From left: UF Law Professor Kenneth Nunn; Jackson State University Political Science Professor Michelle D. Deardorff; Mississippi School of Law Professor Angela M. Kupenda; UF Law Irving Cypen Professor of Law Sharon Rush; and UF Law Professor Jonathan R. Cohen. (Photo by Marcela Suter)

When Barack Obama was elected the first African-American president of the United States in 2008, the question of whether America had finally moved into a post-racial society became a widely discussed topic. While the answer to the question is still being debated, it is clear that there are many valid questions about how to approach and discuss issues of race in the modern world.

Scholars at “Race Talk in the Age of Obama,” addressed some of these questions by participating in a panel discussion based on the December 2011 issue of the University of Florida Journal of Law and Public Policy to which each of the five panelists contributed an article. The event, which was held Feb. 8 at UF Law, was co-sponsored by the JLPP and the Center for the Study of Race and Race Relations.

The panel was comprised of UF Law Professor Jonathan R. Cohen; Jackson State University Political Science Professor Michelle D. Deardorff; Mississippi School of Law Professor Angela M. Kupenda; UF Law Professor Kenneth Nunn and UF Law Professor Sharon Rush, the Irving Cypen Professor of Law.

Each participant brought a unique academic perspective to the discussion, which was facilitated by brief summaries of each panelists’ article and questions from members of the JLPP.

A recurring theme of the discussion was that race should be looked at as a structural institution rather than viewed in terms of personal relationships — an idea initially put forth by Deardorff in summarizing her article co-authored with Kupenda titled “Negotiating Social Mobility and Critical Citizenship.”

“We had 300 years of racialized, legalized, maintained oppression,” Deardorff said, “and then we removed the legalized part of it and said it was done.”

Yet, all the other structures still remain, she said.

The panel also examined how to address issues of race in educational institutions — and looked at examples of it being ignored and other situations where it is being addressed.

“Talking about race is difficult and it is challenging,” Nunn said. “It takes courage, perseverance, leadership and a thick skin.”

Cohen said in terms of exchanging ideas in the classroom, you can’t guarantee that people will fully understand you, but it shouldn’t prevent you from expressing your perspective. And he pointed out that the part of the conversation that is in your control is the act of trying to understand what other people in the conversation are saying.

Rush’s article, “Talking About Race and Equality,” which posits the idea that many people fall into two categories when it comes to talking about race — those who let blindness to racial inequality lead to the avoidance of talking about race, and those who see racial inequality everywhere and want to talk about it all the time. She suggests there is a middle ground people can find where they can comfortably address topics of race and inequality.

This led to the questions of whether Obama’s “approach concedes too much by ignoring the discriminatory intent that some people have that undermines (his good intentions).” Rush said she believes Obama understands that many equality-minded people don’t think about, or understand structural racism and that he is “managing the color line with extreme aplomb.”

On the other hand, Nunn stated that “Obama’s treatment of race is his consequence of negotiating a culture in our society where he knows it’s an explosive issue. His failure to engage it shows more than anything that we haven’t gotten beyond it.”

The University of Florida Levin College of Law Center for the Study of Race and Race Relations is committed to fostering communities of dialogue on race. The center creates and supports programs designed to enhance race-related curriculum development for faculty, staff and students in collegiate and professional schools. Of the five U.S. law schools with race centers, the CSRRR is uniquely focused on curriculum development.

Lauren Fasig, Martin Gill, Shelbi Day and Joseph Jackson sat on the gay adoption panel Wednesday, Sept. 29. (Photo by Joey Springer)

“At the center of this case, and every other case, is a person.”

Shelbi Day, an American Civil Liberties Union attorney who represented a gay man and his partner in a case challenging an adoption ban for gay people, said those words at a recent panel discussion on gay adoption Wednesday, Sept. 29, just one week after the Third District of Appeal struck down a state law barring gay people from adopting.

The American Civil Liberties Union and the ACLU of Florida called the decision a victory for thousands of children in Florida waiting to be adopted.

University of Florida Levin College of Law Center on Children and Families authored one of several amicus briefs in the case, an effort led by Joseph Jackson, UF legal skills professor and associate director of the Center. The brief involved the collaboration of many faculty members within the Center, including former Director Barbara Woodhouse.

Day and Jackson, along with Martin Gill, the foster parent who challenged the Florida statute banning gay adoption and CCF Director of Research Lauren Fasig, an expert in child development, sat on the panel in front of more than 100 attendees.

The standing-room-only event revealed the struggles Gill and his partner have faced the past seven years since receiving their license to foster children in 2003, the elation they felt in November 2008 when the Circuit Court granted Gill’s adoption petition, and the hardships they endured after having that decision stayed by the State’s appeal.

In December 2004, Florida’s Department of Children and Families asked Gill and his partner to foster two boys – a 4-month-old and a 4-year old – suffering from neglect. At the time, Gill and his partner planned to move to Georgia, and felt it would be unfair to uproot the children – who at the time had future plans to live with relatives – so, they said no.

It was right before Christmas, and DCF tugged on the couple’s heartstrings to give the children a home for the holidays. They gave in.

Upon arrival, the children were sick with ringworm, but Gill was told their medication was in the bag that the DCF brought over. Not only had the medication expired, it was unopened and had not been refrigerated in over a month, which was necessary for it to remain effective, he said. The older child slumped against the wall and stared at the floor. Gill knew they had their work cut out for them.

Nearly a year after Gill and his partner fostered the brothers and nursed them to health, DCF sought permanency planning for them. Plans to live with relatives fell through, and a 33-year-old law banning adoption by gay men and lesbians stood in the way of allowing Gill and his partner to legally adopt the boys they had cared for. Currently, Florida is the only state barring gays from adopting.

But when Gill met with DCF to discuss permanency planning, they told him they wanted to advertise the children separately, since the younger one had a better chance of adoption and the older child had some developmental disabilities, Gill said. The couple was floored.

“That child was his brother’s keeper,” Gill said. “It was the only continuity he had for his entire life.”

Gill said the older child was quite a caregiver for such a young child – he even knew how to feed the baby, burp him and change his diaper. He couldn’t bear the thought of these children being separated, and soon sought legal help from ACLU to challenge the adoption ban.

After a four-day trial in November 2008, Judge Cindy S. Lederman issued a 52-page opinion declaring the ban unconstitutional, on the grounds that it violated the equal protection rights of the children and their prospective parents, and granted Gill’s adoption request.

But the couple’s elation waned only 15 minutes later, when the state appealed the ruling and denied Gill and his partner from adopting.

“These are two heroic men who have really gone to battle [for these boys],” said Day, who said the couple has risked a lot to fight for these children.

The District Court of Appeal’s unanimous decision on Sept. 22 was a gratifying feeling for Gill, his partner, his lawyers and all gay-rights advocates after nearly 13 months of waiting for an opinion. Judge Vance E. Salter emphasized in his concurring opinion the importance of the couple in the lives of the brothers, and referred to them as a family. He noted that this case involved “five persons and associated relationships, not just the adoptive parent and the two children… The continued use of the legal system to attempt to unwind these relationships is simply inexplicable.”

During the initial stages of the case, Gill’s legal team had to identify experts from a variety of fields to rebut all possible arguments the state might put forward to justify the ban. Psychologists, HIV/AIDS experts and even experts on pedophilia and sexual orientation, were called to testify, and confirmed that gay people and straight people make equally good parents. In addition, the children were evaluated by a child development expert, who testified that removing them from Gill’s home and/or separating them from one another would cause them to regress socially and educationally and lead to serious and permanent harm.

A focus of the Center’s brief was to explain to the court the serious harms children suffer when they are repeatedly moved around in the foster care system, Jackson said. Attachment to a caregiver is essential for a child to turn into a grown-up human being, and a child’s ability to form those attachments is undermined when the child bounces around in foster care.

Lauren Fasig cited research that showed that a parent’s sexual identity and/or sexual orientation has little or no effect on that of the child, and that children of gay parents are just as fit for life as those of heterosexual parents.

“To say one group could be parents and others can’t isn’t justified,” Jackson said. “There is no conceivable set of facts that justify that law.”

The state has 30 days to appeal this decision to the Florida Supreme Court. If it does not, then the decision will be binding on Florida trial courts state-wide. However, opponents of the decision could seek to overturn the decision through a ballot initiative to amend the State Constitution.

“If it gets to the point of vote, it’s about getting the word out and educating people,” Day said.

“What has happened? A lot. What needs to happen? A lot.”

This was UF Law Professor Alyson Flournoy’s response to the federal government’s actions since the BP oil disaster April 20. UF Law students and faculty discussed legal and policy issues from the BP Deepwater Horizon Oil spill before an audience Sept. 16 in the Martin H. Levin Advocacy Center.

Law students Austin Moretz, Alyssa Cameron, Jesse Reiblich, James Davies, Carli Koshal and Fay Pappas presented their research on various aspects of the catastrophe including a comparative analysis from state and federal perspectives of the legal foundations governing spills, responses to the oil spill, recovery and restoration issues and social impacts of the disaster. UF Law faculty Tim McLendon, Alyson Flournoy, Mary Jane Angelo, Richard Hamann, Joan Flocks and Brian Mayer commented on the issues presented by the students, and Jon Mills served as moderator.

The role of policy is to minimize other disasters and see what we can do to compensate those who have been harmed, said Mills, dean emeritus, professor of law, director of the Center for Governmental Responsibility, and member of the University of Florida Oil Spill Task Force. The commentators noted the challenges in determining natural resource damages, especially among affected entities that have never been known, like species of never-before-seen squid.

Hamann highlighted the difficulties of “how to value things people have never seen before, especially things they have no economic use for.” He also proposed creative uses of the restoration money to improve the Gulf of Mexico’s environment – such as protecting sea turtle nesting beaches in the Caribbean, which was seriously degraded even before the spill.

“Will we step back and learn the broader lesson?” Flournoy asked, pointing out that the U.S. needs to respond to the challenge of dealing with low-probability catastrophic events.

The UF Law Oil Spill Working Group, the Center for Governmental Responsibility, and the UF Law Environmental and Land Use Law Program sponsored the informational symposium.

Prof. Lyrissa Lidsky, Prof. Jon Mills and Prof. Sandra Chance discuss the tricky relationship between social media and government. (Photo by Andres Farfan)

During his campaign for the presidency, President Barack Obama captured the attention of Americans through his savvy use of social media in a way no presidential candidate had done before. As a result, many government agencies have jumped on the social media bandwagon, and are using Facebook and other social media websites to communicate with their constituents. Yet, they may be unaware that exercising editorial control over the content on their websites could open them up to potential liability for lawsuits or other legal actions.

Can a government actor, such as a law school administrator, remove or edit “undesirable” comments on a website without becoming the subject of litigation charging a First Amendment violation? According to Stephen C. O’Connell Chair and University of Florida Professor of Law Lyrissa Lidsky, it depends on whether a court labels it government speech or a public forum.

In her presentation entitled “All the President’s Tweets: The First Amendment and the Online Public Forum,” given as part of the UF 2010 Constitution Day program on September 17, Lidsky examined the complex relationship between social media and the government. She suggested that the law governing public forums should be adapted to foster government use of interactive media. Specifically, she suggested that public forum doctrine must grant government actors greater leeway in eliminating abusive speech so to allow them to fulfill their role in configuring communication spaces and maximize public discourse.

The presentation—hosted by the Levin College of Law in the Chesterfield Ceremonial Classroom—included commentary by UF Law Dean Emeritus and Director for the Center for Governmental Responsibility Jon Mills; and Executive Director for the Brechner Center for Freedom of Information and McClatchy Professor in Freedom of Information Sandra Chance. The panel discussion was moderated by UF Law Dean Robert Jerry.

Government actors and citizens have myriad incentives for participating in social media, but the state of the law is very muddled in this area and has not fostered optimal social media policy by the government, Lidsky said.

One such area that poses significant challenges for government agencies involves their obligation to comply with open records laws.

Chance, who researches issues on access to government meetings and records to media organizations, said government agencies are required to maintain records of their use of social media. This requires the organization to print and maintain for public record a daily copy of social media sites, which could be difficult for retention purposes.

“It’s important to remember that the technology can overtake the principles very quickly,” she said.

Mills, expert and author of a book on privacy, “Privacy: The Lost Right,” said that online speech enables individuals to make abusive or threatening comments that they might not have made if they occur in a public place.

“There are things we do in public that are very different when transformed to electronic spaces,” Mills said. “I’m not sure that even the greatest free speech advocate would want this to be a complete public forum.”

As a result, some actors might refrain from taking part in public discourse altogether, which is a detriment to its citizens, Lidsky said.

“The point of social media is interactivity,” she said. “As citizens, we want interactive social media where we can express our views, and we can have an open discourse and open debate with other citizens and with government actors whose actions affect our lives.”

Although the government speech doctrine would most likely protect “all the President’s Tweets,” it is most likely that this type of speech would fall into a gray category, such as the limited public forum category, Lidsky said.

Under a limited public forum, a moderator could presumably limit the speech to certain categories of speakers, such as law students, or to certain categories of topics.

So, what steps can a government actor take to moderate citizen commentary?

A moderator may be able to remove comments that are unrelated to the topic of the forum if she has posted a content filtering policy, Lidsky said. The law also provides that some content, such as profanity, can be removed if it is viewpoint neutral. But that may still be up to the court to decide.

“Government use of social media is something that we ought to pursue and look at, but we ought to look at it carefully,” Mills said.

Constitution Day commemorates the signing of the U.S. Constitution in 1787. Each year, the University of Florida – along with other public funded universities – celebrate the day with special programs and activities.

Click on the link to watch the archived webcast.

The Center for Governmental Responsibility’s annual symposium will feature leading international experts in press and access freedoms on Friday, April 16, from 9 to 11 a.m. in Room 180, Holland Hall, at the Levin College of Law.

Jon Mills, CGR director and dean emeritus, will moderate a panel on “Threats to Freedom of Expression, Freedom of the Press, and Access Laws throughout the Americas.” Panelists include: Julio Muñoz, executive director, Inter American Press Association; Sandra Chance, executive director, Brechner Center for Freedom of Information, McClatchy Professor in Freedom of Information and UF law graduate; and Diana Daniels, trustee, Goldman Sachs Mutual Funds Complex and former vice president, general counsel and corporate secretary of The Washington Post Company.

Law faculty and students are invited to attend the forum.

“The symposium initiates a collaborative agreement between CGR and the Inter American Press Association,” Mills said. “We have shared interests in human rights, freedom of the press, freedom of expression, and strengthening the rule of law throughout the world. We look forward to future programs that examine our mutual efforts at improved legal systems internationally.”

The symposium will examine case histories on transparency and access laws in Latin America and in the United States, influences of power and money as threats to freedom, and the effects of globalization on freedoms.

The event is sponsored by Anne Conway, Chief District Judge for the Middle District of Florida and a UF law graduate, and Jon Mills. It is held in conjunction with CGR’s annual board of advisors meeting.

About the panelists:

More than 110 guests attended the seminar on Jan. 22 in the Chesterfield Smith Ceremonial classroom at the UF College of Law, and hundreds more watched the online broadcast. It featured a panel of legal and other professionals and experts, including Jon L. Mills, founding and current director of the Center for Governmental Responsibility, professor of law and dean emeritus of UF Law; Lyrissa Lidsky, UF Stephen C. O’Connell chair and professor of law; Susan Blair, UF chief privacy officer; Barbara Wingo, UF associate vice president and first deputy general counsel; Paula Fussell, UF vice president of human resource services; and Jane Adams, UF vice president for university relations.

“We are indeed lucky to have panel with this breadth of experience and expertise,” Mills said.

A common theme was though social media provides many benefits, it also has repercussions that may be costly to a person’s privacy, safety and employment opportunities.

Mills began the seminar with discussion of four specific aspects at the crux of the social media debate — the concept of gossip, wide dissemination of information due to the technology, the issue of public records, and personal carelessness. He focused on importance of understanding the technology that gives social media its power.

“The future is difficult because the law and policy have not caught up, even remotely, with technology. And the prospects of it catching up are not good,” Mills said. “We just have to understand the reality of what we are doing — that even if you think the law protects you, it may not, and that abuses and negligence are the things that are beyond technology, the law and policy.”

As an admitted avid user of social media, Lidsky noted the ability of the social media to sponsor a vested community.

“One of the beauties of Facebook is the sense of responsiveness it engenders,” Lidsky said. “You are serving your constituents when you are available to them on Facebook, perhaps to answer questions, or to deal with common policy issues that arise. And one of the best things about Facebook is the immense interactivity, which fosters a sense of community.”

She also described the specific rights that Web site or page administrators have to edit or remove material and communications posted on the site based on the type of fora — whether public forum, non-public or outlet for government speech — that has been created. In a public university setting, the Facebook page should be set up as a non-public forum to allow for some control of postings while facilitating the largely free exchange of ideas.

As UF’s chief privacy officer, Blair provided helpful tips on how to avoid making specific privacy violations that could occur under such laws as the Health Insurance Portability and Accountability Act (HIPAA) or the Family Educational Rights and Privacy Act (FERPA), citing awareness of the requirements of these laws as key to preventing privacy violations.

With the broad array of legal topics on which she is versed, Wingo’s presentation touched on several aspects of using social media and networking Web sites, from copyright and trademark law to open meetings laws, and when posting to social media must be considered of public record. She noted the marked lack of policies prepared by universities on the appropriate and effective use of social media — the lack of which was one reason behind UF’s decision to host the seminar.

“It is actually very surprising how few universities have formulated policies on these social media. And the few that are out there, that are public, are probably as confused as we are as to where we should go with this whole issue,” Wingo said. “We are actually formulating a disclaimer, something that you can post on your Facebook pages, that we think will take a middle ground,” she said.

At the heart of Fussell’s presentation were the long-term implications that the sharing of inappropriate and non-professional photos and postings can have on current and potential employment opportunities.

There is something about social media that enables us to post things online we would not publish in a newspaper or say out loud to someone’s face, Fussell said.

In wrapping up the presentation, Adams discussed the power and potential of social media to connect individuals and allow for increased engagement on topics of specific interest to viewers and users. She noted that UF was a leader in the use of social media for business purposes, and reviewed a number of UF sites.

In all, the panel seemed united on the idea that stopping and thinking a little more before sharing those comments and photos could save us from many of the costly retributions, and instead, allow us to enjoy the promises of social media rather than its pitfalls.

“We all understand the complexity and the contradictory nature of social networks,” said Mills. “It’s a great opportunity to be able to share ourselves and to share information with others. We just have to understand the reality of what we are doing.”

The seminar grew out of the work of the University of Florida Strategic Communications Planning Committee, chaired by UF Law Communications Director Debra Amirin. For more information or to view the archived video, visit http://strategiccommunications.law.ufl.edu

Sarah Perez’s five easy steps to stay safe (and private!) on Facebook

Jon Mills’ tips for using social media:

• Define your goals and the audience with which you want to network
• Understand the law as it relates to your goals and audiences
• Understand how technology and reality impact implementation of your goals

Susan Blair’s privacy considerations for faculty members:

• Model appropriate behavior
• Do not share confidential or restricted information online
• Avoid unprofessional behavior violates university policy
• Do not post risky pictures
• Beware of “meat puppets” – individuals posting to your page with ulterior motives
• Consider and implement all privacy protections available to you
• Understand the terms and conditions of Facebook

For more information on the university’s privacy policies and procedures, visit the UF Privacy Office Web site at http://privacy.ufl.edu/pandp.html.

Barbara Wingo’s Tips

• Assume that nothing is private, everything is public
• Assume that existing laws apply to social media

For more information about the university’s regulations and policies regarding acceptable use and intellectual property policies, visit the UF Office of the Vice President and General Counsel’s Web site at www.generalcounsel.ufl.edu/regulations/.