"Legal Services Practice: Devolution to Second-Class Justice,"by Jose Padilla September/October 2001 issue of Poverty & Race
This year California Rural Legal Assistance, Inc. (CRLA) celebrates 35 years of existence. If “survival” were the sole gauge of a successful legal aid program, CRLA would consider itself successful indeed. But CRLA was a creature of 60s idealism that believed the injustices of American poverty could change in their various economic and social forms through a concerted government “anti-poverty war.” However, virtually all of the anti-poverty program efforts fell victim to the Federal politics that reversed course from the Reagan presidency onward. Legal Aid, as one of those efforts, devolved to the rationed state it is in today – mired in regulatory controls, that relegate poor communities to the same “second-class” status that poverty represents.
From inception, the critical debate was whether Legal Aid was to “reform” poverty in significant ways or whether it was to be about individual “access” to lawyer services, without challenging larger causes of injustice and poverty. Ironically, the bulk of Legal Aid work, including CRLA’s, is not about “law reform,” but about addressing the day-to-day poverty problems that beset families who cannot access the public benefit systems or other so-called “safety nets” – those who cannot cover monthly rent payments when a tragedy strikes or are suddenly unemployed.
But the goal of opponents of Legal Aid has been to apply a political “antiseptic” to the social justice practice, to free it from what they see as “contamination” – the practice of law reform, civil rights, labor rights and human rights. CRLA’s practice has mixed law reform and individual services. Politically, opponents of Legal Aid call civil rights work “social engineering”: efforts to take on politically charged issues such as segregation, voting rights, immigrant representation, abortion rights and class action suits.
In 1972, because of political impacts of CRLA’s legal work, California governor Ronald Reagan vetoed CRLA’s funds in an effort to eliminate it. In response, the national strategy was to take Legal Aid out of state politics and send it to the national level, creating with the Legal Services Act of 1974 a new semi-governmental agency – the Legal Services Corporation – charged with regulatory and other programmatic oversight of Legal Aid.
CRLA has experienced almost 30 years under that law. In that time, government, in the form of the President, Congress, and the politically appointed Legal Services Corporation leadership, has tried to create a poor people’s Legal Service that is apolitical. Although the decade of the 70s saw a new law and an expansion of Legal Aid that reached its goal of “equal access” under President Jimmy Carter, the 1980’s saw the political attack renewed. The attack came in the form of a Presidential effort to eliminate Legal Services; significant “defunding”; a “witch hunt” strategy using Federal investigations to deter work; and use of regulatory restrictions to depoliticize Legal Aid practice.
Legal Aid as Second-class Justice Practice: Denial of Access. There are multiple ways to deny communities “access” to a system of justice. Among the ones experienced by Legal Aid providers are: (1) Inequity in numbers of advocates; (2) Inequity in pursuit of critical issues and in service of critical populations ; (3) Direct attacks against political programs or against controversial advocacy.
A. Inequity in Numbers: Minimum Access As a Civil Rights Issue.
Access to civil rights protections is itself a civil rights issue. Generally, the poorest members of an ethnic community (including immigrants) are the most vulnerable to civil rights violations because they lack the education, sometimes the understanding, to feel entitled (as a productive person) to their basic legal and human rights. Immigrants, even if legally in the country, may not realize that governmental authority would enforce civil and other rights that in their native countries may not be a function of government in theory or in practice. Therefore, to the extent Legal Aid is unavailable to ethnic communities beset by poverty, both civil rights and basic legal rights go unprotected. The decline in the number of lawyers in Legal Services points to an increasing disparity between the poor and the general US population. CRLA is a case in point.
The Example of Rural Inequity in Civil Representation. Even as statistics indicate that the American public enjoys an unprecedented access to legal assistance, the relentless attack on Legal Services show how “access” to the civil justice system has come to mean something dramatically different for the poor.
The numbers are only the symptom. The cause has been the political defunding of social service programs, including Legal Services, through two major national attacks: national politics under the Reagan presidency in the early 1980s; and the Gingrich “Contract Against Americans” of the mid-1990s. Although the loss of funding was of critical proportions, “over-regulation” as a means of deterring specific advocacy happened simultaneously.
Defundings of the 1980s and the 1990s. In the two defundings, CRLA went from a 75- attorney law firm, with offices that averaged 5 attorneys each and that provided one lawyer to 5,000 poor, to a program in 1996 with 35 attorneys, averaging 1-2 per office.
During the first Reagan term, total elimination of Legal Aid failed, but nonetheless depleted the Legal Aid workforce enormously. CRLA’s response to the threat of elimination was to create an independent sister corporation, the CRLA Foundation, a strategy to continue CRLA’s mission of rural Legal Aid without government funds, but CRLA suffered a one-third loss of staffing. Fifteen years later, the 1996 Gingrich Congress eliminated another one-third, reducing the firm to 35 attorneys. CRLA could say it had come full circle – in 1996, CRLA began with 35 attorneys; 30 years later, it was back to square one.
B. Inequity in the Pursuit of Critical Issues: Denying Legal Service to Critical Populations.
Were I to capture in one phrase the 22-year experience in Legal Aid and civil rights advocacy, it would be that opponents of Legal Aid have been very effective in using regulatory reform politically to deter civil rights advocacy and to take “race” out of Legal Aid practice. In assessing regulatory reform as a “race” issue, all of the major restrictions limit taking action against the very activities promoting “racism”: electoral gerrymandering, segregation, and racial and national origin discrimination. And as a Latino, whose own family “came across,” perhaps the most insulting reform was the prohibition against representing the undocumented poor – a restriction explicitly aimed at the most vulnerable of the Latino community. No one has called these “reforms” “racist,” but they are so, since no communities except “communities of color” would take on such litigation in claiming justice. For the ethnic poor, Legal Aid lawyering has suffered a continual erosion of its ability to address the issues at the heart of civil rights work.
From the very enactment of the Legal Services Act of 1974, school desegregation was excluded from the issues Legal Aid could address. Since then, electoral redistricting has also fallen to the wayside. The most effective and symbolic procedural means for effectuating civil rights remedies –the class action- went that way with the 1996 LSC regulatory “reforms.” Further, with the elimination of class action, the ability to afford immigrant working poor basic employment rights protections have virtually vanished as well.
Challenging “Racialized” Regulations. In the late 1980s, CRLA challenged, as a plaintiff, two of the restrictive regulations that most adversely impacted our ethnic client communities – the Federal prohibition against bringing redistricting litigation with federal funds; and the ban on providing IRCA amnesty residents with legal assistance. In CRLA et al. v. LSC, the Legal Services Corporation effectuated a new “alien regulation,” prohibiting LSC-funded Legal Service programs from using LSC funds to provide legal assistance to permanent residents who had legalized under the Immigration and Reform and Control Act of 1986 (IRCA). LSC believed that federal Legal Services was akin to receiving other public benefits and was “welfare” assistance that could threaten the immigrant status of “amnesty aliens” immigrating under IRCA. In 1989, along with two employee unions – AFL-CIO and ILGWU – CRLA filed suit in federal court. Federal Judge Thelton Henderson issued a temporary restraining order applied nationally and enjoined LSC from implementing this regulation. In November 1989, Federal Judge Stanley Weigel permanently enjoined application of the regulation and granted our motion for summary judgment. The successful ruling had profound national impact. We estimate that some 2 million immigrant residents would remain eligible for critical legal assistance.
In TRLA et al. v. LSC, three rural programs challenged a prohibition preventing Legal Service programs from becoming involved with redistricting or census-related activity. Legal Aid programs in Texas and the deeper South had effectively used voting rights litigation on behalf of poor/ethnic communities for political empowerment. This marked the first time that LSC, without explicit Congressional mandate, had a issued substantive restriction. For local programs, Congressionally authorized to establish local priorities; the new regulation eliminated a community’s option for establishing voting rights as a priority. Although programs could use other governmental funds, such as state money, to bring this type of litigation, many programs did not have access to such funds. Programs also predicted that in the future, all funds (state and federal) might be subject to such restrictions, removing this type of litigation from Legal Aid dockets altogether. This later came true in 1996.
In 1989, CRLA, with Texas Rural Legal Aid and North Mississippi Rural Legal Services, programs painfully aware of the consequences of not providing this citizen/immigrant empowerment, unsuccessfully sued LSC in federal court, challenging its authority to issue such an extraordinary restriction.
Rural Poverty is Not Color-Blind. Most Legal Aid organizations implicitly pursue “color-blind” strategies in their decisions to prioritize resources. Traditional civil rights issues are left to the civil rights groups such as the NAACP or MALDEF or other ethnic advocacy groups. Perhaps that may be an option for urban-based Legal Aid programs that relate to strong civil rights networks addressing urban civil rights problems, but it is the opposite for rural programs. Clearly, the economic resources of civil rights law groups are not extraordinary. Until the cuts of 1996, for example, CRLA had more lawyers within California than MALDEF had throughout the country.
In rural California, there is no civil rights infrastructure that brings these resources to the civil rights defense for rural poor ethnic communities. Generally, the infrastructure of nonprofit organizations in rural communities is much less developed than in metropolitan areas. Urban nonprofit resources and capacity are rarely used to benefit rural client communities. Although such urban groups may be approached to represent the rural ethnic poor on an ad hoc basis, their institutional focus (for reasons of history and resource efficiency) is generally urban. These groups will generally not have the local presence to maintain ongoing, day-to-day relationship that allow them to stay in touch with the changing legal needs that come from changing demographics and economic conditions. CRLA has always filled this void out of necessity.
In CRLA’s 35 years, its lawyers have brought every kind of civil rights case that could be found in a rural setting. The work has addressed such issues as English literacy in voting; voting rights for non-landowners; school district at-large electoral challenges; police misconduct; prison conditions; employment discrimination on the basis of race, sex and national origin; sexual discrimination; sexual harassment in agriculture; environmental racism in Latino towns; affirmative action; education rights of immigrant and limited-English-speaking children, statewide welfare reform; and, at the turn of the 21st century, labor peonage. This came about not because we sought to be called civil rights lawyers but because rural racism was never color-blind.
C. Direct Attacks Against Political Programs or Against Controversial Advocacy. Surviving “Witch Hunt” And Challenging Attacks on Behalf of Rural Clients.
At the same time that investigations were significantly wasting already diminished resources, new regulations were being passed by Congress or the Legal Services Corporation. Some programs fought back. CRLA suffered some of these inequities along with the other hundreds of Legal Aid organizations. We were all denied the same dollars when defunding occurred. But where the inequities were felt differently was when the more political programs seemingly were singled out for special political harassment and special investigations. These were the programs that co-counseled with civil rights firms, that used class actions, that did civil rights work with the ethnic poor, particularly Black and Mejicano. They were the ones that defended the rights of immigrants and the rights of farm workers.
Federal Investigations of the 1980s and Fighting Back. I first entered CRLA in the 1977-80 phase when President Jimmy Carter funded “The Expansion Years.” Unfortunately, I became Director during the height of the Reagan assault against the poor. A 1990 National Legal Aid & Defender Association report succinctly described the nature of the attack that followed:
“With the election of President Reagan, the [existing LSC] faced an openly hostile administration. This conflict dated back to the then-Governor Reagan’s fight with CRLA, but it also reflected his strong belief that large-scale social programs were not the Federal government’s responsibility…”
With the shift in LSC Board composition, the new investigation strategy came into being. As noted in the NLADA report:
“Simultaneously, the [LSC] staff imposed more requests for information and began to use monitoring visits as an opportunity to harass local programs rather than a method of providing technical assistance to improve service delivery.”
Hostile Federal Reviews. From the mid-1980s to the early 1990s, federal reviews became reviews of “technicality.” Reviews were only about regulatory compliance. Programs perceived this as an objective to use regulatory noncompliance in order to warrant defunding. Programs also perceived this as a diversion of resources from the real purpose – to serve the interests of the poor aggressively. In a period of 6 years, CRLA suffered three such technical monitors: 1985, 1988 and 1991. It is difficult to describe, 10-15 years later, the political fear these reviews seemed to strike. Yet, they were moments when the program felt the most united and focused on survival – survival to maintain the ability “to serve the poor another day.” Harassment also came in the form of destabilizing funding practices. Whereas Legal Aid programs were generally approved for funding by the beginning of a calendar year, the 1986 investigations resulted in 15 programs being put on either 3 month or month-to-month funding. CRLA was not on this short list.
Although seemingly less hostile, the second and third visits continued to waste staff resources spent in pre-visit preparations, as these reviews were seen as federal efforts to find technical regulatory violations and to assess program management practices. Again, little interest in quality representation and services was shown. In retrospect, these three reviews were political threats that ultimately failed to end any program. They may well have identified practices that later became crippling restrictions.
Each review was scheduled for two weeks; the reviewers numbered 17, then 15, and then 10. I can say these were paper wars arguing whether an “i” had been dotted or a “t” crossed. Beginning with the 1986 review, CRLA was represented by a large San Francisco corporate law firm – Howard, Rice, Nemerovski, Canady, and Falk. We selected this reputable law firm because one of the partners had participated in CRLA’s defense during the Reagan veto of the early 1070s. Again, as in 1972, CRLA used corporate counsel against the intrusive reviews, but also in its defense where CRLA was investigated for bringing what the government described as “abortion litigation.”
As previously noted, in 1989, CRLA joined two litigation actions against LSC. Thereafter, an independent investigation in 1990 was brought because of litigation that benefited health clinics. Finally, in 1991, LSC returned for its third “hostile” investigation, which ended abruptly when CRLA unions sued the government, charging violations of employee privacy.
Fighting Back. Part of the political defense of Legal Aid that allowed it to survive the 1980s was a national fight. That is another story. This is about how CRLA fought back against specific charges and issues. After the second federal review of 1988, we can look back and count 4 victories. For us, “victory” itself was redefined. We call it “moral” victory to stand up and fight the issue – win or lose – and some we lost. These “defenses” were: (1) winning the right to allow immigrants with legal amnesty to receive Legal Services; (2) challenging the regulation that prohibited legal services programs from being involved in voting rights redistricting and census-related activity; (3) defending litigation that had provided health planning funds for health clinics; (4) challenging federal regulations that accessed employee personnel information.
Rural Health Clinic Funding. LSC Attacks the “Abortion Issue” in California. In February 1990, CRLA was placed on month-to-month funding for an entire year and was subject to another investigation because of our involvement in Lickness et al. v. Kizer et al., successful litigation filed against Governor Deukmejian, who, in the summer of 1989, cut $24 million of the $36 million provided by the state legislature for family planning. The money was not to fund abortions but involved family planning counseling that included informing women that abortion was one option. Ultimately, in response to our litigation, the governor allowed the legislature to restore the funding to these clinics. CRLA eventually was fined $13,000 for this involvement. Given the fact that $20 million had been restored to more than 500 health clinics serving nearly 500,000 poor women, the fine was paid without appeal.
Employee Privacy: CRLA Unions Sue LSC and CRLA. In 1991, CRLA was monitored for the third time. CRLA’s labor unions had threatened to sue LSC because of a regulation that created special employee files that unlawfully contained private employee information, such as job evaluations, work grievances and resignation letters; LSC sought access to such material. The unions disagreed. LSC monitored CRLA for 8 days with a ten-member team. CRLA unsuccessfully negotiated with LSC to limit full access to the information. Failing to reach agreement, CRLA agreed to release the special files on the ninth day of the review. CRLA notified its unions of this intent and notified LSC of the likelihood that CRLA unions would sue. LSC suspended the review within an hour of CRLA’s agreement to comply, charging CRLA with non-cooperation. The cancellation proved timely because within an hour of cancellation, CRLA’s unions entered the CRLA central office prepares to serve both CRLA and LSC with the suit, Lawyers Union of Rural California et al. v. Legal Services Corporation et al. In 1992, Federal Judge Marilyn Patel ruled in favor of LSC and provided it with “broad latitude to enforce [such] requests” for employees information. The case was finally settled.
D. 1995 – 2000: Contract Against the Poor And Direct Blows to “Law Reform.”
The short tale above takes us to the beginning of the 90s. Justice has not returned. The Clinton presidency did nothing to change the prohibitions; on the contrary, they worsened. Legal Aid suffered another devastating defunding, much like the Reagan attack of 1984. It resulted in another 25% defunding – CRLA losing 33% of its statewide staffing.
The 1990s almost mirror the politics of the 1980s. The worst changes to civil rights work came in this decade – the “poisoning” of all funds received by a Legal Services program was the most destructive. Whereas non-federal funds could, in the past, be used freely to perform all work otherwise prohibited by regulation, now these too became “governed” by federal laws. As an example, receiving one federal dollar brought with it the myriad of prohibitions and restrictions on the use of any non-federal dollars.
And directly restricting law reform, the 90s brought a prohibition against, specifically, bringing welfare reform legal challenges and bringing class actions with any program dollars if you receive any federal Legal Service funds. Affirmative developments included two successful lawsuits. Legal Aid of Hawaii et al. v. Legal Services Corporation allowed programs to grant non-federal funds to other non-LSC funded groups to perform prohibited work. The other was LSC v. Velasquez, which prohibited LSC from enforcing the welfare reform restriction that had limited advocacy only to individual welfare cases that did not include constitutional or statutory challenges to existing laws. Also, special services for farm workers were preserved politically through White House public acknowledgement of its importance and through the support of Congressman Howard Berman.
The Clinton presidency that began with hope in 1992 failed to produce significant changes to undo the restrictions of the 1980s. Rural poverty increased, but funding remained virtually static or declined. And because of the Congressional and Presidential shifts to the Right of center, regulatory changes continue without change.
José Padilla (firstname.lastname@example.org), vice-chair of PRRAC’s Board, is Executive Director of California Rural Legal Assistance.
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