The Harvard Animal Law and Policy Clinic filed an amicus brief to the Supreme Court on Thursday. By Kathryn S. Kuhar
The Harvard Animal Law and Policy Clinic filed an amicus brief to the Supreme Court on Thursday supporting a Center for Biological Diversity-led challenge to the Trump administration’s wall along the Mexico-United States border.
The Center for Biological Diversity filed a petition for certiorari on Jan. 31, asking the Supreme Court to review six decisions by the U.S. Department of Homeland Security which allowed the Trump administration to waive over 40 federal laws that would slow down the construction of a border wall.
The Law School clinic represents the North American Butterfly Association and the National Butterfly Center — who manage a refuge along the border — as amici curiae in the case. Their brief claims the waivers DHS approved subvert laws that protect endangered species such as butterflies and moths.
“This includes irreparably harming dozens of rare animal and plant species that inhabit the Lower Rio Grande Valley, and forever destroying the already extremely fragile ecosystems on which they depend,” the brief reads.
Law Student Ashley Maiolatesi said the proposed border wall will differ from the barriers previously in place and could harm animals living in the area.
“It’s going to be made of steel and metal and be completely solid, and it’s going to have stadium lighting around the top and so that affects a lot of animals in their migration patterns and how they breed and travel and all sorts of things like that,” Maiolatesi said in an interview.
“Anything that is like a terrestrial animal — like the endangered ocelot that lives in that area — it can’t obviously get past this 36-foot high wall,” she added. “That is a huge issue because these animals are already so endangered.”
Maiolatesi also said constructing the wall would necessitate clearing land on either side of the border. The amicus brief describes the proposal for this 150-feet-wide clear-cut area as an “enforcement 10 zone” and claims it would destroy an estimated 20 miles of habitat for each mile of the wall built.
“That eliminates over 13,000 acres of viable habitat along the Rio Grande Valley right now,” she said.
The brief mentions additional concerns about the proposed wall, including the lack of a sloped escape route for animals in the case of fire or flood and an increase in danger, pollution, and erosion due to high-speed patrol vehicles.
Maiolatesi said the Law School clinic hopes to raise awareness about the alleged lack of research into the potential consequences of the proposed wall.
“None of the environmental assessments or any paperwork was filed on what these ramifications would be if these changes to the law were made,” she said. “We wanted to really bring to light the animal aspects, and how this was going to be affecting animals in the area throughout the United States and Mexico.”
Dwayne Smith, seen in Afghanistan in 2009, was issued an other-than-honorable discharge in 2012. (Dwayne Smith)
The Department of Veterans Affairs has for decades unlawfully turned away thousands of veterans with other-than-honorable discharges, rendering some of the most vulnerable veterans invisible and desperate for help, according to a study released Thursday.
Systemic misunderstanding of the law within VA about which veterans it should care for — and which should be denied services — has triggered improper mass denial of care since 1980, the Veterans Legal Clinic at Harvard Law School said in the study, leaving an estimated 400,000 more at risk of never gaining access to health care they may have earned.
The discharges, given for misconduct that can range from drug use to insubordination but not proved in court, are colloquially known as “bad paper” for the lifetime of negative consequences they can have.
Experts and advocates have called for VA to properly assess eligibility shown to save lives. Veterans outside the VA system kill themselves at a higher rate than veterans who received recent VA care, the agency has said, and mental health care for veterans with bad paper can lower the risk of suicide, the American Journal of Preventive Medicine found last year.
VA declined to say whether it unlawfully denied care to veterans.
It didn’t happen that way for Dwayne Smith, a Marine Corps veteran who served as an engineer equipment operator in Afghanistan’s volatile Helmand province in 2009. He returned with post-traumatic stress and traumatic brain injuries, and his best friend died in his sleep days after they came home.
“That was one thing that changed me,” Smith, 31, told The Washington Post. His standing in his unit suffered, culminating in an unauthorized absence he used to go home to visit his mother, who was dying of cancer, he said.
Senior leaders offered him a way out as his enlistment neared its end: Take an other-than-honorable discharge or risk a dishonorable discharge later. He saw it as a plea bargain to be with his mother, and in 2012, he left the Marine Corps with bad paper.
Months later, unmoored and in need of care, Smith drifted to VA in search of help. A front-line worker at the Brockton VA outside of Boston looked over his discharge paperwork and sent him away without documenting his visit, he said. Multiple denials followed during the next two years.
“I was supposed to be able to turn to them,” Smith, now an athletic trainer for children, said of VA.
His experience is emblematic of the struggles of many of the half-million veterans issued other-than-honorable discharges since 1980, when certain eligibility requirements began to apply, said Dana Montalto, an attorney for the law clinic and co-author of the report.
Many veterans are simply given a verbal denial, while others are told incorrectly that the only solution is to go back to the Pentagon to try to get their discharge upgraded.
VA could not produce numbers for how many eligibility decisions it has made involving bad paper. The legal clinic estimated the number was around 100,000.
“VA has done more outreach to other-than-honorable former service members in the last few years than ever before,” VA press secretary Christina Mandreucci said Wednesday, which includes a call center launched in December to contact veterans who left the military in the past year, including those with bad paper.
VA also sent 444,487 letters sent to veterans with bad paper describing some mental-health benefits granted in 2017.
However, VA pulled their home addresses from Pentagon records — information that could be decades old for a Vietnam or Gulf War veteran, for instance, who may have used a parent or guardian’s address at the time of enlistment.
“That is horrifically low by any measure,” said Kris Goldsmith, the associate director for policy and government affairs at Vietnam Veterans of America. “It shows how unserious VA’s leadership is in getting these guys and gals into the system.”
It is impossible to know how many veterans VA has turned away without evaluations, Montalto said.
In one case detailed in the study, a Vietnam veteran who left with bad paper suffered from untreated post-traumatic stress disorder for 50 years after he was incorrectly told he was ineligible for VA care. An attorney working on his case helped him win the benefits he earned, the report said.
Internal guidance from the Pittsburgh VA Medical Center on how to assess other-than-honorable discharges. (Dana Montalto)
Much of the confusion comes from inside VA, the report found, after records requests revealed guidance for staff that was wrong or incomplete at VA facilities across the country.
The Pittsburgh VA Medical Center used a clip art image of a thumbs-down to describe other-than-honorable discharges, implying they are a non-starter. VA’s hospital in El Paso incorrectly told a veteran that only honorable and general discharges lead to VA care, the study said. Those cases contradict other guidance VA has provided.
For tracking purposes, the legal clinic characterized bad paper as any discharge besides those considered honorable. Some of the categories — dishonorable and bad conduct — can be the result of serious crimes in uniform. But others, like in Smith’s case, are administrative actions enforced by a commander, not a judge or jury in a military court.
Often, they are infractions that mushroom from physical or mental wounds, such as self-medicating with drugs or alcohol after combat or sexual assault. From 2011 to 2015, the drawdown period from the highest troop levels in Iraq and Afghanistan, more than half of the 91,764 troops separated for misconduct were diagnosed with post-traumatic stress disorder or traumatic brain injuries before discharge, the Government Accountability Office found.
They can also be the result of discrimination — the study found that more than 100,000 veterans in the LGBT community left the military with bad paper from the end of World War II until 2011, when the “don’t ask, don’t tell” policy was repealed.
After a five-year battle, Smith ultimately won his appeal and received VA care and compensation in 2018 for his traumatic brain injuries and post-traumatic stress disorder. And that was only after Montalto represented him pro bono.
“That was the biggest win,” he said, “to walk into VA with my head held high.”
On December 31, 2019, the Crimmigration Clinic celebrated a victory on behalf of a client who had been detained for more than a year. Based on arguments submitted by the Clinic, the Board of Immigration Appeals (the Board) terminated removal proceedings against the client and released him from detention.
“In spite of the injustices our client has faced, I’m thrilled to know that he’ll soon be reunited with his family,” said Niku Jafarnia ’20. Jafarnia, and her case team partner, Joseph Tahbaz ’20, co-authored the appeals brief filed with the Board that resulted in the victory.
Like many immigrants, David* was denied justice in several ways. Although he had a strong case for possible immigration remedies, the Immigration Judge (IJ) denied him relief from removal largely due to a conviction for violating a Florida statute, which the IJ found triggered the “crime of child abuse” removal ground. The IJ’s decision was made in spite of the fact that David had lived in the United States for over 20 years as a green-card-holder, has two elderly U.S. citizen parents, and helps support his U.S. citizen teenage daughter. Additionally, the IJ failed to properly record the favorable testimony from David’s family at the hearing during which the IJ denied his request for relief. Without a transcript of that hearing, it was impossible for the Board to effectively review the IJ’s decision denying his relief. David knew the odds were stacked against him and he sought help.
The Crimmigration Clinic stepped in to represent David with his appeal to the Board. Jafarnia and Tahbaz worked diligently to craft an argument that had not yet been made in David’s case—David was not removable in the first place because his Florida conviction did not actually trigger the “crime of child abuse” ground of removal. Shortly after filing their brief, the Board’s decision was issued. The court agreed that the Florida statute covered criminal conduct that reached far beyond what the removal ground was designed to cover. The Board ultimately held that David’s conviction did not render him removable because the Florida statute criminalizes conduct that does not necessarily result in harm to a child, or even a significant risk of such harm. Without a viable ground of removal, the government terminated proceedings against him and released him from detention.
According to Tahbaz, the legal victory in David’s case is a reminder that even in these troubling times, there is hope that the law will be applied fairly and faithfully. “This case gives me great hope. I can’t wait to see what lies ahead in our client’s future.” said Tahbaz.
*Client’s name has been changed to respect his privacy.
Harvard Law School Clinical Instructor and CHLPI staff attorney Katie Garfield ’11 and Jean Terranova, Community Servings’ director of food and health policy, testified before the Joint Committee on Public Health at the Massachusetts State House.
The legislation would require the Executive Office of Health and Human Services (EOHHS) to establish a Food and Health Pilot Program that equips health care systems to connect MassHealth enrollees with diet-related health conditions to one of the three appropriate nutrition services, with the expectation that health outcomes will improve and cost of care will decrease.
“Massachusetts has long been a national leader in health care policy,” said Garfield in testimony before the committee. “However, we continue to struggle with two issues that play a fundamental role in driving health outcomes and health care costs: food insecurity and diet-related disease. … A growing body of evidence indicates that connecting these individuals to “Food is Medicine” interventions may be an effective, low-cost strategy to improve health outcomes, decrease use of expensive health care services, and improve patient quality of life.”
Published in June 2019, the “Massachusetts Food is Medicine State Plan” is a product of a two-year, community-driven initiative that engaged more than 400 people from across the state. The initiative sought to identify health and food system reforms to improve access to critical nutrition interventions and change the culture and practices of the health system.
CHLPI and Community Servings also launched Food is Medicine Massachusetts (FIMMA), a multi-sector coalition comprised of more than 50 organizations representing nutrition programs, patient advocacy groups, health care providers, health insurers, academics, and professional associations.
CHLPI advocates for legal, regulatory, and policy reforms to improve the health of underserved populations with a focus on the needs of low-income people living with chronic illnesses. Community Servings provides medically tailored, nutritious meals to chronically and critically ill individuals and their families.
The state has received more than $160 million in funding from federal immigration authorities since 2012, mostly in exchange for keeping and transporting ICE detainees in jails run by four Massachusetts sheriff’s departments, a Globe review has found.
The sum, brought into the state’s coffers through controversial contracts with US Immigration and Customs Enforcement, has raised the eyebrows of some advocates and immigration attorneys who oppose the agreements and think there are better alternatives.
The sheriff’s offices, meanwhile, have defended the arrangements, with at least two departments saying their relationship with ICE has made Massachusetts residents safer.
The funding in question stemmed from agreements between ICE and the sheriff’s offices for Plymouth, Bristol, Franklin, and Suffolk counties, according to spreadsheets and invoices obtained through public records requests. Suffolk announced in October that it would end its relationship with ICE so it can provide rehabilitative services to more women who will soon be housed at its South End jail commonly referred to as South Bay.
Matt Cameron, an East Boston-based immigration lawyer, said there was “no good public safety justification” for local sheriff’s departments to house ICE detainees.
“It’s so much money,” he said. “When I see this, I see federal waste.”
Cameron favored alternatives to detention, such as ankle bracelets, as to a way to ensure people show up to court.
“There are so many ways to do this without separating families,” he said.
He added, “It’s very concerning that this kind of taxpayer money is keeping them in there for months and months.”
Ivan Espinoza-Madrigal, executive director of the Boston-based Lawyers for Civil Rights, favored all county and state entities immediately ending agreements with federal immigration authorities.
“It is not aligned with the values and interests of Massachusetts taxpayers,” he said of the funding.
Espinoza-Madrigal acknowledged that there is a benefit to having local residents detained near where they live, close to relatives and attorneys.
“But this interest in keeping detainees is really trumped by a significant state and taxpayer interest in avoiding complicity with the federal government enforcement mechanism,” he said.
He thought detained immigrants who face civil, not criminal, violations should be released using options like bail or required regular check-ins with immigration officials. Like Cameron, he thought ankle bracelets and GPS monitoring were realistic alternatives to detention.
“The idea that these immigrants have to be held in detention facilities is simply not true,” he said. “There are options to detaining them, which are viable right here in Massachusetts.”
Philip L. Torrey, managing attorney for Harvard Immigration and Refugee Clinical Program, said that immigration detention has not always been a part of the country’s immigration enforcement system.
“It’s concerning that in just the last few decades it has become the centerpiece of immigration enforcement system,” said Torrey.
Torrey’s program recently completed a study that found that there was a “potentially flawed accounting system across Massachusetts sheriffs’ offices that fails to fully account for all of the costs associated with immigration detention at their facilities in a consistent and comprehensive manner.”
“There is a concerning lack of transparency, accountability, and oversight in the immigration detention systems in Massachusetts,” read the report.
However, Jonathan Darling, the spokesman for the Bristol sheriff’s office, maintained the costs of holding ICE detainees were not out-distanced by the daily reimbursement rate from the federal agency. He said anyone in custody of the department — an inmate or an ICE detainee, costs the department $94.50 per day. ICE, he said, pays the office $98 per day for holding its detainees. The costs include things like security staff, meals, medical, electricity, and heat, he said.
In Franklin County, Sheriff Christopher Donelan, said his office averages 25 ICE detainees and that his staffing would remain the same whether his office was holding the detainees or not.
“Losing 25 inmates would not result in any layoffs or staffing changes, so this [is] extra money for the Commonwealth,” he said.
Others were less sure.
John Birtwell, a spokesman for the Plymouth sheriff’s office, said in an e-mail, “It would take a Jesuit scholar to debate whether or not Massachusetts taxpayers are benefiting from ICE detentions or bearing an additional burden.”
All reimbursement revenue from contracts between Massachusetts sheriffs’ departments and the federal government is deposited in the state’s general fund, according to the Executive Office for Administration and Finance. And while the state Legislature allocates funding for county sheriffs annually, the Harvard study states that “it is impossible to confidently track which, if any [of the allocations] are related to immigration detention.”
The report also found that the number of ICE detainees incarcerated in Massachusetts facilities has dropped among all sheriff’s office in recent years, with the exception being Plymouth. That office has seen a net increase since 2017, according to the study.
In an e-mail, ICE spokesman John Mohan said the agency does not comment on the details of agreements negotiated with facilities that are contracted to house ICE detainees.
Mohan did say ICE values “the important working relationships we have built and continue to maintain with all of the Sheriff’s Departments we have agreements with in the region.”
“These trusted law enforcement partners and many of those in the communities they serve have repeatedly and publicly supported these relationships with the agency, recognizing the critical role that the housing of our detainees in their facilities plays in keeping their communities safer every day,” he said. “We look forward to continuing these critical relationships.”
In Suffolk, where the sheriff’s office boasts a $120 million budget, the department billed ICE for more than $48 million since 2012 for keeping ICE detainees, renting out administrative space to the federal agency, and “miscellaneous” costs. The department has billed ICE for more than $114 million since 2003.
In Plymouth, the sheriff’s department has billed ICE for more than $50 million since 2012, and more than $109 million since 2003. That includes $8.7 million in billings for fiscal year 2019. That office’s annual budget is $58 million.
Birtwell, a spokesman for the office, said in a statement the agency’s jail, unlike any other in the state, “was designed and built as a mixed use, mixed agency structure” that can house inmates from the county and state, as well as federal detainees.
Plymouth Sheriff Joseph D. McDonald, believes his agency’s relationship with immigration authorities has “helped to protect the residents of Plymouth County,” according to Birtwell.
“He has said his constituents expect him and his department to work cooperatively with other government and public safety agencies,” he said. “That also extends to our mission statement — which is to securely house anyone in our care in a safe and humane manner.”
Birtwell said the office is aware that “some constituents favor discontinuing our relationship with ICE.”
The Bristol sheriff’s office received more than $49 million from 2012 to last October; $7 million for transportation costs, and $42 million for keeping the agency’s detainees. Its annual budget tops $47 million.
In a statement, Darling, a spokesman for the Bristol sheriff’s department, said that office “stands shoulder-to-shoulder with ICE and every other law enforcement organization that works day-in and day-out to keep the public as safe as possible.”
“The public is more safe when law enforcement agencies work together,” he said.
He added, “They have to be held somewhere, so it’s more cost-effective for detainees to be housed closer to home than to be transported to whatever state they’re being sent to.”
Bristol County Sheriff Thomas M. Hodgson is chairing President Trump’s reelection campaign in Massachusetts and has been an outspoken supporter of Trump’s hard-line immigration policies.
In Western Massachusetts, the Franklin sheriff’s office received more than $17 million from the federal agency between 2012 and late October of last year. That figure is just about equal to its $17.2 million annual budget.
Donelan, who has served as Franklin sheriff since 2011, said the contract existed prior to his tenure. He said he maintains the contract because the money goes into the general fund and cancelling it would “spoil our relationship with the Legislature.”
“This contract has existed for well over a decade, it rises above the current politics of this issue,” he said.
Eloy Rojas Mamani, right, gestures toward his wife Etelvina Ramos Mamani, as they speak during a news conference after leaving the 11th US Circuit Court of Appeals, in Miami, Nov. 19, 2019. Credit: Wilfredo Lee/AP Photo
The night before she boarded a plane to the United States last month, Etelvina Ramos Mamani awoke from a terrible dream.
“I saw Marlene,” she said, referring to her 8-year-old daughter. The girl was killed more than a decade ago, on Sept. 20, 2003, by a single bullet through the chest. It had strayed through their bedroom window in their hometown, Warisata, a rural village in Bolivia’s highlands, north of the capital, and pierced the wall behind her.
This dream was difficult for her mother to talk about.
It’s these painful memories that prompted Etelvina and her husband, Eloy Rojas Mamani, to board a plane for Miami the next day. They were on their way to attend a court hearing — the latest chapter in their yearslong quest to seek justice for their daughter’s killing. Their lawyers were asking an appeals court to restore a landmark, $10 million jury verdict against Bolivia’s former president and defense minister over killings that took place during a 2003 period of unrest known as the “October Massacre,” part of Bolivia’s “Gas War.” A lower court judge has overturned last year’s verdict, saying there was insufficient evidence to hold them liable.
But the Mamanis have promised they won’t give up.
Memories of the tragedy still consume them. Etelvina said her daughter was “muy cariñoso,” or affectionate, that she liked to read and was helpful around the house.
The couple, along with seven other Bolivian families, has waged a lengthy legal battle against Bolivia’s former leaders, ex-President Gonzalo Sánchez de Lozada and former defense minister Jose Carlos Sanchez Berzain, who are accused of planning and ordering security forces to use deadly military force against unarmed civilians, including Marlene. In total, security forces killed at least 58 people and injured more than 400, according to court documents — almost all of them from Indigenous communities.
More than 16 years later, tensions between Bolivia’s Indigenous groups and elite ruling class remain unresolved. The country was plunged into turmoil this fall during its presidential elections. Former Bolivian President Evo Morales, who was the country’s first Indigenous leader, was forced to resign and went into exile — first in Mexico, then in Argentina, where he was granted refugee status last week. Conservative interim President Jeanine Añez stepped into the void and shifted foreign and domestic policy to the right, ordering a crackdown on pro-Morales supporters during which at least 33 people have been killed. On Wednesday, Bolivian prosecutors issued an arrest warrant for Morales, accusing him of promoting violence.
Eloy said the traumas of the past are connected to the unrest of the present day.
“It’s the same roots,” he said.
Never could the couple have imagined their daughter’s case would take more than a decade of work.
Etelvina Ramos Mamani and Eloy Rojas Mamani spoke with The World in Boston, after meeting with lawyers from Harvard’s International Human Rights Law Clinic. Credit: Elana Gordon/The World
The long road to justice
The Mamanis’ journey to the Miami courtroom began years ago, in the rural highlands where members of the Indigenous Aymara community live.
“[An] Aymara is a person who lives in the countryside, working in the field,” Eloy told The World.
Both husband and wife were orphans and married by age 20, starting a family of their own. Eloy said he dreamed of getting a degree to teach, but did not have the opportunity. The Aymara community lacked government representation for a very long time, too.
“I am indigenous. Sincerely it bothers me that Indigenous people have not been given any value. That Indigenous people could have been discriminated against. That Indigenous people did not have any rights.”
“I am indigenous,” Eloy said. “Sincerely it bothers me that Indigenous people have not been given any value. That Indigenous people could have been discriminated against. That Indigenous people did not have any rights.”
Then, in 2003, Bolivia was roiled by protests, strikes and roadblocks mounted in response to the government’s economic policies, especially a proposal to export natural gas that the protesters said exploited their natural resources. Then-President Sánchez de Lozada responded by deploying the military to the area where the protests took place, including in Warisata, where Eloy and Etelvina lived.
Eloy said he and others ran into the forest to hide, believing that men were being targeted.
In the end, government forces killed at least 58 throughout Bolivia during the crackdown, according to the plaintiffs’ lawyers in the US case. That included 8-year-old Marlene.
Etelvina said her daughter died in her arms. “It has left me traumatized,” she said.
After the deaths, Etelvina, Eloy and others in their town marched for three days, Eloy said, until they reached the presidential palace in Bolivia’s capital, La Paz, to call for Sánchez de Lozada’s resignation.
“Almost the entire city of La Paz mobilized,” he said. More provinces joined in.
Sánchez de Lozada and Sánchez Berzain were forced to resign and fled to the US, where they still live today. But the Bolivian government waived their immunity, which the US State Department accepted. It paved the way for the Mamanis to sue Sánchez de Lozada and Sánchez Berzain in the US under the Torture Victim Protection Act, a federal statute that allows crime victims to sue for extrajudicial killings that took place in their home countries.
The civil lawsuit charges Sánchez de Lozada and Sánchez Berzain with “extrajudicial killings, crimes against humanity, and wrongful death.”
“If we win, good. If we don’t win, fine. But we have to take the risk,” Eloy told The World.
First filed in 2007, the lawsuit has been long and messy, full of motions to dismiss, appeals and delays.
Closure for the Mamanis appeared within reach last year, when a jury unanimously voted in their favor. A judge overturned the decision. So the Mamanis appealed, bringing them and the former leaders to the 11th circuit court of appeals in Miami, Florida, last month.
Dressed in suits and ties, the Mamanis entered the Miami court on Nov. 19, in traditional Aymara clothing. Etelvina wore a colorful pollera, or skirt.
James Tysse, a pro bono lawyer for the Mamanis, argued before the three-judge panel that the ex-president and defense minister ordered the shooting of the civilians.
“These deaths are the result of essentially widespread killings by soldiers who were ordered to shoot at anything that moves. They were even ordered to shoot at unarmed civilians below the belt.”
“These deaths are the result of essentially widespread killings by soldiers who were ordered to shoot at anything that moves. They were even ordered to shoot at unarmed civilians below the belt,” Tysse told the judges.
Stephen Raber, the defense lawyer, told The World there is “no evidence” his clients could be held responsible under the Torture Victim Protection Act.
“The facts alleged in the original complaint did not meet the test for extrajudicial killing,” he told the judges.
Raber argued the killings happened during a chaotic time in Bolivia, which the president and his defense minister were trying to manage and keep secure.
“Ordering the mobilization of a joint police force in a military operation is not an extrajudicial killing. Authorizing the use of necessary force to re-establish public order is not an extrajudicial killing,” he told the judges.
“It’s just obvious that all of us are going to have to read the record with a fine-toothed comb because you’re in total disagreement on the facts,” Judge Gerald Bard Tjoflat said.
‘We can’t rest. We won’t tire.’
The hearing lasted less than an hour. The parties now await the judges’ ruling.
Eloy and Etelvina now wait in Bolivia, returning to a country that once again is in turmoil.
The Clinic filed the amicus briefs on behalf of a group of law scholars (Ann Bartow, Brian Frye, Elizabeth Townsend Gard, James Gibson, Stacey M. Lantagne, Jessica Silbey, and Rebecca Tushnet), who assert that provision to the public of standards incorporated into law is permissible under the fair use doctrine. Fair use (embodied in Section 107 of the United States Copyright Act) must be understood in the light of the ultimate purpose of copyright, which is to benefit public welfare through the dissemination knowledge and ideas. Providing access to the content of our governing laws is fundamental to a just, democratic society and thus goes to the heart of the public interest that fair use seeks to promote.
Fall 2019 Cyberlaw Clinic students Katie Lin, Ari Sillman, and Elizabeth Strassner wrote this amicus brief with assistance from clinical supervisors Mason Kortz and Christopher Bavitz. The Clinic team also worked closely with Professor Rebecca Tushnet to develop arguments in the brief.
by Esme Caramello, Joel Feldman, and Geraldine Gruvis-Pizarro
Each week, more than 750 tenants across Massachusetts face eviction in the courts of the Commonwealth. While the vast majority of landlords bringing eviction cases have counsel—almost 80% in the state’s Housing Courts last year—fewer than 9% of people faced with losing their homes have a lawyer to represent them. SeeHousing Court Department, Fiscal Year 2019 Statistics (2019). This disparity in access to counsel would create an unjust power imbalance in any legal setting. In the context of eviction cases, with their tight timelines and complicated procedural rules, the advantage that represented landlords enjoy over their unrepresented tenants is even more troubling.
In the summer of 2019, the Supreme Judicial Court took up this systemic inequality in Adjartey v. Central Division of the Housing Court Department, 481 Mass. 830 (2019). In a striking opinion on behalf of a unanimous Court, Chief Justice Gants reached far beyond the individual claims of the parties to describe an onerous summary process system and the barriers that pro se litigants face in trying to navigate it. In its breadth and detail, the opinion illustrates how “the complexity and speed of summary process cases can present formidable challenges to individuals facing eviction, particularly where those individuals are not represented by an attorney.” Id. at 831.
The decision makes a compelling case. Summary process is procedurally complex to begin with, id. at 834, and this complexity is “exacerbated by the web of applicable statutes and rules.” Id. at 837. The Uniform Summary Process Rules are just one part of the procedural maze. Id. at 836-37. The Rules of Civil Procedure also apply, but only sometimes, as do an array of statutes and standing orders. As the Court observed, “[d]eciding when to apply which of these rules—and how to resolve inconsistencies among them—is [a] formidable challenge for an unrepresented litigant seeking to comply with fast-moving deadlines, especially when that litigant is also facing the stress of a potential eviction.” Id. at 837.
Further complicating the task of the pro se litigant, the Court noted, is the speed at which a summary process case proceeds. Id. Once a case is filed, it is scheduled to go to trial on the first court date, just ten days later. Upon receipt of the Summons and Complaint, a tenant must figure out that an “answer” is required, and file and “serve” it, within a week after the case is filed. If she does not properly assert a “jury demand” in that answer, she waives her Constitutional right to trial by a jury of her peers. The tenant also must understand what “discovery requests” are and make sure her landlord receives them within that same short week. Overall, the time from service of process to judgment and execution can be as little as 19 days. Two business days later, a constable can remove the tenant from her home. As the Adjartey Court observed, “[t]he swiftness of this process … leaves little room for error.” Id. at 837.
As noted above, beyond the inherent complexity and speed of summary process, the vast majority of tenants are attempting to figure out the process on their own. In the words of the Court, “summary process cases are complex, fast-moving, and generally litigated by landlords who are represented by attorneys and tenants who are not.” Id. at 834. Because “in most cases, … the landlord has an attorney who understands how to navigate the eviction process and the tenant does not,” the system is not just out of reach for tenants, but also out of balance. Id. at 838. This imbalance presented an injustice the Adjartey Court could not ignore.
In an “Appendix” following the Adjartey decision, the Court attempted to gather, in one place, all the procedural laws governing summary process cases. Doing so took 35 slip opinion pages. While the Adjartey Appendix might be a useful primer on summary process for a lawyer or experienced advocate, it looks different from the perspective of a low-income mother with limited English proficiency and severe anxiety facing eviction. For her, and for most unrepresented tenants, the Appendix primarily highlights what the rest of the Adjartey decision implies: the eviction system is too hard to understand and navigate without the assistance of a lawyer. And where landlords generally have this assistance and tenants do not, the Appendix is an indictment of a system that aspires but fails to offer equal justice to all.
In a study of summary process judgments listed on masscourts.org from 2007-2015 in three out of the then-five divisions of the Housing Court (Boston, Central and Western), the Access to Attorneys Committee of the Access to Justice Commission found that landlords won judgment a shocking 98% of the time. See Shannon Barnes et al., Final Report of the Access to Attorneys Committee of the Massachusetts Access to Justice Commission, 9 (May 2017). With Adjartey, the Supreme Judicial Court has shown us why.
Court Reform as a Necessary Step
Reforming the summary process system is an urgent need. To that end, the Trial Court has recently created a committee that has begun to work on simplifying court forms. Developing plain-language, accessible forms that the typical pro se litigant can understand and use is a necessary first step. But forms alone will not level the playing field in a process that is too complicated and too fast to navigate without counsel.
There are many simple changes that would make summary process more accessible for pro se litigants. At a recent meeting convened by the Trial Court’s summary process reform committee, for example, most tenant lawyers and landlord lawyers agreed that the first court date in an eviction case should not be a trial. Instead, it can be an opportunity for the parties to explore settlement through mediation, and for unrepresented litigants to learn more about the process and seek help from a volunteer lawyer. It also can be a time for tenants to prepare the answers, jury demands, and discovery requests that they may be learning about for the first time when they arrive at court. We are hopeful that the court will soon implement this popular and sensible reform.
A range of other simple reforms are outlined in detail in a December 2017 report that Massachusetts submitted to the Public Welfare Foundation after a yearlong examination of “Justice for All” in the Commonwealth led by a team of judges and practitioners that included Chief Justice Ralph Gants. SeeThe Massachusetts Justice for All Project, Massachusetts Justice for All Strategic Action Plan, 34-56 (Dec. 22, 2017). From rethinking cellphone bans that exclude unsuspecting tenants (and their evidence) from courthouses—a step the Trial Court has recently agreed to take—to promoting flexible scheduling that enables low-wage workers to avoid missing work, the Justice for All report is full of small and big ideas that would make the system fairer. The authors of this article sit on a committee of the Access to Justice Commission tasked with pursuing the report’s recommendations, but a much broader effort is needed for real change to happen.
If Landlords Have Lawyers, Tenants Need Lawyers, Too
In an ideal world, our housing dispute resolution system would be simple enough for people to use on their own, and the systemic power imbalances created by dramatic disparities in representation would be eliminated. But in a system designed for lawyers where only one side has one, access to substantive justice is not and cannot be equal. Tenants need lawyers to make the system work fairly.
Existing fee-shifting statutes should entice private attorneys to represent tenants in many eviction cases, and a few lawyers around the state have built financially successful practices representing tenants, but for reasons the Access to Justice Commission is still studying, fee-shifting statutes are underutilized. “Lawyer for a day” programs are meaningful and certainly help. But the problems Adjartey describes cannot be solved by last-minute limited assistance representation, even with experts doing the work. Too much has transpired by the time the lawyer-for-a-day steps in, when answers and jury trials and discovery have been waived by the unsuspecting tenant and the opportunity to investigate or gather admissible evidence has passed. As a 2012 Boston Bar Association study showed, only vigorous full representation enables tenants to fairly litigate their claims. See Boston Bar Association Task Force on the Civil Right to Counsel, The Importance of Representation in Eviction Cases and Homelessness Prevention (Mar. 2012) (summarizing research by Harvard Professor James Greiner and Harvard College Fellow Cassandra Pattanayak showing dramatic differences in outcomes for tenants receiving full representation by experienced litigators as opposed to advice through lawyer-for-a-day program).
New York City, San Francisco, Newark and Cleveland have all recently implemented a right to counsel for tenants in eviction cases. Massachusetts is poised to follow suit with several bills under consideration on Beacon Hill. The active support of the bar for these bills is crucial to bring balance, and legitimacy, to our summary process system. Adjartey is our call to action.
Esme Caramello is a Clinical Professor of Law at Harvard Law School and the Faculty Director of the Harvard Legal Aid Bureau. She is a Trustee of the Boston Bar Foundation and a member of its Grants Committee, as well as a member of the Massachusetts Access to Justice Commission and co-chair of its Housing Working Group.
Joel Feldman is a shareholder in the law firm of Heisler, Feldman & McCormick, P.C.. He serves on the Executive Committee of the Access to Justice Commission,and co-chairs the Commission’s Housing Working Group.
Geraldine Gruvis-Pizarro has been representing tenants in eviction cases for the past four years and is currently a staff attorney at Volunteer Lawyers Project (VLP) in the housing and family law units. She is also the VLP Chairperson at the statewide Language Access Coaliton. Attorney Gruvis represents VLP at the BBA Real Estate Public Service Committee working alongside private attorneys, the court and the Boston Bar Association to maintain high quality services to the public at the Eastern Division of the Housing Court in Boston.
The Legal Services Center’s Veterans Legal Clinic provides legal representation to veterans and their family members when they cannot afford an attorney. The Clinic serves the legal needs of veterans in cases involving VA benefits, Massachusetts Veterans’ Services Benefits, discharge upgrades, and estate planning matters. Watch the story of how Paul, a Vietnam veteran who was denied veterans benefits for decades, was finally able to access those vital benefits thanks to the Veterans Legal Clinic.
Massachusetts lawmakers want to know: What happens when Medicaid recipients get healthy food as part of their healthcare?
The answer might sound obvious and even tautological—newsflash: healthy eating makes people healthier—but Democratic state senator Julian Cyr and house representative Denise Garlick want details. So this week they introduced a first-of-its-kind bill that would establish a pilot program to give individualized nutrition services—including meals, groceries, or grocery money—to residents enrolled in Medicaid and then measure the impact of doing so on people’s well-being and the state’s bottom line.
“If you look at the amount of dollars that we spend on healthcare in Massachusetts, we spent over $60 billion last year,” Cyr said in a phone interview, referring to a finding in a recent state report on the expenditures through Medicaid, Medicare, and private insurance.
MassHealth, the state- and federally funded Medicaid program that provides health insurance to low-income Massachusetts residents, spent $17 billion on health care in 2018. The program has varying eligibility thresholds for residents, based on factors including age, disability, and family size. A family of four must earn under $34,248 per year to qualify.
Before becoming a legislator, Cyr worked at the state department of public health. Inspired by the local food initiatives taking hold in his district, which includes Cape Cod, Martha’s Vineyard, and Nantucket, he says he wanted to know how centering nutrition in the healthcare system would affect people statewide. He teamed up with Rep. Garlick, who also has a background in nursing and public health, to sponsor the legislation in the house. (Garlick didn’t respond to requests for comment.)
Food as medicine is an age-old idea—some people speculate that Greek physician Hippocrates was a proponent of the approach—that has gained popularity in the American medical system in recent years. Today, plenty of localities fund programs to give food stamp users with specific health needs money to spend at farmers’ markets. A California hospital is piloting a program that places doctors in grocery stores to guide shoppers towards healthier purchases. And the state of California itself is currently experimenting with delivering pre-made meals to people with congestive heart failure.
Plenty of localities fund programs to give food stamp users with specific health needs money to spend at farmers’ markets.
These examples illuminate the wide scope that medically tailored nutrition can encompass. The proposed pilot program in Massachusetts would include all of the following: pre-made meals, pre-selected groceries, and money for nutritious foods. The range speaks to the various and specific needs that patients have. For example, people with relatively severe health issues, such as congestive heart failure, type 2 diabetes, and kidney disease, might receive pre-made meals delivered to their homes, while those with high blood pressure or pre-diabetes might get subsidies to use at the grocery store.
“There are different populations that are in need of different nutrition interventions,” explains Sarah Downer, an associate director and law instructor at Harvard Law School’s health law and policy clinic. She says that pre-made and delivery meals “are really for people who have […] trouble shopping and cooking for themselves—it’s not the right nutrition intervention for everyone.”
“This [pilot program] would look at the efficacy of a suite of those services, the ability to triage individuals and find the correct service for them, link them to it, and then see what the impact is on utilization and costs across the board.”
Pre-made and delivered meals were correlated to a halving of inpatient hospital admissions and a 16 percent reduction in health care costs.
Downer led the research team that recently published a comprehensive report on the potential benefits that food can have on the Massachusetts health care system, which in turn informed the development of this proposed legislation. The report highlighted a range of findings linking nutrition with health. In a 2019 study of over 1,000 participants, for example, pre-made and delivered meals were correlated to a halving of inpatient hospital admissions and a 16 percent reduction in health care costs.
The exact details of the pilot program still need to be hammered out. As it stands, implementation would be guided by a commission of public health officials, medical experts, and representatives of nonprofit health care organizations. By incorporating nutrition into the daily lives of MassHealth recipients, the state—which devoted nearly a quarter of its budget to the program last year—also stands to benefit economically.
As mentioned above, it feels increasingly redundant to spout how healthy eating can benefit health. Massachusetts lawmakers appear to have decided that it’s time to calculate just how valuable that benefit is.
Morriah Bosco testifies on a bill related to foster care reviews at a Statehouse hearing on Oct. 29, 2019. (Shira Schoenberg / The Republican)
Morriah Bosco spent 18 years in the foster care system. She was moved 40 times.
Bosco said the Department of Children and Families wrote on her placement plan that her goal was reunifying with kin — but no one actually looked for a family member to take her in. She was never given a permanent placement or a plan to help her age out of the system.
“I confronted a supervisor and she said ‘What are we supposed to put down? There’s no plan for you,’” Bosco said.
No one, she said, oversaw DCF. While federal law requires every foster care case be reviewed every six months, Bosco said she once went 18 months in a restrictive setting without a review.
Bosco was among the former foster children, parents and advocates who testified at a hearing of the Joint Committee on Children, Families and Persons with Disabilities on Tuesday about the need for an independent office to oversee foster care reviews.
The bill, H.112/S.29, sponsored by Rep. Tricia Farley-Bouvier, D-Pittsfield, Rep. Aaron Vega, D-Holyoke, and Sen. Jo Comerford, D-Northampton, would establish an independent Massachusetts foster care review office. The office would be responsible for regularly reviewing every case in which a child is removed from their home, ensuring the child has a plan for permanency, and collecting information from the reviews to inform DCF policy.
These reviews are mandated by federal law, and today, they are conducted by a special unit within DCF. But advocates for children have long complained that these reviews are inadequate and done in a pro forma way that does not provide sufficient oversight.
Sandy Bravo, a business professor and adoptive mother of two children, said businesses hire outside firms to conduct audits, but that is not the case at DCF. She said an outside review would provide a fresh set of eyes to ensure children are being cared for appropriately.
“The consequence to a child of falling through the cracks is abuse and even in many instances death,” Bravo said.
Child Advocate Maria Mossaides, who is the state’s independent advocate for children in state custody, acknowledged that until two years ago, foster care reviews were not being done according to legal guidelines and were treated by the department “in a more pro forma fashion.”
But Mossaides asked lawmakers to postpone making a decision on the bill to give her office more time to work with DCF on a plan that was developed in fiscal 2018 to improve the system. This includes overhauling the computer system to ensure all parties are notified of reviews, recruiting more independent reviewers, ensuring interpreters are available, allowing families to submit testimony in advance, allowing children over age 14 to participate in reviews by phone, and developing management reports.
According to DCF, the department updated its foster care review policy in 2019 to emphasize permanency planning, clarify the role of DCF workers in preparing parents and allow attorneys to give documents to DCF 10 days before a review. DCF also implemented an automated scheduling system.
“I’m hoping the committee will consider giving DCF and the Office of the Child Advocate … an opportunity to fully implement these changes,” Mossaides said.
But advocates say those changes are not enough. Crisanne Hazen, assistant director of the Child Advocacy Program at Harvard Law School, called the data tracking and operational changes “the bare minimum that need to be made to ensure that our children are safe.”
“This independent office will provide a system of checks and balances, transparency and oversight that will truly show the commitment of this commonwealth to the safety and care of our children,” Hazen said.
Several people with firsthand experience with the foster care system testified why more oversight is necessary. Nelly Medina, who previously spoke to The Republican / MassLive about the challenges of aging out of the foster care system, talked about being separated from her siblings with no contact for a year. She talked about being placed in places where she was bullied as the only student of color in her class. She said a caseworker denied her access to medication that was prescribed to her at age 11 for attention deficit disorder, because there was a history of drug use in her family. As a teenager, she was advised to emancipate herself in order to get an abortion, then miscarried, and soon after, attempted suicide. DCF never offered her any therapy.
“I would attempt to take my life twice more before aging out of the system with nowhere to live,” Medina said.
Northwestern District Attorney David Sullivan, who used to work for an adoption agency that placed adolescents, said cases often linger in the system for too long “with the workload of DCF case workers, schedules of attorneys, and rights of parents taking precedence over children.” Sullivan said DCF workers, concerned with immediate challenges, often do not have the capacity to reflect on a child’s long-term well-being.
Sullivan said DCF, like any agency, has blind spots about its own performance. “When asked about foster care reviews, two retired DCF workers referred to these reviews as ‘a joke,’” Sullivan said in testimony submitted to the committee.
Farley-Bouvier said having an agency that polices itself is not good for children or for the agency, which lacks data on what is working and what is not. She noted that the agency, in reviews, rarely disagrees with itself.
“I’m sorry to say that often times within DCF we take bad situations and we make them worse,” Farley-Bouvier said.
Some states, like Nebraska, already have reviews conducted by an outside agency.
Lisa Owens (City Life/Vida Urbana), Zoe Kronin (Greater Boston Legal Services), Maureen McDonagh (Legal Services Center of Harvard Law School), and Eloise Lawrence (Harvard Legal Aid Bureau) accept the 2019 John G. Brooks Legal Services Award on behalf of their organizations. Photo courtesy of the Boston Bar Association.
By Grace Yuh
In September, two Harvard Law School clinics and their community partner organizations were recognized by the Boston Bar Association (BBA) for their collaborative efforts to fight housing displacement in greater Boston.
“These four organizations represent the very best in collaboration and commitment to finding solutions for Boston’s housing crisis,” said incoming BBA President Christine Netski, managing partner at Sugarman, Rogers, Barshak & Cohen. “Their innovative partnership is an excellent model for others looking to bring lawyers and community organizers together to create positive change.”
The cost of housing in greater Boston has increased significantly over the past 10 years. As more and more properties are becoming increasingly expensive, middle- and low- income individuals and families have fewer options to secure housing.
Eloise Lawrence, a community lawyering Clinical Instructor and Lecturer on Law at HLAB, provided insight into how the evolution of the Boston Housing crisis makes it a persistent legal issue, noting how widespread gentrification and foreclosure in the greater Boston area continues to displace community members.
“The real crisis in the aftermath of the foreclosure crisis was when a lot of speculators and investors came into communities that had been devastated. They took advantage of the fact that the prices of the homes had decreased dramatically and they started buying them up, which set off yet another speculative frenzy.” she said.
Maureen McDonagh, LSC Managing Attorney and Lecturer on Law at the Housing Law Clinic, also elaborated on why this issue is more relevant than ever to the legal community.
“Over the years we’ve seen cuts to legal services. That means there are even fewer attorneys representing folks in housing courts.” said McDonagh. “For unrepresented people, finding representation is virtually impossible. To find an apartment that is affordable, safe, clean is near impossible. People who are being evicted are finding themselves more and more homeless and this includes families. That’s why I think the BBA has concentrated more on [this issue].”
Lawrence noted that the collaborative nature between the four organizations developed in part through the work of the late David Grossman, Clinical Professor, who worked at LSC before becoming the Faculty Director at HLAB. Grossman brought students from LSC and HLAB into the anti-foreclosure movement that GBLS and City Life/Vida Urbana were already participating in. Since then, the partnership between all four organizations has expanded and grown. A hallmark of the partnership between these four organizations, the Sword and Shield method relies on the concerted and joint effort of local and legal communities; and focuses on empowering and encouraging individuals to stand up for their rights.
“The Shield is legal defense and the Sword is public protest and public pressure.” explained Steve Meacham, Organizing Coordinator at City Life/Vida Urbana. “There are procedures of the law that we can take advantage of and … legal proceedings allow the public pressure to then really work.”
City Life/Vida Urbana, whose primary mission is fighting against forced displacement, represents the “sword” through work such as organizing tenant associations and doing eviction blockades. HLS students and attorneys from LSC and GBLS complete the “shield” of the Sword and Shield method by providing legal services and advice. This can range from partial to full representation in court, with the City Life/Vida Urbana meetings in both Jamaica Plain and East Boston providing a space in which law students and attorneys can meet with individuals or client unions looking for legal aid. Additionally, GBLS, LSC, and HLAB participate in the “Lawyer for the Day” program, in conjunction with the BBA and Volunteer Lawyers Project.
“We go to housing court to help people who are being evicted that day, who don’t have a lawyer. We pick up cases right there.” said McDonagh on the program, which has assisted more than 18,000 individuals since 1999.
Outside of the direct services that the four organizations provide, they also convene for monthly Sword and Shield meetings that provide a space for lawyers and organizers to discuss and reflect on issues regarding partnership and individual work. Lawrence explained how these meetings are a good opportunity for organizers and lawyers to connect beyond shared clients.
“I think there’s huge synergy that happens when organizers and lawyers work together. I view it as part of my job to teach law students, especially those that have never worked with organizers before, to understand where the role of lawyer and organizer overlap and where they are distinct. I think that [to be] a good lawyer or an organizer, you need to be an empathetic human, you need to listen and learn. It sounds simple but it often gets overlooked in legal education.” she said.
Additionally, Meacham emphasized the strengths of community lawyering in a movement like the anti-foreclosure movement, where it is important to empower the collective of those in need of help.
“It’s been a privilege to work with all of them.” Meacham said, “In addition to being on the right side of cases about tenants, they are very skilled community lawyers, which is why they’re here taking short consultations. They understand that they’re representing collectively the movement … in terms of their practice outside of the client-attorney relationship, they’re practicing community lawyering so they’re looking at cases that will help a movement.” he said.
McDonagh also emphasized the nature of the collaboration between the four organizations and their relationship with the greater Boston community. “We are honored to be recognized for our efforts but the people who are the real heroes are the ordinary individuals standing up for their rights.” she said.
GBLS Executive Director Jacquelynne J. Bowman says receiving the Brooks Legal Services Award is a wonderful recognition of what impactful, collaborative advocacy can really look like.
“Greater Boston Legal Services is greatly honored to have been chosen by the Boston Bar Association as a co-recipient of the 2019 John G. Brooks Legal Services Award”, she said. “This is a testament to the impactful advocacy efforts of our Housing Unit advocates and partners at the Harvard Legal Assistance Bureau, WilmerHale Legal Services Center, and City Life/Vida Urbana to help low-income families avoid or delay their displacement from increasingly unaffordable neighborhoods.”
Lawrence echoed this sentiment, noting the implications for how the legal community might best approach large-scale socio-economic issues in the future.
“It’s a recognition … that effective advocacy happens when people work together, especially when lawyers and non-lawyers work together.” Lawrence said. “When you’re dealing with complex problems like lack of affordable housing and the displacement of people from their homes, lawyers are never going to do this alone. The recognition from the legal community, which the BBA [represents], shows a more complex understanding of how problems are going to be addressed and that’s wonderful.”
The Harvard Law School Food Law and Policy Clinic (FLPC) released a new report today identifying policy approaches to increase nutrition competency of U.S-trained physicians. Doctoring Our Diets: Policy Tools to Include Nutrition in U.S. Medical Training highlights the current lack of education on diet-related diseases and nutrition that doctors receive over the course of their medical careers. The report illustrates the impact of this knowledge-gap on healthcare costs and patient health, and provides a number of recommendations for federal, state, and non-governmental policymakers to tackle this issue.
Diet is the most significant risk factor for disability and premature death in the United States, and diet-related diseases, such as heart disease, cancer, stroke, and diabetes affect an unprecedented number of Americans. Patients turn to doctors for advice on how to avoid or mitigate these and other health risks arising from poor diet and nutrition. Yet, unbeknownst to patients, many doctors are no more equipped to provide this advice than patients themselves: an average medical student spends less than one percent of total classroom hours learning about food and nutrition, and seventy-three percent of physicians reported that they received no or minimal instruction on nutrition during their medical training. This gap in medical education not only represents a violation of the public trust but a missed opportunity to invest in better population health.
To bridge this divide, Doctoring Our Diet calls for relevant policymakers to take action, recommending specific policy solutions applicable at each stage of medical education. For example, policymakers can condition non-grant funding on the inclusion of nutrition education in medical school programs and residency programs, offer performance-based incentives to medical schools and residency programs that provide a baseline amount of nutrition education, and amend accreditation standards to require baseline competency in nutrition. For each recommendation, the report features a brief feasibility analysis, addressing the benefits and potential challenges associated with implementation.
As one example of the types of policies recommended in Doctoring Our Diet, the report shines a special spotlight on the government’s failure to use existing Medicare funding of GME programs to leverage nutrition education for doctors. Medicare is the single largest contributor of graduate medical education (GME) in the United States, providing $16 billion in 2015. At the same time, Medicare spending accounts for nearly 15 percent of all federal spending. As the prevalence of preventable, but costly, diet-related diseases continues to rise, so too will this percentage: over the next 10 years, Medicare spending is expected to increase from $630 billion to a projected $1.3 trillion—or more than 18% of the federal budget. Doctoring Our Diet explains that requiring Medicare-funded GME programs to educate physicians on nutrition is a logical and necessary approach to mitigating diet-related diseases and saving healthcare costs in the long-term.
This report is a product of FLPC’s ongoing involvement with the Nutrition Education Working Group (NEWG), a group of leaders in nutrition science, education and policy from FLPC, Harvard T.H. Chan School of Public Health, Harvard Medical School, and the Gaples Institute for Integrative Cardiology. FLPC has collaborated with NEWG to raise awareness about the lack of nutrition education provided in medical training, presenting the issue to policymakers, writing comments to the Accreditation Council for Graduate Medical Education (ACGME), and working with various medical boards to add nutrition-focused questions to exams. This initiative represents the latest effort in FLPC’s ongoing commitment to policy development at the intersection of food and health.
TT and Corinthian Borrowers Continue to Fight for Relief as the Department of Education Skirts the Law Every Step of the Way
At the end of last week, there was a great deal of news from the U.S. Department of Education — reinforcing that it skirts the law and epitomizes corruption — and much of it flew under the radar.
Automatic Closed School Discharge for 7,000 ITT Borrowers
Betsy DeVos announced that the Department finally began to process automatic closed school discharges for certain borrowers who were cheated by ITT Tech and were enrolled when the company shut down. The Department estimated it would cancel $95 million in loans to ITT students.
The announcement followed demands from elected officials like Senator Dick Durbin, Senator Elizabeth Warren and other senate democrats for the Department to follow the law and process these discharges.
The Department has fought against discharging bogus student loans from ITT Tech for years. Ultimately, Education Secretary Betsy DeVos and the Department were mandated to process these automatic closed school discharges after a successful lawsuit brought by students (Bauer v. DeVos) ended the illegal delay of the 2016 borrower defense rule, and elected officials like Senator Dick Durbin demanded it.
While this is good news for these select students, many more are still waiting for justice. And the Department of Education continues to go out of its way to prevent them from getting it.
Approximately 45,000 students were attending ITT Tech when it closed in September 2016, and were left with massive debt and no diploma. Approximately 16,000 ITT students have already individually applied for and been granted closed school discharges. The Department’s announcement covers about 7,000 additional borrowers.
By the end of 2018, more than 19,000 former ITT students had applied for borrower defense, and because of the Department’s inaction, their bogus debts are still hanging over their heads. Secretary DeVos needs to follow the law and cancel the debts of all ITT students once and for all
Just three weeks ago, Secretary DeVos published a new borrower defense rulegutting protections for student borrowers and eliminating the automatic closed school discharge provision. This rule would leave students without this safety net if their school abruptly closes.
Illegal Collection on more than 16,000 Corinthian Borrowers
At the same time, Secretary DeVos admitted in a court filing that the Department of Education continued to collect from thousands of former Corinthian Colleges students in direct violation of a federal court order.
According to new numbers revealed by the filing, thousands of students were hurt by DeVos’ illegal actions.
The filing was made in a class action lawsuit by Corinthian Colleges students represented by the Project and HERA, Calvillo Manriquez v. DeVos.
Last year in this case, the federal court ordered Secretary DeVos to stop collecting the loans of thousands of students who were defrauded by Corinthian Colleges. Unfortunately, that didn’t happen.
Instead, the Department demanded incorrect loan payment from 16,034 Of those students, 3,289 borrowers made one or more loan payments because of these demands, which they were not actually supposed to pay. The Department has harmed the credit of 847 non-defaulted borrowers. The Department subjected 1,808 borrowers to involuntary debt collection by garnishing their wages or taking their tax refunds or benefits.
This is part of a pattern by Betsy DeVos and the Department of Education. They callously strip away basic student protections and illegally collect on student loans, all while blaming the courts, blaming servicers, and blaming the students themselves. The court will address these revelations by the Department at a status hearing on October 7.
Click here for the Project’s statement on this news.
As we welcome students back for the start of a new school year, many of us are embarking on or continuing the work of creating trauma-sensitive, safe and supportive learning environments for all students.
We recently completed this reportfrom eight “Listening and Learning Sessions” with 73 secondary students in urban public schools. We asked students What do you need in order to do well in school?What could your school do differently to help you do well? and How should your schools be assessed? We hope you will find it as eye opening as we did, and draw inspiration from it for connecting with students throughout this school year.
We presented this report to the MA Safe and Supportive Schools Commission so that student voices can inform the Commission’s annual recommendations to the legislature. We hope it can foster an increased student voice in education reform.
The importance of safety, connection and belonging are increasingly acknowledged as important foundations for academic and social emotional success at school. Yet we rarely ask students themselves what their experience of school is, what works and doesn’t work for them, or what schools might do differently to support their learning and growth.
Below we share a few samples of thoughts shared by students in the listening sessions. To read the full report including more from the students, please click here.
What students need in order to do well: relationships with teachers
“When [teachers are] really energetic, like my English teacher for example. She’s the happiest person I know. It’s like I love it because if I’m having a bad day, it’s like her energy just comes and picks me up. It’s just like, ‘Oh,’ because I love English. That’s my favorite subject, favorite class, and favorite teacher.”
Supports students find helpful:
“Imagine I take a test and I fail the test. Then we move on, but the grade that I got on the test, it shows me that I don’t know that topic, but now we move on. It starts a snowball effect. If I just keep failing or if whatever I’m learning is based on what was on that test, then I won’t succeed anymore. I feel like kids that didn’t do as well on that test should get it all and the teacher works with them so they can catch up and not have a shaky base to learning.”
How students want schools to be assessed:
“I think having a Social Grade for the school would help. By that I mean looking at the different factors that play into the social atmosphere of the school, whether that’s…teacher-student ratios, the amount of support that is offered students, whether that means counselors, specific types of classes and other things like that. [So for a parent asking] ‘where should I send my student? This school has really high test scores…and ha[s] high graduation rates, but they don’t really support students or they historically have not supported students who have mental health issues…oh, I probably don’t want to send my child there because I know that this is something that they struggle with or they are dealing with now and the school probably wouldn’t be a good fit for them outside of academics.”
TLPI is grateful to the students who shared their expertise by participating in the listening sessions. We hope this report informs and advances schools’ efforts to better address the full range of students’ needs.
A group of young people are fighting to sue the U.S. government in an ongoing case about climate change, which has recently returned to the Ninth Circuit Court of Appeals.
Juliana v. UnitedStates was filed in 2015 by 21 children and young adults who argue that their basic constitutional rights to life, liberty, and the pursuit of happiness are being violated by the government’s inaction in the face of climate change and subsidizing of fossil fuels. Their direct constitutional argument is that they have a right to a stable climate system. In addition, they claim that the public trust doctrine, which gives the government the responsibility to hold resources such as land, water, and fisheries in trust for its citizens, has been violated. The plaintiffs of Juliana argue that as a trustee of the atmosphere, the government has failed to take measures protecting it, such as limiting fossil fuel use and cutting greenhouse gas emissions, despite having explicit knowledge that combustion of fossil fuels adds carbon dioxide to the atmosphere, harmfully accelerating climate change.
Numerous people have signed on to plaintiff-side amicus briefs filed by international lawyers, members of Congress, and leading public health experts alike. Harvard Law School’s Emmett Environmental Law and Policy Clinic is one such supporter of the case; the clinic filed its own amicus brief in March, authored by Clinic Director Wendy Jacobs, Deputy Director Shaun Goho, and a clinical student, Grant Glovin, ’20. At the Environmental Law and Policy Clinic, Jacobs and Goho supervise students working on litigation and other projects that address a variety of environmental issues, including climate change, renewable energy, and water pollution. In the amicus brief, the authors from the clinic write, “This generation is suffering – and will continue to suffer as they age – harms different from those of prior generations.”
In their argument, Juliana plaintiffs cite public health consequences caused by climate change, such as asthma and allergies from exposure to wildfire and smoke, worsening infectious disease exposures, and food and water insecurity. “There’s a really robust body of scientific literature that supports each of these different kinds of health impacts that are already being observed and are projected to get worse and worse,” Goho told Inside Climate News.
In addition to these immediate bodily harms, experts also point to the future threats facing the next generation, such as the health risks and stress that go along with hurricanes, wildfires, and rising sea levels threatening their homes. “The Juliana generation is going to feel and suffer from those impacts in a way that’s really different and more extreme than what any previous generation has felt,” the amicus brief states.
The federal government has continuously fought for the case to be dismissed, arguing that no single judge can require the government to stop global climate change. Government lawyers point towards the young people’s argument as a “generalized” grievance and suggest that their injuries do not directly correspond to government actions.
On June 4, 2019, the case returned to the 9th U.S. Circuit Court of Appeals, where three judges held an hour-long hearing to listen to arguments from both sides. Judges raised questions for both parties, suggesting that the plaintiffs’ approach was too broad while the government’s arguments to shut down the case were too narrow.
The decision the Ninth Circuit Court makes will determine whether the Juliana case will be allowed to proceed to trial in district court.
From left to right: Breanna Williams JD ‘20, Mariah Lewis M.Ed. ‘19, Clinical Professor Michael Gregory, Pantea Fead JD’ 20, and Yurui Chen JD ‘20.
“Investing in a good education is something anyone can get behind,” said Breanna Williams, a 2L at Harvard Law School as she prepared her pitch to the next legislator. She was one of seven students in the Education Law and Policy Clinic/Trauma and Learning Policy Initiative who spent half of her spring semester under the gold dome of the Massachusetts Statehouse, advocating with legislators to support funding for implementation of Massachusetts’ Safe and Supportive Schools Framework statute. At the end of April, the weekly office visits and calls wind down, and only half of the group remained. Huddled in the café, Breanna, Mariah Lewis M.Ed. ’19, Pantea Faed JD ’20, and Yurui Chen JD ’20, along with Clinical Professor Michael Gregory recaped on the progress they’ve made and focus on next steps. (Other students participating in the clinic this past spring were Sarah Lu JD ’19, Sarah Mooney M.Ed. ’19, and Robyn Parkinson JD ’20.)
There is increasing acknowledgement that a significant number of children and youth in the United States undergo adversity at a young age. These experiences can have serious health and social consequences, some that can impede children from being successful in school. One study reported that two-thirds of children recounted experiencing at least one traumatic event before the age of 16. Homelessness, community violence, physical and sexual abuse, and refugee experiences are all stressful events that challenge academic, emotional and social well-being. The Safe and Supportive Schools Framework helps participating schools address these needs, through adopting trauma-sensitive practices to help all students learn and thrive in school.
In 2014, then Governor and HLS alumnus Deval Patrick signed the omnibus Act Relative to the Reduction of Gun Violence, which included the Safe and Supportive Schools law thanks to the leadership of House Speaker Robert A. De Leo. The law aims to enable schools to develop safe, inclusive, and healthy learning environments by supporting school districts to implement the Safe and Supportive Schools Framework. The law provides for trainings, technical assistance, a grant program for schools that serve as models, and on-going recommendations from a commission of experts. The clinic, which is part of a partnership between HLS and the nonprofit Massachusetts Advocates for Children, played a leading role in advocating for the law. Every year since, the clinic has advocated at the legislature to ensure that implementation of the law continues to be funded in the state budget.
Students spent the first half of the spring semester conducting thorough research on state senators and representatives before approaching them, identifying who their staff members were and the policy issues each legislator cared about. The students scouted the statehouse for each member’s office. They positioned themselves at their door with a packet of information about the bill and an elevator pitch, knowing that they had limited time to make an impression. Meetings with a legislator or their staff can be hard to secure, so most are receptive to an impromptu visit. “Most legislators are used to people showing up and being available to their constituents,” Faed remarked. Faed was able to schedule a meeting to sit down with a legislator after showing up at his door and giving her spiel. The group hasn’t encountered any partisan friction on the issue, but they do know that legislators are more likely to support the Safe and Supportive Schools line item if schools in their legislative district receive funding from the grant program. In FY19, there were 93 schools in 38 school districts that benefitted from the funding.
Students learned quickly that they had to be able to connect with legislators and their aides on the substance of the issue. They had to explain in common terms why safe and supportive school cultures are so important. Fortunately, they had spent several weeks in the beginning of the semester conducting focus groups with urban middle and high school students across Massachusetts, asking them about their educational experiences and what their schools could be doing to better support them.
“Hearing the voices of high school students first hand makes all the difference,” said Susan Cole, Director of the clinic and co-teacher with Gregory. Almost uniformly the high school students said that the most important aspects of their education were having strong, caring relationships with their teachers and feeling respected and understood by their teachers and administrators. This is at the core of what the Safe and Supportive Schools law is designed to support. “It is so much more compelling to explain the stakes of this law to legislators when you have the students’ stories fresh in your mind,” said Cole. In addition to informing their advocacy at the state house, the focus groups were also the basis of a formal report that the clinic submitted to the statewide Safe and Supportive Schools Commission in March.
From left to right: Pantea Fead JD’ 20, Breanna Williams JD ‘20, Yurui Chen JD ’20, Mariah Lewis M.Ed. ‘19.
In its budget recommendation, released in early April, the Massachusetts House proposed $400,000 in funding for the line item, no small success. But Rep. Ruth Balser, lead sponsor of the law and line item in the House, proposed an amendment seeking to raise the amount to $500,000 for FY 2020. That was also the amount Governor Charlie Baker recommended in his 2020 budget. In just one month, students were able to gather 78 representatives to co-sponsor the amendment.
The students’ work has the tangible achievements of securing funding for the legislation and building lasting relationships. 34 newlegislators were elected this past November, giving students the opportunity to foster new partnerships and gain support that could have dividends later. “New legislators can become our greatest advocates down the line,” said Gregory. Some seasoned legislators have repeatedly backed the line item, such as Senator Sal DiDomenico, who is Assistant Majority Leader and lead sponsor of the law and line item in the Senate, and House Minority Leader Bradley H. Jones. Both are advocates of improving educational opportunities for children in Massachusetts.
When asked about what makes legislators sign on their support, Lewis said, “They buy into the theory of change. They like the idea that schools are doing things to improve their culture, and [this bill] gives them the autonomy and the tools to do it themselves.”
By the end of the semester, the students had contacted all 160 offices in the House of Representatives and all 40 offices in the Senate. Their dogged effort to gain buy-in at the statehouse helps ensure this initiative continues and provides a model for fostering a healthy school atmosphere.
“You can’t mandate school culture,” Gregory said, “but you can set the conditions to improve it. Schools can customize the work to meet the needs of their own communities. It’s an approach that appeals to a lot of people.”
While the House of Representatives did not adopt Rep. Balser’s amendment this year, the students’ advocacy paid off in the long run. Upping the amount proposed by the House, the Senate included just over $508,000 in funding for Safe and Supportive Schools in its budget – an increase from last year. A conference committee made up of members from both houses met throughout June and most of July to reconcile all of the discrepancies between their respective budgets. The committee adopted the higher amount recommended by the Senate, and Gov. Baker signed it into law at the end of July.
In 2009, Imani*, a citizen of Guinea, West Africa, fled the country with the youngest of her four children. From 2009 to 2011, the legal team at the Harvard Immigration and Refugee Clinical Program (HIRC), worked extensively on Imani’s asylum case, which was granted in 2011. Now, eight years after being granted asylum, Imani has rebuilt her life and career in the United States. As a U.S citizen, she remains active in her community by working at Greater Boston Legal Services as an interpreter for Fulani-speaking migrants looking for safety in the United States. Imani says that she misses Guinea: “I love my country, I love my people, it is just still not safe there.” However, she knows that her family is safe in the United States and has made Boston her new home.
Imani fled Guinea out of fear of political persecution because of her participation in an opposition party. Imani’s political opinions and her activism for the equality of women, the right to education, and the need for fundamental political and social change in Guinea made her a target. After her involvement in a rally against Guinea’s military government, which resulted in the beating and massacre of peaceful protesters, Imani received threatening phone calls. “I was one of the victims, I got beaten, I got my car broken, and after that, I was threatened through messages like ‘we are going to kill you and we are looking for you,’” she recalled. Imani knew she could not stay in Guinea without risking her family’s safety, and so she fled to the United States to look for security.
When Imani arrived in 2009, she went to Boston Medical Center for health-related issues, and once there, the center’s social worker put her in touch with Boston Center for Health and Human Rights (BCRHHR), which then connected her with HIRC. The clinical team—including Sabi Ardalan, Assistant Clinical Professor of Law and Assistant Clinic Director, along with clinical students Gabriela Vega (JD’12) and Kendra Sena (JD’12)—worked quickly on Imani’s asylum case to meet the one-year filing deadline. In 2011, Imani received good news – she had been approved for asylum. “I was so so happy! I was taking English classes when Sabi gave me a call that I was approved. There was a little party in the class,” she remembers. After her asylum approval, Imani was referred to Catholic Charities, where they worked on her family reunification and green card applications. In 2012, Imani was finally able to reunite with her children.
Imani describes the legal team at HIRC as a family. Reflecting on the experience, Imani asserted, “We appreciate everything the clinic did for us, they helped us grow, and they follow up, it’s not like, okay, you got your papers bye-bye… If I get stuck down the road, I can call them and get help.” To this day, Imani stays in contact with HIRC, and she made a great impression on the clinical students who worked on her case. Kendra says, “I was incredibly honored to work with Imani to prepare her asylum application. She taught me so much about being an advocate for one’s self, family, and community, and I am humbled to have played a small part in her story.” Gabriela saw her own mother in Imani. “Like Imani, my own mother immigrated to the United States with a very young child (me), and as I grew older, I saw her more and more as my own personal hero. In Imani, I felt the presence of another hero who, like my mother, endured and overcame so much, with the weight of the world on her shoulders, to pave the path of a better life for the next generation. Imani was incredibly respectful, professional, and an absolute pleasure to work with. I was in awe of her strength and bravery every time we met to discuss her story.”
*Client’s name has been changed to respect her privacy
“I suffered persecution because of my strong beliefs that the government should guarantee the basic rights of its people,” said Elvia*. The 57-year-old mother of two from Yoro, Honduras was persecuted by corrupt political actors in Honduras for her activism. Elvia never thought about living in the U.S. until she found her house burned to the ground and the death threats she received became increasingly more acute.
Elvia had aspirations to become a teacher. At 18-years-old, Elvia, with hair as dark as shoe polish, honey-colored skin and piercing eyes took an exam that would determine whether she would receive one of five available jobs in the teaching market. She scored much lower than she anticipated, despite studying for months. She noticed that the highest score winners were all friends or family members of a powerful congressman in Honduras, or people who were politically connected with the education department. Elvia began asking questions and demanded for her exam to be rescored. “People told me not to go against him,” she said, her eyes full of defiance and patience. She thought the exam process was rigged. Hearing of her intentions, the Congressman visited Elvia’s house to warn her against meddling in the results. His threat didn’t stop her. “I kept going and appealed the decision.” She won her appeal and her corrected score placed her in second. “Fighting for myself made me want to fight for the rights of others,” she said cheerfully. Word of her success spread around the community, and soon she was asked to help advocate for others. That was her first encounter with the Congressman who later became an even more powerful national leader. But it wasn’t her last.
Elvia became a prominent community organizer and an activist for women, teachers, workers, and children in Honduras. Her work with anti-domestic violence advocates led to confrontations with abusers, who opposed advocacy efforts for the humane treatment of women. Through this work she crossed paths again with the Congressman and believed him to be involved in the detention, rape, and disappearance of a woman. She would tell him, “I know what you did,” when they saw each other in town. Soon after, she received threatening phone calls and she believes her house was purposely burned down by allies of the Congressman. “My repeated confrontations with the Congressman and others led to serious consequences such as threats against my life and lives of my loved ones, my father being kidnapped, and being detained unlawfully,” Elvia remarked.
Elvia knew she couldn’t stay in Honduras without risking her family’s safety. In 2000, she and her family fled to Austin, Texas where she and her husband found decent jobs. Moving to the U.S. was challenging, she said. “English was hard to learn. We worked like mules.” Elvia and her husband needed the money, not only to survive, but also to rebuild their house in Honduras. “I always hoped to return to Honduras,” Elvia said. “I fought hard to make Honduras a better and safer place for myself, for my children and for all future citizens and I always maintained the hope that I could resume that work.”
After seeking help from friends, Elvia was put in touch with Greater Boston Legal Services, which connected her with the Harvard Immigration and Refugee Clinic (HIRC). “Thank God for institutions like this clinic that restore the value of the people and their dignity. After meeting with community groups and now that I’m involved in the clinic, I feel valued as a human being.”
Elvia felt well represented by the students and the clinical staff. Reflecting on the experience, she exclaimed, “The clinic’s presentation was great!” It took two and a half years for her family’s asylum application to be approved. Elvia and her husband now beam with pride, elated to have U.S. citizenship status. “For me [and] my family, Harvard [Law School] is a blessing. This work is so important and powerful. I feel blessed. One day, one of my grandchildren will study at Harvard.”
Elvia and her family are happy with their life in the Greater Boston area, but she never forgets where she came from. “Even from the United States, I cannot sit by while the country deteriorates,” she stated. Elvia remains active in community-based organizations advocating on behalf of teachers and women. She even helped establish the new political party LIBRE (libterdad y refundacion – liberty and re-foundation) in Honduras. She is happy now that her family can live safely and she wishes the same could be true for others in Honduras. “You can’t choose where you were born, but you can choose where you live.”
*Name changed to protect the client’s confidentiality.
Raymond* lived as a legal permanent resident in Arizona for nearly 30 years before being apprehended by local law enforcement and charged with possession of narcotics with the intent to sell. Not long after serving time in prison for his offense, the father of three spent seven months in La Palma Detention Center.
This was Raymond’s first criminal offense, but one that almost got him deported. Immigrations and Customs Enforcement (ICE) argued that his prior criminal conviction was one of the disqualifying crimes that makes someone with legal status in the U.S. deportable. Although Raymond had paid his debt to society in prison, the government said his offense prompted a second and grave consequence: leaving the United States for good. The Crimmigration Clinic at Harvard Law School, which represented Raymond, challenged the government’s claim and eventually proved them wrong. An Arizona immigration judge ruled in Raymond’s favor, but ICE appealed the decision, arguing that Raymond’s conviction triggered a provision under federal immigration law that required his removal.
Criminalizing immigration status has been increasing over the past twenty-five years, according to Phil Torrey, the managing director of the Crimmigration Clinic at Harvard Law School. Crimmigration – the intersection of criminal law and immigration law – became a burgeoning field of law in the late 1980s and ‘90s when Congress passed a number of measures responding to concerns of unauthorized immigration. These policies made many more types of crimes by noncitizens deportable, emphasized border enforcement and increased the use of detention facilities.
Numerous studies have shown that immigrants are less likely to commit crime than native born U.S. citizens, and the numbers are even lower for immigrants like Raymond that are lawfully present. A 2018 report from the Department of Justice (DOJ) stated that almost 7 percent of the “known or suspected aliens” in DOJ custody were legally present and undergoing removal proceedings. According to a 2018 U.S. Sentencing Commission report, immigration offenses and minor drug related offenses are the most common crimes of noncitizens.
An expert in crimmigration law for over ten years, Torrey says, “there has been an exponential increase in prosecution of certain federal crimes and the use of criminal enforcement mechanisms in the immigration context.” Immigration infractions are one of the most federally prosecuted crimes, including drugs, firearms, and fraud according to a the Sentencing Commission’s recent report. Just over 200 private immigration detention facilities currently exist across the country housing close to 400,000 individuals. The Pew Research Institute found that “immigrants with past criminal convictions accounted for 74 percent” of all U.S. Immigration and Customs Enforcement (ICE) arrests in 2017. Many of these offenses, however, are minor and can be classified as non-violentdrug offenses or simply re-entering the U.S. without authorization.
“Deportation is an extreme consequence for many of the charges,” Torrey said, “but efforts to decouple criminal and immigration law from the federal government are unlikely to happen during this administration.” Torrey noted that many local and state jurisdictions like Philadelphia, Chicago, and Boston have established protections that block local resources from aiding civil immigration enforcement efforts ICE.
2020 Democratic presidential candidates have voiced ideas for decriminalizing immigration if elected. Presidential hopefuls Julian Castro and Elizabeth Warren supported repealing Section 1325 of the U.S. Code which makes entry into the U.S. a criminal offense. Torrey thinks that “decriminalizing unlawful entry and re-entry would be a tremendous first step in ensuring an immigration system that remains civil rather than criminal and protects individuals with bona fide aslum claims.” Castro and former Vice President Joe Biden say that immigration enforcement should focus on individuals with “serious” or “major” criminal convictions – similar to what both President Obama and President Trump claimed to prioritize – but it is unclear whether there would be mitigating provisions for individuals with legal status like Raymond. It’s also unclear what would be considered a “serious” or “major” conviction.
While Raymond was detained, Immigration and Customs Enforcement (ICE) officials confiscated his green card, which isn’t supposed to happen, according to Torrey. Raymond’s time in the detention center was “very stressful.” “I suffered a lot when I was inside there being away from my family. They give you bad food, there is no attention, and they treat you very bad. I was hopeless.” He also said the facility was overcrowded, estimating that, “there were maybe 3,000 people in the center while I was there.”
When ICE appealed the immigration judge’s decision, the case moved up to the Board of Immigration Appeals, (BIA) the administrative appellate body responsible for immigration-appellate appeals. An HLS alumnus who monitors the BIA docket at the Catholic Legal Immigration Network, Inc. (CLINIC), a non-profit organization that provides legal services for immigrants, referred the case to the Crimmigration Clinic. Torrey and two Harvard Law School students, Joy Lee, J.D. ’19 and Harry Larson, J.D ’19 represented Raymond during the appeals process. Torrey and the students were based in Cambridge – some 2,500 miles away from Raymond who was detained in Arizona. Their only interaction was through the phone and mail. “I had a lot of confidence and patience. I trusted them,” Raymond said when reflecting on his experience with the students.
The clinical students argued that in Raymond’s case, the federal drug schedule – categories of drugs classified by the drug’s safety, the potential for abuse or dependency, and acceptable medical use – did not match Arizona’s drug schedule, and therefore did not qualify as the type of crime that should make Raymond deportable. The team was victorious in upholding the immigration judge’s ruling, allowing Raymond to stay in the country he knows as home. “The clinic helped me a lot. Thank God.”
Raymond was successfully released from the detention center in December 2018. In the time since, Raymond resumed his job in maintenance and construction and found an apartment for himself. “I have a different perspective on life,” he said and he was happy to be working again. He was released around the start of the government shutdown, which made it an administrative headache to try and retrieve his green card. Six months later, he’s still missing his green card, which means he can’t travel to Mexico to see his family. “It’s been 4 years since I’ve last seen my kids. What I need is help, for them to give me back my green card. If I don’t get it back, I don’t know what I’m going to do.”
Last week, Representatives Chellie Pingree (D-ME) and Dan Newhouse (R-WA) introduced the Food Date Labeling Act of 2019 (H.R. 3981), federal legislation to standardize date labels on food products. The Harvard Food Law and Policy Clinic (FLPC) enthusiastically supports this legislation, which will reduce consumer confusion and food waste.
40% of food in the U.S. goes to waste each year, and confusion over date labels is a significant contributor to food waste. Currently, date labels are not regulated at the federal level. In the absence of federal legislation, manufacturers use a dizzying variety of date labeling phrases, most of which are meant to communicate when food will be at its peak quantity. However, many consumers misinterpret these date labels to be indicators of food safety, leading them to throw out food prematurely. Moreover, states have developed their own date labeling requirements, resulting in a patchwork system of inconsistent state laws.
FLPC has championed federal legislation to standardize date labels and alleviate this confusion since 2013 when we released our report, The Dating Game, in partnership with the Natural Resources Defense Council (NRDC). According to ReFED, standardizing date labels is the most cost effective solution to food waste.
Legislation to standardize date labels was first introduced in 2016, when Representative Pingree and Senator Richard Blumenthal introduced the Food Date Labeling Act of 2016. Date label standardization was also proposed in the Food Recovery Act of 2017. The Food Date Labeling Act of 2019 builds on these previous legislative efforts with changes that make the standards more flexible for food labelers.
Under the new legislation, manufacturers or retailers may choose whether or not to use date labels on food products. However, if they choose to use a date label, they must use one of two prescribed phrases. This gives industry the freedom to decide whether or not to use date labels on their products but still ensures that labeling language is consistent on food products across the country. If a labeler wishes to indicate a food’s peak quality, the labeler must use the phrase “Best if Used By.” If a labeler wishes to communicate when a food should be discarded for safety, the labeler must use the phrase “Use By.” These phrases are consistent with voluntary date labeling initiatives developed in recent years (discussed below), and a national survey shows that most consumers understand these phrases to convey quality and safety.
This legislation will address the current patchwork system of state-level date labeling laws by pre-empting any state labeling regulations that require alternative date labeling language. The legislation also bars any state-level prohibitions on the donation of past date food based on a quality date. This will help ensure that wholesome food can be donated to food rescue organizations. Finally, the legislation requires the creation of a national consumer education campaign to inform consumers about the meaning of the new standard labeling language.
In recent years, federal agencies and industry leaders have taken important steps towards standard date labeling language. On May 23rd of this year, the FDA Deputy Commissioner for Food Policy and Response, Frank Yiannas, penned an open letter to the food industry encouraging the adoption of the standard term “Best if Used by” for quality dates on food products. This FDA recommendation mirrors USDA’s 2016 revised guidance, which similarly encourages the use of the phrase “Best if Used by” to indicate quality. Two years ago, the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA) launched the Product Code Dating Initiative, a voluntary call to the industry to adopt standardized quality and discard date phrases. Federal legislation will bolster the success of these existing initiatives and allow for complete uniformity nationwide.
With so much recent momentum in support of standardized date labels, the time is now to pass legislation to establish a uniform national system. FLPC is pleased to support this bill, which will alleviate confusion over date labels and ensure that more safe, wholesome food gets eaten.
To follow the status of the legislation, click here. For Representative Pingree’s press release, see here.
Nearly 900 Former For-Profit College Students Submitted Testimony Explaining the Harsh Impact of Federal Student Loan Debt on their Lives
Testimony Includes Stories from Students who Have Put Off Other Education, Avoided Starting Families & Some Considered Suicide because of their Student Loan Debt
BOSTON, M.A. – The Project on Predatory Student Lending announced that nearly 900 defrauded former for-profit college students submitted personal testimony in a lawsuit, Sweet v DeVos, against the U.S. Department of Education and U.S. Education Secretary Betsy DeVos. They are seeking to force the agency to follow existing law and issue the debt relief to which the former students are entitled.
In less than a month after the lawsuit was filed, hundreds of students voluntarily submitted their testimony to have their voices heard. The extensive testimony provides a comprehensive summary of the harsh real-life impact of the continued debt on students’ lives due to the Department of Education’s refusal to process their claims. Specifically, students reported the overwhelming harm that this debt and uncertainty has had on their lives, from financial and mental health consequences, to delaying basic life decisions like starting a family or pursuing additional education.
96 percent of students reported that their lives are worse today than before they went to school.
92 percent of students reported experiencing physical or emotional harm.
61 percent of students reported deferring further education because of no decision on debt.
47 percent of students reported deferring marriage and children because of no decision on debt.
32 percent of students reported continuing to receive payment demands after submitting their Defense to Repayment.
958 days (2.6 years) is the average time students have been waiting for an answer from the U.S. Department of Education on their Borrower Defense applications.
“My claim has gone unanswered for over three and a half years. That’s ridiculous,” saidDenise Heard-Bashur, former student at the Art Institute of Pittsburgh. “The Art Institute has even closed in that time. Those of us who were financially abused by for-profit educational institutions deserve to be considered. We were fed lies by society that a degree would ensure financial stability. It doesn’t. We were fed lies by these organizations that we would land great jobs, especially with their help. We haven’t. We were fed lies that our course credits would transfer should we decide to pursue our education elsewhere. They won’t. The government under the Trump administration has done nothing but prove in every way, shape and form that the average American is the very least of their concerns.”
The former students are pressing Secretary DeVos and the Department to follow the law and immediately act to cancel their loans. The Department has not processed a single borrower defense claim in over a year with many of these former students waiting over four years for resolution.
“By ignoring these claims, Betsy DeVos is willfully harming the very students the Department of Education is supposed to protect,” said Project on Predatory Student Lending Legal Director Eileen Connor. “The harm these students have experienced is undeniable. Many of these students are parents who can’t earn a living wage to support their families. Many expressed emotional and physical trauma caused by this illegitimate debt and the fear they will be denied loan cancellation. Several of the students said they have even contemplated suicide because of their debt. Their faith in government is understandably eroded. The time for excuses from the Department of Education is over. The Department needs to follow the law and cancel these loans now because hundreds of thousands of students cannot afford to wait any longer.”
“I have an overwhelming fear of debt because of this money that was wasted with this school,” said Morgan Marler, former student at ITT Technical Institute. “I can’t find a school that takes any credits from ITT and also I can’t find the strength to go to another school because I will be in twice the amount of debt. I worry that my daughter will have to feel the effects of this debt – I pushed myself in school to better myself for her, she was one when I graduated. I thought I’d have a better life for her than this.”
Click here to view testimonial excerpts and videos from students across the country who were defrauded by for-profit colleges.
The case, Sweet v DeVos, was filed on June 25, 2019 in the United States District Court for the Northern District of California in the San Francisco Bay Area. The plaintiffs, represented by the Project on Predatory Student Lendingat Harvard’s Legal Services Center along with Housing & Economic Rights Advocates(HERA), are suing on behalf of a class of more than 158,000 former students who have filed applications for borrower defense to repayment. As the complaint states, the Department of Education is intentionally ignoring students’ borrower defense claims, has taken no action to resolve them, and in many instances, forcibly collects loans in spite of the students’ claims that the loans are not valid.
Under existing law, students and former students are eligible for federal loan cancellation if the college misled the students or violated state laws relating to the students’ education—as is the case for all the colleges these former students received loans to attend.
“Students are calling for the Department to act,” said HERA Senior Attorney, Natalie Lyons. “It is shameful that the Department continues to sit on tens of thousands of borrower defense applications, in light of the additional harms caused by its inaction. Surely it is enough that these former for-profit students expended money, time and energy on a fraudulent education. As powerfully described by the nearly 900 students’ own words, the Department’s silence causes significant anxiety and distress in their day-to-day lives, as well as active harm to their livelihoods.”
The Project on Predatory Student Lending is continuing to call for students—specifically those who were cheated by for-profit colleges and are awaiting the Department’s decision on their borrower defense claims—to support the litigation and share with the court the countless ways they have been hurt by the for-profit college industry and the Department. Students can continue to supply written testimony in this lawsuit by filling out a simple online form here.
Currently, 45 million Americans have nearly $1.6 trillion combined in student loan debt, depressing the economic progression of families and the broader economy. This lawsuit addresses the most pernicious type of student loan debt—the kind made to students at abusive for-profit colleges. The Department of Education issued these loans despite glaring indicators that the schools would do nothing but rip off students. Ultimately, the students are paying the price for a worthless degree that has failed to improve their lives, and in many cases, has caused severe personal and economic setbacks. For-profit colleges account for 13 percent of the student population, but 47 percent of federal loan defaults. And 98 percent of all loan cancellation applications sent to the federal government in 2016 and 2017 were due to fraudulent for-profit colleges.
Background on the Case:
Over the past several decades, hundreds of thousands of students borrowed federal student loans to attend various for-profit colleges, including ITT Technical Institute, Corinthian Colleges, the Art Institutes, the New England Institute of Art, Salter College, Brooks Institute of Photography, and more. The schools falsely and deceptively promised students high-paying jobs, state-of-the-art vocational training, and long and fulfilling careers.
Since 2015, over 200,000 of these former students have asserted their right according to existing federal law to a complete discharge of their federal student loans due to their schools’ misconduct. As it was legally obligated to do, the Department of Education started to adjudicate these borrower defenses, approving nearly 28,000 borrower defenses in the six-month period before January 20, 2017.
Since then, under Secretary DeVos’ tenure, the Department of Education halted all processing of borrower defense claims. It has refused to adjudicate any borrower defense from any student since May 2018, and has ordered the office of Federal Student Aid (“FSA”) to stop processing any borrower defense application.
The Department of Education’s affirmative decision to keep these students in limbo—some for over four years—has further destroyed students’ credit and limited their access to federal student aid. For students who have defaulted on their loans, the Department of Education has invoked extraordinary extrajudicial powers to garnish their wages or seize their tax credits (for many, their Earned Income Tax Credit).
Named Plaintiffs bring this lawsuit under the Administrative Procedure Act on behalf of themselves and all other former students whose claims for loan cancellation have stalled.
This lawsuit builds on past legal efforts to hold this administration accountable and protect students through court action. In the case of Williams v DeVos, students fought back against having their tax refunds stolen by the Department of Education, and won. In the case of Calvillo Manriquez v DeVos, students stopped the Department from using its illegal partial denial rule. And in Bauer v DeVos, a judge told the Department of Education that it must implement the 2016 Borrower Defense rule.
About the Project on Predatory Student Lending
Established in 2012, the Project on Predatory Student Lending represents former students of predatory for-profit colleges. Its mission is to litigate to make it legally and financially impossible for federally-funded predatory schools to cheat students and taxpayers.
The Project has brought a wide variety of cases on behalf of former students of for-profit colleges. It has sued the federal Department of Education for its failures to meet its legal obligation to police this industry and stop the perpetration and collection of fraudulent student loan debt.
Housing and Economic Rights Advocates (HERA) is a California statewide, not-for-profit legal service and advocacy organization dedicated to helping Californians — particularly those most vulnerable — build a safe, sound financial future, free of discrimination and economic abuses, in all aspects of household financial concerns. It provides free legal services, consumer workshops, training for professionals and community organizing support, creates innovative solutions and engages in policy work locally, statewide and nationally.
Five former senior U.S. Environmental Protection Agency officials have backed a First Circuit appeal by scientists aiming to revive litigation against the EPA over what they call its 2017 “purge” of current EPA grant recipients from the agency’s advisory committees.
The former officials, who include an Obama-era acting administrator and a Reagan-era assistant administrator, argued in an amicus brief filed Thursday that the ban is preventing the agency from making decisions based on the best science available, as required by law.
The EPA under the Trump administration said when it announced the policy that it was needed to prevent conflicts of interest and ensure independence. But the agency veterans said in their brief that the true effect is to undermine a carefully calibrated diversity of viewpoints and give unrestrained influence to industry.
The order “tries to solve a problem that does not exist,” the former officials said, and “prevents some of the most qualified scientists from serving on EPA science advisory committees.” These boards do not award or control the grants, and their members are not compensated beyond travel expenses.
The ex-policymakers, joined by a former head of the U.S. Occupational Safety and Health Administration, argued that researchers who receive EPA grants are not biased by the support. Rather, they said the recipients may well be the best candidates.
The agency’s highly competitive grants often go to leading researchers at the cutting edge of environmental science and its real-world applications, the former officials said. EPA-funded projects often yield publications that are cited widely in their fields, suggesting their originality and widespread impact.
The governmental veterans also asked why the agency could ban recipients of EPA grants while welcoming and promoting researchers who get their funding from industry groups, regulated companies or other sources that could theoretically pose conflicts of interest.
“The practical effect of the directive has been to make the science advisory committees less independent by increasing the representation of industry scientists,” they said in their amicus brief.
The six former officials are Bob Perciasepe, an acting administrator and deputy administrator from 2009 through 2014; Bernard Goldstein, an assistant EPA administrator under President Reagan; Lynn R. Goldman, an assistant EPA administrator from 1993 through 1998; Terry Yosie, the director of the EPA’s Science Advisory Board from 1981 through 1988; and David Michaels, who led OSHA from 2009 to 2017.
They wrote to support an appeal by the Union of Concerned Scientists and Elizabeth Anne Sheppard, a University of Washington scientist who left a project partly funded by the EPA to keep her seat on the agency’s Clean Air Scientific Advisory Committee. The plaintiffs were backed at the trial court by 10 state attorneys general.
The appeal comes after the lawsuit was dismissed in March by a Massachusetts federal judge who found that the EPA adequately explained the directive. U.S. District Judge F. Dennis Saylor IV also decided that the ban was not governed by other federal regulations on conflicts of interest.
The scientists argued in their appeal earlier this month that the ban failed “the most basic requirement” of the Administrative Procedure Act and that the lower court incorrectly decided the EPA’s directive was not reviewable.
The policy was first announced on Halloween 2017 by then-EPA Administrator Scott Pruitt.
Pruitt resigned his post in July 2018 after a series of scandals and more than a dozen investigations into his actions. He was succeeded by his deputy, former coal-industry lobbyist Andrew Wheeler.
Wheeler met with leaders of the Union for Concerned Scientists but kept Pruitt’s directive in place, according to Genna Reed, the nonprofit’s lead science and policy analyst.
Reed told Law360 that the former officials “understand both the value of the best available science (as well as how having) real, qualified experts serving on these advisory committees serves as a check and a vital accountability mechanism for our science agencies.”
The Harvard Law School attorney representing the ex-policymakers, Shaun Goho, emphasized that there’s a bipartisan outcry over science at the EPA, and across the Trump administration. Academic scientists have gotten more involved in the policy realm during the current administration, he said.
“They are speaking up for science and fact-based decision making,” Goho said. “I would hope that that is not a partisan issue.”
Counsel for the EPA declined to comment Monday.
The former officials are represented by Shaun A. Goho and Lynne I. Dzubow of Harvard Law School’s Emmett Environmental Law & Policy Clinic.
The scientists are represented by Justin Florence, Benjamin L. Berwick and Jamila G. Benkato of The Protect Democracy Project Inc., and Lindsay C. Harrison, Samuel C. Birnbaum, Zachary C. Schauf and Julian Ginos of Jenner & Block LLP.
By: Honorable John Cratsley (Ret.), Director of the Judicial Process in Trial Courts Clinic and Class
Students in the Spring 2019 Judicial Process in Trial Court Clinic Credit: Jean Lee JD ’19
Over the 2019 Spring semester, 20 students in the Judicial Process in Trial Courts Clinic contributed over 1900 hours of legal research and writing to the Massachusetts state and federal judges, a record high for the clinic. The students’ contribution to our local judiciary is particularly significant in our state courts where budgets are tight and full-time law clerks limited. Student placements included nine with judges in U.S. District Court, eight with judges in the Massachusetts Superior Court, one with a judge in the Boston Municipal Court, one with a judge in the Newton District Court, and one with a judge in the Boston Juvenile Court.
Student legal research and writing for their judges included the full range of civil and criminal matters, such as motions for summary judgment, motions to dismiss, and motions to suppress, as well as habeas petitions, judicial review of agency decisions, evidence issues, and jury instructions. Students also had the opportunity to observe all the stages of jury trials – from empanelment to witness examinations to closings and verdict. Several students even had the opportunity to join their judge for a conversation with the members of the jury following the verdict. Lunches and personal conversations with their judges increased the opportunity to gain insight into judicial decision making.
The weekly class accompanying the clinic examines elements of the judicial process that students observe first-hand with their judges, including sentencing, judicial ethics, plea bargaining, mediation, the jury, and access to justice. During the semester, students met four international judges – three from Japan and one from Korea – and visited MCI Concord followed by dinner at Judge Cratsley’s home. The judges from overseas added valuable cross-cultural perspectives on judging and made presentations about their personal experiences with the recent inclusion of citizen jurors in criminal trials. One student who visited MCI was most intrigued by the National Education for Assistance Dog Services (NEADS) dog training program run by the inmates.
Student evaluations of their judicial placements describe the variety of gains from their clinical experience. One student emphasized her judge’s candid observations, “My judge shared her insights with us about the cases after the hearing, on whether the lawyers have done a good job and whether the merits of the case are strong.” Two other students wrote about the help they received with legal research and writing skills, “I went through five drafts on one occasion, and the judge made constructive comments about each draft. She was tremendously helpful in improving my legal writing.” “This clinical placement has led to a huge improvement in my legal writing skill. For every writing assignment, I received direct feedback from the judge and the clerks.”
Overall, students confirmed the unique value of the opportunity to work inside the judicial system directly with a judge; “The chambers were so much more collegial than I anticipated! I was thrilled at how welcoming everyone was.” “The placement exceeded my expectations. The judge and his clerks were absolutely wonderful to work with, and I learned so much from this clinical experience. The clinic has been the highlight of my law school experience.”
For me, as a clinical teacher, this is all about the value found in so many clinical experiences – the classroom and the law books come alive, become a discernible reality, in the courtroom and in chambers thanks to a remarkable group of sharing judges.
Credit: Lorin Granger Boston Mayor Marty Walsh speaks in front of the Joint Committee on the Judiciary.
Four Harvard Law School clinicians—Esme Caramello, Patricia Whiting and Nicole Summers from the Harvard Legal Aid Bureau (HLAB) and Shelley Barron from the Tenant Advocacy Project (TAP)—presented testimony before the Massachusetts Joint Committee on the Judiciary on a series of housing bills aimed at tenants facing eviction.
On July 16, the clinicians provided remarks in support of bills requiring tenants facing eviction to have a right to counsel and sealing eviction records. HLAB testified against four rent escrow bills. Nearly 100 people, including community organizers, legal aid lawyers, legislators, and Boston Mayor Marty Walsh attended the hearing.
Right to Counsel
In 2018, more than 92% of tenants who faced eviction were unrepresented according to the Massachusetts Right to Counsel Coalition. Unable to afford an attorney, most tenants represent themselves, even though they are often unfamiliar with the legalese and processes of the court. Legal services organizations like HLAB, TAP and the Housing Law Clinic at the Legal Services Center (LSC) fill in the gap by providing pro bono representation to tenants, but they say their limited capacity constrains them from taking on the number of clients that request their services.
Credit: Lorin Granger Clinical Instructor Shelley Barron testifies in front of the Joint Committee of the Judiciary. Seated to her right is Annette Duke, Staff Attorney at the Massachusetts Law Reform Institute.
Rep. David M. Rogers (D-Middlesex), Rep. Chynah Tyler (D-Suffolk),and Sen. Sal DiDomenico (D-Everett) are sponsoring bills that would ensure the right to counsel in eviction proceedings. If a tenant cannot afford an attorney, one will be appointed for them, similar to defendants in criminal cases. Studies in Massachusetts and other stateshave shown that tenants with representation have a better chance of reaching agreements with landlords to stay in their homes and avoid having an eviction on their record.
Also in favor of the resolution was TAP Clinical Instructor Shelley Barron. She told the committee, “low-income tenants should have a fair and meaningful chance at preserving their affordable housing. The right to a legal advocate will go a long way to ensuring access to justice for low-income tenants in the Commonwealth.” She also stated lawyers can help tenants before problems escalate to the point of court intervention.
Credit: Lorin Granger Nicole Summers (right) testifying in front of the Joint Committee of the Judiciary. Seated to the left is Andrea Nickerson, a tenant in Boston public housing.
Challengers questioned whether the state should be funding legal representation for one side of the case. Supporters argued that the bill includes provisions for low-income landlords to have a right to counsel. Barron says, “A right to counsel is not the only policy option to help keep families housed, but studies have indicated it is a concrete way to reduce homelessness. It’s also a matter of dignity, of ensuring that vulnerable tenants have a voice in an overwhelming and imbalanced system.”
Mayor Walsh urged the committee to look seriously into the legislation, stating that, “this is not about stacking the deck in favor of a tenant, it’s about ensuring equal justice under the law.” HLAB Clinical Instructor Nicole Summers suggested a plan of implementation to ensure courts and legal service providers have time to adjust.
Other bills that ensure a right to counsel include H. 1537 and S. 913.
The HOMES Act—An Act Promoting Housing Opportunity and Mobility Through Eviction Sealing
The HOMES Act (H.3566/S.824) sponsored by Rep. Michael J. Moran (D-Suffolk) and Sen. Joseph Boncore, (D-Suffolk and Middlesex) would seal eviction proceedings. In a study by the Massachusetts Law Reform Institute (MLRI) at least 1 million eviction cases have been filed in Massachusetts since 1988. The records of those eviction cases remain online forever, regardless of the outcome.
Credit: Lorin Granger Clinical Faculty Director and Clinical Professor of Law Esme Caramello testifies in front of the House Judiciary Committee.
Credit: Lorin Granger Andrea Park, Staff Attorney at the Massachusetts Law Reform Institute.
The “Scarlet E,” as it’s known, is said to create barriers to housing, allowing prospective landlords to reject potential tenants. Records of an eviction can also impact tenants’ credit scores, their ability to secure loans, and employment opportunities. The HOMES Act would seal eviction cases once they are filed and would only be unsealed when a judge makes a ruling and finds fault, such as if a tenant has failed to pay rent or violated a condition of their lease. Eviction case records would be publicly available for three years then sealed. Sealed records could be released for governmental, journalistic, or research purposes. The bill would also make it illegal to name minors or others not responsible for rent as a defendant in an eviction case.
Mayor Walsh, Boston City Council Representative Lydia Edwards, the ACLU of Massachusetts, community organizations like the Chelsea Collaborative and even a few landlords supported the bill. Tenants and lawyers shared experiences about the damaging consequences an eviction record can have on finding new housing for veterans, domestic violence survivors, individuals with disabilities, college-bound students, and low-income women of color. Esme Caramello, Clinical Professor and Faculty Director of HLAB, pushed the urgency of the issue, calling it an “an invisible crisis.”
Opponents say that eviction records hold important information for landlords about the past behavior of potential tenants. Landlords in favor of the bill listed alternative ways of getting the same information to check the credibility of potential clients, such as a credit checks. Caramello says the act would protect tenants from being unfairly branded with an eviction record for the rest of their lives. “The idea is that even if we made a mistake or fall on hard times, we can move on with our lives at some point,” she told the committee.
Clinical Instructor Pattie Whiting spoke out against four rent escrow bills being considered by the committee, including one sponsored by Nicolas Boldyga (R-Hampden). Massachusetts law allows tenants to withhold rent when the landlord fails to make necessary repairs or address sanitary code violations. The statute that the mandatory rent escrow bills seek to amend, is a crucial tool for ensuring that residential rental properties are kept in habitable condition, Whiting said. As currently written, the statute provides both a mechanism for tenants to enforce the State Sanitary Code and a disincentive for landlords to let properties fall into disrepair.
Whiting argued that the proposed legislation imposes additional and unnecessary procedural prerequisites on tenants seeking to withhold rent and/or raise their poor living conditions as a defense to an eviction action. For example, requiring a board of health inspection report prior to withholding, requiring a second written notice to the landlord after the board of health inspection, and escrowing all of the rent claimed to be due by the landlord. “The vast majority of tenants would not be able to comply with these procedural requirements,” Whiting said, “particularly those who are disabled, illiterate or who do not speak English.” If a tenant failed to comply with the law as proposed, they would be denied the right to present their case in court, which advocates say undermines the statutory intent of ensuring that residential dwellings are maintained in habitable condition.
A Large Base of Support
Barron left the hearing hopeful. “Often for housing legislation, we’re playing defensively…but today we were pushing for exciting innovations and trying to improve access to justice for low-income tenants,” she said. Barron and Caramello were both encouraged by the large turnout of tenants, community groups, and government officials. Caramello noted, “The packed hearing highlighted the urgency of the work of building fairness into our lopsided eviction system.”
The committee will decide which bills will be reported out of the committee and advance to the floor for a vote. The last day for the formal session of the legislature is November 20.
In anticipation of U.S. Immigration and Customs Enforcement’s (ICE’s) plans to step up immigration enforcement beginning this weekend, the Harvard Immigration and Refugee Clinical Program (HIRC) has posted a series of resources for affected Massachusetts residents. This includes information about immigrants’ legal rights, as well as resources for finding an attorney.
“It’s important to remember that all people in the United States, regardless of immigration status, have certain basic rights,” said Sabi Ardalan, Assistant Director of HIRC and Assistant Clinical Professor of Law at Harvard Law School. “These include the right to remain silent, the right not to speak to immigration officials or answer their questions, and the right not to open the door to your home unless immigration officers have a valid search warrant signed by a judge.”
HIRC, which has represented thousands of immigrants from all over the world since its founding over 35 years ago, serves as a resource for Massachusetts residents affected by any local immigration enforcement actions. HIRC engages students in removal defense, representation of individuals applying for asylum and other humanitarian protections, appellate litigation and policy advocacy, as well as in work on cutting edge issues at the intersection of immigration and criminal law.
HIRC will join other advocates tonight at the local Lights for Liberty vigil held by the cities of Cambridge and Somerville to protest immigrant detention facilities and human rights abuses being committed against children and families.
The Harvard Law School Food Law and Policy Clinic (FLPC) and the Center for EcoTechnology released a new toolkit today on state and local organic waste bans, policies that restrict the amount of food or organic waste that can be sent to landfills. Bans and Beyond: Designing and Implementing Organic Waste Bans and Mandatory Organics Recycling Laws serves as a resource for state and local policymakers, regulators, and advocates interested in policy solutions to reduce food waste and keep food out of landfills.
40% of the food in the United States goes uneaten. The challenge of food waste has significant impacts on the economy, food insecurity, and the environment. Not only does this wasted food require a significant amount of water and energy to produce, but most of it ends up in landfills, where it breaks down and generates methane, a potent greenhouse gas. And now, cities and states are facing an additional barrier: they are running out of space to store trash.
In recent years, state and local governments have explored policies to reduce food waste. Organic waste bans are one of the most innovative categories of policies. By restricting the amount of food waste that businesses and even individuals can dispose of in landfills, organic waste bans can drive adoption of more sustainable practices. Cost-benefit analyses have shown the potential of organic waste bans to reduce greenhouse gas emissions while stimulating local economies and creating green jobs. In Massachusetts, the state’s organic waste ban supported over 900 jobs in the organic waste hauling, processing, and food rescue industries in 2016 and generated $175 million in industry activity.
Bans and Beyond examines the legal landscape of existing state and local organic waste bans. This landscape is constantly evolving: six states and seven municipalities across the country have now passed organic waste bans, and three of these policies passed within the last year. The toolkit analyzes the structure of these different policies and the challenges that jurisdictions have faced in implementing them—for example, challenges with accessing funding, developing effective enforcement mechanisms, and building sufficient organics recycling infrastructure.
The toolkit also analyzes nine additional sets of policies and programs that can be implemented to incentivize waste reduction. These policies are essential to creating an environment where organic waste bans can succeed, and can also be effective policy tools to reduce food waste in states where an organic waste ban or recycling mandate may not be feasible. For example, states and localities can provide grant funding for food waste reduction, recovery, and recycling programs; revise permitting and zoning regulations to facilitate the development of composting facilities and anaerobic digesters; and implement “pay as you throw” systems that charge residents based on the amount of waste they throw out, in order to encourage residents to reduce their waste disposal and increase recycling and composting.
This toolkit builds on other resources FLPC has produced to support states and localities in addressing food waste through policy. FLPC’s 2016 toolkit, Keeping Food Out of the Landfill, offers an array of policy suggestions for reducing food waste, from strengthening food donation liability protections to offering tax incentives for food donors to implementing organic waste bans. Today’s toolkit builds on that with much more detail about organic waste bans.
With greater public attention on food waste, organic waste bans have become increasingly popular in the years since Keeping Food Out of the Landfill was published. Organic waste bans have the potential to transform waste management systems and drive food waste reduction, recovery, and recycling. FLPC hopes that Bans and Beyond will support state and local efforts to identify and advance organic waste management policies that are the best fit for the local context.
Last week, the Clinic and five other groups filed a request to the Inter-American Commission on Human Rights, demanding that they investigate the Mexican government’s complicity in the illegal practice of “metering,” under which thousands of individuals seeking asylum in the United States are forced to wait for prolonged periods in limbo in Mexico. This practice stands in violation of various treaty obligations, including the 1951 Refugee Convention and its 1967 Protocol. The request was jointly filed with the Border Rights Project of Al Otro Lado, Alma Migrante, A. C., Programa de Asuntos Migratorios y Posgrado de Antropología de la Universidad Iberoamericana Ciudad de México-Tijuana, and Families Belong Together Mexico.
Numerous organizations have documented the attacks on asylum seekers waiting at the border, to which Mexican authorities often turn a blind eye. The hearing request catalogs a host of rights violations along the U.S.-Mexico border, including:
a gay couple from Honduras in Nuevo Laredo who were kidnapped, beaten and threatened;
a 17-year-old Honduran boy who was attacked at knife point;
Guatemalan transgender women who were detained by police in Tijuana;
a woman from Honduras who was struck in the head and knocked unconscious; and,
A Salvadoran man who was deported from Piedras Negras by Mexican authorities without being informed of his right to seek asylum.
“The practice of metering entry into the United States has placed asylum seekers from Mexico at an increased risk of persecution, torture, or even death, as they wait in limbo at the border,” said Sabrineh Ardalan, Assistant Director at HIRC. “It also exposes asylum seekers from Central American countries, including Honduras, El Salvador, Guatemala, to deportation by Mexico back to the countries they originally fled, often in fear for their lives.”
In the hearing request, HIRC and the five signatories urged the Commission to schedule site visits on both sides of the U.S.-Mexico border to monitor the treatment of asylum seekers and called on Mexico to adopt legislative and administrative changes to ensure due process and safeguard the rights of asylum seekers and refugees.
A Wisconsin military veteran should not get relief from tax liability on income his ex-wife embezzled, since he must have known of the ill-gotten funds after she was arrested, convicted and jailed, the government told the Seventh Circuit.
Rick E. Jacobsen is seeking so-called innocent spouse relief for taxes, interest and penalties owed on the embezzled income for 2011. His claim that he lacked actual knowledge of crimes committed by his ex-wife, Tina Lemmens, does not hold water since Jacobsen had access to bank statements showing the embezzled money, the U.S. said. The actual knowledge legal standard is used to determine whether a person must have been aware of a specific act.
Lemmens, an accountant, already had been convicted in November 2011 and incarcerated for embezzling close to $500,000 from her employer before the pair, who were still married at the time, filed their joint income tax return for 2011.
Jacobsen’s contention that it would have been “fruitless” to look at the bank statements because the ill-gotten funds had been disguised as legitimate should be rejected, the U.S. said, since Jacobsen had access to all related tax forms and bank statements and could have tracked down which funds were embezzled.
His additional argument that he did not know the “precise amount” of embezzled income was likewise meritless, since he could have also determined that with relevant bank and tax statements, the U.S. said.
“A man who knows that his wife has been convicted of embezzling large amounts, and who has access to bank statements showing the deposits of the embezzled income, cannot avoid the conclusion that he ‘knew or had reason to know’ about the embezzled income,” the U.S. said.
Jacobsen, a factory worker who also ran a joint home inspection business with Lemmens, had argued on appeal from the U.S. Tax Court that he had no background in accounting or finance and that he wouldn’t have been able to tell which funds were embezzled and which were legitimate. Since he lacked the financial savvy to use joint bank statements to determine what funds were ill-gotten, he did not posses actual knowledge of the embezzled money, which entitled him to spousal relief for 2011 under Internal Revenue Code Section 6015(f) , Jacobsen argued.
Jacobsen, who has post-traumatic stress disorder and experienced a mental breakdown following Lemmens’ arrest and their divorce, claimed he was unaware of her scheme until her arrest in June 2011, according to court documents. While his business income went into their joint account, his wages as a machine operator went into a separate personal checking account. He never reviewed bank statements and left it up to his wife to manage their finances, he said.
Jacobsen requested spousal relief for tax years 2009 through 2011 but the IRS denied the request in 2015, according to court documents. He sued in Tax Court later that year. The court found he was exempt from taxes for 2009 because the debt owed for that year had been discharged in bankruptcy, according to court documents. The court also found he was eligible for innocent spouse relief for 2010, but ruled that he did not meet the threshold for spousal relief for 2011 since he had actual knowledge of the stolen funds by that time.
In arriving at a decision for the 2011 year, the Tax Court found that out of the seven factors that determine eligibility for relief, four were in his favor, including compliance with income tax laws in later years, a divorce from the spouse who embezzled and poor mental and physical health. The other two — economic hardship and legal obligation — were deemed neutral. However, the Tax Court found that his knowledge of embezzled income that should have been reported on the 2011 return outweighed the other factors.
Carlton M. Smith of the Federal Tax Clinic at Harvard Law School, who represents Jacobsen, told Law360 that the lower court put too much weight on the actual knowledge factor in light of the fact that Jacobsen qualified for four of the seven factors and that the original purpose of spousal relief was to offer protection against a spouse who fails to report embezzled funds.
“The taxpayer concedes that the court is not bound to consider all factors as having the same weight, and that even as many as two or three positive factors can be outweighed by one negative factor,” Smith said. “However, the taxpayer argues that four positive factors can’t be outweighed by one negative factor when there are only seven factors.”
The U.S. Department of Justice declined to comment.
Jacobsen is represented by T. Keith Fogg and Carlton M. Smith of the Federal Tax Clinic at the Legal Services Center of Harvard Law School.
The IRS is represented by Bethany B. Hauser of the U.S. Department of Justice, Tax Division.
The case is Rick E. Jacobsen v. Commissioner of Internal Revenue, case number 18-3371, in the U.S. Court of Appeals for the Seventh Circuit.
–Additional reporting by Vidya Kauri. Editing by Robert Rudinger.
Julia Schutt (right) of the Veterans Legal Clinic speaking to a client as interns Arielle Lui (left) and Sana Gupta (center) observe at the Boston Public Library Community Health Fair.
Picture this: you make the decision to go to college. To afford it, you take out hefty student loans. You work hard, push through, and complete your degree. With even more hard work, you are able to pay off your student loans. Then, out of nowhere, the government reaches out to tell you that you actually haven’t paid your loans. And that they want to collect. Now. Before you can even use your degree, the government starts to take all of your income. What do you do?
This is what happened to Maria*, whom we met at the Boston Public Library’s first ever Community Health Fair on Friday, May 24th. Maria came to the Fair seeking any help she could find, and she found us. As the only legal team at the event, we were thrilled that we were there to respond to legal needs like Maria’s.
Allyson Dowds, Health & Human Services Research Specialist for the BPL and the event organizer, invited us to attend, recognizing that access to legal resources is an integral part of community health: the Legal Services Center provides legal representation to clients fighting housing insecurity, financial abuse at the hands of for-profit colleges or other predatory organizations, unsafe situations in the home or within families, and facing adverse action by the IRS. In the Safety Net Project, we help veterans, disabled individuals, and low-income folks secure the income, food access, and health care they need to protect their material well-being. In short, we work to address a multitude of interrelated community health problems through legal advocacy.
Safety Net Project interns Sana Gupta (top left), Brittney Reed (top right), Arielle Lui (bottom left), and Ellie Schelleng (center) with Julia Schutt, project manager for the Veterans’ Legal Clinic, at the Boston Public Library Community Health Fair. Taking the picture is Julie McCormack, director of the Safety Net Project and coordinator of the People’s Law School.
As a law school clinical program, our mission to “Advocate. Educate. Innovate.” compels us to provide education not just to the law students and interns who join us throughout the year, but also to our community on their rights within the legal system, through our program The People’s Law School. We used our time at the Community Health Fair to do exactly that.
The Fair brought together several key players in the food security landscape, including Project Bread, the Department of Transitional Assistance, and the Department of Public Health. Connecting with folks from these organizations was especially important as we consider our role in closing the Massachusetts ‘SNAP Gap.’ The SNAP Gap refers to those eligible for, but not receiving, SNAP benefits – according to the Mass Law Reform Institute, over 700,000 Massachusetts residents who are likely eligible for SNAP are not receiving benefits. This summer the LSC is reopening our SNAP appeals intake; we will represent those who have been denied benefits when they should have been approved. By helping individuals in complex situations secure SNAP benefits, we hope to take part in a larger movement to close that gap and make food security a reality for all of low-income Massachusetts. Connecting with these groups allowed us to consider future partnerships and to gather materials so that we can increase outreach and education efforts through our office.
Also at the event were many incredible community partners dedicated to serving the people of the greater Boston area. We spoke with many, including representatives of Bay Cove Human Services and Samaritans Inc., about ways we can partner to better serve our communities and share resources – such as workshops and presentations. Often, legal problems are the cause of mental or physical health problems. Other times, the root cause of a legal problem is really a housing or food issue. It was vital for us to connect (and reconnect!) with the government, non-profit, and social service organizations working in health, food, and housing so that we all can provide our clients with the broadest base of assistance available. It is so rare that someone is facing only one issue – to get at the root causes of the problems facing our clients, we need to call on each other.
In addition to talking to partner organizations, we met many people interested in learning how we can help them. We provided advice and referral information on a range of issues including overpayment of benefits, predatory student loans, and veterans’ legal issues. Because our services are free, we don’t have the resources to take every case, so events like this are a great way to get information to people who may not otherwise have access to it. Maria wouldn’t have known about our services if we hadn’t been at the Health Fair.
Plenty of folks also came to our table who didn’t have a specific issue they needed help with; they just wanted to know what kinds of services we offer. We are always happy to talk about our services to anyone who will listen! In addition to providing general information about the Legal Services Center, Julia Schutt of the Veterans Legal Clinic attended the Fair to showcase the project she manages developing an online tool to help veterans and military families learn if they are eligible for state Chapter 115 benefits.
After the Fair, we followed up on Maria’s case and, after consulting with other advocates here at LSC, determined that Maria’s situation would best be handled directly by the Project on Predatory Student Lending. Maria will be directly assisted by our office, thanks to the opportunities provided at the Community Health Fair.
The Community Health Fair was an extremely useful event and we are glad to have been invited. We are excited to see it grow and hope to be included every year!
The Office of Clinical and Pro Bono Programs at Harvard Law School is here to help students create the most positive clinical and pro bono experience possible. Stay tuned for updates, tips, and reminders. Please don't hesitate to contact us or drop by!
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(Note: Our office does NOT provide legal advice or legal services.)