Someone should sue!

U.S. Supreme Court Building, photo credit, dbking via Flickr

So I’ve made it pretty clear that I’m not lawsuit-averse, right? Despite some recent (and not so recent) court cases that defy logic and threaten justice, I still have a great deal of faith in the judicial system as a critical component of any advocate’s “toolbox”, and a considerable force in our struggle for what’s right and good.

There is a lot of great litigation going on today, in pursuit of social justice:

  • Fighting the disenfranchisement of Native American voters
  • Using civil verdicts to cripple racist and other extremist groups by stripping them of their finances
  • Challenging inadequate and inequitable financing schemes in public education
  • Reforming prison conditions
  • Objecting to conditions and terms of immigrant detention, review, and removal
  • Redressing abuses of workers’ rights, including denial of breaks, violation of wage and hour regulations, and misclassification of workers

    There are other areas where I see a need for more litigation, particularly where populations are very vulnerable or unsympathetic, making legislative strategies, in particular, less viable. Below is a list of some of these, and then a challenge for readers.

  • Overturning anti-homelessness ordinances–there has been some legal action around these attacks sweeping across America’s cities, but we need a more coordinated and concerted effort, based on constitutional protections and violation of international human rights law.
  • Protesting draconian cuts in social services at the state level–there would seem to be many openings related to right to due process, especially as budget cuts are enacted mid-year in many states, leading to great fluctuations in service offerings; while there is not the same constitutional protection for these populations, within state constitutions, as for public K-12 education, clauses about basic welfare may also provide standing for suit
  • Overturning the basis of extensive cooperation between Immigration and Customs Enforcement and local law enforcement–there is some promising litigation against the abusive raids perpetrated against immigrant communities, but the pervasive collaboration between ICE and local police and sheriffs’ departments is, even in the absence of adverse action, fundamentally unsound and a gross violation of privacy and individual liberty. To some extent, it may make sense to vigorously pursue racial profiling allegations in this arena, but, ultimately, what is needed is a legal attack on the Department of Homeland Security regulation that allows this.
  • Denial of health care, either in terms of health insurance companies rejecting claims for treatment, or Medicaid’s low reimbursement rates (but I’d like to see this from consumers, alleging failure to meet the quality of care standard, not providers–it’s not their lives on the line!), or those uninsured who surely have a claim under international law, at the least.
  • Again, I think that there’s a case to be made for legal action against governmental and non-governmental entities whose legitimacy is predicated on their service to low-income or marginalized populations, yet fail to deliver to those same populations what is promised them. We’ll only succeed in solving our most vexing problems when we are completely accountable to those we serve and fully morally and legally responsible for our failures.

    There are more, obviously–for example, the U.S. fails to live up to international standards in a variety of realms, and there have been several efforts to address this through international courts (e.g. protecting the labor rights of migrants). And, of course, there’s the issue of the role that money plays in securing quality representation, and how such representation can influence judicial outcomes. We can’t address justice without taking that into account, and we can’t build a strategy for social change that includes the courts without providing for a truly level playing field for those with fewer resources.

    What do you think? What injustices do you see in practice, or in the policy realm, that demand redress? What makes the judicial system particularly well-suited to provide this remedy? What role can/should social workers, who are (for the most part) not attorneys, play in pursuing justice through the courts? How would such efforts fit into your organization, or your policy practice? And what can we do to support the efforts already underway, such as those described above?

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  • 18 responses to “Someone should sue!

    1. As I have stated, and will continue to say, I think there is a real chance of persons with felonies to persue litigation surrounding civil rights such as voting and further perhaps a lawsuit agains the US Dept. of Housing and Urban Development under the equal protection clause disallowing certain persons to be discriminated against on the basis of criminal record. I know this is a hot issue for many who don’t want a sex offender living near them or some other less desirable individuals but I see this also being a State interest of public safety.

      I like your question about what a social worker can do in this area, mostly because litigation is, as you stated, very expensive. Perhaps we could educate our clients in letting them know their option of litigation but an important point to come back to is the cost. Many people who need/want/should bring suit against the State or whomever, can not afford it. As a social worker you could give the client information about advocacy groups who could help them like ACLU or others.

    2. One other issue I forgot to mention that I have always wondered about is some degree of distribution of wealth . Since learning of the Midkiff case in my Constitutional Law Classes I have wondered if a similar ruling could be made in other areas. (In Midkiff the court decided that eminent domain could be used to redistribute property overwhelmingly concentrated in the hands of private landowners. According to 2007 numbers in terms of financial wealth (total net worth minus the value of one’s home), the top 1% of households had 42.7% of teh wealth, Professor Domhoff, University of California at Santa Cruz. With tax breaks being given to the wealthiest of persons, I am curious to see how these numbers have grown in three years. You can see how these numbers have grown since 1983 at http://sociology.ucsc.edu/whorulesamerica/power/wealth.html and how the wealth of the bottom 80% has dropped. I know this is very unpopular but…just imagine!

      • My husband’s family came to the U.S. during the Mexican revolution–they were on the side of the landless, but all of his great-grandfather’s siblings had died fighting, and they didn’t want to lose the last brother. I always think about them in the context of epic struggles over the concentration of wealth, and the reverberations of such truly revolutionary shifts in economic policy. I’m going to check out the case right now, because I’d never heard of it before!

    3. These sound like great issues to be solved by judicial or other means. However, as Danielle mentioned briefly litigation is notoriously expensive and pro bono lawyers are notoriously hard to come by. I know that sometimes at the law office I work for, people call with these exact issues. “I think my work is treating me poorly and I wanted to talk to a lawyer about my rights.” When I tell the lawyer this, he says “tell him to call someone else.” It’s disheartening. However, there are some good organizations out there that will take some of these on, and reading the articles you’ve provided help me see the difference these cases have made.

      • Emily, it’s a very important point; we absolutely do not have equitable access to our judicial system in the U.S., through the systematic underfunding of access to quality legal counsel. And we can’t pretend that the justice system is really just until all have an equal chance of having their grievances heard. Absolutely.

    4. Darn you ladies took my subject. I was planning on writing about the injustices that people in poverty and the lower middle class experience in the judicial process. They are not given the experienced representation; often times they are not informed about the judicial process; face discrimination; and all too often suffer from it. Just today I sat in on a Governor’s grant meeting concerning Domestic Violence where we were reviewing PFA’s in a community. There were several attorneys in the meeting that made some extremely stereotypical comments, and I was shocked that people still believed in such myths. One example concerned how may men filled PFA’s in this particular study. One of the attorneys stated that the only reason why the men filed a PFA was for retaliation reasons! Seriously, we did not have any information concerning why a PFA was filed and this attorney assumed that it was for retaliation reasons!?!?! Correct me if I am wrong, but men can be victims of violence too! Thankfully an advocate explained to him that men can be victims too, but I am not sure he fully believed it.

      Also I have seen individuals given attorneys that are in law school, are new, and/or who offer cheap representation. Many time these lawyers do not represent the client well, and they lose the case. In fact, inexperienced lawyers have been identified as a factor to the high incidents of domestic violence in the state of Kansas. Community attorneys did not want to deal with the cases, so for a while they were assigning them to new lawyers in the office. As an outcome, perpetrators were getting off for procedural error and going back to the victim to harm them. This a great illustration how important our judicial system is for communities.

      It seems that if you have money and power you can beat the judicial system (OJ Simpson or Roman Polanski); however if you don’t you may just need to prepare yourself for the worst outcome. I believe by being advocates we can help educate individuals involved in the court system on procedures and who can represent them equally in the courthouse.

      • Excellent example, Jody–in some areas of social work practice (like DV), dealing with the court system is a part of daily reality, not so much about exercising one’s pursuit of justice but trying to navigate the legal forces impinging on our lives. What should social workers be doing regarding this issue of inadequate legal representation for low-income clients? I’m going to look up if NASW has a policy on access to legal representation, and I’ll let you know what I find out!

      • I like your prospective, Jody. And you stole my topic, lol. Anyhow, I think that the judicial system is swayed towards the person who can afford the best attorney. And victims of domestic violence know that; so do their batterers. Who can get the best attorney is usually one of the first things that I would encounter when working with women who were escaping violence. So much was laying on the line. Literally, a survivor could fall drastically below poverty lines if they had poor representation, as many survivors do. It is critical to obtain legal services that would put both sides on a level playing field, but those are hard to come by with little money. There are, however, attorneys on the Missouri side, who have big hearts and are familiar with the processes of protection orders and domestic violence who would not price their services out of reach for victims trying to find a way out.

    5. I definitely believe there is a place for law in social work. As social workers we are advocating for our clients and have a first hand viewing of the discrimination and injustices of many persons we help. Unfortunately, people without resources are preyed upon and/or taken advantage of by those in limited power. Many clients do not know what to do and do not have the benefit of referring to someone who does know what to do -in many cases. There are many areas in practice that are an injustice to our clients. One area that I have done a lot of study is homelessness. Society treats the homeless in a terrible manner. I read an article that discussed how the homeless are an uncomfortable reminder to those who are housed -reminding them that homelessness is a possibility. So, instead of helping the homeless recover and become housed, the housed ignore and exacerbate the problem. It takes time and money to house and help the homeless. There was an article in the KC Star last spring regarding a couple of homeless men who were arrested for being homeless and their camp was destroyed. The police would only allow them to take the possessions on their person at the time of arrest. The men lost important papers/documents and valuable personal items -not to mention their “home”. The men were living in the woods. Why do laws make the action of the police “OK”? Who is available to help those men regain their documents -which will now take a much longer, costly amount of time, and with no permanent address how will they have the stability to get what they need? The men admit services were made available to them -to enter a shelter -but, they refuse to live in shelters where it can be unsafe (fights/robbery) and they are kicked out for the day. The judicial system would be well-suited to address this type of issue, however, it needs to begin at the policy and state level. These men will not gain a lot if they go to court for being homeless after having their possessions lost. Laws and policy need to be changed to address homelessness and the treatment of the homeless. Housing policies without “hoops” are needed to house people. If an attorney wanted to take the above incident to court to address their basic human rights – a case could possibly be made, however, local laws would probably prevail. Perhaps more pro-bono cases are needed to address basic human rights. A social worker can advocate for their client and be aware of injustices. A social worker looks out for the clients best interests and can help the client when injustices occur. The organization I have my practicum at is a state organization. I do not work directly with clients; my clients are programs. As a social worker I can work towards policy change. Knowing and supporting the policies and actions happening in our community is one of the best ways to support efforts already underway.

      • The area of homelessness is one particularly ripe for legal defense work, Trisa–dozens of municipalities have passed ordinances that, in essence, make it illegal to be homeless, by criminalizing the public conduct of normal, daily activities (that wouldn’t be illegal if one had a home in which to do them–like sleeping!). What can social workers, who are not lawyers, do to help leverage these “private” issues into cases that can result in systems change? What can you do, through your practice?

    6. I found one of the areas particularly interesting, which was the section about redressing abuses of workers’ rights, including denial of breaks, violation of wage and hour regulations, and misclassification of workers. I worked for a company that was actually being sued due worker’s claims that they were being denied their breaks. While I never experienced this during my employment with this company, I can certainly see how this happened. This particular company was a big retailer that always seemed to have a steady flow of customers in the store. From a worker’s perspective, it is intimidating to approach your supervisor and ask them for a break. Not only is it intimidating, it can give your supervisor a negative perception about your work ethic. Also, I was under the assumption that many of my coworkers were not aware that they were entitled to breaks. Thankfully, our supervisor made us aware that we had to take breaks and encouraged us to take them. The legal route should be examined more in situations. More laws and regulations should be implemented to keep workers from being exploited, as well as education about laws and regulations so workers know what they are entitled to.

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    8. The cost of representation in court or any judicial hearing is a great example of the political nature of the judicial system. In high school I worked for a law firm with several partners and they represented clients on each end of the scale. Since I worked in billing I was able to see how much time the lawyers spent and what activities they billed for per client. It was amazing to me how much work could be put into the pettiest of cases from paying customers, and yet how little work was put into the court assigned cases. As social workers it is extremely important that we build connections with those in the judicial system. By being on the “inside” we can help promote true equal representation. While it is not ethical that individuals receive poor representation because of their inability to pay, I do not know if it will ever be considered unconstitutional because there would have to be a preponderance of evidence that they are in fact receiving poor representation and how do you measure that?

      • Great question, Leah, especially with your first-hand witness of these issues. The lack of adequate representation is so frustrating, especially because it weakens the power of what could be the most responsive branch, and makes it harder for those without sufficient financial resources to make the judicial system ‘work’ for them. What would a robust public representation system look like, do you think? What would it take to make that happen?

    9. At the risk of sounding pessimistic, for all the talk surrounding what lawyers “should do”, it might be prudent to remember that they are not social workers. Lawyers follow separate ethical standards than we do. Many enter their field for reasons other than the love of social justice. As an ever-present standard, there are a limited number of resources that we as a society have to distribute. The simple fact is this: money –in most circumstances – buys quality.

      Without ridiculously strict price ceilings and regulations for every service/good that exists, there is no way to fully ensure that everyone is getting a similar product/result. Because of the scarcity of resources, it would create significant shortages in every facet of life. It’d be like BMW being forced to sell their cars at the same price KIA sells theirs for. Why would BMW strive to make a better car, if they can’t even recoup their costs of making their vehicles, much less make a profit? The same thing can be said of restaurants (think fine-dining VS McDonalds as they’re both ultimately only providing food), designer VS outlet brand clothing, iPhone VS Nokia, or any other product/service you can think of that has a range of quality levels. Note of interest, even social workers charge differently for their services. And why shouldn’t they? There is a big difference in quality between a therapist with a proven success record and a recent graduate who is still unsure of him/herself. There is also the matter of what social workers charge their agencies to work. As a Wyandot Center employee, I know I make less than some of my counterparts who have been working there longer, and that I may make more than some others who have just started.

      What’s (at least part of) the answer then? Well, exactly what one of the previous posters mentioned. There was the example of the social worker explaining to the lawyer about DV happening to men. Whether or not that single lawyer accepts the fact that men can be victimized is negligible. It’s whether or not that social worker continues to network and educate others – especially lawyers – on the significance of the subject. We are educators to the public at large about topics pertaining to social justice. To continue to utilize the subject of DV for sake of ease… There are a number of DV shelters that routinely go to schools, community centers and businesses to raise awareness of DV. Many of these same social workers contact their Representatives to educate them on why this topic is important to understand. Why should it be any different with lawyers? We can’t stand on the outside of the legal system, expecting lawyers to do what we think is right, if we don’t even attempt to explain why.

      One other option then, is to encourage more social workers to go into the legal system. KU has the dual program to obtain an MSW and a JD, which is a great step in the process. However, perhaps more can be done at the Bachelor’s level through integrating legal education via something like an elective or a section in the policy course. Social Work is a very flexible profession, and could easily accommodate an increasing of its legal arm.

      Now, I, of course, don’t believe that these options are the end-all, cure-all for the subject of poor legal representation for at-risk peoples. To me, they are merely cogs in the wheel of the reduction of social injustice. My belief is simply that, though flawed, I do think the legal system we have in the United States works. Can it get better? Of course. Access to legal representation is a real barrier to many. I just think that we can figure out ways to chip away at that barrier rather than needlessly banging our heads to find ways to remove it instantly. After-all, we’ve got enough stressed out social workers as it is, but that’s another post!

      • Thank you, Kevin–you are always so thoughtful in your comments, and I appreciate how much they prompt me to think! I do think that there are fundamental differences in the marketplaces for something like cars or restaurant food, though, compared to access to our legal system, so I’m not sure that I can fully buy those analogies. The point about different social workers having different skill levels is a closer parallel, but, even then, a social work client arguably has some greater choice in terms of how he/she interfaces with that helping system, as well as third-party payers that (in some, although certainly not all cases) can level the marketplace a bit. Are we really to be content with the idea that money buys quality when what is at stake is a crucial element like one’s fate (the difference between life in prison, or even a death sentence, or a much lighter punishment)? I do agree with your assessment that we should be part of the solution, and finding ways to work to reform the system, although I still maintain that part of social workers’ ethical obligations include needing to be voices of prophetic witness, which can sometimes require standing outside the system railing about what needs to be fixed, as stressful as that can be. Fundamentally, I believe that your assessment about our legal system–that it still works, in many ways, and therefore deserves to be built up instead of scrapped, is absolutely correct. That’s why making sure that everyone has equitable access to it matters so much! Thank you again for sharing your thoughts.

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