Poverty law and community activism: notes from a law school clinic.

• Author: Loffredo, Stephen

INTRODUCTION

During the heyday of anti-poverty activism in the 1960s, scholars, lawyers and community organizers recognized that law reform might play an important catalytic role in promoting movements for social change. This insight helped fuel the creation of organizations whose very names (e.g., "Mobilization for Youth," or "MFY Legal Services") reflected the goal of cultivating community activism. (1) Later efforts to institutionalize legal support--including Ed Sparer's work with the Center for Social Welfare Policy and Law--further drew upon the potential synergies between lawyers pursuing legal reforms and activists building grassroots welfare rights organizations. (2) Many commentators have since analyzed these interactions between poverty lawyers and the welfare rights movement, and have questioned whether the collaboration produced meaningful and sustainable change. (3) At least some of the literature credits the lawyers' court-centered campaign for welfare rights (4) with improving the material circumstances of large numbers of poor people and precipitating reform of state and federal programs and institutions. (5) Likewise, social scientists have examined the impact that the social mobilizations had during this period in liberalizing the welfare system and generating broader attitudinal changes toward the poor. (6) Commentators voice a cautionary note, however, criticizing what they perceive as a lack of a consistent, organic connection between the lawyers' judicial strategies and the priorities of the welfare movement itself. (7) They express concern that poverty lawyers approached their clients in instrumental terms, (8) and argue, more broadly, that a legal campaign to achieve fundamental social change--such as a constitutional right to a decent income--is bound to fail without a politically effective social movement." (9)

The number of lawyers engaged in legal work for the poor has declined over the last two decades, (10) and the dominant political culture structurally and affirmatively discourages civic participation and activism by poor people. (11) Yet, heartening countercurrents persist. (12) At least some commentators believe that a "new poverty law movement" is in process, (13) involving a growing number of practitioners and scholars discussing, among other topics, how lawyers for subordinated groups can work with a broader community to precipitate progressive change. Talking variously about facilitating client empowerment, (14) about advancing economic justice, (15) and about "resist[ing] systemic subordination," (16) the participants in this movement seek to construct practices that reshape the substance and processes of legal advocacy to support community-based activism and promote a substantive version of social justice. (17)

This Article examines a collaboration between a grassroots welfare rights organization, the Welfare Rights Initiative (WRI), and a law school clinic that I direct at the City University of New York School of Law (CUNY). Both WRI and the CUNY clinic came into being in response to draconian welfare policies imposed by New York City in the mid-1990s--policies that, among other unfortunate consequences, forced thousands of welfare mothers to drop out of the City University of New York and abandon their pursuit of a college degree. Over the past several years, this joint venture has provided rights education and legal representation to large numbers of individuals, organized grassroots pressure for more humane social welfare policies, and sought, with some success, legislative reforms at the state and local levels.

I present this collaboration as a case study of a purposefully structured, mutually reinforcing interaction between legal advocacy, law reform, and grassroots activism in the poverty context. What emerges from this localized experience is a fluid, multidirectional relationship between social mobilization and law reform, in which each activity can catalyze and in turn be amplified by the other. The WRI activists, the clinic interns, and the individual clients collaborated not solely through case-specific advocacy, but also through group-based transactional approaches, and in ways that reconfigure and redefine the traditional hierarchy of lawyer-client relations. I do not suggest that these very particular and contingent experiences support any firm claims or overarching conclusions. The more modest hope is that this case study might contribute incrementally to the knowledge base of social justice practitioners and help illuminate the relationship between law reform and social activism. (18)

Part I situates the case study in the broader context of the "new poverty law" and emerging strategies for the design of collaborative lawyer-client relations that can facilitate and support broader movements for social change. Part II provides a partial account of the social context and "welfare reform" policies that gave rise to the WRI-clinic alliance. Part III presents the case study, describing the establishment of the partnership and the theoretical justifications for the relationship that we sought to generate; the work that we undertook; and the reform that we precipitated, including the indirect effects that the work triggered. Part IV joins the case study with the themes of this Symposium, asking whether prevailing theories of social movement might provide a deeper understanding of this collaboration or similar efforts to realize synergies between social mobilization and law reform in the context of economic justice.

1. THE NEW POVERTY LAW MOVEMENT

   During the "War on Poverty" of the 1960s, Ed Sparer and others combined social activism and legal work to create a new form of practice now known through the shorthand "poverty law." (19) The idea was that lawyers for the poor should transcend the customary legal aid model of providing only traditional representation in a series of unrelated, individual, private-law disputes, and instead take on the task of securing systemic and institutional changes that would alleviate poverty itself. (20) The innovative work of this period generated a vibrant political discussion about the propriety of this new role, and how poverty lawyers could best contribute to the social transformations they viewed as essential. At the Center for Social Welfare Policy and Law and MFY Legal Services, poverty lawyers worked toward their goal through an ambitious litigation strategy that sought, with many intermediate steps, to establish what Sparer called a "right to live"--a federal constitutional right to economic support. (21) But Sparer emphasized that litigation alone could not achieve fundamental social change; legal strategies had to be coupled with grassroots political strategies. The two endeavors might be designed to be mutually reinforcing: law reform efforts might activate movements for social change, and those movements, in turn, might lay the groundwork--or create the political atmosphere or public support--necessary for further progress through the courts or the legislatures. (22) As Sparer later wrote, the role of the poverty lawyer was to help "develop ... a constituency which will decide for itself." (23) This approach did not require lawyers to be organizers, but it did mean that lawyers would work closely with organizers in groups that afforded welfare recipients and the poor a public space within which to make strategic decisions based on their own experiences and perceived sense of need. Sparer emphasized that the central role of poverty lawyers should be to help build a welfare rights movement and to put themselves "at the service of [the movement]so as to help it become a more forceful part of American politics. (24)

   Current discussions about the relationship between social movements and law reform take place in a less optimistic context than that of the 1960s. (25) By the 1970s, the Supreme Court had definitively placed positive rights outside the domain of federal constitutional law, (26) rejecting not only a narrow welfarist conception of minimum entitlements, (27) but also the broader idea that the Constitution embraces a right of social citizenship. (28) Moreover, by applying only the most feeble and deferential form of rationality review to laws affecting the poor, the Court allowed state and federal welfare programs to function as instruments of subordination that debased and stigmatized the poor and served to perpetuate inequality and indignity." (29) As poverty became more entrenched, liberal scholars voiced an increasing lack of faith in the idea that law--at least in its judicialized form--could meaningfully resolve problems of inequality and deprivation. (30) Meanwhile, the Legal Services Corporation, changing ideological course, explicitly renounced the goal of "achieving social change." (31) And commentators increasingly questioned the entire premise of the law reform enterprise, suggesting that a law-based strategy may be "ill suited to the poverty law context because it puts lawyers--whose knowledge of the issues facing poor clients is at best second-hand--at the center of power and decision making in the movement." (32)

   Poverty lawyers began to reflect self-critically on whether they could play any legitimate role in the struggles that poor people face, (33) considering whether they would do best by helping "people subordinated by political and social life [to] learn to recognize and value and extend their own problem-solving know-how." (34) At least some of this second-generation discussion proceeded on pessimistic terms that, ironically, placed the lawyer center-stage in the underlying narrative. (35)

   In the last decade, however, activists and scholars have begun the hard, constructive project of devising forms of poverty law practice that will allow poverty lawyers to collaborate with individual clients and communities within less dominant and hierarchical structures. (36) The...