Bipartisan Coalition of State AGs Oppose Defunding Legal Services Corporation

*This piece originally appeared on StateAG.org’s Tierney Blog.

by Faisal Sheikh

It is an indictment of the current age that we must pause and applaud a rare moment of bipartisan cooperation around an incredibly important and seemingly uncontroversial issue. But such are the times.

This did not take place in the halls of Congress, of course, but rather among a group 32 state attorneys general, led by Massachusetts Attorney General Maura Healey, a Democrat, and Colorado Attorney General Cynthia Coffman, a Republican. On May 22, the group sent letters to members of the House and Senate Appropriations Committees declaring their bipartisan opposition to the Trump administration’s proposal to eliminate all federal funding to the Legal Services Corporation (LSC). The corporation is a grant-making organization created by Congress for the purpose of distributing federal appropriations to nonprofit organizations that provide civil legal assistance. This group of state AGs joins the American Bar Association, state judges, over 150 law firms and many other concerned groups in opposing this assault on civil legal services for low-income Americans. This includes the elderly and low-income military veterans and military families.

It is only fitting that a bipartisan coalition of public officials rallies around this organization. LSC’s conception began under President Lyndon Johnson’s “war on poverty” and culminated in the enactment of a bipartisan bill signed into law by President Richard Nixon in 1974 that created the grant-funding organization. According to the LSC website, in describing the need for the organization, President Nixon wrote:

Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.

The need for civil legal services for those living near or below the poverty line, as well as middle-income Americans, has never been greater. According to the ABA’s Commission on the Future of Legal Services 2016 Report, approximately 63 million Americans are eligible for civil legal assistance through an LSC grantee, meaning their salaries were at or below 125 percent of the federal poverty line. And yet, current congressional appropriations allow LSC and its grantees to serve only a small percentage of those eligible for legal services. In many cases, legal services agencies must turn away individuals in need of legal assistance. The report found that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs, such as evictions, mortgage foreclosures, child custody disputes, child-support proceedings, and debt collection cases.”

ABA President Linda Klein’s testimony before a U.S. Senate Appropriations Subcommittee shed further light on this dire situation. Since 2010, funding for LSC has dropped approximately 18 percent, while the number of individuals eligible for free civil legal services has increased 25 percent.

Presidential and congressional defunding threats have long been part of LSC’s history. In 1982, President Reagan recommended that Congress not reauthorize LSC funding. Interestingly, state AGs also rose up to defend LSC, on a bipartisan basis, against the Reagan assault. Although Congress rejected President Reagan’s proposal, it did reduce the budget and impose onerous restrictions on LSC attorneys. Similarly, in the mid-90’s, a Republican controlled Congress implemented another round of cuts to the nonprofit corporation.

Defunding LSC would be devastating to some state legal services organizations. For instance, in 2015, Legal Services of Alabama relied on LSC for 88 percent of its funding, Dakota Plains Legal Services of South Dakota received 86 percent of its funding from LSC, and Montana’s Legal Services Association received 43 percent of its funding from LSC.

As news outlets have noted, this proposal would, in many cases, impact the very residents that supported the president during the election. The South Dakota and Montana attorneys general, Republicans in states whose electoral votes went to Trump, joined the coalition of state AGs opposing the administration’s proposal.

Aside from the moral dimension of this proposal, studies have shown that civil legal services providers actually have a positive impact on state and local economies. A study commissioned by the Tennessee Bar Association in 2015 entitled, "Economic Impact of Civil Legal Aid Organizations in Tennessee," found that not only did the organizations have positive impacts on the client population, but with every dollar invested in a legal service organization, over 11 dollars were produced “in financial benefits, extending to businesses, local governments and individuals across all social classes.”

The rationale for this latest attack on LSC comes under the guise of placing “more control in the hands of State and local governments, which better understand the needs of their communities.” On this point, the president may be right. So, to the administration and members of Congress, take it from 32 state attorneys general, the chief legal officers of their respective states, when they say, “[a]t a time of constrained state budgetary resources, federal funding plays an increasingly critical role in the provision of these services.” (emphasis added).

The fact that state attorneys general from both parties came together to announce their opposition to this unfortunate proposal, in this age of increased political polarization, should demonstrate to the administration and members of Congress the pressing need for continued and enhanced civil legal services for those who need it the most.

Twenty-One AGs Urge Education Secretary to Reconsider Rollback of Student Loan Reforms

*This piece originally appeared on StateAG.org.  

In a letter sent last week, 21 state attorneys general and the Office of Consumer Protection of Hawaii urged Secretary of Education Betsy DeVos to immediately reconsider “the Department of Education’s revocation of critical student loan service reforms.” The policy and guidance memoranda withdrawn by the Department addressed industry-wide procedures by student loan servicing companies that were the subject of investigations and enforcement actions by the Illinois and Washington state attorneys general, among others.

The April 24 letter highlights some of the industry practices that contributed to more than a quarter of borrowers being delinquent or in default on a student loan, according to a report by the Consumer Financial Protection Bureau (CFPB):

“In its 2015 report, the CFPB identified troubling student loan servicer practices – including paperwork processing errors and failure to provide accurate information – that discourage the use of income-driven repayment plans. By reforming service incentives and strengthening consumer protections, the rescinded guidance sought to eliminate the loan servicing failures that keep borrowers from entering affordable repayment plans.” — April 24 letter from 21 state attorneys general to Department of Education

According to Forbes, 44 million borrowers owe approximately $1.3 trillion in student loan debt, making it the second-largest type of consumer debt behind mortgages.

Is Speech From the Campaign Trail Relevant to Religious Discrimination Claims?

Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

The question, then, is whether there exists any good reason to exempt presidential campaign statements from the realm of evidence that courts can consider in cases alleging religious discrimination. The answer is that there is none. While a presidential candidate may make conflicting statements at different times and to different audiences, that is true of many other categories of written and oral communication. And such inconsistency itself is a factor that courts can and should consider in sifting through all of the relevant evidence. It also is not remotely disqualifying that a “poor schlub” of a candidate may (shockingly!) not really mean what he or she says, but may only be seeking political advantage. A presidential action that is taken to appeal to a constituency’s perceived bigotry is no less discriminatory in purpose than is an action that manifests the president’s personal biases. Nor does the fear that candidates will censor themselves on the campaign trail justify excluding their campaign statements as evidence of discriminatory purpose. Such statements will be relevant in a lawsuit challenging official action only if the candidate, once in office, takes official actions to which the statements can be linked. Even then, the statements, while probative, are not necessarily conclusive of discriminatory purpose. Weighing such statements as evidence, in short, is not the same thing as punishing candidates for the statements themselves.

Indeed, neither the Ninth Circuit panel nor the federal trial court whose decision it reviewed played a game of “gotcha” in which it cherry-picked isolated campaign statements. To the contrary, both courts referenced campaign statements in the context of the larger body of evidence to which the state of Washington pointed in its complaint and exhibits. That larger body of evidence includes post-election and post-inaugural statements, indicia of continuities between the pre- and post-election statements and the Travel Order itself, and flaws in the administration’s national security based justifications for the Order. For example, the state of Washington observed in its complaint that candidate Trump’s press release calling for a “total and complete shutdown of Muslims entering the United States” was still available on Trump’s campaign website as of the date that the complaint was filed. It also noted that Trump referred to his immigration plan as “extreme vetting” while still a candidate, and continued to refer to it as such in his first television interview as president and in a signing ceremony for the first travel order.

The District Court and the Ninth Circuit simply took notice of Donald Trump’s own statements, made publicly and repeatedly from the early days of his campaign through the first days of his presidency, and acknowledged common sense connections between those statements and the travel order. This was no more and no less than what was necessary to hold the administration accountable under the Constitution. After all, the Constitution constrains even a “poor schlub,” when that schlub happens to be the president of the United States.

Sabin Center and StateAG.org Launch Environmental Action Database

In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.

This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as staff attorney and associate research scholar for the Sabin Center.

I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington D.C., this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.

Maryland Legislature Expands State AG Authority - Finally!

*This piece originally appeared on StateAG.org's Tierney Blog. 

The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.

As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc., et al., 951 A.2d 428 (R.I. 2008).

Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.

An Open Letter from 1,060 Law Students to President-Elect Donald J. Trump

*Read the open letter to President-elect Trump here.

Dear President-elect Trump,

I believe you love this country as much as I do. Only someone with a compelling sense of purpose would endure such a grueling campaign, which will only be dwarfed in difficulty by the demanding, often thankless term of service that follows. To be sure, boldly and cautiously guiding the United States from the helm, while simultaneously serving as leader of the free world, are arduous and exhausting duties in any era. Yet the present moment is characterized by greater complexity, nuance and potential for conflict than perhaps has ever existed in human history. The burden on your shoulders – for maintaining America’s position as a linchpin of the Western-led liberal world order; attending to the needs of Americans at home and abroad; cherishing and working to uphold peace; safeguarding the integrity of American institutions and rule of law so they enable every American to achieve his or her potential; and offering light, hope and help to those suffering outside our borders – is truly immense.

No matter how heavy these responsibilities become nor how different our politics might be, I promise that I and others, will be always be here to help move our country forward, as well as to labor mightily to prevent backsliding when the need arises. One of the bedrocks of our democracy is truth. So over the next few years, as you feel you could benefit from the knowledge, analytic skill and passion for truth and justice embraced by young lawyers like myself, I hope that you will reach out.

In the meantime, you may perceive Open Letters such as this as an affront to your leadership. Inasmuch as they may represent acts of resistance, they are born out of our deep love of country, respect for our democratic institutions, and affirmation of the worth, dignity and equality of our fellow citizens. Former President Jimmy Carter recently reiterated the importance of upholding human rights at home and abroad, since another cornerstone of our democracy is equal rights and protection under the law. The potential for unequal treatment and unequal opportunity under an Attorney General Jeff Sessions is a profound concern motivating the writers and signatories of this letter. When it seems that entire communities, vulnerable people or marginalized groups are, or may in short order fall, under attack, acts of defiance may become urgently necessary.

Mr. Carter also noted, “In our democracy, the only title higher and more powerful than that of president is the title of citizen. It is every citizen’s right and duty to help shape the future legacy of our nation.” These words touched my heart and reminded me of some of our obligations as citizens. Together, we must valorize truth and protect it as we would a candle on a windy day. We must affirm the belonging of every American – including immigrants, members of the LGBT community, minorities, people of all and no religious beliefs, women, men, the rich, the poor, liberals, conservatives and moderates – within our diverse, entrepreneurial and spirited republic. We must struggle to remain open, understanding, and resilient in the face of extremism and hate. And when any of our brothers or sisters in this great nation is threatened, we must not hesitate to take swift action to defend and protect the people and values that represent the best of America. This is the fabric of patriotism, of kindness, of trust and of greatness, which we must weave together as a society, day by day.

Sincerely,

Amy Larsen

Amy Larsen is a Joint-degree student at NYU Law and the Harvard Kennedy School of Government and is Outgoing President of NYU Law's ACS Student Chapter and an ACS Next Generation Leader.