The Barbara McDowell Pro Bono High Impact Litigation Project is a program that aims to significantly and positively impact social justice concerns faced by indigent, charitable or civic groups unable to afford legal services. Through the High Impact Litigation Project, Foundation Chairman and President, Jerry Hartman, coordinates pro bono litigation in partnership with his former firm, Philadelphia-based Drinker Biddle, from which he retired in February 2017, other major law firms, and nonprofits from around the country.
The concept of the High Impact Litigation Project derives from the work championed by the late Barbara McDowell, a national leader in public interest advocacy, who died of brain cancer in January 2009, and served as the founding director of the Appellate Advocacy Project of the Legal Aid Society of the District of Columbia. Barbara was the wife of Drinker Biddle retired partner Jerry Hartman.
The purpose of the project is to enhance the economic, health, social condition and civil liberties of low-income and disadvantaged people through litigation, and legislative and administrative rule-making engagements, across a broad range of subject matters, including low-income housing, political asylum, domestic violence, human trafficking, children’s rights, immigration, disparities in community services, and opportunities for economic development. Barbara did extraordinary work on behalf of the disadvantaged and downtrodden and inspired a generation of public advocacy lawyers; she endowed the Legal Aid Society with a rich and compelling record of legal human rights achievement.
The Initiative is national in scope and supported by attorneys and other professionals at Drinker Biddle.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case is being handled by Drinker Biddle, Jerry Hartman, and Disability Rights North Carolina. The lawsuit challenges North Carolina’s failure to have a comprehensive or an effective plan for addressing unnecessary institutionalization and provide adequate alternatives to institutionalization.
Subsequent to over two years of discovery, the Court ruled in January 2020 on cross-motions for summary judgment holding that the defendant, the State of North Carolina, failed to abide by the Supreme Court’s Olmstead decision by not integrating into the community disabled individuals with I/DD residing in State institutions. The Court’s Order states that it will ordering the State to draft an Olmstead plan to comply with this integration mandate. The case will now proceed to the remedy phase unless the State appeals.
You can read more about the case in a recent press release from Disability Rights: Press Release Samantha R., et al v. North Carolina, et al.pdf
As part of its High Impact Litigation Project, the Barbara McDowell Foundation, in conjunction with the law firm Drinker Biddle, the National Center for Law and Economic Justice, and New Economy Project, filed a federal class action lawsuit charging the NYC Transit Authority, an arm of the Metropolitan Transportation Authority, with systemic due process violations. The civil rights action challenges the Transit Authority for seizing people’s state tax refunds to collect on alleged default judgments for NYCTA violations, some going back 20 years or more, without legally-required notice or opportunity to review documentation that would support the Transit Authority’s actions.
Filed jointly in the Southern District of New York, the lawsuit claims that the NYCTA has failed to provide even minimal documentation concerning alleged violations – including basic information concerning the original infraction or copies of any relevant notice. The Transit Authority’s failure to provide such information makes it all but impossible for those whose refunds were confiscated to effectively contest the default judgments against them.
The Public Interest Law Center and Drinker Biddle under the auspices of the Foundation's High Impact Project have filed complaints with the Philadelphia Human Rights Commission against landlords refusing to accept Section 8 Housing Vouchers from potential tenants who have low incomes.
In Philadelphia, Section 8 Housing Vouchers are administered through the Housing Choice Voucher program. More than 20,000 families are served by the program and the majority of them are minorities. Philadelphia’s Fair Practices Ordinance prohibits landlords from discriminating against tenants based on their source of income, including the use of Housing Choice Vouchers. The defendants in these cases have violated the Fair Practices Ordinance because they refused to accept tenants using Housing Choice Vouchers. The complaints are the first of their kind filed in Philadelphia.
The Philadelphia Inquirer featured a story about the case that can be found here.
The Bazelon Center for Mental Health Law, Disability Rights New York, Disability Rights Advocates, and Drinker Biddle under the auspices of the Foundation's High Impact Project are investigating a school system that fails to integrate school children into normal school classes and programs.
Drinker Biddle & Reath LLP, along with Disability Rights Advocates and the Washington Lawyers’ Committee, in coordination with the Barbara McDowell Foundation’s High Impact Pro Bono Litigation Project, secured a groundbreaking settlement that will have a profound, positive impact on those with disabilities in the nation’s capital and beyond.
The agreement settles a 2014 lawsuit filed on behalf of the United Spinal Association, DC Center for Independent Living, and two District residents with disabilities that alleged numerous critical deficiencies in the District’s emergency preparedness plan which, if left unaddressed, would have resulted in people with disabilities being left behind in large-scale disasters. These problems included not putting accessible evacuation options in place and not planning for emergency communications with persons with hearing and vision disabilities. This case was part of the Drinker Biddle Barbara McDowell High Impact Pro Bono Initiative.
As a result of this historic settlement, the District has agreed to a comprehensive three-year plan that includes: (1) creating a Disability Community Advisory Group that will provide disability-specific recommendations for emergency plans and trainings, (2) ensuring that emergency-related public communications are disseminated in accessible formats, (3) considering physical accessibility a priority when opening emergency shelters, (4) creating a Post-Emergency Canvassing Operation plan, (5) ensuring that transportation resources are sufficient to meet the potential demand for accessible transportation during emergencies, and (6) creating and implementing a work plan to improve procedures for evacuating people with disabilities from high-rise buildings.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”).
The American Immigration Council (“the Council”) represented by Drinker Biddle and Jerry Hartman, in coordination with the Barbara McDowell Foundation's High Impact Project, brought suit in the United States District Court for the District of Columbia on June 6, 2016, to force the United States Customs and Border Protection (“CBP”) to turn over information to it about complaints against agency personnel nine months after seeking the records through a Freedom of Information Act (“FOIA”) request.
The suit seeks an order forcing the prompt search and handover of information the Council requested regarding allegations of misconduct and the processing of complaints against CBP personnel, so that the Council can determine whether CBP has made progress in responding to complaints of abusive behavior by its agents.
In a previous FOIA request, the not-for-profit American Immigration Council obtained data from CBP containing information on 809 abuse complaints against CBP agents. That information was the basis of a 2014 report by the Council, called “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse.” That report found that in nine southwestern Border Patrol sectors, 40 percent of the complaints were for “physical abuse” and another 38 percent were for “excessive force.” Ninety-seven percent of the 809 cases examined were resolved by CBP as “no action,” according to the data produced by CBP in response to the prior FOIA request. The present suit is an effort to follow up on that report and to measure any progress made since January 2012.
As a result of the litigation, CBP produced documents demonstrating that it had not made any significant progress in addressing complaints of abuse filed against its agents. Based on the documents produced, the Council issued a second report in August 2017 entitled, “Still No Action Taken: Complaints Against Border Patrol Continue to Go Unanswered.”
In October 2019, the parties settled the case. Pursuant to the settlement, CBP will produce, within 45 days, an additional set of documents covering its response to complaints of abuse filed against its agents over the last three years. These documents will allow the Council to produce another report regarding CBP’s handling of complaints against it, with an eye towards determining whether the change in Administration has resulted in any change in the agency’s response to these complaints. As part of the settlement, CBP also will pay attorneys’ fees in the amount of $60,000.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”).
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability.
With much perseverance by pro bono counsel, CBP produced—on a rolling basis—thousands of pages of documents relating to complaints that noncitizens filed against CBP agents and officers, along with previously undisclosed copies of CBP’s manual for processing, investigating and resolving complaints. Sufficient data had been produced by August 2017, that the Council was able to issue a special report, entitled “Still No Action Taken; Complaints Against Border Patrol Agents Continue to Go Unresolved.” That report documents the seriousness of the complaint allegations, the majority of which involved physical abuse, but which also included sexual abuse, theft of property, and verbal abuse. A shocking 95.9% of the cases in which an outcome was reported by CBP resulted in “no action taken.” The FOIA and the Council’s special report have received widespread coverage, including citations in the media, reports by policy and research institutions, law review articles, and blogs—all of which has brought much-needed transparency to the ongoing inadequacies of CBP’s system for investigating complaints against its officers and disciplining them when warranted.
The FOIA production is concluded. The parties now are engaged in negotiations over attorney’s fees.
Samantha R., et al v. North Carolina, et al, pending in State Court in North Carolina, is systemic litigation designed to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case is being handled by Drinker Biddle, Jerry Hartman, and Disability Rights North Carolina. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily and thousands more at risk for institutionalization.
Discovery was conducted over the course of nearly two years, and revealed that the State does not have a comprehensive or effective plan for addressing unnecessary institutionalization, and has failed to provide adequate alternatives to institutionalization. The parties have filed cross motions for summary judgment, and a hearing has been set for October 30, 2019.
Dan Aiken, a partner at Drinker Biddle, under the auspices of the Foundation represents a Pennsylvania-based mother of two children, who seeks to terminate all parental rights of the children’s father, who was also the mother’s adopted father. Our client suffered more than 15 years of rape by her adopted father, beginning when she was four. Our client’s two children are the product of that abuse. Pennsylvania law has been interpreted, so far, to prevent our client from terminating her abuser’s parental rights unless she is seeking to do so in aid of giving up her children for adoption, or in aid of finding a new partner to adopt her children as a co-parent. We contend that these unnecessarily restrictive requirements violate our client’s rights under the United States and Pennsylvania Constitutions. So far, the trial court has found that, although termination of parental rights would otherwise be appropriate under the facts of our case, the law prohibited such an order given that there is no anticipated adoption. We have filed a Notice of Appeal and intend to continue litigating this issue. (September 2018)
Child Shackling Case
Drinker Biddle was asked by the Legal Aid Justice Center (“LAJC”) of Charlottesville, Virginia to participate in a federal district court case in Virginia to overturn a sheriff department policy requiring the use of restraints whenever transporting people with a mental disorder unless the “physical condition would not warrant the use of restraints.” The plaintiff bringing the claim was a nine-year old boy who was handcuffed and shackled by sheriff deputies and chained to the inside of a van while being transported from a Community Services Facility to a local hospital seventy miles away. The child was being transported after suffering a mental health crisis. At the time of the placement of restraints the child was awakened from his sleep and did not appear to be a danger to anyone, including himself. The child, who had a history of emotional disorders, suffered severe trauma as a result of the placement of restraints.
The case raises important issues concerning children’s rights to be free from such restraints without regard to the child’s age, mental condition, and physical condition. There is wide-spread concern by social justice organizations to challenge such conduct with respect to children by law enforcement agencies. The case was to be brought under Section 1983 for violation of the child’s constitutional rights under the Fourth Amendment to be free from unlawful seizure accomplished through excessive force and the child’s rights under Title II of the Americans with Disabilities Act for discriminating and failing to accommodate an individual with a mental disability.
After drafting the complaint and finding an expert to evaluate the nine-year old plaintiff, the plaintiff’s mother and doctor became concerned that the expert’s evaluation itself and the plaintiff’s necessary involvement in the litigation may result in further trauma to the child. Accordingly, authorization to bring the action on behalf of the child was withdrawn.
Drinker Biddle and LAJC continue to believe strongly that the Sherriff’s restraint policy is misguided and continues to cause harm to children with mental health disorders. Accordingly, Drinker Biddle and LAJC are monitoring the situation and looking for opportunities to attack the policy under the appropriate circumstances.
Update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016
Represented by Drinker Biddle, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. In a report published in 2014, entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” AIC had documented that 809 complaints alleging misconduct had been filed against CBP personnel during the three-year period running from 2009 through 2011, and that an astonishing 97% of the cases in which CBP issued a formal decision resulted in disposition of “No Action Taken” against the officer in question. The FOIA request AIC served in 2015 was designed to obtain records relating to more recently filed complaints to assess whether CBP was making progress in reducing the incidence of complaints against CBP personnel and of processing such charges in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. Since the suit was filed, CBP produced a 780-page spreadsheet that identifies certain data points concerning all complaints lodged against CBP personnel since January 2012. CBP is now in the process of producing the underlying documentation relating to a random sampling of more than 100 such complaints, the review of which is intended to allow AIC to determine whether the data provided in the spreadsheet accurately reports the facts as revealed in the underlying documentation, and is otherwise sufficient to meet AIC’s informational needs.
End of year 2017 update on “FOIA” Litigation Filed Against the United States Customs and Border Protection Service (“CBP”) in 2016.
Represented by Drinker Biddle and Jerry Hartman, the American Immigration Council (“AIC”) filed suit against the CBP in the United States District Court for the District of Columbia in June 2016, to compel compliance with a Freedom of Information Act (“FOIA”) request AIC had served in late 2015 to obtain records relating to complaints of misconduct lodged against Border Patrol officers since January 2012. AIC had previously published a report entitled “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse,” which documented that 809 complaints alleging misconduct had been filed against CBP personnel between 2009 and 2011, and that an astonishing 97% of the cases CBP took the time to resolve resulted in disposition of “No Action Taken” against the officer in question. The pending FOIA litigation relates to a follow-up FOIA request that AIC served in 2015 to obtain records relating to more recently filed complaints, in order to assess whether CBP was making progress in reducing the incidence of misconduct by CBP personnel and in processing complaints in a fashion that promotes accountability. Before filing its lawsuit in June 2016, AIC had received no substantive response to the FOIA request. After the lawsuit was filed, CBP produced a 780-page spreadsheet that identified all complaints lodged against CBP personnel since January 2012, and subsequently produced the underlying documentation relating to more than 100 distinct types of complaints of alleged misconduct, including physical abuse, sexual assault, failure to provide medical attention, and theft. Although now satisfied with CBP’s production of case-specific records responsive to its FOIA Request, AIC has pressed for production of additional records relating more generally to the procedures and policies CBP follows in processing those complaints. CBP has advised the Court and AIC that it expects to complete production of those documents by January 15, 2018.
Institutionalization and Segregation of Disabled Persons Under North Carolina’s Health Care System
Drinker Biddle and Disability Rights North Carolina have filed a lawsuit to address the failure of the State of North Carolina to provide appropriate behavioral health services to citizens with intellectual and/or developmental disabilities (I/DD). The case was filed on behalf of five plaintiffs with I/DD who are subject to improper segregation or are at risk of segregation. The lawsuit challenges the systemic flaws in the design, funding, implementation, and administration of the North Carolina’s health and human services system. There are thousands of people with I/DD in North Carolina who are institutionalized unnecessarily at great public expense. Moreover, the waiting list for community-based services and other deficits in community-based service system place thousands more at risk for institutionalization.
People with I/DD fare better in home and community-based settings and have a legal right not to be segregated or institutionalized unnecessarily. It is also significantly less expensive to provide support for people with I/DD to live at home than it is to keep them institutionalized. Nevertheless, North Carolina ranks 48th in the overall effect of state policies and practices on promoting independence for people with I/DD, according to a 2016 national report published by United Cerebral Palsy.
The complaint in the case was filed on May 24, 2017, in State court in North Carolina, alleging violations of the North Carolina Constitution and the State statute that bars discrimination and segregation based on disability.
In December of 2017, the North Carolina state Court upheld three out of four elements of the complaint, including all the provisions focused on the legal right of individuals to access home and community based services and avoid being subject to discrimination. Discovery and depositions in the case are ongoing.
Update on settlement in litigation brought by the New York Center for Law and Economic Justice and lawyers from Drinker Biddle on behalf of blind persons to receive Medicaid and food stamp information:
Rafferty v. Doar, is the federal class action that challenged New York State and New York City agencies long-standing, systemic failure to provide public assistance applicants and recipients who are blind or seriously visually impaired with information contained in written public benefit documents that is critical to maintaining their eligibility. A Consent Decree, followed lengthy and complex negotiations with the New York City Human Resources Administration (HRA), the New York State Office of Temporary and Disability Assistance (OTDA), and the New York State Department of Health (DOH). The federal court in the Southern District of New York approved the landmark settlement in October 2015. As part of the Consent Decree, quarterly reporting from the City and State agencies lists the numbers of individuals in the plaintiff class making alternate visual format requests and the types of formats they elect to access public benefit documents.
This reporting demonstrates the significant impact of the Rafferty settlement. Through May of 2017, OTDA has reported that: (1) 2,202 food stamp clients have requested and received eligibility documents converted into one of the four alternate visual formats; and (2) 377 clients have requested and received administrative fair hearing documents converted into one of the alternate visual formats. DOH has reported that 1,985 Medicaid clients have requested and received eligibility documents converted into one of the four alternate visual formats.
In conjunction with the Foundation’s High Impact Project, Children’s Rights and Disability Rights Iowa filed in November 2017 G.R. v. Foxhoven on behalf of all children confined to Iowa’s Boys State Training School who have significant mental illnesses. Jerry Hartman, President of the Barbara McDowell Foundation, and the law firm of Ropes & Gray LLP are co-counsel. The lawsuit asserts that these boys, aged 12 to 19, do not receive the mental health treatment needed to fulfill the facility’s mission of providing “a program which focuses on appropriate developmental skills, treatment, placements and rehabilitation.” Instead of providing this necessary mental health treatment, the facility to control youths incarcerated there relies upon potentially harmful psychotropic medications administered without appropriate oversight or consent, solitary confinement, and full-body mechanical restraints. Plaintiffs claim violations of their right to substantive due process, as guaranteed by the Fourteenth Amendment to the U.S. Constitution; their right to be free from cruel and unusual punishment, as guaranteed by the Eighth Amendment to the U.S. Constitution; and their rights under the Americans with Disabilities Act and the Rehabilitation Act. They are seeking a court order to prevent policies and practices that violate these constitutional and federal statutory rights.
Update on “Debtor Prison” Litigation Filed in 2015
Efforts continued in 2016 to reform the City of Austin’s practice of jailing individuals for failing to pay fines for petty misdemeanors and traffic tickets and failing to appoint counsel to those subject to those penalties. The action brought in the United States District Court for the Western District of Texas by a team of lawyers from Drinker Biddle, Susman Godfrey, Texas Fair Defense Project and the University of Texas Civil Rights Clinic was amended and refiled as Harris v. City of Austin, following which a setback was suffered when the district court dismissed that action without prejudice on March 16, 2016. The district court’s ruling does not prevent a new filing on behalf of a different plaintiff, but since the court’s ruling the litigation team has been working with a broad coalition on local legislative reforms to end the process of jailing individuals for petty misdemeanors and traffic tickets and to appoint counsel for those individuals.
The American Immigration Council (“AIC”) represented by Drinker Biddle brought suit in the United States District Courts for the District of Columbia on June 6, 2016, to force the United States Customs and Border Protection Service (“CBP”) to turn over information to it about complaints against agency personnel nine months after seeking the records through a Freedom of Information Act (“FOIA”) request.
The suit seeks an order forcing the prompt research and handover of information AIC requested in October regarding allegations of misconduct and the processing of complaints against CBP personnel, so that CBP can follow up earlier reports that detailed allegations of force and abusive behavior that, for the most part, met with no action by CBP.
In a previous FOIA request, the not-for-profit American Immigration Council obtained data from CBP containing information on 809 abuse complaints against CBP agents. That information was the basis of a 2014 AIC report called “No Action Taken: Lack of CBP Accountability Responding to Complaints of Abuse.” That report found that in nine Southwestern Border Patrol sectors, 40 percent of the complaints were for “physical abuse” and another 38 percent were for “excessive force.” Ninety-seven percent of the 809 cases examined were resolved by CBP as “no action,” according to the AIC’s report. The suit is an effort to follow up on that report and to measure any progress made since January 2012.
A settlement was reached in a case brought by a team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices in partnership with a team of lawyers from the National Center for Law and Economic Justice to represent a class of blind and seriously visually impaired individuals. The class sued the New York City Human Resources Administration, the New York State Office of Temporary Disability Assistance, the New York State Department of Health, and the Commissioners of these agencies for being denied their right to receive Medicaid and Food Stamps benefits information in formats that are accessible to them. See Rafferty v. Doar, No. 13-cv-1410 (S.D.N.Y.).
Lawyers from Drinker Biddle along with lawyers from the Texas Fair Defense, the University of Texas Civil Rights Clinic, and the Susman Godfrey firm in Houston, Texas brought a class action against the City of Austin in a case styled Gonzales v. Salazarasserting that its practice of incarcerating individuals for failure to pay their debts for fines and fees for petty misdemeanors, such as traffic tickets, without legal representation was unconstitutional in violation of the Sixth and Fourteenth Amendments to the United States Constitutions which protected their rights to counsel, due process, and equal protection. This case is the largest case to date of similar cases brought throughout the United States attacking similar practices by other jurisdictions. These suits have attracted media attention, including suits in the New York Times that appear here. An additional article can be found here.
A team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices in partnership with the DC Prisoners’ Project of the Washington Lawyers Committee for Civil Rights and Urban Affairs are investigating a possible lawsuit and other actions to be taken against state and federal government agencies relating to their treatment of residents of government and privately-run halfway houses. In particular, the team is investigating various constitutional violations including due process, equal protection, and cruel and unusual punishment, and will likely seek damages and injunctive relief in the eventual lawsuit.
District of Columbia Sued for Failure to Serve People with Disabilities During Disasters
A team of Drinker Biddle & Reath lawyers from the Washington office is partnering with a team of lawyers from the Disability Rights Advocates and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs to represent United Spinal Association and the DC Center for Independent Living, as well as three individuals. The class is suing the District of Columbia and Mayor Vincent Gray for the District’s poor emergency planning for persons with disabilities. United Spinal v. District of Columbia(U.S.D.C. for District of Columbia)
As alleged in the Complaint filed on September 9, 2014, the District of Columbia’s emergency planning violates the Americans with Disabilities Act, the Rehabilitation Act, and the D.C. Human Rights Act because of the District’s failure to publicize any information about accessible emergency shelters, failure to plan for emergency communications to persons who are deaf and blind, failure to put accessible evacuation options in place, and failure to plan for supply chain disruptions for medication and replacement durable medical equipment. The lawsuit seeks declaratory and injunctive relief requiring the District to develop and implement an emergency preparedness program that addresses the needs of persons with disabilities during emergencies.
The parties are engaged currently in settlement discussions and are working diligently toward resolving the issues raised by the class action complaint. The parties agreed to work with a mediator approved by the court, and conducted their first session with the mediator in February 2015. Since then, the parties have continued to meet to discuss the steps being taken by the District, the substance of the plans, and the involvement of people with disabilities in D.C. in the planning and implementation. The District reported that it has now completed its assessment of its emergency shelters for purposes of ensuring all are accessible to disabled persons and is working to implement changes that may be necessary. The District is also nearing completion of a draft of a new emergency preparedness plan designed to accommodate the needs of the District’s disabled citizens, and will be sharing the draft with plaintiffs’ counsel for their comments and input.
Update on the litigation at year-end 2017: The parties continue to mediate and are making great strides towards protecting the need of people with disabilities in D.C.
School Sexual Assault Case: Richards v. Williamson County Board of Education
On May 8, 2015, Barbara McDowell High Impact Litigation Project client Dallas Richards accepted a $100,000 offer of judgment in her sexual assault and bullying case brought against the Williamson County School System (Tennessee) in the U.S. District Court for the Middle District of Tennessee.
Ms. Richards had stopped attending a public high school in Williamson County, Tennessee, because school officials failed to take appropriate steps to protect her from sexual harassment and assault by a male student with a known history of violence and sexual misconduct. Ms. Richards endured several assaults before withdrawing from the high school, and was psychologically traumatized as a result. The suit was filed against the school district under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in schools that receive federal funds.
In 2013, while Ms. Richards was a senior at Independence High School, she was physically and sexually assaulted several times by Michael Alexander, a special education student with a history of violent behavior who was required to be supervised at all times by a faculty member or aide, pursuant to his Individualized Education Program. Prior to enrolling Mr. Alexander at the high school for the 2012-13 academic year, a law enforcement officer advised school officials that Mr. Alexander posed a safety risk to students. Mr. Alexander had been expelled from a previous private school for sexually harassing female students. Prior to that, while attending a middle school in the district, he had violently attacked both female and male students. The school board was aware of Mr. Alexander’s history before he sexually assaulted Ms. Richards.
The first assault took place in the school gym. Mr. Alexander grabbed Ms. Richards from behind and groped her breasts. Ms. Richards immediately reported the incident to a teacher and a coach who was supposed to be supervising Mr. Alexander. The school did not discipline Mr. Alexander or take any other remedial action.
The next series of attacks took place in the school’s athletic training room. Again, Mr. Alexander was left unsupervised. Ms. Richards was seated on a training table, when Mr. Alexander grabbed her and began to lick her leg and back. Ms. Richards yelled at Mr. Alexander to stop, and a male student in the room intervened, pushing Mr. Alexander off Ms. Richards. Mr. Alexander left the training room, but returned a bit later. He charged at Ms. Richards, grabbing her around the waist and legs. When she screamed, he wrapped his hands around her throat and began to choke her, then licked her face. This time it took two male students in the room to pull Mr. Alexander off Ms. Richards. Mr. Alexander then grabbed one of the male students by the hair and pulled him around, before exiting the room. Mr. Alexander returned to the training room a third time, and was even more violent. He grabbed Ms. Richards and tried to lick her buttocks. When she tried to free herself from his grip, he lifted her in the air, grabbing one of her breasts with one hand, and pushing his other hand in her vaginal and buttocks area. Ms. Richards screamed and he then dropped her on a training table. The school’s personal trainer overhead the screaming, entered the training room, and stopped Mr. Alexander’s attack.
Ms. Richards reported this series of attacks to several coaches. She also told her parents, who then met with the school’s principal, assistant principal, and special needs counselor. The parents expressed their concerns about the multiple attacks on their daughter and the school’s lack of supervision for Mr. Alexander. Mr. Alexander was suspended from school for five days. However, when he returned, he continued to walk the school’s halls unsupervised and verbally harassed Ms. Richards each time he saw her. Despite Ms. Richards and her parents’ complaints about this, the school took no action to protect Ms. Richards from the continuing harassment or to ensure that Mr. Alexander was supervised.
As a result of having to transfer to another high school in the midst of her senior year, Ms. Richards was also deprived of access to a number of educational benefits. She was unable to complete scholastic and extracurricular activities, including sports and serving as a buddy to special needs children. She was also unable graduate with a diploma in Criminal Studies, the discipline she had been pursuing, because it wasn’t offered at her new school.
The judgment covers almost all of Ms. Richards’ claimed damages. Ms. Richards was very happy with the result and relieved that her courage in taking this stand will inure to the benefit of both victims within the Williamson County school system as well as others across the country who have had to endure such personal assaults to their person and dignity.
Access By Blind Individuals To Food Stamps and Medicaid
A team of Drinker Biddle & Reath lawyers from the Washington and Philadelphia offices is partnering with a team of lawyers from the National Center for Law and Economic Justice to represent a class of blind and seriously visually impaired individuals. The class is suing the New York City Human Resources Administration, the New York State Office of Temporary Disability Assistance, the New York State Department of Health, and the Commissioners of these agencies for being denied their right to receive Medicaid and Food Stamps benefits information in formats that are accessible to them. See Rafferty v. Doar, No. 13-cv-1410 (S.D.N.Y.).
At present, the responsible agencies only provide Medicaid and Food Stamps materials in standard written formats, and have refused requests to provide these materials in formats such as braille, large print, or audio-recording that people with serious visual impairments can access without assistance. In doing so, these agencies have imposed significant hardships upon some of our most vulnerable citizens and have jeopardized their ability to receive federal benefits to which they are entitled and depend upon to survive. The team from Drinker and the NCLEJ is seeking declaratory and injunctive relief to compel these agencies to provide Medicaid and Food Stamps materials in formats accessible to those with serious visual impairments, as required by the Americans with Disabilities Act and myriad federal, state, and local laws and regulations.
On August 7, 2013, the US District Court for the Southern District of New York entered a stipulation and order, which certified a litigation class consisting of: “All New York City residents who: (1) have visual impairments that substantially limit the major life activity of seeing or otherwise have a visual disability as ‘disability’ is defined under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973; (2) are current or future applicants for or recipients of Supplemental Nutrition Assistance Program (‘SNAP’) and/or Medical Assistance (‘Medicaid’) benefits; and (3) need written materials in alternative formats for effective communication regarding SNAP and Medicaid.”
The parties are engaged in extensive settlement negotiations and are working diligently toward resolving the issues raised by the class action complaint. The Court has referred the case to the magistrate judge to facilitate negotiations toward a settlement agreement that Plaintiffs hope will be achieved in the near future. These negotiations have already benefited several members of the class, and we are optimistic that a settlement can be reached with the City and State that will ensure all blind and visually impaired residents of New York City have access to information about Medicaid and Food Stamps in formats that are accessible to them.
The Initiative has continued its earlier projects and has begun several new projects in 2012:
Exclusion of African Americans from Juries in Alabama Counties
In a decision filed March 28, 2012, the United States District Court for the Middle District of Alabama granted Defendants’ motion to dismiss, holding that the Equal Protection clause afforded no injunctive relief to Plaintiff jurors and that 18 U.S.C. Section 243 provides no private right of action. Applying a broad construction of the principles articulated in O’Shea v. Littleton, 414 U.S. 488 (1974), Younger v. Harris, 401 U.S. 37 (1971), and Luckey v. Miller, 976 F.2d 673, 679 (11th Cir. 1992), the district court reasoned that: (1) the relief requested by Plaintiffs would permit any member of a class subject to a peremptory strike to enforce an injunction which would necessarily interrupt a State criminal proceeding; (2) the enforcement of the injunction would require federal intervention and would be extremely intrusive on the state courts and the administration of state law; and (3) the collection of information concerning peremptory strikes and monitoring of State court proceedings would violate principles of comity.
Plaintiffs appealed to the 11th Circuit Court of Appeals. Among other things, Appellant argued that failure to grant injunctive relief would wholly deprive jurors subjected to discriminatory preemptive strikes (as distinct from a criminal defendant who may have divergent interests) of a remedy for Equal Protection violations and that the relief requested was distinguishable from O’Shea and Luckey because Appellants contemplated neither continuous federal oversight of State court proceedings nor utilization of the data collected as a predicate for a federal court order to enjoin a state proceeding. In an unpublished decision filed December 31 2012, the 11th Circuit Court of Appeals affirmed, emphasizing the intrusiveness of the requested relief. The 11th Circuit denied rehearing and rehearing The 11th Circuit denied rehearing and rehearing en banc. Consideration is underway with respect to filing a petition for review in the United States Supreme Court.
Equal Rights Center - Housing Discrimination Project
The Equal Rights Center (ERC) is a national non-profit civil-rights organization dedicated to promoting equal opportunity in housing, employment, and access to public accommodations and government services through education, research, testing, advocacy, and enforcement.
The ERC is currently conducting testing to determine whether housing providers in various geographic locations are discriminating on the basis of national origin. Drinker Biddle & Reath’s Barbara McDowell High Impact Pro Bono Initiative has teamed up with the ERC to prepare a public report highlighting key issues and concerns with respect to national origin discrimination. Following the release of the report, DBR may assist the ERC in its efforts to remedy any discriminatory practices discovered.
The Initiative has continued the projects that it began in 2009 and 2010. The following is an update:
Knox v. Mississippi:
Drinker Biddle obtained significant achievements in exposing the unfair treatment of death row prisoners while collaborating with individuals from the ABA Death Penalty Representation Project and counsel from Mississippi.
The collaboration began in the spring of 2009, as part of the firm’s pro bono litigation initiative in memory of Barbara McDowell, Washington D.C. Partner Jerry Hartman’s late wife and a well-known public interest lawyer. A complaint was filed with the Mississippi Chancery Court, asserting claims of a systemic failure to provide effective assistance of counsel by attorneys who represent death row prisoners in their post-conviction proceedings in Mississippi. (Knox v. Mississippi, Mississippi Supreme Court No. 2010-CA-00814)
While the Mississippi Supreme Court affirmed the trial court’s dismissal of our Complaint, important gains were nonetheless achieved through the litigation by publicly exposing years of unfair treatment of death-row prisoners.
Our complaint was the impetus behind two important Mississippi Supreme Court decisions that current and future death row prisoners will undoubtedly rely upon in bringing their individual successor post-conviction petitions challenging their convictions and sentences of death.
In, Stevens v. Mississippi, decided prior to Knox, the Mississippi Supreme Court provided the very remedy we were seeking in Knox, i.e., consideration of an ineffective assistance of post-conviction counsel claim. The decision in the Knox case affirmatively established for the first time in a published Mississippi Supreme Court decision that a prisoner on death row can assert state ineffective assistance of post-conviction counsel claims in a successor post-conviction petition even if he/she had not raised such a claim in an earlier petition.
Following the Stevens and Knox decisions, the court went a step further in the individual case of another Knox plaintiff, Blayde Grayson. This time in a published opinion, the court said “today we make clear that PCR petitioners who are under a sentence of death do have a right to the effective assistance of PCR counsel.”
On December 12, 2013, the procedure identified in Knox and the substantive law developed in Stevens/Grayson came together, resulting in a grant of relief for another Knox plaintiff, Alan Walker. In Walker v. State, the Mississippi Supreme Court held that the same office that represented all Knox plaintiffs had provided ineffective assistance of post-conviction counsel to Mr. Walker. The court granted Walker’s motion to file a successive claim for post-conviction relief and ordered a hearing to examine the merits of his claims. This is the precise remedy sought by the plaintiffs in Knox, and the decision is a momentous step toward securing effective representation and due process for all persons facing a sentence of death in Mississippi.
Less than four months after its decision in Walker, the Mississippi Supreme Court granted full relief to another Knox plaintiff, Michelle Byrom. The court’s order, issued March 31, 2014, granted Ms. Byrom’s motion to file a successive petition for post-conviction relief, and then overturned her conviction and death sentence. The unanimous court acknowledged that its decision was “extraordinary and extremely rare” but did not explain its rationale. The decision came just days after the Mississippi Attorney General had requested that the court set an execution date by March 27th for Ms. Byrom.
Instead, the court agreed to review startling new evidence of her innocence which had attracted national media attention. Ms. Byrom had been represented by the same inadequate state post-conviction office that negligently represented other Knox defendants. Had she received competent representation, this evidence might have been discovered years earlier. Following the court’s decision, Ms. Byrom agreed to plead no contest in exchange for her release. The court sentenced Ms. Byrom to time served, and she was released on June 26, 2015, after spending 16 years in prison, 14 of those on death row. Numerous stories appeared in the press reporting on this case and they appear here. Additional news story about her release available here.
Of the original 16 plaintiffs in the litigation, further litigation occurred with respect to eight of them in addition to Michelle Byrom. The other seven original plaintiffs were executed. Richard Jordan, after denial of his appeal to the United States Supreme Court with three Justices dissenting, is awaiting a determination of his clemency petition. Willie Manning was granted post-conviction relief vacating his conviction and sentence and granted a new trial. This relief was based upon his initial post-conviction petition. Steve Knox had his proceedings stayed indefinitely by the Mississippi Supreme Court to allow consideration of his motions for funding and discovery. Alan Walker was granted leave by the Mississippi Supreme Court to file a successor post-conviction petition based on post-conviction inadequate assistance of counsel. The case was remanded on that issue. Blayde Grayson achieved a significant victory when the Mississippi Supreme Court issued an opinion holding a constitutional right to effective assistance of counsel in state post-conviction proceedings. The Mississippi Supreme Court held that he had inadequate counsel but it was not prejudicial. His motion for access to experts was granted. Jeffrey Harvard’s motion for leave to file a successor post-conviction petition was denied by the Mississippi Supreme Court but it apparently did not raise the issue of post-conviction ineffective assistance of counsel. Stephen Powers was granted the right to file a federal habeas petition prior to the conclusion of the Knoxlitigation. Thong Le had his post-conviction relief denied by the Mississippi Supreme Court but is likely proceeding with federal habeas proceedings.
Exclusion of African Americans From Juries in Alabama Counties:
On October 19, 2011, Drinker Biddle & Reath LLP (“DBR”), in collaboration with the Equal Justice Initiative of Montgomery, Alabama (“EJI”), filed a first of its kind civil class action in the United States District for the Middle District of Alabama. This class action was filed as part DBR’s Barbara McDowell Pro Bono Initiative, which is a program that aims to significantly and positively impact social justice concerns faced by indigent, charitable or civil groups unable to afford legal services.
The lawsuit, entitled Dennis Hall, et al. v. Douglas Albert Valeska, et al., 11-cv-894 (M.D. Ala. 2011), seeks to eradicate the long-standing pattern and practice of Alabama state prosecutors’ use of peremptory challenges to exclude otherwise qualified African Americans from serving on juries in serious felony cases (principally capital cases) in Houston and Henry Counties, Alabama, solely because of their race in violation of the U.S. Constitution, federal and anti-discrimination laws, including the federal Civil Rights Act of 1875, and state law. As the United States Supreme Court has recognized, “the opportunity for ordinary citizens to participate in the administration of justice has long been recognized as one of the principal justifications for retaining the jury system.”
The Complaint alleges that Defendants’ illegal pattern and practice has been in force for decades and continues to the present day, and is evidenced by statistical data and acknowledged by rulings of the Alabama Court of Criminal Appeals. From 2006 to 2010, for example, state prosecutors in Dothan, Alabama used peremptory strikes to exclude 82% of qualified black jurors in death-penalty cases. Houston County has the highest per capita death sentencing rate in Alabama. In addition, Alabama appellate courts have reversed several cases finding that Mr. Valeska’s office excluded black prospective jurors in order to ensure that African Americans would not serve on juries that Mr. Valeska and his assistants were unfairly suspicious of black potential jurors. Through their request for declaratory and injunctive relief, Plaintiffs – five African American residents of Houston and Henry Counties who were themselves victims of Defendants’ discriminatory conduct – seek to put an end to Defendants’ unlawful discriminatory conduct and prevent any further harm to them, other qualified African-American citizens who reside in Houston and Henry countries, and the community at large. Plaintiffs seek, among other injunctive relief, ongoing federal court monitoring of jury selection in Houston and Henry Counties.
Obtaining Food Stamps for District of Columbia Residents
Legal Aid reached a settlement agreement with the District of Columbia Department of Human Services (DHS) and the District of Columbia Department of the Environment (DDOE) that will result in additional Food Stamps benefits for thousands of District residents. Working with the law firm of Drinker Biddle & Reath LLP as a project of the firm’s Barbara McDowell Pro Bono Initiative, Legal Aid brought suit against DHS and DDOE at the Office of Administrative Hearings when the District failed to implement the Food Stamps Expansion Act of 2009 in a timely matter. Harris v. D.C. Department of Human Services and D.C. Department of the Environment (Administrative Agency in the District of Columbia)
Food Stamps are a critical benefit that enables thousands of District families to put food on the table. This is a federal program that helps low-income families and individuals buy food and stimulates the District economy through these food purchases. According to the U.S. Department of Agriculture, in 2010, there were approximately 119,000 individuals in approximately 66,000 households receiving Food Stamps in the District with each household receiving, on average, about $250 per month.
The legal dispute centered on the date on which the Food Stamps Emergency Expansion Act of 2009 became effective. Among other changes, the Food Stamps Expansion Act increased Food Stamps allotments for thousands of beneficiaries by making all beneficiaries eligible to receive the maximum “Standard Utility Allowance” in their shelter cost calculations. For some beneficiaries, this will result in a larger deduction from their countable income for shelter expenses which will lower their net income sufficiently to receive a higher Food Stamps allotment for the household.
Because the District government failed to begin implementing the Act by the spring of 2010, Legal Aid with the assistance of attorneys from Drinker Biddle filed fair hearing requests with the Office of Administrative Hearings (OAH) in July 2010 challenging the failure to implement the benefits expansion. In its brief to OAH, Legal Aid argued that Food Stamps beneficiaries were entitled to the expanded benefits as of October 15, 2009 – the effective date of the emergency legislation containing the Food Stamps Expansion Act.
The District government agreed to mediate the dispute, and after several months of negotiating, a settlement was reached. Under terms of the settlement, the District agreed to recalculate Food Stamps benefits for all current and former beneficiaries who were receiving benefits at any time between January 2010 and the present using the maximum Standard Utility Allowance and award any resulting increased benefits. In addition, DHS and DDOE finalized their memorandum of understanding so that the maximum Standard Utility Allowance is now being awarded to all beneficiaries prospectively as of February 1, 2011. The agreement stated that the expected time frame for the recalculation of the retroactive payments is expected to be 24 months.
This is an important victory for Food Stamps beneficiaries. Families with children and extremely low-income individuals, many of whom have no other source of income, will be able to feed themselves much better because of this case. The fact that this settlement was obtained through a project created in the memory of Barbara McDowell makes this settlement even more meaningful for Legal Aid.