Lawyer UNIVERSITY OF ST. THOMAS SCHOOL OF LAW WINTER 2020 ST. THOMAS
BUILDING A CULTURE OF BELONGING OUR PANDEMIC JOURNEY
UNIVERSITY OF ST. THOMAS SCHOOL OF LAW INVESTITURE OATH
Law students in the class of 2023 recite the St. Thomas School of Law Investiture Oath presented by Minnesota Supreme Court Justice Paul Thissen during orientation in August.
“As a student at the University of St. Thomas School of Law and a member of this law school community, I will strive for excellence in my professional preparation by learning the law and the lawyer’s skills to the very best of my ability, by taking pride in my work, and by taking responsibility for my actions. I will strive for integrity and balance in my personal and professional lives by connecting my faith and personal morality to the conduct expected of me as a law student, by maintaining my physical and spiritual health, and by valuing both personal and professional relationships. I will seek social justice by serving the local, national or global community with special attention to the needs of the poor, and by recognizing the worth and dignity of every person I encounter.”
Published by the University of St. Thomas School of Law 1000 LaSalle Ave. Minneapolis, MN 55403 (651) 962-4892 lawschool@stthomas.edu stthomas.edu/law Senior Marketing Program Manager and Editor Carrie Hilger Assistant Editor Amy Carlson Gustafson Designer Carol Garner Photographers Mark Brown Liam James Doyle Contributors Lisa Montpetit Brabbit Gloria Sonnen Myre Brant Skogrand Robert Vischer Front cover St. Thomas Law was pleased to welcome 158 new J.D. students this year for a socially distanced on-campus orientation. Photo by Liam James Doyle Back cover Photo by Carrie Hilger ST.THOMAS Lawyer Winter 2020 – Volume 14, Issue 1
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Photo by Athena Hollins ‘11 J.D.
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A Message From the Dean
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News
The School of Law’s Pandemic Journey Restorative Justice Grows at St. Thomas
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Faculty Profile: Robert Kahn
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Actualizing Diversity and Inclusion 26 Giving Impact: Scholarships 31 Class Notes 32
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The University of St. Thomas is an equal opportunity educator and employer. St. Thomas does not unlawfully discriminate, in any of its programs or activities, on the basis of race, color, creed, religion, national origin, sex, sexual orientation, family status, disability, age, marital status, status with regard to public assistance, membership or activity in a local commission, genetic information or any other characteristic protected by applicable law. stthomas.edu/eostatement
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AT ST. THOMAS LAW, building a culture of belonging is more important than ever.
The fall semester has certainly looked different in 2020 than in years past. Because of social distancing requirements, we split the entering class into two 80-student groups for orientation. One group could gather in the atrium at a time, with students sitting at their own individual tables, masked and ready for a new adventure. With COVID-19 capacity restrictions, large classrooms only fit 38 students instead of our usual 90, and students who have opted for online learning are visible on classroom screens to create one synchronous learning environment. Downtown Minneapolis also looks different this fall, with the pandemic and social unrest combining to turn our normally bustling neighborhood into one that has far fewer people than in previous years. One thing hasn’t changed, though: our commitment to community. We know that our students will thrive when they feel connected to others, when they’re learning in the context of strong, mutually supportive relationships. This is an especially important recognition now, when we’ve all endured months of sheltering at home and less time with loved ones beyond our immediate families. Exacerbating the sense of alienation is our society’s reluctant reckoning with the many ways in which racial disparities continue to plague our country. The death of George Floyd has placed our city at the center of that painful journey, and our students are by no means immune from that pain. We are walking the difficult journey of 2020 in relationship to one another. Our students – even our 1Ls who began law school masked and six feet apart – are connecting. The noise level in class before I begin teaching has risen steadily over the weeks as students get comfortable with new protocols and new friends. Student organizations are being creative and intentional about hosting COVID-friendly events that bring us together. Faculty are reaching out via Zoom office hours and small-group gatherings to get to know the newest members of our community. And through it all, our alumni and other supporters have remained essential to our community-building work: • Your financial gifts empowered us to make emergency cash grants to students experiencing hardship because of the pandemic. • Your service as mentors provided each one of our students with a meaningful and engaging professional relationship. • Your contributions to our racial justice action plan – and your help in recruiting our most racially diverse class ever this fall – pushed us another step forward on a long journey toward being the community we aspire to be. • Your encouragement to take attorney well-being seriously is helping equip our students to care for themselves and leading the profession to become more humane and hospitable. This issue of St. Thomas Lawyer magazine reflects some of the many ways in which we are all in this together. The challenges of this year have been powerful reminders that we wouldn’t have it any other way. On behalf of our students, thank you for the gift of community.
Robert K. Vischer Dean and Mengler Chair in Law University of St. Thomas School of Law
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SCHOOL OF LAW NEWS
OSLER AND STUDENTS FIGHT TO THIN PRISON POPULATION DURING PANDEMIC
In April, the Minnesota Department of Corrections (DOC) announced a program to use Conditional Medical Releases (CMRs) to reduce its prison population due to the coronavirus. They called upon law professors Mark Osler of the University of St. Thomas, Perry Moriearty of the University of Minnesota and Jon Geffen and Brad Colbert of Mitchell Hamline to help develop an application and review process. The four professors were optimistic about the program and even coordinated about 25 of their students to work a helpline and assist inmates with their applications. The DOC received more than 2,300 applications for CMRs and determined 729 of those applicants suffered from a medical condition that put them at a high risk if they contracted COVID-19. As of September, the DOC had released 143 individuals, a number Osler views as disappointing. “While it certainly could have been worse, we could have and should have done better,” said Osler and Geffen in an op-ed they co-authored for the Star Tribune newspaper. “This failure resonates deeply in us,” they said. “We invested into this project that which is most important to us: our students. We work hard so that they will see and support a justice system that is worth being a part of. We asked them to learn the stories of those in prison, to listen to hard truths, and they did. It is disappointing to know that the outcomes they are seeing represent a devaluing of life that should be beneath us as Minnesotans.”
Mark Osler
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SCHOOL OF LAW NEWS
BERG AND RELIGIOUS LIBERTY CLINIC INFLUENTIAL IN SUPREME COURT DECISION
On June 30, the Supreme Court decided the religious freedom case, Espinoza v. Montana Department of Revenue . In the majority’s opinion, Chief Justice John Roberts made three citations to the casebook Religion and the Constitution (2016), co-written by St. Thomas Law Professor Thomas Berg . Berg’s involvement in Espinoza dates back to 2015, when he and Jennifer Tripp ’16 J.D. , then a student lawyer in the St. Thomas Religious Liberty Appellate Clinic directed by Berg, filed a memorandum letter with the Montana Department of Revenue.
When the case made it to the U.S. Supreme Court, the clinic filed a supporting amicus brief co-drafted by Berg and then-student Scott Fulks ’19 J.D. Berg went on to co-author a brief with Professor Douglas Laycock of the University of Virginia Law School, which was filed on behalf of multiple religious organizations including the United States Conference of Catholic Bishops, the Orthodox (Jewish) Union and the Christian Legal Society. The brief was cited by Justice Brett Kavanaugh during oral argument in January 2020.
Thomas Berg
Scott Fulks
SCHILTZ FOUNDS NEW SPECIAL EDUCATION CLINIC
Professor Elizabeth Schiltz ’10 CSMA has founded the law school’s 14th legal clinic, the Special Education Clinic, which will be offered this spring. The Special Education Clinic will provide pro bono assistance to elementary and secondary students who have qualified for special education services pursuant to an individualized education program (IEP), with a particular focus on students of color with emotional behavioral disorder (EBD) diagnoses. “It’s a small service that we will be able to provide to our community … being a place where parents will get guidance through the IEP process who might not otherwise have the time, luxury or resources to hire lawyers to work them through it,” Schiltz said. Student lawyers in the clinic will represent clients by reviewing IEP plans to ascertain compliance with the Individuals with Disabilities Education Act and ensure documented progress toward identified goals. They will also work with parents and may attend annual IEP meetings to provide support and help negotiate more effective plans. Clients will be referred to the clinic through community partners, and not through self-referrals.
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SCHOOL OF LAW NEWS
NEW RACIAL JUSTICE INITIATIVE TO BE LED BY DR. YOHURU WILLIAMS In June, Dr. Julie Sullivan announced the formation of the Racial Justice Initiative at the University of St. Thomas. The initiative will be led by Dr. Yohuru Williams , former dean of the College of Arts and Sciences, who now holds a joint appointment in the Department of History and the School of Law. Williams is a noted scholar of the civil rights and black power movements, an education activist and frequent public commentator. He is also the author, editor or co-editor of numerous books. The St. Thomas Law community is already well acquainted with Williams, as he has been a periodic guest speaker and panelist at law school events. He also previously co-taught a Race, History and American Law seminar with Dean Robert Vischer. Williams and Vischer will co- teach this course again in the spring.
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SCHOOL OF LAW NEWS
Law professor Gregory Sisk (right) and visiting assistant professor of Catholic Studies David P. Deavel pose for a photo in early March 2020.
SISK TAKES OVER AS CO-DIRECTOR OF MURPHY INSTITUTE This fall, Professor Gregory Sisk , Laghi Distinguished Chair in Law, and David P. Deavel , editor of the St. Thomas LOGOS Journal and visiting assistant professor of Catholic studies, took over as co-directors of the Terrence J. Murphy Institute for Catholic Thought, Law and Public Policy. Previous co-directors, Herrick Professor of Law Elizabeth Schiltz ’10 CSMA and Department of Catholic Studies Professor Robert Kennedy, PhD, have stepped away after nearly a decade leading the institute. “We have big, big shoes to fill, given the tremendous contributions made by Lisa, Bob and other co-directors over the years. If we succeed as successor co-directors, it will be because we built on the firm foundation our predecessors have laid,” Sisk said. “While I am sure that David and I will make our own mark in the years to come, I am excited at the outset to carry through on various initiatives already underway.” Learn more about the Murphy Institute and register for upcoming events at stthomas.edu/murphyinstitute .
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SCHOOL OF LAW NEWS
FACULTY FORM WORKING GROUPS ON POLICING Professors Michael Paulsen , Rachel Paulose and Rachel Moran formed a faculty working group this past summer to discuss issues around police reform. The group is focusing on issues impacting police misconduct and accountability, with a particular eye toward issues that affect communities of color. The group’s purpose is to develop and propose ideas for specific changes in legal doctrines, policies and practices related to race and policing. This summer, the St. Thomas Community Justice Project, led by Professor Carl Warren , began coordinating a working group on the topic of police brutality. The endeavor brings together students, staff and faculty to, among other things, identify and evaluate potential solutions to policies, practices and conditions that facilitate or perpetuate police brutality against Black Americans, including the disproportionate use of deadly force. The group will also share and disseminate information about possible action steps that can be taken to accomplish positive change on these issues.
Rachel Moran
Rachel Paulose
Michael Paulsen
Carl Warren
The St. Thomas Center on Race, Leadership and Social Justice has announced the creation of a Law and Public Policy Scholars program. The Center’s aim is to work with an emerging diverse scholar each year to produce innovative and cutting-edge research on civil rights and human rights issues, with a goal to inspire the scholars to become practitioner- scholars in faculty and teaching roles. CENTER ON RACE, LEADERSHIP AND SOCIAL JUSTICE ESTABLISHES SCHOLARS PROGRAM
Darlene Fry
Dr. Darlene Fry ‘02 EdD , executive director of the Minnesota-based Irreducible Grace Foundation, was selected as the program’s first scholar. Last year, Fry and the Center’s founder and director, Dr. Artika Tyner ’06 J.D., ’10 MA, ’12 EdD , collaborated on the journal article, “Iron Shackles to Invisible Chains: Breaking the Binds of Collateral Consequences,” which has been published by the University of Baltimore Law Review. The program’s next Law and Public Policy Scholar is alumna, artist, lawyer and entrepreneur Tisidra Jones ‘12 J.D.
Tisidra Jones
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SCHOOL OF LAW NEWS
Each year at its Mission Awards event, the School of Law honors students, faculty, staff and alumni who exemplify the school’s mission, vision and values. At this year’s virtual awards ceremony in April, Ben Kwan ‘13 J.D. received one of two Dean’s Awards for Outstanding Teaching. Eddie Ocampo ‘18 J.D. was presented with a Living the Mission Award. During the ceremony, Dean Vischer described ALUMNI RECEIVE MISSION AWARDS
Ben Kwan
Eddie Ocampo
Kwan, who teaches the mentor externship course to LL.M. in U.S. Law students, as “a source of knowledge, a trusted friend and mentor, and an oasis of calm in a year of foreign study that can often be marked by anxiety and uncertainty. His students have described him as a fantastic teacher. We are grateful for his willingness, not just to share knowledge, but to invest himself in building strong relationships with our international students.” “Eddie started living the mission well before law school, serving in the United States Marine Corps,” Director of Alumni Engagement and Student Life Gloria Myre ‘07 J.D. said when presenting Ocampo with his award. “Now as an attorney, he works on behalf of veterans through the Minnesota Assistance Council for Veterans legal clinics where he navigates veterans through their employment issues, and drafts wills, powers of attorney and healthcare directives. In addition, Eddie joined colleagues from Fredrikson and Byron to travel to Texas in 2019 to provide pro bono assistance to women seeking asylum at the border.”
PATENT APPLICATION DRAFTING TEAM WINS NATIONAL CHAMPIONSHIP
Kiersten Idzorek ‘20 J.D. , Mark Landauer ‘20 J.D. and 3L Mary Susan Gerber took first place in the 2020 National Patent Application Drafting Competition last spring. The team defeated groups from Creighton University, University of New Hampshire, University of Baltimore and Southern University Law Center to take top honors at the competition. This is the first year that St. Thomas has competed in the competition.
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SCHOOL OF LAW NEWS
INTRODUCING … SUPRA SOCIETY!
Liz Drotning Hartwell ‘06 submitted the winning entry in this spring’s “Sustainer Program Naming Contest.” The sustainer program, through which alumni can make automatic monthly or annual gifts to the law school, will now be known as the Supra Society. The word supra is Latin for “above” and is a legal citation signal used when a writer wants to refer a reader to an earlier-cited authority. Become a member of the Supra Society at stthomas.edu/ law/give .
ALUMNI LEADING AFFINITY BAR ASSOCIATIONS FOR 2020-2021 Three St. Thomas Law alumni are leading Twin Cities professional organizations this year!
TOMMIE GIVE DAY Thank you to everyone who participated in Tommie Give Day 2020!
Uzodima Franklin Aba-Onu ‘10 , a shareholder at Bassford Remele, is president of the Minnesota Association of Black Lawyers.
Your gifts support scholarships, experiential learning, legal clinics, externships, research, public interest work and much more. We appreciate you!
Zuri Balmakund Santiago ‘14 , assistant attorney general for the Office of the Minnesota Attorney General, is president of the Minnesota Hispanic Bar Association.
Breia Schleuss ‘08 , a partner at Faegre Drinker Biddle & Reath LLP, is president of Minnesota Women Lawyers.
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admissible hearsay Overheard in and around the University of St. Thomas School of Law
“The War on Drugs is effectively over. Drugs won.” – PROFESSOR MARK OSLER IN THE JOURNAL ARTICLE, “WHAT WE GOT WRONG IN THE WAR ON DRUGS,” THAT HE AUTHORED FOR A FORTHCOMING ISSUE OF THE ST. THOMAS LAW JOURNAL.
“This is an opportunity to engage people and to have a conversation on, What does that mean to you? instead of shutting down on lines of partisanship or not understanding.” – DR. ARTIKA TYNER IN MPLS.ST.PAUL MAGAZINE ARTICLE, “DEFUND THE POLICE?”
“If white evangelicals respond to George Floyd’s killing with a deeper dive into the painful history of this fallen world we share, we won’t all embrace a single worldview, but we will share a much firmer grasp of the problem. And that’s not a bad place to start.” – DEAN ROBERT VISCHER IN AN OP-ED FOR THE RELIGIOUS NEWS SERVICE, “WILL THE DEATH OF GEORGE FLOYD SWAY WHITE EVANGELICALS ON RACE?”
“I use music at work by writing and singing lyrics for constitutional law class. As an example, for the growth of presidential power, the song is ‘Truman Reagan Bush Obama Power Concentration.’ (To the tune of ‘Supercalifragilisticexpialidocious.’)” – PROFESSOR TOM BERG , WHO SINGS WITH THE GILBERT & SULLIVAN VERY LIGHT OPERA COMPANY AND TWIN CITIES COMMUNITY GOSPEL CHOIR, IN A Q & A FOR MINNESOTA LAWYER NEWSPAPER’S REGULAR COLUMN “BREAKING THE ICE.”
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The School of Law’s Pandemic Journey
By AMY CARLSON GUSTAFSON
Photos by Liam James Doyle
A s soon as classes shifted to distance learning last spring due to COVID-19, Scott Swanson started making phone calls. His goal was to make sure all students in St. Thomas law school knew that faculty and staff cared about them. As he began connecting with students, he soon discovered he wasn’t alone in his endeavor. “The law school is very much a community, and we needed to reach out to people,” said Swanson, director of academic achievement. “I began going through the list of students and contacting 10 people a day. I discovered other [St. Thomas Law] people were doing similar things; it was clear for a whole bunch of us that this needed to be done. We didn’t need a meeting to figure that out.” In March, Dean Robert Vischer had to prepare his school for a quick transition to remote learning. Tackling the technical logistics was necessary and maintaining a culture that values personal connections was vital. When classes resumed in August, faculty and most students chose in-person learning, while some
remained online. Those on campus were required to wear a face covering and adhere to social-distancing guidelines. “We really believe that our mission as a Catholic law school calls us to transcend what the traditional, very individualized competitive approach to law school has been, and really try to figure out what legal education looks like in a place that takes community seriously,” Vischer said. “The pandemic has put pressure on that. How do you build a community for new members entering in a pandemic? How do you maintain community for returning students, faculty and staff?” The answer? Through a community-wide effort. KEEPING THE COMMUNITY CONNECTED The Law Student Government Association responded last spring by creating and supporting a strong online presence with events and activities, including virtual happy hours, Tik Tok video challenges, cooking contests, pop culture discussions and many other events.
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FEATURE: OUR PANDEMIC JOURNEY
When people returned to campus, the challenge was to find ways for them to meet face-to-face, whether it was scheduling outdoor get-togethers or making use of the balconies as meeting spaces. During orientation week, extra relationship-building time was included in the schedule. “One of the first things I say in my opening remarks when students come on campus is that the most important thing they’ll take from law school is not going to be their knowledge of the law; it’s going to be the friendships that they take with them into their career,” Vischer said. A FOCUS ON ACADEMICS Along with community building, academics are always top of mind at St. Thomas Law. When courses moved online in March, law librarians equipped everyone with the skills needed to use Zoom, while faculty and staff worked to reimagine what classes would look like. Grades were also changed to high pass, pass or fail. While the switch to online in spring was quick, during the summer a more intentional plan for fall semester was developed. Social-distancing guidelines led to developing smaller class sizes and moving more courses online. Technology was added in classrooms to connect online learners. The school also structured fall semester to end in-person learning by Thanksgiving, with final exams being offered remotely. “We’re trying to move toward a setting where we still combine that understanding and compassion for students by letting any student who needs to work fully online do so,” said Joel Nichols , associate dean for academic affairs. “We want to make sure to facilitate that. Also, the majority of students are in person and want to be in person when they can. We need to make sure there’s academic rigor and that we’re preparing them even now in hard times for the licensing exam that will come in nine months or nearly three years for some. There’s that dual focus of how do we pull off our educational mission and legitimate pedagogy in appropriate, rigorous ways, while being sensitive to people who are still living in a tough situation.” One of the biggest challenges for fall was simultaneously instructing in-person and online students. Faculty needed to engage equally with all
“The executive director of events in the spring, 3L Wendy Raymond , did a great job coming up with online events and making sure students were staying connected and not getting bogged down by social distancing,” said 3L John Dixon , student government president, who noted more online events were being planned for the current semester.
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FEATURE: OUR PANDEMIC JOURNEY
Mark Osler
students, regardless of location – making sure to stay vigilant about including online students in the class, so they didn’t feel relegated to the margins. To help with this, classrooms were equipped with multiple microphones, cameras and monitors. “It’s crucial – being conscious of the people who aren’t there in person and reminding yourself to reach out to them, to call on them, to be aware of listening for them,” said Professor and Robert and Marion Short Distinguished Chair in Law Mark Osler . “With the experience of doing this [hybrid model] – even when
we go back to having everybody in the classroom with us – we’ll be better teachers because we’ll become better listeners.” Many of Osler’s classes have a coaching element to them. He shows students where to stand in a courtroom, how to interact with witnesses, how to read body language and other skills. These are hard to recreate online. “You lose the immediacy of that when you don’t have the people right in front of you in class,” he said.
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FEATURE: OUR PANDEMIC JOURNEY
“That’s a challenge. You have to try and do it through description and video.” Osler said the biggest lesson learned last spring is that the law school is capable of change – going from a traditional school to an online one in a matter of days. There’s a higher comfort level with uncertainty now, he said. “The thing that impressed me about my colleagues is that nobody’s freaking out,” Osler said. “I see people at other schools [where] there’s a fair amount of negativity. I came here after 10 years of teaching at another law school, so I have a sense of what other schools are
Sarah Williams
“When they made it clear that every class would be fitted with the technology, I knew that for myself – and a lot of my classmates who might have elderly parents or who are staying with sick spouses or children – the decision was to do online,” Williams said. So far, her online experience has been a positive one. “Professors aren’t just engaging with the people in class,” Williams said. “They are also making sure to ask us for our input. They’re making sure they’re looking both at the class and us on the screen. We don’t just feel like we’re hiding in the background.” SETTING A GOOD EXAMPLE As a student leader, Dixon said he and his fellow peers in student government made sure to set a positive example when classes started in the fall. “The reality is, in order to stay on campus, we have to show that we are willing to make these concessions – wear a mask properly, practice social distancing, wash your hands – all those things,” he said. “It’s not just students on campus, it’s the faculty and staff and the families they’re going home to. It’s about the common good. We’re all in this together, and let’s all get through it together.” With most people affected one way or another by the pandemic, Vischer said he understands everybody is going through their own journey of anxiety. We’re all part of a story bigger than ourselves, he said.
like. It’s rare the way we have a common purpose that allows us to focus on what needs to be done. That makes work so much better.” BUILDING A CULTURE OF CARE During her first year of law school, 3L Sarah Williams was diagnosed with non-Hodgkin’s lymphoma. Throughout treatment for the disease, she continued her studies without missing a beat. Williams, who was born and raised in Zimbabwe, credits her friends, staff and faculty for helping her not fall behind during her cancer treatments. She said she has never felt like a number at St. Thomas Law, but a part of the greater community. A hardship grant she received from the law school last spring also helped relieve some of the financial stress she faced after her workplace shut down because of the pandemic. “After people came back from spring break, the school immediately notified us that if students had unexpected costs they could apply for this grant – it was a great bridge at the time,” said Williams, who was able to work remotely at a St. Cloud law firm over summer. This fall, she was hoping to take the hybrid approach and attend some of her classes in-person. However, she relies on public transportation to get to school and didn’t want to take a chance of being exposed to COVID-19 on the bus.
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FEATURE: OUR PANDEMIC JOURNEY
Students listen intently during the School of Law’s new student orientation program in the Schulze Grand Atrium.
“It’s not my job as a dean to tell people what they should think,” Vischer said. “My job as dean is to help them understand the reality that we face. In whatever position they’re coming from, I do believe it’s my job to help stretch them to grow in their empathy for someone who may be coming from a different position. And that’s going to be based on the context that we’re talking about. For the pandemic, some of our students or colleagues may not be anxious at all about their own personal health because they
don’t think it’s a real danger to them. But they need to understand that there are many who are deeply anxious about their own health risks or the health risks of a loved one. “St. Thomas is trying to form lawyers who are not just excellent lawyers in the traditional sense, but who are deeply infused with moral sense and commitment to the common good,” Vischer added. “I think our mission matters now more than ever.”
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RESTORATIVE JUSTICE GROWS AT ST. THOMAS
By BRANT SKOGRAND ’04 MBC
Restorative justice, an alternative approach to dealing with harm, is taking hold at the school of law in the form of a new class.
School of Law Professors Father Daniel Griffith, left, and Hank Shea, right, pose for a portrait with Janine Geske, a former Wisconsin Supreme Court Justice. Photo by Mark Brown.
The course, titled Restorative Justice, Law and Healing, is taught by Wenger Family Fellow of Law Father Daniel Griffith and School of Law Senior Distinguished Fellow and Fellow of the Holloran Center Hank Shea . Restorative justice was the topic of the St. Thomas Law Journal’s fall 2019 symposium, which Shea and Griffith helped organize. Shea helped attendees understand restorative justice in his opening talk at the event. “Put aside most people’s traditional notions of punishment, which is generally about retribution – giving the wrongdoer what he or she deserves. Put that aside and open up your minds and your hearts to a different way of looking at how we should deal with wrongdoing in our society,” Shea said at the symposium. “How do we do something for the victim- survivor, for the wrongdoer, for the community – which are all impacted by so many criminal actions? And what we do is we find out what they really need, what can help them heal – and that’s the way you can achieve justice in a restorative manner.”
That event featured a who’s who of restorative justice leaders in the Midwest. In addition to Shea, the symposium also featured Griffith, former Wisconsin Supreme Court Judge Janine Geske and Director of the Center on Race, Leadership and Social Justice at the School of Law Artika Tyner ’06 J.D., ’10MA, ’12 EdD. A RESTORATIVE JUSTICE PRIMER In explaining restorative justice at the symposium, Geske said, “[Restorative justice] is really a philosophical approach to dealing with harm. It’s that broad. People can be harmed by something that isn’t criminal. The only thing that makes a crime is that the legislature has decided to make it a crime.” Geske described the restorative justice framework as a triangle. At the top of the triangle are victim-survivors; the focus on the victim is what makes restorative justice different from the U.S. criminal justice system. The second point of the triangle is community – people and institutions who are harmed but may not specifically know the victim. The perpetrator, who put into motion the harm, is the third point in the triangle.
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RESTORATIVE JUSTICE
‘A CALL WITHIN A CALL’ Griffith also is the pastor of Our Lady of Lourdes Catholic Church in Minneapolis and is the liaison for restorative justice and healing for the Archdiocese of Saint Paul and Minneapolis. In talking about restorative justice, like Tyner he referenced the Bible, noting that the word “restore” is in Scripture 130 times. He came to restorative justice in numerous ways. Shea
She explained that there are three questions in restorative justice: Who was harmed? What was the harm? How do we go about repairing the harm? In sharing with symposium attendees her take on restorative justice, Tyner mentioned Micah 6:8, “He has shown you, O mortal, what is good. And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God.” “We have a
set up a dinner with Griffith and Geske a few years ago, where Griffith heard many stories about how she came to restorative justice. In addition, Our Lady of Lourdes accepted an invitation from the archdiocese to pilot a parish program in restorative justice. Griffith also had served as a delegate for a safe environment for the archdiocese, dealing with clergy abuse. “I felt a call within a call,” Griffith said. “I’m called to priesthood, and then within priesthood I felt a particular call to get into this ministry. It’s happened organically, and every step along the way I have felt an affirmation to continue to do the work and to get into it more in depth.”
responsibility as lawyers and as a community to help and repair the world,” Tyner said. She added that restorative justice is an alternative that works. Restorative justice provides many benefits, the foremost of which is healing. Shea, a former assistant U.S. attorney, said that the criminal justice process is very formulaic and doesn’t give a person the opportunity to ask the offender, “Why me?” Restorative justice requires the offender to look the victim-survivor in the eye and explain why.
Shea’s most popular course at the School of Law is Crime and Punishment, and he always would have a couple of guest speakers, including Tyner, come in to talk about restorative justice. He never really got personally involved in restorative justice until a few years ago. “I became very concerned and involved in the clergy sexual abuse situation here in the Twin Cities, and I decided that I was being called to try and help both confront the issues that remained before us, and more importantly, to find a path forward for the entire faith community,” Shea said. Shea advocated to Archbishop Bernard Hebda and other archdiocese officials as well as Ramsey County
“When people are given an opportunity to talk about how they experienced harm, it is in fact a healing experience for them,” Griffith said. Another benefit is that restorative justice can be a bridge to both direct and peripheral harm. Griffith also said that it can be a way for perpetrators to experience restoration and understand the impact of their behavior, which fosters greater accountability. Regarding a third benefit, Griffith said, “We live in a world where increasingly we are not in dialogue. We’re walled off from each other. Restorative justice is really in accord with the nature of the human person. We’re meant to be social – that’s how we’re created.” He added that we need more respectful dialogue in society.
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RESTORATIVE JUSTICE
participants], my assumptions and expectations were challenged,” Hampson said. “I thought about separating the individual from the offense and focused on the ways in which restorative justice provided a pathway back into the community.” Shea said that he and Griffith are immersing students in an intensive experience of what restorative justice is. IMPORTANT FOR TODAY’S SOCIETY One aspect of restorative justice that students in the course experience is a healing circle, a Native American tradition. With this restorative justice practice, people sit in a circle and only one person speaks at a time – the person who has the talking piece. “For some victim-survivors, [a healing circle] is the very first time they have had a chance to tell their story about what this crime, what this offense did to them, their families and their futures,” Shea said. “It is a gripping experience for those who have not gone through it before.” With the issues today such as racial injustice, Griffith hopes that the restorative justice process could be used. “[Using restorative justice], people of color would have an opportunity to talk about how racial injustice has affected them,” he said. “I don’t know of a process and instrument that is more potentially effective to bring truth, healing and justice to really complex and challenging societal issues. It is tailor-made, because it’s relational, it’s respectful, it fosters healing, it’s rooted in a rich sense of justice, it fosters accountability and it invites people to tell their story.” Both Griffith and Shea cautioned, however, that restorative justice isn’t a panacea. It aligns with the School of Law’s mission, vision and values as well as Catholic intellectual tradition and Catholic social thought, and has tremendous potential. Perhaps, thanks to Griffith and Shea’s course, a new generation of legal professionals can make the Midwest one of the nation’s centers for restorative justice.
Attorney John Choi that they should look at restorative justice as part of the solution. Before his meeting with Hebda, Shea did a national search to determine who was needed in the Twin Cities, and Geske was the person everyone recommended. Restorative justice was so important to Geske that she had given up her seat on the court during the middle of her term to start the Marquette University Law School’s Restorative Justice Initiative. Restorative justice ended up being a component of the archdiocese’s civil agreement with Ramsey County. “She has become absolutely critical to the progress that this archdiocese has made in becoming more victim-survivor focused and centered,” Shea said. AN EVOLVING COURSE Griffith was the one who suggested to Shea to expand Crime and Punishment to include restorative justice; for the last two fall semesters the course name changed to Crime, Punishment and Restorative Justice. While Shea may teach Crime and Punishment again separately, restorative justice is the sole focus of Restorative Justice, Law and Healing. Third-year law student Rachel Hampson , one of the students in the course, was drawn to Restorative Justice, Law and Healing because she thinks that the U.S. criminal justice system isn’t working. “I believe there is another way and I wanted to learn from experts in the field who are designing and promoting sustainable and effective alternatives to traditional retributive models,” she said. “I’ve participated and observed veterans treatment courts. I observed firsthand the incredible transformation and healing that can occur when you surround an individual with community support and accountability. I was curious to learn more about the restorative justice field and examine its other applications.” The course has many guest speakers, including Geske, former offenders, The Circle of Peace Movement co- founder Russel Balenger, county attorneys, archdiocese staffers, restorative justice facilitator and consultant Sylvia Gutierrez, and more.
“When I heard stories [from former offenders and restorative justice
Winter 2020 Page 21
FACULTY PROFILE: ROBERT KAHN
Masking Issues
By AMY CARLSON GUSTAFSON
COVID-19 HAS RESULTED IN A RANGE OF ECONOMIC AND SOCIAL IMPACTS, FROM RISING UNEMPLOYMENT RATES TO HEALTH DISPARITY AMONG RACIAL AND ETHNIC POPULATIONS. AMID THE FALLOUT, THE PANDEMIC HAS ALSO HIGHLIGHTED THE DIVISIVENESS OVER FACE COVERING GUIDELINES AND MANDATES. For more than a decade, Professor Robert Kahn has studied attitudes toward face coverings, and since the arrival of COVID-19 he’s been interviewed by news outlets across the country regarding masks. An expert in comparative hate speech regulation, Kahn has also led courses on Islam and civil liberties, privacy law and hate speech. We asked Kahn about several issues raised over face coverings.
Photos by Liam James Doyle
Page 22 St. Thomas Lawyer
FACULTY PROFILE: ROBERT KAHN
When and why did you become interested in the subject of face coverings? Around 15 years ago, I wrote a law review article comparing how the United States and Germany handle hate speech. In particular, I compared German laws banning Holocaust denial with U.S. laws restricting cross burning. In the process, I came across cases upholding state mask bans. These bans largely targeted the Ku Klux Klan. A few years later, I wrote a brief encyclopedia article about mask laws. After that, I didn’t think much of the subject until in 2018 when I received an email from a reporter from Alabama, describing the use of Alabama’s mask ban against an African American civil rights leader protesting an officer-involved shooting. I was surprised these laws were being used outside the Klan context. This made me want to learn more about them. Some say masks infringe on their personal rights and freedoms. Do they? A mask is a piece of fabric. It never by itself restricts personal rights or freedoms. What restricts freedom are rules that say when one must wear a mask, or not wear one. In deciding to enact these rules, we should pay heed to the First Amendment, and only insist on mask rules when they are narrowly tailored to a specific governmental interest and are the least restrictive alternative. Viewed this way, the question is not whether to mandate mask wearing during the COVID-19 pandemic, it is the scope of such a mandate. When COVID-19 came on your radar, did you foresee that mask mandates would be enacted as a way to help reduce the spread of the virus? Did you have a feeling masks would become controversial? As COVID-19 was building, I was researching mask wearing in Japan. I wanted to know why some societies are more hospitable to masking than others. Masks are powerful symbols of collective resolve – especially since I am masking to help you, and vice versa. So it is not surprising that masking was adopted in most countries facing the virus. (That said, in Scandinavia, mask wearing is still uncommon). As for controversy, I am not surprised. The debate over mask bans over the past few years has become quite
controversial, especially given the use of masks by protesters around the world, and the rise of burqa bans in Europe. For some, masks were a symbol of Antifa and radical Islam. This made masks an easy target. Masks have become politicized with people on both sides – Republicans and Democrats – very passionate about their preferences. Why do you think masks have become so divisive? We live in a divided country, and that surely helps explain the division. But, while more Democrats than Republicans wear masks, the difference (20-25% points) is not that great. What matters more is a sense among some mask refusers that masks are symbols of social control. While President Trump’s reluctance to mask played a role, the overreach by mask-wearing advocates also figures into this. Especially in April, the call was for “universal” mask wearing – a call that, in theory at least, included a lonely walk across an open field. Added to this was the assumption that every mask refuser was a COVID-19 denier, as opposed to someone who, because of asthma, or a similar condition, found it difficult to mask. In turn, this overreach sparked shaming of mask wearers in those parts of the country where masking is unpopular. The result of shaming mask refusers was, ironically, to make masking more difficult. Have there been other times in America’s history when wearing a face covering for a health-related pandemic has proved controversial? Actually, yes. During the 1918-19 pandemic a number of U.S. cities, including San Francisco and Tucson, enacted mask mandates. These mandates, enacted at the height of the pandemic, were highly unpopular. People complained that masks made glasses fog up, and only wore masks when law enforcement was present. The outcry against masks was so great that, after the pandemic subsided, some scientists questioned whether mask mandates were effective in curbing the pandemic. (One study concluded that any mask tight enough to curtail the spread of the influenza virus would be rejected by the public). I am not sure these findings are valid, but they show the strength of the anti-mask law sentiment once the pandemic subsided.
Winter 2020 Page 23
FACULTY PROFILE: ROBERT KAHN
Did the initial mixed messages about wearing a mask when COVID-19 started to spread have long-term effects on how people view mask wearing? I am not sure. The initial CDC guidance that did not require masking probably did make the later shift to universal mask wearing jarring for some people. At the same time, making mistakes is part of science. As we learn more about the virus, things change. Instead of admitting this – and the possibility that things might change yet again in the future – too many opinion leaders focused narrowly on the new, mask wearing normal. This failure to admit error likely made things worse, as has the tendency to view mask wearing as a panacea for the virus. It might be. Or maybe not. The reason to mask is that it is the best we can do. Overselling masking is counterproductive. People are expressing themselves through their face coverings – one extreme example is the couple who were filmed shopping at Wal- Mart wearing face coverings with swastikas prominently displayed on them. What does that mean for society that masks are becoming a form of expression, rather than just a tool to help keep people healthy? Masks have always been both tools and symbols – just as a muscle car is both a way of showing off and a means of transportation. The same goes for not masking, when a mask is expected. For mask wearers, the mask is a symbol of social solidarity, as well as support for the idea that COVID-19 is a serious problem. Refusal to mask can, likewise, suggest a questioning of the seriousness of COVID-19, and the role of the government in responding to it. At this point, well-meaning people step in to remind us that the mask is only a “tool.” This is slightly off point. To the extent mask wearing stops COVID transmission, the key is wearing masks in situations in which transmission is likely. It doesn’t matter whether a mask refuser does a Tik Tok prancing in their front yard without a mask so long as that person wears a mask when shopping at Target. Likewise, someone who wears a mask for safety purposes does not automatically become a dupe of the nanny state. It’s not denying the symbolism of the mask, it’s about separating symbolism and function.
Finally, as someone who has studied Holocaust denial for years, I would say the following: The U.S. is a free country. One can wear what they want on a mask. However, as someone who has attended a lot of events commemorating the Holocaust, I cannot recall anyone opposing Nazism by adopting Nazi symbols. What part do you think social media has played in the country’s mask divide? While social media likely speeds the pace of the mask debate, I would place focus more on the facial recognition technology, data mining, and the use of algorithms to monitor (and nudge) our behavior. People don’t like being tracked, prodded and nudged. While masks are not tools of social control, the rise of surveillance capitalism gives the libertarian concerns about masking a whiff of credibility. What’s the most interesting observation you’ve made since the mask debate started this year? That we have been through this before. I was shocked to see how similar the mask debates of today are to the debates of 1918-19. To me, this shows that the mask debate is not simply a feature of red vs. blue politics, but a human response to a once-in-a-century global pandemic.
Page 24 St. Thomas Lawyer
ALUMNI
“We are enjoying our new home office since we moved. Previously, my wife’s “home office” was an ironing board in front of the sliding door as her standing desk with a nice view.” – Chris Jison ’18 J.D.
“During the pandemic, I took time to reflect on my career and realized I wanted to make a big change. I’ve been studying for the California Bar for the past four months! I’ll be so proud to earn a license in my new home state! It’s been hard studying while working full time, but the pandemic gave me the motivation to take on this challenge.” – Liz Malay ‘13 J.D.
“I’ve been working mostly from my dining room table since March, ensuring that the 201 members of the Minnesota Legislature and the 10 members of our congressional delegation have the information they need about the Minnesota Department of Health’s response to COVID-19. It’s much more challenging to recreate all of the personal connections that happen organically at the Capitol since I’ve been working remotely!” – Lisa Thimjon ‘09
“In absentia populus, Zoom vincunt. Latin to English (rough) translation: Without people, Zoom overrules.” – Josh Ogunleye ’09 J.D., Hennepin County Family Court Referee, and his law clerk Colleen Case ’19 J.D.
Winter 2020 Page 25
ACTUALIZING DIVERSITY AND INCLUSION St. Thomas lawyers lead meaningful change at large law firms
By GLORIA MYRE ‘07 J.D.
THE DEATH OF GEORGE FLOYD AT THE HANDS OF POLICE IN MAY 2020 WAS A “LOUD WAKE UP CALL TO RECOGNIZE AND CONFRONT THE REALITIES OF WHAT IT MEANS TO BE BLACK IN AMERICA, AND THAT WE MUST DO MORE TO ADDRESS RACIAL DISPARITIES,” SAID SUMMRA SHARIFF ’07 J.D. , EXECUTIVE DIRECTOR AND PRESIDENT OF TWIN CITIES DIVERSITY IN PRACTICE.
Many among the Twin Cities legal community reacted with swift and certain condemnation of Minneapolis police following Floyd’s death, and then began reckoning with anti-Black racism and systemic injustices, particularly within the legal system. Two St. Thomas lawyers, Sherry Roberg-Perez ’05 J.D. and Beth Forsythe ’06 J.D. , serve as leaders in large Minneapolis law firms and see a deeper sense of commitment to lasting change within the legal field in terms of diversity, inclusion and racial justice.
BUILDING ON A FOUNDATION OF INCLUSIVENESS
“It is no longer business as usual in the legal field. Everyone must share the responsibility to address systemic racism in the legal system and anywhere it exists,” Shariff continued. “White law students and lawyers must be active
Sherry Roberg-Perez ’05 J.D. is a partner at Robins Kaplan LLP and a Diversity Committee co-chair. Robins has 250 lawyers in eight offices nationwide. It was founded 80 years ago by two Jewish lawyers facing anti-Semitism at other local law firms and has always had inclusiveness at the
and deliberate partners in this work alongside Black, Indigenous and other people of color. We must understand the true cost and roots of systemic racism. Racial inequalities exist; that is no longer a point of theoretical debate. As legal professionals, we are trained to problem solve. It’s our duty to address the immense inequities.”
heart of its mission. That historical commitment laid groundwork for the firm to “embrace much-needed conversation following the 2020 murders of George Floyd, Breonna Taylor, Ahmaud Arbery, and Tony McDade about anti-Black racism, racial justice, and the
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