2017-2020 Grantee Case Updates
As part of the Foundation’s ongoing tracking and reporting of its grant-funded cases, the Foundation annually requests case updates from former grantees on the cases in which they received funding. These case updates are critical in demonstrating and measuring the impact of the Foundation’s funding efforts and the importance of our grantees’ work.
Below are case updates provided from 2017 – 2020 grantees since updates were provided in 2020.
2020 GRANTEES
National Veterans Legal Services Program
On March 11, 2022, the United States District Court for the District of Columbia granted the plaintiffs’ motion for class certification. Briefing on cross motions for summary judgment is currently underway.
Fair Elections Center
In October 2021, Fair Elections Center won reversal of the district court's ruling dismissing our federal lawsuit as moot. The decision of the U.S. Court of Appeals for the Sixth Circuit was unanimous 3-0. The case was remanded to district court and has been pending for the better part of a year on the cross-motions for summary judgment that were fully briefed as of December 5, 2019. The district court must now rule on the merits, and we anticipate a decision soon.
National Women’s Law Center
On July 28, 2021, the court in Victim Rights Law Center partially vacated the DeVos Title IX rule, in a significant win. The court held unlawful the portion of the rule which required postsecondary schools to exclude all oral or written statements made by any party or witness who did not submit to cross-examination at a live hearing. This provision meant that college and graduate school survivors were required to submit to cross-examination by their harasser or abuser’s advisor in order for the statements in their formal complaint or Title IX interview to be considered as evidence. The exclusionary rule also meant that Title IX respondents could exclude a confession or apology from the evidence by simply refusing to be cross-examined. Similarly, schools could not consider statements in a text message, email, rape kit, police report, etc. if the person who wrote the statements was not available or was too afraid to appear for cross-examination. In vacating the exclusionary rule and remanding it to the Department of Education, the judge remarked that this exclusionary rule rendered Title IX hearings “a remarkably hollow gesture.” After all, while complainants would have to submit to cross-examination at a live hearing for their evidence to be admitted, a respondent could simply refuse to attend the hearing and persuade other witnesses not to attend and then “rest easy knowing that the school could not subpoena other witnesses to appear.” He noted that “[t]his is not some extreme outlier or fanciful scenario.” As a result, he concluded “the Department failed, even implicitly, to consider the consequences” of the exclusionary rule. The Department of Education is no longer enforcing this provision. Unfortunately, the court held that the remainder of the rule survived our APA challenge. We appealed this decision to the First Circuit, but have agreed to stay the appeal pending the Department of Education’s issuance of a NPRM revising the Title IX rule; the NPRM is expected to be released this month.
National Center for Law and Economic Justice
The Foundation's $40,000 grant in 2019 enabled NCLEJ to play the lead role in a significant class action entitled McCullough v. City of Montgomery. This case challenges a series of interwoven policies and practices of the City of Montgomery, Alabama, designed to increase municipal budgets at the expense of low-income people of color. The City does this by repeatedly ticketing them, subjecting them to coercive private "probation" schemes, jailing them when they could not pay, and forcing them to work while jailed to pay off their debt.
The case was initially filed by a retired law professor and a well-known but under-resourced civil rights law firm. They survived motions to dismiss through the 11th Circuit but lacked the resources to pursue the surviving claims through discovery, summary judgment, and trial. Without the support from NCLEJ and the additional pro bono resources we secured from Dentons, the litigation could not have survived.
The McCullough litigation challenges discriminatory policing and debt collection practices that have subjected communities of color in Alabama to unreasonable intrusion and relentless revenue harvesting. Though previous lawsuits have challenged some of this same conduct, those lawsuits never succeeded in forcing the City to change its practices, and the City and its contractor have never been held accountable to the thousands of people harmed by these unlawful and discriminatory practices.
During the grant year, NCLEJ engaged in intensive litigation on a highly compressed schedule. We completed discovery in three months, after which we immediately began summary judgment briefing, a Herculean effort involving full-time effort from almost every member of NCLEJ's staff. We survived summary judgment and proceeded to class certification alongside a companion case, Carter v. City of Montgomery.
As previously reported, the parties initially briefed class certification during the summer of 2020, culminating in a two-day evidentiary hearing. On December 24, 2020, the district court denied class certification because we did not have an administratively feasible method of identifying class members. Still, we successfully appealed to the Eleventh Circuit, which reversed, sending the case back to the district court. In May 2021, the district court again denied class certification, and we sought leave to appeal.
Since our last report, the Eleventh Circuit granted our motion for leave to appeal, and a briefing is underway. There has been no significant media coverage or court decisions since our last report.
2019 GRANTEES
National Center for Law and Economic Justice
In 2019, the Foundation awarded NCLEJ $30,000 in support of Black Love Resists in the Rust v. City of Buffalo, a class action lawsuit intended to redress and reform racially discriminatory policing practices. Before filing, the Buffalo Police Department (BPD) had conducted thousands of "traffic safety" stops at police checkpoints overwhelmingly concentrated in low-income communities of color. So common were the Checkpoints that Buffalo's East Side residents lived their daily lives under near-constant police surveillance. Plaintiffs allege that Defendants targeted and continue targeting them for increased police enforcement to generate revenue for the City budget, as in Ferguson, Missouri. We engaged in extensive discovery and community outreach efforts with the Foundation's support. Because the City refused to turn over basic data on ticketing practices, we successfully subpoenaed this information from third parties. We then hired experts to help us interpret and analyze the data. After the grant period ended, we amended our complaint to include new allegations of discriminatory ticketing practices outside of Checkpoints, and we added five new named plaintiffs, whose stories fill out the range of discriminatory ticketing practices employed by the BPD.
Since our last update, provided in April 2020, we have continued to litigate the case aggressively despite extraordinary intransigence by the City in refusing to comply with basic discovery obligations. We had to file four separate motions to compel, and the district court eventually ordered sanctions against the City, which spurred the City to produce documents. We have subpoenaed and are analyzing updated ticketing data for 2020 and 2021. We have reviewed nearly 90,000 documents, with review ongoing. We have conducted ten depositions and expect to take at least another ten during Summer 2022. We expect to conclude discovery and move for class certification in September 2022. We featured this case and our community clients at our 2021 Catalyst Awards celebration (watch video). The case continues to generate local media attention.
Media
Racial profiling in Buffalo traffic enforcement hard to gauge with imperfect data | News 4Buffalo (wivb.com)
Buffalo Council president says racial disparity in police traffic stops does exist | News 4Buffalo (wivb.com)
EXCLUSIVE: Critics say Buffalo Police's traffic enforcement targets minorities – and there's data that supports their claims | News 4 Buffalo (wivb.com)
Prisoners’ Legal Services of Massachusetts
Plaintiffs are men who have been civilly committed for inpatient treatment for an alcohol or substance use disorder under Massachusetts General Laws Chapter 123, Section 35 (“Section 35”). Although they have not been convicted or even charged with any crime, they are incarcerated in one of two separate correctional facilities: (1) the Massachusetts Alcohol and Treatment Center or MASAC operated by the Department of Correction, and (2) the Stony Brook Stabilization Center operated by the Sheriff of Hampden County. Every year, Massachusetts incarcerates about 2,000 men under Section 35 either at MASAC or the Hampden County facility.
The legal claims are:
(1) Incarcerating civilly committed men but not women constitutes gender discrimination in violation of the 14th Amendment to the U.S. Constitution, the Massachusetts Declaration of Rights, and the Massachusetts Equal Rights Act. Under Section 35, men who need inpatient treatment for alcohol or substance use disorders go to prison, while women receive treatment community facilities.
(2) Civil commitment to a correctional institution for treatment of a medical condition constitutes unlawful disability discrimination in violation of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Article 114 of the Massachusetts Declaration of Rights. By subjecting men to stigma and punishment instead of treatment, Section 35 perpetuates unwarranted negative stereotypes, and reinforces the perception that they are second-class citizens unworthy of bona-fide treatment.
(3) Civil commitment to a prison violates the substantive due process provisions of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Articles 1, 10, and 12 of the Massachusetts Declaration of Rights.
The suit seeks a declaratory judgment that Plaintiffs’ incarceration violates the constitutional and statutory provisions referred to above, and a permanent injunction prohibiting civil commitments under Section 35 to a correctional facility. The Complaint names as Defendants the Commissioner of the Department of Correction, the Sheriff of Hampden County, the Commissioner of Public Health, the Department of Public Health, the Secretary of the Executive Office of Public Safety and Security, and the Secretary of the Executive Office of Health and Human Services.
Since we filed the suit, the Defendants have implemented numerous changes at both MASAC and Hampden County, including removing all sentenced prisoners from the facility, turning all day-to-day operation over to the clinical provider, and expanding treatment. We have filed two amended complaints describing these changes, and the court has certified the case as a class action.
In March of 2021, the Defendants filed a motion for Partial Judgment on the Pleadings seeking a ruling that Section 35 is not unlawful on its face because a correctional facility, such as MASAC, could at least theoretically be operated as a treatment facility. Plaintiffs opposed this motion on grounds that confinement in a correctional facility for treatment of a disease is inherently stigmatizing and discriminatory. On December 29, 2021, the court issued a rather odd decision holding that Section 35 is not facially unconstitutional, but only because it could be implemented without sending anyone to a correctional facility if DPH created enough treatment beds in the community. Since our position is that only the portion of the statute that allows for incarceration is unconstitutional, we agree with that reasoning. Defendants, however, asked the Court to report the case to the Supreme Judicial Court, but that motion was denied. We are now proceeding with discovery and expect a trial in 2023.
2018 GRANTEES
Bazelon Center for Mental Health Law
The Barbara McDowell Foundation provided support to our ongoing case, Georgia Advocacy Office, et al v. State of Georgia, et al. The Judge David L. Bazelon Center for Mental Health Law, along with co-counsel the Center for Public Representation, the Georgia Advocacy Office, the Arc of the United States, the law firm of DLA Piper, and the Goodmark Law Firm, assert that the State of Georgia is discriminating against thousands of public school students with disabilities by placing them in the separate and unequal Georgia Network for Educational and Therapeutic Supports Program (GNETS). The complaint, filed in United States District Court for the Northern District of Georgia, alleges that GNETS students are unnecessarily segregated and denied the opportunity to be educated in local schools alongside their non-disabled peers in violation of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and the Fourteenth Amendment to the U.S. Constitution.
This case will have significant impact in Georgia. Approximately 5,200 students with disabilities are in the GNETS system. As described in our complaint, GNETS operates 53 segregated “centers,” where only children with disabilities are enrolled, as well as satellite classrooms, also segregated by disability, attached to numerous neighborhood schools. In addition, GNETS students are disproportionately children of color – 54 percent versus 37 percent in all public schools statewide. In half of the GNETS schools, the number of African-American students is more than 50 percent. And in one program, 9 out of every 10 students are African American.
On March 19, 2020, the court overseeing the case denied the State’s motion to dismiss the complaint, finding for plaintiffs on all issues. The court acknowledged the plaintiffs’ contentions that unnecessary segregation in GNETS schools and classrooms stigmatizes students with disabilities, in violation of the ADA, and held that the State must demonstrate a substantial interest in segregating the students to show that such segregation is constitutional. The court’s decision permitted fact-finding in the case to begin and we are currently in the discovery phase. The Court denied our (delayed) request that our case be consolidated with a parallel case filed by the U.S. Department of Justice being heard by another judge. Nonetheless, we and DOJ are collaborating. One of our experts will soon tour some of the regional GNETS programs. It looks like the funding structure for GNETS may be changing, in large part as a result of our case. If that change occurs, we will need to evaluate its impact. One possibility is that we will join some local school districts as defendants.
The Bazelon Center’s Legal Director Ira Burnim states, “The grant from the Barbara McDowell Foundation allowed us to make a significant investment in the case, allowing it to move forward, including recruiting a team of impressive experts.”
Media
The Atlantic, “The Separate, Unequal Education of Students with Special Needs,” March 21, 2017, by Timothy Pratt
Atlanta Journal-Constitution, “Georgia psychoeducational schools an unconstitutional 'dumping ground,' new suit claims,” October 11, 2017, by Alan Judd
The New Yorker, “Georgia’s Separate and Unequal Special –Education System,” September 24, 2018, by Rachel Aviv
Children’s Rights
The first-class action lawsuit to shine a federal spotlight solely on the overuse of psychotropic medications among vulnerable, at-risk populations, M.B. v. Tidball addresses longstanding, dangerous, unlawful and deliberately indifferent practices by Missouri’s child welfare system, including:
Failure to ensure that powerful psychotropic drugs are administered to children safely and only when necessary;
Failure to maintain complete and current medical records for children in foster care and to provide those records to foster parents and health providers to ensure effective and well-informed treatment;
Failure to maintain a secondary review system to identify and address high risk and outlier prescriptions to children when they occur; and
Failure to assure and document meaningful, informed consent in relation to the administration of these drugs.
Children’s Rights settled M.B. v. Tidball in 2019, and early data suggests a decline in the number of children on psychotropic medications. One of the most significant achievements to date is the development and publication of the first Psychotropic Medication Excessive Dosage Guidelines for Children in Foster Care by the settlement-created Psychotropic Medication Advisory Committee (PMAC). The publication of these guidelines by the PMAC represents a greatly needed advancement in the provision of mental health care to children in foster care and provides a template for other states to follow. This document can be accessed from the dedicated Psychotropic Medication Settlement page maintained by the Missouri Department of Social Services. >> Access the document
Children’s Advocacy Institute of the University of San Diego School of Law
A grant from the Barbara McDowell Foundation supported the Children’s Advocacy Institute (CAI) as it prepared to file suit to establish the right of foster children to attorney representation. These children are subject to the parental jurisdiction of the courts, which determine where they are to live, what school they will attend, who they may see, etc. — sometimes for the entire 18 years of childhood. The impact that these proceedings have on these children’s lives warrants the appointment of competent, trained attorney to represent them. One decision has been favorable to this theses, the Kenny A. case in Atlanta, but it was a district court case that was not appealed and is not considered precedent. And regrettably, many states ignore the basic right of these children to have legal representation.
During the grant period, CAI identified Indiana as the appropriate violative state to create a holding at the circuit or U.S. Supreme Court level, in order to have national impact. Indiana has a balkanized and confusing system where children often lack even a lay Guardian Ad Litem (GAL), and hence transgresses even the narrower obligation under the federal Child Abuse Prevention and Treatment Act (CAPTA). While extremely beneficial, lay GALs are not authorized to practice law, and the protection of these children requires the ability to engage fully in judicial proceedings. Also during the grant period, CAI lined up allies into a formidable litigation group, including pro bono co-counsel from Morrison and Foerster and Delaney and Delaney; made significant progress toward identifying children to serve as appropriate class representatives; and engaged in pre-filing discovery.
After the grant concluded, CAI filed its complaint in U.S. District Court for the Southern District of Indiana. The lawsuit sought certification of a class of more than 5,000 children and sought declaratory and injunctive relief that would require appointment of licensed attorneys to represent children in Child in Need of Services proceedings. Unfortunately, we did not succeed, despite making every effort possible. The District Court dismissed the case, we lost on appeal to the Seventh Circuit, and the U.S. Supreme Court denied our petition for writ of certiorari.
However, on a related front, CAI has been urging Congress for years to amend CAPTA to require the appointment of counsel to foster children involved in legal proceedings. We are cautiously optimistic that this might finally become a reality as part of the pending CAPTA Reauthorization Act.
Media
Lawsuit Seeks Constitutional Right to Counsel for Kids in Three Indiana Counties (Chronicle of Social Change) (2/6/19)
Suit Seeks to Require Counsel for Kids in CHINS Cases (Indiana Lawyer) (2/6/19)
Lawsuit looks to provide legal counsel for Indiana kids involved in child welfare cases (Fox59) (2/8/19)
2017 GRANTEES
The five 2017 grantees all reported that their grant-funded cases have ended and therefore have no further updates since 2021. These grantees include:
The following six grantees reported that they have no new updates since their last report in 2021: