Litigation as Advocacy Part I

This topic is far from merely academic for me. On Saturday, I attended the graduation of one of the immigrant students whose right to that same college education was threatened in a mean-spirited and, ultimately, ill-advised lawsuit between 2004-2007 in Kansas. My participation in that lawsuit taught me a lot about how to use litigation, even when unprovoked and unwanted, as an advocacy strategy. And, seeing this beautiful and talented young woman walk across the stage to accept the Bachelor’s and Master’s degree that she earned in an amazing 5 years, I was reminded of how glad I am that our judicial system, with all of its admitted flaws, is less susceptible to political pressures than the other branches of our government. I am grateful to the attorneys who defended her right to dream in the country she now calls her own, and I am thankful for the judges that ruled that disliking immigrants does not give someone an inherent right to seek legal redress. But I’m getting ahead of myself…

“The authority of a court to declare laws and official acts unconstitutional is a practice that…gives to judges so obvious a share in policymaking that…there is little room left for the pretense that judges only apply the law” (Ehrmann, 1976).

Social work advocates are primarily concerned with administrative law (rather than civil or criminal)—judgments about who is right or wrong according to the law in disputes between citizens and governmental entities (federal agencies, school boards, state departments). Many of the cases in which we and our clients participate involve invalidating statutes at all governmental levels that violate citizens’ basic constitutional rights (due process, Equal Protection). In the U.S. Constitution, the court system is designed to serve as important check and balance on legislative and executive power (supposed to be the ultimate, impartial arbiter). Importantly, these decisions leave a more lasting legacy, often, than executive or even legislative decisions (especially b/c of little turnover among judges) (This is one of the reasons why there is so much discussion anytime there is a federal court opening, but more on this soon related to Obama’s nomination to fill the Supreme Court vacancy!)

The judiciary can do A LOT in relation to social policy:
• Mandate entitlement/disentitlement of target populations
• Eliminate programs
• Require new spending (without regard to where it will come from, which can be a particular boon for social work advocates fighting against elected officials’ reluctance to spend)
• Require procedural changes
• Both create new and reshape/interpret old social policy
• Take on oversight of agencies or other entities until satisfied that problems have been remedied (function as ‘quasi administrators’)
• Hold people/institutions in contempt of court (often for failing to provide requested information)

I alluded above to the judiciary’s reputation for being less political, and politicized, than other branches of government. I believe that I witnessed this during our court proceedings; despite the fact that the controversy over undocumented immigration was raging throughout these years, including two elections that centered around politicians’ stances on the issue, street protests with millions of participants, and the highly publicized collapse of negotiations in Congress over comprehensive immigration reform, the court’s ruling was almost entirely apolitical, instead centering around the technical finding that the student plaintiffs in the case lacked standing to sue, since they could not prove that they were harmed in any way by Kansas’ instate tuition law nor that they would benefit in any way from its repeal. If politics are not the driving force here, then, what influences judicial decision-making?
1. Past court decisions
2. Constitutional principles
3. Specifics of the case at hand–in litigation, the details are everything.
4. Efficacy of legal representation–we have to acknowledge this, and it’s one of the major weaknesses of litigation as an advocacy strategy, since ‘our side’ tends to fall somewhat short in terms of access to counsel.
5. Framing (in legal arguments)—for example, disability issues as civil rights concerns (this links issues to different judicial precedents than might otherwise)

Basic Considerations in Judicial Policy for Advocates to Consider

  • Can only act in reference to a specific, concrete case (absent case facts, judges’ opinions about particular policies are irrelevant, and the specifics of the case will determine, to a large extent, the ruling)—key issue is whether legislation must explicitly authorize a right of action or whether courts will recognized implied rights of private action *A key role for advocates, then, is in selecting the best plaintiffs*
  • Courts can intervene regarding both legislative and executive/administrative acts, seeing both (rightly) as policy statements
  • Courts not often influenced by social science research (with rare exceptions—Brown v. Topeka Board of Education is one), precisely because they are interested in the connection between the specific facts of the case and the constitutional/legal protections at issue, not more abstract understandings of the impact on the average
  • State v. federal court—deal with different questions, but also can be a strategic decision about where to file the case (federal trial courts resolve disputes between parties from different states or with federal government implication)
  • Level of court (district, appellate, Supreme Court) important—often conflicts here, which are not really instructive but more a sign of the disjointed nature of the judiciary (appellate courts usually cannot reexamine the facts of the case but just decisions that parties believe were made in error)—appeals courts must hear all cases brought before them, while supreme courts (state and federal) can choose—most cases filed in state systems, and cannot move back and forth (except to US Supreme Court, if involves federal question)
  • Because of insulation from politics, elected officials may defer contentious decisions to courts (language in statutes becoming less precise; courts facilitating by embracing more activist stance and easing requirements to sue)—racial discrimination cases the most poignant example (has greater power to act b/c of this insulation)
  • Judicial philosophy as important as political ideology in determining outcomes (for courts as compared to legislatures)—sociological jurisprudence (balance needs of social interests), Legal Realists (reject influence of precedence and act on case by case—allowed courts to take on social ills without discussions about normative values (b/c just based on this case—this is one way that courts can delve into more controversial issues than elected policymakers)—can lead to overanalysis when normative disputes are what really stands in the way of solutions)—judges think in terms of rights implicated in a given situation, instead of alternative ways to solve problems
  • Sometimes, advocates will (by necessity) cling to decisions that are destined for difficulty b/c of changing circumstances in the case or faulty legal framework (for example, Plyler v. Doe (changing demographics and legal foundation based on ‘lack of compelling state interest’))

    Tomorrow I’ll post some of my reflections on what social work advocates should consider as they pursue litigation as a path to social justice, lessons learned from my involvement in the Day v. Sebelius case that resulted in the protection of the statute that allowed undocumented immigrant students to attend post-secondary education in Kansas at instate tuition rates. So many memories from that experience flooded me watching A. shake hands and receive her diplomas. I remember the sinking feeling when the reporter called for comments on the lawsuit’s filing (the first I learned of it), the anger I felt listening to the plaintiffs’ attorney attack these kids and the elected officials who saw promise in them, the sadness watching immigrant kids watch their American-born peers sue to kick them out of college, and the elation when I got the call that the case had been dismissed. In the end, I think of that case as an example when the system worked as it was supposed to, when people who felt wronged could bring suit in our courts, which, then, coolly and dispassionately reviewed the facts and let stand a law found consistent with constitutional requirements, despite political pressure to do otherwise. I’m glad that they could sue us, really, because it means that we can too, and it made her victory on Saturday even sweeter, knowing that she shares a history with thousands of brave children of color and their families who, too, had to turn to the courts to make our democracy work for them.

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