thenation--2020-03-31--How a Human Rights Lawyer Went From Hero to House Arrest

More than a quarter-century ago , Steven Donziger , a young American human rights lawyer , joined the legal effort to force Texaco to clean up the Ecuadoran headwaters of the Amazon rain forest .
Between 1972 and 1992 , the company dumped toxic waste and spilled billions of gallons of oil-exposed water across 1,700 square miles , an area larger than Rhode Island .
In response , a coalition of rural Ecuadorans in the Lago Agrio region sued the US oil giant , and Donziger signed on to help and soon became the lead attorney on the case .
@ @ @ @ @ @ @ that stretched across two continents , the 30,000 indigenous people and small farmers whom Donziger represented in a class-action lawsuit won a $ 9.5 billion judgment in Ecuadoran courts against Chevron , which acquired Texaco in 2001 .
It was one of the largest financial judgments ever against an oil company .
It looked like a historic warning to polluters across the Global South .
Paul Paz y Miño , the associate director of the environmental group Amazon Watch , described it as “ the most important corporate accountability case in history.
” @ @ @ @ @ @ @ under house arrest in New York City , forced to wear an ankle monitor .
The lawyer , now 59 , is fighting contempt charges .
Meanwhile , his clients in Ecuador have received nothing from Chevron .
Without that funding , they have no way to cleanse the poisoned soil or treat what they say is an elevated number of cancer cases .
The mainstream press has largely ignored the legal attacks against Donziger , but Chevron ’ s counteroffensive could endanger human rights and environmental work around the world .
Donziger @ @ @ @ @ @ @ said , will set a precedent : “ Whether it ’ s Chevron or BP or Shell or any other oil company , if you can not hold them to account and the lawyer advocating for that case is personally attacked , who else is going to fight those kinds of cases ?
” Chevron ’ s legal onslaught succeeded largely because of a single federal judge in New York named Lewis A. Kaplan .
In 2014 , Kaplan found Donziger and his Ecuadoran allies guilty of bribery and fraud , which makes @ @ @ @ @ @ @ collect their damages in the United States .
Then Kaplan asked federal prosecutors in the Southern District of New York to bring criminal contempt charges against Donziger for refusing to turn over his electronic devices , which contain communications with his clients .
When the prosecutors declined , Kaplan appointed private attorneys to prosecute Donziger—a nearly unprecedented step by a federal judge .
Kaplan ’ s hostility toward Donziger has been on ample display in his 21st-floor wood-paneled courtroom in downtown New York for nearly a decade .
At times , he has @ @ @ @ @ @ @ “ not a bona fide litigation ” and dismissed the Lago Agrio residents as “ so-called plaintiffs.
” Martin Garbus , the legendary human rights lawyer who is part of Donziger ’ s legal team , is 86 years old and has appeared at hundreds of trials , including in the Deep South during the segregation era .
He told me that Kaplan ’ s treatment of Donziger is the worst he has ever witnessed .
“ In the courtroom , Kaplan displayed a rage , a fury , that he channeled against @ @ @ @ @ @ @ He tried to humiliate him .
You wouldn ’ t have to be an expert on the law to recognize it .
It was brutal .
I ’ ve never seen a guy eviscerated the way Kaplan tried to eviscerate Steve.
” For his part , Donziger said he hopes the Ecuadorans and their lawyers will hold Chevron accountable .
He is a tall man—6 feet , 4 inches—and has been pacing restlessly around his Upper West Side apartment , reading law briefs or talking with his contacts in Ecuador by phone .
@ @ @ @ @ @ @ almost everyone into their homes , but Donziger has already spent months “ detained in a small apartment not because we did anything wrong , ” he said , “ but because we were successful and did a lot of things right .
Facing the loss of one ’ s liberty not because one committed a crime but because of something dark and unaccountable in the system is terrifying .
It calls into question most everything I believe about our country and my role in it.
” In an open letter to his @ @ @ @ @ @ @ “ I never knew when I started working on this case in 1993 that I would face jail for standing up for the rights of my clients , who have been victimized by what is probably the world ’ s worst oil pollution… .
Quite simply , Judge Kaplan and Chevron are working in lockstep to try and destroy me and my clients.
” The saga began in the 1980s , when Ecuadorans in the rain forest started to protest Texaco ’ s contamination .
The company left Ecuador in 1992 , after @ @ @ @ @ @ @ , and an oily , watery mixture known as formation water into unlined waste pits—a procedure that has been outlawed in Texas since 1969 .
Texaco also released billions of gallons of oil-laced water into the rain forest ’ s streams and lakes , even though the standard procedure in the United States has long been to inject the potentially toxic compounds safely deep underground .
Five peer-reviewed scientific studies have shown an increased incidence of cancer and other health risks in the area .
( Chevron funded its own peer-reviewed study , @ @ @ @ @ @ @ risk . )
About 20 grassroots organizations formed the Amazon Defense Coalition in the mid-1990s , and Donziger , a recent graduate of Harvard Law School , started representing the group in 1993 .
The Ecuadorans originally sued Texaco in the United States , but after years of delay , a federal judge in New York sent the case to Ecuador in 2001 .
More than a decade later , Chevron lost .
Three levels of Ecuadoran courts up to the Supreme Court ratified the verdict and awarded the plaintiffs $ 9.5 billion @ @ @ @ @ @ @ the decision , none of the rain forest residents would receive a check .
Instead , the Amazon Defense Coalition would use the money to scour the soil of toxins and build treatment centers for cancer patients . )
Chevron defended itself at every stage of the proceedings in Ecuador , and for years it never challenged the legitimacy of the process .
But in 2010 it changed strategies .
Chevron launched a countersuit in a New York federal court , alleging that Donziger and his allies had committed bribery and fraud in @ @ @ @ @ @ @ company invoked the Racketeer Influenced and Corrupt Organizations Act , originally designed to prosecute the Mafia , and in 2011 , Kaplan presided over a new trial .
Donziger and the Ecuadoran codefendants expected that such serious charges would be tried before a jury , but at the last minute , Chevron dropped its demand for monetary damages .
Under RICO law , this meant Donziger and the others lost their right to appear before a jury and Kaplan alone would decide the facts of the case .
Charles Nesson , a Harvard @ @ @ @ @ @ @ Harvard Law Record that “ Chevron amended its demands to cheat Donziger out of a jury.
” From the beginning of the RICO trial , Kaplan made his pro-business outlook clear .
He lauded Chevron as “ a company of considerable importance to our economy that employs thousands all over the world , that supplies a group of commodities—gasoline , heating oil , other fuels , and lubricants—on which every one of us depends every single day .
I don ’ t think there is anybody in this courtroom who wants to pull @ @ @ @ @ @ @ fill up and finds that there isn ’ t any gas there.
” During the case , Chevron claimed that Donziger and his clients had bribed the original trial judge in Ecuador .
Chevron ’ s star witness was Alberto Guerra , a former judge who lost his position on the Ecuadoran bench because of corruption accusations and later , in testimony before an international trade tribunal , admitted to lying about his interactions with Donziger .
The oil giant acknowledged paying Guerra and moving him and his family to a secret location @ @ @ @ @ @ @ , Donziger estimated that Chevron has spent $ 2 million on the ex-judge .
Chevron ’ s lawyers rehearsed Guerra ’ s testimony with him 53 times and then put him on the stand in front of Kaplan .
In his testimony , the disgraced ex-judge asserted that Donziger and an Ecuadoran lawyer , Pablo Fajardo , had offered him a $ 500,000 bribe and that Donziger and Fajardo had ghostwritten the final judgment against Chevron .
Nicolás Zambrano , the judge who had rendered the decision in Ecuador , denied Guerra ’ @ @ @ @ @ @ @ ’ s account , dismissed Zambrano , and found Donziger and his Ecuadoran colleagues guilty in 2014 .
Chevron ’ s legal offensive is an example of a Strategic Lawsuit Against Public Participation , or SLAPP , suit .
Over the past few decades , corporations have brought an increasing number of SLAPP suits against environmental and human rights groups .
The idea is to spend so much money that your underfunded opponents are forced to give up .
The oil giant presumably also has a related aim : to prevent the plaintiffs @ @ @ @ @ @ @ Kaplan ’ s verdict in the RICO case means Chevron can refuse to pay them in the United States .
Chevron has long since sold its remaining holdings in Ecuador , so now Donziger and the Amazon Defense Front have to chase the corporation to other countries where it still does business .
Chevron ’ s lawyers are already trying to use the New York RICO judgment to discredit legal efforts against the company in Canada and elsewhere .
Kaplan ’ s persecution of Donziger did not stop after the RICO verdict .
@ @ @ @ @ @ @ has so far refused to turn over his personal computer and cell phone to Chevron , as Kaplan ordered him to do last March .
Donziger said in a press release that he is defending his clients , because his electronic communications would give Chevron ’ s lawyers “ backdoor access to spy on everything we are planning , thinking , and doing.
” He said he wants to wait until the US Court of Appeals hears his defense , after which he will promptly hand over his computer and phone if the @ @ @ @ @ @ @ .
Sean Comey , Chevron ’ s senior adviser on corporate issues , litigation , and financial communications , declined to comment for this article .
As a result , I was unable to ask him a series of questions , including : Is your company still paying Guerra for his cooperation ?
How much is it continuing to spend on the legal case ?
Why do attorneys representing Chevron appear at every hearing against Donziger , even ones that don ’ t involve the oil company ?
And what is Chevron ’ @ @ @ @ @ @ @ the multiple legal attacks against Donziger ?
Meanwhile , residents in the Amazon rain forest live and work on poisoned land .
Donziger cautions that their plight must remain the center of the case .
He works closely with Luis Yanza , the elected leader of the Amazon Defense Coalition and a lifelong defender of the environment ; in 2008 , Yanza won the prestigious Goldman Environmental Prize , an award for frontline activists .
Donziger and Yanza have talked and e-mailed regularly for more than 25 years , and Donziger , who @ @ @ @ @ @ @ he has visited Ecuador 250 times to consult with his clients .
Yanza told me that cancer continues to afflict people in the rain forest .
“ I visited several of our communities just last weekend , and each one had two or three cases of cancer , including a girl , ” he said .
And there is no adequate treatment facility in the Lago Agrio area , he added .
“ The closest cancer treatment center is in Quito , which is seven to 12 hours by bus , depending on @ @ @ @ @ @ @ about the attacks on Donziger .
“ Steven is totally the opposite of how Chevron portrays him , ” Yanza said .
“ He ’ s dedicated his life—a great part of his life—to defending people in our poor communities.
” Yanza also dismissed the insinuations of critics that Donziger is manipulating the unsophisticated rain forest inhabitants .
“ This is the mentality of imperialism , saying that we don ’ t have the capacity to think and to act , to make decisions about our own lives .
Steven and others in @ @ @ @ @ @ @ legal help , but the fundamental decisions are made by us here.
” Donziger ’ s critics say that he is mainly after his percentage of the judgment , that he ’ s an ambulance-chasing attorney who found his way to the rain forest .
But if that were true , wouldn ’ t Donziger have given up by now ?
Surely he would have cut his losses , dusted off his Harvard Law diploma , and found another potential money-making scheme .
Instead , he has remained under house arrest for nearly @ @ @ @ @ @ @ to get his law license reinstated .
( It was suspended in 2018 without a hearing , based on Kaplan ’ s findings in the contempt case . )
In September and October , he appeared several times at a New York Bar Association hearing in lower Manhattan , before a polite referee named John Horan .
The cramped , low-ceilinged hearing room was filled with human rights lawyers and environmentalists who support Donziger—as well as a few conservatively dressed attorneys representing Chevron .
A parade of witnesses testified to Donziger ’ s @ @ @ @ @ @ @ , a founder of Greenpeace ; Roger Waters of the rock band Pink Floyd ; and Simon Taylor , one of the directors of Global Witness , the influential international anti-corruption organization .
On February 24 , Horan found in Donziger ’ s favor and recommended that his law license be restored .
Horan , a former prosecutor , sharply criticized Chevron ’ s vendetta , writing , “ The extent of [ Donziger ’ s ] pursuit by Chevron is so extravagant , and at this point so unnecessary and punitive , @ @ @ @ @ @ @ in my recommendation , [ it ] is nonetheless background to it.
” Horan ’ s decision must now be reviewed by a New York state court .
On November 25 , Donziger appeared before Senior US District Judge Loretta Preska , who will preside over his criminal contempt trial , to ask that his confinement be ended and replaced by an $ 800,000 bail bond , guaranteed by a number of his supporters .
His attorney , Andrew Frisch , reminded the court that Donziger has a family and is not likely @ @ @ @ @ @ @ States .
What ’ s more , Frisch pointed out , doing so would mean abandoning his clients in Ecuador .
“ For 25 years , ” he noted , “ Mr .
Donziger has had his skin , his heart , and his soul in this cause , which is bigger than him.
” In the end , Preska turned down the request .
“ Mr .
Donziger has ties to Ecuador , we know , indeed , to high-ranking government officials , ” she said .
“ We know he has @ @ @ @ @ @ @ occasions… .
I find that he remains a flight risk , and accordingly , the request to eliminate monitoring and home confinement is denied.
” Donziger ’ s trial isn ’ t scheduled to begin until June 15 .
He is again challenging his home detention , but he could remain confined to his apartment until then .
If this effort fails , he will have spent more than 300 days under house arrest .
Donziger described what it ’ s like to live under these circumstances .
“ Sleep is difficult because @ @ @ @ @ @ @ , ” he said .
“ A voice reminds me to recharge the battery , which allows the state to monitor my every movement.
” The bracelet is “ like a giant black claw that clings to your lower leg .
It ’ s designed to be a constant reminder of your banishment , to disorient you psychologically .
Of course , ” he added , “ Chevron and Judge Kaplan want me to be consumed with my survival—rather than helping the indigenous people of Ecuador collect their judgment .
”

This article appears in the April 13, 2020 issue.
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More than a quarter-century ago, Steven Donziger, a young American human rights lawyer, joined the legal effort to force Texaco to clean up the Ecuadoran headwaters of the Amazon rain forest. Between 1972 and 1992, the company dumped toxic waste and spilled billions of gallons of oil-exposed water across 1,700 square miles, an area larger than Rhode Island. In response, a coalition of rural Ecuadorans in the Lago Agrio region sued the US oil giant, and Donziger signed on to help and soon became the lead attorney on the case.
In 2013, after a legal campaign that stretched across two continents, the 30,000 indigenous people and small farmers whom Donziger represented in a class-action lawsuit won a $9.5 billion judgment in Ecuadoran courts against Chevron, which acquired Texaco in 2001. It was one of the largest financial judgments ever against an oil company. It looked like a historic warning to polluters across the Global South. Paul Paz y Miño, the associate director of the environmental group Amazon Watch, described it as “the most important corporate accountability case in history.”
Fast-forward to today, and Donziger is under house arrest in New York City, forced to wear an ankle monitor. The lawyer, now 59, is fighting contempt charges. Meanwhile, his clients in Ecuador have received nothing from Chevron. Without that funding, they have no way to cleanse the poisoned soil or treat what they say is an elevated number of cancer cases.
The mainstream press has largely ignored the legal attacks against Donziger, but Chevron’s counteroffensive could endanger human rights and environmental work around the world. Donziger’s fate, Paz y Miño said, will set a precedent: “Whether it’s Chevron or BP or Shell or any other oil company, if you cannot hold them to account and the lawyer advocating for that case is personally attacked, who else is going to fight those kinds of cases?”
Chevron’s legal onslaught succeeded largely because of a single federal judge in New York named Lewis A. Kaplan. In 2014, Kaplan found Donziger and his Ecuadoran allies guilty of bribery and fraud, which makes it extremely difficult for the plaintiffs to collect their damages in the United States. Then Kaplan asked federal prosecutors in the Southern District of New York to bring criminal contempt charges against Donziger for refusing to turn over his electronic devices, which contain communications with his clients. When the prosecutors declined, Kaplan appointed private attorneys to prosecute Donziger—a nearly unprecedented step by a federal judge.
Kaplan’s hostility toward Donziger has been on ample display in his 21st-floor wood-paneled courtroom in downtown New York for nearly a decade. At times, he has said the pollution case in Ecuador was “not a bona fide litigation” and dismissed the Lago Agrio residents as “so-called plaintiffs.”
Martin Garbus, the legendary human rights lawyer who is part of Donziger’s legal team, is 86 years old and has appeared at hundreds of trials, including in the Deep South during the segregation era. He told me that Kaplan’s treatment of Donziger is the worst he has ever witnessed. “In the courtroom, Kaplan displayed a rage, a fury, that he channeled against Steve,” Garbus said. “He tried to humiliate him. You wouldn’t have to be an expert on the law to recognize it. It was brutal. I’ve never seen a guy eviscerated the way Kaplan tried to eviscerate Steve.” Current Issue View our current issue
For his part, Donziger said he hopes the Ecuadorans and their lawyers will hold Chevron accountable. He is a tall man—6 feet, 4 inches—and has been pacing restlessly around his Upper West Side apartment, reading law briefs or talking with his contacts in Ecuador by phone. These days, the coronavirus has driven almost everyone into their homes, but Donziger has already spent months “detained in a small apartment not because we did anything wrong,” he said, “but because we were successful and did a lot of things right. Facing the loss of one’s liberty not because one committed a crime but because of something dark and unaccountable in the system is terrifying. It calls into question most everything I believe about our country and my role in it.”
In an open letter to his supporters last August, Donziger wrote, “I never knew when I started working on this case in 1993 that I would face jail for standing up for the rights of my clients, who have been victimized by what is probably the world’s worst oil pollution…. Quite simply, Judge Kaplan and Chevron are working in lockstep to try and destroy me and my clients.”
Alberto Guerra, a former Ecuadoran judge who admitted to lying about his interactions with Donziger, became the target of outrage after he testified in support of Chevron.
The saga began in the 1980s, when Ecuadorans in the rain forest started to protest Texaco’s contamination. The company left Ecuador in 1992, after having dumped crude oil, drilling muds, and an oily, watery mixture known as formation water into unlined waste pits—a procedure that has been outlawed in Texas since 1969. Texaco also released billions of gallons of oil-laced water into the rain forest’s streams and lakes, even though the standard procedure in the United States has long been to inject the potentially toxic compounds safely deep underground.
Five peer-reviewed scientific studies have shown an increased incidence of cancer and other health risks in the area. (Chevron funded its own peer-reviewed study, which claimed to find no such cancer risk.)
About 20 grassroots organizations formed the Amazon Defense Coalition in the mid-1990s, and Donziger, a recent graduate of Harvard Law School, started representing the group in 1993. The Ecuadorans originally sued Texaco in the United States, but after years of delay, a federal judge in New York sent the case to Ecuador in 2001. More than a decade later, Chevron lost. Three levels of Ecuadoran courts up to the Supreme Court ratified the verdict and awarded the plaintiffs $9.5 billion. (Though even if Chevron honored the decision, none of the rain forest residents would receive a check. Instead, the Amazon Defense Coalition would use the money to scour the soil of toxins and build treatment centers for cancer patients.) Related Article Ecuador’s Battle for Environmental Justice Against Chevron James North
Chevron defended itself at every stage of the proceedings in Ecuador, and for years it never challenged the legitimacy of the process. But in 2010 it changed strategies. Chevron launched a countersuit in a New York federal court, alleging that Donziger and his allies had committed bribery and fraud in Ecuador to win the case. The company invoked the Racketeer Influenced and Corrupt Organizations Act, originally designed to prosecute the Mafia, and in 2011, Kaplan presided over a new trial. Donziger and the Ecuadoran codefendants expected that such serious charges would be tried before a jury, but at the last minute, Chevron dropped its demand for monetary damages. Under RICO law, this meant Donziger and the others lost their right to appear before a jury and Kaplan alone would decide the facts of the case. Charles Nesson, a Harvard law professor, wrote recently in the Harvard Law Record that “Chevron amended its demands to cheat Donziger out of a jury.”
From the beginning of the RICO trial, Kaplan made his pro-business outlook clear. He lauded Chevron as “a company of considerable importance to our economy that employs thousands all over the world, that supplies a group of commodities—gasoline, heating oil, other fuels, and lubricants—on which every one of us depends every single day. I don’t think there is anybody in this courtroom who wants to pull his car into a gas station to fill up and finds that there isn’t any gas there.”
During the case, Chevron claimed that Donziger and his clients had bribed the original trial judge in Ecuador. Chevron’s star witness was Alberto Guerra, a former judge who lost his position on the Ecuadoran bench because of corruption accusations and later, in testimony before an international trade tribunal, admitted to lying about his interactions with Donziger. The oil giant acknowledged paying Guerra and moving him and his family to a secret location in the United States. In all, Donziger estimated that Chevron has spent $2 million on the ex-judge.
Catastrophe: Cofan women stand near a pool of oil. Texaco spilled billions of gallons of contaminated water in Ecuador’s Amazon region. (Dolores Ochoa / AP)
Chevron’s lawyers rehearsed Guerra’s testimony with him 53 times and then put him on the stand in front of Kaplan. In his testimony, the disgraced ex-judge asserted that Donziger and an Ecuadoran lawyer, Pablo Fajardo, had offered him a $500,000 bribe and that Donziger and Fajardo had ghostwritten the final judgment against Chevron. Nicolás Zambrano, the judge who had rendered the decision in Ecuador, denied Guerra’s testimony, but Kaplan accepted Guerra’s account, dismissed Zambrano, and found Donziger and his Ecuadoran colleagues guilty in 2014.
Chevron’s legal offensive is an example of a Strategic Lawsuit Against Public Participation, or SLAPP, suit. Over the past few decades, corporations have brought an increasing number of SLAPP suits against environmental and human rights groups. The idea is to spend so much money that your underfunded opponents are forced to give up. The oil giant presumably also has a related aim: to prevent the plaintiffs from ever collecting their cleanup money. Kaplan’s verdict in the RICO case means Chevron can refuse to pay them in the United States. Chevron has long since sold its remaining holdings in Ecuador, so now Donziger and the Amazon Defense Front have to chase the corporation to other countries where it still does business. Chevron’s lawyers are already trying to use the New York RICO judgment to discredit legal efforts against the company in Canada and elsewhere.
Kaplan’s persecution of Donziger did not stop after the RICO verdict. Donziger faces criminal contempt charges because he has so far refused to turn over his personal computer and cell phone to Chevron, as Kaplan ordered him to do last March. Donziger said in a press release that he is defending his clients, because his electronic communications would give Chevron’s lawyers “backdoor access to spy on everything we are planning, thinking, and doing.” He said he wants to wait until the US Court of Appeals hears his defense, after which he will promptly hand over his computer and phone if the higher court confirms Kaplan’s directive.
Sean Comey, Chevron’s senior adviser on corporate issues, litigation, and financial communications, declined to comment for this article. As a result, I was unable to ask him a series of questions, including: Is your company still paying Guerra for his cooperation? How much is it continuing to spend on the legal case? Why do attorneys representing Chevron appear at every hearing against Donziger, even ones that don’t involve the oil company? And what is Chevron’s role, if any, in the multiple legal attacks against Donziger?
Show of hands: Protesters in New York City, some with symbolically oil-stained hands, demonstrate against Chevron in 2013. (Spencer Platt / Getty Images)
Meanwhile, residents in the Amazon rain forest live and work on poisoned land. Donziger cautions that their plight must remain the center of the case. He works closely with Luis Yanza, the elected leader of the Amazon Defense Coalition and a lifelong defender of the environment; in 2008, Yanza won the prestigious Goldman Environmental Prize, an award for frontline activists. Donziger and Yanza have talked and e-mailed regularly for more than 25 years, and Donziger, who is fluent in Spanish, estimated that he has visited Ecuador 250 times to consult with his clients.
Yanza told me that cancer continues to afflict people in the rain forest. “I visited several of our communities just last weekend, and each one had two or three cases of cancer, including a girl,” he said. And there is no adequate treatment facility in the Lago Agrio area, he added. “The closest cancer treatment center is in Quito, which is seven to 12 hours by bus, depending on where you live.”
He is indignant about the attacks on Donziger. “Steven is totally the opposite of how Chevron portrays him,” Yanza said. “He’s dedicated his life—a great part of his life—to defending people in our poor communities.” Yanza also dismissed the insinuations of critics that Donziger is manipulating the unsophisticated rain forest inhabitants. “This is the mentality of imperialism, saying that we don’t have the capacity to think and to act, to make decisions about our own lives. Steven and others in the United States do provide technical and legal help, but the fundamental decisions are made by us here.”
Donziger’s critics say that he is mainly after his percentage of the judgment, that he’s an ambulance-chasing attorney who found his way to the rain forest. But if that were true, wouldn’t Donziger have given up by now? Surely he would have cut his losses, dusted off his Harvard Law diploma, and found another potential money-making scheme. Instead, he has remained under house arrest for nearly eight months.
Donziger is also fighting to get his law license reinstated. (It was suspended in 2018 without a hearing, based on Kaplan’s findings in the contempt case.) In September and October, he appeared several times at a New York Bar Association hearing in lower Manhattan, before a polite referee named John Horan. The cramped, low-ceilinged hearing room was filled with human rights lawyers and environmentalists who support Donziger—as well as a few conservatively dressed attorneys representing Chevron. A parade of witnesses testified to Donziger’s honesty and integrity, including Rex Weyler, a founder of Greenpeace; Roger Waters of the rock band Pink Floyd; and Simon Taylor, one of the directors of Global Witness, the influential international anti-corruption organization. On February 24, Horan found in Donziger’s favor and recommended that his law license be restored. Horan, a former prosecutor, sharply criticized Chevron’s vendetta, writing, “The extent of [Donziger’s] pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, [that] while not a factor in my recommendation, [it] is nonetheless background to it.” Horan’s decision must now be reviewed by a New York state court.
On November 25, Donziger appeared before Senior US District Judge Loretta Preska, who will preside over his criminal contempt trial, to ask that his confinement be ended and replaced by an $800,000 bail bond, guaranteed by a number of his supporters. His attorney, Andrew Frisch, reminded the court that Donziger has a family and is not likely to abandon it to flee the United States. What’s more, Frisch pointed out, doing so would mean abandoning his clients in Ecuador. “For 25 years,” he noted, “Mr. Donziger has had his skin, his heart, and his soul in this cause, which is bigger than him.”
In the end, Preska turned down the request. “Mr. Donziger has ties to Ecuador, we know, indeed, to high-ranking government officials,” she said. “We know he has traveled to Ecuador on numerous, numerous occasions…. I find that he remains a flight risk, and accordingly, the request to eliminate monitoring and home confinement is denied.”
Donziger’s trial isn’t scheduled to begin until June 15. He is again challenging his home detention, but he could remain confined to his apartment until then. If this effort fails, he will have spent more than 300 days under house arrest.
Donziger described what it’s like to live under these circumstances. “Sleep is difficult because my ankle bracelet actually blinks and talks,” he said. “A voice reminds me to recharge the battery, which allows the state to monitor my every movement.” The bracelet is “like a giant black claw that clings to your lower leg. It’s designed to be a constant reminder of your banishment, to disorient you psychologically. Of course,” he added, “Chevron and Judge Kaplan want me to be consumed with my survival—rather than helping the indigenous people of Ecuador collect their judgment.”


thenation--2020-03-31--Union-Busting in the Name of God

Union-Busting in the Name of God

Betsy Pingree has been living with friends for free because she can ’ t afford an apartment while finishing her dissertation on the precarious conditions of migrant laborers in the 20th century .
Standing with fellow graduate-student workers at Boston College who are demanding recognition of their union , she acknowledged the irony .
Like many in her cohort on this leafy Catholic campus in the Boston area , she works as many as 60 hours a week on her research and teaching .
She earns a stipend of $ 22,600 a year ; the average one-bedroom apartment in Boston @ @ @ @ @ @ @ She used to live with her husband , a disabled veteran , who helped support her with his government payments .
Now that he works out of state , she can ’ t pay her own rent .
On March 10 , Pingree stood outside a Gothic-style Jesuit church at the entrance to the school with other graduate teaching and research assistants , holding placards that read , “ Worker rights are Catholic values.
” The rally came one day before Boston College announced it would cancel on-campus classes and shift to online @ @ @ @ @ @ @ BC declared that while fully funded graduate students would keep their stipends and benefits , hourly paid graduate students would get a check only “ if they are fulfilling their regular responsibilities—and work on campus.
” Meanwhile , Sam Levinson , a chemistry PhD candidate , said research assistants like her who work in labs were feeling pressured by their supervisors to continue showing up for work until the university announced it would “ ramp down ” research by the end of the day on March 20 .
The crisis only underscored the @ @ @ @ @ @ @ , who accuse Boston College of betraying the Jesuit tradition of reverence for unions by refusing to bargain with them after they won a union election in 2017 .
“ Without a contract , we have no access to any kind of guarantee that our bosses will protect us from harm in this situation , ” Levinson said .
At the rally , the organizers hoped to grab the attention of a delegation from the Association of Jesuit Colleges and Universities that was visiting the campus as part of a review process through @ @ @ @ @ @ @ demonstrate their commitment to Jesuit values , including on issues like payment for employees .
While the university has negotiated with unions representing police and facilities workers , administrators insist that Pingree and her colleagues are students , not workers .
And in opposing their right to form a union , the school has invoked a legal argument that has found increasing favor with federal agencies and courts : that BC ’ s Catholic mission puts the workers outside the protection of the law—in this case , outside the jurisdiction of the National @ @ @ @ @ @ @ which enforces the right of private-sector workers to unionize .
How Abortion Funds Showed America That ‘ Roe ’ Is Not Enough Religiously affiliated institutions , from Catholic universities like Boston College to for-profit corporations with Christian owners like Hobby Lobby , have used arguments about religious freedom to win exemptions from an array of laws intended to protect workers over the past decade .
Many of these cases concerned the Affordable Care Act ’ s requirement that employer health plans cover birth control .
But religious corporations have expanded such requests to @ @ @ @ @ @ @ including the right to underfund employee pension plans and bust unions in the name of God .
Some of these cases have been driven by groups like the Becket Fund for Religious Liberty , which wants to limit government regulation of religious entities and represented Hobby Lobby in its suit over the ACA ’ s birth control requirement , enabling foster care and adoption agencies to discriminate against LGBTQ parents and religious schools to fire employees with disabilities .
Other cases have been brought by universities like Boston College that may have a @ @ @ @ @ @ @ fighting unions on their campuses .
“ Employers have an incentive to refuse to bargain and just kind of rest on their religious character , ” said Charlotte Garden , an associate professor at Seattle University School of Law .
Her university , a Jesuit school , invoked a similar religious argument to defeat a union campaign by its adjunct professors .
The rise in corporate religious rights has coincided with an erosion in legal protections for workers overall .
Forced to turn to a higher power than the law , workers at @ @ @ @ @ @ @ of support for unions in Catholic teaching .
These workers have mounted campaigns accusing their institutions of taking advantage of the Trump administration ’ s evisceration of union rights while abandoning their Catholic values .
“ The efforts by these universities come at a time when a conservative judicial majority right now in the Supreme Court—and a growing sentiment on the federal court benches in general—favors using constitutional principles like the First Amendment as a battering ram against workers ’ ability to bargain collectively , ” said Joseph McCartin , a professor of @ @ @ @ @ @ @ you ’ re seeing is institutions that are hiding behind the law but ignoring their own social teaching.
” The NLRB is composed of Donald Trump appointees who have made clear their intention to roll back union rights , including those of graduate students at private universities like BC .
In September the board issued a draft rule—which is under review after a flood of public comments—to revoke the right of these students to unionize under its jurisdiction , reversing a ruling from 2016 that spurred a wave of graduate student unionization nationwide @ @ @ @ @ @ @ at religious universities , a federal appeals court in January ruled that Duquesne University did not have to recognize its adjunct faculty union because of its Catholic mission .
“ The workers at these institutions find themselves doubly betrayed , because on the one hand , like workers everywhere , they ’ re finding that the law provides less and less protection for them in the 21st-century economy , ” McCartin said .
“ At the same time , they are working in institutions whose principles and teachings would seem to uphold their @ @ @ @ @ @ @ those institutions are now telling them that no , they don ’ t have those rights.
” Since the 2016 election , labor organizers have anticipated that a Trump-appointed NLRB might issue a sweeping exemption to religious universities .
The fear of such a ruling prompted the Boston College graduate union to withdraw its petition to enforce its election in 2018 .
In a statement to The Nation , BC said this withdrawal “ ended any legal basis for the University to grant the students ’ request to bargain.
” ( The statement @ @ @ @ @ @ @ “ generous annual stipends.
” ) But Bryn Spielvogel , an education PhD candidate who makes $ 21,000 during the academic year , said the university shouldn ’ t rely on the Trump administration ’ s anti-union position .
“ They no longer have a legal obligation to recognize and bargain with our union , but we believe that they still have a moral obligation to do so , particularly as a Jesuit university that holds up social justice as a core value and mission of the university , ” Spielvogel said .
@ @ @ @ @ @ @ was found unconscious from a heart attack on the front lawn of her derelict home after being let go from her job as an adjunct professor at Duquesne University .
Vojtko , who at age 83 was being treated for ovarian cancer , had been earning less than $ 10,000 a year with no health benefits and was laid off without severance or retirement benefits from an institution where she had taught for a quarter of a century .
She never regained consciousness , and her death two weeks later became a rallying @ @ @ @ @ @ @ who work on fixed-term contracts ; such non-tenure-track positions make up more than 70 percent of teaching positions in higher education .
The year before her death , adjunct professors at Duquesne voted to form a union , but the university refused to recognize them , claiming it didn ’ t have to because of its Catholic mission .
While the NLRB generally protects workers at religious hospitals and workers like custodians who are clearly uninvolved in the religious missions of their employers , teachers at religious universities have proved to be more @ @ @ @ @ @ @ , in a case concerning Pacific Lutheran University , the NLRB said , over the objections of the Becket Fund , that it could protect adjunct faculty at religiously affiliated universities unless the school claimed the teachers performed a religious function .
The board therefore ordered Duquesne to negotiate with the adjuncts , ruling that only faculty in the theology department were exempt .
But this January the DC Circuit Court of Appeals said any attempt by the NLRB to parse the role of faculty “ impermissibly intrudes into religious matters.
” ( @ @ @ @ @ @ @ in the case . )
The adjunct professors at Duquesne point out that the university ’ s Catholic mission has not prevented it from recognizing the rights of police , public safety dispatchers , and other workers who are unionized at its Pittsburgh campus .
But according to the school , the adjuncts are different because “ the academic work of the University across all disciplines is the work of the Church and contributes to the Church ’ s mission of evangelization.
” Clint Benjamin , an adjunct professor of English at Duquesne @ @ @ @ @ @ @ would say that there is zero religious content in my curriculum , ” he said .
“ I guess by showing up , in their eyes , I work for the mission , but you don ’ t have to be religious to go there .
I didn ’ t have to take a fealty oath or anything.
” He called Duquesne ’ s decision to evoke its Catholic mission against the adjuncts “ willfully hypocritical.
” Duquesne , in response , pointed to a statement from the Rev .
Dennis Holtschneider , @ @ @ @ @ @ @ Colleges and Universities .
“ Duquesne voluntarily recognizes four unions on campus and is not so easily dismissed as anti-union , or anti-church-teaching on unions , ” he wrote .
“ The question at some Catholic universities is less about unions as a larger reality , and more about particular unions in particular situations , especially when the Catholic identity of an institution could be impacted.
” But Benjamin noted the school ’ s Catholic mission should make it even more inclined to protect adjuncts , who work in precarious conditions .
He @ @ @ @ @ @ @ Duquesne this semester because of low enrollment .
When they have work , adjuncts there make only $ 4,000 a course .
“ Pope Francis has said that labor unions are necessary and defends the dignity of work , and Duquesne itself pays lip service to helping , supposedly , the downtrodden and the weak , like good Catholics , ” Benjamin said .
“ But the reality is , at least in my situation , in our adjunct situation , that they do not.
” In 1891 , in response to the @ @ @ @ @ @ @ for the working people of the world to unionize .
“ Some opportune remedy must be found quickly for the misery and wretchedness pressing so unjustly on the majority of the working class : for the ancient workingmen ’ s guilds were abolished in the last century , and no other protective organization took their place , ” he wrote in the encyclical Rerum Novarum .
While railing against socialism and unchecked capitalism alike , the pope called for workers to form “ societies for mutual help.
” “ The most important of @ @ @ @ @ @ @ ” he wrote .
More than 40 years later , on the heels of the Great Depression , Congress passed the National Labor Relations Act , guaranteeing the right of private-sector workers to unionize .
But employees of churches are deemed exempt from the law , as are parochial school teachers , who were excluded by a 1979 Supreme Court decision .
Some workers at religiously affiliated entities have also been excluded from discrimination protections in the Civil Rights Act of 1964 and the Americans with Disabilities Act .
But as the rights @ @ @ @ @ @ @ shape of these entities has changed dramatically over time .
A century ago , religious institutions were often church-funded charities that employed and served members of that religion , said Elizabeth Sepper , a professor at the University of Texas at Austin School of Law .
“ Today , that ’ s not what religious institutions look like , even in the nonprofit sector , ” she said .
When it comes to health care in particular , religious institutions tend to look much more like big businesses , paying their CEOs millions @ @ @ @ @ @ @ for care .
Catholic hospitals control at least one in six acute-care beds nationwide .
In some cases , religious corporations or those with Christian owners have weaponized the federal Religious Freedom Restoration Act , a law intended to provide stronger protections for people to practice their religions , to justify firing or denying benefits to women and LGBTQ workers .
Over 100 for-profit and nonprofit corporations filed challenges alleging violations of religious freedom over the Obama administration ’ s requirement that employees receive birth control coverage .
But these corporations have pushed @ @ @ @ @ @ @ In 2017 , after receiving briefs from the Becket Fund and right-wing powerhouses Alliance Defending Freedom and the Thomas More Society , the Supreme Court ruled that an exemption for “ church plans ” in the federal law protecting employee pension funds can apply to religiously affiliated hospitals .
Other cases expanding the rights of religious employers have hinged on a constitutional principle called the ministerial exemption , which allows religious institutions to hire and fire ministers without regard for antidiscrimination law .
In 2012 the Becket Fund scored a major victory when @ @ @ @ @ @ @ exemption , a Lutheran school could fire a teacher with narcolepsy who had daily religious duties and a title that included the word “ minister.
” Becket has argued for an even broader application of the loophole in two cases now before the Supreme Court that involve teachers with more limited religious duties—one who said she was fired because of age discrimination and the other because she had breast cancer .
The Trump administration issued a draft rule last year to let religiously affiliated federal contractors , including for-profit companies , fire workers @ @ @ @ @ @ @ principles .
Luke Goodrich , a vice president of the Becket Fund , cheered the decision , telling The Washington Post , “ When a religious group says ‘ Hey , we need you to be a Christian and adhere to Christian teachings , ’ federal law has recognized that ’ s not discrimination.
” While religious exemptions have weakened their power , workers at Catholic institutions may have a unique advantage when it comes to union rights .
“ The church says workers have a right to organize and does not qualify @ @ @ @ @ @ @ workers , ” said Clayton Sinyai , the executive director of the Catholic Labor Network , a group of labor organizers , clergy , and social justice activists who promote Catholic teaching on labor .
“ So it ’ s quite possible for a worker not to have a protected legal right to organize under American labor law and yet the church would still recognize that they have a right to organize under natural law or under church teaching.
” The network keeps a tally of the more than 600 Catholic institutions with @ @ @ @ @ @ @ schools nationwide that have bargained with teachers , even though the Supreme Court has said they don ’ t have to .
Appealing to the Catholic mission of an institution has at times proved to be a winning strategy .
In 2017 , with their right to form a union in doubt under Trump , graduate students at Georgetown University , a Jesuit institution , asked it to voluntarily recognize their union .
Georgetown has touted its Jesuit-inspired respect for workers as part of a just-employment policy issued in 2005 , after students @ @ @ @ @ @ @ living wage for contract employees , including janitors and food service workers .
“ With hope and expectation that this institution will do the right thing , we call on Georgetown University to live up to its highest Jesuit values of promoting cura personalis [ care of the whole person ] and offering dignified work , ” the graduate students wrote in their request for recognition .
At first , Georgetown rejected the union , claiming , as Boston College has done , that the graduate students were not workers—even though the union @ @ @ @ @ @ @ their labor as teaching and research assistants and instructors .
So the organizers went on the offensive with a public campaign centered on Georgetown ’ s Jesuit mission .
During the university ’ s celebration of Jesuit Heritage Week in 2018 , they handed out flyers emblazoned with the hashtag PracticeWhatYouPreach and a quotation from Pope Francis : “ There is no good society without a good union.
” “ Pope Francis , whether he knows it or not , has been actually very helpful to us in providing quotes that we can @ @ @ @ @ @ @ a history PhD candidate at Georgetown .
The students planned to stage a mock award ceremony outside a Georgetown fundraiser , handing out fake prizes to cutouts of Georgetown officials to congratulate them for failing to live up to the university ’ s Jesuit mission .
On the eve of the event , McDonnell said , Georgetown folded .
“ It was at this point that the university e-mailed us and said , ‘ Don ’ t do this .
We ’ ll talk next week about an election agreement.
’ ” Georgetown @ @ @ @ @ @ @ a third-party arbitrator , without the involvement of Trump ’ s NLRB .
The agreement ensured that Georgetown would continue to recognize the union , regardless of what the NLRB concludes about the rights of graduate workers .
Other Catholic entities should follow Georgetown ’ s lead , said McCartin of the history department , who also directs the university ’ s Kalmanovitz Initiative for Labor and the Working Poor .
“ If these institutions don ’ t want to be governed by the civil law , it ’ s incumbent upon them @ @ @ @ @ @ @ that provide for ways and means through which workers can come together , if they choose to , and bargain with their employer , ” McCartin said .
“ In a sense , this is what Georgetown has done , and there ’ s nothing that blocks any other institution from doing it.
” In Everett , Washington , a city north of Seattle reeling from the coronavirus pandemic , workers at a hospice owned by the state ’ s largest health care system , Providence Health & Services , have been fighting @ @ @ @ @ @ @ John Shannon , a social worker at the hospice who is Catholic , said he made a presentation during a bargaining session about the values of the Sisters of Providence , who in the 19th century founded the hospitals that evolved into Providence , now a multibillion-dollar corporation .
“ I said , ‘ I ’ ve had all these years of education through my master ’ s degree in Catholic institutions , and I ’ m having a real hard time seeing how we ’ re honoring these values in the current @ @ @ @ @ @ @ ’ ” he recalled .
“ One of the people on their bargaining committee…said , ‘ Well , we do a reflection before every meeting.
’ And that was it.
” Catholic health systems like Providence follow directives issued by the US Conference of Catholic Bishops that are best known for prohibiting abortion , most forms of contraception , sterilization , and fertility treatments like in vitro fertilization .
The rules have been used to turn patients away when they are bleeding and in pain from miscarriages and to cancel gender-affirming surgeries for @ @ @ @ @ @ @ section of the directives requires Catholic hospitals to provide “ recognition of the rights of employees to organize and bargain collectively without prejudice to the common good.
” The Providence workers say that ’ s not happening .
And while the NLRB does protect employees at religious health care facilities , they say that hasn ’ t stopped their employer from slow-walking negotiations or , in the case of Providence workers at Swedish Medical Center in Seattle who went on strike in January , locking them out .
As they fight for a @ @ @ @ @ @ @ spiraling pandemic , the Providence workers in Everett have support from another source outside the law : Sister Helen Brennan , a 70-year member of the hospital ’ s founding order .
Brennan , who also rallied in the rain with locked-out Swedish-Providence workers in January , said such solidarity is part of the Catholic mission of the Sisters , which the hospice workers understand , even if well-paid hospital executives may not .
“ They know what we were about and what our mission is about .
It ’ s about care @ @ @ @ @ @ @ The Nation .
“ And if you care for the people , you don ’ t need million-dollar salaries.
” Not all Catholic authority figures feel the same .
The Association of Jesuit Colleges and Universities , after its delegation ’ s visit to Boston College , refused to comment on the graduate union , saying it was “ an issue that Boston College is handling directly.
” But Brennan , at least , seems to agree with the BC workers that even if the law has loopholes for religious institutions , the @ @ @ @ @ @ @ 129 years , the popes have said that all people , not just Catholics , have a right to unionize , ” Kyle McCaffery , a master ’ s theology student at Boston College , said at the March rally .
“ Catholicism grants no religious exemption to this administration .
”

This article appears in the April 13, 2020 issue.
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Betsy Pingree has been living with friends for free because she can’t afford an apartment while finishing her dissertation on the precarious conditions of migrant laborers in the 20th century. Standing with fellow graduate-student workers at Boston College who are demanding recognition of their union, she acknowledged the irony. Like many in her cohort on this leafy Catholic campus in the Boston area, she works as many as 60 hours a week on her research and teaching. She earns a stipend of $22,600 a year; the average one-bedroom apartment in Boston costs $11,000 more than that. She used to live with her husband, a disabled veteran, who helped support her with his government payments. Now that he works out of state, she can’t pay her own rent.
On March 10, Pingree stood outside a Gothic-style Jesuit church at the entrance to the school with other graduate teaching and research assistants, holding placards that read, “Worker rights are Catholic values.” The rally came one day before Boston College announced it would cancel on-campus classes and shift to online instruction because of the coronavirus threat. BC declared that while fully funded graduate students would keep their stipends and benefits, hourly paid graduate students would get a check only “if they are fulfilling their regular responsibilities—and work on campus.” Meanwhile, Sam Levinson, a chemistry PhD candidate, said research assistants like her who work in labs were feeling pressured by their supervisors to continue showing up for work until the university announced it would “ramp down” research by the end of the day on March 20. The crisis only underscored the lack of protection faced by these workers, who accuse Boston College of betraying the Jesuit tradition of reverence for unions by refusing to bargain with them after they won a union election in 2017. “Without a contract, we have no access to any kind of guarantee that our bosses will protect us from harm in this situation,” Levinson said. At the rally, the organizers hoped to grab the attention of a delegation from the Association of Jesuit Colleges and Universities that was visiting the campus as part of a review process through which schools like BC are supposed to demonstrate their commitment to Jesuit values, including on issues like payment for employees. While the university has negotiated with unions representing police and facilities workers, administrators insist that Pingree and her colleagues are students, not workers. And in opposing their right to form a union, the school has invoked a legal argument that has found increasing favor with federal agencies and courts: that BC’s Catholic mission puts the workers outside the protection of the law—in this case, outside the jurisdiction of the National Labor Relations Board (NLRB), which enforces the right of private-sector workers to unionize. More From Amy Littlefield The Real Agenda of Moms for Liberty August 7, 2023 The Brave, Often Lonely Fight of Trans Lawmakers in State Legislatures July 25, 2023 The Anti-Abortion Movement Gets a Dose of Post-“Roe” Reality June 28, 2023
Religiously affiliated institutions, from Catholic universities like Boston College to for-profit corporations with Christian owners like Hobby Lobby, have used arguments about religious freedom to win exemptions from an array of laws intended to protect workers over the past decade. Many of these cases concerned the Affordable Care Act’s requirement that employer health plans cover birth control. But religious corporations have expanded such requests to seek ever-broader power over their workers, including the right to underfund employee pension plans and bust unions in the name of God. Some of these cases have been driven by groups like the Becket Fund for Religious Liberty, which wants to limit government regulation of religious entities and represented Hobby Lobby in its suit over the ACA’s birth control requirement, enabling foster care and adoption agencies to discriminate against LGBTQ parents and religious schools to fire employees with disabilities. Other cases have been brought by universities like Boston College that may have a financial rather than a religious motive for fighting unions on their campuses. “Employers have an incentive to refuse to bargain and just kind of rest on their religious character,” said Charlotte Garden, an associate professor at Seattle University School of Law. Her university, a Jesuit school, invoked a similar religious argument to defeat a union campaign by its adjunct professors. Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin My Homeland Is Being Ruled by Terror. The World Must Pay Attention. My Homeland Is Being Ruled by Terror. The World Must Pay Attention. Manny Maung Popular "swipe left below to view more authors"Swipe → The Evisceration of a Public University The Evisceration of a Public University Lisa M. Corrigan The Patronizing Moralism of David Brooks The Patronizing Moralism of David Brooks Chris Lehmann “The Blind Side” Was Always Trash “The Blind Side” Was Always Trash Dave Zirin My Homeland Is Being Ruled by Terror. The World Must Pay Attention. My Homeland Is Being Ruled by Terror. The World Must Pay Attention. Manny Maung
The rise in corporate religious rights has coincided with an erosion in legal protections for workers overall. Forced to turn to a higher power than the law, workers at Catholic institutions have invoked the long history of support for unions in Catholic teaching. These workers have mounted campaigns accusing their institutions of taking advantage of the Trump administration’s evisceration of union rights while abandoning their Catholic values. “The efforts by these universities come at a time when a conservative judicial majority right now in the Supreme Court—and a growing sentiment on the federal court benches in general—favors using constitutional principles like the First Amendment as a battering ram against workers’ ability to bargain collectively,” said Joseph McCartin, a professor of history at Georgetown University. “What you’re seeing is institutions that are hiding behind the law but ignoring their own social teaching.”
The NLRB is composed of Donald Trump appointees who have made clear their intention to roll back union rights, including those of graduate students at private universities like BC. In September the board issued a draft rule—which is under review after a flood of public comments—to revoke the right of these students to unionize under its jurisdiction, reversing a ruling from 2016 that spurred a wave of graduate student unionization nationwide. In a second blow to workers at religious universities, a federal appeals court in January ruled that Duquesne University did not have to recognize its adjunct faculty union because of its Catholic mission. “The workers at these institutions find themselves doubly betrayed, because on the one hand, like workers everywhere, they’re finding that the law provides less and less protection for them in the 21st-century economy,” McCartin said. “At the same time, they are working in institutions whose principles and teachings would seem to uphold their right to come together, and yet those institutions are now telling them that no, they don’t have those rights.”
Since the 2016 election, labor organizers have anticipated that a Trump-appointed NLRB might issue a sweeping exemption to religious universities. The fear of such a ruling prompted the Boston College graduate union to withdraw its petition to enforce its election in 2018. In a statement to The Nation, BC said this withdrawal “ended any legal basis for the University to grant the students’ request to bargain.” (The statement added that teaching and research assistants receive “generous annual stipends.”) But Bryn Spielvogel, an education PhD candidate who makes $21,000 during the academic year, said the university shouldn’t rely on the Trump administration’s anti-union position. “They no longer have a legal obligation to recognize and bargain with our union, but we believe that they still have a moral obligation to do so, particularly as a Jesuit university that holds up social justice as a core value and mission of the university,” Spielvogel said.
A higher law: Graduate student workers at Boston College argue that the university is betraying its Jesuit values in refusing to recognize their union. (Daniel Patterson)
In August 2013, Margaret Mary Vojtko was found unconscious from a heart attack on the front lawn of her derelict home after being let go from her job as an adjunct professor at Duquesne University. Vojtko, who at age 83 was being treated for ovarian cancer, had been earning less than $10,000 a year with no health benefits and was laid off without severance or retirement benefits from an institution where she had taught for a quarter of a century. She never regained consciousness, and her death two weeks later became a rallying cry for the plight of adjuncts, who work on fixed-term contracts; such non-tenure-track positions make up more than 70 percent of teaching positions in higher education. The year before her death, adjunct professors at Duquesne voted to form a union, but the university refused to recognize them, claiming it didn’t have to because of its Catholic mission. Current Issue View our current issue
While the NLRB generally protects workers at religious hospitals and workers like custodians who are clearly uninvolved in the religious missions of their employers, teachers at religious universities have proved to be more of a sticking point. In 2014, in a case concerning Pacific Lutheran University, the NLRB said, over the objections of the Becket Fund, that it could protect adjunct faculty at religiously affiliated universities unless the school claimed the teachers performed a religious function. The board therefore ordered Duquesne to negotiate with the adjuncts, ruling that only faculty in the theology department were exempt. But this January the DC Circuit Court of Appeals said any attempt by the NLRB to parse the role of faculty “impermissibly intrudes into religious matters.” (The union has petitioned for a rehearing in the case.)
The adjunct professors at Duquesne point out that the university’s Catholic mission has not prevented it from recognizing the rights of police, public safety dispatchers, and other workers who are unionized at its Pittsburgh campus. But according to the school, the adjuncts are different because “the academic work of the University across all disciplines is the work of the Church and contributes to the Church’s mission of evangelization.” Clint Benjamin, an adjunct professor of English at Duquesne, rejected that idea. “I would say that there is zero religious content in my curriculum,” he said. “I guess by showing up, in their eyes, I work for the mission, but you don’t have to be religious to go there. I didn’t have to take a fealty oath or anything.”
He called Duquesne’s decision to evoke its Catholic mission against the adjuncts “willfully hypocritical.” Duquesne, in response, pointed to a statement from the Rev. Dennis Holtschneider, the president of the Association of Catholic Colleges and Universities. “Duquesne voluntarily recognizes four unions on campus and is not so easily dismissed as anti-union, or anti-church-teaching on unions,” he wrote. “The question at some Catholic universities is less about unions as a larger reality, and more about particular unions in particular situations, especially when the Catholic identity of an institution could be impacted.”
But Benjamin noted the school’s Catholic mission should make it even more inclined to protect adjuncts, who work in precarious conditions. He has not been assigned any classes at Duquesne this semester because of low enrollment. When they have work, adjuncts there make only $4,000 a course.
“Pope Francis has said that labor unions are necessary and defends the dignity of work, and Duquesne itself pays lip service to helping, supposedly, the downtrodden and the weak, like good Catholics,” Benjamin said. “But the reality is, at least in my situation, in our adjunct situation, that they do not.”
Papal decree: Pope Francis said, “There is no good society without a good union.” (Vatican Pool / Getty Images)
In 1891, in response to the industrial revolution, Pope Leo XIII called for the working people of the world to unionize. “Some opportune remedy must be found quickly for the misery and wretchedness pressing so unjustly on the majority of the working class: for the ancient workingmen’s guilds were abolished in the last century, and no other protective organization took their place,” he wrote in the encyclical Rerum Novarum. While railing against socialism and unchecked capitalism alike, the pope called for workers to form “societies for mutual help.” “The most important of all are workingmen’s unions,” he wrote.
More than 40 years later, on the heels of the Great Depression, Congress passed the National Labor Relations Act, guaranteeing the right of private-sector workers to unionize. But employees of churches are deemed exempt from the law, as are parochial school teachers, who were excluded by a 1979 Supreme Court decision. Some workers at religiously affiliated entities have also been excluded from discrimination protections in the Civil Rights Act of 1964 and the Americans with Disabilities Act. But as the rights of religious entities have expanded, the shape of these entities has changed dramatically over time. A century ago, religious institutions were often church-funded charities that employed and served members of that religion, said Elizabeth Sepper, a professor at the University of Texas at Austin School of Law. “Today, that’s not what religious institutions look like, even in the nonprofit sector,” she said. When it comes to health care in particular, religious institutions tend to look much more like big businesses, paying their CEOs millions of dollars and charging patients high rates for care. Catholic hospitals control at least one in six acute-care beds nationwide.
In some cases, religious corporations or those with Christian owners have weaponized the federal Religious Freedom Restoration Act, a law intended to provide stronger protections for people to practice their religions, to justify firing or denying benefits to women and LGBTQ workers. Over 100 for-profit and nonprofit corporations filed challenges alleging violations of religious freedom over the Obama administration’s requirement that employees receive birth control coverage. But these corporations have pushed religious exemptions far beyond birth control. In 2017, after receiving briefs from the Becket Fund and right-wing powerhouses Alliance Defending Freedom and the Thomas More Society, the Supreme Court ruled that an exemption for “church plans” in the federal law protecting employee pension funds can apply to religiously affiliated hospitals. Other cases expanding the rights of religious employers have hinged on a constitutional principle called the ministerial exemption, which allows religious institutions to hire and fire ministers without regard for antidiscrimination law. In 2012 the Becket Fund scored a major victory when the Supreme Court ruled that under the exemption, a Lutheran school could fire a teacher with narcolepsy who had daily religious duties and a title that included the word “minister.” Becket has argued for an even broader application of the loophole in two cases now before the Supreme Court that involve teachers with more limited religious duties—one who said she was fired because of age discrimination and the other because she had breast cancer. The Trump administration issued a draft rule last year to let religiously affiliated federal contractors, including for-profit companies, fire workers who violate a company’s religious principles. Luke Goodrich, a vice president of the Becket Fund, cheered the decision, telling The Washington Post, “When a religious group says ‘Hey, we need you to be a Christian and adhere to Christian teachings,’ federal law has recognized that’s not discrimination.”
Patients first: Health care workers at Swedish-Providence Medical Center in Seattle went on strike in January to protest the hospital’s staffing levels and wages. They say the hospital isn’t honoring its Catholic values. (Darren Hauck / Getty Images)
While religious exemptions have weakened their power, workers at Catholic institutions may have a unique advantage when it comes to union rights. “The church says workers have a right to organize and does not qualify that by saying only some groups of workers,” said Clayton Sinyai, the executive director of the Catholic Labor Network, a group of labor organizers, clergy, and social justice activists who promote Catholic teaching on labor. “So it’s quite possible for a worker not to have a protected legal right to organize under American labor law and yet the church would still recognize that they have a right to organize under natural law or under church teaching.” The network keeps a tally of the more than 600 Catholic institutions with established unions, including 300 Catholic K–12 schools nationwide that have bargained with teachers, even though the Supreme Court has said they don’t have to.
Appealing to the Catholic mission of an institution has at times proved to be a winning strategy. In 2017, with their right to form a union in doubt under Trump, graduate students at Georgetown University, a Jesuit institution, asked it to voluntarily recognize their union. Georgetown has touted its Jesuit-inspired respect for workers as part of a just-employment policy issued in 2005, after students went on hunger strike and won a living wage for contract employees, including janitors and food service workers. “With hope and expectation that this institution will do the right thing, we call on Georgetown University to live up to its highest Jesuit values of promoting cura personalis [care of the whole person] and offering dignified work,” the graduate students wrote in their request for recognition.
At first, Georgetown rejected the union, claiming, as Boston College has done, that the graduate students were not workers—even though the union points out that the university relies on their labor as teaching and research assistants and instructors. So the organizers went on the offensive with a public campaign centered on Georgetown’s Jesuit mission. During the university’s celebration of Jesuit Heritage Week in 2018, they handed out flyers emblazoned with the hashtag PracticeWhatYouPreach and a quotation from Pope Francis: “There is no good society without a good union.”
“Pope Francis, whether he knows it or not, has been actually very helpful to us in providing quotes that we can use,” said Brent McDonnell, a history PhD candidate at Georgetown. The students planned to stage a mock award ceremony outside a Georgetown fundraiser, handing out fake prizes to cutouts of Georgetown officials to congratulate them for failing to live up to the university’s Jesuit mission. On the eve of the event, McDonnell said, Georgetown folded. “It was at this point that the university e-mailed us and said, ‘Don’t do this. We’ll talk next week about an election agreement.’”
Georgetown agreed to a union election overseen by a third-party arbitrator, without the involvement of Trump’s NLRB. The agreement ensured that Georgetown would continue to recognize the union, regardless of what the NLRB concludes about the rights of graduate workers. Other Catholic entities should follow Georgetown’s lead, said McCartin of the history department, who also directs the university’s Kalmanovitz Initiative for Labor and the Working Poor.
“If these institutions don’t want to be governed by the civil law, it’s incumbent upon them to come up with their own rules that provide for ways and means through which workers can come together, if they choose to, and bargain with their employer,” McCartin said. “In a sense, this is what Georgetown has done, and there’s nothing that blocks any other institution from doing it.”
In Everett, Washington, a city north of Seattle reeling from the coronavirus pandemic, workers at a hospice owned by the state’s largest health care system, Providence Health & Services, have been fighting for a union contract since 2016. John Shannon, a social worker at the hospice who is Catholic, said he made a presentation during a bargaining session about the values of the Sisters of Providence, who in the 19th century founded the hospitals that evolved into Providence, now a multibillion-dollar corporation. “I said, ‘I’ve had all these years of education through my master’s degree in Catholic institutions, and I’m having a real hard time seeing how we’re honoring these values in the current climate of a more business focus,’” he recalled. “One of the people on their bargaining committee…said, ‘Well, we do a reflection before every meeting.’ And that was it.”
Catholic health systems like Providence follow directives issued by the US Conference of Catholic Bishops that are best known for prohibiting abortion, most forms of contraception, sterilization, and fertility treatments like in vitro fertilization. The rules have been used to turn patients away when they are bleeding and in pain from miscarriages and to cancel gender-affirming surgeries for transgender people. But a seemingly forgotten section of the directives requires Catholic hospitals to provide “recognition of the rights of employees to organize and bargain collectively without prejudice to the common good.” The Providence workers say that’s not happening. And while the NLRB does protect employees at religious health care facilities, they say that hasn’t stopped their employer from slow-walking negotiations or, in the case of Providence workers at Swedish Medical Center in Seattle who went on strike in January, locking them out. As they fight for a living wage and increased staffing amid a spiraling pandemic, the Providence workers in Everett have support from another source outside the law: Sister Helen Brennan, a 70-year member of the hospital’s founding order. Brennan, who also rallied in the rain with locked-out Swedish-Providence workers in January, said such solidarity is part of the Catholic mission of the Sisters, which the hospice workers understand, even if well-paid hospital executives may not. “They know what we were about and what our mission is about. It’s about care for the people,” she told The Nation. “And if you care for the people, you don’t need million-dollar salaries.”
Not all Catholic authority figures feel the same. The Association of Jesuit Colleges and Universities, after its delegation’s visit to Boston College, refused to comment on the graduate union, saying it was “an issue that Boston College is handling directly.” But Brennan, at least, seems to agree with the BC workers that even if the law has loopholes for religious institutions, the Catholic faith does not.
“For 129 years, the popes have said that all people, not just Catholics, have a right to unionize,” Kyle McCaffery, a master’s theology student at Boston College, said at the March rally. “Catholicism grants no religious exemption to this administration.”