Editor’s Preface: Fall 2016

By Nathan Goetting

The foundation of democracy is universal education—the two exist in tan­dem. True democracy means self-government. It also means the abolition of artificial hierarchies and the distinction between the rulers and the ruled. The extension of education to disenfranchised people—giving them the ability to read, write, and self-advocate—is the first step toward the social and political equality democracy requires. This is why, after the 1831 slave uprising led by Nat Turner, whose reading of the Bible led to his unique brand of liberation theology, slaveholding states passed legislation outlawing the teaching of reading to slaves. Open minds can’t abide bodies in chains.

In the wake of the inauguration of a President whose nominee for Secretary of Education is committed to defunding public schools,1 Malhar Shah’s “The Fundamental Right to Literacy: Relitigating the Fundamental Right to Educa­tion After Rodriguez and Plyler” could hardly be more timely. In it Shah argues for a fundamental constitutional right to literacy. The right is fundamental, he argues, both in the sense that it is a right of the highest order according to the standards set by the Supreme Court and that reading and writing are “preservative of all other rights”—that is, one cannot assert one’s rights within our legal and political system without first reading and understanding them.

As Amber Penn-Roco points out in “Standing Rock and the Erosion of Tribal Rights,” the Dakota Access Pipeline was a direct attack on the sovereignty of the tribe living on the Standing Rock Sioux Reservation. A leak in the pipe­line could poison the tribe’s water supply and threaten their very  existence. Penn-Roco, an attorney for a native-owned firm that focuses on native rights, explains that the federal government has an obligation to “consult” with tribes before it allows corporations to launch such projects and that, legally, consulta­tion requires more than just the delivery of bad news—it means a seat at the table where decisions are made. Activists from around the world, including many Guild members, converged on Standing Rock to protest the pipeline. Their courageous opposition in the face of malevolent opposition caused the federal government to halt construction—at least for now. But the fight is far from over. History has shown that as long there are valuable natural resources on tribal land there will be corporations determined to exploit them. Ancient treaties oblige the federal government to protect tribes from such depreda­tions. History has also shown that, without pressure, the government rarely feels compelled to honor these obligations.

In “The Future of Diversity,” published in NLGR in 2012 before the Supreme Court announced its decision in Fisher v. University of Texas, Erwin Chemer­insky explained what was at stake if, as expected, the Court ruled all forms of race-based affirmative action in higher education unconstitutional. Now, in “A Victory for Education,” Chemerinsky explains the consequences of the Court’s surprising decision to uphold the University of Texas’s affirmative action plan after rehearing the case in 2016. It was Associate Justice Anthony M. Kennedy’s unexpected change of heart in this case that preserved Texas’s modest form of affirmative action from constitutional erasure. As a result, colleges and universi­ties can continue to use race as a consideration in their efforts to foster learning by introducing diverse viewpoints on campus.

President Obama granted either a pardon or commutation of sentence to just under 2,000 federal convicts, many of them in the final weeks of his presidency. Most of the beneficiaries were non-violent drug offenders who had been overpunished as part of the federal government’s notorious “War on Drugs.” The economic devastation caused by the government’s anti-drug laws over the past few decades, especially in predominately non-white com­munities, has been incalculable. Two thousand acts of clemency is a token gesture when nearly half the federal prison population, 82,415 human beings, are incarcerated for drug offenses.2

Clemency is a bandage, not a cure. In “We Must Do Better: The Clemency Case of Charceil Kellam” attorney and NLGR editorial board member Richael Faithful gives the context surrounding the conviction of her recently released client, a struggling drug addict and mother of two who was serving life with­out the possibility of parole for a non-violent drug offense. Faithful explains the many flaws and prejudices in the criminal justice system that made her client’s conviction possible.

Never in the history of the Lawyers Guild has there been a U.S. president so openly and avowedly—and obnoxiously—hostile to our mission and values as Donald J. Trump.  In “Building on 80 Years of Radical Lawyering in the Age of Trump,” Guild President Natasha Lycia Ora Bannon describes her vision of how we will resist Trump’s agenda while staying true to our own.

—Nathan Goetting, editor-in-chief

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  1. Kate Zernike, Betsy DeVos, Trump’s Education Pick, Has Steered Money From Public Schools, N.Y. Times (Nov. 23, 2016), https://www.nytimes.com/2016/11/23/us/politics/betsy-devos-trumps-education-pick-has-steered-money-from-public-schools.html?_r=0.

2      Offenses, Federal Bureau of Prisons, https://www.bop.gov/about/statistics/statistics_in­mate_offenses.jsp (last updated Dec. 24, 2016).

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