Published on Thursday, October 25, 2007 by In These Times
(from www.commondreams.org)
by Megan Tady
When the U.S. Supreme Court refused on October 1 to hear Legal
Services for New York City v. Legal Services Corporation, a case
challenging restrictions on access to lawyers for the poor, it sent a
clear message: Courts shouldn't be bothered with the problems of poor
people.
Funny, I thought "justice for all" meant justice for every person. It
now appears an asterisk is missing from the last line of our nation's
pledge. For clarity, perhaps it should read so like this:
"…And justice for all.*
* (The validity of this clause is subject to class and race
restrictions and can be ruled null and void upon persons' failure to
comply. The government reserves the right to alter the meaning of
eligible applicants for justice at any time. The wealthy may
disregard this disclaimer.)"
The loopholes for equality are pervasive in this country. This time,
the government wiggled out of protecting poor peoples' legal rights
when Congress passed a law in 1996 that limits the work of
independent civil legal aid programs that receive federal funding.
The government's Legal Services Corporation provides grants to
independent programs that offer free legal service to low-income
people across the nation.
The rule prevents legal aid centers from using either federal or non-
federal funds to file class action lawsuits, claim court-ordered
attorneys' fee awards, or represent certain categories of immigrants.
There's one exception: Centers can do this work if they establish a
separate office with non-federal dollars.
In other words, legal aid centers around the country that take
government funding are only allowed to use private money-funds from
the state and individual and philanthropy donations-to represent a
huge group of people in a class action suit, go to bat for exploited
immigrants, or use attorneys' fee awards as a tactic, if they set up
a physically separate facility with a different staff. It's as
rational as mandating that someone trying to spend their last two
dollars on milk at the local grocery store can only buy it at a store
that's a bus-fare away. No money when you get there? No luck.
Laura Abel, deputy director of the Justice Program at the Brennan
Center for Justice, explains why the "physical separation
requirement" has a "devastating effect" on the 138 centers that
receive government grants.
"Civil legal aid programs are notoriously underfunded and they never
have even the fraction of the funds they need, so they don't have any
extra money at all," Abel says. "So they may think, `Could we open up
a separate office across the street?' But they would have to turn
away hundreds of clients a year."
The Brennan Center is currently representing three legal aid centers
that are challenging the constitutionality of the separation
requirement, saying it violates the First Amendment. The Center first
filed the lawsuit in 2001. But the Supreme Court's refusal to hear
the case will send the long-languishing case back to a district court.
The implication of the restriction is as stark as the Supreme Court's
indifference. Abel says one "glaring example" of how the rule hurts
low-income people is the current predatory loan crisis. Had legal aid
centers been able to represent entire communities suffering at the
hands of predatory lenders, the bottom may not have dropped.
"Unfortunately [legal aid centers] haven't been able to bring class
action lawsuits; all they can do is represent one person at a time,"
Abel says. "As a result…the lenders continue their practices."
If it seems like legal aid centers have their hands tied, their
mouths are gagged as well. Federally funded centers are also not
allowed to use private funds to tell people about their legal rights
and then offer to represent them, and they can't lobby on behalf of
their clients-unless of course they lease and staff another office.
Lewis Papenfuse, executive director of the Farmworker Legal Services
of New York, a plaintiff in the case, says he was "extremely
disappointed" that the Supreme Court had turned up its nose.
In 1996, rather than accept the restrictions, Papenfuse says
Farmworker Legal Services rejected any federal funding. Papenfuse and
his staff had to take a severe pay cut, and have been building up
their center ever since.
"There's so many people with so many issues-so many people not
getting paid what they're supposed to," Papenfuse says. "Access to
justice is even less for people who are invisible in society or have
no access to even getting the information."
Not every program can be as resilient. According to the Legal Service
Corporation, the agency on average endows half the budgets of the
programs it funds.
Papenfuse and other advocates have been urging the courts and
Congress to toss out the restriction for years. In 2005, 130 non-
profit organizations and philanthropies filed an amicus brief on
behalf of the plaintiffs, and the National Council of Churches and 30
faith groups appealed to legislators in a letter, noting, "The law
closes the doors of justice for many low-income individuals and
families who simply cannot afford to hire a private lawyer to help
them in civil matters."
Congress, it appears, doesn't sympathize. A 2005 editorial in The New
York Times chastised the government: "The fact that Washington
provides money for legal representation does not give it unlimited
authority to control what lawyers say or do, or to restrict the use
of private money so severely."
The Legal Services Corporation, on the other hand, feigns compassion
on its website, writing, "…our nation falls far short of meeting the
need for civil legal aid." So why has the agency repeatedly fought
and appealed the current court case?
To go to such lengths to keep certain groups of people from obtaining
legal aid speaks volumes about the government's fear of the informed
and represented masses. Abuse and mistreatment becomes trickier when
the adage "I'll see you in court" actually has weight.
Of course, what's particularly troubling about this rule is that low-
income people, communities of color, and immigrants are those groups
most at risk of being exploited and violated, from employers
withholding a worker's wages to corporations dumping toxins in entire
neighborhoods.
It should be easy, not almost impossible, for the country's most
vulnerable to seek redress. By standing firmly with this rule, we are
merely offering a cruel taunt when pledging our allegiance
to "justice for all."
Megan Tady is a National Political Reporter for InTheseTimes.com.
Previously, she worked as a reporter for the NewStandard, where she
published nearly 100 articles in one year. Megan has also written for
Clamor, CommonDreams, E Magazine, Maisonneuve, PopandPolitics, and
Reuters.
© 2007 In These Times
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