June 2015 Vol. 8, No. 1
Illinois State Bar Association Diversity Matters
The newsletter of the Illinois State Bar Association’s Task Force on Diversity
Editor’s note Inside By Sandra Blake Editor’s note ...... 1 his past year has seen tremendous, uals, disability matters, human rights, inter- Standing Committee on Racial perhaps even unforeseen, strides in national law and immigration. While efforts & Ethnic Minorities and the Law...... 1 Tmany diversity-related matters. In oth- were made to include articles representative Standing Committee ers, there is still much work to be done. Key to of each of these groups, as well as a variety of on Women and the Law...... 2 all progress is open and respectful dialogue viewpoints, the content of this newsletter is Standing Committee on Disability Law. . . 2 and education. limited by the contributions received. Please Making airports nursing friendly: The ISBA’s definition of diversity is as all- contact the editor with story ideas and con- Senate Bill 0344—“Lactation encompassing as the committees and sec- tributions for future issues. Accommodation in Airports Act” ...... 3 tion councils that comprise the Diversity Readers may learn more about the ISBA’s The ACLU’s Illinois Judicial Leadership Council. These working groups diversity initiatives on the Web site at www. Bypass Coordination Project ...... 4 address issues and concerns related to wom- isba.org. ■ en, racial and ethnic minorities, LGBT individ- Tenth Annual 2015 Midwest LGBTQ Law Conference ...... 4 The inadvertent advocacy Standing Committee on Racial & Ethnic of a transgender litigant...... 5 Race and the Law Symposium...... 7 Minorities and the Law Remembering Selma: The unfinished journey ...... 7 By Cory White Meet the Diversity Fellows...... 8 Holt v. Hobbs: The compelling interest s the 2014-2015 bar year draws to • Workplace Discrimination: Current Issues standard and religious dress and a close, I think it is a good time to in Employment Law (Presented in associa- grooming exemptions...... 9 take stock of where we are and what tion with Taft Stettinius & Hollister LLP). A Defining personhood under the we have accomplished over the past sev- These programs proved to be useful re- Illinois Gender Violence Act: A eral months, while considering where we are sources for our legal community while also summary of the Illinois Gender heading. The Standing Committee on Racial Violence Act and whether its highlighting wider diversity issues. Our con- & Ethnic Minorities and the Law (REM) has ac- applicability extends to entities, tinuing legal education subcommittee mem- complished a lot, although there is still much corporations and municipalities...... 13 bers should be applauded for their efforts work to be done. Immigration reform and and success. diversifying your workforce...... 16 A) Renewed Focus on Useful and B) Gaining Ground Affirmative action, then and now. . . . . 17 Effective CLE Programs Over the course of the year, we were able Pioneers and prosecutor honored at We have organized and hosted several to add new members to the Standing Com- the Hispanic Lawyers Association of successful programs over the course of the mittee who proved to be amazing contribu- Illinois Gala 2015...... 19 year, including: tors to our efforts. Our new members Korina Whistling Dixie not the smartest • Human Trafficking and the Commercial Sanchez, Kiki Mosley, Ayesha Patel and Ger- trial strategy, nor racially Sexual Exploitation of Children (Present- aldine D’Sousza, have provided new insights sensitive, nor consistent with due process and equal protection...... 20 ed in association with Baker & McKenzie and fresh legs for the Committee, and we LLP); look forward to their contributions in the fu- Sonni Choi Williams: 2015 ISBA • Race & Sports: Racially Charged Sports Diversity Leadership Award recipient. . . 22 Controversies and Legal Concerns; and Continued on page 2 Upcoming CLE programs...... 24 Diversity Matters | June 2015, Vol. 8 No. 1
Standing Committee on Racial & Ethnic Minorities and the Law
Continued from page 1 ture. D) The Work that Remains and community. With this in mind, I would like to ask all members of the ISBA to con- C) Legislation The importance of diversity and inclu- sion issues are in a state of flux both within sider diversity issues as you progress through We have commented on important diver- and outside of the ISBA. Complacency usu- your daily practices. Consider how you can sity related legislation, including initiatives to ally precedes defeat. We cannot be compla- help make our profession more diverse. Con- better help our police officers communicate cent. In the coming bar year, the Committee sider how you can help make the ISBA more with and understand the communities they and its members will work with the ISBA to diverse. Consider why diversity is important. serve. Considering the current climate, we improve diversity and diversity related pro- Ultimately remember that diversity is about feel that this is extremely important work. grams within the ISBA, which will ultimately inclusion, whether it be within the legal pro- ■ help to create a more diverse legal profession fession or otherwise.
Standing Committee on Women and the Law By Letitia Spunar-Sheats
ur committee reaches out in many We do a number of CLE programs in person are today. This was a Women’s History Month directions: education, service, pro- and on video every year. The committee event. Omotion and recognition of women members are very talented and smart and Many of our members have received and women’s groups, legislation and net- produce popular programs with good rat- awards for their leadership and participation working. ings. in the ISBA and their community. They have Our subcommittee on legislation reviews We have reached out to such places as also done service activities for the Women all legislation that pertains to women and Dwight Correctional and did an on-site tour. Everywhere Program. women’s issues. The committee as a whole It was a good learning exercise for both our While doing all of these activities, the then discusses it and gives input to the sub- committee and the female inmates. We have committee has come closer together and committee chair to relay back to the Legisla- also gone to Northern Illinois School of Law enjoys networking for friendship and busi- tion Committee of the ISBA. for a marvelous panel program of judges and ness. ■ We are all bully on education of all kinds. their experiences in getting to where they
MAKE THE MOST OF Standing Committee on Disability Law YOUR ISBA MEMBERSHIP.
By Phil Milsk BROUGHT TO YOU BY ISBA MUTUAL INSURANCE COMPANY FREE CLE CHANNEL he Disability Law Committee has submitted and been approved for FASTCLEFASTCLE Meet your MCLE requirement for FREE over a 2 year period. two CLE studio programs, one on guardianships and the other on EARN 15 HOURS MCLE PER BAR YEAR www.ISBA.org/FREECLE Tservice animals. Scheduling of these programs is in progress. In addi- tion, in cooperation with St. Louis University Law School and Land of Lin- coln Legal Assistance Foundation, we held a program in March at SLU for BROUGHT TO YOU BY ISBA MUTUAL INSURANCE COMPANY law students who might be interested in a career in disability law. Previous FREE programs for law students have been held at SIU-Carbondale Law School ONLINE LEGAL RESEARCH >> Comprehensive 50-State & Federal Caselaw Datebase and John Marshall. Planning for future law student programs is ongoing. FASTCASE NOW WITH MOBILE ACCESS Our thanks to Brandy Johnson, Latasha Barnes and Scott Gertz for the SLU www.ISBA.org/FASTCASE TIED TO YOUR ISBA ACCOUNT. event. The Disability Law Committee has established a subcommittee on ISBA DAILY CASE DIGESTS & LEGAL NEWS accessibility and we are currently working with ISBA to schedule training of Read it with your morning coffee ISBA staff to ensure that materials and information are sent in a format ac- Covering the Illinois Supreme, E-CLIPS{Appellate & Seventh Circuit Court.} cessible to persons with disabilities. We continue to discuss the issue of the START YOUR WORKDAY IN THE KNOW. accessibility of facilities used by ISBA for conferences and meetings. Finally, www.ISBA.org/ECLIPS we continue to review key pieces of legislation pending in the General As- sembly and budget issues pertaining to persons with disabilities. www.ISBA.org ILLINOIS STATE BAR ASSOCIATION I believe Dr. Milano will be taking over as our chairperson in June. ■
2 June 2015, Vol. 8, No. 1 | Diversity Matters
Making airports nursing friendly: Senate Bill 0344 —“Lactation Accommodation in Airports Act” Diversity By Emily N. Masalski Matters
ne of the greatest struggles for asked her to introduce the Lactation Accom- breastfeeding mothers is to find ac- modation in Airports Act which is similar to commodations to express milk and recent legislation passed in California. On Office O Illinois Bar Center feed our children in public places. Illinois Sen- April 6, 2015, Senator Lightford introduced 424 S. Second Street ate Bill SB0344 “Lactation Accommodation in Senate Bill 0344 and it was voted on and Springfield, IL 62701 Airports” is making its way through the Illinois passed by the Illinois Senate on April 22, Phones: 217-525-1760 OR 800-252-8908 General Assembly and will positively impact 2015. On May 13, 2015, the Illinois House Hu- www.isba.org the lives of nursing mothers and their babies. man Services Committee unanimously voted Editor If passed by the Illinois House and signed by “do pass,” and the bill will be favorably report- Sandra M. Blake the Governor, the Act will require Illinois air- ed to the Illinois House of Representatives for ports that conduct commercial operations of a full House vote. As of May 19, 2015, the bill Managing Editor/ more than 1,000,000 enplanements a year to passed both Houses unanimously! Production update airport facilities on or before January Senate sponsors include Sen. Kimberly A. Katie Underwood [email protected] 1, 2017, to provide a clean and private place Lightford, Sen. Jacqueline Y. Collins , and Sen. for nursing mothers to express breast milk. Toi W. Hutchinson. Chief House sponsors are Diversity Leadership The Act also provides that an airport that Reps. Camille Y. Lilly, Emanuel Chris Welch, Council conducts commercial operations with fewer Elgie R. Sims, Jr., Jehan A. Gordon-Booth, John W. Moore, Chair than 1,000,000 enplanements a year shall Robyn Gabel, Litesa E. Wallace, Carol Am- Cory White, Vice Chair comply with the provisions of the Act upon mons and Kelly M. Cassidy. Kelli M. Childress, Secretary Sandra M. Blake, Ex-Officio new terminal construction or the replace- Hopefully nursing mothers will not have ment, expansion or renovation of an existing to wait until 2017 before Illinois airports will Roza B. Gossage Mark D. Hassakis terminal. This Act will not change the current provide a room or other location at each Hellin Jang Illinois law which allows mothers to breast- airport terminal behind the airport security Peter M. LaSorsa feed their babies in public. screening area for members of the public Jameika W. Mangum As a nursing mother, I have personally to express breast milk in private that: (1) in- Emily N. Masalski experienced the challenges faced by airport Michael J. Maslanka cludes, at a minimum, a chair and an electri- Mary L. Milano travelers searching for a clean and private cal outlet; and (2) is located outside of the Philip C. Milsk place to pump breast milk. In February 2015, confines of a public restroom. Airports across Kiki M. Mosley I traveled from Chicago O’Hare Internation- the country offer amenities such as electron- Mary F. Petruchius al airport to Houston, Texas, to attend the Raymond W. Prather ic device charging stations and yoga rooms Letitia Spunar-Sheats American Bar Association Mid-Year Meeting for travelers, we can do better for nursing Athena T. Taite and serve as an ISBA delegate to the ABA mothers and their babies. Inez Toledo, Diversity Fellow House of Delegates. I was excited about the For more information and updates: Melissa L. Burkholder, Staff Liaison opportunity, yet nervous because it was my Illinois General Assembly-
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The ACLU’s Illinois Judicial Bypass Coordination Project By Mary F. Petruchius
hen a young woman under the age notification; the minor is a victim of abuse; options, citing in particular a warning against of 18 in Illinois finds herself preg- she is married, divorced, or emancipated; or certain crisis pregnancy centers that falsely Wnant, she can turn to the ACLU for by order of the Court after a successful judi- purport themselves to be “all options” clinics. help. The ACLU’s Judicial Bypass Coordina- cial bypass hearing. It advises the minor to complete the 55-ques- tion Project provides minors with informa- A judicial bypass occurs when a judge tion “Lawyer Meeting Questionnaire” prior to tion about the state’s parental notice law for enters an order allowing the minor to ob- meeting with her attorney, and also discusses those seeking abortions and assistance in tain an abortion without notification to an abortion costs and payment options. obtaining what is called a “judicial bypass.” adult family member. The minor must meet The judicial bypass hearing process is The ACLU Web site describes in detail certain criteria in order to have an abortion, swift and a decision speedy. Once a petition what a pregnant female under the age of absent adult family member notification. is filed, a judge must render a decision within 18 needs to know about abortion in Illinois. The minor must prove to the judge that she 48 hours. Under certain circumstances, the It gives an overview of the Illinois Parental is either sufficiently mature and well enough judge may make the decision immediately Notice of Abortion Law, explaining that one informed to make an intelligent decision to following the hearing. Should a decision who is under 18 must notify an adult family abort or that notification would not be in take longer than 48 hours from the time of member before she can have an abortion. the minor’s best interest. The judicial bypass filing, the judicial bypass is considered auto- Notification simply means informing the hearing is confidential and the minor has matically granted. This program is so very important and adult family member and it may be made in the right to free legal counsel. Examples are provides valuable services and great sup- person, by telephone, or by certified mail. An given of what makes a minor mature and port to those young women in need. If you adult family member is a person over the age informed and of situations in which notice would like to be a volunteer attorney for of 21 who is the minor’s parent, grandparent, would not be in the minor’s best interest. the ACLU’s Illinois Judicial Bypass Coordina- step-parent who lives with the minor, or the The Illinois Parental Notice of Abortion tion Project, please call 877 .44 .BYPASS or minor’s legal guardian. Law states that the minor is to be appoint- 312 .560 6607. . ■ It clarifies that notification is not consent, ed a guardian ad litem for the procedure. If ______pointing out that the minor’s physician must the minor is satisfied with her attorney, she Mary F. Petruchius is a solo general practitioner notify the adult family member of the mi- may ask the Court to appoint her attorney as in Sycamore, IL. She is the immediate past Chair nor’s choice, not seek the adult’s permission. guardian ad litem. of the ISBA Standing Committee on Women and The adult family member does not have the In preparation for the judicial bypass hear- the Law, a member of the ISBA Diversity Leader- right to tell the minor that she cannot have ing, the website recommends that the minor ship Council and Child Law Section Council, and a the abortion. The exceptions to the notifica- become informed regarding possible alter- board member of the Illinois Bar Foundation. She may be reached at [email protected]. natives to abortion (parenting and adoption) tion requirement are: medical emergency; Her Web site is www.petruchiuslaw.com. the adult family member’s written waiver of and presents a thoughtful approach to those
Tenth Annual 2015 Midwest LGBTQ Law Conference
his past February 20-21, law students, faculty, practitioners and community members from the greater Midwest were invited to Now Every Article Is TWashington University School of Law in St. Louis, Missouri, to dis- the Start of a Discussion cuss contemporary legal issues affecting the LGBTQ community. The Midwest LGBTQ Law conference was free and open to the public. At- If you’re an ISBA section tendees received 5.0 MCLE hours. member, you can comment on Speakers included Professor Laurence R. Helfer of Duke University articles in the online version School of Law, who spoke on International Human Rights Law; Chase Strangio, staff attorney with the American Civil Liberties Union (ACLU) of this newsletter LGBT & AIDS Project; Marc Solomon, National Campaign Director, Free- dom to Marry; Carmen Berkley, Civil, Women, and Human Rights Direc- Visit tor, American Federation of Labor and Congress of Industrial Organiza- tions (AFL-CIO); and Ilona Turner, Legal Director, Transgender Law Center. For more information about past and future events, visit the Website, to access the archives. the conference Facebook page, or send an e-mail through the Contact Us section at [email protected]. ■ 4 Diversity Matters | June 2015, Vol. 8 No. 1
The inadvertent advocacy of a transgender litigant By Vera Sarilyn Verbel
sit alongside my fiancé, hand in hand, what I see? There was a surreal sensation about to hear myself for the very first that I had been conditioned to expect that Itime speak the words that, from my earli- didn’t occur this glorious time…” and “… est memories are ever present in my mind. the transition years, where, at long last, the I am fearful and nervous. I know that once world translucently perceives what I see and uttered, she will no longer want to have starts to respond as I approach it as female. anything to do with me, much less want to Ever-present is the indictment of a penis to marry me. The conversation continues, and convict and prove me a charlatan, but now it after several false starts I cringe with the dis- is gone! In this idyllically happy moment I see closure, “I think I’m a girl and I like to dress as what the world sees. Magnificent me, finally!” such, but I have it under control. Do you still At the pretrial conference the attorneys want to marry me?” discuss with the judge what name and what It is February 1974, and to my knowledge, pronouns to use for the trial. The case was neither the language nor the concept of filed in my then legal male name, but now I gender diversity exists. I think to myself that am “Vera.” My driver’s license and birth certifi- I am the only person like this. I am desperate cate confirm I am Vera and I am female. Why to hear her reply, “Yes, is that all you wanted is there any issue how I should be addressed to tell me?” My trepidation shifts to elation, in court? and a smile will not leave my face. I need this Vera Verbel The judge agrees with the opposing marriage to assure a life partnership with the counsel to use a male name and male pro- love-of-my-life, place me firmly in acceptable and accepted between us, but the necessity nouns so as to not confuse the record. Re- social construct and hopefully cure me of to promulgate in a sufficient gender transi- ally? What do other courts do with two op- this anomaly. tion is not tolerated well by my spouse and posing litigants of the same gender that On this Saturday night, the two of us, becomes the root conflict of the divorce, the have the same family name, stay in a state of both Army medics, are alone in the deserted basis for the strategy of the litigation and ul- confusion? Weak at best! My protest is futile. lounge of the Women’s Army Corps (WAC) timately the reason for advocacy in the Kane I thought lawyers and judges took an oath barracks of the US Army Hospital, Occupied County court system. to uphold the laws of Illinois. Under the law I Berlin, West Germany. This dark red-brick Soon after the divorce filing in January am Vera and female. Incredulously, opposing hospital, encircled by a quaint ivy-covered 2012, it is clear that our love is disintegrated counsel and the judge ignore the law, and in prison wall, was confiscated from the Nazi SS and our marriage is irretrievably broken. I doing so, demean me by insisting I am male upon the fall of Berlin near the end of World lose weeks in a weepy condition with depres- and address me as such. War II. sion very close to overtaking me. For nearly During the months leading up to our di- Perhaps not the most romantic location 40 years, I existed in a condition of self-denial vorce trial there were indications of misin- to woo for marriage, considering just three to express the love for my spouse, and now formation from the opposing counsel that decades ago this facility was central to horrif- that love is no more. I am a wreck until un- disappointedly confused my understanding ic suffering imposed by human medical ex- derstanding I now have the freedom to step of our marital relationship. I think to myself, periments. Or, perhaps our impending nup- outside of the facade I impose on myself and “Counsel just misunderstands, because we tials are not only affirmed, but tainted with a fully embrace my authentic self. (spouse and I) know with certainty we didn’t minuscule amount of suffering ultimately to I already present as a female in grooming, do that. That’s not an accurate depiction of be revealed. dress and form, but my genitalia are not cor- us.” After nearly four decades hence, I will rect and my legal name is still officially male. Hearing my spouse, under oath, testify torturously sit on the witness stand in our Within six months of the irretrievably broken to the same morphed history of our lives divorce trial after a lifetime together and af- declaration and months before the divorce together, is emotional, difficult to believe ter all of the usual occurrences of a marriage: trial, all of this is corrected. I am thankful for and gives cause to doubt my own perspec- receiving a higher education, raising our two my medical insurance covering nearly all of tive. I am confirmed and take solace from my children, purchasing property, being active the medical costs. lifelong habit of journaling. Listening with a in community and church, pursuing a career, I write in my journal on May 10, 2012, two stoic demeanor is not possible, as tears un- retiring from the Army Reserves and plan- days after my Gender Reassignment Sur- controllably flow down my face. The postur- ning for retirement from a civilian career. gery (GRS): “The unveiling of my corrected ing that is obviously a part of litigation has Retirement for us includes my transition anatomy, in an instant seemed to correct an emotional consequence. It is clear that of gender, a four-decade-long conversation all the multitudes of deflating disappoint- post-divorce relational considerations are that eventually brought us to this trial. In ments from viewing that area of my body missing from the conduct of these proceed- private my authentic self is usual, common in the past. How is it the world cannot see ings as verified by my ex’s Facebook status of
5 June 2015, Vol. 8, No. 1 | Diversity Matters
“widowed.” the judicial system. cifics regarding its decision, findings or infor- I still do not understand how we ended The Illinois Human Rights Act is supposed mation about its deliberations of any matter. up in a trial given the simplicity, though to protect me. The Act prohibits discrimina- Therefore, I do not know if the extraordinary somewhat significant, marital estate. I could tion against any individual because of sex or results in Kane County were recommended not communicate with my spouse after the sexual orientation, 775 ILCS 5/1-102 (A), (E), by the JIB or proactively enacted by Chief first meeting with her attorney. The opposing (F). Section 1-103 (O) of the Act defines “Sex” Judge Brawka. I suspect the later. counsel thwarted all attempts of settlement. to mean the status of being male or female. Shortly after the conclusion of both the Even a customary 50/50 split of all assets, to My status as to being female is incontrovert- ARDC and JIB investigations, Chief Judge which I contributed 98 percent, was not con- ible, as documented on my birth certificate, Brawka initiated an education and training sidered, they wanted considerably more. passport, professional licenses, driver’s li- program concerning the response of the jus- There are indications, as disproportion- cense and other forms of identification. The tice system to LGBT individuals. This progres- ate fees mount up (twice as much for the Act specifically addresses my situation, “gen- sive undertaking accomplished for all of the opposing counsel), that other factors are at der-related identity, whether or not tradition- justice partners in the Kane County justice play. Could it be that my being actively trans- ally associated with the person’s designated system, far more rigorously, what I hoped to gendered, presenting in my preferred female sex at birth.” accomplish with two of the users. gender, is influencing this litigation? Should The Illinois Constitution protects me in On August 6, 2014, the 16th Judicial Circuit it? Whether the opposing counsel is acting Article I, Section 18, which states: “The equal Court of Kane County entered into a new era on a strategy to ensure his best financial protection of the laws shall not be denied of compassion, understanding and advanced outcome or following the instruction of his or abridged on account of sex (my female therapeutic jurisprudence by implementing client, he masterfully distracts my testimony status) by the State or its units of local gov- a mandatory diversity training program that with a hint of delight. ernment (circuit court system) and school dispelled much of the abuse persons of diver- For three afternoons the trial holds me as districts.” We have good laws. It is those who sity are subjected to all too often. an emotional hostage, so despondent about have sworn to uphold those laws who, in this We are all people deserving of basic hu- the shocking treatment at the hand of the instance, failed. man dignity. Illinois has enacted progressive opposing counsel and allowed by the presid- After the drama of my divorce, I felt the laws that protect the human rights of all of ing judge. The first afternoon was difficult, need to do something to correct the mishan- us. With the help of enlightened judges such but the subsequent afternoons were worse. dling of my gender status with an Attorney as Chief Judge Brawka, there is hope that our The initial pain was numbing, knowing what Registration and Disciplinary Commission judicial system will not only be more just, but is to come on days two and three becomes (ARDC) complaint against the opposing at- also be an example to society at large. ■ progressively burdensome. torney. His magniloquent reply regretfully I can tolerate the insinuations that de- resulted in the ARDC taking no action. Hope- scribe me with opprobrium, I can handle the fully he learned something, and in the future, lack of courtroom courtesy that seems all will be just a bit more responsible. too common in divorce trials, I can maintain After the final orders were issued, I wrote composure with the specious statements of a letter to the presiding judge informing him Did you know? financial improprieties and I can even func- of my desire for resolution and sent a cour- tion through the fabrications of our history, tesy copy to Chief Judge Judith Brawka of but I am vulnerable. Kane County. I expressed my preference to After 50 years of denying my authentic informally meet with the presiding judge, self, I am finally and magnificently me. It is as believing an educational conversation would Every article if I held my breath for 50 years and finally I suffice, though alternatively a Judicial Inquiry published by the ISBA in am able to breath. When the opposing coun- Board (JIB) complaint would be submitted. I the last 15 years is available sel, despite my objections, continually and heard nothing from him, but was informed on the ISBA’s Web site! inappropriately addressed me with contra- he self-disclosed, and proceeded to file the gender pronouns, salutations and not by complaint with the JIB. An opportunity for my legal name, it felt like he was suffocating healing was lost for the both of us. me. He saw me struggling for my breath and I never intended that the ARDC or the JIB tightened his chokehold all the more. would punish the opposing counsel or the Want to order a copy The horror of this event cannot be over- presiding Judge. I simply wanted to educate of any article?* Just call or e-mail stated. It was devastating. Compounding the these two gentlemen, believing if somehow trauma was the lack of protection for my legal they could be made aware of their indiscre- Jean Fenski at 217-525-1760 rights from the person I least expected - the tion and made to understand how hurtful or [email protected] presiding judge. Instead he was in alliance their actions were, then acceptance by ex- with the opposition counsel’s bigoted dis- posure could occur and save another person crimination. I was a non-person at this point, from a similar fate. And I, as I define myself, *Sorry, if you’re a licensed Illinois nearly invisible to justice, being punished for lawyer you must be an ISBA member would have a voice, bind my wounds and to order. daring to not conform to a foundation-less promote healing from this experience. social construct. Not the best performance of The JIB is prohibited from disclosing spe-
6 Diversity Matters | June 2015, Vol. 8 No. 1
Race and the Law Symposium
oyola University Chicago’s Race and Professor Williams joined the School of Law’s digan, and also served as legal counsel and the Law Symposium is designed to full-faculty in 1989. He is the faculty advisor chief of staff to the Illinois Department of Cor- Lbring awareness to legal issues that af- to Loyola’s Black Law Students Association. rections. Stan Willis is an attorney specializing fect minority communities. The March 2015 The symposium featured a special ad- in criminal defense and federal rights cases. symposium’s title was “A Post Racial Police dress by Jasson Perez, National Co-Chair He has tried numerous federal and state jury State: Examining the Role of Racial Bias in of Black Youth Project 100. Perez lives and and bench trials, and has argued many cases Police Action” . In 2008, the Los Angeles Times works in the Chicago community. A firm be- before the Seventh Circuit Court of Appeals. published the article “Obama’s Post-Racial liever that liberation comes from the bottom In 2002, Willis was named one of the “30 Promise,” which examined how the election up, he is active in labor movements, commu- Tough Lawyers” by Chicago magazine. During of America’s first black president ushered in nity organizing, the cooperative agenda, and summer 2005, Willis led a group of lawyers a new and improved era of race relations in public education. He is also a member of We and community activists to internationalize our country. To the contrary, the killings of Charge Genocide, a grassroots, inter-genera- the Chicago police torture scandal, first pre- unarmed African American men by law en- tional effort to center the voices and experi- senting evidence before the Organization of forcement officials in the past year has casted ences of the young people most targeted by American States’ Inter-American Commission more than a shadow of doubt on the prem- police violence in Chicago. on Human Rights. In February 2008, he testi- ise that we have truly moved past racial bias The distinguished group of panelists fied before the United Nations Committee to in our society. Within the last year, the killings consisted of Jay Stanley, Cara Smith and Eliminate Racial Discrimination (CERD) in Ge- of Mike Brown, John Crawford III, Eric Garner, Standish Willis. Jay Stanley is senior policy neva, Switzerland, and subsequently drafted and most recently, 12-year-old Tamir Rice at analyst with the ACLU’s Speech, Privacy and “The Illinois Torture Inquiry and Relief Com- the hands of law enforcement officials, have Technology Project, where he researches, mission Bill,” which was signed into law Au- made our society question what role racial writes and speaks about technology-related gust 10, 2009. Willis is co-author of the 2014 bias may play in law enforcement actions. privacy and civil liberties issues and their fu- stakeholders report, “Torture in the Home- Our esteemed keynote speaker and panelists ture. He is the editor of the ACLU’s “Free Fu- land” for the Committee Against Torture. will explore this issue while offering solutions ture” blog and has authored and co-authored The program was moderated by Profes- based on their professional and personal ex- a variety of influential ACLU reports on pri- sor of Law Alexander Tsesis, who speaks and periences. vacy and technology topics. Cara Smith (JD writes extensively on legal issues related Attendees of the program received 1.5 ’92), is a Loyola law graduate and the execu- to constitutional law, civil rights, and hate hours of general MCLE credit, and at the time tive director of the Cook County Department speech legislation. He has written six books of registration, professional responsibility of Corrections, one of the largest single-site and numerous law reviews article on these credit was pending approval. jails in the country. She is also responsible topics. Professor Tsesis has been an expert Professor of Law Neil Williams welcomed for developing and executing strategies that witness for the Canadian Department of attendees and made closing remarks. Profes- impact the jail’s population with an empha- Justice and a legislative advisor to Senator sor Williams served as law clerk to the Hon. sis on its vulnerable populations, such as Edward Kennedy. He joined the Loyola Uni- George N. Leighton of the U.S. District Court those suffering from mental illness and those versity Chicago’s full-time law faculty in July ■ for the Northern District of Illinois. After his charged with crimes of survival. Prior to join- 2007. clerkship he joined the Chicago law firm of ing the Cook County Sheriff’s Office in 2012, ______Sidley & Austin, where he handled general Smith served as an assistant attorney general, This article is reprinted by permission of Loyola University of Chicago School of Law. corporate finance and securities law matters. deputy chief of staff and public access coun- selor for Illinois Attorney General Lisa Ma-
Remembering Selma: The unfinished journey
n March 25, 1965, 28 Mundelein Col- University Chicago’s Baum lecture featured ship in breaking the links between race, pov- lege students, along with faculty and one of the students who participated in the erty and educational outcomes throughout Oother supporters, engaged in one Selma Freedom March, Adrienne Y. Bailey, her career. of the most compelling issues of our times - PhD., a senior consultant with Panasonic The event was complimentary and ensuring voting rights for African American Foundation. open to the public . It is available for view- citizens who had been systematically disen- Nationally and internationally recognized ing on YouTube at the following link: franchised from full participation in our de- for her passionate advocacy of education eq-
7 June 2015, Vol. 8, No. 1 | Diversity Matters
Meet the Diversity Fellows
he purpose of the Diversity Leader- ship Fellows Program is to increase Tdiversity and meaningful inclusion in the active membership of the ISBA and its section councils and committees; to give further emphasis to ongoing efforts to raise awareness of the importance of diversity and inclusion to the ISBA; and to ultimately develop a diverse group of future leaders of the ISBA. These goals will be achieved by in- troducing new members (especially young lawyers and under-represented groups) to the work, structure, and policies of the ISBA. This program is intended to complement the newly instituted program of appointive “underrepresented” seats on the Board of Governors. The three Diversity Fellows made their first official appearance at the ISBA Mid-Year meeting in December 2014, and have been From left: Diversity Fellow Hellin Jang, ISBA President Rick Felice, Diversity Fellows Program working with their Diversity Leadership Chair Sandy Blake, Diversity Fellow KiKi Mosley. Council mentors to increase their involve- ment in the ISBA. Interest Law. While at Chicago-Kent, she was ident of the Asian American Law Students As they beginning their second year, each a member of the Black Law Students Asso- Association and a Central Region finalist on of the Fellows will be appointed to a section ciation (BLSA) and the Immigration Law Stu- the Thomas Tang Moot Court Team. She also council or committee, approved by the ISBA dents Association (ILSA) She also worked in garnered a variety of practical experience. President-elect. The Fellows will have full the Immigration Law Clinic while a second- She served as a project assistant in the Real voting rights during meetings and will be year student and clerked for an immigration Estate and Corporate Departments at Jenner expected to fully participate in the work of law firm. Before starting her own immigra- & Block in Chicago, a legal assistant in the the section council or committee. The Fel- tion law practice, Mosley worked as an as- Asia and Pacific Practice Group at Baker and lows Program Chair will also assign each Fel- sociate attorney practicing immigration and McKenzie in Chicago, a judicial intern at the low a second year mentor from among the nationality law. She is licensed to practice U.S. Bankruptcy Court for the Northern Dis- membership of the Fellow’s selected section law in Illinois and Louisiana. trict of Illinois, a 711 law clerk with the Cook council or committee. An active member of the American Immi- County State’s Attorney’s Office, and a law Please welcome to active involvement in gration Lawyers Association (AILA), Mosley clerk at Kim & Chang in Seoul, Korea. Since your section council or committee KiKi Mos- served on the Fall Conference Committee in June 2010, Jang has been an Assistant At- ley, Hellin Jang and Inez Toledo, who were 2011. She is also a member of the Louisiana torney General for the State of Illinois in the selected from the Fellows nominees. State Bar Association and the Chicago Bar General Law Bureau. There she defends the KiKi Mosley graduated from Denison Association. She has experience working on State, its officers, agencies, employees and University in 2000 with a Bachelor’s degree a variety of immigration matters including judges in all aspects of civil trial litigation. in Sociology/Anthropology and Black Stud- asylum, removal, family- and employment- Jang serves as a volunteer Korean/Eng- ies. After she completed her undergradu- based immigration, and naturalization. She lish translator and is a Busan Committee ate studies, she worked for Orbitz.com on devotes approximately 10 percent of her member, City of Chicago Sister Cities Inter- the Business Development team and then practice to pro bono and volunteer work. national. She is a past president and cur- moved to Tanzania, East Africa, where she She has accepted appointment to the Stand- rent board member of the Korean American taught at several schools over the course of ing Committee on Racial & Ethnic Minorities Bar Association of Chicago, a member of three and a half years. Her interest in working and the Law. the National Asian Pacific American Bar As- in immigration law came from her own ex- Hellin Jang graduated from Cornell Uni- sociation, and a Central Region director of periences in traversing the immigration sys- versity in 2001, with a B.A. in Government, the Thomas Tang International Moot Court tem with members of her own family. Mos- concentration in Law and Society. She then Competition. ley graduated from IIT Chicago-Kent College attended Loyola University Chicago School Inez Toledo is a staff attorney for the Il- of Law in 2010 with certificates in both Inter- of Law, where she distinguished herself as linois Guardianship and Advocacy Com- national and Comparative Law and Public staff editor of International Law Review, pres- mission, where she represents people with
8 Diversity Matters | June 2015, Vol. 8 No. 1 mental illness who are the subject of civil ill to spend their days and be part of a com- wrote, “Inez is a role model not only to His- commitment and involuntary treatment pe- munity. panic attorneys, but to women as well. In titions. She is also a board member of several Admitted to practice in 1987, Toledo fact, she is a role model to all of humanity. charitable foundations that support people previously worked as an assistant state’s She is kind and generous, passionate about with mental illness and physical and mental attorney in Cook County. She is actively in- her work and about people. She would be a disabilities. She is a tireless advocate, hold- volved in the Kane County Bar Association tremendous asset to the ISBA, and her con- ing fundraisers and giving her time to peo- as a member of the organization’s Diversity tributions to our common interests would ple in any kind of need. She recently spear- Committee and a leader of the Elder Care, be unquantifiable. She will rejuvenate those headed a project called “The Living Room” Disability & Mental Health Law Committee. of us who currently participate, and will in- which is now underway in Aurora. It will be a In nominating her for a diversity fellowship, spire new members from all walks of life to safe place for the homeless and/or mentally Kane County Public Defender Kelli Childress join and make a difference.” ■
Holt v. Hobbs: The compelling interest standard and religious dress and grooming exemptions By Priti Nemani
he recent Supreme Court decision of (RFRA). Congress enacted the RFRA under ligious beliefs and his physical and mental Holt v. Hobbs sheds some light upon a Section 5 of the Fourteenth Amendment well-being and such a choice constitutes a long line of decisions struggling with as a reiteration of the First Amendment substantial burden on Holt’s religious exer- T 13 the questions of when, where and whether right to free exercise of religion, to “pro- cise. The burden then shifted to the DOC the government may constitutionally in- vide a claim or defense to persons whose to show that the grooming policy reflected terfere with an individual’s right to freely religious exercise is substantially burdened “the least restrictive means of furthering a exercise his or her personal religious beliefs, by government.”6 The standard set forth in broadly formulated interest,” which the DOC especially when such exercise involves ad- the RLUIPA was originally codified in the submitted to be, chiefly, prison safety and 14 hering to specific grooming guidelines or RFRA “to provide greater protection for security. The Court recalled the recent de- adorning articles of faith, and what stan- religious exercise than is available under cision of Burwell v. Hobby Lobby, where the dard applies when making such a determi- the First Amendment.”7 In 1997, the Court Court interpreted the RFRA standard as one 1 nation. struck down portions of the RFRA in City of mandating a “‘more focused inquiry and Gregory Holt, a devout Muslim inmate at Boerne v. Flores on the grounds that Con- requires the government to demonstrate an Arkansas prison, was wrongfully denied gress lacked the authority under Section that the compelling interest test is satis- the right to wear a one-half-inch beard in 5 of the Fourteenth Amendment to apply fied through application of the challenged 2 observance of his religious beliefs. Prison such a standard generally to the states.8 The law to the person—the particular claimant officials denied Holt an exemption from the RFRA now applies only to review of federal whose sincere exercise of religion is being 15 Arkansas Department of Correction’s (the statutes.9 In contrast, the RLUIPA focuses substantially burdened.” The DOC argued DOC) grooming policy prohibiting prison- on areas of valid congressional authority: the grooming policy had been designed to 3 ers from growing beards. Holt challenged land-use regulation and religious exercise serve the compelling interests of safety and the denial of his request to wear a short half- by institutionalized persons.10 The RLUIPA security by preventing inmates from grow- inch beard in federal court as a violation of provides prison inmates, like Gregory Holt, ing beards with the potential to hide con- his rights under the Religious Land Use and with an avenue “to seek religious accommo- traband or create an easy disguise follow- Institutionalized Persons Act of 2000, 42 U. dations pursuant to the same standard set ing escape from the facility and exempted 4 S. C. §2000cc, et. seq. (RLUIPA). forth in RFRA.”11 inmates from its requirements only on the 16 Section 3 of the RLUIPA “provides that In a unanimous decision reversing the basis of a dermatological condition. The ‘[n]o government shall impose a substantial decision of the DOC, the Supreme Court, Court found first that the DOC’s interest burden on the religious exercise’ of an insti- finding that the parties did not dispute the in reducing the possibility of contraband tutionalized person absent a demonstration sincerity of Holt’s religious beliefs, looked to could not “sustain its refusal to allow peti- by the government that the burden in ques- whether the grooming policy substantially tioner to grow a ½- inch beard,” noting that tion ‘is the least restrictive means of further- burdened those beliefs.12 The Supreme “without a degree of deference that is tan- 5 ing [a] compelling governmental interest.” Court reasoned that, if Holt were to disobey tamount to unquestioning acceptance, it is A discussion of the RLUIPA requires a brief the grooming policy, he would likely face hard to swallow the argument that denying review of its statutory predecessor, the Re- severe disciplinary consequences, which petitioner a ½-inch beard actually furthers ligious Freedom Restoration Act of 1993 would force him to choose between his re- the Department’s interest in rooting out 9 June 2015, Vol. 8, No. 1 | Diversity Matters contraband.”17 Amish parents from the Wisconsin law, the covering that complied with Jewish law.32 The Court rejected the DOC’s argument Court defended a longstanding “tradition In writing for the majority, Judge Richard that permitting religious exemptions to of parental concern for the nurture and up- Posner found that “free exercise of religion 25 the policy could create a possibility that bringing of their children.” does not mean costless exercise of religion, escaped inmates could create a quick dis- In Employment Division, Department of but the state may not make the exercise of guise by shaving their beards, noting that Human Resources of Oregon v. Smith, the religion unreasonably costly.”33 Despite this to protect against this potential risk, nu- Supreme Court confronted a challenge to a allowance, Judge Posner still reasoned that merous other prisons permitting facial hair decision by the Employment Division of Or- the association policy did not constitute an utilized specific documentation methods.18 egon to deny terminated employees unem- undue burden on the Jewish student’s right While declining to mandate that the prison ployment compensation after finding that to free exercise because the policy was de- create a rarely enacted religious exemption those employees used peyote during the signed in the interests of safety while play- to its grooming policy, the Court reviewed course of a sacred ceremony at the Native ing sports.34 myriad ways in which prisons may main- American Church in violation of the Oregon In La Rocca v. Lane, the New York Court of 26 tain security in harmony with the substan- controlled substance statute. The employ- Appeals upheld a trial court’s order prohib- tial religious freedoms afforded under the ees in question, however, argued that the iting a Roman Catholic priest and lawyer— RLUIPA.19 In reversing the Eighth Circuit statute violated the Free Exercise Clause by Father Vincent La Rocca— from wearing his 27 Court of Appeals affirmance of the District prohibiting religious use of peyote. The collar while serving as a Legal Aid Society Court’s agreement with the DOC’s decision, Smith Court declined to apply the compel- attorney in a criminal trial.35 The court held the Court reminded other courts that they ling interest test on the grounds that it was that regulating the priest-attorney’s attire “must hold prisons to their statutory bur- “not remotely comparable” to the facts of was “reasonably related to the preservation den, and they must not assume a plausible the Smith case and further stated that it of order and decorum in the courtroom, less restrictive alternative would be ineffec- would uphold generally those laws impos- the protection of parties and witnesses, tive.”20 ing burdens on the free exercise of religious and generally to the furtherance of the The four-part compelling interest test beliefs, so long as the law in question did administration of justice.”36 Despite the rul- was initially set forth in Sherbert v. Verner, not single out a religious belief for uniquely ing against him in La Rocca v. Lane, Father 28 374 U.S. 398 (1963) and Wisconsin v. Yoder, unfavorable treatment. The Court went La Rocca represented another defendant 406 U.S. 205 (1972). In Sherbert v. Verner, the on to remark that the objectives served by on behalf of the Legal Aid Society, while Court required the government to demon- the compelling interest test in other areas wearing his Roman Catholic collar during strate a compelling interest before denying of law, such as “equality of treatment, and trial.37 After a series of conflicting orders re- unemployment compensation to a fired an unrestricted flow of contending speech” garding Father La Rocca’s adornment of his employee due to a conflict between her are what the Court deemed to be “consti- clerical collar in the courtroom, the Second religion and her work schedule.21 The Sher- tutional norms,” but use of the compelling Circuit ruled against the priest-attorney, bert opinion admonished those who would interest standard in the Smith case would noting that “a lawyer, unlike a witness or provide a mere glance at issues concerning only produce “a private right to ignore gen- party, does not speak for himself but for his freedom of religious exercise, noting that “it erally applicable laws—is a constitutional client.”38 29 is basic that no showing merely of a rational anomaly.” Unlike her attorney, a party to an action relationship to some colorable state interest The compelling interest test is one that does retain the freedom to freely exercise would suffice; in this highly sensitive con- the lower courts have grappled with apply- religious beliefs by wearing religious garb stitutional area.”22 This holding triggered a ing for decades in the context of religious in the courtroom.39 In Close-It Enterprises, line of cases that would struggle with the exercise—particularly in the area of regulat- Inc. v. Weinberger, a trial judge ordered that question of whether and how to apply the ing religious garb and religious grooming the defendant, Mayor Weinberger, remove a compelling interest standard in Free Exer- customs in certain public venues, such as Jewish skullcap before the jury entered the cise cases. the classroom and the courtroom. In Menora courtroom, even though Weinberger had In Wisconsin v. Yoder, the Supreme Court v. Illinois High School Association, the Illinois been present for jury selection while wear- invalidated a mandatory school attendance High School Association, a private associa- ing the same skullcap.40 When forced to law as applied to Amish families who re- tion with a membership comprised mostly decide between being present for his own fused to send their children to school past of public high schools, enacted a generally trial and wearing his religious garb, Wein- the eighth grade.23 Notably, Yoder created applicable, facially neutral rule prohibiting berger excluded himself for the remainder the “hybrid-right” exception, stating that basketball players from wearing hats or of the trial proceedings.41 In reversing the 30 “when the interests of parenthood are com- other types of headgear while competing. trial court’s verdict against Weinberger and bined with a Free Exercise claim,” there must The rule was designed to promote player- ordering a new trial, the Appellate Court 31 be “more than merely a reasonable relation safety during games. On appeal, the Sev- harshly reviewed the lower court’s proceed- to some purpose within the competency enth Circuit upheld the general rule, but ings, noting that the trial was more akin of the State is required to sustain the va- remanded the case to the district court with to an “inquest,” and that “the defendant’s lidity of the State’s requirement under the instructions to allow the Jewish students right to the free exercise of religion, under First Amendment.”24 In deciding to exempt the opportunity to design a secured head the circumstances presented, was not out-
10 Diversity Matters | June 2015, Vol. 8 No. 1 weighed by the right of all parties to a fair speaks broadly of the essential role that the pírita Beneficente União de Vegetal, 546 U.S. 418, trial.”42 The Close-It Enterprises Court further Free Exercise Clause plays in the history and 436 (2006) (internal quotations removed). stated that the defendant “should not have the very fabric of the United States: 12. Id., at pp. 6-7. 13. Id., at pp. 6-7. The Court discusses the er- been placed in the situation of having to Among the reasons the United rors in the District Court’s interpretation of the choose between protecting his legal inter- States is so open, so tolerant, and RLUIPA and its findings that the grooming pol- ests or violating an essential element of his so free is that no person may be re- icy did not substantially burden Holt’s religious 43 exercise, stating that the District Court “misun- faith.” Close-It Enterprises illustrates how stricted or demeaned by government religious garb cases turn on the context derstood the analysis of the RLUIPA demands.” in exercising his or her religion. Yet 14. Id. at 8. of the request. In these cases, while both neither may that same exercise un- 15. Id. at 8-9, quoting Burwell v. Hobby Lobby parties hoped to wear religious garb in the duly restrict other persons, such as Stores, Inc., 573. U.S. _____, (slip. op. at 39) (2014) court room, the nature of the individual’s employees, in protecting their own (internal quotations removed). 16. Id. at pp. 9-12. role in the courtroom proved definitive. interests, interests the law deems Before Holt, the Court’s decision in Gold- 52 17. Id. at p. 10. compelling. 18. Id. at 13. man v. Weinberger arguably illustrates the In a political climate where the delicate 19. Id. at 15. nearest the Court has come, until now, to interests of religion and government con- 20. Id. at 15, quoting U.S. v. Playboy Entertain- addressing the question of when dress ment, 529 U.S. 824 (2000). tinue to collide both domestically and in- code policies which ban religious garb 21. Sherbert v. Verner, 374 U.S. 398, 402 ternationally, the Holt decision renews the violate the Constitution.44 There, Captain (1963). promise of the First Amendment by dem- 22. Id. at 406. S. Simcha Goldman, an Orthodox Jew, or- onstrating that all Americans, even prison 23. See id.; Wisconsin v. Yoder, 406 U.S. 205 dained rabbi, and Air Force captain, served inmates, are entitled to the right to freely ex- (1972). as a psychologist at March Air Force Base.45 24. Yoder, 406 U.S. 233; see Pls’ Brief at 15, ercise religious beliefs and by reminding our At all times, he wore a yarmulke in accor- Iacono, No. 5:10-cv00416-H. courts to review challenges to this essential dance with Jewish religious tradition.46 25. Yoder, 406 U.S. at 232. American freedom with a particularly care- 26. Emp’t Div., Dep’t of Human Res. of Or. v. Pursuant to comprehensive Air Force regu- ful eye. ■ Smith, 494 U.S. 872, 874 (1990). lations regarding the service uniform and ______27. Id. at 874-76. headgear, Goldman was ordered to cease 28. Id. at 893. This article was originally published in the 47 29. Id. at 888-89. wearing his yarmulke. Goldman argued Kane County Bar Association’s Bar Briefs April 30. Id. that the Air Force was required, pursu- 2015 Diversity issue. 31. Id. ant to the Free Exercise Clause of the First 32. Id. at 1035-36. Priti Nemani is an Associate Attorney, Ar- Amendment, to make an exception to the 33. Id. at 1033. gento Law Group, P.C., Elgin, Illinois. B.A. Uni- dress code unless such an exception cre- 34. Id. at 1034. versity of Michigan; J.D. Northern Illinois Univer- 35. La Rocca v. Lane, 37 N.Y.2d 575, 577-580, ated “a ‘clear danger’ of undermining disci- sity College of Law. Portions of this article were 48 376 N.Y.S.2d 93 (1975). pline and esprit de corps.” The D.C. Circuit published in the Asian American Law Journal 36. La Rocca, 37 N.Y.2d 582 Court of Appeals reversed the decision.49 In of the University of California-Berkley. See Priti 37. La Rocca v. Gold, 662 F.2d 144, 146 (2nd Nemani, “Piercing Politics: Religious Garb and a 5-4 decision, the Supreme Court affirmed, Cir. 1981). Secularism in Public Schools,” 20 Asian Am. L. J. finding that Air Force regulations did not 38. Id. at 149. 53 (2013). This article was originally published in 39. Close-It Enters. Inc. v. Weinberger, 64 violate the Free Exercise Clause because its entirety in the Kane County Bar Association’s A.D.2d 686, 687 (N.Y. App. Div. 1978). the regulations reasonably and evenhand- Bar Briefs April 2015 Diversity issue. The author 40. Id. at 686. Part of La Rocca’s claims in La edly regulated dress in the interest of the is an active member of the Kane County Bar As- Rocca v. Gold relied upon the Close-It Enterprises sociation and focuses her practice in the areas military’s perceived need for uniformity opinion, an argument that the Gold Court re- 50 of estate planning, probate and guardianship and discipline. jected because of the vast differences between administration and litigation, and commercial While the twin notions of religious free- one’s role as an attorney and one’s role as a de- transactions. dom and secularism, in theory, ideally func- fendant. La Rocca v. Gold, 662 F.2d at 150. 41. Id. tion together fluidly, the reality is that these 1. Holt v. Hobbs, 574 U.S. ___, p. 1, No. 13- 42. Close-It Enters. Inc., 64 A.D.2d 687. 6827 (2015). two principles do not always strike an ac- 43. Id. at 686. 2. Holt, 574 U.S. ___, at p. 3, quoting 42 U. S. cord. What, then, does it mean to provide 44. See Goldman v. Weinberger, 475 U.S. 503 C. §2000cc-1(a). American people with the freedom to exer- (1986). 3. Id. at pp. 1-2. 45. Id. at 504. cise religion? In Burwell v. Hobby Lobby, the 4. Id. at p. 2. 46. Id. Supreme Court held that under the RFRA 5. 42 U. S. C. §2000cc. 47. Id. at 505. 6. 42 U.S. Code § 2000bb-b(2) (2015). standard, free exercise includes a corpora- 48. Id. at 509. 7. Holt, at p. 2. 42 U.S. Code § 2000bb-(a) tion’s right to exclude contraceptive meth- 49. Id. at 504. (2015). ods from employee health care plans, as 50. Id. at 510. 8. Id. at pp. 1-2, discussing City of Boerne v. 51. Hobby Lobby, 573. U.S. _____, (slip. op. ) required by the Affordable Care Act, on the Flores, 521 U.S. 507 (1997). (2014). basis of religious principles prohibiting the 9. Id. at p. 3. 52. Hobby Lobby, 573. U.S. _____, (slip. op. at use of contraception.51 In concurring with 10. Id. 56) (Justice Kennedy, concurring). the Hobby Lobby decision, Justice Kennedy 11. Holt, at p. 3, quoting Gonzalez v. Centro Es-
11 June 2015, Vol. 8, No. 1 | Diversity Matters new!
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12 Diversity Matters | June 2015, Vol. 8 No. 1
Defining personhood under the Illinois Gender Violence Act: A summary of the Illinois Gender Violence Act and whether its applicability extends to entities, corporations and municipalities By Catherine D. Battista and Priti Nemani
he acclaimed film The Accused contains remedies and the statute of limitations is a used in a statute, it is construed as applying one of the most horrific depictions of lot longer under this Bill…it’s a remedy that to corporations and bodies politic as well un- gender violence ever portrayed on many women in this state…will be available less the context, language or legislative his- T 1 15 screen. The audience watches as a young to them if they are harmed by spouses, boy- tory indicates otherwise.” woman, Sarah Tobias, played by Jodie Foster, friends, or whomever.”10 Here, the legislative history is silent on entrapped in a back room of a small town Under the Act: whether the General Assembly intended bar, suffers a brutal gang rape by a group of Any person who has been sub- for the Act to apply to natural persons only. 2 men. Onlookers jeer on the rapists, while jected to gender-related violence… “[T]he available legislative history does not neither the bar staff nor onlookers come to may bring a civil action for damages, speak to the question [whether the Act ex- 3 Sarah’s aid. After much struggle, Sarah man- injunctive relief, or other appropri- tends to corporations]. The debates (to the ages to escape from her rapists and stumbles ate relief against a person or persons extent one can call them that, given the bill into the street outside the bar barely clothed perpetrating that gender-related passed unanimously in both chambers of 4 and alone. The film’s plot centers around violence. For purposes of this Section, the General Assembly) reveal only a general Sarah’s fight for justice pursuing criminal “perpetrating” means either person- intention to…provide ‘civil relief to people charges against not only her attackers but ally committing the gender-related that have been harmed as a result of their 16 also against the onlookers who utterly failed violence or personally encouraging particular gender.’” Rather, the Act uses the 5 to come to her aid during the rape. or assisting the act or acts of gender- term “person” without distinction or limita- In 2003, the Illinois General Assembly related violence.11 tion as to corporations. “The legislative his- passed House Bill 436, which permits vic- tory is silent, and thus does not remove the In drafting the Act, the General Assem- tims of gender violence, like Sarah Tobias, to presumption that the term ‘person’ applies to bly either neglected or elected against seek civil redress against both their attackers corporations.”17 As such, an argument can be defining the words “person” and “per- and those who perpetuated the violence. In made that based upon a plain reading of the sonally.” Further, there was no discus- passing House Bill 436, the General Assem- Act the word “person” includes corporations. sion in the legislative sessions regarding bly noted that “at the essence of the gender To date, no Illinois court has ruled that the intended meaning of “person” and violence Bill is that it would give not only liability under the Act is limited to natural “personally.” As a result, the Act is unclear criminal relief, which we have in the current persons. As a result, courts are tasked to con- as to whether the relief provided to victims [criminal] statute, but civil relief to people sider the statutory language of the Act and includes bringing suit against corporate en- that have been harmed as a result of their whether it may be inclusive of corporate tities such as the bar in The Accused. For prac- particular gender.”6 Upon its passage, House defendants. Plaintiffs can argue that, under titioners seeking to file claims on behalf of Bill 436 was titled the Illinois Gender Violence a plain reading of the Act and through statu- plaintiffs under the Act, the ambiguity of its Act (“the Act”).7 tory construction, its ramifications extend to definition of personhood creates a troubling The Act is modeled after the Violence corporations as well as to natural persons. problem that, in fact, may hinder the very Against Women Act of 1994 (“VAWA”), a Defendants, of course, can argue the oppo- purpose for which the Act was designed. federal law which allowed civil redress for site. Plaintiff’s attorneys filing a claim under claims involving gender violence.8 In 2000, Statutory Construction of the Act the Act should expect a dispositive motion the United States Supreme Court struck from the defense seeking to bar any relief The primary rule of statutory construc- down the VAWA provision permitting victims against corporate defendants arguing that tion is to ascertain and give effect to the true of gender violence to sue their offenders in the words “person” and “personally” as used intent of the legislature.12 The Illinois Statute federal court as an intrusion of states’ rights in the Act do not include corporate entities. on Statutes provides rules of statutory con- under the Commerce Clause.9 However, there are equally sound arguments struction that “shall be observed, unless such In response, the General Assembly cre- on the plaintiff’s side to justify extending lia- construction would be inconsistent with the ated the Act so the intent of VAWA would be bility under the Act to corporate defendants. manifest intent of the General Assembly or available to the victims of gender violence repugnant to the context of the statute.”13 in Illinois. In doing so, the General Assembly Dismissed on the Pleadings: One of those rules provides that “‘[p]erson’ or stated that “[VAWA] ultimately was over- Perspectives from State and Federal ‘persons’ as well as all words referring to or turned and it was the belief that this is some- Courts importing persons, may extend and be ap- thing we ought to do at the state level… Illinois Appellate Courts have not yet plied to bodies politic and corporate as well So not only do we have criminal remedies, examined whether the words “person” and as individuals.”14 When the word “person” is we would now under this Bill have civil… “personally” include corporations. On review,
13 June 2015, Vol. 8, No. 1 | Diversity Matters courts reviewing the Act have managed to in different parts of the statute. the word “person” has been extended to cor- circumvent an express ruling on the question In looking at the word “personally” as porations in civil matters, Fayfar relies upon of corporate liability by resting decisions on used in the Act, Flood stated that “the term a criminal case, namely People v. Christopher- procedural and pleading deficiencies. ‘personally,’ however, has no meaning when son, where the Illinois Supreme Court consid- In Watkins v. Steiner, the Fifth District Ap- applied to a corporation.” Specifically: ered whether the word “person” as used in a pellate Court ultimately dismissed claims It is true that the [Illinois] Statute criminal statute applied to minor persons as 29 filed against a municipality for violations on Statutes leaves open the possibil- well as adult persons. The context of Chris- 18 of the Act. However, the appellate court ity of applying a word like “personally” topherson is inapplicable to violations of the did not dismiss the claims under the theory to corporations, for it states that “all Act, which provides for civil redress. A crimi- that the Act failed to create a cause of ac- words referring to or importing per- nal statute can only apply to natural persons tion against municipalities. Rather, the claims sons” may apply to corporations….In in any circumstance. were dismissed because plaintiff failed to this case, however, the court cannot Fayfar’s discussion regarding the Illinois plead sufficient facts to establish that the conceive of how a corporation could Consumer Fraud Act’s specific definition of township personally committed or encour- “personally” perpetrate an act of gen- the word “person” to include corporate de- aged the sexual violence. In other words, the der-related violence. Corporations act fendants is certainly more persuasive than claims may have proceeded against the mu- only through their agents, so it is im- its rationale under Christopherson but even nicipality had plaintiff pled sufficient facts in possible for a corporation to “person- this part of its opinion fall short. There are her complaint. ally” do anything.25 other statutes in Illinois where a cause of ac- In Stanfield v. Dart, the court was asked tion against corporations has been allowed In Flood, plaintiff limited her pleading and to consider on summary judgment whether even where the word “person” has not been her response brief to the motion to dismiss, the Act extended to two individuals who al- defined by the General Assembly to include by only arguing that the corporate defen- legedly perpetuated acts of gender violence corporate entities.30 dant was directly liable for its actions under against the plaintiff.19 In reaching its deci- Fayfar also provides that the words “per- the Act. Plaintiff did not argue that the corpo- sion, Stanfield discussed Doe v. PSI Upsilon, an son” and “personally” cannot apply to cor- rate defendant was liable under the Act for Illinois appellate court decision which held porate defendants because only a natural the conduct of its agents, which can “person- that the plaintiff failed to adequately allege “person” can sue under the Act. The court’s ally” act, under a theory of respondeat supe- that the national chapter of the fraternity rationale that using “the term ‘person’ to de- rior. The court, recognizing this distinction, could be liable under the “encouraging or scribe both those who can sue and those stated: assisting” provision of the Act.20 In reaching who can be sued…further indicates that only its decision, Doe contrasted the allegations At no point prior to the single brief individuals can be sued under the statute.”31 against the national chapter with the allega- paragraph in the supplemental brief- This conclusion is seemingly inapposite to Il- tions against the local chapter.21 Doe implied, ing did [plaintiff] raise the argument linois law in that the word “person” can have in dicta, that the allegations that were insuf- that the [defendant] is liable under different meanings within the same statute. ficient to state a claim under the Act against respondeat superior principles for [in- In Doe v. Sobeck, plaintiff, a developmen- the national chapter, could be sufficient to dividual employee] actions. Moreover, tally disabled adult female, was raped by state a claim against the local chapter.22 Stan- the brief paragraph is too short to another disabled adult at defendant’s facil- field went onto say that: “If this implication is properly raise the argument. Accord- ity, a training center for disabled persons.32 correct, the scope of liability under the Act is ingly, that argument is waived, and the Plaintiff filed a complaint against defendant 26 broader than what is normally covered under court declines to address it. for violations of the Act. Defendant moved a theory of aider and abettor liability.”23 In Fayfar v. CF Mgmt., LLC, plaintiffs, per- to dismiss and argued that the Act does not sonal trainers, sued defendant, a health club, create a cause of action against corporate The Northern District’s Perspective for sexual harassment and violations of the entities. on Defining Personhood Under the Act.27 Defendant moved to dismiss and ar- Doe does a thorough job of applying Il- Act gued that the Act does not create a cause of linois rules of statutory construction to the While the Illinois Appellate Courts have action against corporations. While the court language of the Act. Doe also criticizes Fay- not yet opined whether the Act applies to in Fayfar ultimately sided with defendant, its far for reaching the conclusion that “person” corporations, the Northern District of Illinois decision making in doing so is readily distin- cannot apply to corporations as permitted has issued multiple written decisions on the guishable. by the Illinois Statute on Statutes.33 Doe goes meaning of the words “person” and “person- Fayfar fails to follow proper Illinois proce- on to agree with the rationale set forth in ally.” dure of statutory construction. Fayfar does Flood and determines that a corporation can- In Flood v. Wash. Square Restaurant, Inc., not mention at any point in its opinion that not “personally” do anything without acting plaintiff sued her former employer for viola- the Illinois Statute on Statutes governing through its agents. Like Flood, Doe refuses to tions of the Act.24 On a motion to dismiss, the the definition of the word “person” and any find “that a corporation cannot be held vicar- court considered whether the Act applied to words referring to or importing persons, such iously liable for its employees’ violations [of corporations. Flood held that the Act’s use of as “personally,” may be extended to corpo- the Act] committed within the scope of their the term “person” did not preclude liability rate defendants.28 Rather than relying on the employment.”34 for corporations. Flood also found that the Illinois Statute on Statutes or case law where While the preceding case law may fa- term “person” can have a different meaning 14 Diversity Matters | June 2015, Vol. 8 No. 1 vor a defense argument (depending on the entities that perpetuate that violence, either 10. State of Illinois 93rd General Assembly distinctions set forth above), Cruz v. Primary in the work place, or like in the case of Sarah House of Representatives Transcription Debate, th Staffing, Inc. and Smith v. Rosebud Farmstand, Tobias, by turning the other cheek when an 26 Legislative Day, March 6, 2003. 11. 740 ILCS 82/10 emphasis added. et al. support a plaintiff’s position that a claim act of sexual violence is being committed. 12. Augustus v. Estate of Somers, 278 Ill.App.3d may be filed against corporations for viola- Until the Illinois General Assembly or Appel- 90, 97, 662 N.E.2d 138 (1996). tions of the Act.35 late Courts undertake the task of fully inter- 13. See 5 ILCS 70.1. In Cruz, plaintiff filed a lawsuit against preting the breadth of personhood under 14. See 5 ILCS 70/1.05. her former employer for violations of the the Illinois Gender Violence Act, victims of 15. McCaleb v. Pizza Hut of Am., Inc., 28 F.Supp.2d 1043, 1049 (N.D. Ill. 1998). Act. In short, plaintiff was sexually harassed gender-related violence, like Sarah Tobias, re- 16. Flood v. Wash. Square Restaurant, Inc., Case by her supervisor, Ramon Acosta, at work. main enveloped in ambiguity as to the ques- No. 12 C 5729 at 3-4 (N.D.Ill. 2012). In her complaint, the Cruz plaintiff alleged tion of liability for the atrocities suffered. ■ 17. Id. that “through Acosta, who was working as ______18. Watkins v. Steiner, 2013 IL App (5th) 110421. 19. Stanfield v. Dart, Case No. 2010 C 6569 (N.D. [defendant’s] agent and in the scope and This article was originally published in the June Ill. 2012). 2015 issue of the Kane County Bar Association’s course of his employment, [defendant] sub- 20. Doe v. PSI Upsilon, 963 N.E.2d 327 (1st Dist. Bar Briefs. jected [plaintiff] to acts of gender-related 2011). 36 21. Id. at 331. violence.” The court provided: Catherine D. Battista, Esq. is an equity partner 22. Id. with Argento & Battista, LLC located in Elgin, Illinois While Cruz’s complaint could be 23. Stanfield, Case No. 2010 C 6569. where she concentrates her practice in personal more detailed, she has pleaded facts 24. Flood v. Wash. Square Restaurant, Inc., Case injury and employment discrimination claims. She that lead to an inference that [defen- No. 12 C 5729 (N.D.Ill. 2012). can be reached at [email protected]. dant] had received many complaints 25. Flood, 12 C 5729 at 5. 26. Id. at 6. of sexual harassment or assault by Priti Nemani, Esq. is an associate attorney with 27. Fayfar v. CF Mgmt., LLC, Case No. 12 C 3013 Argento & Battista, LLC located in Elgin, Illinois Acosta and that it took no action (N.D.Ill. 2012). where she concentrates her practice in estate against Acosta as a result of the com- 28. See 5 ILCS 70/1.05. planning, probate and commercial real estate. She plaints, choosing to punish [plaintiff] 29. People v. Christopherson, 231 Ill.2d 449, 899 can be reached at [email protected]. instead. These allegations are enough N.E.2d 257 (2008). 30. See the Liquor Control Act of 1934, 235 ILCS to state a claim against [defendant] for 1. The Accused (Paramount Pictures 1988). 5/6-21 et seq. 2. Id. encouraging or assisting Acosta’s acts 31. Fayfar, 2012 U.S. Dist LEXIS 157940 at 5. 37 3. Id. of gender-related violence. 32. Doe v. Sobeck, Case No. 12 cv 1222 (S.D.Ill. 4. Id. 2013). In Smith, plaintiff filed a lawsuit against his 5. Id. 33. See Doe, 2013 U.S. Dist. LEXIS, *17. former employer for violations of the Act aris- 6. State of Illinois 93rd General Assembly House 34. See Doe, 2013 U.S. Dist. LEXIS, *21. of Representatives Transcription Debate, 26th Leg- ing from sexual harassment he experienced 35. Cruz v. Primary Staffing, Inc., Case No. 10 C islative Day, March 6, 2003. during his employment. Defendant moved 5653 (N.D.Ill. 2011); Smith v. Rosebud Farmstand, et 7. Illinois Gender Violence Act, 740 ILCS 82/1 et al., Case No. 11-cv-9147 (N.D.Ill. 2012). to dismiss. The court ruled in favor of the seq. 36. Cruz, 2011 U.S. Dist. LEXIS 29237, *2. plaintiff finding that: 8. Title IV, sec. 40001-40703 of the Violent 37. Id. Crime Control and Law Enforcement Act of 1994, Plaintiff has pleaded facts that 38. Smith v. Rosebud Farmstand, et al., Case No. H.R. 3355. lead to an inference that [defendant] 11-cv-9147 at 12 – 13. 9. United States v. Morrison, 529 U.S. 598 (2000). (via its managers and supervisors) re- ceived plaintiff’s complaints of sexual harassment or assault by its managers and employees and that it took no ac- You’ve got tion against these managers and em- ployees as a result of the complaints, one shot. choosing to punish plaintiff instead.38 Both Cruz and Smith provide for the pos- Make it count. sibility that the Act allows corporate liability against those entities that fail to act in the Call Nancy to find out how face of gender-related violence. an ad in an ISBA Conclusion newsletter can make the difference in As the Illinois Gender Violence Act stands your business. today, it is truly a statute that looks good on its face – but really provides very little relief 800-252-8908 to the victims it seeks to protect. While it un- deniably creates a cause of action against 217-747-1437 individuals who commit gender violence crimes – it fails to clarify whether that cause of action may be extended against corporate 15 June 2015, Vol. 8, No. 1 | Diversity Matters
Immigration reform and diversifying your workforce By Edward N. Druck and Tejas Shah
hile employers often extoll the foreign national lacking work authorization. tion document (EAD) to satisfy an employer’s virtues of diversity, they also de- Increased audit activity by federal agents I-9 responsibilities and will not require visa Wscribe the difficulties of achieving in industries with a heavy concentration of sponsorship. Together, these programs are greater diversity in their workforce. Employ- blue-collar workers has only heightened the expected to impact hundreds of thousands ers cite reasons such as their inability to: find risks for employers. of individuals in the state of Illinois, alone. qualified diverse applicants; retain diverse Against this backdrop, recent executive So what does immigration reform have employees; identify where to look for can- actions enacted by the President and the De- to do with diversity? First, it should be noted didates of diverse backgrounds; or compete partment of Homeland Security (DHS) could that the expanded DACA and DAPA pro- with other companies (in terms of salary, alleviate some of these risks. On November grams are currently subject to an injunction benefits, etc.) for the qualified diverse candi- 20, 2014, President Obama ordered the DHS issued by a federal court in Texas. But the dates out there. Several recent immigration to expand an existing program called DACA administration has moved for an emergency reform initiatives, however, may help to de- (Deferred Action for Childhood Arrivals), and stay of this injunction in the Fifth Circuit Court crease such complaints. to enact a new program called DAPA (De- of Appeals. So although there is uncertainty America is a country of immigrants. This ferred Action for Parental Accountability). over the DACA and DAPA initiatives at the is particularly true of the state of Illinois, These programs are estimated to collectively time of writing this article, at a minimum, it which boasts one of the highest percent- provide work authorization to 4 million un- is still safe to assume that rules such as those ages of foreign-born residents of any state. documented individuals across the U.S. who impacting the work authorization of H-4s will Over 14% of Illinois’s population was born in meet certain specified criteria. The DHS is also make it easier for employers to achieve the a foreign country. This diverse foreign-born implementing new rules that would expand goal of a more diverse workforce. population calling Illinois its home includes work authorization to many other individu- Second, while many of the foreign nation- immigrants from almost every country on als, including the spouses of H-1B “specialty als expected to benefit from these reforms to the globe, with a heavy concentration of im- occupation visa” holders in selected circum- our immigration system are undocumented, migrants from places such as India, Pakistan, stances. Specifically, these employees will be many of them are highly educated. Indeed, China, Poland and Ukraine. Our state’s im- able to present an employment authoriza- Illinois is one of the few states to offer in-state migrant population includes not only many highly-skilled workers who have migrated to the United States based on their educational qualifications or professional experience, but many undocumented immigrants too. The undocumented population in Cook and the collar counties has traditionally presented ILLINOIS BAR FOUNDATION a challenge for employers seeking to hire them, particularly if these immigrants either possess a skill that an employer wants or a At the Heart of the ISBA willingness to work in a position that an em- ployer wants to fill. Reforms of the immigration laws enacted SUPPORT THE ILLINOIS BAR FOUNDATION in 1986 made it particularly risky for employ- Contributions from ISBA members are vital ers to hire undocumented aliens by creating the I-9 verification scheme. The Immigration to the success of the IBF’s programs. Reform and Control Act (“IRCA”), requires a Access to Justice Grants U.S. employer to verify within 3 days of hire that a worker has authorization to work in the Warren Lupel Lawyers Care Fund United States. This rule applies to all workers, regardless of race, religion, national origin Post- Graduate Fellowship Program or citizenship status. Penalties for failing to complete I-9s, or worse, willfully hiring a for- More than $400,000 has been given to support these eign national lacking work authorization, can be significant. They range from a monetary important programs, this year. Every dollar you fine of over $1,000 per I-9 violation (this in- contribute makes an impact in the lives of those in need. cludes fines for failing to properly complete an I-9, or a substantive violation) to criminal Please consider making a donation to the IBF to improve statewide access to justice. penalties for willfully hiring or employing a
16 Diversity Matters | June 2015, Vol. 8 No. 1 tuition to undocumented students (H.B. 60 due to the city’s diverse talent pool. Archer ployment agreements. During his nearly 25 year passed in 2003). The State extended these Daniels Midland, one of the world’s largest career, he has developed significant experience benefits in 2011 through the Illinois Dream agricultural processors, moved its headquar- in non-compete, trade secret and restrictive cove- nant disputes and frequently litigates and advises Act, which made certain Illinois state college ters last year from Decatur, IL, to Chicago for clients on these matters. He serves on several di- savings programs available to immigrant similar reasons. These moves are a growing versity committees and has written and presented youth, regardless of their immigration status recognition of the value of diversity in the on issues of diversity and inclusion for a number in the United States. These changes address workforce, and demonstrate that cities and of years. many of employers’ most commonly cited communities with a welcoming attitude to- Tejas Shah is immigration counsel at Franczek Radelet P.C., leading the firm’s immigration prac- and perceived barriers to a more diverse wards diversity and immigration stand to ex- tice and serving as a member of the Labor & Em- workforce. perience great economic benefit. ployment and Higher Education Practice Groups. Our country and state’s workforce is rapid- ______He is actively involved with and has been appoint- ly changing due not only to these programs This article was originally published in the ed to leadership positions in many immigration- but also as a result of long-term trends, such Kane County Bar Association’s Bar Briefs April 2015 focused associations and bar associations. He Diversity issue. served as the 2014 president of the Indian Ameri- as decade-long waves of legal immigration can Bar Association of Chicago. He is currently the to the U.S. and many first-generation Ameri- Edward N. Druck is a partner in the Labor & Em- co-chair of the South Asian Bar Association (SABA) cans becoming a part of the workforce. This ployment and Higher Education Practice Groups of North America’s immigration committee, and, diversification of the workforce has produced at Franczek Radelet P.C. He represents clients in starting in mid-2015, he will become chair of the benefits for business. As a result, more em- employment and labor law matters and is expe- Illinois State Bar Association’s International and Immigration Law Section Council. He also previ- ployers are now striving to achieve greater rienced in all aspects of litigation before federal and state courts and administrative agencies. He ously chaired the New Members Division for the diversity in their labor forces. Indeed, Mead also represents clients in hearings before arbitra- Chicago Chapter of the American Immigration Johnson Nutrition, a baby formula maker, tors. He counsels clients on a variety of employ- Lawyers Association, served on the Customs and recently decided to move to Chicago from ment issues including union elections and claims Border Patrol Liaison Committee, and the liaison north suburban Glenview at least, in part, of unfair labor practices and discrimination, I-9 committee to the local office of the USCIS. and wage and hour compliance matters, and em-
Affirmative action, then and now By Julianne Gerding
he end of affirmative action and/or disadvantaged applicants, or those from In his opinion, Justice Powell emphasized positive discrimination in universities. distinct minority groups.4 If the applicants that Davis only commenced its special ad- TIs this to be praised or abhorred? Over were found to fall into one of these catego- missions program after the school admin- 60 years ago, President Truman emphatically ries, they were not ranked against the other istration noticed the distinct absence of a declared that Congress should “correct the candidates, nor were they required to meet diverse class; the first 100-person class con- remaining imperfections in…democracy” by the same qualifications as the candidates of sisted of white and Asian students, but no “restor[ing] hope to those who have already the general admissions program.5 Bakke, an blacks, Mexican-Americans, or American In- lost their civil liberties.”1 Shortly thereafter, applicant of Davis’s program, did not qualify dians.10 The special admissions program was numerous executive orders ensued, prohibit- for special admissions; he was denied entry developed in order to increase the school’s ing discrimination in employment practices, to Davis two years in a row, despite the si- representation of disadvantaged applicants the armed services, the defense industry, and multaneous admission of candidates from and/or candidates of a minority group.11 In the government.2 It was not long before this the special admissions program with lower fact, the program fulfilled its purpose. After concept shifted into the academic arena and benchmark scores.6 Initially, Bakke sought the special admissions program began, 63 evolved into a determining factor in the uni- relief in state court, arguing that Davis’ spe- minority students were admitted to Davis versity admissions process. cial admissions program violated the Equal over a three-year period.12 However, Justice Protection Clause of the Fourteenth Amend- Powell presented a general warning regard- Regents of the University of ment.7 The California Supreme Court agreed ing the ethics of such a program.13 “[T]here California v. Bakke with Bakke and proclaimed that the program are serious problems of justice connected As with any new policy, legal complica- was unconstitutional, but the United States with the idea of preference itself….prefer- tions arose. The United States Supreme Court Supreme Court partly reversed this finding: ential programs may only reinforce common first analyzed the issue of affirmative action the highest court held that considering race stereotypes holding that certain groups are in an academic setting in Regents of the Uni- in admission decisions should not be prohib- unable to achieve success without special versity of California v. Bakke in 1978.3 In that ited.8 Nevertheless, Davis’ special admissions protection.”14 Not only that, but “there is a case, the University of California at Davis program was invalidated because the univer- measure of inequity in forcing innocent per- Medical School (hereinafter “Davis”) devel- sity could not establish that Bakke would not sons in [Bakke]’s position to bear the burdens oped a special admissions program that fo- have been admitted to the university if the of redressing grievances not of their mak- cused on educationally and/or economically special admissions program did not exist.9 ing.”15 Thus, while attaining a diverse student
17 June 2015, Vol. 8, No. 1 | Diversity Matters body is a constitutionally permissible goal for mative Action (hereinafter the “Coalition”) higher education, levels of poverty become institutions of higher education, steps taken strongly reacted against Michigan’s decree closely intertwined with the unemployment to enact such a goal must be performed with and filed suit against Michigan’s Attorney rate. As of January 2015, the unemployment extreme caution.16 However, following this General Schuette.27 Yet, instead of challeng- rate for individuals who had completed high case, ethnic diversity became a factor that ing the constitutionality of “race-conscious school or less was at 8.5%, while only 2.8% universities could consider in achieving gen- admissions policies in higher education,” the of those with a bachelor’s degree or higher uine diversity.17 Coalition claimed that voters, not the courts, were unemployed.39 The unemployment should have the ability to admit or prohibit rate was made up of 10.3% black, 6.7% His- Grutter v. Bollinger race-conscious admissions policies.28 The panic or Latino, 4.9% white, and 4.1% Asian Almost 30 years later, the United States United States Supreme Court agreed that American.40 Research suggests that the exis- Supreme Court revisited this issue. This time, “the courts may not disempower the vot- tence of positive discrimination plays a size- affirmative action appeared in a law school ers from choosing which [of these] path[s] able role in these rates. For example, Texas atmosphere. In that case, the University of to follow.”29 In his decision, Justice Kennedy outlawed affirmative action programs in Michigan Law School (hereinafter “Michi- elaborated that Michigan’s new law was 1995.41 Since the new law’s enactment, the gan”) developed an admissions policy that surely pre-determined by its voters before Latino enrollment at the University of Texas evaluated applicants based on their under- its enactment.30 Consequently, the Supreme Law School has been cut in half.42 Will these graduate grade point averages, Law School Court Justices did not believe they had the numbers continue to dwindle as more states Admission Test (hereinafter “LSAT”) scores, authority to set aside such constitutional proscribe positive discrimination? talents, experiences and essays.18 In addition amendments.31 The potential ramifications Perhaps affirmative action itself is not the to these qualifications, Michigan’s admissions of this holding are significant: Essentially, go- answer. Perhaps another policy is needed to department considered race as a “potential ing forward, states may altogether ban affir- ensure equal access to education and em- plus factor” in order to affirm the school’s mative action as long as their voters see fit to ployment amongst all groups. Regardless of commitment to diversity.19 As a result of this mandate as such. the policy, though, action needs to be taken; policy, Michigan admitted a “critical mass” of Some agree that positive discrimination be it affirmative or otherwise. underrepresented applicants from minority should be banned nationwide. California, ______20 groups. Grutter, a white applicant, was de- Washington and Nebraska have joined Mich- This article was originally published in the nied entry to Michigan, despite her satisfac- igan in banning affirmative action.32 Those Kane County Bar Association’s Bar Briefs April 2015 tory grade point average and LSAT score.21 that oppose positive discrimination argue Diversity issue. Like Bakke, Grutter claimed that Michigan’s that future generations should not have to Julianne Gerding is an Assistant State’s Attorney use of race in its admissions process was recompense for the inequities fostered in with the Kane County State’s Attorney’s Office. She 22 unconstitutional. The District Court held the past.33 Not only that, but affirmative ac- can be contacted at [email protected] in Grutter’s favor, but this decision was ulti- tion may only be effective when it targets mately reversed by the Sixth Circuit and the all socially disadvantaged groups, including 1. Harry S. Truman, Public Papers of the Presi- dents, Special Message to the Congress on Civil United States Supreme Court.23 In her opin- those founded in ethnicity, gender, poverty Rights, Feb. 2, 1948 (United States Government 34 ion, Justice O’Connor stressed that universi- and race, instead of race alone. Similar ar- Printing Office, 1966). ties cannot establish quotas to achieve their guments maintain that minority students 2. See generally Executive Order 9980 (1948); goal of maintaining diverse a student body; admitted into schools through affirmative Executive Order 9981 (1948); Executive Order they may merely consider race as one fac- action policies become otherwise incapable 10308 (1951); Executive Order 10925 (1961); Exec- utive Order 11114 (1963); Executive Order 11246 tor, amongst many, in a candidate’s applica- of attending classes, fail, become discour- (1965); Executive Order 11375 (1965); Executive 24 35 tion. Nevertheless, Justice O’Connor heart- aged and ultimately leave universities. For Order 11625 (1971). ily echoed Justice Powell’s words from Bakke: example, a 2012 Texas study indicates that 3. See generally Regents of the University of Cali- “[t]he ‘nation’s future depends upon leaders black law school students were four times fornia v. Bakke, 438 U.S. 265 (1978). trained through wide exposure to the ideas as likely to fail the bar exam as whites.36 Fur- 4. Id. at 265. 5. Id. and mores of students as diverse as this Na- thermore, the same survey estimated that 25 6. Id. at 266. A benchmark score consisted of tion.” approximately half of black college students an overall grade point average, a science courses were in the bottom 20% of their class.37 grade point average, a Medical College Admis- Schuette v. Coalition to Defend On the other hand, some believe that sions Test score, letters of recommendation, ex- Affirmative Action positive discrimination is necessary to bal- tracurricular activities, and other data about the Another 10 years passed, and affirma- applicant. Id.at 265. ance the scales rendered uneven by race and 7. Id. at 266. tive action was challenged once more. class-based obstacles. Between 2007 and 8. Id. at 266-67. In response to heavy opposition to posi- 2011, approximately 25% of blacks and 23% 9. Id. at 266. tive discrimination, the state of Michigan of Hispanics and Latinos lived below the pov- 10. Id. at 272. amended its constitution to include provi- erty line, compared to only 11% of whites.38 11. Id. sions proscribing prejudice and/or preferen- 12. Id. at 275. Pro-affirmative action individuals assume 13. See id. at 298. tial treatment to any individual or group by that members of minority groups cannot 14. Id. 26 any state school or government entity. In always access education and employment 15. Id. other words, affirmative action was banned to the same degree as others. Thus, without 16. Id. at 311-12, 314. statewide. The Coalition to Defend Affir- 17. Id. at 316.
18 Diversity Matters | June 2015, Vol. 8 No. 1
18. Grutter v. Bollinger, 539 U.S. 306, 306. (2003). Initiative 424 (2008). acsbr11-17.pdf>. 19. Id. at 307. 33. See Regents of the University of California v. 39. Department of Numbers, Unemployment 20. Id. at 306. Bakke, 438 U.S. 265, 298 (1978). Rate by Education Level, Unemployment Demo- 21. Id. 34. Nearer to Overcoming, The Economist graphics, Whistling Dixie not the smartest trial strategy, nor racially sensitive, nor consistent with due process and equal protection By Paul J. Glaser rosecutors say the darnedest things kind of places is going to be a person differ- tebellum South, “Dixie.” In her final argument in closing arguments, and sometimes ent than reasonable persons . . . [and] is a kind to the jury, she argued: those things amount to reversible er- of person who would carry a pistol into those Ladies and gentlemen, when I was P1 ror. Telling the jury in a murder case: “I didn’t places, and if there was trouble the first thing a kid we used to like to sing songs a lot. go to law school for four years at night to he’d go for would be his pistol,” our Supreme I always think of this one song. Some put innocent men in the penitentiary . . . [t] Court found the comments improper, albeit people know it. It’s the “Dixie” song. 2 his man is guilty,” was held improper. In an- not reversible error. “[A]ppeals to racial preju- Right? Oh, I wish I was in the land of other case, it was wrong for the prosecutor to dice, whether open or oblique, discredit our cotton. Good times not forgotten. characterize a defendant as an ‘‘animal,” “even justice and are to be condemned,” the Court Look away. Look away. Look away. And 6 where that characterization is based upon held. More recently, the Fifth District Appel- isn’t that really what you’ve kind of 3 the evidence.” late Court noted repeated condemnation been asked to do? Look away from the On the other hand, it was acceptable for of prosecutors’ attempts to introduce race two eyewitnesses. Look away from the a prosecutor to call the defendant’s conduct into closing arguments. Plain error was held two victims. Look away from the nurse during the offense “pure evil.” Although a where a consistent theme of the prosecu- and her medical opinion. Look away. prosecutor may not characterize the defen- tor’s argument in both opening and closing Look away. Look away.8 dant as an “evil” person or cast the jury’s deci- statements to the jury was the “culture of the Her comments were challenged in the sion as a choice between “good and evil,” the black community,” where people were raised defendant’s appeal as a denial of due process prosecutor’s statements in that case referred to believe that the police and prosecutors are and equal protection.9 to specific actions by the defendant during the “enemy” and the biggest sin one could As a parenthetical, it must be noted that the offense and argued that the facts proved commit was to be a snitch. These arguments, passions invoked by the use of the song the defendant’s guilt.4 But a prosecutor in the Court found, arbitrarily injected race into “Dixie” have been discussed in a number of another case committed plain error by call- the jury’s deliberations and had no bearing published decisions in both criminal and ing the defendant a “liar” and by saying that on the credibility of the State’s witnesses. The civil cases.10 For example, a white supervi- he wished the jury had a “built-in-shockproof comments were seen as “naked prejudice” sor’s whistling of “Dixie” at the workplace was B.S. detector” when the defendant’s testi- with no basis in the evidence.7 one of the complaints alleged by an African- mony was not really inconsistent with that of Thus, one can only shake one’s head to American plaintiff in at least one civil rights other witnesses; thus, the argument had “no wonder what century a prosecutor thought lawsuit.11 As the Court in the Idaho appeal basis in the record.”5 she was living in when, in a prosecution of observed: Reviewing courts in Illinois have wisely a black man accused of lewdly assaulting paid close attention to prosecutors’ attempts two white teenagers, Canyon County (Idaho) [T]his Court does not require re- to inject racial issues in closing arguments. Deputy Prosecutor Erica Kallin decided to sort to articles or history books to rec- Where the prosecutor stated the (white) forgo the usual prosecutorial shibboleths ognize that ‘Dixie” was an anthem for defendants went “to the Negro bars [and] I of “red herring” and “smoke and mirrors” to the Confederacy, an ode to the Old think . . . that a person who frequents those paraphrase lyrics from that anthem of the an- South, which references with praise a 19 June 2015, Vol. 8, No. 1 | Diversity Matters time and place of the most pernicious case (where no physical evidence corrobo- 1. A prosecutor’s improper closing argument racism. The prosecutor’s mention of rated the sensitive sexual allegations), “both can be found to be reversible error when it con- the title, “Dixie,” as well as the specific the constitutional obligation to provide crim- stituted a material factor in the conviction or re- lyrics recited by the prosecutor, refer- inal defendants a fundamentally fair trial and sulted in substantial prejudice to the defendant. ring to “the land of cotton,” expressly the interest of maintaining public confidence People v. Lucas, 132 Ill.2d 399, 437 (1989). 2. People v. Caballero, 126 Ill.2d 248, 272 (1989) evoke that setting with all its racial in the integrity of judicial proceedings,” out- 12 3. People v. Johnson, 119 Ill.2d 119, 139 (1987) overtones. weighed a focus on the strength of the 4. People v. Nicholas, 218 Ill.App.3d 104, 121- While allowing that prosecutor Kallin’s State’s evidence. There was a reasonable pos- 122 (2005) reference might well have been made inno- sibility that the error affected the outcome of 5. People v. Strange, 125 Ill.App.3d 43, 46 (1st cently and not intended to appeal to racial the trial, so the conviction was reversed and Dist. 1984) 15 bias, the Court reasoned: “[T]he message the case was remanded for a new trial. 6. People v. Dukett, 56 Ill.2d 432, 443 (1974); received by the jurors or their individual re- So what are the lessons to be learned see also, People v. Turner, 52 Ill.App.3d 738 (4th sponses to it” were the real issues. “An invo- here? Well, first, this is 2015, not 1860. It’s way Dist. 1977) (plain error when prosecutor said that a black witness was “going to have a good time cation of race by a prosecutor, even if subtle past the time to get used to a more diverse world and respect the sensitivities of all peo- watching two black girls beat up whitey”); and and oblique, may be violative of due process People v. Johnson, 114 Ill.2d 170, 199 (1986) (prose- 13 ple. Second, there is such a thing as being too or equal protection,” the Court recognized. cutor’s reference to defendant as “that black man” clever. Sometimes what one might think to Since the defendant’s trial attorney did was “unnecessary and potentially offensive” but not object to Ms. Kallin’s comment, to prevail be clever is, in actuality, just plain rude. From not reversible error). on appeal, he had to convince the Appellate the perspective of trial strategy, closing argu- 7. People v. Marshall, 2013 IL App (5th) 110430 Court that Kallin’s error was plain and not ment is not the time to test the limits of good (it is noteworthy –and admirable– that the State harmless. But, ultimately, those obstacles did taste. ■ filed a confession of error in the appeal) not constrain the Court. “Like racial discrimi- ______8. State v. Kirk, 2014 WL 7201726 (Dec. 19, nation in the selection of jurors or grand ju- This article was originally published in the 2014), *2 rors, the injection of racial considerations in Kane County Bar Association’s Bar Briefs April 2015 9. 2014 WL 7201726, *2 Diversity issue. 10. A more complete telling of the history of closing arguments ‘casts doubt on the integ- Since 1977, Paul J. Glaser has been an attorney the song “Dixie” than the author will attempt here rity of the judicial process,’ and ‘impairs the with the Office of the State Appellate Defender in can be found in Tate v. Board of Education of the confidence of the public in the administra- Elgin, where he has served as principal attorney Jonesboro, Arkansas, Special School District, 453 14 in more than 965 cases, and appeared before all tion of justice,’” the Court found. F.2d 975, 980-981 (8th Cir. 1972). five Appellate Districts, the Illinois Supreme Court, There was nothing in the record to sug- the United States District Court, and the Seventh 11. Holt v. Roadway Package Sys., Inc., 506 F. gest the Idaho jurors were in fact racially prej- Circuit Court of Appeals. He is currently the Assis- Supp. 2d 194, 203 (W.D.N.Y. 2007) udiced, or that they were in fact influenced tant Deputy Defender of the Elgin Office. He is also 12. 2014 WL 7201726, *3 by the reference to “Dixie.” And the State’s a member of the Bar Briefs Editorial Board and a 13. 2014 WL 7201726, *3 case “was a strong one.” But the Court con- member of the KCBA Criminal Law and Diversity 14. 2014 WL 7201726, *5, quoting Rose v. Mitch- Committees. cluded that given the circumstances of the ell, 443 U.S. 545, 556 (1979) 15. 2014 WL 7201726, *6 Pioneers and prosecutor honored at the Hispanic Lawyers Association of Illinois Gala 2015 By Hon. Mark J. Lopez, Emily N. Masalski, and Spiridoula (Litza) Mavrothalasitis n May 14, 2015, the Hispanic Lawyers and Honorable Saul Anthony Perdomo. HLAI this Bill. Currently, Illinois law prohibits non- Association of Illinois (HLAI) held its also presented Cook County State’s Attorney citizens from being granted a professional O2015 Spring Gala at Prairie Produc- Mercedes Luque-Rosales with the Aguila license to practice law. If passed, this law tion in Chicago’s West Loop neighborhood. Award. would affect students who fall within the De- The long-awaited event was a tremendous Illinois Senate President John J. Cullerton ferred Action for Childhood Arrivals. success for the organization, providing the provided the Keynote Address and high- Honorable Mark J. Lopez shared the vi- perfect setting for new friends to be made lighted his proposed Senate Bill 23, which brant history of HLAI and introduced the and for old ones to reconnect, strengthen will amend the Attorney Act to provide that HLAI Pioneers. Each of the honorees had bonds, and reflect upon HLAI’s past accom- no person shall be prohibited from receiving a unique story about their pathway to the plishments and future challenges. The joyous a law license solely because he or she is not a practice of law and vision for the future. event honored trailblazers within the His- citizen of the United States. Senate President panic bar and judiciary, including pioneer at- Cullerton, and Senators Antonio Munoz and Pioneer Honoree: Leo J . Aubel torneys Leo J. Aubel, Honorable David Cerda, Iris Y. Martinez are the Chief Co-Sponsors of One of three Pioneer’s honored was Leo 20 June 2015, Vol. 8, No. 1 | Diversity Matters J. Aubel, a Chicago patent attorney for nearly from the University of Illinois in 1948. He then School of Law at Samford University in Bir- 60 years, who was one of the founding mem- attended one year of law school at Universi- mingham, Alabama, where he earned his law bers of the Mexican American Lawyer’s Asso- dad Nacional Autónoma de México in 1950. degree in 1962. He also attended one sum- ciation, one of the HLAI’s predecessor organi- Thereafter he earned his law degree from mer semester of law school at Northwestern zations. Aubel, who is 88 and a Navy veteran DePaul University, College of Law in 1955. He University Law School. He gained admission of WWII, could not be at the presentation. His was admitted to the Illinois Bar on November to the Illinois Bar on November 15, 1962, and son, attorney Leo G. Aubel, a partner at How- 29, 1955. Justice Cerda began his legal career was admitted to the District of Columbia Bar ard & Howard in Chicago and a member of with the firm of Panarese & Cerda. He was a in 1980. the HLAI, accepted the award on behalf of his solo practitioner in Chicago’s South Chicago He began his legal career as an Assistant father. The presenter, Judge Lopez, said that community at 9223 S. Commercial Ave., until States Attorney for Cook County, both at he had read some of the titles of the techni- he was appointed a Magistrate of the Circuit the trial and appellate levels (‘64-‘66) before cally complex patent applications filed by Court of Cook County in 1965. He was elect- beginning his solo career in private practice Aubel, Sr. on his own behalf, as well as those ed an Associate Judge in 1966 and elevated concentrating in criminal defense (‘67-‘79). of his business partners and clients, joking to Circuit Court Judge in 1971 by operation He represented clients in both state and fed- that he could not often pronounce them. of law by virtue of Article XIV, Section 4 of the eral courts in Illinois, as well as federal cases in Aubel was born and raised in Alamogor- 1970 Illinois Constitution becoming the first New York and Florida. While in private prac- do, New Mexico, where he was the valedic- Latino Circuit Court judge in Cook County tice he also served as legal counsel for the torian of his high school class. Later a gradu- and the State of Illinois. 9th Congressional District Delegation and ate of the University of Nebraska, Rensselaer Early in his career, together with Honora- co-moderated the City of Chicago’s investi- Polytechnic Institute, and New York Law tus Lopez, Manuel Reyes and Mario Perez, gation into the civil disorder occurring on the School, his education was sometimes inter- he organized many chapters of the League West Side in 1966. He also served as a dele- rupted by his Naval service on the USS Al- of United Latin American Citizens (LULAC) gate to the Democratic National Convention legheny and the USS Mellette. He was admit- throughout Illinois, Michigan, Iowa, Indiana in 1972, 1974 and 1976. He was elected as an ted to the New York Bar in 1956, after which and Wisconsin, encouraging Latino voter Associate Judge for the Circuit Court of Cook he worked in-house at IBM, and was subse- registration and raising scholarship funds for County in 1979 where he spent his entire ju- quently admitted to the Illinois Bar in 1963, college bound Latinos. He has served as a dicial career in the Municipal division until his and remained in private practice until his role model and mentor to young Latino law- retirement in 1996. He was a member of the retirement in 2013, most recently with Wal- yers throughout his career and he continues Latin American Bar Association, the Chicago lenstein, Wagner, Hattis, Strampel & Aubel. In to mentor in his retirement. Bar Association, and the American Bar Asso- brief heartfelt remarks, his son noted Aubel’s ciation where he served on the Criminal Law commitment to the highest legal, ethical and Pioneer Honoree: Honorable Saul committee. scientific standards and his devotion to his Anthony Perdomo family. Honorable Saul Anthony Perdomo was Aguila Award Honoree: Mercedes born in Havana, Cuba, on July 2, 1936. He Luque-Rosales Pioneer Honoree: Honorable David was an only child who was raised in the Mercedes Luque-Rosales grew up in the Cerda tiny town of San Antonio de las Vegas in the Humboldt Park Community on the west side Honorable David Cerda was the first Lati- Province of Havana. His parents were Cu- of Chicago and attended grammar school no Illinois Appellate Court Justice to serve on ban- born, but his maternal ancestors came in the Chicago Public School system. In fact, the Appellate Court when he was assigned to from Corsica, Italy, and his paternal ances- many people are surprised to learn that Mer- the review court in 1982. He retired from the tors were Sephardic Jews from Turkey and cy, as everyone calls her, only spoke Spanish Judiciary in December 2002. He is a founding the Canary Islands. His family emigrated to when she started school, and that English is member of the Mexican American Lawyers the U.S. in 1949 when the future judge was her second language. At a young age, Luque- Association, a member of the Illinois State Bar 13 years old. His father was a medical doctor Rosales’s parents taught her that education Association, the Chicago Bar Association, and and his mother a homemaker. His paternal was the key to everything in life. Armed with also a member of the Illinois Judicial Council. grandfather, Octavio Perdomo, was a Judge this advice, Luque-Rosales worked hard and Justice Cerda was born on June 17, 1927 in the Cuban Province of Villa Clara’s capital received a scholarship to attend Loyola Uni- in Chicago, the oldest of two sons born to a of Santa Clara, located near the geographic versity in Chicago. As a student she worked father from Angamacutiro, Michoacán, and center of the island. His family first settled in with Loyola’s Upper Bound Program, helping a mother from the State of Guanajuato in Miami where Perdomo attended Miami Edi- to encourage inner city students to attend Mexico, who settled in Chicago in 1917. He son High School before his family relocated college. Due to her commitment to public was reared on the west side of Chicago at to Tampa and he graduated from H.B. Plant service and social justice Luque-Rosales was 1810 South Trumbull and graduated from High School. He attended one summer se- awarded a Patricia Roberts Harris Fellowship Farragut High School in Lawndale in 1945. mester at DePaul University in Chicago be- to attend Creighton University School of Law He then enlisted in the U.S. Navy at age 17, fore transferring to the University of Miami, in Omaha, Nebraska. is a WWII Navy veteran—Seamen-1st class Florida, where he earned a degree in Gov- Upon her return to Chicago, Luque-Ro- (‘45‐‘46). After his honorable discharge, he ernment Studies. He became a U.S. citizen in sales continued her dedication to public ser- received his college education on the G.I. Bill, 1958 and served in the U.S. Air Force reserves vice. A 25-year veteran of the Cook County earning a Business Administration degree from 1959 to 1964. He attended Cumberland State’s Attorney’s Office, she is currently a 21 June 2015, Vol. 8, No. 1 | Diversity Matters Felony Trial Specialist at the Leighton Crimi- prosecutor to be elected to lead the organi- safety, and litigation practice groups. Emily can be nal Court’s Building at 26th and California. In zation, and in 2011 was elected the National reached at [email protected]. addition, Luque-Rosales has spent her entire President of the National Hispanic Prosecu- Spiridoula (Litza) Mavrothalasitis is an Assis- tant Inspector General with the Office of Executive career trying to improve the legal profession tors Association. ■ Inspector General for the Agencies of the Illinois by making it more reflective of the Latino/a ______Governor. She is the current President of the His- community at- large. She has accomplished Hon. Mark J. Lopez is an Associate Judge in the panic Lawyers Association of Illinois and can be this goal by being one of the founders of two Circuit Court of Cook County. Pioneer Honoree bi- reached at [email protected]. bar associations--the Hispanic Lawyers As- ographies are included herein with his permission. For additional information about HLAI’s Im- Unpublished work © 2015 Mark J. Lopez. migration and Legislative Committees, visit www. sociation of Illinois and the National Hispanic Emily N. Masalski is Counsel at Rooney Rippie hlai.org. Prosecutors Association. Luque-Rosales was & Ratnaswamy LLP (R3) and a member of the firm’s elected President of HLAI in 2005, the first environmental and natural resources, health and Sonni Choi Williams: 2015 ISBA Diversity Leadership Award recipient t the ISBA Awards Luncheon on June 2011. 19, 2015, Sonni Choi Williams, Deputy • ISBA Task Force on Diversity, 2007-2008. ACorporation Counsel for the City of • Past chair, ISBA Standing Committee on Peoria, will be awarded the 2015 ISBA Diversi- Racial and Ethnic Minorities and the Law, ty Leadership Award. This is not the first time 2009-2010. that Sonni Williams has been recognized for • Past member of the City of Peoria Race her service and contribution to the Illinois Relations Commission, 2008. legal community. In 2010, she was awarded • Past chair, PCBA Standing Committee on the ISBA Board of Governors Award that rec- Mentoring, 2012-2013. ognizes lawyers for exemplary service to the • Co-chair for the PCBA professionalism profession and the ISBA. seminar, “Expand Your Awareness and Im- When presenting her with the 2010 Board prove Your Business” on diversity sensitiv- of Governors Award, then-ISBA President ity awareness, 2013. John G. O’Brien noted that Sonni Williams • Facilitator for the PCBA professionalism was the former chair of the ISBA Standing seminar on “Raising the Bar Through Di- Committee on Racial and Ethnic Minorities versity” in 2010. and the Law, a member of the Commission • Coordinator and co-presenter for the ISBA on Professionalism, a member of the ISBA As- program, “Seek Power! A Law Student’s sembly, and a leading organizer of the highly Guide to Authentic Self Promotion” in respected Peoria County Bar Association’s Di- 2010. versity Luncheon. Sonni Choi Williams • Presenter before the Winnebago County From the beginning of her legal career Bar Association on “Diversity Issues Facing and active participation in the ISBA since minority students whom she has supervised the Legal Profession Today” in 2009. 1999, Sonni Williams has devoted her passion through her office’s internship and has assist- • Facilitator for the PCBA seminar, “Profes- and commitment to pushing for diversity in ed many of them obtain scholarships with sionalism in Your Diverse Office: Fostering the legal profession. Her work on the Peoria the support from her letters of recommenda- the Good Start” in 2009. County Bar Association’s Diversity Commit- tion. In addition to being the top sponsor for • Presenter for the PCBA ethics seminar, tee has continued beyond her years of chair- the PCBA Diversity Scholarship since incep- “Maximizing Marketability Through Di- ing the Committee from 2005 through 2007, tion, her dedication and work on promoting versity” in 2007. and she has been instrumental in garnering diversity are encompassed in the following • Coordinator and co-presenter for the ISBA a number of keynote speakers for the annual list of initiatives and services: program, “Changing the Face of the ISBA: Diversity Luncheon including Honorable Di- Tips on Running for Offices in the ISBA” in th • Current member of the Supreme Court ane Wood from the 7 Circuit Court of Ap- Commission on Professionalism since 2007. peals; Honorable Lisa Holder White from the 2006 and its newly formed Diversity Com- Sonni Williams has also authored articles 4th District Appellate Court; and NIU College mittee. on diversity issues including “The Commit- of Law Dean Jennifer Rosato-Perea, just to • Current member of the Peoria County Bar ment to Diversity Should Be a Badge Worn name a few. Association’s Diversity Committee since Every Day”1 and “Square Peg in a Round Sonni Williams not only talks the talk, but 2004, past chair: 2005-2007. World,”2 highlighting her insightful views of also walks the walk when it comes to promot- • ISBA Diversity Leadership Council, 2009- the importance of diversity in the legal pro- ing diversity. She has mentored a number of 22 June 2015, Vol. 8, No. 1 | Diversity Matters fession. She credits Alice Noble-Allgire and E. been awarded the 2006 Young Alumnus of “American Dream” at swearing-in ceremo- Lynn Grayson,3 the co-chairs of the ISBA Task the Year Award by NIU College of Law Alumni nies for new citizens. Ms. Williams is a mem- Force on Diversity, for laying the groundwork Council and the 2008 Annual Achievement ber of Kiwanis Club of Peoria; Rotary Club of on establishing the ISBA Diversity Leader- Award by the Illinois Local Lawyers Associa- Peoria-North; and League of Women Voters ship Council and Annmarie Kill4 for laying the tion. During her career with the Office of the of Greater Peoria. foundation for the Diversity Fellows program Corporation Counsel for the City of Peoria, As stated by Jennifer Wolfe, who nomi- to identify diverse future ISBA leaders and she has submitted briefs and argued before nated her for the ISBA Diversity Leadership provide them with the opportunity to learn the 7th Circuit Court of Appeals, the 3rd Dis- Award, “You can tell from the significant about the ISBA through mentorship and im- trict Appellate Court and the Illinois Supreme contributions listed above, Sonni does more mersion. Court. than just consider diversity important, she is Sonni Williams’s dedication to the legal Her service to the community includes a successful leader and advocate at convinc- profession not only includes diversity initia- serving eight years on the governing Board ing others that diversity is an important and tives, but she serves various roles in the fol- and three years on the Foundation Board for worthy cause.” ■ lowing committees: ARDC Hearing Board, EP!C, f/k/a Parc, whose mission is to enrich ______chair member (2012-present); ISBA Board of the lives of children and adults with devel- 1. The Challenge, a newsletter of the ISBA’s Governor for Area 4; ISBA Assembly member opmental disabilities. Currently, she serves Standing Committee on Racial and Ethnic Minori- for the 10th Judicial Circuit (2003-2009); ISBA on the Board for Peoria Friendship House of ties and the Law, November 2009, vol. 20, no. 1. 2. Diversity Matters, the newsletter of the IS- Committee on Judicial Evaluation-Outside Christian Services that provides relief, respect BA’s Diversity Leadership Council, June 2008, vol. Cook County; Illinois Bar Foundation Gold and renewal to Peoria’s most vulnerable indi- 2, no. 1. Fellow; PCBA’s Young Lawyer’s Committee, viduals and families. In addition, Ms. Williams 3. 2012 Diversity Leadership Award recipient. past chair (2003); and Master Member of has shared her story of being a poor immi- 4. 2014 Diversity Leadership Award recipient. the Abraham Lincoln Inns of Court. She has grant overcoming obstacles to obtain the PICKING A CIVIL JURY: Don’t miss this invaluable A GUIDE FOR ILLINOIS TRIAL guide to jury selection! LAWYERS Bundled with a free Fastbook PDF download! 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Wednesday, 7/8/15- Teleseminar—Eth- Thursday, 7/30/15- Teleseminar—Emi- ical Issues When Representing the Elderly— nent Domain, Part 1- LIVE REPLAY. Presented Thursday, 8/20/15- Teleseminar—Ease- LIVE REPLAY. Presented by the ISBA. 12-1. by the ISBA. 12-1. ments in Real Estate. Presented by the ISBA. 12-1. Thursday, 7/9/15- Teleseminar—Settle- Friday, 7/31/15- Teleseminar—Eminent ment Agreements in Litigation- LIVE REPLAY. Domain, Part 2- LIVE REPLAY. Presented by Monday, 8/24/15- Teleseminar—Like- Presented by the ISBA. 12-1. the ISBA. 12-1. Kind Exchanges of Business Interests- LIVE REPLAY. Presented by the ISBA. 12-1. August Thursday, 7/9/15- Webinar—Advanced Tuesday, 8/4/15- Teleseminar—Con- Tips for Enhanced Legal Research on Fast- Tuesday, 8/25/15- Teleseminar—Estate struction Agreements, Part 1. Presented by case. Presented by the Illinois State Bar As- Planning for Guardianship and Conservator- the ISBA. 12-1. sociation – Complimentary to ISBA Members ships. Presented by the ISBA. 12-1. Only. 3-4 pm. Tuesday, 8/4/15- Webinar—Introduc- September tion to Legal Research on Fastcase. Presented Tuesday, 9/1/15- Teleseminar—Estate Tuesday, 7/14/15- Teleseminar—Tax by the Illinois State Bar Association – Compli- & Trust Planning With the New 3.8% on In- Planning for Real Estate, Part 1. Presented by mentary to ISBA Members Only. 11-12. come. Presented by the ISBA. 12-1. the ISBA. 12-1. Wednesday, 8/5/15- Teleseminar— Wednesday, 9/2/15- Teleseminar— Tuesday, 7/14/15- Webinar—Fastcase Construction Agreements, Part 2. Presented Drafting Service Agreements in Business. Boolean (Keyword) Search for Lawyers. Pre- by the ISBA. 12-1. Presented by the ISBA. 12-1. sented by the Illinois State Bar Association – Complimentary to ISBA Members Only. 3-4 Thursday, 8/6/15- Webinar—Advanced Thursday, 9/3/2015- CRO and LIVE pm. Tips for Enhanced Legal Research on Fast- WEBCAST—The Basics of LLC Operating case. Presented by the Illinois State Bar As- Agreements. Presented by the ISBA Business Wednesday, 7/15/15- Teleseminar— sociation – Complimentary to ISBA Members and Securities Section. 1:00-4:45 pm. Tax Planning for Real Estate, Part 2. Presented Only. 11-12 pm. by the ISBA. 12-1. Thursday, 9/3/15- Teleseminar—Draft- Tuesday, 8/11/15- Teleseminar—Estate ing Effective Employee Handbooks- LIVE RE- Tuesday, 7/21/15- Teleseminar—Re- Planning with Annuities & Financial Prod- PLAY. Presented by the ISBA. 12-1. strictive & Protective Covenants in Real Es- ucts. Presented by the ISBA. 12-1. tate. Presented by the ISBA. 12-1. Friday, 9/4/15- Teleseminar—Rights of Tuesday, 8/11/15- Webinar—Fastcase First Refusal/Rights of First Offer in Transac- Wednesday, 7/22/15- Teleseminar— Boolean (Keyword) Search for Lawyers. Pre- tions. Presented by the ISBA. 12-1. ■ Fiduciary Duties & Liability of Nonprofit/ sented by the Illinois State Bar Association Exempt Organization Directors and Officers. 24