Unsafe at Tackling Speed – posted 8/30/2018

August 31, 2018 1 comment

Football is back. Along with the NFL and college football is the running discussion about chronic traumatic encephalopathy or CTE, the degenerative brain disease caused by repetitive hits.

While most of the CTE focus has been on NFL players, one other group has garnered attention. That group is children under age 12 who play tackle football.

New scientific information from Boston University School of Medicine shows that hits absorbed by young players are more damaging because their brains are not fully developed and because young brains are less capable of repairing themselves.

Children who get brain injuries before the age of 12 also seem to recover slower.

We have learned that playing youth football may lead to earlier onset of cognitive, behavioral, and mood symptoms in later life. The Boston University study shows that those who played tackle football before age 12 experienced symptoms 13 years earlier than those who started playing at age 12 or later.

Dr. Ann McKee, chief neuropathologist at the Boston VA Healthcare System and Director of Boston University’s CTE Center, commented:

“It’s as though the brain of these people who started playing early football was less resilient to pathology. It’s sort of like they have a weakened nervous system, and set you up for earlier onset of any of these disorders. That was a surprising finding.”

I do think there is a serious public health issue here. Over one million American children age 6 to 12 played tackle football in 2016. We know that the years before age 12 are critical for brain development. Just to refresh recollection, CTE’s early symptoms include: headaches, impulsive behavior, depression, suicidal ideation, irritability and short-term memory loss. Later, CTE leads to dementia, explosively aggressive behavior, paranoia, and impaired motor function.

Dr. McKee has recommended that children under age 14 should not play tackle football. Another leading sports injury neurologist, Dr. Robert Cantu, has recommended that kids under 14 only play flag football.

While I would acknowledge that playing youth tackle football has benefit as a form of exercise, can build character, camaraderie and a great feeling of collective accomplishment, it is difficult to escape the awareness that brain trauma is a particularly insidious injury. It is not like another broken body part. The injury is life-compromising.

Brett Favre, the now-retired Green Bay Packers quarterback and an iron man player with a streak of 297 consecutive starts, has stated:

” I got three grandsons. I’m not going to encourage them to play football, I’m not going to discourage them, but I would much rather be their caddy for them in golf than watch them play football.”

Nick Buoniconti, a Miami Dolphins Hall-of-Famer who also played for the Patriots, was quoted in the New York Times:

“I made a mistake starting tackle football at 9 years old. Now, CTE has taken my life away. Youth football is all risk with no reward.”

Buoniconti has a dementia diagnosis.

Favre and Buoniconti are not alone among NFL players in not wanting family members to play youth football. Among others, Zach Ertz, Adrian Peterson, Terry Bradshaw and Fran Tarkenton are all on record voicing a similar sentiment.

This past legislative session, five states introduced legislation that aimed to ban youth tackle football under age 12. The states were Illinois, Maryland, California, New York and New Jersey. None of the bills met with initial success but it was interesting to see the response of Pop Warner Football. They have limited contact in practice and they also eliminated kickoffs entirely.

Michael Wagner, the executive commissioner for Southern California Pop Warner Football, responded to the reform effort in his state:

“This is downright un-American. I think [for] the government to tell parents that they’re mistreating their children because they’re allowing them to play a sport…is an infringement on their freedoms.”

Pop Warner is facing a California-based class action lawsuit brought by the parents of two young men who were found to have suffered from CTE during post-mortem autopsies. The plaintiffs in the lawsuit are arguing that Pop Warner failed to institute league-wide safety protocols and guidelines.

Whatever opinion one ultimately holds about football, I think discussion of tackle football for those under the age of 12 can be separated out as a distinct matter of public health. Just as we recognize the harm of lead poisoning to children, there is a strong case we need to prevent young athletes from experiencing repetitive head impacts.

The science is clear: youth tackle football is bad for the brain.

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My 1968 – posted 8/22/2018

August 23, 2018 2 comments

50th anniversaries prompt historical look backs. This year is the 50th anniversary of that watershed year, 1968. It still stands as a uniquely transformative year.

1968 is justly recognized as a year of radical rebellion internationally. I think of the events in Prague, Paris and Mexico City. Young people took it to the streets.

In May of that year, ten million workers joined students in a general strike that nearly brought down the French government.

Here in the United States, the war in Vietnam defined the backdrop to our lives. Maybe never before in American history was a war hated so much by so many. The military draft loomed large and young men faced critical decisions about participating in a war that lacked even paper thin rationale.

The war was daily body counts, the credibility gap, pictures of napalmed children, and “we had to destroy it in order to save it”. For people of my generation, Vietnam was defining, birthing a mass anti-war movement.

In January 1968 came the Tet Offensive, an illusion-shattering event. At the time there were over 540,000 American troops in Vietnam. Contrary to the predictions of American military commanders like General Westmoreland, Tet demonstrated that there would be no military victory for the U.S.. By February 1968, half the American public viewed the war as a mistake. Then in March came the My Lai Massacre where hundreds of unarmed Vietnamese civilians were murdered by U.S. Army troops.

President Johnson withdrew from the presidential race shortly after facing a surprisingly competitive challenge in the New Hampshire primary by the anti-war insurgent, Minnesota Senator Eugene McCarthy. Then in March, New York Senator Robert F. Kennedy joined the presidential race.

The war shook and shredded old world views. Previous certainties unravelled and new perspectives opened. The Movement, black liberation, and women’s liberation all emerged, along with the 1960’s counterculture.

I was 17, a senior in a private school just outside Philadelphia. Personally, it was a transition time as I prepared to leave high school and head to college in Hartford, Connecticut. I remember:

  • my sister Lisa and I putting a flower petal “Gene McCarthy for President” bumper sticker on the back of my dad’s convertible. We did not have to go “clean for Gene” because at that point we were pre-hippie radical.
  • hearing racist students at my high school applaud the assassination of Dr. Martin Luther King. Anger in black communities erupted in over a hundred cities all across America.
  • listening to the unforgettable music. Bob Dylan had already released John Wesley Harding. 1968 meant Marvin Gaye singing “I Heard it Through the Grapevine”, Janis Joplin wailing on “A Piece of my Heart”, Jimi Hendrix doing “All Along the Watchtower” and Phil Ochs singing “I Ain’t Marchin’ Anymore”.
  • staying up late watching returns from the California primary and hearing the devastating news that Robert Kennedy had been assassinated.
  • the student occupation of buildings at Columbia University, freaks and straights, underground newspapers and Liberation News Service and R. Crumb
  • joining the Students for a Democratic Society (also known as SDS) chapter at my college and being given a list of books to read by another student that were not on any college syllabus. Some of the books on the list were: The Autobiography of Malcolm X, Fanshen by William Hinton, The Wretched of the Earth by Frantz Fanon and The Power Elite by C. Wright Mills.
  • marching across Hartford at night with my SDS chapter to demonstrate against the presidential candidacy of Richard Nixon who had a rally at the Hartford Armory shortly before the November 1968 election.

Most shocking that year was the Chicago Democratic Convention. I was not there but I watched the events unfold on television. It is often remembered for the police riot where Mayor Daley unleashed his police force to attack demonstrators and anyone with long hair.

While the attack on demonstrators was undeniably brutal, that does not explain why Chicago was such a breakaway political experience for so many young people. There was a deeper set of issues at play.

The Democratic primaries in 1968 featured the rivalry between Gene McCarthy and Bobby Kennedy. Both candidates were anti-war and collectively they won an overwhelming majority of the Democratic popular vote during the primary season. After the withdrawal of President Johnson from the race and after Bobby Kennedy’s assassination, the Democrats were thrown into total disarray.

The Party establishment responded by choosing Senator Hubert Humphrey to be the Democratic party standardbearer in the general election. Humphrey was Johnson’s Vice-President. Although he had a generally progressive record on civil rights and domestic policy, he was a supporter of Johnson’s hated Vietnam policies. As such, he was a wildly unpopular choice, especially among young people.

These events pushed a chunk of my generation leftward and raised fundamental questions not just about the war but about American society. Why were we in Vietnam anyway? And why were we as a society so unable to tackle poverty and racism? And also, given political realities, how did someone live a life of integrity?

After the summer of 1968, it was hard to see life in quite the same way. I did not know what I wanted to do with my life but I knew I wanted to connect it to the sixties movement for social change in some capacity. I think the uneasiness of this time was best captured in a little-known out-of-print book, A Name for Ourselves, written by once SDS President Paul Potter. Potter critiqued the hyper-individualism in American life and argued for a more communal and collaborative way of life.

1968 was high energy: an exciting, questioning activist time. While I have seen 1968 argued as having an ambiguous legacy, as we face extreme economic inequality, unprecedented corruption and venality, the climate crisis, the resurgence of white racism, and the tremendous threat to women’s reproductive rights, we could use some 1968-like spirit right now.

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Thurgood Marshall: An Appreciation – posted 8/16/2018

August 17, 2018 4 comments

As we contemplate the appointment of a new Supreme Court justice, I was thinking of the qualities I would like to see in a nominee. A passion for justice, broad legal experience, an appreciation of civil liberties, awareness of class, racial and sexual oppression, concern for the underdog, open-mindedness, compassion and demonstrated bravery – that is a good start.

When I think of what lawyer in my lifetime has embodied those qualities, the first name that comes to mind is Thurgood Marshall. When I started law school in the 1980’s, he was still on the Supreme Court.

What made Marshall so special? I would have to say it was the uniqueness of his career as a lawyer. It is not an exaggeration to say he was the architect of the strategy to take down legal segregation in the United States. Over many years and many landmark cases, Marshall scored victory after victory. He won 29 out of 32 cases he argued before the U.S. Supreme Court.

He has been called the Founding Father of the new America.

No way can I do justice to the list of important cases Marshall handled as a lawyer. While you have to start with Brown v. Board of Education, there are numerous other Supreme Court cases he handled. To name a few: in Smith v. Allwright (1944), Marshall invalidated Texas’s whites-only primary; in Shelly v. Kraemer (1948), he defeated racially restrictive real estate covenants; in Sweatt v. Painter (1950), he forced the integration of the University of Texas law school.

As a young man, Marshall did not have it easy. When not in school, he constantly worked. He held jobs as a railroad waiter, assistant law school librarian, waiter at a country club and he had a night job as a clinic clerk at the Baltimore City Department of Health.

Although he went to law school at Howard University in Washington D.C., he was then too poor to live in the city. He lived in Baltimore and commuted to D.C. six days a week on the train.

Starting as a lawyer in private practice in Baltimore, he handled a wide range of cases – divorces, personal injury, car accidents, murder and rape cases. He got much experience representing criminal defendants in jury trials.

Marshall lost a case in 1934 where his client, a young black man named James Gross, was convicted of first degree murder. Gross had driven the getaway car but had not pulled the trigger. The State of Maryland executed Gross, by hanging. That experience deeply affected Marshall and turned him into an opponent of the death penalty.

In 1936, Marshall went to work for the NAACP under the tutelege of Charlie Houston, a lawyer who was passionately committed to using the law to oppose segregation. Houston had previously been the dean at Howard University and he recognized Marshall’s talent. He groomed and recruited Marshall to become an NAACP lawyer.

Marshall repeatedly handled cases in the deep South when it was extremely dangerous for any Black attorney to practice there. He came very close to getting lynched himself. He constantly faced death threats from the Ku Klux Klan. It is hard to imagine more difficult circumstances. Marshall tried cases in front of all-white juries with spectators who would openly advise that any lawyer who defended blacks would end up dead.

Marshall liked to tell the story of the Groveland Boys case. The story of this case is brilliantly told in a book, Devil in the Grove, written by Gilbert King. In 1949, in Groveland, Florida, four black men were accused of raping a 17 year old white woman. As King wrote:

” The case was key in Marshall’s perception of himself as a crusader for civil rights, as a lawyer, willing to stand up to racist judges and prosecutors, murderous law enforcement officials and the Klan in order to save the lives of young men falsely accused of capital crimes – even if it killed him. And Groveland nearly did.”

Marshall’s biographer, Juan Williams, presents him as a very gregarious, down-to-earth man who could mingle well in any social strata. Marshall liked to joke and was a great story teller. In spite of all the pressure he was under, Marshall chose a hedonistic, non-worrying philosophy. Williams quoted Marshall:

“I intend to wear life like a very loose garment, and never worry about nuthin’.”

In 1961, President John F. Kennedy appointed Marshall to the Second Circuit Court of Appeals. At that time in the early 1960’s, the federal bench was nearly all-white. Before being tapped for the U.S. Supreme Court by President Johnson, Marshall also served as Solicitor General. He was the first African American to hold that position. It is hard to imagine a wider range of experience for any nominee to the High Court.

Marshall’s confirmation hearing for the Supreme Court in 1967 was an epic showdown where he confronted Southern segregationist senators like Strom Thurmond and John McClellan who were opposed to having any Black person on the Supreme Court.

In his confirmation hearing, Marshall presented his view of the Constitution as a living document. Later in his life at the bicentennial of the Constitution, Marshall gave a famous speech in which he further explicated his view:

“…I do not believe the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite “the Constitution,” they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.”

Marshall spent 24 years on the Supreme Court. As the Court evolved, Marshall had an increasingly difficult time building consensus with more conservative justices. He often dissented along with his ally, Justice William Brennan.

Now, when you look at qualities being considered for Supreme Court nominees, it is enough if you went to Harvard or Yale, have extreme right wing views and are relatively young. It does not appear to matter if you have never tried a case. In every respect, Marshall serves as a powerful counter-example.

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Whiskey and You – JSB Cover by Josh Baird on SoundCloud – posted 7/27/2018

July 27, 2018 3 comments

I wanted to share this cover version of Chris Stapleton ‘s song Whiskey and You sung by my son Josh.

Josh has a powerful voice and he sings with a helluva lot of soul. I just thought anyone who reads this blog might enjoy something different.


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Shady summer 2018 – posted 7/14/2018

July 14, 2018 Leave a comment
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Denying Asylum to Domestic Violence Survivors Shocks the Conscience – posted 6/17/2018

June 17, 2018 Leave a comment

On June 11, Attorney General Jeff Sessions drastically restricted asylum claims of those fleeing domestic and gang violence. While I think the decision is wrong for both groups, I find the restriction placed on domestic violence victims particularly shocking and heartless. Sessions’ ruling reflects an outdated and misogynistic understanding of domestic violence as “private violence”.

Sessions minimized domestic violence as a crime. He harkens back to a time when domestic violence was seen as a private matter between spouses, something outside the jurisdiction of courts and governments.

It is not an exaggeration to say Sessions’ ruling will return countless women to grave danger and possible death at the hands of their abusers.

Karen Musalo, a lawyer who represents domestic violence victims who seek asylum in the United States, responded to Sessions’ ruling:

“What the decision does is yank us all back to the Dark Ages of human rights and women’s human rights and the conceptualization of it.”

Applicants for asylum to the United States must show they are persecuted because of characteristics such as their race, religion, political opinion or membership in a “particular social group”. Since 2014, the Board of Immigration Appeals had created legal precedent that allowed domestic violence victims to qualify for asylum as members of a “particular social group”.

The survivors of domestic violence could only qualify for asylum though if the violence rose to the level of “persecution” and if the government was unable or unwilling to protect them.

Sessions overturned this legal precedent when he personally intervened in the case of a Salvadoran woman known as Ms. A.-B. (her initials). Ms. A.-B. sought asylum in the United States after she had survived 15 years of physical, sexual and emotional abuse by her husband. During those 15 years, Ms. A.-B.’s husband beat her regularly, including when she was pregnant, and bashed her head against a wall.

Ms. A.-B. had moved to another Salvadoran town, had obtained restraining orders and had divorced her husband but the threats and violence continued. The ex-husband’s brother was a police officer and the government failed to protect her. She fled El Salvador in 2014 after her ex-husband threatened again to kill her and dump her body in a river.

When Ms. A.-B. initially went before an immigration judge who rarely grants asylum, she lost. However, she later won her case before the Board of Immigration Appeals. The Board ruled that the Salvadoran government had shown it was incapable of protecting Ms. A.-B. even after she moved to another town in El Salvador.

Before her asylum status was formally granted, Sessions intervened. He referred the case to himself for review and issued a new ruling. As Attorney General, Sessions has the power to intervene in cases to determine how immigration law is interpreted. He can issue decisions that serve as binding precedents for immigration judges.

In his Ms. A.-B. ruling, Sessions wrote that generally claims on domestic violence will no longer qualify for asylum and will not even reach the initial “credible fear” standard to allow an immigrant to have her claim heard by a judge.

Sessions is effectively closing the courtroom door and locking domestic violence victims out. As he would put it, victims of private criminal activity perpetrated by nongovernmental actors fail to meet the asylum standard.

His ruling could literally invalidate tens of thousands of pending asylum claims. Under immigration law, the rulings of the attorney general are binding on immigration judges unless they are reversed by a federal appellate court.

We must never forget that it was not too long ago that Americans did not view domestic violence as a problem worth talking about. If a man beat his wife, that was viewed as a private affair. Police and the public turned a blind eye. Abusers intimidated their victims into silence.

It has taken almost 50 years of feminist activism to change policies and attitudes about domestic violence. Through that long-term struggle, society came to see domestic violence as a public health and human rights concern – not a private issue. Sessions’ ruling is a dramatic step backwards. It misses the reality that the privacy of violence is exactly the shield abusers have used to escape the consequences of their acts.

Even before Sessions’ ruling, women who were victims of domestic violence were not guaranteed asylum. Their status as domestic violence victims only made them eligible to apply for asylum. In 2017, the national rate for the denial of asylum claims was 61%. What Sessions has done is make the process infinitely more difficult.

Whether Sessions’ ruling will withstand court challenge remains unclear. Even if a federal appellate court overruled Sessions’ Ms. A.-B. ruling, such a decision would only apply in the geographic area of that circuit court. Maybe a case will make it to the U.S. Supreme Court (and who knows what that outcome will be) but in the meantime, Sessions’ ruling will have a devastating effect.

You have to wonder what is next. Will Sessions attempt to roll back legal precedent for other victims of gender-based violence such as LGBT people, victims of female genital mutilation, and forced marriage who seek refuge in the United States?

We have come a long way from Emma Lazarus’s stirring words affixed to the pedestal of the Statue of Liberty:

“Give me your tired, your poor,
Your huddled masses
yearning to breathe free,
The wretched refuse of
your teeming shore.
Send these, the homeless.
tempest-tost to me,
I lift my lamp beside the golden door!”

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Separating Immigrant Children From Their Parents is a Horror Show With Historical Precedent – posted 6/10/2018

June 10, 2018 Leave a comment

Occasionally in politics a story comes along that is so horrifying and morally reprehensible that it commands immediate attention. Such is the Trump Administration’s policy of indefinitely separating undocumented immigrant parents from their children as they cross the U.S. border.

On June 7, Lee Gelernt, the American Civil Liberties Union (ACLU) lawyer litigating the class action challenging the family separation practice, stated he thinks 1500 to 2000 children have been separated from their parents. This includes babies, toddlers and other small children torn from their mothers and fathers.

In the great majority of cases, the children have no idea where their parents are and when they will be able to see them again.

The Trump Administration is traumatizing a huge number of innocent children, putting them at high risk of suffering lifelong negative impacts. In response to the current situation, the American Academy of Pediatrics wrote a letter to Homeland Security Secretary Kirstjen Nielsen, urging the Trump Administration in the strongest possible terms to reject its family-separation policy:

“Separation from the very parents who would provide them with love, stability and reassurance only exacerbates children’s suffering… Fear and stress, particularly prolonged exposure to serious stress without the buffering protection afforded by stable, responsive relationships – known as toxic stress – can harm the developing brain and harm short- and long-term health.”

I am trying to visualize the situation of the detained immigrant children. They are being warehoused and held as prisoners in unsanitary and freezing conditions for months. Rows and rows of children sleep on thin mats behind chain-linked fences. The cells are like dog kennels or large cages. The children and the immigrants call the facilities hieleras or iceboxes. The ACLU just released a report about the level of abuse by Customs and Border Patrol and ICE of children in these hieleras. It is not a pretty picture.

NBC has reported that half of the detained children are under age 12.

When U.S. Senator Jeff Merkley tried to inspect the childrens’ detention conditions in a Brownsville Texas facility, prison operators locked him out and called the police. Sen. Merkley was not allowed to carry out an inspection. The detention center is a former Walmart with blacked-out windows. Not exactly a message of transparency.

Trump’s family-separation policy has no legal basis. Attorney General Jeff Sessions described this Kafkaesque policy as a “zero-tolerance” immigration measure. John Kelly, Trump’s chief of staff, has said the purpose of family separation is deterrence of illegal immigration.

Contrary to past policies in which families were kept together and only detained for a limited time, the Trump Administration has tried to work around time restrictions previously imposed by courts.

The Federal Court in San Diego has now preliminarily refused to dismiss the ACLU class action lawsuit, ruling that the “wrenching separation” of families may violate the Constitution’s guarantee of due process. Under U.S. Supreme Court precedent, family integrity is considered a fundamental due process right. In this case, the Trump Administration has failed to show any compelling government interest in separating parents and children. Nor have they used a least restrictive means to fulfill their interests required under due process law.

For those who may wonder, due process rights do apply to undocumented immigrants. The U.S. Supreme Court decided that in 2001 in the case of Zadvydas v Davis.
The Trump Administration family-separation policy is premised on a racist dehumanization of those seeking to immigrate to the United States. To treat families in such a cruel fashion is not to accord them rights as fellow human beings. What happened to that old Republican favorite of “family values”?

Trump recently denounced unauthorized immigrants as “animals”. Sarah Huckabee Sanders later corrected her boss, stating, not reassuringly, that he only meant members of the MS-13 gang.

I wish I could say the current family separation policy is an aberration in American history. It is not. It is hard not to be reminded of both Native American and African American history.

In the last third of the 19th century, the government removed tens of thousands of Native Americans from their families and forced them into government-funded boarding schools. In these schools, the Native American children were forced to change their names, learn English, dress like Americans and convert to Christianity. Later in the 20th century, as many as 25 to 35% of native American children were taken from their families with the great majority placed in white households.

Slaveholders sold the children of African American slaves away from their families. Enslaved parents lived with the constant fear that they or their children might be sold away. The destruction of families was one of the most evil aspects of slavery.

The Trump Administration family-separation policy represents a profound devaluation of families of color and is in keeping with the most racist and inhumane traditions of U. S. history. The policy is a disgrace, immoral and likely unconstitutional, and we must do everything within our power to vigorously oppose it.

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