Litigation as Advocacy–Part II

Yesterday I wrote a little bit about litigation as an advocacy strategy and some general thoughts for social workers considering that particular recourse. Today, I’ll tell in greater detail the story of the Day v. Sebelius case in which I played a central role as an advocate for immigrant students, and also share some of my thoughts about the advantages and costs of litigation for social work advocates. If you have been involved in cases dealing with questions of social policy as a plaintiff or a defendant, I want to hear about them. What did your organizations learn in the process? What questions were at stake, and what was the outcome? What would you advise advocates who find themselves in similar positions?

I was very involved in the effort to pass Kansas’ instate tuition law for undocumented immigrant students, which was a two-year fight in the Kansas Legislature (to be described in some later post). Governor Kathleen Sebelius finally signed the law in May 2004. Immediately, Kris Kobach, then a candidate for the GOP nomination for the U.S. House seat held by Dennis Moore (and a law professor at UMKC who was establishing a reputation for being outspokenly anti-immigrant), threatened to sue the state in federal court, alleging that the law violated a section of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The national advocates with whom I spoke all but dismissed this, as other groups had threatened to sue in other states with instate tuition laws, but I was more worried. I feared, as was ultimately demonstrated, that Kobach would relish an opportunity for free publicity in advance of his long-shot run at the nomination, and it seemed that the Federation for American Immigration Reform just needed a willing lawyer and media presence to make a run at it. This was my first lesson in litigation: even when you don’t have a great case, and you’re likely to lose, if you can afford to sue, you can generate a lot of attention, some instant relevance even as a marginal player, and some free news coverage. You can also, of course, use the legal process to gather information from your adversaries, although that wasn’t a motivation in this case.

The case was filed in July 2004, after FAIR ran ads in university papers soliciting plaintiffs by asking, “Are you an out-of-state student? Do you think that illegal aliens should pay less in tuition than you do?” or something like that. Kobach announced the suit in a press conference on the capitol steps, surrounded by some of the plaintiff students he recruited, most of whom were not ardently anti-immigrant but rather ill-informed pawns used by FAIR to advance its ideological aims (and by Kobach for his political career). Shortly thereafter, I was contacted by Peter Roos, an attorney in California who had successfully argued the Plyler v. Doe case in the U.S. Supreme Court (which protected undocumented students’ right to K-12 education). He offered to serve as counsel for immigrant students as intervenors in the case, as they would otherwise not be represented in this suit between the out-of-state students and the named defendants (Governor Sebelius, who was subsequently dismissed because her only role was in signing the legislation, which could have even become law without her signature; and the chancellors/presidents of some of the state universities). Peter and I recruited some immigrant students as intervenors, which gave us the opportunity to present the facts of their cases and have those entered as part of the official court record. Interestingly, despite Kobach’s allegation that the immigrant students’ educations were a waste because they would never gain legal status to work, we had to excuse one of our intervenors because he earned his Lawful Permanent Residency before the case went to trial!

In an added twist, the state Attorney General, Phill Kline, refused to defend the state, stating that he agreed with Kobach’s claims–it was rather extraordinary for one’s lawyer to claim that those suing you were right, and Sebelius had to hire her own, private attorneys. This was another lesson in litigation: even if a suit against you is baseless, it can have the effect of weakening support for the policy in question, since now you have to pay to defend it. We were lucky that our Governor was not so easily bullied.

The case went to trial in May 2005, and the federal judge issued his decision dismissing it in July. Essentially, he found that the students had no standing to sue. Kobach and FAIR appealed the case to the 10th Circuit Court of Appeals, which heard it in October 2006 but sided with the lower court, dismissing it again. In all, I guess the court process was a bit anti-climactic–we did not get the emphatic endorsement we might have hoped for, but neither did FAIR/Kobach get any shred of hope that their case might ultimately succeed. We went back, so to speak, to the legislative arena to continue the battle. Here, then, are some more of the lessons I learned:

  • Legal action can increase your legislative and agency influence, as well as media presence (you are now a force to be reckoned with, and public exposure will increase)
  • Litigation is seen as an overly contentious strategy, often, and this can influence how you are perceived by potential allies and adversaries
  • Advantages: clients must be heard, seen as more level playing field, courts are open with clear rules for proceeding/accessibility, courts seldom consider the costs of proposals and are willing to make drastic change (unlike other branches of government), you can often recoup fees if successful (unlike legislative advocacy!)—may be best vehicle, then, for populations with little political power (including homeless, immigrants, GLBT)
  • Disadvantages: distant from citizens (we don’t know who the judges are in our circuit, and it wouldn’t do us any good to know!), little control/influence over the process, requires carefully constructing ‘test cases’, which may or may not be representative of the people you’re serving (this can lead to remedies that don’t really solve the problem)

    Considerations in Moving Forward

  • Access to legal counsel (and costs)–do you have good lawyers who can represent you?
  • Preparation to move to class action or appellate level (usually necessary for decisions to carry considerable weight and influence widespread policy)–this can take a LONG time
  • Attorney will represent the clients, not your organization, so your access to information may be limited (operate by different ethical code, as well)

    We had an opportunity to participate in some of the peripheral tasks related to this litigation strategy, as well, including recruiting organizations to submit amicus curiae (‘friend of the court’ briefs–raising additional legal arguments and demonstrating support for your positions), raising funds for litigation (we had an event with Peter speaking about his career in civil rights law), and advising attorneys—collecting material, finding plaintiffs/intervenors.

    Social work advocates need to spend some of our energy on reforming the judicial system, particularly access to high-quality representation for low-income clients, but we should not be afraid to use the courts as part of our advocacy. We need to pay attention to court decisions and the ways in which they can impact those with whom we work, and we need to learn as much as we can about the judicial system and its operations, in order to have as full a ‘toolbox’ as possible of potential avenues through which to pursue justice.

  • One response to “Litigation as Advocacy–Part II

    1. Pingback: Someone should sue! | Classroom to Capitol

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