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:
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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.
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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.
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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”.
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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.
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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.
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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.
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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:
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“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]
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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];
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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]
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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]
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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]
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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.”
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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].
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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].
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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]
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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.
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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.
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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] http://www.albanylaw.edu/cjc/Pages/default.aspx Albany Law School has operated a Civil Rights & Disabilities Law Clinic
since 1983
[2] http://www.law.cuny.edu/academics/clinics/ejp.html
[3] http://www.law.cuny.edu/academics/clinics/criminal-defense.html
[4] http://www.colorado.edu/law/academics/clinics/natural-resources-clinic
[5] http://www.colorado.edu/law/academics/clinics/criminal-defense-clinic
[6] http://www.colorado.edu/law/academics/clinics/american-indian-law-clinic
[7] http://www.law.uky.edu/index.php?pid=79
[8] http://www.law.ucla.edu/academics/curriculum/course-list/law-715/
[9] http://www.law.virginia.edu/html/academics/academics.htm
[10] http://www.law.virginia.edu/html/academics/practical/criminaldefense.htm
[13] http://www.law.washington.edu/Clinics/IPNW/Default.aspx
[14] http://www.law.washington.edu/Clinics/RaceJustice/Default.aspx
[15] http://www.law.wisc.edu/fjr/oxford
[16] http://www.law.wisc.edu/eji/index.html
[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