Housing segregation is so serious because it is at the root of many other forms of segregation and inequality. Segregated minority areas experience disinvestment and do not receive a reasonable share of new housing financing. Jobs increasingly concentrate in the suburban periphery, which is very hard to reach from the inner city. Particularly for the large proportion of black households without reliable transportation, the ghetto tends to become an even more isolated, separate economy. The shortage of subsidized housing, and the fact that most black children are now being born in single-parent families and are very likely to live in or near poverty, mean that a large proportion of black youth will grow up in households facing a constant housing crisis and one that severely limits their access to decent schools and the growing part of the job market. Residential segregation often produces segregated schools. Segregated schools in the inner city, with some important exceptions, are too often much worse than those in suburban areas and provide far weaker and less effective education and training for poor blacks and Hispanics than that received by whites and more affluent minorities. Such schools often reflect a pervasive inequality. Many black and Hispanic students are trapped in schools where more than half of the students drop out, where the average achievement level of those who remain is so low that there is little serious precollegiate instruction, where precollegiate courses and counselors are much less available, and where students are prepared only for the least competitive colleges. Inner-city public schools are increasing segregated. Between 1968 and 1984, the number of white students in American public schools dropped 19 percent, while the number of blacks increased 2 percent and the number of Hispanics soared 80 percent. The Supreme Court's decision in Milliken v. Bradley prevented the one practical remedy that might have reduced segregation in northern, urban, inner-city schoolsbusing across district lines." 66 65 67 The problems of deteriorating neighborhoods pose a significant challenge to legal services in the 1990s. Legal services programs will face increased client demands for representation on issues directly resulting from neighborhood deterioration, increased crime and drug activities, poor education, poor transportation, inadequate municipal services, and lack of jobs. Legal services advocates can attempt to address these issues directly by allocating resources for litigation and other representation necessary to help end discrimination against poor minorities and to help revitalize deteriorated neighborhoods. The problems of deteriorating neighborhoods pose a significant challenge to legal services in the 1990s. Or legal services advocates can respond to the problems of a few, individual clients when often little can be done for a particular client other than buying time for him or her to leave the neighborhood. 1. Nonhousing Remedies Legal services advocates will have to consider a variety of remedies to address the legal problems posed by increased isolation and residential segregation. As public school systems create schools with many programs and options to entice white families to participate, legal services advocates will represent families seeking entry into such schools, as well as families in the other schools that receive lesser finances and fewer programmatic commitments. Advocates will also have to engage in representation to prevent plant closings or ameliorate the effects of such closings, to prevent hospital closings and movement to the suburbs," to prevent supermarket and shop closings in poor neighborhoods, and to prevent the relocation of social security and social service agencies away from ready access to the poor. 69 68 70 To improve neighborhoods, advocates may need to revisit the doctrine of municipal equalization of services, including adequate police protection and fire services. While litigation may involve insurmountable proof problems, administrative and legislative advocacy may be more successful. These efforts cannot be successfully carried out independent of community involvement. Legal services advocates will have to reach out to neighborhood and community groups, as well as to the now-concerned traditional civil rights organizations. Once such outreach occurs, these groups can force legal services to play a more significant role in addressing deficiencies in municipal services and inadequate municipal response to crime and drugs. 2. New Fair Housing Legislation Congress has recently enacted a new Fair Housing Act, which prevents not only race, ethnic, and sex discrimination, but also discrimination against families with children and 64. See Orfield, supra note 50. 65. See G. Orfield, F. Monfort, & A. Orfield, Racial Change in American Public Schools, 1968-1984, Working Paper No. 1, National School Desegregation Project (Sept. 1986); G. Orfield, F. Monfort, & R. George, School Segregation in the 1980s: Trends in the States and Metropolitan Areas (July 1987) (available from the Joint Center for Political Studies, Washington, D.C.). 66. Milliken v. Bradley, 418 U.S. 717 (1974). 67. See P.R. DIAMOND, BEYOND BUSING: INSIDE THE CHALLENGE TO URBAN SEGREGATION (1985). 68. See McHugh, Basics of the Plant Closing Notification Law, 22 CLEARINGHOUSE REV. 932 (Jan. 1989). 69. See, e.g., NAACP v. Wilmington Medical Center, 657 F.2d 1322 (3d Cir. 1981), aff g 491 F. Supp. 290 (D. Del. 1980) (Clearinghouse No. 19,287). 70. See Hawkins v. Town of Shaw, 437 F.2d 1286 (5th Cir. 1971), aff d on reh g, 461 F.2d 1171 (1972) (en banc) (Clearinghouse No. 1000). The requirement in Washington v. Davis, 426 U.S. 229 (1976) (Clearinghouse No. 4923), of proving intentional discrimination is a significant barrier to such litigation. 71 against persons with disabilities.' Under this new law, HUD can issue injunctions and bring lawsuits against people who discriminate in the rental or sale of housing. The Act also establishes a corps of administrative law judges who will hear cases against fair housing violators and may award actual damages and impose fines. Because of the increasing problems of housing discrimination against minorities, the disabled, and families with children, and the creation of new remedies to address these problems, legal services advocates will become much more extensively involved in representation to enforce the new law. Advocates will be called upon to monitor HUD enforcement, to provide representation in administrative proceedings under the new ALJ hearing system, and to engage in litigation on behalf of minority and other poor clients who are seeking housing in geographic areas or housing units that have traditionally been foreclosed to minorities, families with children, and persons with disabilities. Such representation will be fact-dependent and resource-intensive. 3. Other Advocacy Eligible clients who wish to live in subsidized housing in the suburbs or in more desirable areas within cities may well increase their demands for assistance during the coming decade. If this prediction turns out to be accurate, then legal services programs will face a number of difficult decisions on resource allocation and on whether to engage in highly controversial litigation addressing residential segregation and isolation. Such litigation will challenge local government barriers, such as zoning restrictions, to the development of low-income housing on equal protection and civil rights statutory grounds." Legal services advocates may also be called upon to participate in litigation requiring suburbs to provide "their fair share" of housing opportunities for the poor" and litigation challenging HUD's failure in particular areas to require stricter enforcement 73 72 71. Pub. L. No. 100-430, 102 Stat. 1619-1636 (Sept. 13, 1988). For a discussion of this new law and its impact on various groups, see Morales, Creating New Housing Opportunities for Families with Children: The Fair Housing Amendments Act of 1988, 22 CLEARINGHOUSE REV. 744 (Dec. 1988); Milstein, The Fair Housing Amendments Act of 1988, 23 CLEARINGHOUSE REV. 128 (June 1989); National Housing Law Project, 1988 Developments in Federal Housing Law, 22 CLEARINGHOUSE REV. 874 (Jan. 1989); Mental Health Law Project, Mental Disability Law: 1988, 22 Clearinghouse Rev. 973 (Jan 1989). 72. See, e.g., Crow v. Brown, 457 F.2d 788 (5th Cir. 1972) (Clearinghouse No. 6657); Resident Advisory Bd. v. Rizzo, 425 F. Supp. 987 (E.D. Penn. 1976), aff'd, 564 F.2d 126 (3d Cir. 1977) (Clearinghouse No. 19,668); Sith v. Town of Clarkton, 682 F.2d 1055 (4th Cir. 1982); Huntington Branch, NAACP v. Huntington, 668 F. Supp. 762 (E.D.N.Y. 1987), aff'd, 844 F.2d 926 (2d Cir. 1988); United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1987), cert. denied, 108 S. Ct. 2821 (1988), aff'd, 856 F.2d 444 (2d Cir. 1988), rev'd sub nom. Spallene v. United States, 110 S. Ct. 625 (1990). 73. See, e.g., Jaimes v. Toledo (Lucas) Metro. Hous. Auth., 758 F.2d 1086 (6th Cir. 1985) (Clearinghouse No. 12,140); South Burlington County, NAACP v. Mount Laurel Township, 92 N.J. 158, 456 A.2d 390 (1983); Hills Dev. Co. v. Bernards Township, 103 N.J. 1 (1986). Legal services programs that choose to give priority to representation to prevent discrimination that poor people encounter in obtaining private or public housing will face significant political and resource allocation decisions. Representation to enforce existing and new civil rights laws and the constitutional protections against discrimination" will require substantial factual development, considerable financial resources, and extensive time commitments from staff. Such representation will involve difficult legal issues of whether intentional discrimination must be established76 and controversial social issues such as the appropriateness of using quotas and goals that may deny nonwhite people the opportunity to buy 77 or rent housing." IV. Conclusion During the 1990s, legal services programs will face many new legal problems that may result in significant changes in how program resources are allocated and in the nature of legal advocacy that staff are called upon to provide. The increasing problems of families, particularly young families and families headed by a single parent, will require programs to rethink existing priorities and the relative emphasis given to some legal problems of AFDC and food stamp recipients. The Family Support Act, while hardly the reform of welfare long awaited by AFDC recipients, provides a number of real opportunities that could greatly benefit such recipients. Increased child support payments could help some poor families achieve substantial income. Effective education and training programs for teen parents and adults could enable many families to achieve self-sufficiency. However, the FSA poses considerable difficulties for benefits advocates who until now have not had to develop expertise in education, job training, and child care and have not had to adjust intake and outreach systems fundamentally to respond effectively to the legal problems of AFDC clients. The lack of affordable housing for the poor in both urban and rural areas, the increase in segregation and isolation, particularly among urban dwellers, and the growing problem of homelessness, particularly among families, will continue to strain legal services offices and test the imagination and energy of legal services advocates. These housing problems and the new remedies that are available will require programs to rethink 74. See NAACP v. Secretary of HUD, 817 F.2d 149 (1st Cir. 1987). 75. See, e.g., 42 U.S.C. 1982; CAL. CIV. CODE 51. 76. See, e.g., Brown v. Artery Corp., 654 F. Supp. 1106 (D.D.C. 1987) (Clearinghouse No. 41,944); Huntington Branch, NAACP, 844 F.2d 926; Yonkers Bd. of Educ., 837 F.2d 1181. Comment, Justifying a Discriminating Effect Under the Fair Housing Act: A Search for the Proper Standard, 27 UCLA L. Rev. 398 (1979); Schwartz, The Fair Housing Act and Discriminating Effect: A New Perspective, 11 NOVA L.J. 71 (1987); Comment, Applying the Title VII Prima Facie Case to Title VIII Litigation, 11 HARV. C.R.-C.L. L. Rev. 128 (1976). 77. See, e.g., United States v. Starrett City Assocs., 660 F. Supp. 668 (E.D.N.Y. 1987), aff'd, 840 F.2d 1096 (2d Cir. 1988), cert. denied, 109 S. Ct. 376 (1990). priorities and require advocates to consider approaches that may differ from those relied upon in the past. Legal services has always been able to respond appropriately to new laws and to new social and economic conditions facing its clients, the poor. If legal services is to continue to be effective, to have public support, and, most importantly, to help the poor to improve their opportunities for a better life, it must do so again. This paper is a product of the Project on Effective Legal Services. It was prepared for the Futures Process of the National Legal Aid and Defender Association and the Project Advisory Group. Funding was provided by the Ford Foundation, General Mills Foundation, New York Times Co. Foundation, and the Project Advisory Group. The views expressed are solely those of the author. Alan W. Houseman is Director of the Center for Law and Social Policy (CLASP), 1616 P St., NW, Ste. 350, Washington, DC 20036, (202) 328-5140. CLASP is a nonprofit, national public interest law firm meeting the problems of low-income families and preserving legal services for the poor through advocacy, research, and legal representation. Previously, Mr. Houseman was Director of the Research Institute at the Legal Services Corporation and Founder and Director of Michigan Legal Services. From the Author: While the ideas and analyses presented here reflect solely my own views and not the views of participants in the Futures Process, I have benefited greatly from the thinking and writing of many others in the legal services community who participated in the Futures Process. Particularly helpful to the sections on child support and AFDC were the analyses and last-minute editing provided by my two CLASP colleagues, Mark Greenberg and Paula Roberts, and comments by Barbara Sard, Marty Ozga, Debra Perlus, Amy Hirsh, and Nancy Lindbloom. The housing section, though it left out substantial issues facing legal services (due to space limitations), benefited greatly from the thoughtful analyses and critiques provided by David Bryson and Florence Roisman of the National Housing Law Project, comments from Abigail Turner and Dan Manning, and the discussions held at the Airlie House Housing Law Conference in December 1988. Martha Bergmark, Ada ShenJaffe, Gerry Singsen, De Miller, John Tull, and Lillian Johnson provided valuable assistance and insight. To all of these and many others whom I cannot enumerate here, I owe a special thanks. The Worsening Affordable Housing Crisis Based on a series of studies, the problems faced by poor households in finding affordable housing have worsened appreciably since the late 1970s. The number of American families facing housing problems, according to HUD, increased by 26 percent between 1975 and 1983; these problems include inadequate housing, overcrowding, and high costs. • Rental housing, used by most low-income households, is growing unaffordable to many. Half of all poor renters had housing burdens exceeding 65 percent of their incomes in 1985. (To be considered affordable by federal standards, payments on a house or apartment, including upkeep and utilities, must not exceed 30 percent of a household's income.) While 65 percent of poor renters paid more than half of their income for housing, only 8 percent of nonpoor renters paid that much. • Poor homeowners (who comprise two fifths of poor households) are nearly as hard-pressed as poor renters, and have likewise lost ground in the battle for affordable housing. The typical poor homeowner household, like the typical poor household, had an income of less than $5,000 a year in 1985. It paid 50 percent of its income for housing. In that year, 38 percent of poor homeowners spent at least 60 percent of their incomes for housing expenses, up from 30 percent in 1978. Some 22 percent of poor nonmetro homeowners paid at least 70 percent of income for housing. Recent studies of two large cities found that the typical black family in poverty paid three fourths of its cash income for housing expenses. • Between 1970 and 1985, the nation flip-flopped from a large, 2.4-million-unit surplus of affordable rental housing into a major housing deficit. By 1985, there were 3.7 million more low-income households than there were apartments to house them within the official standard of affordability. These affordability data understate the problems of poor renters. The data do not show the number of affordable units that are substandard, overcrowded, or unavailable because they are occupied by wealthier households. Further, the official affordability standard may overestimate the proportion of income that larger poor families can afford to spend on housing after budgeting for such items as food and clothing. And the data underestimate demand for low-income housing by not counting the homeless in the tally of poor households. • Rising housing burdens are seen as contributing to the problem of homelessness, particularly among single-parent families. Female-headed families comprise a growing share of the homeless. While federal low-income housing assistance can help alleviate housing problems for persons in poverty, fewer than one in three poor renter households (29 percent in 1987) receives housing subsidies. Federal spending for low-income housing has been cut more, proportionally, than for any other low-income program in the 1980s. Appropriations for subsidized housing programs have fallen from a peak of $32.2 billion in FY 1978 to $9.8 billion in FY 1988, a decline of more than 80 percent after inflation. Sources: P.A. Leonard, C.N. Dolbeare, & E.B. Lazere, A Place to Call Home: The Crisis in Housing for the Poor (1989) (available from the Center on Budget and Policy Priorities, Washington, D.C.); E.B. Lazere, P.A. Leonard, & L.L. Kravetz, The Other Housing Crisis: Sheltering the Poor in Rural America (1990) (available from the Center on Budget and Policy Priorities). Implications of Emerging Substantive Issues for the Delivery System for Legal Services for the Poor by John A. Tull I. Introduction The legal problems that legal services clients will face in the coming decade have deeply important implications for the legal services delivery system.' Emerging legal issues and the need for new approaches to familiar and persistent legal problems will call for adjustments in the legal services delivery system at the local, state, and national levels. But to suggest that change will be necessary is not to call for total transformation of the delivery system. Nor is it to suggest that legal services work will be radically different in the next decade. Programs will continue to represent their clients in the traditional areas of legal services practice, such as eviction defense, denials and terminations of public benefits, spouse abuse, and the like. Much of the basic work of support centers and other key elements of the delivery system will also remain the same. A number of issues, however, will confront clients that, for a variety of reasons, may not be addressed effectively unless the challenges they pose are acknowledged and appropriate adjustments in the delivery system are made. These issues will be particularly challenging because they are likely to strain the delivery system in areas that are chronically difficult and in which legal services is being criticized by its traditional foes as well as by new critics. At the same time, the challenges facing clients will require increased advocacy in areas that have been out of favor politically, notably legislative and administrative advocacy. They will also invoke difficult issues related to group as opposed to individual-representation. The effectiveness of the delivery system in responding to these challenges will influence whether it evolves in a salutary way to increase its capability to deliver effective advocacy on behalf of clients or whether control of its evolution is lost to those who, in the name of effectiveness, would cripple or dismantle it. This paper will explore a number of issues related to meeting the substantive needs of clients in the next decade. It will first examine the potential impact on key aspects of program operation: 1. For a thorough analysis of some substantive issues that will affect clients in the next decade, see the accompanying article by Alan W. Houseman, Poverty Law Developments and Options for the 1990s. The following analysis is based on the basic conclusions of those papers. 2. See, e.g., D. BESHAROV, Legal Services FOR THE POOR: TIME FOR REFORM (American Enterprise Institute 1990), in which the inherent difficulties related to the setting of priorities have been used as the basis for a proposal espousing competitive bidding. (1) the identification of clients' needs and priority setting, (2) case intake and acceptance, and (3) substantive specialization. It will then analyze the types of advocacy that will be called for in order to address clients' legal needs and their implications for the delivery system. II. General Considerations Focusing on challenges to the delivery system, primarily in the context of substantive issues facing clients, represents a notable development in and of itself. Many aspects of the current system have evolved in the face of pressures that were not directly related to the substance of the legal work done on behalf of program clients. For the past eight years, the principal factors affecting the evolution of the delivery system have been the essentially static funding levels, coupled with an unrelenting bureaucratic assault from a hostile Legal Services Corporation. That hostility came hard on the heels of the era during which large new service areas were added to the existing delivery system, either through the expansion of existing programs or through the creation of new ones. In many 3. The establishment of the Legal Services Corporation by Congress in 1974 was followed by a period during which Congress appropriated substantial increases in funding for legal services, in order to provide a minimal level of service in every county in the United States and its territories. The resulting period of geographic expansion extended from 1976 until 1981. parts of the delivery system, the primary focus during the period of expansion, by necessity, was simply gearing up to serve new geographic areas with significant numbers of new clients. During the next decade, the delivery system needs to be shaped more explicitly to respond to the legal needs of eligible clients. The current system is commendably strong, given the pressures to which it has been subjected. However, it would be even more effective if, during the past decade, it had been able to develop more directly in response to specific substantive needs of clients. Unfortunately, during at least the early part of the next decade, the development of the delivery system will be characterized by many of the same factors that have limited its full development until now. At a minimum, funding is likely to remain static and inadequate. Hostile political forces are also likely to remain arrayed against effective legal services delivery, although probably with less potency than during the last eight years. Nevertheless, decisionmakers throughout the system-from individuals and organizations with responsibility that is national in scope, to local boards and managerswill have to focus increasingly on the delivery implications of the emerging substantive issues affecting clients. 6 There are manifold substantive legal problems that will affect legal services clients in the coming decade. A thorough understanding calls for reading the papers prepared by Alan Houseman and others as part of an examination of future issues facing the legal services system and its clients. In spite of their diversity, many legal problems share common aspects that have direct implications for the future of the delivery system. Many problems embrace a variety of substantive areas that have traditionally made up the practice of poverty law. Problems such as homelessness and welfare reform may involve issues from a variety of substantive areas, including housing, public benefits, health, education, employment, and family law. The issues also arise at a time when access to federal and state courts is itself a significant problem affecting the representation of low-income persons. The issue of access to federal court has affected legal services advocacy for a number of years. New access issues are emerging, however, that increase 4. The lack of sufficient funds with which programs have had to contend is itself a direct cause of many of the problems for which critics reproach the current system. Unfortunately, resolution of the problems will be hampered as well by the continued lack of funds. 5. The analysis and criticism that flow from observations of the weaknesses of the current system often serve as a smoke screen for ideologically based attacks on the basic structure and continued existence of legal services for the poor. Consequently, there is an understandable reluctance on the part of legal services professionals to give credence even to well-intentioned proposals for reform. Legal services professionals become more reluctant to analyze publicly the shortcomings of the system, for fear of having the analysis form the basis for another wholesale assault on legal services. Nevertheless, if legal services is to continue to grow and evolve, forthright analysis of the system must be undertaken, whatever the risks. 6. For a thorough analysis of the problems, see Houseman, supra note 1. 7. See id. for a full discussion of the issue of homelessness and welfare reform. The legal problems facing clients have other social, political, and economic complexities. Major shifts in the employment market that affect wages and the lack of adequately paid work for workers at all levels of the job market lie behind many of the emerging legal problems. The development of an effective legal strategy to increase the availability of jobs and the adequacy of wages paid in those jobs calls for a sophisticated understanding of economic and political factors that will affect this strategy. The actual impact on the client communities of many of the emerging issues may not be felt by individual clients until the trends causing the problems have worsened or until important decisions regarding new policies affecting large numbers of clients have already been made. Thus, there is a need for both targeted outreach and adjustments in the case intake and acceptance procedures utilized by many programs. Natural institutional barriers can inhibit legal services programs from recognizing and responding to legal problems that do not fit into traditional patterns. During the past decade, legal services programs have devoted considerable effort to setting priorities for the types of matters they will handle in the face of static and inadequate resources. Based on these decisions, programs have erected a host of procedures and processes centered on the intake and case acceptance decisions that have served to filter out low-priority cases. Many have also consolidated into fewer and larger offices, allowing specialization to target priority areas. These developments have generally increased efficiency and effectiveness in the face of severe resource limitations. An additional result, however, can be an institutional restraint that inhibits addressing new issues. 8. See Houseman, A Short Review of Past Poverty Law Advocacy, 23 CLEARINGHOUSE REV. 1514 (Apr. 1990). 9. The challenge to the local delivery system is discussed in greater detail in part III, infra. 10. The opportunities and challenges for private attorney involvement are discussed in part IV, infra. 11. The implications of these changes are discussed in greater detail in part V, infra. |