“A Unique Lawyer.” Why a Foundation Supports Legal Action for Social Justice

By Ade Adeniji, Inside Philanthropy, July 6, 2021 (reprinted with permission)

The Barbara McDowell and Gerald S. Hartman Foundation was founded in 2009 to improve the economic well-being, social conditions and civil liberties of disadvantaged persons and groups in the United States. It bears the name of New York City native Jerry Hartman, a veteran attorney, and his late wife Barbara McDowell, a prominent attorney and social justice advocate. Barbara was active with the Legal Aid Society, serving as founding director of what is now the Barbara McDowell Appellate Advocacy Program.

McDowell won several pivotal cases establishing the rights of the poor in areas like housing, public benefits and domestic violence. But then, at just 56, she passed away from brain cancer, and Hartman had to figure out a way to live on and live out her legacy. He launched a foundation that makes grants to organizations that undertake systemic and social justice litigation. It also engages in direct pro bono litigation through its High Impact Litigation Project.

Hartman emphasized the uniqueness of the foundation’s grants, which often support specific cases. For instance, a 2018 grant to Bazelon Center for Mental Health Law in Washington, D.C., backed a suit asserting that the State of Georgia is discriminating against disabled children by not placing them alongside non- disabled children in public schools in violation of federal law. 

Since its creation, the Barbara McDowell Foundation has supported over 60 such social justice litigation cases with nearly $1,200,000 in grants to 45 organizations. It has also coordinated some 20 cases and investigations as part of its High Impact Litigation Project.

I recently connected with Hartman to unravel this deeply personal story and find out more about how his foundation operates.

“A unique lawyer” 

“She was really a superstar. Of course, I’m prejudiced, being her husband. But she really was,” Hartman said as he began to talk about his late wife. A Yale Law graduate, McDowell clerked for Justice Byron White. One of her co-clerks was Ron Klain, now President Joe Biden’s chief of staff. Eventually, she joined powerhouse law firm Jones Day, where she made partner. She went on to the Solicitor General’s office, and holds the rare distinction of arguing two cases before the United States Supreme Court on the same day.

In 1999’s Minnesota v. Mille Lacs Band of Chippewa Indians, McDowell defended the tribe’s retention of hunting, fishing and gathering rights, guaranteed to them in an 1837 treaty. To prepare for the argument, she traveled to Minnesota to meet Chippewa leaders, who gathered around a lake at dawn to pray for justice. Partly through McDowell’s efforts, it was delivered.

In 2007, Barbara McDowell was diagnosed with glioblastoma, the same type of aggressive brain tumor that also took the life of Sen. John McCain, President Biden’s son Beau, and Senator Ted Kennedy. It’s rare, affecting three out of every 100,000 Americans, and few survive beyond a year or so. McDowell lived 14 months, passing away in January 2009.

“I made up my mind that when Barbara died, I wasn’t going to let this cancer kill two people. And that was my guidepost. So we started the foundation,” Hartman said.

Hartman launched the foundation in 2009. The McDowell Foundation began that year with a modest $25,000 in donations. Last year, the foundation gave away $200,000 to four grantees and plans to give away similar amounts in upcoming years.

“Each one of those grantees told us they could not have done their litigation without our financial support,” Hartman said, adding that these are small organizations that use these vital funds for specific cases.

High-impact litigation 

The McDowell Foundation also engages in what it calls “high-impact litigation,” supporting precedent-setting court cases. Over the past decade, the foundation’s pro bono High Impact Litigation Project has brought together law firms, social justice organizations and volunteer attorneys to litigate in the realms of healthcare, housing, homelessness, and Native American rights.

Recently, the foundation has considered initiating its own litigation of high-impact social justice cases. The foundation’s board has agreed to begin that review and will consider the question at its next board meeting in September.

“The best way to do it is do it directly,” Hartman said, citing the foundation’s revamped bylaws and a growing board of directors. One of those directors is Peggy Zwisler, a veteran antitrust trial lawyer who’s worked pro bono on cases addressing homelessness, employment discrimination and civil rights.

Hartman himself was in the Justice Department’s Civil Rights Division during the Carter administration, litigating for four years in the Deep South states of Mississippi and Alabama.

“That was what Barbara and I had in common. When we first met in 1995, other than talking about baseball, which we both loved, we talked about our passion for civil rights,” he said.

While the foundation will continue its grantmaking, it also intends to fundraise to bankroll this new load. Hartman plans on hiring a litigation director and bringing in young, mid-level lawyers, all with a passion for social justice. And in a pilot, the foundation will find small but significant cases and conduct its own litigation.

Tackling systemic issues 

In the wake of a year of racial reckoning and on the heels of injustices committed against George Floyd and other victims of police brutality, the foundation is currently pursuing a case along similar lines—though Hartman couldn’t yet reveal the full details. He calls it a “duplicate of George Floyd... without the camera.”

Zwisler added that in the world of social justice litigation, there is some belief that following Biden’s election, there might be less need for the kind of impact litigation the foundation pursued during seemingly more turbulent times.

“There will still be a need for philanthropy, for pro bono litigation at the state level, even if the Biden administration did everything right on voting rights, because that’s where the fight is right now,” Zwisler said.

Keep in mind that the kinds of cases McDowell Foundation engages are not often quickly resolved. The timescales can be measured in years.

As one example, a few years ago, the foundation supported Disability Rights North Carolina (DRNC) in its case Disability Rights N.C. v. Brajer. The case settled in November 2016 with the state agreeing to allow children with complex needs to live in community-based settings rather than institutionalized settings.

“We’re now in the remedy phase of that litigation... but we won. And it was a wonderful victory,” Hartman said.