Justice for Some

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.”