Janet Napolitano: Law Must Serve the Marginalized

In today's political climate, public interest lawyers -- those working for human rights and social justice -- are needed more than ever, says Janet Napolitano, president of the University of California system and former secretary of Homeland Security.

Napolitano, who's also a former Arizona governor and attorney general as well as U.S. attorney for the state, made the remarks in a speech and interviews at the UC system's first Public Service Law Conference, held this weekend at the University of California, Los Angeles.

"Today, our nation grapples with serious cultural clashes, political divisiveness, and difficult questions about our national identity," said Napolitano, a longtime Democrat who ran Homeland Security during President Barack Obama's first term, in her keynote speech Saturday morning. "At times, these conflicts have caused some Americans -- such as people of color, undocumented individuals, Jews and Muslims, and the LGBT community -- to feel as though their civil rights are under attack. Through that turmoil, we have witnessed an increasing need -- and a growing role -- for people with legal training who are devoted to public service."

She did not mention a primary source of that turmoil, Donald Trump, until a post-speech question-and-answer session, but she didn't have to. She is already challenging the Trump administration, as the UC system has filed a federal lawsuit seeking to prevent deportation of immigrants who have so far been protected by the Deferred Action for Childhood Arrivals program, which Trump has announced his administration will end in a few months if Congress does not establish it through legislation.

It's a program that Napolitano created when she was Obama's Homeland Security secretary, and it was established by executive action after Congress failed to act on legislation with similar provisions. DACA allows undocumented immigrants who were brought to this country as children to stay in the U.S. and obtain work permits if they meet certain strict qualifications. "I felt compelled to take action to protect these young immigrants," she said.

The lawsuit contends that by rescinding DACA, the Trump administration violated the Administrative Procedure Act -- a law that prohibits the federal agencies from acting capriciously -- and the right to due process under the law, as guaranteed by the U.S. Constitution, Napolitano said.

Napolitano's speech was briefly interrupted by protesters; among the issues they brought up were deportations carried out under her watch at Homeland Security. She said later that was responsible for enforcing flawed immigration law.

She also touched on LGBT rights during her appearance. In her speech she praised Zackory Burns, a law student at UC's Irvine campus, who two years ago cofounded the Transgender Name and Gender Change Clinic there and is now director of the clinic. In partnership with Orange County LGBT Center, the clinic has now assisted more than 250 people with legal paperwork to change their names and gender markers, and Burns and his classmates want to create similar clinics elsewhere in the state.

Napolitano is a longtime ally of LGBT people. As head of the U.S. delegation to the Winter Olympics in Sochi, Russia, in 2014, the year after the nation adopted its infamous "gay propaganda" law, she scrutinized the treatment of LGBT athletes, noting at the time that she winessed no problems within the limited environment of the games and related events.

Speaking with The Advocate after her address, she explained her empathy for LGBT people by saying, "It's a group that has been discriminated against historically and hasn't had full access to its protection of its human rights and civil rights -- that seems to me fundamentally unfair."

She mentioned various other issues, such as her work representing Anita Hill in her appearances before the Senate when Clarence Thomas was under consideration as a Supreme Court justice in 1991; Thomas was confirmed to the court despite Hill's accusations that he has sexually harassed her when they worked together. "I think I still have PTSD from that hearing," she told the conference audience, adding that it was a significant event because "it was probably the first time sexual harassment in the workplace had gotten that kind of exposure."

Freedom of speech on campus is an issue that's gotten much attention lately, with heated protests over some guest speakers believed to be purveyors of hate. But even hate speech is protected against government censorship by the First Amendment to the Constitution, she noted, so public universities cannot shut down such speech, but must try to assure the safety of all students and staff. (Later in the day, a conservative group planning to hold a Free Speech Week at UC Berkeley starting today canceled the event, claiming the university was hostile to it, something a university spokesman denied. Right-wing provocateur Milo Yiannopoulos said he and others would hold an unofficial event Sunday nonetheless.)

Yiannopoulos and his allies tend to support Trump, and they generally feel supported by him. Many other Americans, however, feel they're under attack from Trump. Asked by The Advocate about how those in the latter group can stay committed and optimistic, Napolitano said, "Keep your eye on the long game, and recognize ... that history is not a straight line."

"LGBT rights," she added, "are on the right side of history."

And lawyers, she reminded her L.A. audience -- which included both present and future legal professionals -- can play a big role in getting LGBT people and other marginalized groups the equal rights they deserve. "At times like these, we must do more than lament the assault on intrinsic American values or the violations of civil rights we see around us," she said. "It is incumbent upon us to use our expertise and skills as lawyers to take meaningful action -- to stop injustice in its tracks, to protect the most vulnerable, and to serve our communities when they need us most."