Statement of Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the UNC Center for Civil Rights

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The criticism of The UNC Center for Civil Rights by some members of the Board of Governors’ Committee on Centers lies along two axes of allegedly inappropriate activities. First, they allege that The Center does advocacy work, which they contend does not belong within a university, because it is one-sided. Second, they contend that the Center sues the State, and that is inappropriate.

These two critiques might have a superficial appeal. However, even a cursory examination of these arguments proves them totally without merit. To be sure, The Center for Civil Rights does not sue the State; it represents those with claims against the State who may not otherwise have access to counsel. Nonetheless, the weight of the evidence supporting a detailed response to the assault on The Center would be so overwhelming that it would plainly demonstrate, with all due respect, that the proffered critique of The Center’s work lacks merit. We do not pretend that this is a detailed response to the criticisms leveled at The Center for Civil Rights, and we appreciate that the Committee of the Board of Governors on Centers has not recommended the Center for Civil Rights for closure. Nonetheless, the February 17, 2015 Meeting of the BOG Committee on Centers included a robust attack on the Center for Civil Rights, and no opportunity to respond before the full meeting of the Board of Governors. The response seemed to win some support from some Board members who were participating by phone, as well as expressions of concern from some Board members who were present at the committee meeting. Here is a partial response to the criticisms held by at least one or more members of the BOG Committee in support of the argument that The Center for Civil Rights should be closed or separated from UNC:

  1. Although it is not entirely clear what constitutes ”advocacy” in the view of the critics of The Center for Civil Rights, “advocacy”, if it means teaching a curriculum which may be in conflict with the views of others, is ubiquitous in higher education. Advocacy among lawyers and those in training for the legal profession, however, has an even more sharply defined meaning and is essential to legal education.
    1. If advocacy means political partisanship, there is no disagreement that it does not belong in the classroom. If advocacy is being used to describe teaching that is informed by factual bases and research with which there is another competing view or epistemology, the notion that there is no place for “advocacy” in higher education is misplaced. A medical school is not required to teach alternative medicine practices. Neither, as pointed out by Law School Dean Jack Boger, does the School of Public Health have to advocate the views of the industries that produce and market sugary drinks, or the Law School’s Center for Banking have to advocate the views of socialists or anarchists who believe the banking industry is corrupt and should be dismantled. The Business School teaches a curriculum with which communists would wholly disagree. A school of science teaches a curriculum of evolutionary biology that may be contested by creationists. And on and on.
    2. Advocacy within legal education, however, is not only ubiquitous; it is essential. Part of the process of legal education is the training in advocacy This training occurs in real and hypothesized contexts. During the first year of law school students participate in moot court competition, in which they are trained to argue a hypothetical case for a fictional client. Although these students invariably understand both sides of an argument, that is no different than what happens in practice. By necessity a lawyer who is an advocate and a litigator must see and master the other sides’ arguments, or risk defeat. In this sense, the argument that The Center’s lawyers, and the students who work and are trained under their direction, are not exposed to “both sides of the argument” is a misplaced concern. Any litigator worth her salt must know and understand the arguments on the other side so well that she could stand before a court and argue her opponent’s case. On the other hand, if the concern is not that law students are trained to see both sides of an issue, but rather that people who advocate for civil rights should be forced to make their opponents’ argument, it is difficult to understand the legitimacy of that imperative. It is one thing to say, “I disagree with you”. It is another to say, ”You have to make my arguments or there is no place for you within the University”.
    3. One Board of Governors member has repeatedly charged that The Center for Civil Rights is “partisan”, without clearly defining what “partisan” means. Apparently this Board member conflates advocacy with partisanship. That definition, as applied to legal training through supervised practice would mean that any argument made on behalf of a client is“partisan”, It would mean that every law student trained through practical experience is obliged to present arguments against her client, which would violate her ethical responsibilities to that client. Assuming that the Board of Governors member, who is an attorney, could not mean that, his argument may mean that every law student participating in either some or all law school-sponsored activities in which she or he is not representing real life clients must, when presenting a point of view, present “he other side”. Or that any organization or entity within the Law School is charged with presenting the other side of any issue it addresses. Actually, it is difficult to understand what the argument means and how it would apply. (Does the Christian Legal Society have to present the arguments of atheists? Does the Domestic Violence Action Project have to present the views and arguments of abusers and rapists?). What is clear is that the charge “partisan” is a smear that is intended to undermine the legitimacy of the Center for Civil Rights by suggesting that it is biased, unfair, and aligned with or advancing the agenda of a political party, While the two major political parties are unfortunately identifiable by their alignment on issues of race, it does not follow that civil rights advocates are politically partisan. The false syllogism goes like this: (1) Democrats and Republicans are politically partisan; (2) Democrats and Republicans align differently on issues of civil rights; (3) Civil rights advocates are partisan. Civil rights advocates are not “partisan” when they speak against segregation, voter restrictions, and educational inequity. Nor are civil rights advocates partisan as a consequence of how political parties align on issues of race or civil rights. Political parties are responsible for how they align on issues of race, and their relationship with civil rights advocates does not change civil rights advocates into partisans. The Center for Civil Rights is not partisan.
    4. The Center for Civil Rights, like other programs that are part of legal education at UNC Law School, represents real clients in litigation, as an essential element of training future lawyers. In this respect The Center is no different from clinical programs at the Law School. There is nothing remarkable about law schools providing experience in practice. The ABA law school accreditation standards require law schools to offer clinical training. In fact, law schools have been increasingly under pressure from employers to prepare more practice-ready graduates. Legal training is undergoing metamorphosis nationwide, in which practical experience is a central issue.
    5. As any law student and lawyer knows, a lawyer who represents a client has an ethical obligation to avoid conflicts of interest. A lawyer cannot argue against his client’s interests. Understanding arguments on both sides of an issue is a necessary element of good advocacy. Telling “both sides of the story” is not within the role of a lawyer in representing a client; in fact, it almost certainly runs afoul of a lawyer’s ethical responsibilities. Those ethical responsibilities apply equally to lawyers and their law student trainees within the clinical law context, which applies to the work of The Center for Civil Rights.
    6. The role of law school programs, which train law students as advocates, is established beyond doubt and question. In fact, any law school that does not provide practice experience in which law students act as advocates, will be at a competitive disadvantage and at risk with respect to ABA accreditation. A random sampling of public and private law schools with clinical or center programs that litigate include:
      1. “Albany Law School’s award-winning Clinic & Justice Center, established in 1981, combines theory and practice through its in-house public interest law firm, providing free legal services to eligible clients in the Capital Region…. The Clinic’s mission is to provide high quality legal representation and to teach students to be skilled professionals who practice law with compassion and sensitivity to individual client needs.” [1]
      2. CUNY School of Law “[l]aunched the Economic Justice Project (EJP)in 1997 in response to the social justice crisis triggered by repressive welfare reform legislation”, and has represented hundreds of CUNY undergraduates in contested welfare proceedings, and advocated for legislative reforms at the local state, and federal level [2]; CUNY School of Law Criminal Defense Clinic (CDC) “student defenders represent indigent clients charged with misdemeanors in New York City Criminal Court.” [3];
      3. The University of Colorado Law School- Getches-Green Natural Resources and Environmental Law Clinic. In recent years students have worked on matters such as a federal court lawsuit involving off-road vehicles (ORV) use of roadless areas within a Colorado national forest; an appeal before the Interior Board of Land Appeals involving natural gas development on sensitive wild life habitats…. [4] The Criminal Defense Clinic offers law students the opportunity to represent indigent clients charged with misdemeanor offenses….” [5]; Indian Law Clinic “provides quality legal representation to low income clients with specific Indian law related problems”. [6]
      4. The University of Kentucky College of Law operates a legal clinic in which supervised third year students “advise, counsel and represent needy clients on a variety of legal matters…in negotiations with federal and state agencies, in administrative hearings, and in court proceedings”. [7]
      5. UCLA Law School, among other programs offering practical experience, operates a Criminal Defense Clinic course which “provides opportunities, both through simulation and work on real cases, to develop skills such as client interviewing and counseling, case preparation, and cross examination”. [8]
      6. The University of Michigan Law School –“The Michigan Innocence Clinic works to free those wrongfully convicted.” The Prisons & Family Justice Project represents incarcerated parents in foster-care proceedings at eh trial and appellate level. At the Detroit Center for Family Advocacy, PFJP works with clients in Wayne County to resolve criminal-related barriers to family reunification. “In [Michigan’s] Juvenile Justice Clinic, students represent minors charged with violations of the criminal law and status offenders in Michigan’s family courts.”
      7. The University of Virginia School of Law offers nineteen clinics, “many of which offer contact with clients, build experience with real world problems”, and allow students to “advance their skills through courses in public speaking, trial advocacy, and professional ethics….” [9] UVA School of Law operates a criminal defense clinic in which ”[e]ach student represents defendants in actual criminal cases pending in the local courts under the direct supervision of an experienced local criminal defense attorney.”[10] Virginia also operates a Litigation and Housing Law Clinic, in which students, supervised by experience attorneys, “perform all the lawyer functions associated with their cases”[11]; and the Innocence Project at UVA Law School, in which “[s]tudents … investigate and litigate wrongful convictions of inmates throughout the Commonwealth of Virginia”[12].
      8. The University of Washington School of Law clinical offerings change every year, recently or currently offering, among other programs, the Innocence Project Northwest, in which students, with professors and attorneys, represent incarcerated individuals with credible wrongful conviction claims[13]. The Race and Justice Clinic has represented clients in juvenile justice cases and against school boards in educational equity cases[14].
      9. The University of Wisconsin Law School’s Frank J. Remington Center- “Prisons, prosecutors and defenders’ offices, and the communities of victims are the primary settings for the students’ experiential education”. Its Innocence Project seeks to exonerate wrongly convicted inmates, and through its Oxford Project students work with incarcerated individuals to address a variety of their legal problems.[15] Wisconsin Law School also operates The Economic Justice Institute.” EJI programs are dedicated to serving low-income and other underrepresented clients in matters designed to enhance access to justice and economic security. The Economic Justice Institute (EJI) is home to the law school’s civil, anti-poverty clinical programs”.[16]
    7. The notion that programs at (public) law schools that train law students to advocate in cases involving real clients is contrary to the well-established and widespread practice in law schools throughout the nation. Every one of the law schools clinics and centers cited herein, and countless others not cited, has and regularly does sue the state or represents parties adverse to the state in which they are located. By definition criminal defense clinical programs and innocence projects are adverse to the state. Moreover, such a rule would also gratuitously differ from the practices and reality of conflict resolution within the State of North Carolina, where governmental agencies and elected officials routinely are adversaries in court proceedings. Indeed, the Governor has sued the legislature. School boards have sued the State. State agencies and departments have sued each other. A rule that prevents The Center for Civil Rights from suing, for example, a school board, would be, in effect, a bill of attainder, singling out The Center for treatment that differs from any other state or governmental agency in North Carolina. The effect, of course, would be felt by the clients - poor people of color seeking to vindicate their civil rights. Surely the State of North Carolina and its political subdivisions, a complex entity in which its parts are sometimes in conflict with one another, can tolerate a small Center for Civil Rights at its flagship educational institution, periodically representing poor and economically disadvantaged citizens who seek to vindicate civil and constitutional rights where governmental agencies go astray. And just as surely as governmental agencies sometimes are found to be in violation of law on all sorts of matters, they may, and do, violate civil rights.
    8. The scope of the stated rationale for banning The Center for Civil Rights from suing governmental agencies within the State is unclear. A per se rule would reach all clinical programs in which a law school’s clinical programs handles cases in which the State is adverse. All criminal defense clinics and innocence projects would fall within the scope of such a ban, a breathtaking result. All matters in which a resident or citizen of North Carolina has a conflict, large or small, with any state agency, would be beyond the competence of any law school program which provides training to its students. Family law, housing, environmental, civil rights, and other clinics would no longer operate. Students seeking such training and experience would either have to attend private law schools or go out-of-state. The competitiveness of UNC and state law schools would be badly compromised in a nationwide environment in which legal education is already in flux. Yet assuming that the criticism leveled at The Center for Civil Rights on the grounds that it sues state governmental institutions is aimed at a narrow target – i.e., not clinical and other programs, but only The Center, raises other deeply troubling questions about the propriety of the contemplated ban.
    9. Finally, if the criticism that The Center for Civil Rights “does not tell both sides of the story” is not concerned solely, or even primarily, with the advocacy role of a litigating entity housed in UNC’s Law School, then it must be aimed at the research and public education mission of The Center. [17] The Center is not solely a litigation operation. It is a center that is located within the Law School and the University that conducts research, publishes, and interacts in an interdisciplinary manner within the broader academic community. The Center has held conferences, published articles and studies, and engaged in public education on issues of race, poverty and civil rights. Admittedly, The Center does not advocate “the other side of the story” from civil rights. It does not advocate for example, for school or housing segregation. To be sure, almost no one openly argues for those things, but the arguments for segregation of public schools, and housing patterns, for concentrating toxic waste dumps in poor minority communities, for adopting policies and erecting barriers that make it more difficult for minorities and poor people to vote, for leaving the harm done to poor black women who were involuntarily sterilized by the State over many decades unaddressed [18], or for failing to address other inequities and inequalities, is best left to others. We do not believe that all who disagree with us or with whom we differ, in public debate or in litigation, operate in bad faith. The Center for Civil Rights and its staff welcomes dialogue and debate with those who hold different views, but we believe that fairness and balance does not require us to carry their water. No one suggests that the Carolina UNC Center for Women should tell “the other side of the story” on issues of violence prevention, sexual assault, and gender equity, and no one should. We believe that The Center for Civil Rights, in advocating for racial justice, and engaging in public education enriches the University of North Carolina at Chapel Hill, as well as the State of North Carolina, and we believe the Board of Governors, upon reflection and deliberation, will believe that also.

Open thy mouth for the speechless, in the cause of those who are appointed to destruction; Open thy mouth, judge righteously, and plead the cause of the poor and the needy.

Proverbs 31:8

[1] Albany Law School has operated a Civil Rights & Disabilities Law Clinic since 1983














[17] The argument has certainly been that advocacy has no place in a public university, but it nonetheless appears to go beyond litigation.

[18] The Center recognizes that the State has created a fund to provide some measure of compensation for some of the women who were involuntarily sterilized by the State, an important step in the right direction. While we commend the legislature for the action it has taken, we continue to advocate for even further compensation for victims of this past sterilization by the State.

Posted by Theodore M. Shaw (Ted) on Fri. February 27, 2015 3:26 PM
Categories: General
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