Academic journal article Case Western Reserve Law Review

Government Interference with Law School Clinics and Access to Justice: When Is There a Legal Remedy?

Academic journal article Case Western Reserve Law Review

Government Interference with Law School Clinics and Access to Justice: When Is There a Legal Remedy?

Article excerpt

INTRODUCTION

Government interference with law school clinics resulting in the denial of low-income people's access to justice is not new. Recent events remind us that it is unlikely to fade away. Just last year, a law school clinic representing clients against the interests of a large poultry company spurred some legislators to introduce a budget amendment to withhold funds from the University of Maryland unless its law school disclosed information about its clients and how clinical programs at other law schools operate. (1) In Louisiana, the state legislature considered a bill to bar law school clinics that receive public funds, including private universities such as Tulane, from suing companies or government entities unless the legislature specifically approved each lawsuit. (2)

In both instances, the state legislators sought to restrict how the law schools could educate their students, and, in Louisiana, whether certain clients and legal claims could have legal representation by law school clinics. These proposals prompted many, including the American Bar Association (ABA), (3) over 450 law professors, (4) and fifty deans, (5) to object to one or both of the proposals. (6) The president of the ABA criticized the proposed Maryland legislation as "an intrusion on the attorney-client relationship," (7) and the Louisiana legislation as "[d]epriving the poorest citizens of these vital [legal] services." (8)

Both legislative efforts failed, (9) but would there have been legal recourse if either had passed? One may think that such governmental intrusions into educational programs trigger academic freedom claims and possibly other legal rights. But when it comes to academic freedom, the individual faculty member tends to conflate the norm of academic freedom on university campuses regulating relationships between the individual faculty member and administrators with legal rights. This may lead the typical professor to believe that the First Amendment provides robust protection for academic freedom, when this belief does not necessarily translate into reality in the courts.

For example, the Maryland legislature did pass an alternative budget amendment that does not withhold funds, but does require the University of Maryland School of Law to report on its environmental law clinic cases over the past two years by listing each case and non-privileged expenditures. (10) The chair of the House Appropriations Committee said that the law school had received the message, "We'll be watching." (11) One of the state senators who opposed the government interference characterized the legislative action as "better than it was, but it's still a pretty big abridgement of academic freedom." (12) He added that the language was a threat: "If you guys are getting involved in issues that we don't like, or you're bothering people that we do like, we want you to shut up." (13)

Dean Phoebe Haddon of the University of Maryland School of Law addressed the government's interference by sounding a similar theme that the government also interfered with how the clinics do their educational work. She said, "There is a specter of intimidation that could affect how the clinics choose clients or accept cases." (14) The former director of the University of Maryland's Environmental Law Clinic, Rena Steinzor, added: "It's not acceptable, because it is an effort to chill and intimidate us for taking cases that cause trouble in Annapolis." (15)

Yet, the University of Maryland is not taking legal action to challenge this requirement, and it is unlikely that it will. First, there does not appear to be a cognizable legal claim that would prevent the legislature from accessing non-privileged, non-confidential client information. (16) Second, there is the practical matter that the state legislature funds the university. Even if the university could prevail on this matter, university administrators may decide that the threat of future funding cuts is too great a risk when weighed against the burden of the reporting requirement. …

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