawsuit for race-based employment practices in the city Department of Parks and Recreation. At the time of the lawsuit, more than nine in ten of the parks employees making less than $20,000 a year were black or Latino, while only 14 perent making $50,000 to $60,000 were black or Latino. When the Bloomberg administration agreed to the settlement, it nevertheless claimed it did not and does not discriminate.

Earlier this month, Senator Barack Obama called for open and honest action to address inequality, and in that spirit it is time for New York City's government to examine its own approach to practices. Instead of officials clamming up and insisting categorically that the city does not discriminate, what if policymakers, advocates and residents addressed the problem head on and agreed that policies that further racial and gender disparities -- intentionally or not -- are unacceptable?

This is the approach proposed by the Human Rights in Government Operations Audit Law (Human Rights GOAL) introduced earlier this month by Councilmembers Helen Foster and Darlene Mealy. This measure would put us one step closer to real equality for all New Yorkers.

To fend off inadvertent discrimination, Human Rights GOAL would do three things:

--Track how its policies affect different populations
--Remedy disparities as they emerge, rather than wait for a lawsuit to challenge them; and
--Include the affected, marginalized populations in implementing the law.

While New York City does have a stated policy of non-discrimination, it lacks the requisite tools to determine if that policy is being adhered to. No standard mechanism exists for knowing when or how government policies have disparate, negative impact on historically marginalized groups. And aside from the occasional audit by the Equal Employment Practices Commission, the only way discriminatory policies get fixed is when people undertake lengthy and costly lawsuits -- after the damage has been done.

The lawsuit settled by the parks department a few weeks ago, for example, might have been prevented if Human Right GOAL had been in effect. The lawsuit, dating back to 1999, was brought by over 3,000 black and Hispanic employees who charged that the department had passed them over for promotion in favor of white employees and paid them less.

After 14 months of negotiation, the Bloomberg administration agreed to pay more than $21 million and make "major changes in certain of its personnel practices." But the city staff and resources spent to defend the parks department in this lawsuit - and the anguish suffered by the victims of discrimination - is a much higher price than the stated settlement amount. And the open-ended promise to make changes and prevent something like this from happening again can only be fulfilled if it is accompanied by a concrete plan.

Explicit discrimination may be less common now than it once was, but, as Obama indicated in his speech, discrimination persists in seemingly neutral policies that create obstacles to equality.

The Precedent for Need

The discrimination documented in the park employees' suit was not an isolated incident. The City of New York has found itself in this position before.

--In 2005, the parks department settled a separate, federal discrimination lawsuit claiming that it routinely bypassed black and Hispanic employees for promotion.

--A year ago, a lawsuit by the U.S. attorney's office named the Department of Transportation for discriminating against women in its hiring practices. In the last 10 years, the lawsuit alleged, the department never hired a single female bridge painter despite the applications of a number of qualified women. The transportation department claimed to have a "gender neutral" hiring policy.

--Last year the federal Department of Justice sued the Fire Department of the City of New York charging that its written examinations discriminate against blacks and Hispanics applying to be entry-level firefighters.

Less documented but even more pervasive are the disparities reflected by the unequal application of municipal services. For example, while black and Latino youth are arrested more for use of illegal substances like marijuana, the city's own health department reports that white youth are more likely to use marijuana. In the child welfare system, black and Latino youth comprise an overwhelming 87 percent of the children in foster care. In 2006, 43 percent of black students and 41 percent of Latino students in New York City graduated on time, compared to 67 percent of white students and 68 percent of Asian students.

In one of the saddest facts, the infant mortality rate of children citywide is 5.9 per 1000 births, compared to 10.5 per 1000 for African American children.

It's not the official New York City policy to under-employ or under-serve certain groups, but as a result of seemingly benign policies and their implementation, men, women and youth wind up the repeated victims of de facto discrimination.

Setting a GOAL

Human Rights GOAL addresses disparities by drawing on two human rights treaties signed by the U.S.: the International Conventionon the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. Notably, both treaties prohibit any policies and practices that are discriminatory in effect even if that is not in purpose. This definition of discrimination is broader than the definition in the existing civil rights law, which requires evidence of intent - and often a lawsuit - to determine the presence of discrimination.

Upon passage, Human Rights GOAL would mandate that all city agencies undergo an audit to determine what kind of data they already collect, what existing mechanisms are in place to address discriminatory practices, and to what extent agencies engage those most affected by their policies in evaluating and improving them. Based on the idea that the first step to remedy discriminatory practices is to identify and determine the extent of the problem, the bill requires all city agencies to collect and publish data on employment and service delivery, then use this data to analyze their programs to identify if they have a discriminatory effect.

While some agencies do track certain numbers -- hiring practices have gradually become better documented thanks to Equal Employment Opportunity policies -- it is notoriously difficult to know what kind of information the city tracks in other areas, and, if so, how one gets that information. Indeed, many advocates supporting Human Rights GOAL list getting access to data -- numbers on race, gender, immigration status, religion and more -- as the biggest obstacle they face in conducting research about the very communities they seek to help. These groups have filed Freedom of Information Act requests, only to be repeatedly ignored by the city.

Last year, the New York Civil Liberties Union, New York Times and several others filed a lawsuit against the police department for not sharing electronic data on police stops. The department has since released the data -- but sent it to a third party in another state. Meanwhile, in its annual firearms report, the police break down information on dogs that have been harmed by police gunfire by breed but neglects to do the same by race for people it has harmed.

Judging from departmental reports and the Mayor's Management Report, other agencies fare better. The Department of Health and Mental Hygiene, for one, collects disaggregated data and makes it available. This should be a practice for all departments -- parks, buildings, transportation, education, environmental protection, children's services and more.

With data in hand, these agencies would then publish a human rights analysis, and develop an action plan targeted at fixing trouble spots. The action plan might entail hiring more broadly, offering better housing or legal services to certain communities, or expanding access to good schools.

Finally, to oversee implementation, Human Rights GOAL would create a human rights taskforce of civilians and city representatives. The taskforce would do some of the heavy lifting to carry out the audits, the assessment of areas for improvement, and what an action plan should look like.

Freedom from discrimination is a basic human right, one New York City has a history of recognizing. But it should not rest on its laurels - a progressive city remains progressive only by constantly searching for ways to expand equality and hold itself accountable.

Across the country, San Francisco passed a version of Human Rights GOAL in light of unfair hiring and service practices. The city has now increased the number of women hired in non-traditional positions and even appointed the first woman to its airport commission.

For the sake of New York and its residents, it is time we employ policies that protect our basic human rights before agencies get slapped with hefty law suits. It is time to turn this human rights bill into law.

Ejim Dike is director of the Human Rights Project at the Urban Justice Center.  

Ending Another Form of Discrimination


The City Council voted on March 26 to add another category of people to those already protected from discrimination in housing. Now, the Administrative Code will ban housing discrimination based on "source of income." Landlords will no longer be able to deny access to housing on the basis of type of income, provided the income is from a lawful source.

The intention of the bill and the immediate effect is to ban rejection of low-income tenants or potential tenants who possess Section 8 housing vouchers. Financial need will now join race, gender, marital status, sexual preference, ethnicity and age as factors that a property owner cannot consider in deciding whether or not to rent to an individual or a family, assuming the prospective tenant is otherwise eligible and has a documented lawful source of income.

The City Council ovverrode the mayor's veto by a vote of 44 to 7.

Until now, according to the Council's Report of the Governmental Affairs Division, Committee on General Welfare, it has been common for landlords to refuse to rent apartments to otherwise eligible apartment seekers who have the vouchers. The Section 8 program is meant to assure that a qualified tenant or family does not pay more than 30 percent of income for housing.

While focusing on New Yorkers in the Section 8 program, the new law would not allow a landlord to discriminate against people who receive Social Security, public assistance or other lawful sources of income. The legislation covers various types of housing provided there are six or more units, and it applies to incoming tenants and to those already in a home but whose economic circumstances may have changed after they moved in.

"This is a common sense law that will help more New Yorkers find housing that they can afford," said Councilmember Bill de Blasio of Brooklyn, who introduced the measure.

California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, Utah, Vermont and Wisconsin, as well as Washington D.C., Chicago, San Francisco and Seattle have enacted similar legislation, as have other jurisdictions in New York State, including Nassau County and Buffalo.

After the City Council overwhelmingly passed the bill last month, Mayor Michael Bloomberg vetoed it. The mayor apparently thought the measure was too restrictive of business. "The onus," he wrote when he vetoed the bill, "should be on government to make the program more attractive for private sector participation, not the other way around."

In an e-mail in February, a mayoral spokesperson called the City Council bill a "solution in search of a problem." It said the administration wants to reduce bureaucratic hurdles in the Section 8 program so landlords want to accept the vouchers, rather than create legislation that targets landlords.

De Blasio, the chairman of the Committee on General Welfare, criticized the veto. "It's unfortunate that at a time when New Yorkers are suffering the burdens of high rent and an economic downturn, that the mayor vetoed legislation designed to protect low-income families," he said.

The council's report found that protecting people from discrimination on the basis of their source of income would "benefit prospective tenants, landlords and housing authorities." Tenants, it said, would " have a greater chance of finding affordable housing and can seek redress from housing discrimination," while landlords would "gain tenants who have strong incentives to be model tenants." In addition, because the local housing authority guarantees timely payment of rent for Section 8 recipients, landlords know they will be paid.

Despite this change to the City's Human Rights Law, the Section 8 program still faces problems. Most seriously, the number of the vouchers is limited by the funds provided by the federal government. For the last 12 years, no vouchers have been available except for victims of domestic violence, homeless people and other priority candidates who need housing on an emergency basis. In fact, except for a small window that was open in 2007, federal funding cuts have closed the list to all non-emergency applicants. For this reason, the people actually protected by the new city law -- at least for now -- will be primarily those who already had vouchers, but were unable to use them because landlords would not accept them.

Emily Jane Goodman is a New York State Supreme Court Justice 

 

Same-Sex Marriages, Death and Taxes


"In this world, nothing is certain but death and taxes," Benjamin Franklin famously said. But for committed same-sex couples in New York, these are two areas of law, along with many others, remain far from settled. Here's a rundown of some key recent developments.

What Happens in Canada Doesn't Stay in Canada

In a ruling that could prove pivotal, a state appeals court last month decided that legal same-sex marriages established elsewhere must be respected by all public and private entities here, even though New York State does not license the marriages of gay couples (unless one is a gay man and the other is a lesbian woman).

The mid-level Appellate Division's 4th Department, a relatively conservative court, ruled unanimously on February 1 that a New York lesbian couple married in Canada could not be denied marital benefits from Monroe County Community College where one of the women works. The decision "rests on a century's old law--the marriage recognition rule," said Matt Faiella, a staff attorney with the http://www.nyclu.org New York Civil Liberties Union, which represented the women.

Even though the Court of Appeals, the state's highest, ruled in 2006 that the state did not have to grant same-sex couples the right to marry, the decision did not say that it could not do so. New York is one of a handful of states that has not passed a law forbidding recognition of gay marriages. And since same-sex marriage is not "abhorrent" to New York's public policy (as, say, a marriage between brother and sister would be), the upstate appellate court concluded that legal marriages of same-sex couples who wed in Canada must be given the same recognition as mixed gender Canadian marriages. It falls under the principle of "comity" whereby states and nations give effect to legal agreements from elsewhere.

While there are several other cases at the Appellate Court level involving recognition of same-sex marriages licensed elsewhere, the upstate decision applies to the entire state unless another division of the Appellate Court makes a contradictory ruling. And while Monroe County is trying to appeal the decision that they must recognize the marriage of two women, the state's high court does not have to hear its appeal and probably will not. (The New York Times did a good survey article on these cases and on a ruling that two women married in Canada but living here can dissolve their marriage only through divorce proceedings that one of the spouses is resisting.)

Thus, we have the somewhat wacky situation in New York in which a gay couple can go to Toronto to get married and come back to our state and be legally married under New York law, but they cannot go down to their local city hall and wed.

This is not the first time that New York has given legal recognition to out-of-state same-sex marriages. In 2004, then-Attorney General Eliot Spitzer unofficially opined, "Under state court precedent, same sex marriages and civil unions lawfully entered in other jurisdictions outside the state should be recognized in New York."

Also in 2004, then-State Comptroller Alan Hevesi began treating these couples as married under the State Retirement System. His move survived a lawsuit challenge by the conservative Alliance Defense Fund.

After he became governor, Spitzer ordered the Civil Service Department to recognize legally married same-sex couples in 2007, compelling any municipality linked to the state benefits system to do so as well. None of this is likely to be undone by new Gov. David Paterson since he has a longer and stronger record on gay rights, including marriage equality, than the man he replaces.

Legal Misrepresentation

Attorney General Andrew Cuomo filed a friend-of-the-court brief on behalf of Monroe County couple, but his office did not return calls on how his office will make sure all state departments comply with the court's decision. For now, at least, the state Department of Taxation and Finance is at odds with it.

In 2006, the department issued an advisory opinion in 2006 insisting that state law requires married couples to use the same filing status as they use on their federal tax forms. Since the federal government bans federal recognition of same-sex marriages under the Defense of Marriage Act, legally married same-sex couples -- even in Massachusetts, which license such marriages -- must file as single on their federal returns. On their state returns, gay married couples in Massachusetts must file as married. Since their state tax is based on the federal system, they then have to do two federal returns: one a "dummy" return to figure out what their state taxes would be as a married couple and the other, the real one for federal purposes, as single. New York is not allowing that.

Thomas Bergin, a spokesperson for the state tax department, said, "The law would have to be changed or revised" for gay married couples to be able to file as married in New York, but he conceded that their counsel had not reviewed how the Monroe County case might chnge that.

"We have asked the governor to take another look at that," Susan Sommer, senior counsel at Lambda Legal Defense, a gay advocacy group, said.

"State law requires allowing same-sex couples who are married to file as married," Sommer added. She would not go so far as to say that these couples should file as married in New York, but suggested they consult with their tax advisers and note on their state tax forms that they are married and are filing as single "under protest." "People should not have to swear under penalty of perjury that they are something that they're not," she said.

Mark Munroe, a certified public accountant in Manhattan who has many gay clients (including this reporter), said that he would advise people in same-sex marriages to file as unmarried per the official advisory opinion of the tax department. "If my clients felt strongly about it, I will file a joint return for them if they indemnify me for penalties," he said. As a practical matter, he said the only couples who would be significantly helped by filing jointly are those in which one of the spouses does not work.

New York City grants legal recognition to out-of-state same-sex marriages, civil unions and domestic partnerships. The city Department of Finance was not immediately able to say whether the city's personal income tax takes these arrangements into consideration. Sam Miller, a spokesperson for the department, said that city income taxes are based entirely on state taxes, which, the state insists, are based on federal taxes.

'Til Death Do Us Part

The legal status of one's relationship plays a critical role in determining who gets to dispose of a person's remains and inherit their property. In a legal marriage, the spouse inherits the property tax free. If a married person dies without a will, his or her spouse automatically inherits the estate.

New York State does not marry gay couples, nor does it have registration for domestic partners or civil unions as New Jersey does. One of the only rights that domestic partners have from New York State is to control the remains of their dead partners. A bill establishing this slipped through with almost no objection in 2006.

Despite this law, death certificates in the state, including the city, do not list "domestic partner," under marital statuses that include "married, married but separated, widowed, divorced, never married and unknown." There is room for the name of a "surviving spouse," but not for a surviving domestic partner. Domestic partners in New York City -- same-sex and mixed sex -- have been able to register their partnerships since 1993 under an executive order by Mayor David Dinkins. The Department of Health and Mental Hygiene, which issues death certificates, indicated that they are "aware of the issue" involving the partnerships and are "working to find a solution."

"We are working with them [the health department] on the fastest and most effective way for domestic partners to be listed on death certificates," said Anthony Hogrebe, a spokesperson for City Council Speaker Christine Quinn, herself an out lesbian

Brendan Fay, who married his husband, Thomas Moulton, in Toronto in 2003 and lives with him in Astoria, Queens, remembers the Canadian judge telling them that from that day forward, they were obligated to hold themselves out to the world as the married couple they are. They have -- even though the U.S. government won't recognize the marriage for immigration purposes (Fay is an Irish national.) Moulton has gotten marital benefits for Fay at his hospital job. Together, they help other same-sex couples travel to Canada to marry through their organization Civil Marriage Trail

"It's a pity gay couples have to go to all this expense to go to Canada to marry and be legally recognized in New York," Fay said. "I'm working for the day when they can marry right here in their home state and when the United States will give us marriage equality as well."

Andy Humm, a former member of the City Commission on Human Rights, has been in charge of the civil rights topic page since its inception in 2001. He is co-host of the weekly "Gay USA" on Manhattan Neighborhood Network (34 on Time-Warner; 107 on RCN) on Thursdays at 11 PM.  



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