race-based advocacy: the role andpovertylaw.org/files/docs/article/chr_2002_may_june_holmes.pdf ·...

MAY–JUNE 2002 | JOURNAL OF POVERTY LAW AND POLICY 61

This issue of CLEARINGHOUSE REVIEW makesa compelling case for increasing race-based advocacy strategies throughout thelegal aid system. The intersection of raceand poverty lies at the heart of much ofthe work that legal aid lawyers do, andaddressing the problems of low-incomecommunities of color requires goingbeyond traditional race and povertystrategies. It also calls for advocacy strate-gies that address the challenges that areunique to these communities.1 As the arti-cles in this issue make clear, legal aidlawyers must pay attention to racial dis-crimination and use the tools that areavailable from both civil rights andantipoverty arsenals.

The responsibility to examine raceand racial discrimination in housing,employment, health care, public benefitprograms, welfare-to-work initiatives, edu-cation, and consumer law does not fallsolely on the 500 or so legal aid programsthat the Legal Services Corporation (LSC)does not fund. The 170 programs thataccept LSC funding have an equal respon-sibility to pursue strategies explicitly usingcivil rights and related laws. In stateswhere few other legal aid programs exist,LSC-funded programs must take the lead.As LSC-funded programs plan and set pri-orities, engage in education and outreach,

and devote their resources to representa-tion, litigation, and a range of communi-ty and economic development work, theymust be explicitly aware of the effect ofrace on community dynamics and accessto economic resources. LSC-funded pro-grams must also work closely with, anduse the skills and resources of, non-LSC-funded legal aid providers, pro bono pro-grams, private lawyers, civil rights advo-cates, and community-based organizationsin order to carry out their responsibility torepresent low-income people and com-munities of color.

Staff of LSC-funded programs some-times do not explore the full range ofcivil rights and antipoverty strategiesbecause of a mistaken belief that LSCregulations preclude effective race-basedadvocacy. In this article we examinewhat LSC-funded programs may dounder the regulatory framework withinwhich they must operate, and we high-light examples of how the programs maypursue race-based advocacy strategies toprotect the rights, advance the interests,and enhance the lives of the membersof communities of color within the con-fines of the restrictions. Other articles inthis special issue of the REVIEW includemany other examples.

Race-Based Advocacy: The Role andResponsibility of LSC-Funded Programs

By Camille D. Holmes, Linda E. Perle, and Alan W. Houseman

The authors are on the staff of

the Center for Law and Social

Policy, 1015 15th St. NW, Suite

400, Washington, DC 20005;

202.906.8000; www.clasp.org.

Camille D. Holmes

([email protected]) is senior

counsel, Project for the Future

of Equal Justice; Linda E. Perle

([email protected]) is a senior

staff attorney, Legal Services;

and Alan W. Houseman

([email protected]) is director.

1 john a. powell, Race and Poverty: A New Focus for Legal Services, 27 CLEARINGHOUSE REV.299 (Special Issue 1993).

I. The LSC RestrictionsIn 1996 Congress imposed the latestround of restrictions on LSC-funded pro-grams.2 Although those restrictions, alongwith a 30 percent cut in funding, left LSC-funded programs with less capacity andflexibility to represent low-income clientseffectively, most of the work that is nec-essary to address poor people’s systemicproblems, including problems that racialdiscrimination causes, is still permissible.

To be sure, the LSC restrictions areproblematic and limit specific kinds ofadvocacy in ways that go far beyond pre-vious limitations on legal aid activities.3

Many of the new restrictions are incon-sistent with fundamental notions of equaljustice for all. Although these restrictionscreate many barriers, we must recognizethat LSC-funded programs may still en-gage in effective and aggressive advoca-cy. Legal aid programs have found thatthey may still do most of the work that isessential to the low-income communitywithin the confines of the frameworkCongress imposed in 1996.4

The full range of permissible advo-cacy is not explicitly set out in the LSCstatute and regulations, where the focusis on the negative, that is, what activitiesare prohibited. Thus, the fundamentalprinciple that must guide advocates is thefollowing: If an activity is not explicitlyprohibited by statute or regulation, LSC-funded programs are permitted to engagein the activity as long as it is within theindividual program’s priorities. While therestrictions may require a program tothink carefully about how to address anissue, fear of violating the restrictionsshould not hamstring pursuit of issuesthat are important to the program’sclients. In the case of communities ofcolor, these issues include protectionfrom discrimination on the basis of race,ethnicity, and language.

II. Race-Based AdvocacyFor the purposes of this article, race-basedadvocacy is that which actively challengesboth current and historical barriers thatimpede equal access to opportunity and

Race-Based Advocacy and LSC Restrictions

62 CLEARINGHOUSE REVIEW | MAY–JUNE 2002

2 Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,110 Stat. 1321 [hereinafter Omnibus Continuing Resolution]. See section 504(a).Subsequent appropriations acts have incorporated the restrictions set out in section504(a) with only minor revisions.

3 Since Congress passed the Legal Services Corporation (LSC) Act in 1974 and theCorporation was created in 1975, Congress has limited the activities of recipients of LSCfunding. Although the 1996 restrictions were a watershed, federally funded legal aidprograms have always operated within a web of legislative and regulatory restrictionsthat have constrained to some degree their ability to provide a full range of legal assis-tance to all eligible clients. The original LSC Act included, among other provisions, limi-tations on fee-generating cases, political activities, lobbying and rule making, trainingand organizing, class actions, representation of juveniles and defendants in criminal pro-ceedings, and school desegregation, selective service, and certain abortion cases. In1977 Congress eliminated the limitation on juvenile representation and relaxed some ofthe original Act’s other limitations, including permitting expanded representation beforelegislative and rule-making bodies. Between 1979 and 1995 Congress acted through theappropriations process to impose additional restrictions on lobbying and rule making,grass-roots lobbying, training, class actions, abortion, and aliens. On several occasionsthe LSC board crafted new constraints on program activity through the regulatoryprocess, including a restriction on cases involving redistricting and expanded limitationson lobbying and rule making.

4 The 1996 restrictions addressed a range of issues. Some, such as the prohibition on par-ticipation in class actions, significantly expanded the scope of previous limitations.Others, such as the prohibition on attorney fees and prisoner representation, wereimposed for the first time. Congress also, for the first time, restricted recipients’ use ofnon-LSC public funds, including Interest on Lawyers Trust Account grants, and appliedmost of the 1996 restrictions to all of a program’s activities, regardless of the source offunding. The statute included some exceptions. The Kennedy Amendment allowed useof non-LSC funds to represent aliens who were victims of domestic violence, and theCohen-Bumpers Amendment permitted programs to use non-LSC funds to respond torequests by legislators and to comment in public rule making. Some of the other nonad-vocacy restrictions, including those on the payment of dues and fees, applied only toLSC funds.

advancement by people of color.5 Thisapproach encompasses two closely relat-ed but different strategies. The first isantidiscrimination work using the numer-ous civil rights statutes that prohibit racial,ethnic, or language discrimination in sub-stantive areas that include housing, lend-ing, contracts, property, federally fundedprograms, and employment.6 State antidis-crimination statutes also create variouscauses of action and remedies for dis-crimination on the basis of race and eth-nicity; those statutes provide valuabletools that legal aid programs may useeffectively, within the restrictions, onbehalf of their clients.

The second strategy is advocacy thatidentifies and prioritizes the concerns ofcommunities of color and develops strate-gies that may not rely explicitly on antidis-crimination legal theories but nonethelessspecifically address the effects of dis-crimination. Advocacy of this sort requirescommunity involvement. Only a partner-ship between advocates and the commu-nity will make it possible to identify andovercome systemic discrimination andbarriers to community empowerment,participation in democratic processes, andincome generation and to promote oppor-tunities for economic development andinstitution building.

For example, most low-income indi-viduals and communities experience sig-nificant barriers to obtaining employment,social services, job training, child care,

housing, health care, quality education,and many other aspects of the Americandream. The barriers are often higher forlow-income individuals and communitiesof color because of their race or ethnici-ty. Legal aid programs advocating onbehalf of low-income clients of colorshould raise additional legal questions tounearth potential discrimination claims onthe basis of race, ethnicity, and languageand pursue the claims when appropriateand possible. For example:

� The inability of welfare recipients ofcolor to receive training and education asa part of welfare-to-work programs maybe due to inadequate agency resourcesor misguided policies, or it may be due torace, ethnicity, or language discrimina-tion.7 Race-based advocacy strategies mayrange from filing a discrimination com-plaint under Title VI, to training welfareoffice workers, to filing articles of incor-poration and providing other transactionalservices to grass-roots welfare rights orga-nizations.

� A building owner’s decision for busi-ness reasons to convert all of his Section8 apartment units to market-rate units mayhave a disparate impact on black andLatino renters.8 Race-based advocacystrategies may range from filing a dis-crimination complaint under Title VIII, torepresenting tenant groups in the pur-chase of an apartment development, tosubmitting comments on Section 8 regu-



5 While we focus in this article on race-based advocacy, many of our points may alsoapply, in varying degrees, to antidiscrimination work in the areas of gender, age, sexualorientation, familial status, religion, disability, and other statuses. Antidiscriminationadvocacy should not be limited to legal handles based explicitly on race but shouldinclude all strategies that would lead to positive change in communities of color.

6 42 U.S.C. §§ 3601-20, 3631 (1994 & Supp. III 1997), as amended by Fair HousingAmendments Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619 (1988); 15 U.S.C. § 1691(1994 & Supp. III 1997) (Equal Credit Opportunity Act lending); 42 U.S.C. § 1981 (1994)(contracts); 42 U.S.C. § 1982 (1994) (property); 42 U.S.C. § 2000(d) (1994) [hereinafterTitle VI] (federally funded programs); and 42 U.S.C. §§ 2000e-2000e17 (1994 & Supp. III1997) (employment).

7 See Steve Savner, Welfare Reform and Racial/Ethnic Minorities: The Questions to Ask,POVERTY & RACE, July–Aug. 2000, at 3, available at www.prrac.org/newslet.htm; Susan T.Gooden, All Things Not Being Equal: Differences in Caseworker Support Toward Blackand While Welfare Clients, 5 HARV. J. OF AFRICAN AM. PUB. POL’Y, 27 (1998); SCHOLAR

PRACTITIONER PROGRAM OF THE DEVOLUTION INITIATIVE, W.K. KELLOGG FOUND., RACE AND

ETHNIC DISPARITIES IN THE ERA OF DEVOLUTION: A PERSISTENT CHALLENGE TO WELFARE REFORM,A REPORT OF RESEARCH FINDINGS (2001).

8 Florence Wagman Roisman, Housing, Poverty, and Racial Justice: How Civil Rights LawsCan Redress the Housing Problems of Poor People, in this issue.

lations published for public comment inthe Federal Register.

� Predatory lenders’ fraudulent induce-ments into unfair lending arrangementsmay target all vulnerable individuals orthey may be concentrated in communi-ties of color.9 Race-based advocacy strate-gies may range from a complaint thatincludes fair housing and credit discrim-ination claims under Title VIII and theEqual Credit Opportunity Act, to the for-mation of financial institutions in under-served communities, to establishing acredit counseling program for communi-ty residents.10

An aggressive advocacy agendashould include direct representation raisingrace discrimination claims; direct repre-sentation addressing the effects of race dis-crimination through non-discrimination-based causes of action; and outreach,education, community empowerment, andeconomic development activities that iden-tify and address race discrimination and itseffects. These activities should acknowl-edge the integral role of race in the devel-opment and maintenance of structural bar-riers to advancement. By employinginnovative strategies that address economicbarriers in communities of color and beingvigilant regarding race and other forms ofdiscrimination, legal aid programs can

simultaneously help communities buildavenues to greater opportunity and pro-tect individuals from discrimination.

Being alert to cases of discriminationnot only protects the rights of those whoexperience discrimination but also holdsthe potential for identifying systemic prob-lems affecting all poor people. The Miner’sCanary, a recent book by Lani Guinierand Gerald Torres, posits that the diffi-culties that racial and ethnic minoritiesexperience serve as the “miner’s canary”—an alarm system that alerts us to thesystem’s fundamental flaws affecting dis-franchised people of all races.11 Payingattention to circumstances where the sys-tem deliberately or inadvertently fails peo-ple of color offers opportunities to devel-op strategies across racial and ethnicgroups to change the system so that it willwork affirmatively for the benefit of theentire low-income community.

III. Advocacy in the Courts andOther Adjudicatory Bodies

Legal aid programs that accept LSC fundsmay use race-based advocacy in thecourts and before other adjudicatory bod-ies to achieve significant systemic effects.As Gary Bellow and others argue, indi-vidual representation can have long-termsystemic effects if it focuses on particularissues and targets.12 While LSC-funded



9 Deanne Loonin, Race Discrimination and Consumer Law: What Legal Services Can Do toAttain Justice in the Marketplace, in this issue.

10 Id.11 LANI GUINIER & GERALD TORRES, THE MINER’S CANARY: ENLISTING RACE, RESISTING POWER,

TRANSFORMING DEMOCRACY (2002).12 See Gary Bellow, Turning Solutions into Problems: The Legal Aid Experience, NLADA

BRIEFCASE, Aug. 1977, at 106; Gary Bellow & Jeanne Charne, Paths Not Yet Taken: SomeComments on Feldman’s Critique of Legal Services Practice, 83 GEO. L.J. 1633 (1995). Afocused representation strategy involves careful review of existing cases to determinewhether typical responses by adversaries, officials, or institutions need to be changed.The program would then analyze the importance of the change to clients; the number ofclients seeking representation who face the same problem; possible results and thepotential impact of change; and the broader strategies available to address the problemand still provide service in individual cases. Next the program would select one or twoareas of focus and develop ways to increase both caseload (making it sufficiently largeto have some chance of achieving the desired change) and the aggregate impact of achange in the way cases are handled. E.g., hearings at a particular welfare office mayroutinely be followed by conversations with the worker involved concerning the prac-tice that has been challenged or by circulating appellate or hearing decisions touchingon the agency’s practice to the office’s staff. Such low-key challenges can sometimesaffect future behavior and strengthen the influence of welfare office staff more sympa-thetic to the legal aid position. The program should monitor the results of these strate-gies. It may face predictable reactions, many of which can be anticipated. Initial strate-gies will need to be adjusted as circumstances change or as efforts fail, succeed, or hitroadblocks that cannot easily be dislodged.

programs may not bring class action law-suits, they may pursue single individualclaims, multiple individual claims, andgroup representation, engaging in a vari-ety of effective actions to address the con-cerns of communities of color.13 More-over, LSC-funded programs may, underthe regulations, pursue discriminationcases by using statutes with fee-shiftingprovisions, as long as they do not requestfees and attempt to refer the cases to pri-vate attorneys.14

A. Single and Multiple Individual Legal ClaimsLegal aid providers may represent sin-

gle individuals, multiple individuals inmultiple cases with single plaintiffs, ormultiple individuals as joint plaintiffs in asingle case. Advocates may pursue racial,ethnic, or language discrimination claimsin any of these cases. Special projectsfocused on identifying discrimination canleverage federal agency resources toinvestigate and successfully resolve casesof racial, ethnic, and language discrimi-nation. The Legal Assistance Foundationof Metropolitan Chicago established broadrelief for African Americans in Chicagothrough its Civil Rights Investigation

Project. The program brought an actionon behalf of two African Americanemployment discrimination testers.15 Theplaintiffs alleged racial discrimination inhiring by a Chicago car dealership thatoffered employment to white testers andgave only cursory review to and then

rejected African American testers whowere comparable in skill, experience, andpresentation. The foundation settled thecase; it obtained a consent decree thatrequired proactive recruitment of AfricanAmerican applicants, diversity training andreporting, and continued random testingfor a three-year period.16

The Legal Aid Society of Albuquerquepursued discrimination complaints onbehalf of Cuban tenants through its FairHousing Project funded by the U.S.Department of Housing and Urban De-velopment (HUD).17 The project senttesters posing as potential renters into a



Advocacy activities should acknowledge the integral role of race in the development and maintenance of structural barriers to advancement.

13 Omnibus Continuing Resolution § 504(a)(7), supra note 2. See infra text accompanyingnotes 38–39 for a discussion of the restriction on class actions. The term does notinclude any action not specifically designated as a “class action” under court rule orstatute. The restriction does not prohibit representation of individuals, even when theresult would affect broad categories of people. LSC-funded programs are free to repre-sent organized groups and multiple individual clients who have similar legal problems.

14 Under the 1996 restrictions, LSC-funded programs are prohibited from claiming, collect-ing, or retaining attorney fees. An LSC-funded program may, however, take a case inwhich attorney fees are available as long as it does so consistent with the rules on rep-resentation in a fee-generating case and it does not request fees for its work. 42 U.S.C.§ 2996(b)(1) (2001); 45 C.F.R. § 1609(2001). See infra text accompanying notes 35–37for a discussion of the restriction on fee-generating cases.

15 Kyles v. J.K. Guardian Sec. Servs. Inc., 222 F.3d 289 (7th Cir. 2000). 16 Horton v. Metro Toyota Inc., No. 99-C-0012 (E.D Ill. May 10, 2001) (approving consent

decree); Two African American Employment Discrimination Testers, Represented byLegal Assistance Foundation of Metropolitan Chicago, Settle Race Discrimination SuitAgainst Metro Toyota, Brennan Ctr. for Justice Legal Servs. E-lert (June 1, 2001), atwww.brennancenter.org/programs/lse/pages/view_elerts.php?category. For more infor-mation, contact LeeAnn Lodder, [email protected].

17 United States v. Sunburst Mobile Home Village, No. CIV-01-1202MV (D. N.M. filed Oct.18, 2001); Legal Aid Society of Albuquerque’s Fair Housing Project Persuades U.S.Department of Justice to Sue Mobile Home Park in Albuquerque, Brennan Ctr. forJustice Legal Servs. E-lert (Oct. 12, 2001), at www.brennancenter.org/programs/lse/pages/view_elerts.php?category; Guillermo Contreras, Justice Dept. Suing City HomePark, ALBUQUERQUE J., Oct. 25, 2001, at D1; Interview with Rich Weiner, Legal AidSociety of Albuquerque (Mar. 2002).

mobile home park to test for discriminationby the park owners. The Legal Aid Societyfiled discrimination complaints with HUDon behalf of two former tenants of Cubandescent who were allegedly evicted orthreatened with eviction, based on theirnational origin, from the mobile homepark. The investigation and complaints ledHUD to file a federal discrimination lawsuitagainst the park owners.

Complaints to the civil rights officeof any of several federal agencies onbehalf of multiple individuals or groupscan leverage federal resources andachieve widespread benefits for commu-nities of color.18 The Legal Aid Founda-tion of Los Angeles partnered with theAsian Pacific American Legal Center, theWestern Center on Law and Poverty, andSan Fernando Valley Neighborhood LegalServices (now Neighborhood LegalServices of Los Angeles County) toaddress the failure, in violation of TitleVI, of the county welfare office to pro-vide applications, notices, and translationservices in languages spoken by signifi-cant portions of the local population.19

Advocates filed a complaint with the U.S.Department of Health and HumanServices Office for Civil Rights against theLos Angeles County Department of PublicSocial Services on behalf of individuals—one Asian, one Latino, and one anony-mous claimant, each of whom had limit-ed English proficiency—and the AsianPacific American Legal Center. The com-plaint included allegations of racial steer-ing away from better-paying jobs, educa-tion, and training.20 The case is insettlement negotiations and can result insignificant statewide welfare system

changes that will benefit racial and ethnicminorities.

Predatory lending practices grow outof a long history of racially discriminato-ry barriers to credit for people and com-munities of color in the United States.21

Recognizing this background, the LegalAssistance Foundation of MetropolitanChicago has actively challenged predato-ry lending in poor communities. A casebrought on behalf of one individual bothkept the client in her home and exposedthe actions of a predatory lender. An olderAfrican American woman who was on theverge of losing her home to foreclosureapproached the foundation. Advocatesdetermined that she had been the targetof successive sales pitches from subprimelenders and brokers who convinced herto enter loan agreements at exorbitantmortgage rates. By pursuing her case andcombining it with effective media cover-age, the foundation renegotiated theclient’s loan to a level she could afford;the foundation’s involvement also ulti-mately led to the indictment of the brokerfor fraud against the client and severalother elderly African American home-owners.22 While the case did not includea specific claim of race discrimination, ithelped stop illegal conduct that had tar-geted the elderly African American com-munity in Chicago.

Farmworker issues are often at thenexus of race and poverty. Farmworkerlegal aid projects that target farmers’ unfairand abusive practices recognize the needfor specific strategies to address the cir-cumstances of poor migrant workers whoare disproportionately people of color andoften have limited English proficiency.



18 For a discussion of how to file an Office for Civil Rights complaint, see generally RandalS. Jeffrey et al., Drafting an Administrative Complaint to Be Filed with the U.S.Department of Health and Human Services’ Office for Civil Rights, 35 CLEARINGHOUSE REV.276 (Sept.–Oct. 2001).

19 For a discussion of Office for Civil Rights complaints on behalf of clients with limitedEnglish proficiency, see Victor Goode & Phyllis Flowers, Invisibility of Clients of Color:The Intersection of Language, Culture, and Race in Legal Services Practice, in this issue.

20 See CalWORKs v. L.A. County Dep’t of Pub. Soc. Servs., No. 09-00-3082 (U.S. Dep’t ofHealth & Human Servs. Office for Civil Rights filed Dec. 16, 1999). The case is currentlyin settlement negotiations. For more information, contact Silvia Argueta, Legal AidFoundation of Los Angeles, [email protected].

21 See Ira Rheingold et al., From Redlining to Reverse Redlining: A History of Obstacles forMinority Homeownership in America, 34 CLEARINGHOUSE REV. 642 (Jan.–Feb. 2001).

22 Id.

Claims on these workers’ behalf may notbe based explicitly on race, but a racialsubtext is nonetheless present. For exam-ple, the Indiana Legal Services MigrantFarmworkers Project has achieved sever-al victories for individual Latino farmworkers cheated by their employers. Since1998 the program has filed two lawsuitsand settled at least eight cases againstfarmers involving issues such as unpaidwages and inadequate housing.23

Sometimes, however, discriminationis specifically at issue. Florida Rural LegalServices has brought several cases onbehalf of Haitian workers who were sub-jected to discrimination in hiring on thebasis of race and national origin. In onecase the plaintiffs were thirty-nine Haitianworkers who were paid less than theirLatino coworkers and were fired whenthey complained about the disparity.24 Inanother case the program’s representa-tion of multiple individuals led the EqualEmployment Opportunity Commission tofile a discrimination case against a veg-etable packing plant when some fortyHaitian workers were laid off in favor ofLatino workers.25 Clients received sub-stantial judgments through settlement andmediation.

California Rural Legal Assistancehelped residents recover against RiversideCounty when mobile home parks ownedand occupied by Latinos were targetedfor selective enforcement of health andsafety codes.26 The program filed housingdiscrimination complaints with HUD andachieved a $21 million settlement fortwenty-four Latino farmworker families.The settlement provided almost $16.1 mil-lion in loans and grants for community-development and approximately $747,000to the families. The U.S. Department ofAgriculture and the city of Coachella,where the incident took place, alsopromised to provide $4.2 million in loansand grants to the farmworker communi-ty. In addition to economic remedies, thesettlement, in an attempt to prevent futureabuse, required changes in code enforce-ment and fair housing training for codeenforcement staff.27

B. Group RepresentationGroup representation is another effec-

tive way to address the concerns of mem-bers of low-income communities of colorwithout filing a class action.28 For exam-ple, the Legal Aid Service of BrowardCounty, Florida, filed racial discrimination



23 Four Texan Migrant Farmworkers, Represented by Indiana Legal Services OrganizationSue Employer for Back Wages, Proper Wage Reporting and Adequate Housing, BrennanCtr. for Justice Legal Servs. E-lert (July 9, 2001), at www.brennancenter.org/programs/lse/pages/view_elerts.php?category; Telephone interview with RoderickBohannan, Migrant Farmworker Project, Indiana Legal Services (Mar. 2002).

24 Nazaire v. Sugar Farms Coop., No. 00-8348-CIV-ZLOCH (S.D. Fla. filed Apr. 25, 2000);Haitian Cane Planters File Bias Lawsuit Against Sugar Company, Brennan Ctr. for JusticeLegal Servs. E-lert (Apr. 27, 2000), at www.brennancenter.org/programs/lse/pages/view_elerts.php?category. For more information, contact Sally Schmidt, FloridaRural Legal Services, [email protected].

25 EEOC v. Sunrich of Immokalee, No: 00-CV-264-FTM-29b (M.D. Fla. filed July 19, 2000);Telephone interview with Lisa Butler, Florida Rural Legal Services (Mar., 2002). For moreinformation, contact Sally Schmidt, Florida Rural Legal Services, [email protected].

26 In re Hernandez, No. 09-99-11-0007-300 (Title VI voluntary compliance agreement), No.09-98-2574-8 (Title VIII enforcement agreement) (HUD Office of Fair Hous. & EqualOpportunity filed Sept. 22, 1998);LSC-Funded California Rural Legal AssistanceComplaints Prompt $21 Million Settlement for Hispanic Farm Worker Families AllegingBias in Health and Safety Code Enforcement, Brennan Ctr. for Justice Legal Servs. E-lert,May 23, 2000, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.For more information contact Ilene Jacobs, California Rural Legal Services,[email protected].

27 Supra note 26.28 Group representation is permitted under 45 C.F.R. § 1611.5(c) (2001), the LSC regulation

on financial eligibility. The group must be composed primarily of financially eligiblemembers and must show that it cannot afford to pay for legal assistance. LSC recipientsmay use non-LSC funds to provide assistance to financially ineligible group clients.

claims against the U.S. EnvironmentalProtection Agency, HUD, the FloridaDepartment of Environmental Protection,and the City of Fort Lauderdale on behalfof two African American public housingtenant groups. The complaint alleged thatthese agencies segregated African Amer-ican tenants in housing projects built nextto a site known to be toxic and madeinsufficient efforts to clean up the area.The case was ruled premature becausethe cleanup was ongoing, but plaintiffshave appealed.29

South Brooklyn Legal Services has,within LSC restrictions, pursued severalaggressive advocacy strategies on behalf ofindividuals and groups seeking significantimpact for the benefit of communities ofcolor.30 In Kent Avenue Block Associationv. New York City Board of Standards andAppeals the program represented a com-munity association in its challenge to acity agency’s approval of zoning regula-tions that allowed the development of con-dominiums in an area occupied by sever-al manufacturing companies.31 Plaintiffsalleged that the zoning and resulting con-struction would lead to the elimination ofmany existing jobs in the predominantlyAfrican American and Latino communityand that the proposed construction of newhousing was racially discriminatory be-cause it would not be marketed to orfinancially available to community resi-dents. Through its representation of thecommunity association, the program wasable to pursue a strategy intended to pro-

vide broad relief to members of a com-munity affected by a common problem ofracial discrimination.32

The Camden Regional Legal Servicescommunity and economic developmentunit followed the lead of its communityorganization client and developed anenvironmental justice practice after com-munity leaders determined that environ-mental problems were a high-priority-action item threatening the health andsafety of their community. Cocounselingwith the Public Interest Law Center ofPhiladelphia and the Center on Race,Poverty and the Environment, the pro-gram filed a civil rights lawsuit on behalfof South Camden Citizens in Actionagainst the state Department of Environ-mental Protection. The complaint allegedthat the department’s grant of a permit toa cement company discriminated againstthe African American and Latino residentsof the community.33 This case, which hasencountered significant difficulty due tothe U.S. Supreme Court’s decision inAlexander v. Sandoval, is discussed indetail in this issue of the REVIEW.34 Whilethe disparate impact claims have been dis-missed, the intentional discriminationclaims remain, and the attorneys intendto continue their efforts to prevent furtherenvironmental degradation in this com-munity.35

C. Attorney FeesMany of the cases discussed thus far

rely on statutes that contain fee-shifting



29 Broward Garden Tenants Ass’n v. EPA, No. 01-151-17-II (S.D. Fla. filed July 13, 2001);Legal Aid Service of Broward County Represents Public Housing Tenants in LawsuitChallenging Inadequate Clean-Up of Toxic Dump, Brennan Ctr. for Justice Legal Servs.E-lert, Oct. 5, 2001, at www.brennancenter.org/programs/lse/pages/view_elerts.php?cat-egory. For more information contact Carol Anastasio, Legal Aid Society of BrowardCounty, [email protected].

30 See generally Raun J. Rasmussen, Affirmative Litigation Under the Legal ServicesCorporation Restrictions, 34 CLEARINGHOUSE REV. 428 (Nov–Dec. 2000).

31 Id. at 432; Kent Ave. Block Ass’n v. New York City Bd. of Standards and Appeals, 280A.D.2d 423 (N.Y. 2001).

32 Plaintiffs won a preliminary injunction but the case was ultimately dismissed by the NewYork Appellate Division with leave to appeal denied by the New York Court of Appeals.E-mail from Raun Rasmussen, South Brooklyn Legal Services, to Camille D. Holmes(Feb. 2002).

33 See generally Olga D. Pomar & Luke W. Cole, Camden, New Jersey, and the Struggle forEnvironmental Justice, in this issue.

34 Id.; Alexander v. Sandoval, 532 U.S. 275 (2001).35 Pomar & Cole, supra note 33; E-mail from Olga D. Pomar, Camden Regional Legal

Services, to Camille D. Holmes (Feb. 2002).

provisions. For example, Camden Region-al Legal Services pursued discriminationclaims with cocounsel but did not requestattorney fees for its work. The complaintspecifically requested the court to “[o]rderthe defendants to pay plaintiff’s reason-able expert and attorney’s fees, exceptthat no attorney’s fees are requested byCamden Regional Legal Services.”36

An LSC-funded program may take acase in which attorney fees are availableas long as it does not request fees for itswork and its involvement in the case isconsistent with the rules on representa-tion in a fee-generating case. The LSCrestrictions generally require a programto make two attempts to refer a fee-gen-erating case to the private bar beforeundertaking the representation. If thereferral attempts are unsuccessful, the pro-gram may undertake the representation.Referrals are not required when recoveryof damages is not the principal object ofthe case and when attorney fees are like-ly to be minimal or unavailable. Programsmay undertake fee-generating cases with-out first attempting referrals when the pro-gram has determined either that, after con-sultation with private bar representatives,the case is not one of the sort that privateattorneys in the area are willing to takewithout a fee or that, based on previousexperience, attempts to refer the casewould be futile.

No statutory or regulatory provisionprohibits LSC-funded programs fromcocounseling with private attorneys in fee-generating cases. As in the South Camdencase, LSC-funded programs may also

cocounsel with, or refer cases to, privateattorneys or other public interest organi-zations that undertake the representationon a pro bono basis, and those attorneysmay seek fees for their work.37 Thus attor-ney fees are preserved as a strategic toolfor civil rights litigation undertaken withlegal aid program participation. Attorneysin a private attorney involvement programmay also claim and collect attorney feesfor their representation of legal aid clientson a pro bono basis.38

D. Other Alternatives to Class ActionsA variety of approaches still may be

used to represent clients effectively incourt on systemic issues. LSC-funded legalaid programs may bring mandamusactions to force officials to take specificactions, seek equitable relief that affects

groups or categories of persons, or under-take representative actions not designat-ed as class actions—a procedural deviceavailable under the laws of certain states,including California and Florida. All thesestrategies can result in significant changesin law and policy extending beyond spe-cific individual clients.

However, in some instances a classaction filed under Rule 23 or a compara-ble state statute may be the only effective



36 See South Camden Citizens in Action v. N.J. Dep’t of Env’t, 145 F. Supp. 2d 446 (D. N.J.),supplemented by 145 F. Supp. 2d 505 (D. N.J. 2001), rev’d, 274 F.3d 771 (3d Cir. 2001),petition for cert. filed, No. 01-1547 (U.S. Apr. 15, 2002) (Clearinghouse No. 53,759);Interview with Olga D. Pomar, Camden Regional Legal Services (Mar. 2002).

37 In an August 7, 1997, program letter (Program Letter 97-1), LSC reiterated that privateattorneys who cocounsel with a legal aid program on a pro bono basis may seek andrecover attorney fees, but only for the portion of the work on the case actually done bythe pro bono attorney. The letter also makes clear that LSC recipients may not assigntheir fees to the pro bono private cocounsel or assist the private cocounsel in claimingwhat would be the recipient’s share of the fees.

38 45 C.F.R. § 1642.4(b) (2001) states that the restriction applies to private attorneys whoreceive compensation from the recipient under its private attorney involvement pro-gram, a judicare program, contract, or other financial arrangement. However, the sup-plementary information that accompanied the publication of the final regulation clarifiesthat the prohibition does not apply to pro bono attorneys who receive no compensationfrom the recipient to handle the representation and that those attorneys may seek andcollect attorney fees. 62 Fed. Reg. 25864 (May 12, 1997).

LSC-funded programs may cocounsel with or refer cases to pro bono attorneys, who mayseek fees for their work.

tool to address a widespread problem.Under the LSC regulations, “class action”is defined as “a lawsuit filed as, ordeclared by a court having jurisdictionover the case to be, a class action pur-suant to Rule 23 of the Federal Rules ofCivil Procedure or the comparable Statestatute or rules of civil procedure applic-able in the court in which the action isfiled.”39 Although LSC-funded programsmay not represent the class or namedplaintiffs or otherwise actively participatein such litigation, they may still contributeto the effort. First, even though an LSC-funded program may not bring such anaction directly, it may transfer non-LSCfunds to another lawyer or entity toenable that lawyer or entity to representthe class.40 Thus an LSC-funded programmay transfer private, Interest on Lawyers’Trust Account, or other public funds to apro bono attorney or to another organi-zation that engages in civil rights litiga-tion to support a class action that the pro-gram may not bring itself.

LSC-funded programs may identifyand refer individuals who may be appro-priate class representatives to otherlawyers or organizations that may repre-sent the class. LSC-funded programs mayalso give information on patterns of dis-crimination to government authorities thatmay bring class action lawsuits addressingthe offending practices. After receivingseveral reports that a particular lender wastargeting elderly African American home-owners in local neighborhoods, SouthBrooklyn Legal Services notified the NewYork attorney general, the New York StateBanking Department, the U.S. attorney’soffice, and the Federal Trade Commission.These referrals resulted in comprehensive

settlements that provided millions of dol-lars in relief to the targeted homeownersand proposed changes in banking regu-lations to address the lender’s practices.41

This kind of attention to threats to localcommunities of color not only addressesserious problems but also demonstratesto the community the legal aid program’sconcern and sensitivity to issues of raceand ethnicity and thus helps build trustand strengthen long-term relationships.42

E. Alien RepresentationBecause so many recent immigrants to

this country are people of color, the LSCrestriction on representing certain alienshas significant implications for race-basedadvocacy.43 We must emphasize first thatLSC-funded programs may still representmany aliens, including those who are law-ful permanent residents; those who aremarried to a U.S. citizen, the parent of aU.S. citizen, or an under-21 unmarriedchild of a U.S. citizen (assuming they haveapplied for adjustment of status to per-manent residency and such applicationhas not been denied); and those grantedasylum, refugee status, conditional entrantstatus, or withholding of deportation. LSC-funded programs may also provide rep-resentation on employment contract is-sues, but not on other issues, to migrantfarmworkers with H-2A visas.

The following are two examples oflegal aid program representation of alienswho have applied or are applying for per-manent resident status. The Legal As-sistance Foundation of MetropolitanChicago joined with the Midwest Im-migrant and Human Rights Center ofHeartland Alliance to file a federal law-suit against the Immigration and Natural-



39 45 C.F.R. § 1617.2(a) (2001). See supra note 13.40 See 62 Fed. Reg. 27697 (May 21, 1997) for a discussion of the effect of 45 C.F.R. § 1610

on the transfer of non-LSC funds.41 Rasmussen, supra note 30, at 439.42 Rheingold et al., supra note 21, at 653.43 Omnibus Continuing Resolution § 504(a)(11), supra note 2; 45 C.F.R. § 1626 (2001). As

this article goes to press, LSC is engaged in a negotiated rule-making effort to clarify Part1626, reduce administrative burdens on recipients, and incorporate changes that havebeen made in the law and various interpretations of the rules that LSC has issued sincethe rule was adopted in 1997. What is not clear is what impact any revisions LSC ulti-mately adopts will have on legal aid programs’ ability to undertake raced-based advoca-cy affecting the rights of ineligible aliens.

ization Service (INS); the suit alleged fraudagainst nineteen immigrants.44 The immi-grants faced deportation because personsposing as immigration consultants pre-pared their permanent residency applica-tions and submitted the applicationsbefore the immigrants were eligible forpermanent residency. The Chicago INSoffice allegedly accepted the applications,kept the filing fees, and then used theinformation in the applications to startdeportation hearings.45 Such advocacy iscritical to protecting the rights of immi-grants seeking permanent status and canhave wide-ranging effect.

California Rural Legal Assistanceachieved a negotiated settlement with anemployment service that refused to hirean immigrant with valid permanent aliendocumentation.46 The program filed dis-crimination charges with the Office ofSpecial Counsel for Immigration RelatedUnfair Employment Practices at the U.S.Department of Justice. Under the termsof the settlement, the temporary employ-ment service admitted no wrongdoing butpaid $11,000 in civil penalties and backpay to the client.47

The LSC restriction bars LSC-fundedprograms from providing legal assistance“for or on behalf of” an ineligible alien.48

Direct representation of individuals who

are victims of racial discrimination clear-ly may be undertaken only on behalf ofcitizens or eligible aliens. Nevertheless,LSC-funded programs may, in numerouscircumstances, undertake representationaffecting persons of color who are alsoineligible aliens. Under the current rule,an LSC-funded program may provide legalassistance to an eligible client even if thatassistance benefits an ineligible alien aslong as the assistance affects a specificlegal right or interest of the eligible client.Thus the program may represent a citi-zen child in an education discriminationcase even if the child’s parents are ineli-gible aliens and will receive some bene-fit from a successful resolution of theissue. Similarly an LSC-funded programmay represent a legal permanent residentalien who was denied credit in a creditdiscrimination case even though theclient’s spouse is an ineligible alien whowill also benefit from the representation.

Under current interpretations of Part1626, programs receiving LSC fundingmay represent groups without regard togroup members’ citizenship or alien sta-tus.49 Thus an LSC-funded program mayrepresent a financially eligible groupwhose membership includes ineligiblealiens in a case that alleges racial or eth-nic discrimination or that seeks, for exam-



44 Romas v. Ashcroft, No. 01-C-263, 2002 U.S. Dist. LEXIS 1918 (Feb. 7, 2002); LegalAssistance Foundation of Metropolitan Chicago Files Suit Against INS, Brennan Ctr. forJustice Legal Servs. E-lert, April 15, 2001, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

45 Id.46 California Rural Legal Assistance Settles Employment Discrimination Lawsuit, Brennan

Ctr. for Justice Legal Servs. E-lert, Dec. 11, 1999, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

47 Id.48 Under section 1626.2(e), “to provide legal assistance on behalf of an ineligible alien is to

render legal assistance to an eligible client which benefits an ineligible alien and doesnot affect a specific legal right or interest of the eligible alien.” Ineligible aliens are thosenoncitizens who are not included within the categories of aliens who may be providedassistance under sections 1626.5 and 1626.10 of the LSC regulations.

49 See Letter from Suzanne Glasow, senior assistant general counsel, to David B.Neumeyer, executive director, Virginia Legal Aid Society (Dec. 3, 1999) (on file withCamille D. Holmes) (“A group found to be financially eligible under Part 1611 is not dis-qualified from eligibility if members of or persons served by the group are not UnitedStates citizens or aliens eligible for legal assistance under Part 1626.”). According to theletter, group eligibility is determined solely by the financial status of the group since theclient is the group rather than the individual members of the group, and citizenship isan attribute of an individual. As part of the pending negotiated rule making, LSC hasindicated that it has reservations about the validity and wisdom of this opinion, but fornow it remains the official LSC interpretation.

ple, to improve services or facilities incommunities of color that governmentagencies or financial or other commercialinstitutions have underserved.

Often cases involve representation ofnumerous individual clients who havesimilar legal problems. To the extent thatthese individuals are ineligible aliens, LSC-funded programs are not permitted to rep-resent them. However, in cases with mul-tiple individual plaintiffs, legal aidattorneys may represent the individualswho are citizens or eligible aliens as co-

counsel with other attorneys who repre-sent the ineligible aliens.

The Kennedy Amendment permitsLSC-funded programs to use non-LSCfunds to provide legal assistance to certainotherwise ineligible aliens who are vic-tims of domestic abuse to help themescape from abusive situations, amelio-rate the effects of abuse, or protect againstfuture abuse.50 For example, programsmay use non-LSC funds to work withabuse victims who are aliens to increasethe availability of domestic violence ser-vices or challenge law enforcement’s fail-ure to respond to domestic violence callsin neighborhoods with large immigrantpopulations, to increase the availability ofemergency shelter and financial assistanceto aliens, or to improve access to inter-preter services in family court. Any of theoutreach programs mentioned in the nextsection can provide assistance to other-wise ineligible aliens on issues regardingdomestic violence.

IV. Education and OutreachLSC-funded programs must engage in out-reach to educate low-income personsabout their legal rights and responsibilitiesand the options and services available to

solve their legal problems and to protectlow-income people’s legal rights and pro-mote their legal interests. Educating low-income people of color about their legalrights and changes in laws and policiesthat directly affect them can help poten-tial clients understand their options andresponsibilities, prevent future legal dif-ficulties, and enable low-income personsof color to seek legal assistance at a timewhen it can be most valuable.

In particular, LSC-funded programsmust engage in aggressive, coordinated,systematic, and comprehensive outreachtargeted to all segments of the low-incomepopulation within their service areas,including hard-to-reach groups, racial andethnic groups, existing and emerging com-munities of color, and groups with lan-guage or cultural barriers. Such outreachshould offer information about legal rightsand responsibilities of low-income personsand communities and about the optionsand services available from legal providersand their partners, particularly in discrim-ination cases that a program is not able tohandle. LSC-funded programs should,through varied means and in varied com-munity settings, provide coordinated, sys-tematic, and comprehensive communitylegal education that is targeted at criticallegal issues. Such initiatives should edu-cate and inform constituencies that havedistinct, unique, or disproportionatelyexperienced legal needs, and groups thatare hard to reach. Advocates should en-deavor to make sure that the educationand information are culturally relevant.

For example, the Immigration LawProject of Legal Services of EasternMissouri developed a response to theneeds of the immigrant and refugee com-munities in the St. Louis area afterSeptember 11 by sponsoring a series of“listening programs.” The forum gaveAfghani, Somali, and Iraqi Americans anopportunity to speak about the chal-lenges they face as Muslims in America;to highlight some of the particular legalproblems their communities face; and todevelop strategies for building support



50 Sec. 502(a)(2)(C) Departments of Commerce, State, Justice and the Judiciary and RelatedAgencies Appropriations Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996).

An LSC-funded program may provide legalassistance to an eligible client even if that assistance benefits an ineligible alien.

for these communities.51 This kind of out-reach is particularly important in ad-dressing the needs of marginalized com-munities of color.

Giving people information about theirlegal rights and responsibilities and theprogram’s services and intake proceduresthrough community legal education, out-reach, public service announcements,courthouse clinics, group presentation,and other similar activities is explicitly per-mitted under the LSC regulation that imple-ments the solicitation restriction.52 An LSC-funded program may represent an eligibleclient who seeks legal assistance as a resultof information gleaned from those activi-ties. The older African American womanwho triumphed over her predatory lenderasked for help from a legal aid programafter learning about her rights at a com-munity education seminar.

The restriction on solicitation, al-though it has caused significant concernamong LSC-funded programs, shouldhave very little actual effect on a pro-gram’s ability to engage in race-basedadvocacy.53 The restriction is very narrowand prohibits representation of a clientonly when the representation is the resultof a legal aid program’s unsolicited adviceto the potential client (through a face-to-face or personal communication) toobtain counsel or to take legal action. Inpractice, the restriction applies only to theunusual situation in which a staff membermakes a personal appeal to a specificindividual urging the person to become aclient of the LSC-funded program.

Many legal aid programs have estab-lished outreach programs to address theneeds of communities of color. The fol-lowing are only a few examples:

� Philadelphia Legal Assistance con-ducts outreach to Latinas and Asianwomen experiencing domestic violence.

� Atlanta Legal Aid’s Hispanic Outreachprogram focuses on domestic violence,children, education, and consumer issues.

� Lane County (Oregon) Legal AidService partners with a local Latino orga-nization to provide legal aid outreach tothe Spanish-speaking community.

� The Maryland Legal Aid Bureau’sBaltimore City office coordinates with acoalition of organizations serving theLatino community to organize monthlyintake at a local church.

� The Legal Aid Foundation of LosAngeles has an Asian and Pacific IslanderCommunity Outreach Unit that worksclosely with that community to identifyand meet the legal needs of its members.

� Migrant farmworker projects in sev-eral programs provide broad outreachservices to communities of color.

These outreach activities serve theimportant function of developing andmaintaining relationships with communi-ties of color and educating individualsand communities about their rights andthe resources available to enforce thoserights.

V. Community Groups andEconomic Development

Subject to the regulation on group eligi-bility, programs may use LSC funds forgroup representation.54 Moreover, pro-grams may use non-LSC funds to repre-sent any group, nonprofit corporation, orcommunity development entity that does



51 Legal Services of Eastern Missouri Launches Program Series Addressing Issues ofConcern to St. Louis’ Immigrant and Refugee Communities, Brennan Ctr. for JusticeLegal Servs. E-lert, Nov. 9, 2001, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

52 45 C.F.R. § 1638 (2001).53 Omnibus Continuing Resolution § 504(a)(18), supra note 2.54 45 C.F.R. § 1611.5(c) (2001) permits legal assistance “to a group, corporation or associa-

tion if it is primarily composed of persons eligible for legal assistance under the Act andif it provides information showing that it lacks, and has no practical means of obtaining,funds to retain private counsel.”

not fit within the LSC financial eligibilitystandards.55 Programs may represent eli-gible groups in transactional activitiesinvolved in economic development andmay use non-LSC funds for such repre-sentation when the groups do not meetthe LSC financial eligibility guidelines.

The LSC Act includes a restriction onorganizing that prohibits the use of LSCand private funds to initiate the formationor act as an organizer of any association,federation, labor union, coalition, net-work, alliance, or similar entity.56 Al-though the language of the restriction isbroad, both the statute and the imple-menting regulation clarify that LSC-fund-ed programs and their employees mayprovide legal advice and assistance to eli-gible individuals and groups that desireto plan, establish, or operate organiza-tions.57 Moreover, this prohibition doesnot apply to Interest on Lawyers’ TrustAccount or public funds. Thus, while alegal aid attorney may not use LSC or pri-vate funds to organize a labor union forfactory workers or a tenants’ associationin a low-income housing project, the attor-ney may advise and represent such agroup if it wishes to incorporate, applyfor a tax exemption, obtain a loan or agrant, or seek other legal assistance.

Representing community develop-ment organizations, tenant associations,and other entities created to help protectthe rights of low-income individuals is anessential part of legal aid programs’ role inimproving the lives of individuals in low-income communities of color. Such rep-resentation often does not raise a specif-ic race discrimination claim but addressescommunity problems that originate froma history of racial discrimination and seg-regation. For example, the Maryland Legal

Aid Bureau represented the Cherry HillDevelopment Corporation in partnershipnegotiations with a national developer toacquire and develop a large, run-downapartment complex in a predominantlyAfrican American community. The bene-fits of the new housing developmentinclude housing for 151 families, employ-ment as subcontractors to 25 members ofthe community, and the wider communi-ty benefit of increased safety, jobs, com-munity involvement, and resources.58 Inanother example, the Legal Aid Founda-tion of Metropolitan Chicago helped acommunity economic development groupapply for a credit union charter to meetthe financial needs of two African Amer-ican communities that commercial institu-tions did not adequately serve.

Similarly the Legal Aid Foundation ofLos Angeles represented the HolidayVenice Tenant Action Committee in anattempt to preserve housing for predom-inantly African American and Latino res-idents of a Section 8 housing develop-ment.59 When the development was putup for sale, the program educated the ten-ants about their options to purchase theproperty, and when the tenants’ attemptto buy the building failed, legal aid attor-neys provided technical assistance to thetenant group in its efforts to block sale toa developer who had investigated elimi-nating the use of Section 8 housing sub-sidies upon completing the purchase.Although the sale was ultimately ap-proved, the tenants were successful insecuring commitments to renew theSection 8 subsidies as long as they wereavailable, thereby preserving 246 units ofaffordable housing. Confronted with sev-eral problems since the sale, includingharassment and threatened loss of the



55 Id. § 1611.3(e).56 Section 1007(b)(7) of the LSC Act, 42 U.S.C. § 2996(f)(b)(7). Because this restriction

derives solely from the LSC Act itself, rather than from the 1996 appropriations act, itapplies only to LSC and private funds, not to Interest on Lawyers’ Trust Account or otherpublic funds.

57 45 C.F.R. § 1612.9 (2001).58 Interview with Hannah Lieberman, litigation director, Legal Aid Bureau of Maryland

(Feb. 2002). See also www.mdlab.org.59 Elena Popp & Francisca Gonzalez Baxa, Creating, Preserving, and Improving Housing

Through Community Economic Development, 33 CLEARINGHOUSE REV. 668 (Mar.–Apr.2000).

Section 8 subsidy, the tenant groupformed a legal team and an organizingassistance team. The Los Angeles programcontinues to represent the tenants’ groupas it develops a legal strategy to addressshort-term and long-term problems.

Many innovative and important com-munity economic development projectsare discussed in other issues of theREVIEW.60 The ability of such programs toaddress the stated needs of communitiesof color is critical to achieving sustainablechange.

VI. Policy AdvocacyLegal aid programs should help ensurethat low-income persons are at the tablewhen legislative, administrative, and otherbodies adopt laws or policies that affectlow-income communities. Such partici-pation by low-income persons of color isan integral part of a system of equal jus-tice. LSC-funded programs do face somebarriers to engaging in policy advocacy,although much of what needs to be donemay still be done with either LSC or non-LSC funds.

A. Lobbying and Rule MakingUnder the 1996 restrictions and the

regulations implementing them, LSC-fund-ed programs may not affirmatively lobbyon most legislative matters or engage inany grassroots lobbying.61 They may notparticipate in or influence certain rule-making proceedings. However, manyadvocacy activities that relate to legisla-tion or rule making are specifically ex-empt from the restrictions; others are notaddressed at all and thus are permissible.

The lobbying restriction relates to

attempts to influence the passage ordefeat of any legislation or constitutionalamendment. Thus an LSC-funded pro-gram may not directly lobby a state leg-islature to enact a bill on predatory lend-ing or to oppose a city ordinance thatwould permit an incinerator to be builtin an African American community.However, the program may litigate thevalidity of such an ordinance once enact-ed. For example, the Legal AssistanceFoundation of Metropolitan Chicago,along with other advocacy groups suchas the Chicago Lawyers Committee forCivil Rights Under Law, filed an amicusbrief supporting antipredatory lendingregulations being challenged in litigationby the Illinois Association of MortgageBrokers. The federal district court reject-ed the mortgage brokers’ claims andupheld those regulations.62

Under the Cohen-Bumpers Amend-ment, programs are explicitly permittedto use non-LSC funds to respond to arequest from a legislator or other gov-ernment official to testify on a proposedbill or give information, analysis, or com-ments on such a bill.63 If the chair of alegislative committee that is considering apredatory lending bill extends a writteninvitation to an LSC-funded program totestify on the lending practices of financialinstitutions in low-income communitiesof color, program staff may testify as longas the work is wholly supported by non-LSC funds. LSC-funded programs, beingcareful that all requests to testify be madein writing, should respond when mem-bers of legislative bodies seek testimonyfrom staff members with substantialexpertise on the subject covered by pro-



60 See, e.g., William C. Kennedy et al., Cultural Changes and Community EconomicDevelopment Initiatives in Legal Services: What Happened in Two Programs, 33CLEARINGHOUSE REV. 340 (Nov.–Dec. 1999); Nona Liegeois et al., Helping Low-IncomePeople Get Decent Jobs: One Legal Services Program’s Approach, 33 id. 279 (Sept.–Oct.1999); Stephanie Upp et al., Child Care and Community Economic Development:Critical Roles for Legal Services, 34 id. 3 (May-June 2000); Mario Salgado, Building aCommunity Economic Development Unit, 28 id. 981 (Jan. 1995).

61 Omnibus Continuing Resolution § 504(a)(2)–(6), supra note 2; 45 C.F.R. § 1612.62 Ill. Ass’n of Mortgage Brokers v. Office of Banks & Real Estate, 174 F. Supp. 2d 815

(N.D. Ill. 2001); see U.S. District Court Upholds Illinois’ Anti-Predatory LendingRegulations, Brennan Ctr. for Justice Legal Servs. E-lert, Dec. 14, 2001, at www.brennan-center.org/programs/lse/pages/view_elerts.php?category.

63 Omnibus Continuing Resolution § 504(e), supra note 2; 45 C.F.R. § 1612.6.

posed legislation. The rules also specifi-cally permit a program to advise clients oftheir right to communicate directly withelected officials.64 Thus an LSC-fundedprogram may advise individual clients orcommunity groups to speak to their statelegislator or city council member regard-ing measures that may affect them.

The general restriction on rule mak-ing applies only to participation in effortsto influence the formal process for adopt-ing generally applicable rules, regulations,or guidelines, including formal notice andcomment rule making. An exception tothe restriction permits LSC-funded pro-grams to use non-LSC funds to prepareand submit written or oral comments inrule making on the same terms as othermembers of the public.65 Thus LSC-fund-ed programs may, depending on the cir-cumstances, participate—using either LSCor non-LSC funds—in a wide range ofadvocacy on most agency rules, regula-tions, guidelines, policies, and procedures.For example, LSC-funded programs maysubmit comments to federal departments’policy guidance, recently republished inthe Federal Register, on Title VI’s prohi-bition against national-origin discrimina-tion affecting limited-English-proficientpersons.66 The restriction does not coveragency policies that are not adoptedthrough such a formal procedure, andLSC-funded programs may work to influ-ence these policies. Thus an LSC-fundedprogram may, for example, use non-LSCfunds to submit written comments or tes-tify in a public hearing before a state’s

consumer protection agency on regula-tions to implement a predatory lendingbill passed by the legislature and may usefunds from any source to work withagency officials to develop procedures toensure that the regulations are fully imple-mented once they are promulgated.

B. Media and Grass-Roots LobbyingLSC-funded programs should make

judicious use of print and broadcast mediato help represent their clients and the low-income communities they serve. We mustget the word out to the public generallyand to the client community in particularabout the impact of government actionon communities of color and racial ethnicminorities. A growing number of legal aidattorneys are using the media effectivelyto protect and promote the rights of theirclients. Here are just a few examples ofmedia work promoting support for com-munities of color:

� Memphis Area Legal Services wel-comed a proposed fair housing ordinancedesigned to combat discrimination basedon “race, color, religion, national origin,sex, familial status, source of income, orhandicap/disability.”67

� California Rural Legal Assistance high-lighted the challenges for Latinos of aweak economy in Ventura, California.68

� Central California Legal Servicesspoke out on the importance of legislativeefforts to support reasonable workingconditions for California farmworkers; the



64 45 C.F.R. § 1612.5(c)(6) (2001).65 Id. § 1612.6(c)(6).66 Although all federal agencies issued guidance policies on limited English proficiency in

2000, the policies are being republished in response to the U.S. Department of JusticeCivil Rights Division memoranda reaffirming federal departments’ Title VI obligationsdespite the Alexander v. Sandoval decision. See memo from the National ImmigrationLaw Center and the National Health Law Program (available from Camille D. Holmes etal.). The Justice Department and the U.S. Department of Health and Human Serviceshave already republished their guidelines. Also republishing their guidelines are theDepartment of Education, Department of Labor, Department of Transportation, HUD,and the Environmental Protection Agency. Id.

67 Memphis Area Legal Services Litigation Director Welcomes Proposed Fair HousingOrdinance for Memphis City, Brennan Ctr. for Justice Legal Servs. E-lert, July 17, 2001, atwww.brennancenter.org/programs/lse/pages/view_elerts.php?category.

68 California Rural Legal Assistance Attorney Says Latinos in Ventura County FaceInequities, Brennan Ctr. for Justice Legal Servs. E-lert, Apr. 1, 2001, at www.brennancen-ter.org/programs/lse/pages/view_elerts.php?elert_id=&s_date=04-01-2001&e_date=04-30-2001&category.

ranching industry challenged the legisla-tion.69

� West Texas Legal Services praised aproposed statewide expansion of legisla-tion to protect low-income, non-English-speaking home buyers in Texas fromunfair purchase contracts.70

� Farmworker Legal Services in Mich-igan, along with the Michigan MigrantLegal Assistance Project, spoke out againstthe Michigan secretary of state’s propos-al to deny drivers’ licenses to undocu-mented immigrants; they described it asbad policy and unconstitutional.71

Media statements keep the public eyeon efforts to confront discrimination inlow-income communities. However, cer-tain LSC restrictions may influence howprograms disseminate some information.

Under the regulations implementingthe 1996 LSC restrictions, programs receiv-ing LSC funding may not use any fundsto engage in grass-roots lobbying, definedas activities such as oral and written com-munications, advertising, letter writing, ortelephone or e-mail campaigns that makea specific call to action designed to influ-ence members of the public to contactlegislators or public officials to support oroppose pending or proposed legislation,regulations, executive decisions, or bal-lot measures.72 For a communication tobe considered grass-roots lobbying, itmust either explicitly urge the recipientto contact a legislator or agency about themeasure or include some other informa-tion or device designed to encourage therecipient to make the contact, such as theaddress, telephone number, or e-mail ad-dress of a legislator, or a petition, postcard

or other means for the reader to commu-nicate support of or opposition to themeasure to the decision maker.

The grass-roots lobbying restrictionby no means prohibits LSC-funded pro-grams from communicating with the pub-lic about pending legislation or regula-tions. In fact, the regulation explicitlypermits programs to explain or report onpending or proposed legislation or regu-lations.73 Recipients of LSC funds mayanalyze a proposed statute or regulationand explain its anticipated effect onclients, the changes it would make inexisting law, whom it would affect, and its

particular impact on a low-income com-munity of color. The rules explicitly allowLSC-funded programs to inform clientsabout pending or proposed legislationand regulations and advise them of theirright to communicate directly with elect-ed officials.74 Programs may publish anddisseminate newsletters, reports, or otherwritten material that track and analyzelegislative developments, talk to reportersabout the impact of legislation or regula-tions on their clients, and write letters tothe editor or opinion pieces about prob-lems in communities of color that changesin the law can address. However, thesecommunications must not include explic-it calls to action or material that can rea-sonably be interpreted as such an effort.



69 Central California Legal Services Attorney Criticizes Ranching Industry’s Opposition toLegislation That Would Address Harsh Employment Conditions for Sheepherders,Brennan Ctr. for Justice Legal Servs. E-lert, July 13, 2001, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

70 LSC-Funded West Texas Legal Services Praises Proposed Legislation to ExpandProtection for Low-Income Homebuyers, Brennan Ctr. for Justice Legal Servs. E-lert, Jan.12, 2001, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

71 Id., Oct. 12, 2001.72 45 C.F.R. § 1612.4, 1612.2(a)(2) (2001).73 Id. § 1612.2(a)(2).74 Id. § 1612.5(c)(3), 1612.5(c)(6).

The grass-roots lobbying regulation explicitlypermits programs to explain or report on pending or proposed legislation or regulations.

VII. Coordination, Collaboration,and Partnerships

To pursue race-based advocacy effec-tively, LSC-funded programs should coor-dinate their activities and collaborate withnon-LSC-funded entities and civil rightsorganizations. Where possible, theyshould develop effective partnerships witha variety of community-based and civilrights organizations. We have describedexamples of coordination, collaboration,and partnerships that LSC-funded pro-grams have successfully developed. SomeLSC-funded program directors, managers,and staff have been reluctant, particular-ly since the 1996 restrictions, to embracenecessary coordination and collaborationunder the mistaken belief that such activ-ities are no longer permitted. Nothing canbe further from the truth. No restrictiondirectly prohibits such collaboration andcoordination.

LSC-funded legal aid staff may trainclients and staff of human service, civilrights, and community organizationsabout existing, pending, or proposed lawsand regulations. For example, JacksonvilleArea Legal Aid trained over 150 landlords,maintenance workers, and other employ-ees of public housing complexes aboutthe fair housing rights of tenants anddetailed the race and other discriminationcases that the program had pursued andsuccessfully settled.75

LSC-funded program staff maybelong to associations, federations, coali-tions, networks, alliances, or similar enti-ties and may participate in local govern-mental or private-sector task forces andcollaborative initiatives. For example, staffmay participate in cooperative efforts toenforce the housing code, the Com-munity Reinvestment Act, fair housinglaws, civil rights laws, and other lawsenacted to protect individuals of color,so long as they do not engage in pro-hibited lobbying or rule making.

LSC-funded programs may coordinatetheir services with other entities so thatLSC recipients perform only permitted ser-vices while other organizations providerestricted services. Thus LSC-funded staffmay work with other providers to ensurethat a full range of legal assistance is avail-able to low-income persons of color inall civil justice forums.

With regard to joint advocacy efforts,LSC-funded program staff may communi-cate about clients’ problems with non-LSCentities. Staff may analyze the impact ontheir clients of existing policies or pend-ing or proposed legislation or regulationsand share analysis with the non-LSC-fund-ed entity. Staff may participate in discus-sion and task forces with non-LSC-fund-ed entities and discuss legislative andregulatory issues. Staff may advise non-LSC-funded entities about the most impor-tant issues facing their clients and howlegislative or regulatory change can ad-dress such critical issues. Using non-LSCfunds, staff may work with non-LSC-fund-ed entities, including civil rights groups,on comments on proposed rules. If askedto testify or give information to a legisla-tive or administrative official, staff maycoordinate testimony or information withnon-LSC-funded entities.

VIII. Planning Program PrioritiesLSC-funded programs cannot engage ineffective race-based advocacy unless theyspecifically plan to do so and seek outengagement with communities of color.Developing program priorities withextensive participation from communitygroups is the one way to ensure that theneeds of communities of color are incor-porated into overall program activities.The 1996 restrictions explicitly requirethat all matters undertaken by LSC-fund-ed programs, regardless of funding, mustfall within the priorities that the programestablishes under the procedures set forthin the LSC regulations.76



75 LSC-Funded Jacksonville (Fl.) Area Legal Aid Director Provides Training on HousingDiscrimination and Offers Breakdown of His Docket, Brennan Ctr. for Justice LegalServs. E-lert, July 14, 2000, at www.brennancenter.org/programs/lse/pages/view_elerts.php?category.

76 Omnibus Continuing Resolution § 504(a)(9), supra note 2; and 45 C.F.R. § 1620 (2001).

Examples of LSC-funded programsthat have incorporated the needs of com-munities of color into their priorities areCalifornia Rural Legal Assistance and theLegal Aid Foundation of Los Angeles.Both undertake extensive communityconsultation that involves significant inter-action with a wide variety of communitymembers.77 By specifically identifyingadvocacy that is important to communitiesof color or including, in statements of pro-gram priorities, broad language thatencompasses the goals of such advoca-cy, priorities can have the flexibility andstated commitment that allow programsto address the needs, as they arise, ofcommunities of color. The priorities reg-ulation should not impede race-basedadvocacy, as long as LSC-funded pro-grams are careful in planning and prepar-ing their statements of program priorities.

ADVOCACY ON BEHALF OF COMMUNITIES OF

color should address individual cases ofdiscrimination; target the systemic andstructural discrimination that severely dis-ables communities of color and all low-income communities; and build econom-ic opportunities in neighborhoods wheresuch opportunities have been systemati-cally denied. In this article we offer a fewexamples of race-based advocacy that legalaid programs are pursuing within the con-fines of LSC restrictions. Using multiple andinnovative strategies, legal aid lawyers canand must address the effects of racism anddiscrimination as an integral part of legalaid advocacy. Antipoverty and antidis-crimination advocacy are inextricablylinked in the United States and elsewhere.Paying attention to those linkages andaggressively pursuing antidiscriminationstrategies serve our clients well.



77 Charles Elsesser & JoNel Newman, Encouraging Race-Based Advocacy in Legal ServicesPractice, in this issue; Interview with Bruce Iwasaki, executive director, Legal AssistanceFoundation of Los Angeles (Aug. 2001); Interview with Jose Padilla, executive director,California Rural Legal Services (Aug. 2001).

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