Legal Services: The Cutting Edge Is Blunted

Barely two months after assuming office, President Lyndon B. Johnson made his 1964 State of the Union address to a still-stunned nation mourning the loss of its young president. With his declaration of a "war on poverty," Johnson tried to revive the shaken hopes of a people who, through the energetic appeals of John F. Kennedy '40, had felt themselves on the frontier of a new society.

In August of that year Johnson instituted the first offensive in that war when, in a ceremony on the steps overlooking the White House garden, he signed into law the $950-million anti-poverty bill. In a bright Washington sun that seemed to embody his belief in the possibility of a more just American society, Johnson said that a "new day of opportunity is dawning" for the nation's poor. "The days of the dole in our country are numbered," he promised, and observers seemed to agree. The New York Times reported that the program "would help the poor to lift themselves out of the ruts of poverty and join the majority of Americans in sharing in prosperity."

Some aspects of the anti-poverty program were intended to do just that: by infusing money into self-help projects, the government would enable the impoverished to climb out of the rut and, through hard work, to leave it behind. Included in the attack on poverty was a job-training program for the unemployed, the provision of part-time jobs for teenagers, community anti-poverty projects, loans to low-income farmers and businessmen and a domestic peace corps. An Office of Economic Opportunity (OEO) was established to coordinate these programs.

But one aspect of OEO's program went further, affording the potential for eliminating the rut altogether. The Legal Services Program, begun in 1965 with offices in only 14 communities, developed over the next decade into a broad-based force for social change, operating out of 900 neighborhood offices and employing over 2500 lawyers. When established groups like the American Bar Association gave their early approval to the program, they were unaware of the implications legal aid for the poor had for the American legal system. They supported a limited program whereby the impoverished would receive free counsel for individual problems such as disputes with landlords, consumer fraud cases and divorce suits.

Only slowly, as the program expanded and its original budget of $24 million tripled by 1974 to $72 million, did conservatives and moderates become aware of the changes being effected as the poor became armed with the legal ammunition necessary to attack the inequities of American society. While legal services lawyers continued to devote most of their time to individual clients' problems, they accelerated the movement of class-action suits argued on behalf of broad groups of citizens. Decisions in favor of these wronged classes, such as racial minorities petitioning for school desegregation, have had a profound impact on members of all classes--many of whom, of course, have not reacted at all positively to these decisions.

In the years when urban ghettos were exploding and the nation's campuses were shaken by student demonstrations, government officials and members of the legal profession came to see storefront lawyers as contributors to social unrest. In 1966 the president of the Tennessee Bar Association was widely applauded at a conference of state bar leaders when he charged that the Legal Service Program "relates to the fomenting of social unrest in this country. They propose to go out and tell people how to carry out rent and consumer strikes and demonstrate against lending institutions. I do not think this is consistent with the principles upon which this country was founded."

With the advent of the Nixon administration, attacks on OEO-funded attorneys took on more threatening forms. In 1970 Assistant Atty. Gen. William Ruckelshaus accused legal services lawyers of filing "politically motivated" lawsuits aimed at embarrassing the Nixon administration. He charged that some of the agencies were using the courts "as a method for confrontation" with the establishment.

In 1972 then-Vice President Spiro T. Agnew berated the head of the Legal Service Program over a suit brought by a local agency against the city of Camden, N.J., to halt construction work on a number of urban renewal projects. Agnew criticized the right of poor people to use OEO-paid lawyers to sue elected officials.

As President Nixon announced plans in 1973 for the dismantling of OEO, the consensus in Congress was that the Legal Services Program should be made an independent corporation insulated from political pressures. Amendments were passed to prevent lawyers from legislative lobbying and from litigating in favor of either abortion or school desegration. One measure even prohibited lawyers from rioting or engaging in any civil disturbances.

The real question in the minds of most government officials was just how much independence the corporation's lawyers should have to participate in political activities and to litigate on behalf of controversial social issues. With the termination of OEO set for mid-1974, Congress began discussion in June 1973 on what form the independent corporation should take.

The most strident criticism, however, was directed not at the neighborhood attorneys themselves but at the eighteen legal services back-up centers located throughout the nation. These centers, most of which were established through OEO grants made to selected law schools, were set up to provide specialized research services to aid local units on complex suits. A neighborhood lawyer with a tenant-landlord problem might turn to the National Housing and Economic Development Law Project in Berkeley, Cal.; an attorney working on a welfare case might call up the Center of Social Welfare Policy and Law in New York; an agency serving a migrant worker might look to the Migrant Legal Action Program in Washington, D.C.

Often these research centers merely supply legal material relevant to a particular problem. Just as often, however, the centers become directly involved in class-action suits and provide the crucial legal background for suits as well as the attorneys to argue them in court, frequently taking cases all the way to the U.S. Supreme Court. And it is just such activity, resulting in sweeping decisions, that officials in Washington objected to when considering the legal services bill.

One of the more outspoken opponents of the centers was Rep. Edith Green (D-Ore.), a frequent contributor to last year's eleven-hour debate on the bill in the House of Representatives. "When we pass a bill to provide legal aid for the poor," she asked her fellow representatives, "does it mean that we should also finance, using millions of dollars, research centers aimed solely at changing social policy? The Harvard research center actually had attorneys, who were paid with OEO funds, doing the research which led to their joining as co-sponsors with the NAACP in the Detroit segregation case... Meanwhile, Congress is overwhelmingly opposed to busing." Then, finishing with a flourish, Green declared that "these offices have become the cutting edge for social change in this country."

And so, after more than a year of action, when Congress last Friday finally passed a bill creating an independent legal services corporation, an amendment stipulated that none of its budget was to fund back-up centers, thus perhaps eliminating any changes broader than helping a poor person to receive a welfare payment or to obtain a divorce.

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The Harvard center Green referred to is the Harvard Center for Law and Education, and the Detroit case is the suit currently before the Supreme Court, which, if decided in favor of the center's position, would cause a virtual revolution in elementary and secondary school education as many city school systems would be forced to bus children across city lines and into neighboring suburbs. Founded in 1969 through an OEO grant to the University, the center spends about half its time in helping to litigate class action suits, of which the Detroit case is the one with the most potentially far-reaching effects.

The center's activity in that desegration suit illustrates the intimate connection the nationally-based center has with local service groups in communities throughout the country. J. Harold Flannery, the center's director at the time the Detroit case was initiated in 1971, had become nationally known for his work on school desegregation in his five-year term with the Department of Justice. When the Detroit NAACP decided to bring the case against the Detroit school board, they came to Flannery for help. He directed many of the center's resources into an analysis of the highly complex allegations of discrimination made against the city's school board. Flannery himself argued the case successfully before the U.S. Court of Appeals, and then afterwards, when the school board appealed that decision, before the U.S. Supreme Court, where action is still pending.

Flannery, who is now director of the Lawyer's Committee for Civil Rights Under Law in Washington, says that Detroit is representative of the type of case that will suffer without access to the center's resources. "There will be a large number of cases in which back-up centers won't be missed," Flannery explains. "These are the run-of-the-mill cases, such as consumer fraud and welfare cases. But there are many cases that require resources in terms of personnel and time available. Many local offices are avalanched and aren't well-equipped to undertake more reform-oriented cases. These type of cases will suffer. And that's the object of the deletion by Congress."

Another case whose prosecution would have been impaired without the center's help, in Flannery's opinion, is the Boston desegregation case, which Flannery also successfully argued on behalf of the NAACP before Judge W. Arthur Garrity in the U.S. Court of Appeals last month. "It is fatuous to say the Boston case wouldn't have been brought without the center," Flannery says, "but the center had a major role."

The center has been involved in many other class action suits, including ones relating to students' rights and the right of native Alaskan children to public education. Without the resources of the Harvard center, it is unlikely that local agencies would have had the time or ability to litigate these cases successfully. Nor would neighborhood attorneys have had access to less dramatic forms of assistance, such as pamphlets sent them by the center to help with an individual's particular problem. Nor would they have access to the center's monthly publication. Inequality, which contains studies intended to aid local lawyers with common legal problems in education. In Flannery's terms, elimination of the Harvard center, together with the other back-up groups, would result in a "Partial lobotomy" of the legal services provided for the nation's poor.

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Richard A. Hesse, director of the National Consumer Law Center, another research agency located in downtown Boston, likens the effect of the center to a doctor-patient relationship. "Often, when a doctor is trying to treat a patient, he turns to a resource, such as a specialist or a medical laboratory," he says. If that resource is cut off, he continues, the doctor will have much more difficulty in helping the patient: "The doctor will survive; whether the patient will remains to be seen."

The consumer law center was established in 1969 through a $200,000-OEO grant to the Boston College Law School. Since then, like many of the other research units, the consumer law center broke off from the college and set itself up as an independent corporation. Like the Harvard center, it has played an active role in litigation. Last year, Hesse says, about 500 suits were initiated on the basis of the center's work. In the area of repossessed automobiles alone six cases now on the way to the Supreme Court are dependent in some way on assistance provided by the group. "I'm not arrogant enough to say they're going to die without us," says Hesse, referring to the cases, "but I am enough to say they'll suffer. General Motors, on the other side, will not suffer--it can bring in as many lawyers as it wants. But our clients will be left with one arm tied behind their back."

Hesse does not agree with critics who accuse the back-up centers of fomenting social unrest. "All our litigation is achieving is due process of law. It's something so primitive I'm embarrassed to talk about it in a civilized society." For instance, he says, an auto dealer can repossess a car on which he claims there is a default of payments without even notifying the owner. "All we're asking is that the consumer be given a chance to make his case," he explains.

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The bill establishing the independent legal services corporation is currently legal services corporation is currently lying on President Nixon's desk. If he signs it--as he almost surely will--the cutting edge of legal services for the poor will lose much of its bite. Funds for both the Harvard and Consumer Law centers, as well as for the 16 other back-up bodies, will end in the fall. But the centers, struggling for years against the entrenched abuses of American society, are accustomed to adversity, and, if they can help it, they will not die without a struggle.

Robert Pressman, current director of the Center for Law and Education, says he will look to foundation grants in the event of a termination of federal funds. Hesse, for his part, is determined to defy the intention of the people in Washington. "This institution will survive one way or another," he says. "We won't go out of business because of Mr. Nixon. We'll suffer a little, but we'll be here." He thinks the center might receive some funding from labor unions, who have worked closely with the center's attorneys in the past.

It has been a decade since Lyndon Johnson told the American people that it could eliminate poverty. Now, with the demise of the Office of Economic Opportunity to come in September, Johnson's hopes lie trampled in the ever-deep rut of poverty that runs through the nation's cities.

Legal aid for the poor has become an accepted concept in American society, but without the proper back-up resources, it can only serve as a thin cushion insulating a large class of citizens from the shocks of poverty. With the limiting of the poor's access to the courts, perhaps social change will take place in the nation's streets.