I posted a piece on the Employment Law Section's blog-- https://communities.nysba.org/blogs/michael-diederich/2022/02/09/will-scotus-uphold-a-caste-system-of-nys-justice-c -- the first portion of which is as follows for anyone on the Committee on Civil Rights who may be interested:
Will SCOTUS Uphold A Caste System of NYS Justice Center Injustice By Denying (Black) Accuseds The Right To Face Their (White Accusers)?
In 2018, in the course of a few months, several people came to the my law office, complaining of the same thing—that they were healthcare workers falsely accused of neglect or abuse by their racially-biased employers and as a result were administratively prosecuted and unjustly found guilty by the New York State Justice Center for the Protection of People with Special Needs. The “Justice Center” employs procedures that deny to workers accused of neglect or abuse the basic due process right to confront their accusers, by prosecuting the cases on hearsay evidence alone over 95% of the time. What I have concluded in litigating three cases that came to my office is that I was witnessing first-hand the American caste system at work—the system described in detail in Isabel Wilkerson’s eye-opening 2020 book, Caste: the Origins of our Discontents.
What I observed in both the representations that I undertook as a lawyer, and found in reported decisions, were repeated unfair finding of guilt by the Justice Center against low or modest wage workers who are predominantly African American and Hispanic workers. The accusers are usually White and, as part of the employer’s management, and so too are the prosecutors and agency judges. The employer and the self-important agency both can reasonably be viewed as “upper caste,” and the accused healthcare workers, usually people of color, as “lower caste.” The end result of this caste system of injustice is that commonly an accused healthcare worker is prosecuted in flimsy evidence, and then found guilty first by a Justice Center investigator and then, perhaps two years later, at a show trial presided over by a member of the Justice Center’s staff (an attorney designed hearing officer—and self-designated “ALJ”). The accused’s employment is routinely terminated as a result of the neglect or abuse finding, often followed by the loss of a livelihood and a career. This is Jim Crow justice, in New York State, conducted in plain view.[1]
Let me discuss my three different clients. Each came to my office within a few months of each other, which signaled to me that something is rotten in the state of Denmark (sic New York). I agreed to take on the cases of three different clients victimized by the Justice Center. Each client is African American. I challenged in both federal and state court the Justice Center’s failure to provide adequate due process—specifically, the failure to provide them with an opportunity to confront their accusers.[2] Yet I have been unsuccessful in obtaining judicial redress, with one longshot motion pending before the U.S. Supreme Court.
In my view, the Courts ignored both the facts and the law to uphold what appears to me to be a caste system of Jim Crow justice. Blacks and Hispanics are disproportionately impacted. Neither the ACLU, NAACP nor 1199 SEIU has volunteered to help this caste of aggrieved workers.[3] Undoubtedly they view it as too much of an uphill battle, fighting a state agency, not just “fighting city hall.”
I have thrown one last “hail Mary” pass in this civil rights effort—a motion for the Supreme Court to reconsider its denial of certiorari for two of my clients, Mr. Gerard Lynch and Mr. Rotimi Salu. My effort will likely be futile. The state and federal courts will then have countenanced a caste system that permits the Justice Center to deny hundreds, if not thousands, of minority healthcare workers in New York State the basic due process right to confront an accuser. The Jim Crow system, rooted in caste, is disguised in aura of governmental quasi-judicial legitimacy and thus may be difficult for the superior caste to recognize. Yet it is very apparent and painful to its subordinate caste victims.
My three African American clients offer a case study of implicit bias against African Americans, and their cases clearly reveal a caste system of justice at work.
[The balance of this article can be found at: https://communities.nysba.org/blogs/michael-diederich/2022/02/09/will-scotus-uphold-a-caste-system-of-nys-justice-c