Laura Klein Abel
The Legacy of Justice Brennan: Ensuring Access to Justice for All
by Laura K. Abel & David Pedulla
Fifty years ago this month, William J. Brennan took his seat on the Supreme Court. Among his many remarkable opinions was Goldberg v. Kelly, safeguarding the right of low-income people to be treated fairly by the government when they seek to enforce their rights. Likewise, in NAACP v. Button, he affirmed the First Amendment rights of non-profit, public interest lawyers and their clients to join together to assert important rights.
At the Brennan Center for Justice at NYU Law School, one of the ways we carry out the ideals of Justice Brennan is by working to ensure that low-income people have access to the justice system to ensure that their rights are protected. Throughout the country, non-profit civil legal aid organizations work with low-income individuals, families, and communities to ensure that parents and children remain together, tenants can stay in their homes, and workers receive the wages they deserve. Unfortunately, these organizations don’t have enough funding to carry out their vital work. And even the limited funding that they receive often comes with significant restrictions on the work that they are able to pursue. This post explores some of the difficulties civil legal aid organizations face and some of our attempts to overcome them.
Funding for Civil Legal Services in the United States:
Approximately half of the funding for civil legal aid in the United States comes from a Congressional appropriation for the Legal Services Corporation (LSC). LSC, a private non-profit corporation established by Congress in 1974, distributes federal funding to 138 local legal aid programs throughout the country. The remaining funding for civil legal aid comes from a combination of state, local, and private sources.
Over time, the federal appropriation for LSC has dramatically declined. In inflation adjusted dollars, LSC today receives just 49 percent of what it did in 1981. Unfortunately, the decrease in funding has not coincided with a decrease in need. Respected studies show that over four-fifths of the civil legal needs of low-income families go unmet.
This is a real crisis, because many of the legal needs confronting low-income people affect their most basic human needs: their daily subsistence, their homes, and their families. When organizations that represent low-income people lack adequate funding, entire families and communities suffer.
Legal Services Restrictions:
In 1996, Congress enacted a “private money” restriction prohibiting organizations that receive LSC funding from engaging in certain important activities on behalf of low-income people with both their public and private funding. This restriction bars LSC-funded organizations from bringing class action lawsuits, performing outreach to potential clients who may not be aware of their legal rights, claiming attorneys’ fee awards, providing legal services to many categories of immigrants, or engaging in other work for their clients.
The only exception is a theoretical one. LSC permits its grantees to use their non-LSC funds to engage in these activities, but only if they do so through a legally and physically separate entity, with separate premises, equipment and personnel. This is so expensive that few legal aid programs have been able to do it, and those that do create a physical separate entity find that it exerts a severe strain on their already scarce resources.
The private money restriction has far-reaching and detrimental effects on the lives and well-being of low-income people. For example, the inability of LSC-funded organizations to carry out class action suits has had a negative effect on elderly and low-income homeowners in Chicago, where there was an enormous increase in home foreclosures in the late 1990s and early 2000s. One 75-year-old who had owned her home for 30 years was forced into foreclosure in April 2002 when she refused to repay a bogus $50,000 loan. The loan had been fraudulently taken out in her name by a contractor. The contractor kept the cash; he never did the work. A series of lawsuits brought by an LSC-funded legal services provider in Chicago, and a set of complaints filed by Chicago and by the Illinois Attorney General, didn’t stop the contractor’s lawless activities. For the contractor, these small interferences were just part of the cost of conducting a fraudulent business. A class action lawsuit could have compelled the contractor to disclose the names of all of the victims, led to damages and attorneys’ fees payments to the victims, and even produced a cease and desist order preventing the contractor from further scheming. Even though the LSC-funded organization in Chicago had sufficient private funds to file the class action suit, the restriction barred it from pursuing such a strategy. The consequence has been the continued exploitation of elderly and low-income people.
Working Towards a Solution:
The Brennan Center is challenging the restrictions placed on the private funding of legal aid organizations. Collaborating with us are over 100 civil legal aid non-profits, foundations, state and local bar associations, unions, civil rights organizations, and religious organizations, via a federal lawsuit, Dobbins/Velazquez v. Legal Services Corporation, as well as a national campaign urging public support to repeal the restriction.
To get involved, or to find out more information about our work to remove the restrictions on civil legal aid organizations, please visit the Brennan Center’s website.
If you are interested in receiving updates about what’s going on nationally in the civil legal aid community, please subscribe to the Brennan Center’s Legal Services E-Lert.