This post concludes our symposium on law school clinics and racial capitalism. Read the rest of the posts here.
Many of us went to law school in the hopes of acquiring the tools necessary to contest and overhaul systems of oppression that have harmed our families and communities. The law, as we saw it, was the means or site of resolution. Yet confronted with the increasingly complex and interconnected social problems that face our communities, traditional means of lawyering through direct services and litigation are often insufficient and ill-fitting.
I supervise students in the Policy Advocacy Clinic (PAC), an interdisciplinary clinic that utilizes creative, non-litigation strategies to address systemic racial, economic, and social injustice. We do not represent individuals or litigate. Instead, we partner with advocates, community-based organizations, and coalitions across the country to move forward reform at the local, state, and national level. Sometimes, that involves providing technical support to a legislative campaign; in other instances, gathering data through record act requests, negotiating with system actors, or even developing key messages and narratives on a particular issue. We pride ourselves on tailoring tools and strategies to the problem at hand, which often requires looking beyond the law to find solutions.
Part of what has allowed the clinic to be responsive and nimble in its work with partners and coalitions is our interdisciplinary nature. In PAC, teams of graduate law and public policy students work together on projects. Policy students bring key policy analysis skills related to defining problems, gathering information, and analyzing data. Law students lend critical reading, fact development, and problem-solving skills. The combination adds tremendous value to the work, and students have said that the ability to learn from and work with students from a different discipline is one of their favorite parts about PAC.
The interdisciplinary approach of the clinic has also illuminated some of the limits of lawyering, specifically in approaching problems. So much of law school focuses on teaching in the abstract. Conversations about the way in which race, class, and gender apply to areas of the law like property, criminal procedure, or torts are limited at best. The way in which we test students’ understanding through hypotheticals only reinforces this tendency to issue spot without consideration for broader histories or context.
When we reduce problems to a singular cause, we ignore the deep history and assumptions upon which so many problematic laws and policies have been built. And it is when we fail to accurately define or talk about problems in full that we limit our imagination for responsive and transformative solutions.
Take, for example, the clinic’s work on fees and fines. Early on in California’s campaign to abolish juvenile fees, certain legislators pressed the coalition to accept fixes to the existing fee and fine system as an incremental compromise. As we prepared students to facilitate a discussion with the coalition, we spent hours talking through the problem and the pros and cons of the reforms on the table. Our student team was split. Half viewed the problem as primarily one of poverty. In their view, ability to pay reform, while incremental, was an attractive option because it would provide much needed relief to families. The other half saw the issue as one of race and had doubts about what a “better” ability to pay process would accomplish. If Black, brown, and indigenous people continued to be subjected to targeted policing and therefore more fees and fines, even if affordable, was that justice?
In hindsight, the solution is clear. Taking ability to pay as a compromise would have not only legitimized it as a solution but likely threatened the push for abolition in California. There continue to be ability to pay proposals in California and nationally despite evidence that even when required under the law such evaluations rarely occur, place a significant burden on individuals to show their inability to pay, and are ultimately subject to the biases of judges and court staff. Crafting a “better” ability to pay system would only have resulted in more money being spent to accurately identify most people as unable to pay and collecting even less in revenue.
The continuing success of this work, including now five bills signed into law since 2019, stems largely from the clarity and insistence on abolition being the only solution. It’s what youth organizers called for from the start, back in 2009, before fines and fees was even on the national radar. For students, it not only underscored the importance of following the lead of directly impacted people but made them reflect on how incremental decisions could potentially threaten longer term reform goals and movements.
In the same way that we should encourage students to resist defaulting to singular conceptions of problems, we should also teach students to be aware of the limitations of using traditional legal tools alone. For example, representing individuals on a case-by-case basis can be resource intensive and outcomes are often limited by bad law or bad judges. In one case, supervisors and students in the Education, Defense, and Justice for Youth program at the East Bay Community Law Center represented a mother at a financial evaluation hearing, arguing that she did not have the means to pay fees that had been ordered against her. At the time state law instructed judges to consider “the family’s income, the necessary obligations of the family, and the number of persons dependent upon this income.” The judge acknowledged in the record that the mother clearly could not afford to pay and yet still ordered her to pay $50/month because he believed she should “have to pay something.” Even with all the lawyers and law students in the world to represent individuals, the outcome would still be up to the discretion of an individual judge.
Legal solutions are also often slow. Pursuing affirmative litigation can take years to culminate in a result, and remedies are often limited to legal perceptions of relief. For example, in November 2019, the California Supreme Court granted review in People v. Kopp, a case that raises question about what due process requires, specifically regarding the determination of one’s ability to pay, before imposing fees and fines. Three years later, we are still waiting on a decision. If we had limited our imagination to traditional lawyering tools, we would likely have just waited. But by applying an interdisciplinary lens, we were able to find other avenues to achieve relief. In the time we have spent waiting for a decision on Kopp, the clinic has supported the advocacy community in successfully persuading the State Controller to pause all state-sanctioned collection activity for unpaid fees and fines and in moving forward a legislative reform that has eliminated over 40 different criminal fees, including the criminal justice administrative fee at issue in Kopp.
We are grappling with entrenched, systemic problems and will need complex and integrated advocacy efforts to solve them. The law gives us tools to engage but those tools alone are not enough. In the clinic, we try to instill in students the value and importance of interdisciplinary approaches to understanding the systemic and contextual nature of the problems we are tackling and, more importantly, to identifying strategies that get us closer to the transformative change we so desperately want and need.