By Johan Fatemi, Clinical Instructor and Teaching Fellow at UDC David A. Clarke School of Law
In her excellent Law at the Margins post, Traci Yoder of the National Lawyers’ Guild recently asked: “Is a Social Justice Law School Experience Possible?” Having recently accompanied a group of University of the District of Columbia David A Clarke School of Law student-attorneys on an experiential learning trip to the Karnes County family detention center, my answer to that query is decidedly “Yes!”
The student-attorneys provided pro bono legal services to women and children caught up in the Obama Administration’s inhumane and unlawful family detention policy. There is a crisis in representation for immigrants caught in detention on the Texas border. Hundreds of women and their children are detained in private for-profit prisons. Typically these families have fled persecution in their countries and have arrived in the United States seeking asylum. Most have established a prima facie case for an asylum claim and traditionally would have been eligible for release pending their hearing in immigration court. However in a marked departure from recent practice, the Obama Administration sought to punitively detain this group in order to discourage other asylum seekers from coming to the US. A robust pro bono effort has successfully brought several legal challenges to the policy: in February, the U.S. District Court in Washington, D.C held in RILR v. Johnson that it is a violation of Equal Protection to invoke general deterrence as a factor in custody determinations and, in April, a U.S. District judge in Los Angeles issued a tentative ruling that the detention of children is a violation of the 1997 Flores Settlement. In response to these judicial victories and the outpouring of criticism from advocacy groups and some members of Congress, Department of Homeland Security Secretary Jeh Johnson recently announced new reforms to the family detention program. While welcomed, the proposed reforms must be implemented in a timely manner and, more importantly, must cease the detention of children and their mothers.
The service learning trip to Karnes embodied the brand of legal education that militates against the drift in social justice values that often occurs in legal education. Many law students find that the initial motivating desire to learn the law in order to assist the under-represented often wanes under the intense pressure, anxiety and competition of law school. But rather than being pushed away from the ideals that brought them to law school, experiential learning gives students the opportunity to cement those values and to further hone their skills in identifying and addressing structural inequality and access to justice issues. Working alongside the indefatigable team at Refugee and Immigrant Center for Education and Legal Services (RAICES), our student-attorneys succeeded in securing the release of their clients – all of whom had been detained for nearly two months in prison-like conditions. In their final reflections on their experience in Karnes, the students described the immersive trip as an opportunity to escape the “law school bubble” and reported returning to law school feeling “empowered,” “more focused,” and “rewarded.”
From the instructor’s perspective, a key factor in developing a successful service learning experience is the ability to emulate a clinical methodology where the appropriate balance is struck between non-directive teaching and the appropriate level of instruction. This pedagogical approach stresses the benefits of “learning by doing” in a controlled environment. As the students take ownership of their cases, the instructor observes their work and poses questions meant to help the students focus on particular aspects of their case. The goal is for the students to critically evaluate the choices they are making – an informed intentionality – as they develop their case strategies and represent their clients. The challenge for instructors is to resist the temptation to explicitly direct the student or to otherwise take control of the case. That urge may be particularly acute in a service learning setting involving direct representation when the instructor is the supervising-attorney of record whose bar standing may be at risk should things go awry.
To mitigate the risk of adverse consequences, thorough preparation and careful (hopefully non-directive) supervision are critical. Over a three-week period prior to arriving in Karnes, the students were briefed on relevant immigration statutes and case law. They discussed readings regarding interviewing incarcerated clients and working with interpreters. They reviewed their clients’ case files and where possible conducted telephone interviews. Utilizing a case rounds methodology, the students presented their case theories and with the help of fellow students identified the strengths and weaknesses of their cases. Once on-site in Karnes, the students met in-person with their clients, finalized their bond application packages, and prior to their hearings observed the immigration court in action in order to understand what was likely to occur during their appearances.
Another significant consideration for the instructor is the selection of the appropriate type of service learning project. It is helpful to think of the experiential learning environment as a laboratory where it is possible to control certain variables and to monitor the resulting outcomes. Successful legal clinicians are adept at choosing cases by carefully considering the complexity of the legal issues and the students’ interests and capabilities. On the Karnes service learning trip, the limited nature of bond redetermination litigation – where the focus is generally on only two factors (flight risk and danger to the community) – proved particularly appropriate given our short time-frame. The students reported that achieving the release of their clients during their one-week stay was the highlight of their service learning experience.
The service learning instructor also plays an important role in maintaining the students’ emotional well-being. Learning by doing is not easy work and a crisis of confidence or morale can easily arise. This is particularly true when the nature of the service learning experience is as dramatic as what the students observed in Karnes. Despite the official doublespeak meant to disguise the true nature of these for-profit detention camps, the students quickly realized that the privately-managed Karnes detention facility is no “residential center.” The women and children were under the control of uniformed guards (euphemistically called “resident advisors”) who patrol the secure facility where even the visiting lawyers need to be buzzed in and out of client meeting rooms. Detainees deemed to be non-cooperative were isolated in solitary confinement; one young boy tearfully described these as “dark rooms.” Our clients complained of poor food and inadequate medical attention: one client’s two-year old son lost ten pounds due to chronic diarrhea that was treated only with acetaminophen. The students also experienced how attorneys attempting to provide legal services to detained families are routinely impeded by harassing and dilatory practices. The students observed firsthand how for-profit prisons contribute to the culture of mass incarceration and came to understand why institutions like Columbia University have begun to divest their portfolios of these stocks.
In order to guard against the battle fatigue inherent in this type of radical lawyering, the Karnes service learning instructors scheduled a daily check-in and reflection period to encourage the students to decompress. At these sessions a recurring topic was the manifest injustice of our immigration court system where, despite the harsh nature of deportation, the right to appointed counsel for indigent defendants generally does not exist. The students were moved by the despair of the unrepresented families and lamented the fact that under our broken system of justice poor people often languish in jail simply because they cannot afford a lawyer. The service learning instructors facilitated these discussions in order to help the students to process what they were experiencing.
The social justice values drift is not inevitable. Law schools can create curricula that stimulate rather than curb law students’ passion for social change. Experiential learning opportunities like the Karnes service learning trip nurture the students’ commitment to continuing the struggle that brought them to law school in the first place.