Stand Up for Public Service Loan Forgiveness

by Isaac Bowers, Director of Law School Engagement & Advocacy, Equal Justice Works

Many students reading this have an idea of what they want to do after they graduate law school. Whether it is to work in your community as a public defender, join a prestigious law firm as a new associate, or clerk for a judge at the state or federal level, each of you have chosen a different path to take. One option many law students forego in the hopes of a high paying private sector job is working in the public sector. This can include working for the government, a 501(c)3 nonprofit, or various legal aid organizations across the country. To better prepare yourself for a career in the public sector, there are many things you should know, and an important program you should fight to protect.

Public sector employees are lower-income professionals that are working for the greater good in their community, whether that is through non-profits or the government. These public sector attorneys rely on Income-Driven Loan Repayment plans, Loan Repayment Assistance Programs, and most importantly, Public Service Loan Forgiveness, to be able to afford the high price law degree necessary to work as a public sector attorney. Public Service Loan Forgiveness (PSLF) offers relief to these public sector workers across the country, and unfortunately, the current administration has proposed eliminating or capping PSLF at $57,500. While eliminating PSLF would be devastating for our public servants, capping the program at this level would be only marginally less harmful to our public sector.

For example, in the legal field served by Equal Justice Works, a survey conducted by the National Legal Aid and Defender Association showed that about half of the 2,007 lawyers in the survey would not have taken their current public sector position, or would leave for a position with a higher salary, if a cap was put in place. This would leave the country without the legal aid and public defenders vital to ensuring access to justice for everyone in our legal system. Attorneys in other sectors, like prosecutors, would greatly decrease as well.

Ensuring PSLF works for graduate and professional students is not just critical to the legal profession. Many professions require or rely on graduates with professional or graduate degrees to fill crucial positions, such as teachers, doctors, therapists, social workers, physical therapists, nurses, and many others. Nonprofit and governmental institutions that rely on people with these degrees would face recruitment and retention problems that parallel those in the legal field.

Capping PSLF at an amount that limits its utility for graduate and professional students is shortsighted for other reasons as well. First, graduate and professional students are proportionately more likely to work in the public sector than those with only undergraduate degrees. Forty-eight percent of full time workers age twenty-five to fifty-nine with graduate and professional degrees work in the public sector.

Second, a study done by Equal Justice Works has shown that after ten years, the average graduate and professional student borrower will have repaid 91 percent of the amount they initially borrowed, while the remaining balance forgiven is largely interest on the original loans. Given the economic benefits provided by the public sector, it is clear that investing in graduate and professional students should be a big deal for the federal government.

This is where you come in. 

Equal Justice Works is building a coalition of organizations, from state level prosecutors to teachers and police officers, to advocate for PSLF, but we can’t do this on our own. Students at law schools and graduate schools across the United States need to speak up about how important PSLF is to their futures.

How you advocate for PSLF is up to you! The important thing is that we bring more students on to advocate for Public Service Loan Forgiveness and ensure that Congress and the White House don’t prevent a generation of professionals from joining the public sector.

Abortion, Immigration, and the Courts – Three Judicial Approaches

by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights 

It had to happen: an administration seeking to remake the Constitution into a rubber stamp for rights violations found the place where abortion and immigration converge.  In a federally contracted shelter in Texas, an unaccompanied 17-year-old immigrant who did not want to be pregnant waited over a month while federal officials relentlessly blocked her from receiving an abortion.  Jane Doe was forced to endure what ultimately became a grueling spectacle and multiple court hearings before she could access what has long been a protected constitutional right in the United States.

The government’s argument in this recent case, Garza v. Hargan, is glaringly unconstitutional. Under a line of cases starting with Roe v. Wade (1973), and ending with Whole Woman’s Heath v. Hellerstedt (2016), it’s settled law that the Constitution protects the right to access abortion, and the government cannot place a “substantial obstacle” in the path of a woman - adult or minor - seeking to exercise that right.  Whether claiming to advance the government’s preference for childbirth or its view of what is in a pregnant minor’s “best interests,” or both, the government has no authority to unilaterally block a woman’s access to abortion.  But in the Garza case, the government did just that.

Before federal officials halted her, Jane Doe had already sought and received a judicial bypass in Texas state court. Under this process, a minor who does not want to involve her parents has a right to go expeditiously before a judge, represented by an appointed guardian ad litem.  After the judge authorized her abortion, government officials from the Department of Health and Human Services’ Office of Refugee Resettlement (ORR) refused to release Jane Doe from custody so she could travel to her appointment, blocking her from obtaining an abortion, even as her pregnancy progressed to almost 16 weeks. The government clung to two equally untenable arguments that it was not actually stopping Jane Doe from having an abortion. First, she could remove herself from its custody by voluntarily giving up any rights she had to immigrate to the U.S., instead returning to her home country where she faced abuse and where abortion is illegal.  Alternatively, if at some point ORR identified and approved a sponsor who would house and care for her while her immigration case progressed, then she would be out of the government’s custody and free to proceed with an abortion.

In situations like this, vindication of constitutional rights can only happen in the courts. And the U.S. Court of Appeals for the District of Columbia, sitting en banc, came through, holding that that the government could not continue to block Jane Doe’s access – reversing a three-judge panel of the same court that held otherwise just days before.This legal resolution is correct, and allowed Jane Doe to have her abortion without additional trauma. But it also provides insight into the role that courts and judges play when another branch of government goes off the constitutional rails. 

The en banc decision was a per curiam, without a written opinion. Three other opinions were filed – a concurrence, and two dissents. Collectively, they show the range of ways that judges can respond to an administration that traffics in glaring constitutional violations, and defends them in court with arguments that turn precedent on its head.    

Option One:  Enforce Precedent

Judge Patricia Millett – who also sat on the three-judge panel that would have held for the government, wrote a concurring opinion in the en banc review, which expanded on her previous dissent.  In both, she called out the government’s arguments for what they are – “freakishly erratic” assertions that “def[y] controlling Supreme Court precedent.” She told the government in certain terms that it cannot change the meaning of the law or Constitution by making funhouse arguments: “The government’s mere opposition to J.D.’s decision is not an individualized ‘best interests’ judgment within any legally recognized meaning of that term, and its asserted categorical bar to abortion is without constitutional precedent.”

Option Two:  Upend Precedent

Judge Karen L. Henderson, also on the three-judge panel, wrote a solo dissent from the en banc decision.  Judge Henderson’s opinion faults the government, but for a very different reason. She would have decided a monolithic question on which the government repeatedly and conspicuously declined to take a position:  do undocumented people have the right to abortion, or other rights guaranteed by the Fifth and Fourteenth Amendments?  Judge Henderson wrote: “The government has inexplicably and wrongheadedly failed to take a position on that antecedent question. I say wrongheadedly because at least to me the answer is plainly— and easily—no. To conclude otherwise rewards lawlessness and erases the fundamental difference between citizenship and illegal presence in our country.” In sweeping terms, she asserts that undocumented people either have nonexistent or very limited due process rights. She accordingly disagrees that Supreme Court precedent on abortion applies to Jane Doe, and would recognize the executive’s authority to “pursue its legitimate interest in protecting fetal life” without constitutional constraints.

Notably, the only participants in Jane Doe’s case who were willing to make the argument that Judge Henderson found persuasive were the attorneys general of Texas, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and South Carolina, acting as amici. 

Option Three:  Hollow Out Precedent 

Judge Brett Kavanaugh, the third member of the original three-judge panel, penned a dissent after the en banc review that Judges Henderson and Griffith joined. Judge Kavanaugh would have held that because the Supreme Court has upheld a 24-hour waiting period before abortion, and permitted some burdens on access if they are not “undue,” the government was free to block Jane Doe’s abortion while it tried to find a sponsor who would take her out of detention. Judge Kavanaugh wrote that under current Supreme Court precedent, it would not be an undue burden for the government to delay her abortion (already delayed by a month) until she was 17 weeks pregnant, at which time a court would revisit the question and the government could make additional arguments if it wanted to continue to block access. 

While the Supreme Court has upheld a 24-hour waiting period and other parental involvement laws provided that they include an expeditious bypass (such as the one Jane Doe used), it has never come close to upholding this scenario: weeks of intentionally-imposed delay after a woman has decided to have an abortion and completed any state-mandated requirements – especially not where the government admits to hindering her based on its own opposition to abortion. Judge Kavanaugh’s holding pretends to apply precedent, while hollowing it out to mean absolutely nothing.      

The en banc court came through for Jane Doe, righting an egregious constitutional violation by applying long-settled precedent. But the range of opinions in this case show that when an administration tries to remake constitutional law, judges have choices.  They can apply settled law, drastically rewrite it, or subtly revise legal standards to accommodate rights violations.This administration will provide the courts with no shortage of rights violations, in reproductive rights, immigration, and countless other areas. Precedent is not always perfect, but when it’s clear, and the government tries to muddy it, the courts need to see through the mess.  

Donald Trump: The Great Distractor

by Reuben Guttman, Founding member, Guttman,Buschner & Brooks PLLC

*This piece was originally posted on Huffington Post.

There is a scene in the movie Private Parts – the life and career of Howard Stern – where NBC officials, committed to dumping the shock jock, check out the latest ratings and learn, to their dismay, that the DJ’s popularity has rocketed. Pouring through the data, they find that the “number one reason” people tune into Stern is because they are waiting to hear what he will say next.

For all the time that Donald Trump spent on the Stern show, this may be the one lesson he learned. From North Korea’s “rocket man” to “crooked Hillary,” and a dash of Ryan and McConnell bashing, people tune in to this President to hear what he will say or tweet next. For their part, the members of the news media seem to fixate on Trumpian commotion.

Call him the great distractor. While the world focuses on Trump and wonders what he will do or say next, his minions are busy dismantling government. It is as if the Trumpeteers are robbing the rule of law while Trump is distracting the security guards.

Consider Department of Education Secretary Betsy DeVos. Last month – before the Harvey Weinstein sexual harassment scandal broke – the Secretary appeared before an audience at George Mason University and spoke about Title IX enforcement.

Promulgated by Congress 45 years ago, Title IX ensures that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program or activity receiving federal financial assistance.” Title IX is part of a myriad of civil rights laws enforced by the Department of Education’s Office for Civil Rights. These laws also proscribe discrimination based on race, color, national origin, disability, and age.

For her part, DeVos spoke out against campus sexual misconduct, noting that she is “grateful to those who endeavored to end sexual misconduct on campuses.” It was – at one level – a seemingly uneventful speech. Yet, on another level, it was a speech replete with dog-whistle-like messaging communicating an intent to dismantle regulation proscribing sexual harassment and discrimination at our nation’s colleges.

Referring to an unidentified school official, DeVos said she was told that the Department’s “Office for Civil Rights has ‘terrified’ schools.” Citing another unnamed school official, DeVos noted that “[o]ne university leader was rightly appalled when he was asked by an Office for Civil Rights official: ‘Why do you care about the rights of the accused?’” Referring to required processes to investigate and address sexual harassment, DeVos said, “It’s no wonder so many call these proceedings ‘kangaroo courts.’” She complained that “[t]his failed system has generated ‘hundreds upon hundreds of cases’ at the Office for Civil Rights while generating “dozens upon dozens of lawsuits” filed “by students punished for sexual misconduct.” And – like her boss who freely opines on matters squarely within the orbit of an independent judicial process – she spoke of a football player who had been dismissed from school – in her mind wrongfully – because he had been determined to have engaged in sexual harassment. “There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused,” said DeVos.

And DeVos said this: “Punishing speech protected by the First Amendment trivializes actual harassment. It teaches students the wrong lesson about the importance of free speech in our democracy.”

No Madam Secretary; you are wrong! Our nation has long regulated speech when it hinders equal opportunity in employment, housing, public accommodation, and, yes, education. And at least in the employment context, our half-century-old civil rights laws view the legality of the speech from the vantage point of the listener and not the speaker. And no Madam Secretary, it is not for you to determine how much a woman will take before it is called harassment.

The Secretary of Education has now telegraphed her intention to dismantle Title IX compliance enforcement. If this were the only regulatory scheme that Trump’s minions were trashing, it would be tragic but perhaps manageable. Unfortunately, there are regulatory wrecking balls at all government agencies. And, of course, trade agreements and nuclear non-proliferation agreements are not safe from demise.

At some point the Trump presidency will end. We will than begin the process of picking through the rubble of a dismantled regulatory system that once fostered equal opportunity from education to the workplace and housing, protected workers on the job from hazard, and safeguarded our natural resources from contaminants. The measure of our task will of course depend on how much damage we can prevent, and prevention means not being distracted by the side show of the great distractor Donald Trump.

The Power of Executive Clemency to Promote Systemic Change

by Renato Mariotti, Partner, Thompson Coburn LLP

*Renato Mariotti is a panelist for ACS’s congressional briefing Pardon the Disruption: The Reach, Limits and Effect of Executive Clemency

Usually, people only pay attention to the pardon power when it is the subject of controversy, like the pardon of former Sheriff Joe Arpaio earlier this year. Although pardons are typically thought of as a way to achieve justice in individual cases, executive clemency can be used to promote systematic change in state and federal policy.  For example, on his first day in office, President Carter pardoned civilians who violated the Military Selective Service Act by draft-evasion acts or omissions during the Vietnam War. President Carter intended for this blanket pardon to create reconciliation in the country and “heal the scars of divisiveness.”

More recently, President Obama began a clemency initiative in 2014 that focused on commuting the sentences of or pardoning people who received mandatory-minimum sentences for nonviolent drug offenses during the “War on Drugs.”  Through this initiative, President Obama encouraged people serving lengthy prison terms for nonviolent drug convictions to apply for clemency and prioritized those petitions from individuals convicted of drug trafficking offenses. President Obama’s clemency initiative focused on the fact that these individuals likely would have received considerably lower sentences if they were convicted of the same offense today.  President Obama ultimately commuted the sentences of 1,715 individuals, the vast majority of whom were serving sentences for drug convictions.

While President Obama’s initiative was an important first step, most people convicted of nonviolent drug offenses are convicted of state crimes, not federal crimes.  I believe state governors should adopt a program similar to President Obama’s, inviting clemency petitions from non-violent drug offenders serving state or federal sentences.  Like President Obama, they could invite individuals serving sentences for drug-related convictions to apply for clemency to if they meet the following conditions:

  • The individual is currently serving a federal or state sentence for a drug-related offense;
  • The individual does not have any felony convictions or arrests, other than ones related to their drug conviction(s);
  • The individual does not have a history of violence prior to or during their term of imprisonment;
  • The individual has already served more than 25% of their sentence or 10 years, whichever is less; and
  • The individual has demonstrated good behavior in prison.

These petitions would then be decided on a case-by-case basis by the Governor’s office.

This policy would benefit state governments and taxpayers that are bearing the cost of imprisoning non-violent drug offenders who would likely be sentenced to significantly lower sentences if sentenced today.

“Show me the proof…before you can get the proof”: Ayestas offers the Court the chance to fix a paradoxical and unfair standard in death penalty cases

by Emily Olson-Gault, director, American Bar Association Death Penalty Representation Project and Misty C. Thomas, director, American Bar Association Death Penalty Due Process Review Project

*Affiliations are listed for identification purposes only, as the opinions expressed in this post are the authors’ personal views.

In one week, the U.S. Supreme Court will hear oral arguments in the case of Texas death row prisoner Carlos Ayestas to decide whether his federal appeals attorneys should be afforded basic resources to investigate their client’s background and mental health. This should seem obvious, as we know that these investigations are often the only way to uncover new evidence of wrongful convictions or other constitutional violations. However, the courts below have denied Mr. Ayestas investigative resources critical to developing his defense because he could not prove in advance the very claims he sought to investigate. If the lower court’s decision sounds confusing and circular, that’s because it is. It is also an outlier practice that effectively denies poor people access to justice in the most serious and complex cases.

Congress has long recognized the need to provide reasonable funding for investigation to defense counsel who are representing poor people accused or convicted of crimes. Without such resources, defense lawyers cannot fulfill their ethical obligations to their clients and the reliability of our justice system is greatly diminished. While important in all criminal cases, Congress and the courts have noted that the ability to investigate fully is particularly vital in death penalty cases, where mistakes become irreversible once the punishment is carried out.

Carlos Ayestas sought such funding to investigate a claim that his trial attorneys’ woefully inadequate investigation and paltry two-minute plea for his life fell well below the quality of representation guaranteed by the U.S. Constitution. Any attorney who follows the ABA’s widely accepted guidelines on how to conduct a basic mitigation investigation would have easily uncovered that Mr. Ayestas had experienced multiple head traumas in his life, struggled with substance abuse, and exhibited signs of mental illness. Indeed, after trial, mental health experts at the Texas death row prison diagnosed Mr. Ayestas with schizophrenia. Research has repeatedly shown that evidence like this can be particularly compelling to capital jurors when well-presented, making them more likely to spare a defendant’s life when they know of past traumas or disabilities. But Mr. Ayestas’s trial lawyers said nothing about these factors in his life, nor did they adequately investigate Mr. Ayestas’s deteriorating mental condition.

The U.S. Supreme Court has repeatedly held that defense counsel’s failure to conduct a thorough investigation into all aspects of a client’s life violates the Sixth Amendment’s right to counsel. But to win an ineffective assistance of counsel claim, courts require proof of what evidence trial counsel could have uncovered if she had conducted a full investigation and how that evidence might have made a difference at trial. Yet the Texas federal district court and the Fifth Circuit, without allowing him to first obtain such evidence, ruled that Mr. Ayestas has not demonstrated ineffective assistance of counsel. In fact, his habeas lawyers’ request for investigation and expert resources has been rejected because, at the time he asked for funding, Mr. Ayestas was not yet able to provide what the court thought was sufficient evidence to support his claim of ineffective assistance of counsel or a “substantial need” for the investigation. The courts essentially required him to provide, in advance, the very proof that the funding was needed to obtain.

In most other jurisdictions, courts use a “reasonably necessary” standard to assess requests for funding from habeas lawyers who are seeking to prove claims like ineffective assistance of counsel or other constitutional failings. Under this test, the court asks only whether a reasonable attorney with limited resources would choose to spend some of those resources pursuing a particular line of investigation in advance of submitting a habeas petition. This is designed to ensure that defendants who can afford to hire a private lawyer and those who must rely on court-funded counsel receive equitable levels of representation, while giving courts the discretion to reject frivolous requests.

However, in the Fifth Circuit, where Mr. Ayestas’s case was considered, the courts apply a stricter standard, requiring defendants to show they have a “substantial need” for the funding. As Mr. Ayestas’s case demonstrates, this outlier standard is virtually impossible to satisfy. It prevents counsel from obtaining the reasonably necessary funding that Congress intended to provide to ensure that poor defendants do not receive second-class justice and in so doing threatens the functioning and integrity of the criminal justice system.

In Ayestas v. Davis, the U.S. Supreme Court is being asked to consider whether this rigid Fifth Circuit standard misinterprets the federal law that governs funding for habeas investigations. The Court has the opportunity to ensure that the conventional, plain-language reading of the statute remains the status quo, better ensuring that the law is consistent and fair for all poor defendants who simply want to exercise their statutory and Constitutional rights. The Court would be on solid legal footing in doing so. 

The Latest Muslim Ban Litigation

by Ryan J. Suto, J.D., Government Relations Manager, Arab American Institute

Two federal court rulings this week constitute a third strike for the Trump administration’s attempt at enforcing a Muslim ban. The Administration issued an indefinite Muslim ban late last month, Proclamation 9645, prompting the Supreme Court to rule moot litigation regarding the previous, temporary version of the ban. However, hours before the new ban was set to take effect on October 18, US District Courts in Hawai‘i and Maryland halted a majority of the policy from taking effect, largely arguing that the new indefinite ban does not avoid the statutory and Constitutional infirmaries of its temporary predecessors.

Rulings on the Latest Muslim Ban

On Tuesday Judge Watson in Hawai‘i ruled against the government in Hawai‘i v. Trump, granting a temporary restraining order against the policy with respect to the ban’s listed Muslim-majority countries. Early Monday morning Judge Chuang in Maryland entered a preliminary injunction for same countries in favor of plaintiffs in IRAP et. al v. Trump.

Both judges found that the Proclamation over-stepped the President’s authority in the realm of immigration delegated by Congress under the Immigration and Nationality Act (INA). Specifically, both judges held the Muslim ban in violation of the Act’s nondiscrimination clause, 8 USC 1152, and delineated grounds for entry restrictions by a President, 8 USC 1182(f).

Judge Watson felt the Proclamation’s reasons for arriving at the list of countries banned were, “inconsistent with and do not fit the restrictions that the order actually imposes,” and that the Proclamation “improperly uses nationality as a proxy for risk.” He further lists three main reasons why the Proclamation’s evidentiary findings fall short: it presents no evidence that nationality alone is linked to a propensity to commit terrorism; there is no explanation as to why existing law is insufficient; and there are “internal incoherencies that markedly undermine [the Proclamation’s] stated ‘national security’ rationale”.

Judge Chuang ruled on the INA as well, but also felt the Proclamation, like the previous bans, violates the Lemon Test of the Establishment Clause of the First Amendment by having a religious-based motive driving the policy. The judged noted, “...the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation.”

Next Steps

At present, Trump’s Proclamation remains in force with respect to only specified government officials from Venezuela and the exceedingly rare North Korean national who attempts to immigrate to the US. Nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia may enter the US subject to pre-existing immigration law. This may change, however. The status quo rests on a temporary restraining order and a preliminary injunction. The government will likely appeal these measures, and full hearings on the merits are unlikely to, but may, produce different results in either the District or Appeals courts.

The Trump administration has fought judicial challenges to previous iterations of the Muslim ban tooth and nail. So it is no surprise that the White House has already announced that the “Department of Justice will vigorously defend the President’s lawful action,” which DOJ plans on doing “in an expeditious manner.” The government will face uphill battles in front of the respective Courts of Appeals for the cases, the 4th and 9th Circuits. Both appellate courts ruled against the previous iterations of the Muslim ban, and both of the most recent District Court decisions outlined above quote heavily from those previous Appeals Court rulings as relevant precedent. Facing likely failure at the appellate level, the government is surely preparing for the Supreme Court.

While the Supreme Court has not yet ruled on the substance of the Muslim ban, its June ruling narrowing similar lower court injunctions to those above included explicit deference to the President’s national security claims, perhaps tipping the Court’s hand as to how it may rule on the case more broadly. Like Judge Watson, any substantive ruling by the Supreme Court will likely attempt to avoid ruling on Constitutional grounds if not necessary. However, relying on statute may force the Supreme Court into an uncomfortable tension with Supreme Court precedent such as Galvan v. Press 347 U.S. 522 (1954), which affirmed the INA and the “broad power of Congress over the admission and deportation of aliens”.

Forecasting how nine justices will rule is notoriously difficult, and important stages of litigation lay ahead before the merits of the Muslim ban reach the high court again. When the ban inevitably comes before the Supreme Court again, the justices should remember, as the lower courts have, that the safety, equality, dignity, and familial integrity of millions of Muslims here and abroad await a judiciary grappling with discrimination under the guise of national security and the limits of executive authority.