THE MORE THINGS CHANGE -
A BRIEF AND FAIRLY INSUBSTANTIAL COMMENT ON CURRENT TRENDS IN PUBLIC INTEREST LAW
Let me start off by admitting my title is misleading, but that’s okay, I’m a lawyer. When I was first asked to write this piece, I thought I’d just do a brief survey of current trends in public interest law, you know, environmental stuff, civil rights stuff, immigration stuff. But as I began to give the matter more thought and as I began to dig a bit deeper into the topic, I came to realize that while, yes, there are new trends in public interest law, the deeper reality is that things have not changed all that much since I went to law school in the cyclonic days of the late 1960’s.
Oh, and it was glorious then. The civil rights movement that had begun to blossom in the early 1950’s, conceived in liberty and dedicated to the proposition that all persons are created equal, had hit full stride. My classmates and I, many of us anyway, were on fire, we had a mission, we intended for the world to be a better place and we proceeded accordingly. The fire burned in my belly for years still does, although these days its just as likely to be indigestion as anything else.
Over the last few decades I had blithely assumed that contemporary law students, if they burned at all, immolated far less brightly than I or my ilk. The way I saw it, everyone who wasn’t committed the way we were should have been committed elsewhere, a belief that lends substantial credence to the truth that there is no greater indignation than the indignation of the righteous. But that was the Sixties for you, righteousness and indignation up the wazoo, and it suited me to a “t.”
However just a cursory Google of “public interest law” has set me straight - opportunities in various emerging areas of public interest law abound and there are many able young lawyers clamoring for such positions.
While the issues that had first captured my zeal and held it hostage for many years thereafter are not so much front burner items as they once were, a goodly number of new ones have arisen to hopefully capture the passion of baby lawyers everywhere. For just a brief moment let me digress into substance so as to mention a few.
The issue of gay rights, much to the dismay of many, has taken a significant place on center stage, with gay marriage now being the focal point and rallying cry. Litigation to force the issue, primarily based on the core American concept of equal protection of the law, has been filed in many states, and a few have been successful. The trend is still in its embryonic stage, the first trimester, if you will, and it is not going to be aborted. A few states are starting to take the issue seriously and enacting appropriate legislation. Its only a matter of time, probably still further away than many would hope though, until gay marriage is commonplace and almost universally accepted.
The concept is quite a simple one actually, capable of being grasped quite readily by anyone who has a rudimentary understanding of equal protection. There is precious little difference between denial of equal protection based on color and denial of equal protection based on sexual preference.
And while the invidiousness of discrimination on account of skin tone may to many of you seem a distant memory, if memory at all, until quite recently (1970’s) some states had on their books laws prohibiting marriage based on skin color. So there is much work needed to be done in this area, work that some of you may consider taking on as a job or as part of your pro bono work, but one thing is clear. Prohibiting marriage based on gender, in the equal protection eyes of the law, ought to be and in coming years no doubt will be viewed with the same disdain with which we now regard other forms of irrational discrimination. For whomsoever takes on the challenges of this task, it will for sure be a fun ride.
When it comes to matters of immigration, the combination of national immigration policy and the hair trigger tribalism so endemic to our species assures that many public interest lawyers and organizations have lots of work ahead of them in this area. Some of you may know something of the recent brouhaha in Hazelton, Pa. where the city fathers, urged on by a xenophobic mayor, passed local legislation aimed at making the plight of the immigrant far more difficult than it already is. Alleging the unsubstantiated claim that illegal immigrants were responsible for a rising crime rate, the city imposed criminal sanctions not only on illegal immigrants but on the landlords and employers who may unwittingly employ or rent to them. After extensive litigation initiated by the ACLU of Pennsylvania, the ordinance was declared unconstitutional for a variety of reasons (primarily, the court ruled, because the federal government had preempted the field of immigration legislation) and the court imposed upon the city the obligation to pay plaintiffs’ counsel fees, now totaling more than two million dollars.
Although this is currently the prime example of local legislation gone astray regarding immigration, there will be others. Those of you who may be interested in this kind of work will find organizations seeking your services, and this will be true whether you are looking for full time employment or just a way to vent your pro bono spleen.
If there is any one factor that has exacerbated the xenophobia so generally inherent in us American folk, it is of course the arrival on our shores of a visitor of another sort, and by that I mean terrorism. While the rest of the world has struggled with it for eons, we, as an geographically insular nation, have until recently been mostly spared. 9/11 of course changed all that, giving rise to what our leaders call the war on terrorism. And just like the so called war on drugs of the last decade, this war lists civil rights as one of its principal victims. But if public interest law is a coin of your realm, there’s much to be done here as well. What with detainees, rendition, illicit wiretapping, enemy combatants (like “partial birth abortion,” a phrase without legal meaning - or official meaning of any kind - invented by its proponents in the hope that such a formal title will cloak it with a substance it otherwise utterly lacks) a lot of triage is necessary to restore both civil rights and this nation’s long vaunted commitment to it.
The unparalleled rise of the Internet to prominence (too weak a word to describe a phenomenon that in perhaps ten or fifteen years has equalled and in some ways surpassed what television took almost sixty years to accomplish), like every other societal inundation before it, has the legal community scrambling to adapt. Consider, for instance, the meddlesome issue of “publication” in as simple an issue as libel and slander or of “contemporary community standards” in matters of obscenity. Use of the Internet has forced the law to think differently about such matters and although Congress has wrestled (many of you no doubt have no such recollection but in the earliest years of television there was also a great deal of wrestling going on) with these issues in trying to draft federal legislation to regulate content of the Internet, the courts have not been receptive. It will take years for issues like this to get sorted out, but Internet related issues will provide oodles, yes, oodles, of opportunities for public interest lawyering.
Another of the most compelling areas of law impacted by contemporary goings on is students’ rights. There has been a significant increase in student free speech litigation arising from the attempt by school districts to sanction student speech when “uttered” outside of school. The post-Columbine world has not been kind to students’ rights cases, and many school officials, vigilante as always, engage in conduct far more frightening than the student conduct they intend to control. For instance, a male high school student was recently expelled for writing his sexual fantasies for a female student in his private diary. The diary was kept under his mattress, he never showed it to anyone or never acted on any of his expressed desires. When a “friend” found it and showed it to an adult, the young man was expelled, and the court upheld the sanction. Scary, huh?
Students who use such Internet sites as MySpace.com and others to voice their opinions about teachers, school administrators and fellow students are being sanctioned by the schools as if they engaged in such conduct on campus. Even in the absence of words or conduct that constitute a “true threat,” (that’s the magic phrase that takes spoken word into the realm of criminal or sanctionable activity) school authorities seek to punish student speech that the school may view as an affront to authority. “The principal is a fat toad” is a phrase that comes to mind, and whether true or not, it is for such vituperations posted on the Internet from home that students get suspended. Ironic, isn’t it, that schools, typically charged with inculcating students with social mores, attempt to do so by significantly abridging to them one of the most iconic American values, freedom of speech.
While I have mentioned a number of areas of public interest law and the new issues floating about that are of interest to me, there are many, many more areas that may be more to your liking.
When I was a law student, it was inconceivable to me that any career in the law would not include a need, a desire, an obligation to do such work. My thoughts in that regard haven’t changed. From what I’ve been able to learn in my time teaching and supervising clinics, I’m gratified to realize that for many law students, that remains a goal. It should be so whether you’re headed for a solo practice in a small town or whether you want the fast track to partnership in a prestigious big city firm or something in between. True, you don’t have to have a willingness or a desire to blend some kind of pro bono/public interest work into your practice to make a nice living. But if you want to be able to call yourself a lawyer, well then, that’s another matter.
©2007- S. Sponte, Esq.