Marcio Jose Sanchez/AP

A protester holds a sign at San Francisco International Airport on Jan. 28 during a demonstration to denounce President Trump's executive order that barred citizens of seven predominantly Muslim-majority countries from entering the US.

Will the third time be the charm for the Trump administration?

An almost constant feature of Donald Trump’s presidency has been litigation over his trio of travel-ban executive actions, which restrict entry into the US for certain classes of immigrants from six Muslim-majority countries.

The travel ban has also become the primary battleground for larger debates over how the judicial system should respond to a presidency that has defied governmental orthodoxy in numerous ways.

The administration has framed the executive actions as tightening immigration policies to prevent potentially dangerous individuals from entering the country. For litigants – who have included national civil rights and immigrant advocacy groups, state governments, universities, and individuals around the country – the executive actions represent a thinly veiled attempt to implement the “Muslim ban” Trump promised during his presidential campaign.

Plaintiffs have consistently argued that the executive actions violate both congressional immigration law and the Constitution. Lower courts, for the most part, have agreed.

Yet a definitive ruling on these issues has eluded the courts so far, in part because the first two executive actions were temporary. In an unsigned opinion in June, the US Supreme Court allowed portions of the second order to go into effect, and set a date for arguments. When that 90-day ban expired, Trump issued a third iteration of the ban (set to go into effect Wednesday) and the high court dropped the earlier case. Since this third travel ban is indefinite, legal challenges to it – which began Monday afternoon with oral arguments in a federal district court in Maryland – are certain to deliver a resolution to at least some of these issues, potentially even by the end of this year’s Supreme Court term.  

The arguments against all three versions of the travel ban have remained largely the same, despite shifting provisions the orders (described in a postscript below). Plaintiffs argue that the third travel ban, like its predecessors, violates the 1965 Immigration and Nationality Act (INA), which prohibited discrimination against immigrants on the basis of nationality. They also argue that it discriminates based on religion.

Beyond that, the litigation over the past 10 months has provoked a discussion over whether courts should treat Trump differently from previous presidents. Specifically, the judiciary has traditionally given broad deference to the executive branch on immigration and national security matters. For the Trump administration, the judiciary has given more scrutiny.

“We are in the second chapter of that,” says Muzaffar Chishti, director of the Migration Policy Institute’s New York office. “There was some need for these courts to react to the Trump presidency… Will they react the same way nine months later as they reacted three months later?”

Evan Vucci/AP

President Trump speaks with reporters about new travel ban restrictions before boarding Air Force One on Sept. 24 at Morristown Municipal airport in New Jersey.

The arguments that started Monday are being heard by the same person, US District Judge Theodore G. Chuang, who blocked portions of the second travel ban order in March. It’s common practice for judges to hear cases concerning issues they’ve reviewed before.

For this case, the government argued in its brief that the context around the new travel ban has changed enough to render it both constitutional and permissible under the INA.

Over the summer, the administration conducted a multi-agency global review of security risks posed by various countries – a review that saw Sudan dropped from the list of banned countries while adding Chad and two nations that do not have Muslim majorities, North Korea and Venezuela. The review, the government argued in its brief, “severs any connection between [the second travel ban’s] supposed religious purpose and” the third travel ban.

The national-security argument

The third travel ban also doesn’t run afoul of the INA, the government claims, because “Congress has set the minimum requirements for an alien to gain entry, but has also granted the President authority to impose additional restrictions when he deems appropriate.” Siding with the plaintiffs, the government added, “would severely circumscribe the President’s authority” and “threatens the ability of this or any future President to take steps that are necessary to protect the Nation.”

Indeed, the government’s central argument is that the national security issues at play are beyond the court’s purview. Once the administration has shown that national security interests animated the travel restrictions – interests determined by the global review – the courts have no authority to look behind a presidential order restricting the entry of certain classes of immigrants.

Looking behind Trump’s executive orders was something the lower courts did routinely in prior travel ban cases. None of the three travel bans explicitly mentioned Muslims, but judges regularly cited statements from Trump and his surrogates – both during and after the campaign – as evidence that they were attempts to establish a de-facto “Muslim ban.” A panel of judges on the 4th Circuit Court of Appeals, who heard a challenge to Judge Chuang’s first ruling, wrote that the second travel ban order “drips with religious intolerance, animus, and discrimination” in siding against the government.

Although the Supreme Court vacated that 4th Circuit opinion, that court’s reasoning could still have significant sway over Judge Chuang’s reading of the third travel ban, says Steven Schwinn, a professor at the John Marshall School of Law in Chicago.

“You just cannot wipe clean the religious animus,” he says. Chuang isn’t mandated to follow the 4th Circuit ruling because it was vacated, but “he can certainly adopt the same reasoning.”

The fact that the third travel ban is indefinite, unlike the previous two versions, could also be an issue for the government.

The INA says “the president can deny entry to a class of immigrants for however long he deems necessary,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “That makes sense when it’s temporary, but this is not temporary.”

Specifically, Congress amended the INA in 1965 for the central reason of making it easier for foreign nationals to visit family members (often referred to as “family reunification”). The third travel ban’s indefinite duration “undermines the structure and purpose of the [INA], thereby exceeding the power that Congress delegated to the President in the statute,” wrote Peter Margulies, a professor at Roger Williams School of Law, in the Lawfare blog last month.

Professor Blackman doesn’t think the ban’s indefinite duration will decide the case. The “as long as the president deems necessary” language in the INA “is fairly broad,” he says. But he does think the Supreme Court could rule on the case before its current term ends next June.

“I fully expect the judges [in Maryland and Hawaii] to write what they did before. That probably won’t stand up [later on] but it will probably be what happens at first,” he adds. So long as the Supreme Court can take up the case by March they could issue a decision before the 2018 summer break.

Judge Chuang asked tough questions Monday of lawyers representing plaintiffs seeking to block the executive action’s implementation, Reuters reported. Chuang said he would rule later on whether to grant the plaintiffs’ request.

The fact that the justices decided to allow parts of the second travel ban to go into effect but block other parts may indicate that the high court is willing to give the Trump administration more scrutiny than previous administrations, says Mr. Chishti.

“Whether that calculus will change on the executive order 3, we don’t know,” he adds, “but it was not good news for the administration that the [Supreme Court] was willing to say that the administration’s orders on immigration cannot be unchallenged.”

Postscript: How the three bans have differed

Travel ban #1: An executive order that suspended for 90 days entry to the US for immigrants from Iraq, Iran, Syria, Libya, Somalia, Sudan, and Yemen; suspended for 120 days the admission of all refugees to the US; indefinitely suspended the admission of refugees from Syria; and prioritized the admission of refugees who are religious minorities in their native countries.

Travel ban #2: An executive order that suspended for 90 days entry to the US for immigrants from Iran, Syria, Libya, Somalia, Sudan, and Yemen (Iraq was removed); suspended for 120 days the admission of all refugees to the US, including refugees from Syria (who had previously been banned indefinitely); and removed the language prioritizing the admission of refugees who are religious minorities in their native countries.

Travel ban #3: A presidential proclamation that placed indefinite restrictions on the entry of certain classes of immigrants and nonimmigrants from Iran, Syria, Libya, Somalia, Yemen, North Korea, and Chad, as well as a small number of government officials from Venezuela.

Courtesy of Karan Jani/Georgia Tech

This visualization shows the coalescence of two orbiting neutron stars. The right panel contains a visualization of the matter of the neutron stars. The left panel shows how space-time is distorted near the collisions.

Scientists are no longer just talking about it. After decades of theorizing, we're now actually in a new era of astronomy, defined by the capability to peer into the universe through multiple, distinct lenses. The first detections of gravitational waves opened the door further for this so-called multi-messenger astronomy. And now, with a highly publicized announcement Monday, astrophysicists have walked through that door.

Four times over the past two years, astronomers detected gravitational waves emanating from merging black holes. These detections were all made by scientists at the US-based Laser Interferometer Gravitational-Wave Observatory (LIGO). Its European counterpart, VIRGO, collaborated for the fourth detection. But with no light escaping black holes, astronomers using traditional telescopes – which view the universe in the electromagnetic spectrum – couldn't see anything.

The fifth detection was different; this time, the colliding bodies were visible. So astrophysicists at LIGO and VIRGO detected the motion from the collision, and astronomers saw the flash of light. Scientists are already using this multi-messenger detection to unravel long-standing mysteries about the universe, such as where heavy elements like gold, platinum, and uranium form.

"It is the Rosetta Stone for all of high-energy astrophysics," says Richard O'Shaughnessy, a theoretical gravitational wave astrophysicist and LIGO researcher at the Rochester Institute of Technology. "Superlatives understate the significance of this event, and I haven't figured out a way of conveying it, even to myself."

But what exactly is it that scientists are so excited about?

Some 130 million years ago, two neutron stars drawn into a gravitational dance with each other collided. This violent merger shook the fabric of space-time and sent fireworks of electromagnetic radiation out into the universe. On August 17, scientists detected the gravitational waves of this stellar event, and then less than 2 seconds later spotted a gamma-ray burst coming from the same location. Over the next few days, both Earth- and space-based telescopes picked up signals from across the electromagnetic spectrum emanating from this same event.

Neutron stars' incredible density made this event a particularly spectacular one. Neutron stars are more massive than the sun, but are just the size of a city. One teaspoon of material from a neutron star would weigh about 10 million tons. Because they are so dense, the gravity at the surface of a neutron star is billions of times stronger than the gravity at the surface of the Earth.

As the two super dense bodies spiral in toward each other, their masses produce very strong gravitational interactions. And because the neutron stars are so small, they can get very close to each other before merging, twirling around each other faster and faster as they approach each other. As they whip around, the gravitational fields of the pair of neutron stars interact, forming gravitational waves with a high-enough frequency that they can be felt on Earth.

But what are gravitational waves?

Ask a physicist and they'll tell you that gravitational waves are ripples in the fabric of space time. But what does that actually mean? Shane Larson, an astronomer at Northwestern University and a member of the LIGO Scientific Collaboration, says the explanation hinges on the law that nothing can travel faster than the speed of light.

According to Einstein's General Theory of Relativity, every object with mass bends space-time to some degree, and the greater the mass, the greater the distortion. This model explains why moons orbit planets and planets orbit the sun.

When an object moves – say, two neutron stars merge – gravity must necessarily change. And somehow information about that change in gravity has to get from that object to the other objects that experience its gravity. But because it can only travel as quickly as the finite speed of light, and that makes it impossible for things to react simultaneously, Dr. O'Shaughnessy explains, those gravitational changes propagate outward through the universe.

And this happens as quickly as it possibly could. In fact, the gravitational waves of the neutron star merger were detected on Earth first, even before the gamma ray burst.

"General relativity predicts that gravitational waves should travel at the speed of light," Dr. Larson says. That's because gravitational waves can travel through matter without slowing down.

Light, by contrast, interacts with the matter it encounters. It is scattered by matter, absorbed by matter, and reemitted by matter. In a collision of super dense neutron stars, Larson says, "the material at the core of the event is still so dense that the light can't get out as quickly as the gravitational waves … The photons and everything have to work their way out. And the energy that's energizing the matter has to work its way out to the outer layers where the photons that are emitted can reach us."

SOURCE:

NASA, Science

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Jacob Turcotte/Staff

Astrophysicists have long looked for neutron star collisions, as scientists knew the celestial bodies existed in binary systems. Astronomers had spotted short gamma-ray bursts before that they thought were the signal of such a merger, but they couldn't be sure until the gravitational wave detections combined with the electromagnetic observations were made in August.

"This has been the holy grail of high-energy astrophysics," O'Shaughnessy says.

Gravitational waves and the photons of electromagnetic radiation are not the only messengers from the universe. Astronomers have also used neutrino and cosmic ray observations to learn about the universe. But with the addition of gravitational waves, scientists will now be able to develop a more complete understanding of the cosmos.

Scientists are thrilled to find out what mysteries multi-messenger astronomy might unravel now that gravitational waves have been added to the toolbox, but they're also patting themselves and their colleagues on the backs.

"Really we should all just be outrageously proud and flabbergasted that we are capable of building instruments to make these measurements," Larson says. And, he says, this wouldn't be possible without the thousands of scientists, engineers, construction workers, telecommunications workers, and others who have collaborated to build the laser interferometers.

"The fact that we can all get together and make this instrument should make all of us look at every problem that we face and go, 'Wow, why can't we solve that problem?' " Larson says. "Science is a uniquely human endeavor. As far as I know, my cats are not down in the basement building gravitational-wave detectors."

[Editor's note: This story has been updated.]

The euphoria last month of the Kurds who moved forward with a controversial referendum on independence in Iraqi Kurdistan is quickly giving way to alarm as the central government of Iraq and powerful regional neighbors make good on their pledges to push back.

Predictably, conflict has flared in the oil-rich city and region of Kirkuk, long at the heart of tensions between the Erbil-based Kurdistan Regional Government and the central authorities in Baghdad. Iraqi federal forces moved in late Sunday and were quickly within city limits and in charge of key installations in the area, including two major oil fields.

Of special concern to the Kurds, analysts noted, was Baghdad’s growing coordination with both Turkey and Iran, all keen to make sure that any independent Kurdish state is thwarted. Another concern is that US policy in the region has been so focused on fighting the so-called Islamic State (ISIS) that other local and regional struggles have been overlooked.

Kirkuk, home to Arabs and Turkmen as well as Kurds, came under the control of the Kurdish peshmerga forces in the summer of 2014, when the Iraqi Army melted away in the face of a rapid advance by ISIS forces. It was the sun-kissed Kurdish flag rather than the black jihadist banner that finally rose triumphant over checkpoints and government installations of Kirkuk, but that did not end the dispute over who was rightly in charge of the city.

Kurdish authorities insisted on holding the Sept. 25 independence referendum in Kirkuk as well as other disputed territories that fall outside their autonomous region. The vote was vehemently rejected by Baghdad, with the Iraqi Supreme Court ruling that it was unconstitutional.

Turkey and Iran, concerned that an independent Kurdistan could inspire their own restive Kurdish minorities, also opposed it in the strongest terms and took some punitive measures.

In the conflict-prone region, only Israel stood out by voicing clear support for the Iraqi Kurds’ move, but analysts say it is unlikely to get involved if conflict ensues.

The international community largely opposed the poll even though Kurdish authorities said it was non-binding. Baghdad, however, has ruled out any dialogue with Erbil unless the referendum result is declared null. Its military offensive on energy-rich and strategic Kirkuk shows it is not willing to accept a fait accompli.

Divisions among Kurds

On Monday, the Kurdish flag was lowered at the provincial council building, signaling a shift in the balance of power that will be difficult for a large segment of Kurdish forces to stomach or reverse. But the September referendum and events in Kirkuk has also laid bare enduring divisions among Iraqi Kurds.

The opposition Patriotic Union of Kurdistan (PUK) had only supported the referendum when it became clear that it was moving forward no matter what. The quick fall of Kirkuk and limited bloodshed so far is attributed by Kurdish security officials and analysts to the withdrawal of PUK forces.

They were the dominant power in the city, and pulled out with their heavy weapons.

There have been reports of clashes and casualties as a result of the Kirkuk offensive, but no side has given a death toll. The development puts the United States, which has backed both Kurdish forces and Iraqi forces in the fight against ISIS, in delicate position and raises the specter of further escalation.

The Peshmerga General Command in Erbil issued a statement saying the attack was “a flagrant declaration of war against the nation of Kurdistan.” It warned the government of Iraqi Prime Minister Haider al-Abadi would pay a “heavy price” for initiating the conflict.

The statement slammed PUK officials for abandoning strategic areas to the mainly Shiite Hashd al-Shaabi forces and what it said were Iran’s Islamic Revolutionary Guards. And it decried the use of American weapons that had been given to Iraqi forces in the context of fighting ISIS.

US Sen. John McCain was more outspoken, expressing concern over reports that Iranian-backed forces were part of the assault and over the “misuse” of US weapons. The attack on Kirkuk began two days after the Trump administration slapped new sanctions against Iran’s Islamic Revolutionary Guard Corps, which is influential in Iraq.

“The United States provided equipment and training to the government of Iraq to fight ISIS and secure itself from external threats – not to attack elements of one of its own regional governments, which is a longstanding and valuable partner of the United States,” Senator McCain said.

Cracks in the alliance

Analysts have long been warning that US partners in the war against ISIS in Iraq were heading for a fight, a risk that has been exacerbated by the Kurdish referendum moving forward and the near-complete defeat of ISIS in Iraq and neighboring Syria.

Kurdish officials see no reason to cede territory that they helped protect from ISIS. As a Kirkuk front line commander, Kamal Kirkuki, put it to The Christian Science Monitor ahead of the referendum: “The only thing tying us to Baghdad is the fight against ISIS.”

Even though Mr. Abadi initially signaled that there would be no force used in the dispute with the KRG, Iranian-backed militias had been making threats against Kurdish peshmerga in Kirkuk in the wake of the referendum, says Ahmad Majidyar, director of the IranObserved Project at the Middle East Institute.

“(Kurdish President Masoud) Barzani didn’t think that the Baghdad government would send forces to recapture those disputed areas in Kirkuk,” says Mr. Majidyar. “The decision that the Baghdad government has taken has been taken in consultation with Iran and Turkey. That puts the Barzani leadership at a complete disadvantage.”

US officials tried to dissuade the Kurdish leadership from holding the referendum Sept. 25, but they were not successful, he adds. The main reason why this political tension is developing into a military one at a time that the US has significant presence and influence in Iraq, he says, is because Washington has focused exclusively on the fight against ISIS and overlooked political developments in Iraq and also neighboring Syria.

“It is Major General Qassem Suleimani, who is the head of Iran’s Quds force, who is mediating between the [Kurds and Baghdad] and shaping the future of Kirkuk,” he said. “It's not the United States.”

Risk of escalation

Analysts say that the fact that most of the peshmerga forces left their Kirkuk strongholds without a real fight is what prevented major bloodshed, but warn the underlying reasons that brought about this situation and the risks of escalation remain in place when neighbors are adamant to prevent an economically viable and independent Kurdistan.

Washington-based Middle East defense analyst Farzin Nadimi says that by taking Kirkuk and restoring its control over oil resources, Baghdad has increased leverage to push the Kurds into a negotiated settlement. It remains to be seen if Iraqi federal forces try to advance deeper into the Kurdish heartland.

“Iran wasted no time in condemning and taking action to oppose this referendum,” says Mr. Nadimi. “And they will continue to do so.”

While some criticize Mr. Barzani for overplaying his hand and pushing forward with the referendum rather than postponing it, others point out that no time would have been deemed auspicious by the international community to redraw the borders of the Middle East.

“Obviously they didn’t expect this level of opposition,” says Nadimi. “Iran and Turkey have had a very long history of Kurdish counterinsurgency, and they would by no means accept an independent Kurdistan on their borders that would be a model for their own Kurdish population.”

Courtesy of Sam Murray

Jasmyn Elise Story walks on a cobbled street while on vacation in 2016 in Norwich, England. Ms. Story is a restorative justice facilitator working with students in Brooklyn, NY. Having had a dissatisfying experience with the criminal justice system after reporting being raped at 18, she believes restorative justice holds potential for addressing sexual assault.

This story was updated on Oct. 16.

Jasmyn Elise Story is one of those rare people whose rape case got as far as consideration by a prosecutor.

She was 18, about to move from her home in Atlanta to London to attend a first-year college abroad program.

Over the course of the investigation, she says, she had to tell at least five different officials what had happened: How a man who knew some of her friends took her behind a house during a party when she was incapacitated by narcolepsy, how she left in shock and the next day went to the police and the hospital to get a rape kit.

After one year, that “came to nothing,” she says of the criminal case.

A female prosecutor told her they had decided not to go forward because they didn’t want her to be subject to a “he-said, she-said” trial, with the defense dragging her through the mud, Ms. Story says.

She had reported the crime out of a sense of duty, hoping to prevent future assaults. “I was hurt that she didn’t see that I was doing it for something bigger than myself.”

In college, Story started learning about restorative justice, and a light turned on.

Restorative justice encompasses a range of practices – from facilitated conferences between someone who’s been harmed and the person who did it, to community circles weighing in on how that person can make amends.

“Everything about it spoke to the needs that I had,” Story says. She and fellow survivors she got to know – many of whom had never reported the crimes – saw in it so much promise. 

An option, but complicated

Restorative justice can be “a process that truly meets the need to be heard, the need for accountability, the need for some type of attempt at repair…, not just for us but for our family members, for our partners … because it does ripple out,” Story explains.

She is among a small but growing number of survivors, advocates, and researchers who are pushing to explore restorative justice as a tool to respond to sexual assault on college campuses. It's an idea that brings together two currents in today's society: that of alternative forms of justice and the growing awareness and intolerance of gender-based harassment and violence – punctuated by news of mounting accusations against former Miramax head Harvey Weinstein.

For about six years, most college officials have considered restorative justice off limits because it fell under strict restrictions placed on “mediation” or “informal resolution” for many forms of sexual misconduct, as outlined in guidance to Title IX enforcement by the US Department of Education. 

A door opened to reconsider such practices last month when, in a controversial move, Secretary of Education Betsy DeVos lifted much of the Title IX guidance on sexual misconduct. (On Oct. 12, Democrats in Congress introduced a bill to reverse that move, and turn the previous Obama-era guidance into law.)

The issue is still complicated for sexual assault survivors: Advocacy groups, such as End Rape on Campus and Know Your IX, argue that opening the door to options other than a formal investigation and disciplinary hearings is one of numerous shifts that could signal to campuses that they are free to take sexual violence less seriously. 

At the heart of the debate are several questions: Is an adversarial campus discipline process the only way to symbolize that sexual violence won’t be tolerated? Or has higher education made enough progress toward taking it seriously that it can now consider new forms of justice? Can different approaches operate side-by-side and start to get more at the roots of the problem?  

Mediation's mixed reviews

Colleges’ former track record of wanting to handle sexual misconduct quietly is what led people like Laura Dunn to fight for the Title IX restrictions in the first place.

“I was encouraged to write a letter to two men who gang-raped me about how I felt,” says Ms. Dunn, founder of SurvJustice, a nonprofit in Washington that offers legal assistance to people reporting campus sexual assaults. 

She’s concerned that the current federal administration will “allow a variety [of informal responses]… whether supported by research and best practice or not, which is dangerous. That puts us back over 20 years.”

The Education Department did not respond to Monitor requests for comment.

Colleges had problems trying to mediate sexual assault, because “mediation is a process where there’s no assignment of guilt,” says David Karp, a sociology professor at Skidmore College in Saratoga Springs, N.Y., and head of the Campus PRISM Project, a collaboration of researchers and practitioners interested in restorative justice for sexual misconduct. 

By contrast, he says, “restorative justice’s starting place is, How do we create the conditions in which it’s possible for an accused student to admit responsibility for the harm they have caused?”

Professor Karp knows restorative justice is often perceived as “soft.” It actually “does disapproval in a different way,” he says.

It's not just about a quick-fix or an apology. It can take months for participants to prepare with the help of a trained facilitator, and those who have admitted responsibility have to listen to how the lives of victims and others have been impacted and collaborate with the group on what the remedies will be. 

Participants  “often say, ‘I would rather have gone to jail than sit face to face with the person I have harmed and truly acknowledge what I’ve done. I would rather hide from the truth,’ ” Karp says.

Broader impacts addressed

Story is now a restorative justice facilitator with middle-schoolers in Brooklyn, N.Y., and a participant in Campus PRISM. She wonders how different her life could have been if restorative justice had been an option in her case.

Knowing nothing about her attacker’s history, she got tested every three months for HIV for years. Her family had to visit her in other cities because she was afraid of spending time in her hometown where he could be. Some of her relationships, including with the best friend who had brought her to the party, were broken almost permanently, she says. 

The criminal justice system offers very little opportunity, if any, to address those broader impacts, she says. “The only support was a victim advocate handing you a sheet of paper telling you what the state of Georgia would pay for.” 

Researchers have had few opportunities to see restorative justice applied to sexual assault. One exception was a project called RESTORE in Pima County, Ariz. Prosecutors screened cases – both misdemeanors and felonies – and allowed some victims and “responsible persons” (their term for perpetrators) to opt in. RESTORE took place between 2003 and 2007 and was studied by Mary Koss, a public health professor at the University of Arizona, Tucson, and a participant in Campus PRISM.

Out of 22 cases in which both parties volunteered, 20 made it to the conferencing stage after extensive preparation. Other people impacted by the crime were able to share their experiences as well, and the plans for how the responsible person would redress the harm were supervised for one year.

Professor Koss found that 80 percent of responsible parties completed the program and only one reoffended during the follow-up year – an older person showing signs of dementia. Victims felt safe and highly satisfied, although not all of them felt that justice had been done.

SOURCE:

Koss, Mary P., "The RESTORE Program of Restorative Justice for Sex Crimes: Vision, Process, and Outcomes," Journal of Interpersonal Violence (http://journals.sagepub.com/stoken/default+domain/IUvQTViYhSpGZkxsmmXE/full)

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Jacob Turcotte/Staff

Prevention or naiveté?

At colleges, people also have to think about what happens when a suspended student comes back, says Michelle Carroll, director of campus projects for the New York State Coalition Against Sexual Assault.

Restorative justice circles could “address community-wide issues that lead to sexual violence,” Ms. Carroll says – with people examining gender norms, consent, or a culture of binge drinking. “In that sense, restorative justice can be preventative as well as responsive.”

Yet some consider that perspective naive, and say sex crimes are so different from other types that a restorative model won’t transfer.

It would be “dangerous to the survivor as well as to the college community at large, and it certainly sends the wrong message to the perpetrator,” says Michael Dolce, a survivor of childhood sexual assault and a Florida-based lawyer who heads up the sexual assault practice group for the law firm Cohen Milstein.

Sex offenders are often skilled at manipulating their victims and others into believing that they are remorseful, Mr. Dolce says, but the dehumanizing nature of their crime, and the high rates at which they reoffend, should prompt deep skepticism. Instead, there has to be a zero-tolerance message, he says.

Story acknowledges she’s not an expert on sex offenders, but in response to such concerns she poses a question: “With the current system that we have, with low reporting rates … are we actually catching these people anyway?” Maybe, she says, “providing a process that is encouraging and inviting to survivors [could be] a shift in our culture,” and could lead to better ways of reforming offenders. Restorative justice, she says, "is about the community coming together to consider what those sanctions are.”

Minutes before kickoff for the first round of Sunday’s football games, the National Football League website carried two unusual features.

Below the usual fare of game-day predictions and fantasy matchups were slideshows of Baltimore players visiting schools with Baltimore police and of Miami Dolphins and the league commissioner doing the same with police in their city.

It was a jarring bit of social activism for a sports league site on game day. The slideshows are the NFL’s tentative steps to try to solve its “anthem problem.” Team owners want black players to stop kneeling during the playing of the national anthem, which has drawn the ire of the president, angered many fans, and threatens to turn off sponsors and advertisers. They’re also leery of alienating activist players, who have been protesting police treatment of African-Americans.  

It’s a tough challenge, say both industry analysts and sports-and-society experts. Still, if the league and players can work together to find the right message, it would offer a unique moment when sports could help bridge America’s racial divide.

On Tuesday, NFL owners gathering in New York for their two-day annual meeting will consider what to do.

“There will be genuine, interesting, positive possibilities,” says Paul Haagen, co-director of the Center for Sports Law and Policy at Duke University. “If [the players] have that credibility and the league will work with them, then you greatly increase the chances that there is a way out of this.”

The potential to overcome rifts

There are times when sports have bridged racial divides. That’s what happened when America’s Joe Louis toppled German boxer Max Schmeling in 1938 and South Africa defeated New Zealand in the 1996 Rugby World Cup. Sometimes they bridge international divides, as the Olympic Games aim to do.

Whether the NFL – a $14-billion-per-year marketing machine as well as a sports league – can do the same is open to question.

“Unfortunately, this is not a unifying moment,” Glenn Bracey, a Villanova University sociologist who studies racism and social movements, writes in an email. “The NFL is prioritizing profit over black people’s lives and addressing racist policing.”

In many ways, the league is ill-positioned to address social justice. Millionaire players and multimillionaire owners don’t normally identify with the poor. And while the NFL (alongside pro basketball) is arguably the most racially integrated of industries, it remains very hierarchical: 70 percent of the players – and none of the team owners – are black. And many owners lean conservative. Seven of them donated at least $1 million each to then President-elect Donald Trump’s inaugural committee.

But in other ways, the NFL offers a unique platform for bridging divisions. The sport is followed by rich and poor, black and white. Many of its teams are based in cities with persistent allegations of racial injustice. Many NFL players grew up in neighborhoods that experience those challenges first-hand, and they continue to give back to them.

John Locher/AP

Las Vegas police Undersheriff Kevin McMahill watches body camera footage during a press conference on accusations by Seattle Seahawks player Michael Bennett, Wednesday, Sept. 6, 2017, in Las Vegas. Bennett has accused Las Vegas police of racially motivated excessive force in a Twitter posting saying he was threatened at gunpoint following a report of gunshots at an after-hours club at a casino-hotel.

These factors may explain why, outside the limelight of the anthem protests, NFL players and owners have begun to explore how they might help each other address such concerns.

Last year, as San Francisco quarterback Colin Kaepernick gained nationwide attention by not standing as the national anthem played, former teammate Anquan Boldin (then with the Detroit Lions) tried a less confrontational approach. A year after his cousin was killed by a policeman who now faces charges of manslaughter, he reached out to other players to form what would become the Players Coalition to address social injustices.

A letter to Goodell

In November they met with members of Congress to voice their concerns. In August, Mr. Boldin and three other players sent league commissioner Roger Goodell a 10-page letter with recommendations for what the league could do to support their efforts.

Although the NFL has ignored outside pleas to support criminal justice reform, Mr. Goodell has been more open to the players’ requests.

When one of the letter’s authors, Michael Bennett of the Seattle Seahawks, was handcuffed by Las Vegas police in August and claimed “abusive conduct” and racial profiling, the commissioner issued a statement Sept. 7 saying Mr. Bennett represented “the best of the NFL…. We will support Michael and all NFL players in promoting mutual respect between law enforcement and the communities they loyally serve and fair and equal treatment under the law.”

On Sept. 12, Goodell accepted the players’ invitation to a “listen and learn tour” with Philadelphia police, community groups, public defenders, and policy leaders. Boldin (who had retired so that he could devote his time to the cause), Philadelphia Eagles players Malcolm Jenkins and Torrey Smith, and owner Jeffrey Lurie also attended.

All this happened before President Trump waded into the issue last month with several tweets and crude language, calling on the owners to fire any player who didn’t stand for the anthem.

The Trump challenge

That’s when things began to get muddled – and tense. The NFL’s initial response was solidarity with the players. On the Sunday after the president’s initial tweets, the commissioner and owners locked arms with players or took a knee before the anthem at several games.

As many fans began to voice their support for the president’s position, league owners began to backtrack. Although Mr. Trump gains by choosing divisive issues to fire up his base, the team owners’ business strategy is to avoid such controversies and appeal to as many fans as possible, says Mr. Haagen at Duke.

“They walked into a trap,” says David Johnson, head of Strategic Vision PR Group, a national public relations and branding company in greater Atlanta. “They elevated [the anthem protests] far beyond what it should have been.”

Set to meet this week, the owners now face the challenge of how to move beyond the protests. Some owners reportedly want to force the players to stand at attention. But news reports suggest the league is more interested in working with the players to find a solution. In a letter to the teams, Goodell said owners would discuss a plan that “would include such elements as an in-season platform to promote the work of our players on these core issues.”

That echoes in part what Boldin and the Players Coalition are asking for.

“To counter the vast amount of press attention being referred to as the ‘national anthem protests,’ ” the players’ August letter called for “November to serve as a month of Unity for individual teams to engage and impact the community in their market.”

Mr. Johnson suggests the NFL choose a white and a black player to deliver the message that the league and players come up with.

Players with proposals 

But the players in the coalition want more. Their letter asked for the NFL’s support in five areas of criminal justice reform: 1) police transparency/accountability when poor people are shot; 2) decriminalization of poverty so that people aren’t jailed for failing to pay minor traffic and other fines; 3) bail reform so that they don’t stay incarcerated for minor offenses; 4) a reduction of mass incarceration by eliminating mandatory minimum sentences and juvenile life parole; and 5) passage of Pennsylvania’s Clean Slate Act, which would automate the sealing of criminal records of people with older, minor offenses (so they can get jobs).

Support could come in the form of funding for various community initiatives or advocacy by the owners for reforms at the local or national level, according to the letter.

The NFL has shown it can raise money and awareness for causes. Although many fans roll their eyes at the pink accoutrements players wear on the field for breast cancer awareness, the league has raised more than $18 million for the American Cancer Society since 2009. Its public service announcements about domestic violence have raised awareness of the issue.

But criminal justice reform may prove more difficult to rally around, pitting conservative law-and-order advocates against social- and racial-justice liberals. And many are skeptical the league can address such an explosive topic, especially given that no team has hired the talented Mr. Kaepernick since he became the catalyst for the protests. The free-agent quarterback has filed a grievance accusing the NFL of colluding against him – and if successful, the action would threaten the league’s all-important collective bargaining agreement.

“Sports reflect society; the divisions, inequalities, and injustice that permeate society as a whole can be seen within the sporting landscape,” David Leonard, who teaches cultural and race studies at Washington State University at Pullman, writes in an email. “Sports also has potential to transform and lead us and society as a whole to a better tomorrow.”

Which path the NFL takes will be revealed in the coming weeks.

REUTERS

A member of Iraqi federal forces holds the Kurdish flag upside down after Iraq's troops seized Kurdish positions in Kirkuk, Iraq, Oct. 16.

When Woodrow Wilson declared nearly a century ago that any group of people are entitled to “self determination,” he was not very clear on the meaning of “self,” or what is the essential identity needed to bind a nation. That is still the case in two of the world’s most tension-filled attempts at secession: Kurdistan in Iraq and Catalonia in Spain. After the two regions held contentious votes on independence in the past few weeks, the differences within each region remain almost as large as those with the mother country that opposes a breakup.

The Kurds provide a good example of the need for a people to look beyond a physical or cultural identity in trying to form a new country. As an ethnic minority spread across several Middle East countries, the Kurds have long sought a homeland. They were denied one by the artificial borders drawn for the region by the British and French after World War I and the collapse of the Ottoman Empire.

Yet despite their long-suffering hope, the Kurds still have not resolved their internal divisions over principles of governance, relations with neighboring peoples, or the use of violence. Those differences were on clear display Oct. 16 when Iraqi forces swiftly took back the city of Kirkuk, which the Kurds had controlled since 2014 with the advance of Islamic State (ISIS) in Iraq. One Kurdish faction, called the KDP, fought the Iraqi forces while another, known as the PUK, decided not to resist. The KDP even accused the PUK of assisting the invasion.

It did not help, of course, that the United States and many other countries oppose the Kurdish drive for independence. The defeat of ISIS and support for Iraq’s fragile government remain the world’s top priorities. And even though Iraqi Kurdistan voted overwhelmingly for independence on Sept. 25, its people have not shown enough unity to earn backing for statehood.

In Catalonia, the Oct. 1 referendum on independence also exposed divisions over governance and tactics. Only 43 percent of people in Catalonia cast ballots in the vote, hardly a high enough threshold to justify splitting up Spain and sending the European Union into a crisis over micronationalism. In recent days, Barcelona has seen both pro- and anti-secession protests. Polls indicate a preference only for greater autonomy, not a new country.

To form a new country requires a clear “we,” one not derived simply from resentment toward others but based on shared values and common social goals. National identity relies on people to show humility and respect toward one another. When French diplomat Alexis de Tocqueville visited the US a few decades after its independence, he noted that America’s greatness lies “in her ability to repair her faults.”

Issues of sovereignty are critical in many places, from Scotland to Cameroon. But so is the need for a people to demonstrate harmonious self-governance before seeking the “self-determination” of independence.