Counterpoint: The Paradoxes of Law Reform Litigation

By Rivkin, Dean Hill | Journal of Law and Education, Winter 2018 | Go to article overview

Counterpoint: The Paradoxes of Law Reform Litigation


Rivkin, Dean Hill, Journal of Law and Education


I. INTRODUCTION

In Effective Litigation Strategies to Improve State Education and Social Service Systems ("the Article"),"1 Professor Albert Kauffman recounted the multi-decade litigation originally styled Lulac v. Clements,2 which centered on dismantling the resilient legacy of discrimination in higher education in the Texas-Mexico borderlands. The explicit goal of this suit was to improve higher education opportunities in this region. Professor Kauffman, a staff attorney with the Mexican American Legal Defense and Educational Fund ("MALDEF") at the time that the litigation began in 1987, was lead attorney for the coalition of organizations, public officials, college students, and others who brought the litigation. For Professor Kauffman, this litigation was "a ten-year labor of love."3

That Professor Kauffman is a brilliant, courageous, and experienced civil rights attorney and scholar is not doubted. His Article hit many of the right notes about (a) the role of litigation in generating social change; (b) the mu_72.tifaceted roles that lawyers play in law reform campaigns; (c) the posture of courts in cases of this genre; and, of course, (d) the critical importance of access to higher education in promoting equality. The Article seeks to synthesize many features, both admirable and problematic, of modern law reform litigation.4 It raises important issues about this type of litigation, which dates most prominently from the legal campaign that led to Brown v. Board of Education.5 As Professor Kauffman noted in his introduction:

For many years, legal scholars have been quibbling over the normative and legal dimensions of court involvement in "reforming" state social systems. Most of these analyses focus on either the role of individual federal judges or the U.S. Supreme Court in ongoing legal proceedings, or on seminal opinions and their legal offspring. Few analyses focus on the interrelationships among legal proceedings and the community, advocacy, legislative dimensions, and other scholarship that has led to the litigation.6

So far so good. Yet, as I describe below, the Article falls short on its promise. Several reasons account for this observation: (1) As I discuss below, a burgeoning literature on campaigns for legal reform has evolved. This literature seeks to capture the dynamics of cases like Lulac in more contextual ways than Professor Kauffman does in his article; (2) When lawyers write about their own cases, blind spots emerge. Serious selfreflection is not a habit for many lawyers or, for that matter, many scholars. Built-in ethical and relational obstacles also exist that thwart self-reflection by lawyers. Professor Kauffman pretermits serious discussion about these blind spots; and (3) The Article presents several paradoxes about the very nature of the public interest litigation enterprise and its democratic potential, which are issues that the piece alludes to, yet fails to capitalize on the opportunity to examine deeply.

II. THE LULAC CASE

Professor Kauffman made a convincing case that Lulac was a progeny of Brown and, in some respects, eclipsed Brown in its scope and ambition. In a fundamental sense, the Lulac litigation, like Brown, was a case designed to dismantle entrenched historical discrimination. Professor Kauffman poignantly recognized: "Both the United States, in general, and Texas, in particular, have long and tragic histories of discrimination against persons of color in access to and equality in education."7 He cited impressive supporting statistics. It may be too far afield from the focus of his Article, but even a footnote speculating why Texas has been the long-time ground zero of litigation over educational discrimination would have been welcome background.8

The MALDEF attorneys organized their case by the "3-D's:" Degrees, Distance, and Dollars. This method was a keen meme to organize the sprawling facts of this case. The ambitious initial goals of the case were two-fold: "(1) to obtain equitable financing for higher education in the border area compared to the rest of Texas, and (2) to achieve better educational access to higher education institutions throughout Texas for the Latino community in admissions, placement, graduate programs and employment. …

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