Revoking legal services: Republicans want to keep lawyers from the poor.
Bidawid, president of the local school council, was outraged. Her son John, a nineteen-year-old with Down's syndrome, was benefiting from the special programs at Vaughn--learning skills he needed to find a job and live an independent life. But Taft, she says, "had nothing remotely resembling the programs at Vaughn." Without special training, many of the mentally retarded white, black, Hispanic, and Asian students at Vaughn were likely to end up on welfare, she says.
Other Vaughn parents shared Bidawid's outrage. They met with the board of education. They met with aldermen. They held demonstrations. But they could not reverse the closing.
"We had to get at it with a legal angle," explains Bidawid. "They wouldn't listen to reason."
Parents called many law firms, Bidawid says, and finally the Legal Assistance Foundation of Chicago, a legal-services agency, agreed to take the case. Staff attorney Shelley Davis filed a class-action suit to keep the school open.
And the parents won.
Cook County circuit court judge Erwin Berman agreed with parents that closing Vaughn would irreparably harm their children and issued an injunction against the closing.
Although not yet approved by the state, a plan to keep Vaughn open while main-streaming its students for some programs has been developed by school administrators and parents.
Helga Bidawid says it's a great victory. But it probably won't happen again.
Senator Phil Gramm, Republican of Texas, Congressman George Gekas, Republican of Pennsylvania, the American Farm Bureau, the Christian Coalition, and other conservative groups have persuaded Congress to place a series of restrictions on federally funded legal-services agencies that would prevent them from ever again filing a lawsuit like Bidawid's.
Conservatives say the restrictions are necessary to keep legal services focused on the day-to-day legal needs of the poor--fighting unfair evictions, appealing denial of welfare benefits, and handling child-custody cases. But legal-services lawyers, who already spend most of their time on those mundane matters, say the new restrictions would simply ensure that poor people cannot effectively sue the government, the rich, and the influential. Those who would lose the most, they say, are America's least powerful residents--migrant farmworkers, battered women, low-wage factory workers, welfare recipients, and disabled people like John Bidawid.
Poor people charged with crimes would still be represented for free by public defenders throughout the country. But because of the restrictions and Congressional funding cuts, poor people with other legal problems would find it more difficult to get free legal help from the country's 323 legal-service agencies.
Since President Richard Nixon signed the bill creating legal services in 1974, Congress has appropriated several hundred million dollars a year to the Legal Services Corporation. The Corporation in turn makes grants to local legal-services agencies, which also receive supplemental funds from Interest on Lawyers Trust Accounts and, in some cases, from state and local governments.
Gramm and Gekas wanted to eliminate the Legal Services Corporation entirely by turning the agency's annual appropriation into state block grants and phasing out federal support in two years. Those efforts failed, but conservatives are on the verge of drastically weakening the Corporation by enacting restrictions on its grant recipients and cutting its $400 million budget by more than 25 percent.
The Congressionally approved legislation also would prohibit legal-services agencies from accepting court-awarded legal fees, thus depriving these agencies of about another $15 million a year, according to Adam Goldberg, a government-relations specialist for the Legal Services Corporation.
And conservatives would eliminate federal funds for thirteen support centers that give front-line legal-services lawyers advice on difficult cases.
In December, President Clinton vetoed the conservative package of legal-services restrictions and funding cuts. The legislation is now caught in the budget logjam.
Conservatives, who have fought Legal Services for years, sense that it is still within their grasp to bring the agency to ruin. And Clinton's veto message of the appropriations bill containing the changes suggests that legal aid for the poor is not his top priority.
It was fifth in his list of objections to the bill--after cuts in funds for local police, drug enforcement, technology subsidies for business, and peacekeeping.
The Legal Services Corporation has survived meat-ax budget cuts before. In 1981, President Ronald Reagan's first budget slashed its funding by 25 percent. But never before has Legal Services faced debilitating restrictions that strike at the heart of its mission to represent those who cannot afford to hire a lawyer.
For years federal legislation has prohibited legal-services agencies from using federal money to represent illegal immigrants, lobby state legislatures, or handle abortion-rights cases. But many local agencies still did that work, and paid for it with other funds.
This year Republicans in Congress tightened the leash with a provision that would prohibit any agency that receives federal funds from handling restricted cases. And they added new restrictions, most notably a prohibition on filing class-action lawsuits.
The proposed law, says Rhode Island Legal Services executive director Robert Barge, "is simply a denial of equal justice in America."
When Freddie James reported for work at Bulk Lift International on Monday morning, June 20, 1994, he had a big surprise waiting for him. The Wilmington, North Carolina, factory where he worked--making industrial-strength bags for fertilizer, salt, and dry chemicals--was closed.
James and seventy-five other employees received no notice of Bulk Lift's shutdown, in apparent violation of the federal law requiring a sixty-day notice of plant closing. Having no union, James went for help to Legal Services of Lower Cape Fear for help, and it filed a class-action suit on behalf of the plant's seventy-six employees.
The company argued that the sixty-day-notice requirement did not apply to them. The plant was closed due to quality problems, Bulk Lift said, so all its employees were fired for cause.
But after a preliminary court ruling in the workers' favor, the company agreed to settle, paying James and his co-workers a total of $72,000.
Under the Congressionally approved restrictions, Legal Services of Lower Cape Fear could file a lawsuit for James individually, but not his co-workers, unless it tracked down and received authorization from each one.
That change, says William Beardall, litigation director of Texas Rural Legal Services, would drastically increase the cost of legal actions on workers' behalf and clog the courts with identical lawsuits. And more importantly, he says, it would encourage employers to break the law.
Take the Texas A&M lawsuit. In that case, the huge university was paying 400 farmworkers at its agricultural-experimentation stations as independent contractors, not employees. From 1990 to 1993, that enabled Texas A&M to avoid paying unemployment and social-security taxes totaling fifty-one cents an hour per worker.
After Texas Rural Legal Services filed a class-action lawsuit charging the workers were Texas A&M employees, the university admitted it had violated the law and agreed to pay $86,000 in back payroll taxes, giving some workers the credits to collect social security for the first time.
Not paying farmworkers' social-security taxes is a common practice, says Beardall. "The class action is the only way you can ensure that the employer doesn't rip off people year after year and profit from it," he says.
Under the new restriction prohibiting class-action suits, if ten or twenty members of a crew of 200 farmworkers seek the help of legal services to recover unpaid wages, says Beardall, "the employer can pay off the ten or twenty people and still end up ahead."
But a class-action lawsuit settled by a court-approved order, he says, ensures all present and future workers will be paid, or the employer risks being found in contempt of court.
The ban would also prohibit class-action suits against the government, a tactic that has yielded major victories for the poor.
In 1989, for example, Rhode Island Legal Services sued the State Department of Human Services for failing to give a portion of child-support payments to welfare recipients. The successful class-action suit will eventually return $400,000 to women on welfare in Rhode Island, according to staff attorney Gretchen Bath.
In Vermont, legal services filed a class-action suit to speed processing of welfare-benefit applications; in Cleveland, to integrate and renovate public housing; and in Louisiana, to force implementation of the "motor-voter" law designed by Congress to encourage people to register to vote.
Another new provision approved by Congress would hurt migrant workers. Previous Legal Services Corporation budgets earmarked money for migrant-worker legal-aid programs. But this year, responding to pressure from the American Farm Bureau, Congress eliminated those funds.
Without a specialized program with attorneys knowledgeable in farm-labor laws and fluent in migrants' languages, the legal problems of the nation's 670,000 migrant farmworkers and their families would not be addressed, says Beardall.
He points to a 1992 legal-services victory as proof that a specialized system works. After Texas migrants contacted a small Iowa migrant legal-services office, Beardall was able to win $37,000 for twenty-two workers who traveled to Iowa and Illinois to pull tassels from corn plants for the Garst Seed Company.
To induce them to make the long trip north, migrants were promised good wages, adequate housing, and six weeks of work, Beardall says. But once they arrived in the Midwest, they were laid off after two to three weeks, paid half the promised piecework rate, and forced to sleep on the floor or in their cars. In addition, although social-security taxes were deducted from their paychecks, their employers did not send either the employee or the employer share to the federal government.
Along with financial payments, the case settlement guarantees that the false promises and pocketing of social-security taxes will not happen again.
Migrants are frequently the victims of broken promises, says Beardall, and often not aware of their rights. That's why migrant legal-services staff regularly go into the fields and migrant camps to educate workers on the law. More than a third of all migrant cases start this way, Beardall says.
But that, too, would be prohibited by Congressional Republicans who call outreach and education efforts "solicitation."
No special approach is needed to reach migrant farmers, says Brian Little, a director of governmental relations for the American Farm Bureau. "These people all know where the local law offices are," he says. "They know what their rights are. They don't need someone from legal aid to tell them what their rights are."
Beardall disagrees, saying the motivation behind the new restrictions is simply greed. "If they can deprive their workers of access to the legal system and education of their rights, then growers can have their way."
The new restrictions would also prohibit local agencies from lobbying state legislatures or participating in the writing of government regulations. Previously, legal services could do both, as long as they did not use federal funds for lobbying.
Republicans are angry that legal-services lawyers challenged California's anti-immigrant Proposition 187 and New Jersey's and Indiana's efforts to prohibit additional welfare payments to mothers who have children while on public assistance. As Congress and state legislatures rewrite the nation's welfare laws, conservatives want legal-services staff excluded from that debate.
Because they represent the poor in benefit-denial cases, however, legal-services lawyers are often the only people, other than state regulators, who understand the intricacies of welfare law. The new lobbying restriction, says Rhode Island's Robert Barge, would deny legislators information they need to redraft welfare laws and would deny welfare recipients a voice in shaping their future.
The lobbying restriction also would prohibit legal-services staff from suggesting innocuous changes in state law, like a proposal made in 1990 by Maine Pine Tree legal attorney Sarah LeClaire.
LeClaire represented a Penobscot County woman who quit her job and moved to Aroostook County to escape an abusive husband. But when the woman filed for unemployment benefits, her request was denied because her reason for quitting was not job-related.
After winning her unemployment benefits on appeal, LeClaire wrote Maine officials that the law should clearly state that battered women fleeing abusive husbands are eligible for unemployment. Once aware of the problem, the state legislature overwhelmingly corrected the law.
"Nobody was paying attention," concludes Pine Tree's executive director Nan Heald, "except our staff."
Legal services would also be excluded from the regulatory rule-making process by the Congressionally approved legislation. Before this year, legal-services attorneys represented the poor in state utility-rate-increase hearings, national efforts to ban agricultural chemicals that are dangerous to farmworkers, and appeals of Medicaid regulations denying payment for medical services.
In another example of an activity Congress seeks to prohibit, last year Rhode Island Legal Services attorney John Rao worked with the Coalition Against Domestic Violence to convince the Public Utilities Commission to adopt regulations protecting battered women from caller-identification systems. Thanks to their efforts, the new rules make it difficult for an abusive husband to learn if his wife has been contacted by a family-crisis center, or to locate her when she calls her children after fleeing from home.
And there are still more restrictions approved by Congress.
Poor people in prison would no longer receive help from legal services in child-custody cases or debt-collection actions. Undocumented workers fighting exploitative landlords or seeking political asylum would not get legal services' help. And legal-services attorneys would be specifically prohibited from representing people in public-housing eviction proceedings if the accused has been charged with drug dealing.
All told, the gutting of legal services would deny full legal representation to millions of people.
For Helga Bidawid, the lesson is clear. "Republicans are against the little people," she says. "It's just the way it is. They're for big business. The little people mean nothing to them."
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|Date:||Apr 1, 1996|
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