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Category: Legal & Policy Work (page 1 of 7)

Legislative Advocacy for Safe and Supportive Schools

By: Alexis Farmer

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 new legislators 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.

A Guinean Political Activist was Granted Asylum in the U.S. After Fleeing Political Persecution

By: Angelica Merino Monge and Logan Seymour

Source: Pixabay

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

 

 

A Honduran Activist Pursues Justice in the Face of Persecution

By: Alexis Farmer

Source: Pixabay

“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.”

But returning to Honduras was not a possibility. The systematic corruption and violence in the country had only worsened.

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.

 

U.S. Permanent Resident Almost Deported Until HLS Crimmigration Clinic Proved the Government Wrong

By: Alexis Farmer

Source: Pixabay

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.

Source: Flickr

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.

Source: Flickr

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.”

*Names changed for the client’s confidentiality.

Representatives Pingree and Newhouse Introduce Legislation to Standardize Food Date Labels

Via the Center for Health Law and Policy Innovation

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.

96% of Students Defrauded by For-Profit Colleges Report Their Lives Are Worse Now Than Before They Went to School

Via the Project on Predatory Student Lending

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.

The testimony data shows:

  • 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,” said Denise 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 Lending at 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.

About HERA

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.

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Ex-EPA Leaders: 1st Circ. Should Revive ‘Purge’ Suit

Via Law360 

By: Andrew Kragie

Source: Pexels

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.

Two similar lawsuits were dismissed in New York and Washington, D.C., federal courts.

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.

The EPA is represented by Jeffrey E. Sandberg of U.S. Department of Justice‘s Civil Division.

The appeal is Union of Concerned Scientists et al. v. U.S. Environmental Protection Agency et al., case number 19-1383 in the U.S. Court of Appeals for the First Circuit.

–Additional reporting by Juan Carlos Rodriguez, Craig Clough and RJ Vogt. Editing by Peter Rozovsky.

Correction: An earlier story mischaracterized a response from counsel for the former officials. The error has been corrected. 

Update: This story has been updated with comment from an attorney for the former officials.

Clinical Students Set a New Record of Over 1900 Hours of Legal Research and Writing for Massachusetts Trial Judges

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.

Harvard Law School clinicians testify on legislation supporting tenants in eviction cases

Via Harvard Law Today 

By: Alexis Farmer

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.

Rent Escrow

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.

HIRC Shares Resources for Immigrants Affected by ICE Raids

Via the Harvard Immigration and Refugee Clinical Program

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.”

Resources include:

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.

FLPC Releases Organic Waste Bans Toolkit

Via the Center for Health Law and Policy Innovation

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.

Read Bans and Beyond: Designing and Implementing Organic Waste Bans and Mandatory Organics Recycling Laws.

HIRC Calls on Inter-American Human Rights Commission to Investigate Mexico for Rights Violations at Border

Via the Harvard Immigration and Refugee Clinical Program

Source: Pixabay

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.

Wis. Man Liable for Tax After Ex-Wife’s Theft, 7th Circ. Told

Via Law360

By: Yvonne Juris

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.

Read more at: https://www.law360.com/articles/1174833/…

A Legal Safety Net at the Library

Via the Legal Services Center

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!

Press Release: For-Profit College Students File Lawsuit to Force Betsy DeVos to Follow the Law and Cancel Their Student Loan Debt

Via the Project on Predatory Student Lending

Over 158,000 students of abusive colleges applied for loan cancellation, yet the U.S. Department of Education has been refusing to process any of their claims for over a year, with some students waiting over four years for action

The Project on Predatory Student Lending is calling for students still waiting for debt relief to submit written testimony in the lawsuit

BOSTON, M.A. – [On June 25], 158,110 defrauded former for-profit college students filed a lawsuit against the U.S. Department of Education and Education Secretary Betsy DeVos seeking to force the agency to follow existing law and issue the debt relief to which the former students are entitled.

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.

The former students are pressing Secretary DeVos and the Department to follow the law and immediately process their claims for debt relief. The Department has not processed a single claim in over a year and many of these students and former students have been waiting over four years for resolution. The Department’s inaction comes after it issued these predatory loans in the first place, using taxpayer dollars, and despite known fraudulent conduct by for-profit colleges.

The case, Sweet v. DeVos, was filed today 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 Lending at 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.

“We’re suing Betsy DeVos and the Department of Education to hold them accountable and protect students across the country,” said Project on Predatory Student Lending Director Toby Merrill. “The law is clear: students who experienced fraud should not be required to pay back federal loans that should never have been made by the Department in the first place. Since Betsy DeVos continues to ignore these students’ legal rights, the only way they can have their voices heard is through the courts.”

Jessica Jacobson, one of the named plaintiffs, submitted her borrower defense claim in 2015 after being scammed by the for-profit college, New England Institute of Art. She is still waiting for her $30,000 in federal loans to be cancelled.

“This has put my whole life on hold. I can’t sign for home, a car, anything because I don’t know what’s going to happen to this debt. It’s extremely stressful and impacts my whole family,” Jacobson said. “It’s beyond disappointing. The Department of Education did nothing to stop these schools from doing this in the first place and now they are ignoring those of us who were cheated on their watch.”

“The Department of Education has knowingly enabled for-profit colleges to defraud students,” said Eileen Connor, Legal Director at the Project on Predatory Student Lending. “It recklessly continued to act as a loan broker for disreputable schools despite clear records of abuse and misconduct, and now the Department refuses to acknowledge the damage it has done by issuing these predatory loans to students, at taxpayers’ expense. With this lawsuit, we will hold Betsy DeVos accountable and deliver justice for those students awaiting debt relief.”

“The Department has a duty to act on behalf of the countless Americans, including dozens of HERA clients, who have been defrauded by predatory for-profit schools,” said Natalie Lyons, Senior Attorney for Housing & Economic Rights Advocates. “Rather, the Department is abdicating its duty while thousands of individuals struggle under the weight of burdensome student loan debt and without the benefit of a credible education to advance their lives and the lives of their families. We’re taking this action, because of the Department and Secretary DeVos’ failure to do so.”

In addition to filing suit, the Project on Predatory Student Lending is calling on 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 supply written testimony in this lawsuit by filling out a simple online form here.

Click here to view quotations from students across the country who were defrauded by for-profit colleges, as well as statements of support for today’s litigation from organizations and elected officials.

Currently, 45 million Americans have nearly $1.6 trillion combined in student loan debt, depressing the economic progression of families and the broader economy. Today’s 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.

Today’s 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.

About HERA

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.

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My Student Loan Truth: Theresa’s Brooks Institute Story

Via the Project on Predatory Student Lending  

By: Theresa Sweet

Source: Flickr

When Theresa graduated from the Brooks Institute in 2006, she never imagined that she would find herself suing the U.S. Department of Education years later over her student loan debt. But after being cheated by her school and years of waiting for answers, she is a plaintiff in Sweet v DeVos – representing over 158,000 students who were cheated by their schools and have been ignored by Betsy DeVos and the U.S. Department of Education. This is her story.

My name is Theresa Sweet.

On the day I graduated from college, my fellow students and I were lined up in a cordoned off area, under the perfect Santa Barbara sun, waiting to enter the theater and accept our diplomas. Myself and several other students turned our heads toward a commotion beyond the ropes only to see an exasperated administrator tailing my father, sternly telling him that he needed to wait until after the ceremony to speak with his student. My mounting concern quickly turned to laughter when he hurried over, gave me a quick hug, and said, “I just wanted to tell you again how proud I am of you.” That moment remains among a literal handful of times in my life that I ever saw my father cry.

While The Brooks Institute (then owned by Career Education Corporation) is no longer in operation, I know that there are plenty of predatory, for profit trade schools still operating in California today. I am here today to share my story in the hope that I can prevent others from living through a similar experience.

I attended the Brooks Institute of Photography in Santa Barbara and Ventura, CA from January 2003 to June 2006, graduating with a Bachelor of Arts in Professional Photography. Once a source of pride, my education quickly became a ruinous source of personal and financial stress.

Since graduation, I have never had a job where I used the education I received at Brooks. I have never had a job that has helped me earn an income that is remotely close to what is necessary to pay off these loans. I can’t finance a car, much less a home. It is unlikely that I will ever be able to marry or adopt children as I would essentially be condemning my family to a lifetime of poverty.

I currently work as a Certified Nursing Assistant, and I would love to be able to further my education and obtain a Nursing degree. Unfortunately, Brooks, like so many other for-profits, actively misled students as to the transferability of the course credits they earned. In addition, Brooks also made sure to guide students to borrow the maximum amount of Federal Student Loans allowed in pursuit of a Bachelor’s Degree, making me ineligible for student loans and financial aid to pursue nursing.

Brooks used unethical, high pressure sales tactics such as pain points about me being the first person in my immediate family to attend and graduate from college. They relied on the fact that there was no one in my life who could help me ask the right questions. They made a point of never answering questions via email, only over the phone. They created the false impression that the admissions process was competitive when, in fact, all they cared about what getting the maximum number of students enrolled and filling out student loans applications. In reality, Brooks admitted anyone with a high school diploma or a GED, as long as that person could get a student loan.

Although I had no way of knowing it at the time, after I graduated I found out that the “Admissions Counselors” were just commissioned sales people. They weren’t paid to give me accurate information about the school, to tell me how much it could cost me, or to counsel me on whether the school would help me reach my goals. They were only paid to get me to enroll.

After graduation, the “Career Services” office regularly contacted me with financially meaningless opportunities for unpaid jobs that they found on the local Craigslist page.

Perhaps worst of all, Admissions Counselors blatantly lied about the employment rates of students after graduation as well as the amount of money these graduates were making, knowing that the lies they were telling were giving students false impression that they would be able to pay back their student loans. You wouldn’t have to look very hard to find evidence of all of this.

In short, while I worked multiple jobs to stay at school, Brooks and CEC were happily raking profits by defrauding thousands of students. And NO ONE was stopping them. No one was alerting the public or prospective students. No one was there to help any of us recoup our financial losses, to say nothing of the disastrous effect this high level of debt has on personal relationships.

If this seems outrageous to you, GOOD! It is outrageous, and it isn’t hyperbole. There are hundreds of former Brooks Students who have already filed Borrowers Defense to Repayment claims, and that number is sure to grow. I filed my own paperwork in 2016. I’ve been waiting for a response for three years. It is one of 158,110 applications that sits at the Department of Education unanswered right now.

The Department of Education is determined to sit on their hands, doing nothing to help. So us students have been forced to turn to the courts for justice. We are done waiting.

Learn more about the lawsuit Sweet v. DeVos

A Simple Online Legal Tool Helps Reduce Poverty for Military Veterans

Via the Legal Services Center

The Veterans Legal Clinic at the WilmerHale Legal Services Center of Harvard Law School (LSC) is piloting a new technology tool to help fight poverty among the state’s most financially vulnerable military veterans and their dependents and survivors. The tool is designed to increase access to vital safety net benefits that can help reduce financial insecurity, homelessness, and hunger in the Commonwealth’s veterans community.

If successful, the program could improve the lives of tens of thousands of low-income Massachusetts veterans — and thousands more of their family members — whose incomes are at 200 percent of the federal poverty level or lower.

The innovative project introduces an easy-to-use, web-based tool to determine potential eligibility, similar to an online tax preparation tool like TurboTax or an online Supplemental Nutrition Assistance (Food Stamp) Calculator.  The new tool is called the Mass Vet Benefit Calculator, and is being launched through a public-private partnership between LSC and three local veterans’ services offices participating in the pilot.

Marrying legal expertise and tech to address poverty

“The ultimate goal of the project is to help reduce poverty among the Commonwealth’s veterans and military families,” says Daniel Nagin, Faculty Director of the Veterans Legal Clinic and LSC. “We can do so by leveraging our legal expertise and using new technology we’ve developed to more effectively link those in need to an underutilized veterans’ safety net program that already exists.”

“While the core role of LSC and the Veterans Legal Clinic is to represent clients, we also have a role in innovating to fight poverty, addressing gaps for people who may not have access to attorneys, and finding ways in which the marriage of technology and legal expertise can make a difference,” says Nagin. “The Mass Vet Benefit Calculator is intended to help pursue these broader goals.”

“Because of the technology’s design, this project has the potential to help us better understand how technology and online self-guided interview formats, informed by legal expertise, might help other vulnerable populations, such as people harmed by consumer fraud, those with family law cases, and immigrants,” he adds.

Low numbers of eligible veterans access Chapter 115 benefits

The Massachusetts Veterans’ Services Benefits Program – known as Chapter 115 for short because of the statute that authorizes the program – can provide monthly financial assistance that, depending on income and circumstances, can range from a few hundred dollars per month to $1,000 per month to eligible low-income veterans and their dependents. It can also provide reimbursements for out-of-pocket medical costs, emergency payments to prevent eviction, foreclosure or utility shutoffs, and funding for home repairs, moving costs, and transportation to medical appointments.

Yet, as state data shows, too few people are aware the program exists, and too few know if they are eligible or how to apply.

A 2017 report by the Massachusetts State Auditor urged that new strategies be undertaken to make the Chapter 115 program more accessible.  The report showed that between 2014-2016, only 14,390 individuals received Chapter 115 benefits, despite state estimates that as many as 70,000 of the 380,000 veterans in Massachusetts live at 200 percent of the federal poverty level or below and would likely qualify for the program. Only 1,460 of the 13,679 veterans who received MassHealth over a two-year period simultaneously received Chapter 115 benefits, although the income criteria to qualify for MassHealth and Chapter 115 are similar.

These numbers only reflect the number of actual veterans who could qualify. Many thousands more family members could also benefit – if they applied.

Recognizing the need to expand access for veterans and their families, the Veterans Legal Clinic initially developed an online self-help guide, and then began experimenting with a benefits worksheet that synthesized the complex eligibility criteria of the program into a two-page document.

Why not an online calculator to determine eligibility?

“We soon realized that easy-to-use online calculators exist for everything from preparing your tax return to applying for a mortgage and applying for SNAP benefits (Food Stamps), and wondered if we could convert our worksheet into an online calculator that anyone could easily access without professional help,” Nagin said.

Drawing on the software development savvy of William Palin at the Developing Justice program at Harvard Law School, Veterans Legal Clinic attorneys converted the worksheet into a series of simple online questions that a veteran or a family member, friend or advocate can answer. Once individuals answer the questions posed by the tool, they receive immediate analysis of whether or not they may be entitled to benefits, how much they might receive, how and where they can apply, and what documents might be needed to establish eligibility.

Addressing all likely scenarios

Working in collaboration with the Massachusetts Department of Veterans Services and three veterans service officers or VSOs (the VSOs for Boston, Cambridge, and the Upper Pioneer Valley Veterans’ Services District) that were eager to be part of a pilot project, Veterans Legal Clinic Program Manager Julia Schutt and program evaluation colleagues from Harvard’s T.H. Chan School of Public Health conducted a series of focus groups with VSOs, veterans themselves, and with family members and dependents. The goal: to ensure that the tool addresses all the likely scenarios that someone using it might present in an effort to qualify for Chapter 115 services and to make sure the tool was simple to use.

Further fine-tuning of the tool based on focus group feedback has been completed and the pilot study is being rolled out now in the Boston, Cambridge, and the Upper Pioneer Valley (which includes the towns of Ashfield, Bernardston, Buckland, Charlemont, Colrain, Conway, Deerfield , Erving, Gill, Greenfield, Hawley, Heath, Leverett, Leyden, Monroe , Montague, New Salem, Northfield, Plainfield , Rowe, Shelburne, Shutesbury, Sunderland, Warwick, Wendell, and Whately). This pilot will both test the Mass Vet Benefit Calculator and strategies for increasing awareness of the Chapter 115 program.

“The Boston VSO conducts door-to-door outreach in subsidized housing complexes, particularly those for the elderly and disabled, to connect with veterans, dependents and survivors, for example,” says Schutt. “They can use the online tool on tablets to help complete eligibility screenings on the spot, for example.”

A game-changer

“The Mass Vet Benefit Calculator is a game-changer and is very handy during events,” notes Pierre Darius of the City of Boston Veterans Services. “Instead of asking the same questions over and over again, I can have the applicants answer the questions electronically in seconds.”

LSC Staff at Stand Down, where the benefits calculator was tested with veterans. From left: Betsy Gwin, Dana Montalto, Dan Nagin, Julia Schutt, Keith Fogg, clinical student Steven Kerns, Evan Seamone

“The Mass Vet Benefit Calculator is the quickest and easiest way to check on your Chapter 115 eligibility without a VSO,” he adds. “Answer the questions truthfully, and then you’ll get an eligibility determination instantly. Even if a person’s eligibility is Medical Only, it can be hundreds or thousands of dollars in reimbursements every month.”

“My staff and I look forward to the help the Mass Vet Benefit Calculator will provide to our veterans and their dependents,” says Timothy Niejadlik, Director of Upper Pioneer Valley Veterans’ Services District. “By allowing them to begin the application process online, we hope they will contact us to answer questions and ensure they receive all the benefits they may deserve from the Commonwealth.”

Once the pilot phase is complete and lessons learned are implemented, a more intensive, statewide rollout of the tool will begin.

The Mass Vet Benefit Calculator project is supported by a grant from the Klarman Family Foundation.

Using technology to access legal remedies, social services

“We believe technological innovation to help low-income individuals access social services and legal remedies can have a meaningful impact,” says Nagin. “It is critical that legal services providers continue to expand their toolkit.  Technology tools need to be harnessed to help us pursue our justice mission. We are very grateful to the Klarman Family Foundation for supporting this effort.”

Reform Meets Response: LSC Launches Criminal Record Sealing Initiative in Wake of Massachusetts Criminal Justice Reform

Via the Legal Services Center

The Legal Services Center strives to place the voices of Boston’s communities at the heart of its practice.

While Julie McCormack, Director of the Safety Net Project, facilitated People’s Law School community workshops around the Boston area over the past 5 years, she learned first-hand from clients and community partners of the staggering, unmet demand for criminal record sealing services. Due to LSC’s specialized projects serving domestic violence survivors, low-income individuals, people with disabilities, veterans, and others, Julie recognized that the Legal Services Center had a unique opportunity to leverage its existing resources to respond directly to requests from community partners and clients to expand access to these critical criminal record sealing services.

With criminal record information publicly available to employers, banks, and landlords, a criminal record operates as a de facto sentence for individuals long after their time is served by erecting barriers to financial stability. Indeed, for the estimated one in three American adults with a criminal record, ordinary essentials such as finding a well-paying job, obtaining safe and affordable housing, getting a student loan, and purchasing a decent car are nearly impossible to attain. This reality means that those with criminal records experience poverty, unemployment, and homelessness at far higher rates than their peers without records. In effect, a criminal record is a harsh, life-long obstacle for those striving to lift themselves out of situations of personal and financial hardship. The discrimination experienced by individuals after their encounter with the criminal justice system reverberates throughout their families and communities, exacerbating inequality and hardship.

Fortunately, the 2018 Criminal Justice Reform Act has accelerated and expanded sealing opportunities. Individuals with old criminal records can now have their Criminal Offender Record Information (CORI) sealed so that it cannot be seen or held against them by potential employers, landlords, and banks. For the first time in Massachusetts history, the 2018 law also provided for the expungement of a criminal record for de-criminalized offenses (such as the possession of less than 2 ounces of marijuana). These reforms provide a path toward a brighter future for individuals fighting against the barriers and stigma that accompany a criminal record.

However, this change in the law did not provide the legal resources necessary to help people exercise their right to criminal record sealing. Organizations such as Greater Boston Legal Services and Rosie’s Place have taken an early lead in identifying the need for sealing services by providing self-help resources and walk-in clinics. We applaud the groundbreaking work of these organizations and seek to expand CORI sealing opportunities – particularly to the veterans, military families, low-income students, disabled individuals, and domestic violence survivors that we already serve – through free workshops every third Tuesday of the month, from 4pm to 6pm.

We believe this is a valuable service with tremendous spillover effects in combatting inequality and injustice. Moreover, we believe that by hosting these CORI Sealing Workshops, LSC is leveraging its connections with the veteran and local communities – as well as its easily accessible location – to respond to an urgent community need.

For more information about our new CORI Sealing Initiative, please visit our information page.

HIRC client wins asylum after eight years

Via the Harvard Immigration and Refugee Clinic

Pictured left to right: Clinical Instructor Phil Torrey, Abraham, Clinical Instructor Cindy Zapata, and Alicia Coneys, J.D. ’19

Abraham* began his journey at the Harvard Immigration Clinic (HIRC) in 2011, when he first met Managing Attorney Phil Torrey. Abraham had suffered severe persecution at the hands of the government in his home country in East Africa and came to HIRC to help him build his case for asylum.

Though Abraham had strong evidence of well-founded fear, his road to political asylum was not an easy one. “The process was incredibly long and included multiple asylum office interviews and many delayed hearings due to the government shutdown and the interpreter not showing up,” Torrey explained.

Abraham’s case was particularly heart-wrenching because while he fought to move his case forward in the United States, his wife and children remained thousands of miles away in his home country. He had not even met one of his sons, who was born after he came to the U.S.

Despite facing roadblocks, Abraham and his team from HIRC continued to push forward with his case. In the weeks leading up to his day in court, Abraham spent long hours at the HIRC office with Clinical Instructor Cindy Zapata, who had taken over his case, and Alicia Coneys ‘19 preparing him for his day in court. Then, on April 30, 2019, all their hard work paid off when Abraham finally received the news he had waited so long to hear – he had been granted asylum.

“When he won, the first thought I had was of his family. I am so happy that he will finally be able to reunite with them in a place where they can all live safely,” said Coneys, who was in court with Abraham that day. Cases like Abraham’s remind us of the real-life impacts immigration has on families, both here in the U.S. and across the globe. Here at HIRC our goal is always to keep families together and we are so thrilled that Abraham will soon be with his family once again.

“Abraham is an incredible person. In spite of all the setbacks, he remained incredibly focused. His resilience, passion, and kind spirit are an inspiration. It’s been a true honor working with him,” said Zapata.

We would like to extend our thanks to Phil Torrey, Cindy Zapata, and Alicia Coneys for their tireless work on this case.

*Client’s name has been changed to respect his privacy

Are Americans Getting Enough Fiber?

Via Harvard Law Today

By: Elaine McArdle

Susan Crawford, author of “Fiber: The Coming Tech Revolution-and Why America Might Miss It”
Credit: Dana Smith

Imagine an internet connection so fast and clear that all the musicians in an orchestra can play their instruments from their own homes in perfect time with colleagues scattered across the country. Imagine students in a tiny rural school taking high-level science classes taught by expert teachers 2,000 miles away, with such visual clarity that they can participate in real-time scientific experiments.

That level of internet connectivity is standard in South Korea, Hong Kong, Singapore, Sweden and China. But internet service in most parts of the U.S. continues to be slow, unreliable and expensive. Because of a series of telecom policy decisions, the U.S. is falling further and further behind other nations, with a host of serious implications that affect not only the economy, education, health, and well-being but also the fabric of democracy, says Susan Crawford, clinical professor at Harvard Law School.

On the national level, almost no one is paying attention, says Crawford. And she is out to change that.

Fiber optic technology, which results in dazzlingly fast and reliable internet connectivity, should be available at a low price to everyone in the U.S., just as it is in other countries, argues Crawford in her latest book, “Fiber: The Coming Tech Revolution—and Why America Might Miss It,” published this year by Yale University Press. The contemporary notion of a decent, thriving life “requires a persistent, cheap data network that reaches everyone”—and that means fiber optic technology for everyone, she says.

“Fiber optic plus advanced wireless is going to be the place where all the new industries for the next 100 years are born, where all the new jobs, all the new ways of making a living, come to being,” says Crawford, who served as special assistant for science, technology and innovation policy for President Barack Obama ’91. “We need it—now—to make sure we have a world-class health care system, the best education for our children and the ability to cope with climate change.”

In the near future, fiber access will be available in 68% of Asia. Meanwhile, due to the deregulation of the telecom industry, the U.S. lags far behind in this critical technology, says Crawford: In terms of average download speed, the U.S. ranks 25th out of 40 nations that are in the Organisation for Economic Co-operation and Development. Fiber connects American cities, but only about 13% of individual homes and businesses, mostly in very affluent places, have fiber optic connections—what’s called “last-mile fiber connectivity.” Most Americans get their internet from a single provider, typically one of five companies that control high-speed internet access. These companies have no incentive to upgrade to fiber.

“We are really not in the game,” says Crawford. Internet providers “have divided markets very successfully. They can charge whatever they want for the services they provide. We’ve got a really stagnant, noncompetitive market.”

But her book is not about technology but rather progressivism, and it tells a story of hope, she stresses. Electricity was once controlled by a few companies and available only to the wealthy. It took “enormous local courage” and the leadership of President Franklin D. Roosevelt, in the face of incredible opposition, to make sure that everyone, despite economic status, received it. Fiber is equally astonishing in what it offers for improving lives, Crawford says, and similarly should be regarded as a public good, a utility service to which every American is entitled.

Susan Crawford tells the stories of localities in the U.S. that have sidestepped powerful forces to bring fiber to their residents.
Credit: Melissa Beck

Crawford places her focus on human stories, including those drawn from the successes of 800 plucky localities in the U.S. that have sidestepped powerful forces to bring fiber to their residents: places like Chattanooga, Tennessee, and rural Minnesota, where 27 tiny townships created a fiber services cooperative to bring first-rate, affordable internet service to farms. It makes good sense at every level, Crawford argues. While costly to install, once laid in the ground, fiber is infinitely upgradeable, and because the lines can be shared by numerous operators, service prices are competitive.

“Localities are just sick of being bossed around. So that’s why they’re building their own networks,” she says. The big internet providers have successfully supported laws in 19 states that now prohibit local governments from supporting fiber optic build-out, arguing that internet service should be a private enterprise. But that’s misleading, Crawford insists—the utility lines themselves should not be controlled privately but instead should be shared by as many service providers as want to jump in, thus driving prices down. The issue of fiber optics “may be highly partisan at the federal level, but at the local level it’s just people wanting everybody to lead a decent life. This really is the seeds of what we’re seeing across the country, this sort of movement toward ensuring that people get their basic needs met at a reasonable cost.”

Crawford, who wrote “Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age” in 2014, launched her current book project around the same time during a trip to South Korea, where she witnessed the enormous digital divide between that country, where fiber connectivity is pervasive, and the U.S. A visit to Stockholm shortly afterward drove the point home, during which the mayor asked Crawford how Sweden could help the U.S. get on board with fiber optics in order not to drift into irrelevance. She traveled to Tokyo, Oslo, Hong Kong, and Singapore, which all have 100% fiber adoption, to find out why connectivity was so available and so cheap, with typical prices of $25 to $40 a month.

By contrast, American telecom and cable companies, with no incentive to support fiber technology, are strongly opposing it, including by trying to confuse the issue, she says. For one thing, they are promoting 5G wireless service, the latest generation of cellular mobile connection, as an alternative to fiber. In fact, 5G depends on fiber lines in order to work, Crawford explains, and 5G won’t function in rural areas because it would require cell towers every 200 feet, which is extremely expensive. “It is in their interest not to have people fully understand this issue,” she says. And as the local communities have taken matters into their own hands, the industry has fought back hard.

Crawford got encouragement in her research from then-HLS Dean Martha Minow, who recognized the social justice implications of telecommunications policy. Another supporter, Professor Yochai Benkler ’94, faculty co-director of the Berkman Klein Center for Internet & Society, praises her book. “At this moment in American history, [as we are] facing a deep loss of trust in government and good governance, Crawford’s rich case studies of municipalities that have overcome destructive corporate lobbying to deliver for their citizens is a lesson we all need,” he says.

A key part of the story is that China is planning to connect 80% of their homes and businesses to fiber very soon. Moreover, China is loaning $68 billion to other countries for infrastructure and soon will be touching 65% of the world’s population and 40% of the world’s GDP, Crawford says. She’s hoping that awareness of China’s primacy in this arena “will be a Sputnik moment” for national attention in the U.S. “American companies will have no leverage to be part of that market, won’t be able to reach that global population, and we seem to have no response to that in this country,” she says.

But the U.S. won’t get a massive upgrade to fiber unless there is a concerted effort at the national level. The FCC, she says, should set fiber as the standard for all citizens, so they enjoy opportunities for education, jobs and health care.

“Human decency is at our core and should be attached to our policy,” says Crawford, whose next project is addressing the effect of rising sea levels in Charleston, South Carolina, which poses essentially the same question: What is the role of local government in solving major problems?

While the issue of fiber optic connectivity is urgent and the challenges significant, Crawford is optimistic. “America has saved the world from tyranny,” she says. “We built a transcontinental railroad system. We built the federal highway system. We built the Hoover Dam. Americans are capable of this,” she stresses. “And we can turn quickly to projects of national importance. It’s just that we’re a bit in the dark right now about this one.”

Collecting on Dreams

Via Harvard Law Today

By: Julia Hanna

Toby Merrill ’11 Credit: Leah Fasten

As a 2L, Toby Merrill ’11 was enrolled in a Harvard Law School consumer clinic litigating against predatory lenders of subprime mortgages. There she fought for the rights of individuals who had hoped to fulfill the American dream of home ownership. Now Merrill has a new mission, no less urgent: to bring a measure of fairness to people affected by the predatory lending practices of some for-profit colleges that are alleged to provide worthless degrees in exchange for thousands of dollars in government-backed loans. Frequently members of some of society’s most vulnerable populations, these clients often began their journey with the simple desire for upward mobility—namely, a better life through education.

In 2012, Merrill founded and became director of the HLS Project on Predatory Student Lending, focusing on for-profit schools that promised students a direct path to well-paying, middle-class jobs via programs focused on a specific role—medical assistant or paralegal, for example—but failed to deliver. Senate hearings and a two-year investigation into these schools led by then-Iowa Sen. Tom Harkin detailed the systematic use of inflated job placement data and aggressive recruitment tactics to target groups that included immigrants, people of color, veterans, and single mothers. In one case, noted by Harkin, a school claimed that it placed 70% to 90% of students in jobs, when the actual rate was 20% to 30%.

The financial fallout of that widespread fraud, when combined with the poor quality of instruction found in many programs, was catastrophic: Statistics show that individuals enrolled in for-profit colleges typically account for 13% of the student population but 47% of all federal loan defaults, often because of the inability of the borrowers to secure well-paying jobs; and more than $30 billion in federal tax funding goes to for-profit institutions every year, in the form of those student loans.

Eileen Connor, director of litigation at the project
Credit: Leah Fasten

In her work with victims of predatory subprime mortgage lending, Merrill had been a firsthand witness to the power of affirmative litigation on behalf of individuals harmed by unscrupulous lending practices. She saw how that work could not only help individuals get restitution but also, in the best-case scenario, lead to improved policy. When she learned more about the tactics used to lure students into shoddy degree programs with little value on the job market—students who were trying to improve their lives by getting an education and who, at that point, had virtually no options for legal action—the issue had a visceral pull.

“Predatory student lending sits right at the intersection of racial and economic justice,” says Merrill, whose interest in fighting injustice and race discrimination in America led her to spend the summer after her second year in law school working on the NAACP’s voting rights project and in its death penalty practice.

Located in HLS’s Wilmer­Hale Legal Services Center in Jamaica Plain, the project and its staff of 12 are engaged in class-action lawsuits on behalf of tens of thousands of students at now-defunct institutions such as Corinthian Colleges (with a class of 110,000 plaintiffs) and ITT Technical Institute (750,000). But they also take on individual cases which they feel will effect change in industry or government practices. Director of Litigation Eileen Connor has met hundreds of people whose lives have been upended by predatory student lending, but she still finds herself thinking about Crystal, a young single mother who was recruited away from Roxbury Community College by a Corinthian school subsidiary.

Attorney Josh Rovenger (at desk) joined the project last year, inspired by the passion of Toby Merrill and her team.
Credit: Leah Fasten

“They told her, ‘You can do what you’re doing here, but twice as fast—so you’ll be able to work that much sooner and support your young child.’ Of course, that was appealing to her,” Connor says. The report issued by the Harkin Senate committee found that recruiters at some for-profit colleges are frequently instructed to exploit just such a “pain point” in order to convince a prospective student to enroll. But the quality of education Crystal received didn’t provide her with the skills she needed to compete in the job market. The Senate report also found that, on average, only 25% of the money paid to for-profit colleges is rolled into needed teaching materials, equipment, and instructor pay; the remaining 75% is used for marketing, executive compensation, and profit. Unable to find employment in her chosen field of medical assistant, Crystal was forced to default on her loan and ended up living in a homeless shelter; the default had disqualified her from applying for subsidized housing. In addition, the government garnished her wages and took her earned income tax credit, which she had been planning to use as the first and last months’ deposit to rent an apartment. There is no time limit on the collection of student loan debt, so these penalties can continue for decades.

“This all happened because a predatory company took advantage of someone with the earnest desire to learn and to work,” Connor says. “It’s a perversion of the ideal of higher education when the reason we have a federal student loan program at all is to create opportunity.”

Josh Rovenger ’13 joined the project last year. While he had always been drawn to public interest law, he hadn’t been following the legal cases involving for-profit colleges before interviewing for an attorney position with Merrill and Connor. Then he got excited: “It wasn’t really an exact moment or case, but more the passion they showed. Toby said that once you learn about the work, you can’t help but get angry and worked-up about what’s going on.”

Every semester the HLS Project on Predatory Lending trains six to eight students, including this spring, Levi Barry ’19 and Sejal Singh ’20.
Credit: Leah Fasten

And if he ever feels distanced from that moment, a clinical student’s reaction brings it all back: “It’s a reminder to everyone here of how absurd some of the actions are that we’re challenging,” Rovenger says. Each semester, the project hosts six to eight clinical students, providing exposure to the class-action cases underway while also enabling students to act on behalf of individuals. “My clients are people who have been taken advantage of,” says Sejal Singh ’20. “But they are not victims—they’re very smart, resilient actors who are committed to moving forward with their lives. Working with them has been inspiring, and in the process, I really feel as though I’ve been able to build a range of skills that are going to prepare me to move forward in my career as an attorney.”

Creating positive change in an area as complex and far-reaching as predatory student lending can have a frustratingly long timeline. But in its relatively brief seven-year existence, the project has earned substantial wins, bringing clients that much closer to justice. Among its recent victories was a ruling last fall in the case Bauer v. DeVos that—in conjunction with a similar suit brought by 19 states and the District of Columbia—prevented the Department of Education from illegally delaying the enforcement of established borrower defense regulations that offer protections for students. Such protections include the cancellation of debt when an institution breaks the law and a ban on forced arbitration.

“Forced arbitration has been a longstanding issue in the context of consumer protection,” says Merrill. “The transparency that occurs with private litigation has been shown by study after study to be an important driver of public enforcement; forced arbitration cuts off an entire stream of information that’s key to functional oversight. Now, for the first time in a long, long time, we have the opportunity to bring people’s claims in court.”

Students in the project, including Zoe Kemmerling ’20, provide direct services to clients. They also get exposure to complex litigation.
Credit: Leah Fasten

Included in the project’s active impact litigation docket is the class-action lawsuit Calvillo Manriquez v. DeVos, a case brought jointly with Megumi Tsutsui ’14, a former student of the project now practicing law at the Oakland, California-based Housing and Economic Rights Advocates. The suit charges that the U.S. Department of Education required tens of thousands of former Corinthian Colleges students to repay their loans, despite earlier findings by the Obama administration Department of Education that they were not liable to do so. Rather than discharge the loans, the department reversed course, calculating a repayment rate based on private income data obtained from the Social Security Administration.

“The thrust of the case is that the Department of Education is engaged in retroactive rulemaking using illegally obtained information,” says Rovenger. For now, the team has won a preliminary injunction to freeze loan collection for thousands of students, with the eventual goal being to fully discharge them.

“Our work here has always involved fighting against a Department of Education that isn’t doing what it should be,” says Merrill. “So while we have sued the department of the current administration a number of times, we also sued the one under the previous administration.”

Credit: Leah Fasten

Merrill cites relatively recent successes, including the ruling reversing the freeze on the mandatory arbitration ban, as evidence that the legal landscape is shifting and coalescing around a new perspective on student lending. “Three years ago, [students] couldn’t sue a for-profit school. It was hard to get the government … to decide to do anything,” she says. “We were able to change both of those things.” Even so, she acknowledges that hundreds of thousands of students represented in federal courts around the country are still waiting for relief. It’s part of what keeps her and the rest of the team motivated. And they’re not alone. Merrill notes that the Project on Predatory Student Lending works with a range of advocacy organizations across the country, supplying needed information and insight to help advance policy change. And the network of clinic alumni, Megumi Tsutsui and others, has only extended its reach. “It’s been so gratifying to see former students take up the fight as part of their professional endeavors,” says Merrill. “We’re all focusing our energy on cases that we think can make a difference, moving the ball forward to make a more fair and just society.”

All in a Day’s Work

By: Alexis Farmer

The numerous clinics at Harvard Law School (HLS) are frequently successful in their pursuit of advancing justice. We often read of victories in court cases, positive reactions to dynamic presentations, and the formation of powerhouse partnerships, but how do the clinics get there? On any given day, HLS students, clinical instructors and clinical faculty are actively working on issues – preparing a brief, arguing a motion in court, giving a presentation to community leaders or clinical professionals, or collaborating with community partners on launching a policy initiative. On one particular day in early May, three clinics were in three different courts while others were fortifying partnerships on each of the coasts. The Office of Clinical Programs (OCP) got an inside scoop on what a day in a few of the clinics might look like, and they were just as busy as we suspected.

Tuesday, May 7th

Credit: Emmanuel Huybrechts
Source: Flickr

9:00am The Massachusetts Supreme Judicial Court (SJC) heard oral argument in Boston Globe Media Partners, LLC v. Chief Justice of the Trial Court, a case about whether the public has a right of access to records from show-cause hearings in which the clerk magistrate, who presides over the hearing, finds probable cause, but decides not to issue a criminal complaint. The Boston Globe sued the heads of the trial courts last fall, arguing that public access to the records allows for transparency and accountability and is useful in determining whether there is an uneven application of justice in this part of the court system. The action came after The Globe reported that Massachusetts was the only state to have these proceedings out of the public eye and keep many of the documents confidential.

In amicus briefs, the ACLU of Massachusetts, Greater Boston Legal Services (GBLS) and Harvard Legal Aid Bureau (HLAB) argued that the hearings provide privacy for subjects of criminal complaints prior to arraignment. The amici also expressed concern that opening records where no criminal complaint is issued could harm individuals’ ability to obtain housing or jobs. HLAB’s brief was written on behalf of Harvard Defenders, the only legal services organization in the state dedicated to pro bono representation of indigent defendants in criminal show cause hearings, and City Life/Vida Urbana, a grassroots community organization dedicated to fighting for racial, economic, social justice and gender equality. Executive Director of Harvard Defenders Dara Jackson-Garrett, who co-authored the brief, told Massachusetts Lawyers Weekly, “Those who take out applications for criminal complaints often do not want to see the accused go to jail. Instead, they may just want to have the person apologize or get treatment for substance abuse.” A decision in the case is expected sometime late summer/early fall.

9:30am The Harvard Immigration and Refugee Clinic (HIRC) at GBLS co-managing directors and HLS lecturers on law Nancy Kelly and John Willshire Carrera, HIRC assistant director and clinical professor Sabi Ardalan, and HIRC teaching fellow Zack Albun attended oral arguments in De Pena-Paniagua v. Barr, currently pending at the United States Court of Appeals for the First Circuit. The court held the hearing at the John Joseph Moakley United States Courthouse in Boston. Ms. De Pena-Paniagua is challenging a Board of Immigration Appeals’ decision that denied her asylum application by construing Matter of A-B-, a 2018 decision by Attorney General Jeff Sessions to categorically foreclose asylum to applicants who argue they have a well-founded fear of persecution in the form of domestic violence perpetrated on account of their membership in a “particular social group.” Along with co-counsel at Akin Gump Strauss Hauer & Feld and HIRC director Prof. Deborah Anker, the HIRC attorneys submitted an amicus brief arguing Ms. De Pena-Paniagua qualified for asylum as a victim of persecution on account of her membership in a particular social group defined by female gender. HIRC alumnus Eunice Lee (Albert M. Sacks Clinical Teaching & Advocacy Fellow 2009–11) appeared on behalf of fellow amicus the Center for Gender & Refugee Studies, arguing that Matter of A-B- itself conflicts with the applicable federal statutes and international treaties and should be overturned.

The three-judge panel expressed significant interest in the position advanced in HIRC’s briefing, asking attorneys for both Ms. De Pena-Paniagua and the Department of Justice several questions about her eligibility for relief on the basis advocated. The First Circuit has yet to issue an opinion squarely addressing the legal sufficiency of defining a particular social group by gender.

10:00am Clinical Professor of Law Dehlia Umunna of the Criminal Justice Institute (CJI) and CJI student Jillian Tancil J.D. ’19 spent the morning at Roxbury District Court representing a woman that allegedly violated a protection order. The case was scheduled for a jury trial, but was resolved with pre-trial probation.

10:30am HIRC Clinical Instructor Cindy Zapata spoke on a panel about family detention at the AALS Clinical Conference in San Francisco, CA. The panel, entitled “Learning in Baby Jail: Lessons from Law Student Engagement in Immigration Detention Centers,” was a forum for reflection and learning best practices for preparing students to engage in work within family detention centers. The other panelists included Lindsay Harris, University of the District of Columbia, David A. Clarke School of Law; Erica B. Schommer, St. Mary’s University School of Law; Sara Sherman-Stokes, Boston University School of Law.

11:20am The Emmett Environmental Law and Policy Clinic (EL&PC) submitted comments on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury. Methylmercury is a common pollutant of air and water and highly toxic. The EL&PC’s comments provided recommendations, guidance, and support for the EPA’s reassessments and proposed studies.

Source: iStock

1:15pm The Center for Health Law and Policy Innovation’s (CHLPI) Health Law & Policy Clinic held a strategic planning call with the Transgender Law Center, as part of an initiative against the rollback of anti-discrimination protections for transgender and gender non-conforming people. The partnership, formalized in the summer of 2018, has led to conversations among legal experts about how to address and challenge reinterpretations of the Affordable Care Act and other civil rights protections. On May 24th, the Trump Administration released proposed changes to gender identity protections in health programs and activities. You can find CHLPI’s on-going analysis of the law here.

2:30pm The Legal Services Center’s Safety Net Project (LSC) and HLAB are representing a client as she appeals the Social Security Administration’s (“SSA”) decision to deny her disability benefits – the first joint representation between the programs. Despite extensive evidence of her inability to continue working due to symptoms of PTSD, anxiety, and depression stemming from abuse both in childhood and during her marriage, the client’s claims have been denied at each stage of the appeals process and are now before the United States District Court for the District of Massachusetts. On May 7th, the LSC-HLAB team filed the client’s response memorandum and asked that the case be set for oral argument. The arguments center around the Administrative Law Judge’s (ALJ) decision, without explanation, to give lesser weight to important evidence from the doctors treating the client, his mischaracterization of the record, various conclusory determinations that render judicial review impossible, and a series of findings that should have been entrusted to experts. HLAB/LSC clinical instructors Stephanie Goldenhersh and Julie McCormack and students Jeremy Ravinsky, JD ’20 and Bryan Sohn, JD ’20 are working on the case. The team is looking forward to their day in court in the fall, when Jeremy and Bryan will present the client’s argument before Judge Casper.

The John Joseph Moakley US Courthouse in Boston, MA.  Source: iStock

All day Sarah Downer and Katie Garfield, from the Center for Health Law and Policy Innovation, attended the Root Cause Coalition’s Annual Hill Day in Washington, DC. They used the event as an opportunity to educate legislators from both parties about the implications of laws like the Anti-Kickback Statute – a criminal statute that prohibits transactions to induce or reward services or items reimbursed by federal health care programs. Downer and Garfield were also invited to meet with staff from several legislative offices to discuss pathways to integrating critical food and nutrition services into the Medicaid and Medicare programs. Securing coverage of these new benefits within our public insurance programs would expand access to life-saving nutrition for vulnerable individuals living with chronic illness.

Legal Services Center Housing Clinic wins precedent setting case for domestic violence survivors facing eviction

Via the Legal Services Center

Source: flickr

Survivors of domestic violence in Massachusetts and nationwide facing eviction have won a major victory in the Supreme Judicial Court of Massachusetts (SJC)* with a new ruling that the federal Violence Against Women Act (VAWA) protects tenants in federally subsidized housing from being evicted when the cause of eviction is tied to their domestic abuse. The court ruled that a domestic abuse survivor is protected even if he or she reveals the abuse late in the eviction process or after defaulting on an agreed upon payment plan, and that it doesn’t matter when or how the survivor alerts the court and the landlord that she is the subject of abuse.

The new precedent reduces the risk that domestic violence will lead to eviction and homelessness, a decision that has vital implications for survivors of domestic violence who are facing eviction in Massachusetts and across the nation.

The decision marks the end of a multi-year effort by a low-income Boston tenant to stay in her home. The client in this case, Y.A., is a mother of two who had been in an abusive relationship and had been trying to stave off eviction since 2014, when she first received an eviction notice for nonpayment of rent. Her abuser subjected her to physical and emotional abuse and stole the income she earned from her job.

At a hearing in the Eastern Housing Court in January 2018, where she was facing immediate eviction, Y.A. explained that domestic violence caused her to fall behind on her payment plan. Nevertheless, the judge granted the Housing Authority’s motion to forcibly remove Y.A. from her home. In doing so the judge ignored a key provision of VAWA, the landmark 1994 law, which includes protection for tenants and applicants of federally funded subsidized housing from denial of housing or eviction from housing “on the basis that the applicant or tenant is or has been the victim of domestic violence.”

The WilmerHale Legal Services Center of Harvard Law School (LSC) began representing Y.A. after she lost her case in Housing Court and helped her appeal the decision. The SJC took up the appeal of its own accord, and the case received national attention, with 14 advocacy groups filing amicus briefs in support of the survivor. Oral argument was held on January 7, 2019.

The SJC’s May 10, 2019 decision was unambiguous, declaring that: a survivor may raise a VAWA defense to eviction at any time during an eviction proceeding; there is no prescribed method or words needed to do so; there is no restraining order prerequisite to prove eligibility for the defense; domestic violence can be disclosed to the court without first disclosing to the landlord and still form the basis for a defense; the defense can be raised even in instances of chronic non-payment; covered housing providers have an affirmative duty to help survivors and not evict them for reasons directly related to domestic violence; and that judges, upon hearing evidence of domestic violence, are obligated to inquire further to fully evaluate the applicability of VAWA and write findings before issuing decisions.

“Housing is a basic human right, and stable housing is critical to stemming the cycle of the trauma faced by survivors of domestic violence,” said Congresswoman Ayanna Pressley, Representative of the Massachusetts 7th Congressional District. “This ruling is a victory not only for Y.A. and LSC, but for every survivor who has faced housing instability as a result of domestic violence. I’m eternally grateful to Y.A. for her bravery and to LSC for reaffirming protections for survivors.”

Before releasing its full opinion, the SJC issued a brief order reversing the Housing Court’s earlier decision. The order allowed LSC to negotiate a new agreement with the Housing Authority on behalf of Y.A. that will allow her to stay housed and avoid another hearing in Housing Court.

Y.A., who fought her eviction for years without legal representation before finding LSC, expressed her happiness at the decision after a long and difficult fight, saying, “I tried for so long to get help, and to explain my situation. When [the Housing Authority] told me I had to leave the apartment, I cried, night and day. It was wonderful to get help from LSC, and I’m so glad that my case will help others.”

The result represents the culmination of a determined, collaborative effort by LSC’s Housing Clinic, including lecturer and attorney Julia Devanthéry, clinical student Emily Mannheimer ’19, and numerous allies around the state who helped prepare the Clinic for oral argument. Massachusetts-based organizations contributing amicus briefs in the case include the Boston Area Rape Crisis Center, Casa Myrna, the Domestic Violence Institute of Northeastern University School of Law, Greater Boston Legal Services, the Foley Hoag Domestic Violence Prevention Project, Jane Doe Inc., the Massachusetts Law Reform Institute, the Volunteer Lawyers Project, and the Women’s Bar Foundation. In addition, national and out-of-state organizations including the ACLU of Massachusetts, the ACLU Women’s Rights Project, Community Legal Services of Philadelphia, Mid-Minnesota Legal Aid, the National Housing Law Project, the National Network to End Domestic Violence, and the Sargent Shriver National Center on Poverty Law filed amicus briefs with the court.

The SJC’s decision not only had a clear and immediate impact for Y.A. in this case, it also created an important precedent that will be useful to housing advocates in Massachusetts and across the country. Daniel Nagin, Faculty Director of the Legal Service Center, described the decision as “a powerful example of how LSC’s individual representation cases have the potential to make real change for entire communities.”

* Boston Housing Authority v. Y.A

Read the full SJC decision: https://www.mass.gov/files/documents/2019/05/10/12623.pdf

Project on Predatory Student Lending Director Toby Merrill Honored by the American Constitution Society

Via the Project on Predatory Student Lending

Toby Merrill Credit: Martha Stewart

At the American Constitution Society’s National Convention in Washington, D.C. this week, Project on Predatory Student Lending director and founder Toby Merrill was honored as a finalist for the prestigious David Carliner Public Interest Award. The American Constitution Society(ACS) is the nation’s leading progressive legal organization.

David Carliner, whom the award honors, was a champion of justice throughout his career, devoted to protecting civil and human rights and combating injustice on a systemic basis. The award recognizes outstanding public interest lawyers whose work best exemplifies Carliner’s legacy.

Toby has been a fierce advocate for students cheated by for-profit colleges since she founded the Project on Predatory Student Lending in 2012, and has since led the Project’s team of attorneys in winning groundbreaking court victories in landmark cases protecting and advancing the rights of defrauded students. The Project is part of Harvard Law School’s clinical program, and a number of its clinical students have gone on to pursue careers to attacking the big, systemic issues that have allowed such a predatory industry to thrive for so long.

“David Carliner was a true civil rights champion, and I’m honored to to be associated with this award named for him,” Toby said. “The Project’s clients have been treated so unfairly—first by a predatory industry and then by a government that refuses to recognize their rights. This recognition is a testament to their willingness to stand up and fight for their own rights and the rights of the millions of students across this country who were seeking a better life through higher education, and instead were lied to and ripped off by for-profit colleges. The billions of dollars of debt that the government tries to collect from them every day is illegitimate.

“In addition to our clients’ bravery and perseverance, the Project’s work is driven by its dedicated staff and clinical students,” Toby added. “They inspire me every day, and I’m lucky to stand up for our clients with such an amazing team.”

The Project represents thousands of former for-profit college students across the country. The Project has cases against for-profit college companies, and against the Department of Education for enabling and supporting this predatory industry. Many of the Project’s clients are people of color, veterans, and immigrants. Most are the first in their family to attend college. The Project’s work supports its broader goals of economic justice and racial equality.

The Project is part of the Legal Services Center of Harvard Law School (LSC), a community law office and clinical teaching site of the law school. Clinical students join the Project’s staff to litigate cases on behalf of clients, in partnership with community-based and advocacy organizations.

 

FLPC Releases Issue Brief Calling for Federal Legislation to Standardize Date Labels

Via the Center for Health Law and Policy Innovation

The Harvard Law School Food Law and Policy Clinic (FLPC) released an issue brief that outlines the need for federal legislation to standardize date labels on food products. Date Labels: The Case for Federal Action describes existing government and industry efforts to standardize date labels and presents the case for why federal action is needed.

40% of the food in the United States goes uneaten. This wasted food has significant impacts on the economy, food insecurity, and the environment. The majority of food waste happens in consumer homes and consumer-facing businesses, and confusion over date labels is a significant cause of food waste.

Federal law does not regulate the use of date labels on food products, with the exception of infant formula. In the absence of federal regulation, states have developed their own date labeling laws. 41 states require date labels on at least some food products, and 20 states prohibit or restrict the sale or donation of food past the labeled date. Even in states that require date labels, manufacturers have broad discretion over how the dates on foods are selected. Most date labels are indicators of quality; however, many consumers and businesses mistakenly believe they are indicators of food safety. According to a surveyconducted by FLPC, the Johns Hopkins Center for a Livable Future, and the National Consumers League, 84 percent of consumers at least occasionally discard food close to or past the date on its package, and one-third of consumers report they always do so.

Recognizing that confusion over date labels leads to unnecessary food waste, government and industry actors have made significant efforts in recent years to standardize date labeling language on food products. At the state level, eleven states introduced bills in the 2017-2018 legislation session that seek to standardize date labels or eliminate unnecessary date labeling requirements. On the industry side, the most significant industry action was the voluntary Product Code Dating Initiative, launched in 2017 by the Food Marketing Institute (FMI) and the Grocery Manufacturers Association (GMA). This initiative encourages manufacturers and retailers to use standard date labeling phrases on consumer-facing food packages to indicate quality and safety (read FLPC’s blog post about the initiative here). Most recently, FDA released a letter encouraging the food industry to use the phrase “Best if Used by” on food products to indicate quality. This is the same standard quality date phrase used by the Product Code Dating initiative.

These initiatives represent significant progress, but as the issue brief demonstrates, they are not sufficient to achieve standardization of date labels nationally. Due to the continuing patchwork of state date labeling laws, voluntary initiatives cannot fully cure inconsistent date labeling language. FLPC’s analysis found that the Product Code Dating Initiative conflicts with state laws in 27 states for at least one food product, meaning that manufacturers cannot use the voluntary standard in those states.

Moreover, state and industry initiatives cannot provide consistent education to consumers across the country. Because manufacturers cannot use the same date labeling language everywhere due to state laws, it remains difficult to educate consumers about what date labeling language means.

This issue brief demonstrates that federal legislation is necessary to achieve true standardization of date labels nationally. Federal legislation should require that manufacturers or retailers who choose to use date labels on foods use one of two prescribed labeling phrases: “BEST If Used By” to indicate quality, and “USE By” to indicate safety. These terms are consistent with the voluntary Product Code Dating Initiative. Federal legislation should also preempt state laws that ban the sale or donation of food past the quality date, and create a national consumer education campaign to inform the public about the meaning of these labeling terms.

FLPC has been advocating for the standardization of date labels since the release of its 2013 report, The Dating Game. We are pleased to see so much progress towards standardizing date labels at the state and industry level, but these efforts have limitations. As this issue brief demonstrates, it is time for a federally standardized date labeling system, and we look forward to working with federal and industry partners to develop such a system.

Read Date Labels: The Case for Federal Action.

Take Care of Soldiers, and Things Fall Into Place

By: Joshua Mathew, J.D. ’19

Josh Mathew, J.D. ’19

My involvement with the Veterans Legal Clinic (VLC) has been, by far, my most rewarding experience at Harvard Law School. Through the VLC, I supported diverse cases, developed a broad range of legal skills, found my passion for advocating for others as a litigator, and made some of my closest friends at Harvard.

A Broad Range of Cases and Skills

As a student advocate with the VLC, I worked on a variety of matters, including an Army veteran’s appeal of the VA’s denial of his G.I. Bill benefits, a former Marine’s application for VA healthcare and an honorable characterization of his service, and oral arguments on behalf of Massachusetts veterans who were wrongfully denied the Welcome Home Bonus. In addition, my work with the VLC and conversations with instructors at Harvard’s Predatory Lending and Consumer Protection Clinic motivated me to pursue independent research, under Professor Dan Nagin’s supervision, on California’s regulations aimed at guarding veterans against exploitation by for-profit colleges.

My diverse caseload at the VLC allowed me to build a set of skills that I know will make me a more effective advocate for others. Drafting the appeal for my client’s G.I. Bill benefits enabled me to develop my legal writing and research skills. Presenting oral arguments in the Welcome Home Bonus case with my classmate Laurel Fresquez ’19 substantially improved our oral appellate advocacy skills. We learned how to organize a concise outline of arguments and incorporate feedback from numerous moots. And throughout all of my cases, I developed my ability to interact with clients, solicit their intent, and ensure that our case strategy reflected their long-term goals and interests.

From left to right, Jack Regan, Dana Montalto, Josh Mathew, Laurel Fresquez ’19, a client in the case, and Dan Nagin.

Helping Ensure That All Are Welcomed Home

Presenting oral arguments with Laurel in the Welcome Home Bonus case at Suffolk Superior Court was certainly my favorite experience at the VLC. You can read more about the case and the favorable ruling here and here. Preparing for the hearing served as a reminder that no one gets there alone: Laurel and I spent countless hours brainstorming and debating how to craft the most effective opening and closing arguments. We rehearsed those arguments over and over again in front of our supervisors, others VLC students, and WilmerHale attorneys. These moots and the VLC’s supportive community of instructors, students, and friends provided the feedback that we needed to identify our most powerful arguments and address our blind spots.

Engaging with our clients was also a treat. When we received a positive decision from the judge in late December, it was a pleasure for me and Laurel to call our clients with the good news. Those phone calls, full of gratitude and warmth, are some of my fondest memories at Harvard Law.

Finding Purpose and Friends

Lastly, the VLC has had tremendous personal benefits for me. When I left the Army, I saw law school as a reset switch, and I did not have a clear vision of what I wanted to do as a lawyer. I enrolled in the VLC, in part, to find that purpose. A wise platoon sergeant had once advised me, “Take care of soldiers, and everything else falls into place.” As a platoon leader, I found deep satisfaction in supporting my soldiers, and through the VLC, I have found similar fulfillment in supporting veterans’ claims for education, healthcare, and disability benefits. In addition, through challenging and meaningful casework, I have discovered my passion for litigation as a means of advocating for others.

In the process, I have made some of my closest friends at Harvard Law. It might be that the Legal Services Center attracts exceptionally kind students, or that its instructors do a great job of fostering a supportive environment. In any case, I am grateful to have gained that community, and I look forward to staying in touch.

HIRC wins case for Guatemalan family

Via the Harvard Immigration and Refugee Clinical Program

Nate MacKenzie and Nora Picasso Uvalle, LLM ’19 (far right) pictured with their clients

On May 9th, Temporary Clinical Instructor Nate MacKenzie and clinical students Nora Picasso Uvalle LLM ’19 and Carolina Perez Feuerstein arrived at the Boston Immigration Court with their client and her family. They had submitted a massive, 650 page file that detailed how Isabel* and her children had faced severe persecution at the hands of corrupt government officials in their home country of Guatemala, and they we were ready to defend their case in court. However, just as they were beginning the trial, the judge did something unusual.

“The judge basically told the trial attorney that it was an incredibly well-documented case and pushed her to concede,” MacKenzie explained.

It was a joyful moment not only for Isabel and her family, but also Picasso and Perez Feuerstein, who had spent the entire semester helping build Isabel’s case, from preparing affidavits to researching country conditions to locating expert witnesses. MacKenzie noted that this is a true example of how, as he put it, “the real work is in the paper.”

Still, the students faced challenges in the case. As part of their preparation for trial, Picasso and Perez Feuerstein had to interview each of the clients numerous times. Tiny details, such as whether to translate a word as “village” or “town,” can affect the trajectory of a case so Isabel’s legal team had to ensure that they knew every aspect of her story. However, in the beginning, Isabel and her children felt frustrated when the students and attorneys asked them repeatedly about the same stories and events. Sensing this tension, Isabel’s attorneys and students decided to try to describe their legal strategy in a new way.

Picasso explained, “We just sat down and told them ‘We need to ask you these questions over and over again because we need to write a book about your lives and, for that matter, we need every single detail.’” With this new concept in mind, Isabel began to open up to the students and, ultimately, this helped Isabel’s legal team win her case in court. Picasso smiled as she recalled that, as they were leaving the courthouse, Isabel’s son said that now he wanted to write a story about his family and their lives.

Every day, clients like Isabel are required to share intimate details of their lives in order to seek refuge in the United States. Those seeking asylum and Withholding of Removal must provide proof of future harm, which often means recounting some of the most traumatic moments they have ever experienced. Both attorneys and students alike were inspired by Isabel’s courage to speak her truth in order to provide a better life for herself and her family here in the U.S.

“I think that I will never forget how much Isabel and her kids have taught me. Especially their strength and resilience in facing difficulties. It is an example that I will always have in mind when going through hard times,” Perez Feuerstein said.

*Client’s name has been changed to respect her privacy

A Guide to Fourth Estate v. Wall-Street.com

Via Cyberlaw Clinic 

Source: Pixabay

By: Sylvia Zhang, J.D. ’19

Section 411(a) of the Copyright Act states that “no civil action for [copyright] infringement…shall be instituted until preregistration or registration of the copyright claim has been made.”[1] In other words, copyright owners must “register” their copyrights before suing for copyright infringement. In Fourth Estate v. Wall-Street.com, decided in March 2019, the Supreme Court clarified that “registration” for the purposes of Section 411(a) occurs only when the Copyright Office registers a copyright and provides a certificate of registration and not when an applicant files for copyright registration.[2] Under this decision, copyright owners must wait for the Copyright Office to decide on their registrations before they are allowed to sue others for infringement. This decision could potentially create a substantial time lag during which copyright owners, especially those with limited budgets, are able to enforce their copyrights. This blog post summarizes the Fourth Estate case and its reasoning, the implications of the new rule, and some ways for copyright owners to respond, including how to register for copyright.

Summary of the Case

Fourth Estate is a news organization that licensed journalistic works to Wall-Street.com, a news website. Wall-Street eventually canceled the licenses but continued to display Fourth Estate’s works on its website without Fourth Estate’s consent. Fourth Estate then submitted copyright registration applications for these works and immediately sued Wall-Street for infringement. Wall-Street moved to dismiss the suit because the Copyright Office had not yet acted on Fourth Estate’s applications. The key dispute of this case is whether the Section 411(a) requirement of “registration” was met when Fourth Estate submitted a completed registration application or would only be met when the Copyright Office actually acted on the application. The Supreme Court sided with Wall-Street, holding that registration only occurs when the Copyright Office acts.

Circuit Split

Before the Fourth Estate decision, there existed a circuit split on this question. Some courts in the Fifth, Eighth, and Ninth Circuits followed the “application approach,” where the submission of a completed application to the Copyright Office was sufficient to meet the Section 411(a) requirement that “registration…has been made.”[3] Fourth Estate was a proponent of the “application approach.”

On the other hand, the Tenth and Eleventh Circuits followed the “registration approach,” which required the Copyright Office to make a decision on the application to meet the Section 411(a) requirement.[4] Wall-Street was a proponent of the “registration approach.” Because the Fourth Estatecase was originally brought in the Eleventh Circuit, the trial court and court of appeals both followed the “registration approach” and ruled in favor of Wall-Street.[5]

Supreme Court’s Reasoning

In Fourth Estate, the Supreme Court resolved the circuit split in favor of the “registration approach.” In a unanimous opinion authored by Justice Ginsburg,[6] the Court’s reasoning focused primarily on the statutory interpretation of Section 411(a) and the legislative history of the Copyright Act.

First, the Court focused on the basic statutory interpretation principle of keeping definitions consistent within a single statutory provision. The first sentence of Section 411(a) prohibits the initiation of an infringement suit until “registration…has been made.” The second sentence of Section 411(a) allows for the copyright applicant to initiate an infringement suit even if “registration has been refused” as long as the applicant serves notice to the Copyright Office.[7] In the second sentence, registration can only be refused if the word “registration” refers to a decision by the Copyright Office. Therefore, consistent with the principle that words within a single statutory provision should retain the same meaning, the Court reasoned that “registration” in the first sentence of Section 411(a) mustrequire a registration decision by the Copyright Office, and cannot refer to the mere submission of a registration application.[8] The Court also looked to other Copyright Act provisions that use the term “registration” to support its interpretation and applied the principle of avoiding statutory interpretations that create superfluous language.[9]

Second, the Court looked to legislative history. It found that, when Congress revised the Copyright Act in 1976, it endorsed the rule that an action by the Copyright Office is required to trigger a copyright applicant’s entitlement to sue.[10] Specifically, the addition of the second sentence of Section 411(a) in the 1976 revisions would be unnecessary if Congress meant to allow copyright owners to sue upon submitting an application. In addition, in 1993, Congress considered but declined to adopt a change that would allow a copyright applicant to sue immediately after submitting a registration application.[11] These pieces of legislative history supported the Court’s decision in favor of Wall-Street.com

The Court also dismissed Fourth Estate’s policy arguments. It found that waiting for registration from the Copyright Office would not deprive copyright owners of their rights, because once the Copyright Office decided on the application the applicant could still win damages for past infringements that occurred before registration.[12] The Court also pointed to preregistration (discussed in more detail below) as a way for time-sensitive works to acquire more protection.[13] Lastly, the Court noted that the long registration processing times at the Copyright Office cannot be a reason to interpret §411(a) differently. It said that the backlog is due to “staffing and budgetary shortages that Congress can alleviate, but courts cannot cure.”[14]

In sum, the Supreme Court adopted the “registration approach,” which means that copyright owners do not automatically have the right to sue once they submit a completed registration application but, rather, must wait until the Copyright Office actually provides a certificate of registration (or denial thereof).[15]

Implications

The Fourth Estate decision is likely to have at least five major sets of implications:

  • Impact on Copyright Owners. One crucial implication of the Fourth Estate decision is that it reduces the leverage of copyright owners by taking away their ability to threaten and initiate immediate legal action if they have not yet obtained registration decisions from the Copyright Office. Currently, it takes between one and seven months, with an average of five months, for the Copyright Office to process an application.[16] Copyright owners may be unable to seek preliminary injunctions that prohibit alleged infringers from using their work during that time. However, as the Supreme Court noted, the decision does not change the ability of copyright owners to eventually recover damages from infringement that occurred before registration and from the infringer’s profits.[17]

 

  • Inequitable Impact on Small Copyright Owners. Although the Fourth Estate rule applies to all copyright owners, the impact of the rule may disproportionately harm small copyright owners. As explained below, the Copyright Office offers an “expedited process” that costs $800 per registration and provides a registration decision much more quickly than the regular process. When faced with infringement, deep-pocketed corporate copyright owners are much more likely to be able to afford the expedited process than small and individual copyright owners. Moreover, the Fourth Estate registration rule favors copyright owners that have the resources to consistently register their works for copyright over those who would be hard-pressed to register each of their works.

 

  • DMCA Takedowns. It may also be more difficult for copyright owners to sustain a DMCA takedown request. After a copyright owner files a DMCA takedown to remove allegedly infringing work from the Internet,[18] an alleged infringer can file a counter-notice and have the work reinstated.[19] After a counter-notice has been filed, platforms or Internet service providers may refuse to respond to a second DMCA takedown notice unless the copyright owner presents proof that it has initiated a court proceeding. If a copyright owner cannot initiate court proceedings absent a copyright registration, the intermediary may put content back up before a lawsuit can be commenced.

 

  • More Registrations. Now that merely filing a registration application is not enough to bring suit, copyright owners are more incentivized to apply for registration as soon as possible. Before Fourth Estate, some copyright owners filed for registration only when they were planning to sue for infringement. Now, the Fourth Estate rule may cause an influx of registrations (both regular and expedited) at the Copyright Office, which could cause processing times to increase beyond the current average of five months. On the other hand, Fourth Estate has brought the issue of administrative lag at the Copyright Office to the attention of some senators, and could potentially lead to Congress’s provision of more resources to the Office and relieving some of the backlog.[20]

 

  • Less Forum Shopping and Fewer Frivolous Claims. Under Fourth Estate, the registration rule is now consistent throughout the country, which means that plaintiffs will no longer have an incentive to bring infringement cases in circuits where the rule was favorable to them. Moreover, the higher barrier to bringing copyright infringement suits may stop plaintiffs from bringing frivolous or peripheral copyright claims in order to threaten high statutory damages.

All in all, Fourth Estate does not change the copyright landscape drastically, because copyright owners have always had to register their works before suing for infringement and they can still recover all monetary damages, even those incurred before registration. The primary difference now is that there may be a substantial delay between application for registration and filing an infringement suit.

How Should Copyright Owners React? Register for Copyright.

Under Fourth Estate, a copyright owner must have a registration decision from the Copyright Office before it can sue someone for infringing its copyrightable work. If a copyright owner applies for registration only after it finds out about the infringement, the copyright owner could be waiting five or more months before the Copyright Office registers your work.

There are three ways for copyright owners to avoid the wait.

First, a copyright owner can apply for registration as soon as its works are published, so that it will have a registration decision from the Copyright Office at the ready. Early submission of registration applications may turn out to be the best and simplest approach for copyright owners in the wake of the Fourth Estate. Although this will not necessarily decrease the copyright owner’s total wait time, it could mean that the copyright owner will have a certificate of registration ready if its work is ever infringed, and it will not feel pressured to expedite the registration process. Moreover, registration also provides other benefits. For example:

    • Registration is prima facie evidence of the validity of copyright, which means that courts will presume that that the copyright owner’s work is protected by copyright.
    • When registration is made within the first three months of publication, the copyright owner will be eligible to win statutory damages and attorneys’ fees in an infringement suit, potentially making the threat of a lawsuit more alarming for the infringer.
    • Registration creates a public notice of the fact that a work is protected and of the identity of the copyright owner. This could help people who want to license the work to find the copyright owner.[21]

Registrations can be done online through the Electronic Copyright Office Registration System (called eCO) as well as through mail-in paper applications. Electronic applications are, however, cheaper and are reviewed faster than paper applications. Currently, the most basic application, which is for a single work owned by a single claimant who is also the author of that work, costs $35. Other online filings cost $55, while paper applications cost $85 or more. Photographers may be able to register up to 750 published photographs in one application under the Group Registration for Published Photographs procedure, as long as they were created by the same author in the same calendar year. For more information on how to register copyrights, see the two following guidance documents published by the Copyright Office: “Registering a Copyright with the U.S. Copyright Office” and “Copyright Office Fees (Circular 4).”

Second, for certain types of time-sensitive works, a copyright owner can apply for preregistration, which allows one to sue for infringement even before the works are published. Like registration, preregistration allows a copyright owner to initiate an infringement suit.[22] But, preregistration is limited to only a few types of works that tend to be infringed prior to authorized commercial distribution—specifically motion pictures, sound recordings, musical compositions, books, computer programs, and advertising or marketing photographs.[23] Other types of works are not available for preregistration. Moreover, preregistration is not a replacement for normal registration, so a copyright owner must still complete a registration application after publication. Preregistration is only available online and currently costs $140 per application.[24] For more information on preregistration, see the Copyright Office’s webpage.

Lastly, if necessary, a copyright owner can utilize the expedited application process and obtain a decision from the Copyright Office with much less delay. Expedited registration — which the Copyright Office calls “special handling” — is available for all types of works but is only granted in some specific circumstances. One such circumstance is where there is pending or prospective litigation.[25] For a registration with a special handling request, the Copyright Office “will make every effort to complete its examination of the claim…within five working days” of the request being made. But, it cannot guarantee that every claim will be registered within that time frame.[26] A copyright owner can request special handling when it first submits an application, as well as for an application that is already submitted.[27] Special handling for registration currently costs a hefty $800 per claim in addition to the regular application fee.[28] For more information on special handling, see the guidance document “Special Handling (Circular 10)” published by the Copyright Office.

Sylvia Zhang (HLS JD 2019) was an advanced clinical student in the Cyberlaw Clinic during the spring semester 2019. Note:  This post is informational and does not constitute legal advice; if you have questions about the applicability of the Fourth Estate decision to your own copyright registration activities, please consult a lawyer.

[1] 17 U.S.C. § 411(a) (2017).

[2] 139 S. Ct. 881, 892.

[3] See, e.g., Apple Barrel Prods. v. Beard, 730 F.2d 384, 386-87 (5th Cir. 1984); Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006); Cosmetic Ideas, Inc. v. IAC/Interactive Corp., 606 F.3d 612, 621 (9th Cir. 2010).

[4] See, e.g., LaResolana Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1200-01 (10th Cir. 2005); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1488 note 4 (11th Cir. 1986).

[5] See Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, No. 16-60597, 2016 U.S. Dist. LEXIS 187499, at *3 (S.D. Fla. Mar. 23, 2016); Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 856 F.3d 1338, 1341 (11th Cir 2017).

[6] Fourth Estate Pub. Ben. Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 886 (2019).

[7] 17 U.S.C. § 411(a).

[8] See Fourth Estate, 139 S. Ct.at 889.

[9] See id.

[10] See id. at 890-91.

[11] Id. at 891.

[12] See id. at 891.

[13] See id. at 892.

[14] Id. at 892.

[15] If the Copyright Office refuses registration, the applicant is allowed to sue for infringement as long as it serves a copy of the complaint to the Register of Copyrights (i.e. the director of the Copyright Office). In such a suit, the presiding court will also decide on the issue of registrability. See17 U.S.C. § 411(a) (2017).

[16] Registration Processing Times, U.S. Copyright Office (2019), https://www.copyright.gov/registration/d…See also FAQs, Copyright Office, https://www.copyright.gov/help/faq/faq-w… (last visited May 19, 2019).

[17] See Fourth Estate, 139 S. Ct. at 891; 17 U.S.C. § 504 (2017).

[18] See 17 U.S.C. § 512(c)(3) (2017).

[19] See id. at § 512(g)(3).

[20] See Steve Brachmann, Senators Tillis and Coons Express Concerns with Fourth Estate in Letter to Copyright Office, IP Watchdog (Mar. 26, 2019), https://www.ipwatchdog.com/2019/03/26/senators-tillis-coons-express-concerns-fourth-estate-letter-copyright-office/id=107697/See also Letter from Sen. Thom Tillis and Sen. Christopher Coons to Karyn Temple, Acting Register of Copyright (Mar. 14, 2019), [21] See U.S. Copyright Office, Circular 1: Copyright Basics 5 (2017), https://www.copyright.gov/circs/circ01.pdf.

[22] 17 U.S.C. § 411(a).

[23] Preregistration, U.S. Copyright Office, https://www.copyright.gov/help/faq/faq-prereg.html (last visited May 19, 2019).

[24] U.S. Copyright Office, Circular 4: Copyright Office Fees 3 (2018), https://www.copyright.gov/circs/circ04.pdf.

[25] U.S. Copyright Office, Circular 10: Special Handling 1 (2017), https://www.copyright.gov/circs/circ10.pdf.

[26] Id. at 2.

[27] Id. at 5.

[28] Id. at 2.

Clinic Submits Comments on EPA’s Proposed IRIS Assessment Plan for Methylmercury

Via the Emmett Environmental Law and Policy Clinic

The Clinic submitted comments  [earlier this month] on behalf of a group of leading scientists on the Environmental Protection Agency’s (EPA) proposed Integrated Risk Information System (IRIS) Assessment Plan for methylmercury.

The Clinic submitted the comments on behalf of Philippe Grandjean, Elsie M. Sunderland, David C. Bellinger, Joel D. Blum, Esben Budtz-Jørgensen, Laurie H.M. Chan, Celia Y. Chen, Charles T. Driscoll. Jr., David C. Evers, Kathy Fallon Lambert, Irva Hertz-Picciotto, Margaret Karagas, Sally Ann Lederman, Gina Muckle, Frederica Perera, and Ellen K. Silbergeld.  Students Nanding Chen and Veronica Wang wrote the comments in collaboration with Emmett Clinic Deputy Director Shaun Goho as well as Professors Grandjean and Sunderland.

The IRIS Program allows staff in EPA’s Office of Research and Development to assess the toxicity of chemicals independently of any specific regulatory program.  The results of IRIS Assessments then serve as a key source of toxicity information for EPA as well as state and local health agencies and other federal agencies.  At the conclusion of an assessment, EPA may establish a Reference Dose (RfD)—an estimate of the “daily oral exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime.”

Methylmercury is a highly toxic and bioaccumulative contaminant.  People are exposed to methylmercury primarily through consuming seafood and freshwater fish.  EPA last completed an IRIS Assessment for methylmercury in 2001.

Our comments:

  • Commend EPA for deciding to reassess the methylmercury RfD. We agree with EPA that a reassessment of the developmental neurotoxicity reference dose is “justified by recent epidemiological studies that analyzed effects at lower methylmercury exposure levels than those in studies used to derive the existing RfD.”
  • Urge EPA to acknowledge the imprecisions in exposure measurements that have deflated the RfD level, and account for such biomarker imprecisions in the reassessment.
  • Recommend that EPA account for genetic differences in susceptibility to methylmercury toxicity both in setting the RfD and in deriving the dose response relationship for developmental neurotoxicity outcomes.
  • Support EPA’s proposal to study a variety of DNT outcomes, including cognitive function and behavioral, structural, and electrophysiological effects, when setting the RfD. Specifically, IQ is not the optimal neurobehavioral outcome measurement for DNT effects of methylmercury.
  • Argue that EPA should include cardiovascular impacts in the IRIS assessment.
  • Advise EPA to be mindful of the possible complexities created by the confounding effects when interpreting studies of methylmercury exposure from fish consumption.

The Clinic’s comments are available here.

Clinic Reports Show Benefits of Joining the Nuclear Weapon Ban Treaty Outweigh Concerns

Via the International Human Rights Clinic

Source: Pixabay

By: Bonnie Docherty

As countries engage in national debates about joining the 2017 treaty banning nuclear weapons, they should focus on the treaty’s humanitarian and disarmament benefits.

To inform these discussions, the International Human Rights Clinic has released a new briefing paper and two government submissions that highlight the advantages of ratifying the Treaty on the Prohibition of Nuclear Weapons (TPNW) and seek to alleviate concerns some states may have.

Countries affected by nuclear weapon use and testing have much to gain from the TPNW’s provisions on victim assistance and environmental remediation. In a 9-page paper, the Clinic presents 10 myths and realities regarding the TPNW’s so-called “positive obligations.” It aims to raise awareness of these provisions and correct misconceptions and misrepresentations about their content.

The briefing paper explains how the TPNW spreads responsibility for assisting victims and remediating contaminated areas across states parties. While affected states should take the lead for practical and legal reasons, other states parties should support their efforts with technical, material, or financial assistance.

The paper also shows how the positive obligations can be effectively implemented and make a tangible difference, despite the devastating effects of nuclear weapons.

In recent government submissions, the Clinic has addressed the situation of countries that are members of or partners with NATO. It has called on Iceland and Sweden in particular to join the TPNW, but the arguments apply to any states in a comparable position.

Ratifying the TPNW would further these countries’ long-standing support of nuclear disarmament and promote compliance with the Nuclear Non-Proliferation Treaty. At the same time, members or partners of NATO or a similar alliance should not face legal obstacles to joining the TPNW. While a state party to the TPNW would have to renounce its nuclear umbrella status, it could continue to participate in joint military operations with nuclear-armed states.

The Clinic released related reports focusing on the Marshall Islands and Australia in 2018.

As of April 30, 2019, the TPNW had 70 signatories and 23 states parties. It will enter into force when 50 states have become party.

Clinical students Molly Brown JD ’19, Maria Manghi JD ’20, and Ben Montgomery JD ’20 worked on these publications under the supervision of Bonnie Docherty, associate director of armed conflict and civilian protection.

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