Executive Director of the National Center for Law and Economic Justice
“Reflections on a Lifetime of Lawyering for Economic Justice.”
Austin Sarat, the William Nelson Cromwell Professor of Jurisprudence and Political Science: My name is Austin Sarat. I teach in the Departments of Political Science and in Law, Juris Prudence and Social Thought. It is my privilege and pleasure this afternoon to introduce you to Henry Freedman.
Amherst College honors achievement in many ways. Indeed, with the current state of grade inflation at Amherst, some people think we honor achievement in too many ways. But the highest honor that Amherst can give is the honorary degree. And the highest of those honors are honorary degrees to our graduates. So today and tomorrow, we have a chance on behalf of a college, its faculty, its students, its staff, to say to Henry Freedman, that Amherst College is proud of you and proud of what you have done.
Henry Freedman practices what is sometimes called public interest law. Public interest law and public interest lawyering have a long and storied history in the United States. Throughout American history, public interest lawyers have been leading advocates for progressive social change. They’ve argued for inclusive social policies, and they’ve brought us increased access to justice. In their work, public interest lawyers have helped elevate the moral posture of the legal profession, beyond what some would say is the crude instrumentalism which all too often dominates its practice. Public interest lawyers reconnect law and morality, and make tangible the idea that lawyering is a public profession; one whose contribution to society goes beyond the aggregation, assembling and deployment of merely technical skills. Public interest lawyers use their professional legal work as a vehicle to build a good society. This idea—namely, using professional legal work as a vehicle to build a good society—is amply manifest in the career of Henry Freedman.
Henry Freedman graduated Amherst College in 1962 and received his law degree from Yale Law School. His distinguished legal career includes time in private practice in New York City as well as stints in the academy as a professor of law and also as someone who has taught in social work programs at Columbia and Fordham University.
Today, Henry Freedman is widely recognized as one of this nation’s most distinguished public interest advocates. He serves as executive director for the National Center for Law and Economic Justice. The center was founded in 1965 in the heyday of the civil rights movement. From its start, the center joined with Southern civil rights lawyers in landmark cases, worked with community-based organizations around the country, won groundbreaking legal victories in the courts, and committed resources and energy to bringing about significant legislative reform. Through these successes, the center has demonstrated that law can be a powerful instrument for improving the lives of most disadvantaged members of American society.
During his more than three decades as director of the center, Henry Freedman has also chaired the New York City Bar Association Committee on Legal Assistance and successfully argued numerous cases in federal courts around the country. Among his many accolades, Henry Freedman has received the National Legal Aid Defender Association Regional Hubert Smith Award for Dedicated Service, and the New York State Bar Association’s Public Interest Law Award. And tomorrow, best of all, an honorary degree from Amherst College.
We welcome Henry Freedman back to paradise. Today Henry Freedman will share some reflections on a lifetime of lawyering for economic justice. Please join me in welcoming home Henry Freedman.
Freedman: Thank you, Austin, for that very warm and meaningful introduction. I’m so thrilled to be back at Amherst College. A few months before the 50th anniversary of my showing up at—let me see if I have my geography right—Morrow dormitory, where I started here … I have to just note the sadness of the outset, that one of the wonderful classmates who shared life with us on that dormitory hallway was Doug Wilson, who passed away just a short time ago after decades of tremendous, invaluable service to Amherst College. In fact, I’ve been enjoying reading his new book, Passages of Time: Narratives in the History of Amherst College, which a couple of our classmates, Blair and Fred Sadler, arranged to have distributed to the entire class. Doug gathered materials and wrote about fascinating periods in the college’s past and I recommend the book to you.
Nonetheless it’s the presence in what I see when I visit, talk with faculty or read about the college that really excites me as it did when I was here. Amherst encourages its students to expand their horizons, shatter stereotypes, explore new modes of thinking, and consider just what kind of society it is that they are seeking. I’ve been very proud of President Tony Marx’s leadership and the effort to ensure a more inclusive student body, which is an important step in moving us toward a more inclusive society.
What progress our country has made in so many spheres in confronting and reducing discrimination based on race, sex, sexual identity or disability. But far too little progress, and indeed troubling retrogression, is found in the sphere to which I’ve devoted my life’s work. The elimination of poverty, of the extent of poverty, the depth of poverty, the widening gap between the haves and the have-nots, and the shredding of the safety net, are profound moral problems, and I believe are a threat to the long-term success of our nation.
When I began my current work in 1967, some 28 billion people were living in poverty in this country. In 2006, there were eight million more persons, over 36 million, living in poverty. One out of 8 persons in our country is now struggling below the poverty line. Worse yet, more than one out of six children is living in poverty. And the proportion is higher for those living in female-headed families or who are persons of color.
Of particular concern to me is how bad it looks when we look at those who are living in deep poverty to find as below as 50 percent of the official poverty level; 1975 is the first year for which I could find data for this particular measure. At that point, there were 7.5 million people in deep poverty, some 3 to 4 percent of our population. In 2006, there was twice that number, almost 15.5 million persons. The largest number of persons living in deep poverty in this country since 1975 and the percentage increased to over 5 percent of the population. More than one out of every 20 people in this country is living below half the official poverty level.
While these statistics are based upon the definition of poverty debated by experts, there’s no doubt that this represents our fellow human beings suffering from inadequate nutrition and often hunger, from sickness, from lost opportunities for education, and from having to endure incredible and often unbearable stress. And for those taking a macroeconomic view, we are severely damaging the effectiveness and competitiveness of America’s future workforce. My outrage of the suffering is compounded by the widening divide between the haves and the have-nots, and the conscious and deliberate shredding of the safety net in recent years. I’ll come back to that at the end, but I title this “A Lifetime Journey,” or something like that, so let’s get into that journey a little bit.
How many people in the room are lawyers? How many plan to be lawyers? Well, now we know who’s here. The public schools I attended in Maryland were all-white by law. I was in the eighth grade when the Supreme Court handed down its decision in Brown v. Board of Education. That event impressed me with the role that lawyers could play in achieving changes in our society. I entered Amherst as a social justice idealist with dreams of making a difference. My main dream was to become a U.S. Senator, and as you may have noted, that dream has not happened. But that was the dream.
This was during the quiet, post-McCarthy years of the late 1950s. It’s hard to believe now, but when Ed Hughes, my roommate here, and I decided to organize a student chapter of the Liberal Mainstream Americans for Democratic Action, it seemed so out of character for this campus that we thought we should go in first and check in first with President Charlie Cole. Unfortunately, he told us to go right ahead. Indeed things were beginning to start at Amherst. We were among the very first to march—college students to march—in support of the sit-ins at Woolworth’s in the South and, indeed, I got my picture in Life magazine for the first and only time, picketing the White House.
After my second year of law school, I married Helen, who is celebrating her 40th reunion at Smith this very weekend—45th! I tried to give you 5 years! These numbers get very hard to believe as you get on in time. A lot of you can’t believe somebody could have a 20th reunion—oh, 20th reunion! There’s daughter Katherine in the back who’s celebrating her 20th reunion. And while we’re at it, daughter Elizabeth, and we’ve got five grandchildren, all who are here. I just have to stop for a moment and say I would not have been able to do anything without the wonderful support that Helen has provided me, and all the joy that my children, and now grandchildren, have provided me.
I came to the Center on Social Welfare Policy and Law and became executive director in 1971. The Center was founded by Ed Sparer, a true visionary at Columbia University. It was an anti-poverty law office modeled on the civil rights organizations. One of the great assets that we had at the Center at that time was our Columbia Law School faculty director. We have another Amherst connection here. Amherst class of ’59, Rhodes Scholar, Supreme Court clerk, Columbia faculty and Paul [Dodyk], you played a fabulous role then and you have continued to play — Paul’s chairman of my board of directors, so I have to say thank you for that, Paul. Sitting next to him is the predecessor as chair, Steve Castle. Thank you both for helping me make the center so effective.
A year before the center opened, President Lyndon Johnson launched the Office of Economic Opportunity to wage war on poverty in America. That war was quickly overwhelmed by the war in Vietnam. But it did achieve some lasting and major accomplishments, including Head Start and the Civil Legal Services Program. These legal services, or legal aid programs, were funded by OEO to provide free, competent legal representations in areas of crucial concern to poor families — housing, benefits, consumer matters. The center became a specialized national office funded by OEO to serve these local programs.
Legal aid, I analogize it to a canary in the mine. When low-income clients come into a legal aid office with problems, the legal aid lawyers are often the first to see problems that are emerging. What is going wrong, who is being discriminated against. These clients are in desperate condition, sometimes as a result of foolish choices they have made. More often it’s a result of a lack of opportunity in the labor market, visible or invisible disabilities, limited health care or other needed services, inadequate education, and often just plain bad luck. But no matter how desperate, they all too often just get a runaround from the government programs ostensibly designed to address their needs.
Legal aid lawyers seek clients who are desperate to prove their lives through education and through work. They are faced with the welfare system that so frequently undercuts them, makes them wait forever, schedules appointments only during working hours, loses their papers—is generally nasty. We cannot claim to be a nation governed by laws unless we ensure legal recourse to those with serious legal problems. This includes providing means for ensuring the powerful public officials and private entities comply with the constitution and laws when administering programs to help people in poverty.
Of course, people in power and positions of privilege do not take kindly to being challenged. The most persistent critics of the legal services programs have been the employers of migrant labor, who detest being hauled into court and before agencies for their flagrant violations of the law and human rights. The opponents of effective legal services found an ally when Newt Gingrich gained majority power in the House of Representatives in 1995. That led to the greatest crisis in the program’s history where we lost all federal funding, peremptorily, mid-year. My board of directors, chaired by a certain chair who’s here, decided to close our Washington office and lay off half of our talented staff, which has been among the most difficult decisions, actions, I have ever had to implement.
But we struggled to get back on our feet, replacing $800,000 a year of federal funds with private contributions. This presented me, in a sense, with a dilemma, looking back at this. Free of government oversight, and desperate for survival, we became far more, dare I say it, feisty, independent, entrepreneurial—all these things we never thought as public interest lawyers we were to be.
It reminded of an occasion during our first federal funding crisis, which was in 1973 under President Nixon. I was at an emergency meeting dealing with this crisis and Jack Greenberg, the great Jack Greenberg, head of the NAACP Legal Defense Fund, told us legal services lawyers that his organization had never accepted government funding and never would. But I was puzzled because even then we were getting hundreds of thousands of dollars a year and wouldn’t exist without that funding. And we were doing great and valuable work. But with the 1995 crisis I understood that we as a nation need both. We need government funding to support the services of legal, health, education and welfare that the society requires. We need a vibrant and independent private civic sector to hold entrenched government officials and politically powerful private interests accountable. But I’m getting ahead of the story.
When Ed Sparer was working in a pioneering legal aid office in the Lower East Side, he was stunned by both the callousness and the lawlessness of the welfare system. He established the center to address big issues such as guaranteeing fairness and individual dignity, meeting basic human needs, eliminating discrimination. Let me take up each of those and talk about come key cases.
The first is fair treatment. Charles Reich, who had been one of my professors at Yale Law School, had developed an argument that government benefits established by law, with clear eligibility standards, were a form of property, which the government should not be able to take away without providing due process. That is giving advance notice and an opportunity to be heard. We planned to bring a prior hearing case in New York and quickly found our lead plaintiff. A hit-and-run accident the year before had left John Kelly disabled. His only income was $160 a month in welfare benefits.
His caseworker told him to move out of the flophouse that he was staying in on the Lower East Side into another one that he thought was too dangerous. He moved anyway because that was the condition of getting his benefits, but he found it too dangerous and he moved out. The caseworker, annoyed, terminated his benefits and refused ever to talk to him again. Kelly eventually found his way to a legal aid office and he was asked would he like to be lead plaintiff in a class action lawsuit, which might meet a short delay in getting his benefits restored, but a chance to help many others in his position. He said yes, and the result was a landmark Supreme Court decision, a case called Goldberg v. Kelly, which radically transformed the administration of a host of government benefit programs for persons in need. Reich’s argument was accepted in a moving decision written by Justice William Brennan, the hero to us all in our movement, which held that due process requires advance notice and an opportunity for a hearing before aid is cut off. Goldberg, decided in 1970, is still good law which we’re able to enforce in the courts today.
Second and third critical issues I mentioned, meeting need and fighting discrimination, were addressed in another major case, King v. Smith. When the center was established, many states that had welfare benefits to many categories of people who were covered under the federal law that states were administering which established the Aid to Families with Dependent Children, or AFDC program. These state policies were based upon demeaning stereotypes of women, raising children alone, and were often designed consciously to keep disfavored minorities, particularly African-Americans, off the rolls. The case challenging these policies was brought on behalf of Sylvester Smith after the Alabama Welfare Department terminated benefits for her four children. The state said that the children did not need benefits because they had a substitute father. The state knew that the true father of the first three children was dead, that the father of the fourth child had left home some years before and that the family’s only income was some $16 to $20 a week that the mother made working the 3:30 a.m. to noon shift as a cook and waitress.
Now who was the substitute father Alabama said the children had? He was a married man who had nine children at home that he was supporting, who visited Sylvester Smith on weekends. He didn’t provide anything for the children and he was under no legal obligation to provide anything for the children. Alabama said that the only way they would provide any help for Mrs. Smith, for her children, was to prove the relationship with this man had ended. How was she to prove that the relationship had ended? And who would such acceptable references be? Again I quote law enforcement officials, ministers, neighbors or grocers. Such was the rural South in those days. Talk about government intrusion into people’s private lives. You have to get the grocer and the minister to come tell the welfare department and tell them you’ve stopped seeing somebody.
In 1968, Chief Justice Earl Warren wrote the opinion for a unanimous Supreme Court in King v. Smith. He said there was no basis under federal law for assuming children had a father providing for them under such circumstances and therefore they were entitled to help under the act. Interestingly, nowhere in the party’s legal papers or oral arguments had such a claim been made. The whole case had been argued and defended as a constitutional people protection challenge. The statutory argument adopted by the unanimous court was presented solely in an amicus brief submitted by the center. This is a rare occasion indeed for the Supreme Court to decide a case based entirely on an argument not presented by the party, only as an amicus brief. We were elated. The immediate result was dramatic. Great expansion in the number of people covered—20,000 children in Alabama and half a million in 18 other states. A great victory, but it did not address the issues of race and sex discrimination head on.
Fortunately, very few cases could be found in our area of work that provide and opportunity to address it explicitly. But in 1979, I had the good fortune to argue and win the one welfare case challenging the explicit discrimination against women. It involved the Westcott family.
A married couple with an infant son—the father had an eighth grade education—had only worked intermittently. The mother was the breadwinner. She had worked as a waitress, a store clerk, a tobacco picker, a chambermaid, but now she was unemployed. This case came out of Springfield, Mass., by the way, so it was right in this neighborhood. Under the law at that time, welfare and medical benefits were provided to needy families in which the father had become unemployed but not if the need arose if the mother had become unemployed. I argued that this was unconstitutional sex discrimination and violation of the equal protection clause of the Constitution. A unanimous Supreme Court agreed. I was told I’ve not researched this, that this was the first instance in which Justice Rehnquist upheld a finding of such discrimination. I think I remember Katherine, who was at the argument observing afterwards, that Justice Rehnquist had been mean to her father or something.
There were other major cases in those early years. We won some, overturning discrimination against new residents in a state and resident aliens. We lost a critical equal protection challenge to maximum family grants and a privacy challenge to intrusive home visits. Overall, just looking back over that whole period, we’ve brought many thousands of families basic subsistence benefits that had been provided for by law but were denied by the policies or practices that violated those laws or the Constitution. We built in a means of holding government accountable. Far from perfect means, but better than was there before.
During the 1970s and 1980s, the pace of litigation slowed and there were larger forces at work with the cramped perception of the role of government in meeting family need, as reflected in the views and speeches of Governor and then President Ronald Reagan. Welfare increasingly became the scapegoat for all kinds of problems. Poor people, especially people of color and people of limited abilities, were vilified and scapegoated. While President Reagan achieved many cutbacks, the basic welfare programs survived. But when President Clinton promised to end welfare as we know it, he succeeded.
In 1996, he signed into law legislation, which replaced AFDC, Temporary Assistance to Needy Families, or TANF. TANF encourages extensive case-by-case digression by the local caseworker, harsh sanctioning for non-compliance, and required states to engage a large portion of their caseloads in work activities. It’s also a fixed block grant, which is a way of the giving the money from the federal government to the states that encourages the states to spend less of their own money. It took away from us a major legal tool of eliminating the federal categorical eligibility requirements, which were the statutory basis for the victory in our Sylvester Smith case, King against Smith.
Over the next several years, there was a dramatic decrease in caseload and a dramatic entry of many more single parents into the low-wage work force, accelerating the trends that had already been under way before the law change. The value of cash benefits continued to decline. Much more of the benefits went to services, like childcare, rather than actual cash in hand that people could use. At the same time, federally supported legal aid programs lost significant funding and were barred from bringing class actions and making claims for attorneys’ fees—which were some of the most powerful legal tools for compelling government agencies to obey the law. So, in 1996 we saw both the reduction of rights established in federal law and the welfare program, reductionability of legal aid lawyers. The courts were getting more conservative, including the Supreme Court, which sharply reduced access of the courts for many claims.
Nonetheless, after 1996, the pace of litigation picked up and continues to play a significant role. As before, we targeted our litigation to ensure fair and dignified treatment, provide sufficiently for as many in need as possible and fighting discrimination. Let me quickly give you some ideas of that work.
Turning first to New York City. Mayor Giuliani is in office at this time and really threw down the gauntlet, saying, in effect, and this is certainly the way he was understood by frontline welfare agency workers, that no one should be on welfare, no matter what the law said. No one should be treated with respect or dignity. All persons on the roll should be assigned to work off their grant and so-called work fair assignments. Problems came pouring into legal aid offices. We were involved in many lawsuits. When women were sexually harassed by their work fair supervisors and threatened with the loss of benefits for their families — and remember now, this is the safety net, this is the last recourse — were threatened with loss of benefits for their families unless sexual favors were performed, we had to fight up to the federal appeals court over the city’s bitter opposition.
We won a decision holding that these workers were entitled to federal civil rights protections under Title 7. When workers were sent out to pick up trash, dead animals, broken glass, syringes without gloves, without access to bathrooms or drinking water, groups such as ACORN [Association of Community Organizations for Reform Now] organized the workers and we filed a suit in conjunction with their efforts. Conditions improved dramatically and speedily.
Then there were those trying to get education and training to get ahead. Let me tell you about Evelyn [Davillo]. She’d enrolled in a competitive yearlong medical technician training program and was one month away from graduation. Every morning on the Lower East Side she would awaken her son, feed him breakfast, take him on the bus to the subway, up to the Bronx, to a bus that got her to the daycare center where she would drop him off. Then she would attend her medical technician training program all day, pick up her son, bus, subway, bus, dinner, put son to bed, study for the next day.
After 11 months of her doing this, the welfare department ordered her to quit the program and spend her days cleaning streets and office buildings as a condition of getting cash assistance so she would learn what it was like to work. We brought suit under state law. Unfortunately there’s no federal law to help here, saying Miss [Davillo] had the right to participate in her training program as a work activity. Indeed, she was able to complete the final month of her training, graduate, and immediately become a medical technician earning 2 ½ times the minimum wage. We achieved the settlement in that lawsuit with the city that has enabled tens of thousands of people to pursue education and training; the tools they need to lift themselves out of poverty.
But we also have an ambitious litigation program around the country. Some cases concerned a process that agencies are supposed to follow, and others concerned the eligibility definitions that should be applied. As for process, just as Ed Sparer found in the 1960s, bureaucratic bungling or hostility prevents many eligible families from getting benefits. And realize we’re dealing here now with questions of power relationships, questions of individual dignity, where the welfare worker has the power to determine whether a family will thrive and be able to move on or will suffer and perhaps even splinter. To address a pattern and practice of arbitrary denial, deferral and disregard of claims, we use a variety of legal arguments. One is the due process clause of the Constitution. Remember Goldberg v. Kelly? Other arguments rely on food stamps and Medicaid rules which, fortunately, were preserved by Congress in the 1996 onslaught on the welfare law.
We bring, what are called class actions, on behalf of large numbers of persons who all suffer from a pattern and practice of violating specific legal requirements. These are not simple cases to bring. They require extensive fact gathering, including locating many plaintiffs and witnesses to testify about unlawful practices. We depend on our ability to partner with local non-profits and private law firms donating their services pro bono. We could not have accomplished what I have been describing and so much other work without their help. We also know that we can’t rely on a simple court order or settlement to assure a long term change. That’s why we insist that all our cases on a comprehensive, multi-year, compliance order or compliance settlement — I won’t go into those at all, but for those lawyers or whatever that are interested in this, we have some posted on our Web page and take a look.
But I also talked about mentioning that we stopped public officials from adopting policies that are inconsistent with the law. Here are some policies we have had reversed by the courts in recent years. New York State’s unlawful decision to use a new formula to calculate benefits to families who are caring for a disabled child: 20,000 families each lost up to $2,000 a year so we got that reversed in court. Missouri, unlawful elimination of Medicaid benefits for large number of working and very poor families without providing the additional year of transitional Medicaid benefit the law called for. Texas’s unlawful decision to terminate Medicaid benefits to hundreds of working poor families for non-compliance, with the requirement of the cash assistance program but one that clearly didn’t apply in the Medicaid program.
We’re addressing many other issues, but I want to close with one more and that’s disability rights. It’s an interesting area. Just the notion that lawyers are involved and might bring a lawsuit has brought about significant improvements in the policies and practices of many agencies. The Americans with Disabilities Act requires public agencies to accommodate persons with disabilities so they can get the benefits of programs. But all too often agencies make little or no effort to identify who might have disabilities or to make reasonable accommodations to enable those persons to participate and benefit from a program.
In recent years, [Carrie LaShene] in our office has been invited by state agencies, first in Virginia, then in New Jersey, and now in some other states where it’s a process to rewrite their staff manuals, to instruct their staffs about specifically the steps the law requires them to take. Our development of that area of expertise lead us to get involved in response to FEMA’s utter fumbling and inadequate response to Hurricane Katrina.
We began to hear of people. There was a 78-year-old Mississippi woman, discharged form the Air Force with a 100 percent disability because her right arm and leg were paralyzed. She relied upon a motor scooter. FEMA put her in a trailer where she could not bathe herself, she could not get in or out of bed, she could not turn on the heat. She could not even turn around on her scooter. We brought suit and in a typical response, apparently, in this litigation, FEMA settled and they agreed to provide which turned out to be 2,000 persons with disabilities accessible trailers. Again, we had a monitoring mechanism. We were able to follow up and ascertain that, indeed, all these people were notified and they did get these trailers.
You’ll notice that all of these cases I’ve been describing involve enforcing the law, not making new law or policies, as badly as those are needed. But I look back on this work with enormous pride, confident that it has helped countless families over the years and improved government administrations. I feel indeed fortunate that I have been able to devote my life to the social justice cause that motivated me in my youth here at Amherst. I do wish similar good fortune on all graduates here.
Still, as I said at the outset, in many ways poverty has been growing. Government’s response and offer of ways to help has been diminishing. The number of those in very deep poverty has been increasing as well as the number of people that have disconnected, those that have not connected to any employment or any safety net, the group that’s beginning to be studied more and examined. Who are they and why are they out there? At any rate, it’s clear there are few public resources available for these impoverished families.
There are so many things we need. I’ve got prescriptions for future. We need work that is available to all who are able to work, that provides a decent income. We need a humane safety net for those that are not in a position to work. We need adequate schooling, child and youth development activities. Happily, in large part due to Senator John Edwards’ efforts, it appears that poverty is getting, and is going to be getting, much more attention in the national discussion and in this year’s election. Just last week, he and a number of organizations, including the Lawyers Committee for Civil Rights Under Law announced the formation of an effort they are calling Half in 10, a campaign to cut poverty in the United States in half in 10 years. Actually, it was the Leadership Conference of Civil Rights, I misspoke. And they have a webpage, www.halfin10.org and is going to be generating a lot of useful material. I know they’ve been relying on analysis by Mark Greenberg, who is a bright and thoughtful advocate I’ve known for decades. He’s working for the Center for American Progress and there’s material on their webpage. He offers a number of things to be done in the next year.
It was 1967. The year I began this work and I recently came across this wonderful cry from Dr. Martin Luther King as he was expanding his mission beyond civil rights to economic justice. He cried out, “Let us be dissatisfied until the tragic walls that separate the outer city of wealth from the inner city of poverty and despair shall be crushed by the battering rams of the forces of justice.”
In closing, I congratulate the Class of 2008 and would just like to reiterate that as the torch is passed to your generation, I pray that Amherst has given you the moral courage and intellectual strength to be the battering rams of the forces of justice. I pray that you will have the wisdom and the strength to crush the tragic walls that separate the outer city of wealth from the inner city of poverty. I wish you the best of luck and I would be happy to answer questions.
Audience member: The United States spends huge sums of money for international aid and so on. Do you think it would be a better use to redirect towards our own home?
Freedman: I am not sure of the number and somebody else in here might be. I have a feeling that foreign aid is less than total spent on a variety of social programs in this country. Without getting into that comparison, there is so much that the country could afford to do, that would benefit the country in the long run so much in terms of education, in terms of healthcare. And in terms of job creation. There are so many people who don’t get into the workforce who give up. It’s interesting, I was just hearing some of the discussion about—I talked about the war on poverty’s, office of economic opportunity. The community action program was very controversial, but it created a lot of jobs in local communities. They got money out to local communities and hired organizers or workers of other kind, and we have not been putting out money for those kinds of jobs. But I certainly don’t want to be heard saying we should do less on foreign aid.
Audience member: Would you talk a little bit about the relationship between the federal judiciary and legal services program during the period of time that you’ve been doing what you’re doing? My pathway has been a lot like yours and we’re lucky if we can get past some judgment now in the federal courts because of what’s happened in the federal judiciary.
Freedman: Clearly there’s been a change both at the trial court level and in the U.S. Supreme Court. It’s interesting. When this all started [unintelligible], as our faculty director, we were litigating questions of Section 1983 jurisdiction and standing, and all those to get into court, before we even got to the issue in the case. We were successful in a lot of those things and then put them behind us in a sense. Those issues, or similar issues, are resurfacing.
In our immediate work, we have been harmed by the narrowing by the causes of action that the courts are willing to hear in Medicaid programs and so forth. What provisions create a right and does it create a right that’s enforceable. There the courts have been narrow, the Supreme Court and lower courts. But we’re not specifically having a summary judgment kind of argument. We have on a lot of these cases. We have fairly clear regulations that we’re enforcing with numbers. How many days to process an application. It’s a lot of work, but we’re able to get the evidence together and when that happens, increasingly now, we’ve been settling cases because they don’t want to have to go through a trial and get an order. Have I answered you at all? I’d be interested in hearing more …
Audience member: I clerked for a federal judge in the late 1960s and legal services program brought one case after another in your domain, in the domain that you’ve practiced in. Many of them you prevailed in class actions and so forth. I don’t think that that’s happening very much now. I think the judiciary has gone over and is not an effective forum. It’s very troubling to me.
Freedman: That is very true. One of the problems we have in our area is a lot of the rights to be enforced are not there that were there in the ’60s or ’70s. Also, if you take the very first few years, the late ’60s, we were winning equal protection cases. I didn’t go into our losses so much here. In Dandridge against Williams that the Supreme Court scotched almost, any equal protection case you could raise, unless it had race or sex as the basis of the discrimination. In the ’60s we won fabulous cases on equal protection. In 1970 that was over. So that’s early on.
Audience member: Are there any cases in the pipeline that deal with the [unintelligible].
Freedman: That’s interesting. The question was, are there any cases in the pipeline dealing with the humongous delays in getting social security disability benefits. There have been more articles about this recently and Congress struggling to do something. I am not aware of any cases in the pipeline. I am aware of a case that we were co-counsel of in the 1980s, the Heckler case, that argued about delays in social security hearings. The Supreme Court threw it out. There’s a backlog. There’s tough law in the area. It’s a problem. The cases that I was talking about with time deadlines for Medicaid, the statute of regulations set out a requirement for when states are supposed to hold those hearings. There’s not an equivalent, explicit requirement with regards to social security here. It’s a statutory thing. Conceivably, one can argue it’s about due process. To sit on your case for years might be a denial of due process. The Supreme Court has been reluctant. They often say, “This case comes close.” If it got to be much worse than this that might raise the due process issue, but I don’t know that anyone has won just a delay case on due process.
Audience member: [Unintelligible]
Freedman: When you’re talking about the mandate on the Federal Reserve, as I understood it, they both have a job creation—or full employment—mandate and an inflation-fighting mandate focused a lot more on the inflation-fight mandates. You were making another point, I think, that’s important. That consumer price index, or measures of inflation that may talk very broadly, in generally, may not really address the kinds of basket of costs that a low-income family has. The inflation would be going up much more. I think we’ve seen that for housing costs and we’re seeing that now for energy and food costs. Very few benefits are indexed. Food stamps are a benefit as some [unintelligible] in the Farm Bill that the President vetoed and Congress is overriding is some significant improvement on food stamps. Most benefits, the cash systems benefits to the extent families are getting now, are generally not going up. A few states are increasing them but by and large they’re falling further and further behind. New York is a notable example in that regard with a value of the benefit. The purchasing power of benefits has been decreasing over the last two decades and it’s kind of hard to imagine. They were never anything generous and yet there’s less and less.
Sarat: I wondered whether I could ask you to answer, abstractly, a theoretical question, not about the [unintelligible]. Do you believe that, rightly understood, the Constitution of the United States creates a right to minimum subsistence?
Freedman: And you don’t want me to talk about the judiciary? That’s the easy question.
Sarat: I want you to imagine you have a sympathetic judiciary. But again, I’m interested not in the strategy, and you know that Goldberg didn’t create a right to welfare; he didn’t create a right to fair processing in welfare. I’m interested in your speaking to the future, so to speak. Do you think that, rightly understood, the Constitution of the United States creates a right to a minimum subsistence?
Freedman: It’s interesting. A wonderful professor I had at Yale Law School, Charles Black, wrote some law review articles and gave at least one wonderful speech that I managed to see that he delivered when he was at Columbia, arguing, I think he called it, a right to subsistence or something. And he said we should not be too discouraged that this country was founded only 200 years ago, look at the strides that we’ve made and so forth. And all that is my filibuster in saying that I don’t think his argument has gotten much traction and he certainly worked on it a lot harder than anyone I know.
One can spit something out, the pursuit of life, liberty, from the Declaration and so forth. I just think it’s very hard to argue that that was in the Constitution. Just as one of the real frustrations, in a sense, that we have now — so much progress has been made in codifying and articulating human rights law internationally and we often get asked, can that be used? Then people say even in the Supreme Court now a few of the justices are willing to cite at least what other countries are doing in some of the death penalty cases and certain things.
You’re saying disregard the judiciary, but one can’t if you’re talking about how you argue a case when you pursue a right. I find it very hard to imagine going in and arguing under these international treaties, the United States Universal Declaration of Human Rights. The United States has accepted certain principles. There are ones that we haven’t ratified, but the ones that we have, there are certain principles so that should be enforced. I think that’s got to stay in the public realm. I think that should certainly be argued and expanded upon but I think, in terms of talking about a right, a legally enforceable right, we have a long way to go. And we have a lot of other battles that need to be won first.
Audience member: Could you comment on the perceived conflict between two sections of America’s working poor? The recently arrived, illegal immigrants to work and contribute to our Commonwealth, who have no toehold for many aspects to rights, and the community of long-standing Americans who are on the margins of employability? Perhaps dumped off their rolls, living on that margin, they really have a need to entry-level opportunities and the labor market is going to receive them with many of the challenges and limitations they have in their background. They need to come in at entry-level jobs, which a community of hardworking and illegal immigrants often fill with great alacrity and are preferred employees for jobs like that because of their rationale on condition of work. Is that a real conflict and can you really provide justice to those?
Freedman: I think it’s almost more of a conundrum than a conflict. I’m not an expert in working out those. I think clearly for those we have in this country already who are not working, to try to get employment situations where they can actually and earn enough money to be really encouraged to work to make it seem worthwhile is a critical thing to do. At the same time, you need an immigration policy that will allow people in to do jobs that need to be done, that aren’t going to be done otherwise, and we seem to be far away from having that kind of policy now. Instead we have people who are very hardworking and eager but also in desperate legal situations. I just saw a headline today that they’ll criminally prosecute all those arrested in Iowa. I’m not able to reconcile the conflict for you.
Audience member: If there is such a right to minimum subsistence in the Constitution, in what part of the Constitution would you write that?
Freedman: Do we have an article or something that we can [read]?
Sarat: [Frank Michelman], Charlie Black, they argued that the right to minimum subsistence would be found probably in the equal protection clause. They would bargain that it would probably be made on arguments that basic commitment of the Constitution, you have to read the Constitution broadly, no literally, is the protection of human dignity. And the equal protection clause waives the protection of equal human dignity and without minimum subsistence, the equal human dignity is abstracted under the [unintelligible]. Those are the arguments. And people argue about Goldberg, that Goldberg was leading in that direction. That was the hope. That was the expectation. So I would say if that argument is ever to be found, it’s likely to be found in a reading of a kind of [unintelligible]. How’d I do?
Freedman: It’s a good argument. That’s why need the academy. That’s why we need people to be thinking these things through. We’ll make progress, but we have to be sometimes patient.
Audience member: Would a [unintelligible] rights crisis interpreted, I guess at least, as the right to privacy in regards to what happens between consenting adults in a bedroom be able to be magnified through the lens of people protection, to apply to people who don’t have a bedroom cannot possibly be enjoying the fundamental [unintelligible]. My home is my castle.
Freedman: This isn’t a direct answer, but there was a very interesting case in Connecticut about 15 years ago that, in effect, raised the question that under the Connecticut Constitution, does the state have an obligation to assist a person who’s dying in the street. Is there some obligation? Hundreds of pages, fascinating history about the Connecticut Constitution of 1820 and the poor laws that preceded it and what obligations there were. It’s flip decision that the majority said there is no constitutional obligation to provide. Not that they ever thought Connecticut will have people lying in the street and dying, but you can’t invoke the Constitution as the basis for—but the minority said, yes, there is. Based upon the poor laws that have always been there and that there was an obligation on the state to provide. It’s a fascinating case.
Audience member: Along those lines, New York does have a constitutional provision. Is there any other state, or has there been any other state? And by the way, it has been invoked and incited in a few decisions. It was snuck in in the 1930s, I think …
Freedman: It wasn’t snuck in. It was very explicit.
Audience member: One of the reasons that many people have tried to avoid a constitutional convention in New York is the fear of revoking that provision, which says that, it’s Article 17, I believe, which says that there’s an obligation to provide for the needy. Is there any other state that has that?
Freedman: There are many provisions in many state constitutions that many people have argued, both in cases and law review articles, that they do or do not establish an obligation to provide for the needy. And the Connecticut case I was referring to actually collects a lot of that material because the majority … [Do] a 50-state survey of other state constitutions and how they’ve been interpreted. I don’t want to make any flat statement because someday we may be trying to litigate such a case in some state and they’re recording this thing, I presume. I don’t want to make any statement against interest. I can say that are various provisions in various state constitutions that some people say do impose an obligation and some court decisions appear to.
Indeed, a fascinating instance came up in Montana about 10 to 15 years ago where they had a provision in their constitution. They kept trying to cut back their welfare program. The courts kept throwing it out saying it violates the equal protection clause of the Montana constitution, but sounds a lot like the federal equal protection clause, but we’re interpreting it differently. It finally came to a head and there was a referendum and by 52 to 48, the voters of Montana threw out that provision of the constitution. That’s the risk, the very risk you were talking about raising the issue.
Sarat: We have to stop, I think. It’s perfect that we stop a [little bit about Montana]. Please join me in thanking Henry Freedman.
Freedman: Thank you very much.