Community Awareness and the Education Lawyer

It's About Power, Not Policy: Movement Lawyering for Large-Scale Social Change

Alexi and Jim Freeman worked as legal advocates at Advancement Project with a particular focus on the Ending the Schoolhouse-to-Jailhouse Track project. There, they partnered with local grassroots-led community organizations to wage advocacy campaigns and build social movements to dismantle the school-to-prison pipeline. Ending the Schoolhouse-to-Jailhouse Track was successful, but the Freemans share an interesting anecdote about how they made substantial progress toward their goals:

We, like many aspiring progressive lawyers, left law school deeply passionate about addressing large systemic injustices…that continually produced the oppression, subordination, and disempowerment of low-income communities of color, in particular…[but] every advocacy strategy we had learned in law school was virtually worthless. Source.

How Does Social Change Happen?

Understanding the Cause of Continued Oppression

Many progressive lawyers—even though they are “right” insofar as justice, morality, constitutional principles, and a reasonable understanding of society is concerned—are consistently finding themselves “on the losing end of important cases and public policy debates.” Source. The Freemans found themselves in a similar situation, and they decided to examine their own theory of social change by learning from community organizers and grassroots leaders from across the country. These individuals had been successful in addressing systemic injustices in their communities, the Freemans explain, because “their proposed reforms [were] designed to shift the balance of power,” not policy. Source. Grassroots organizers addressed the root of the problem by building upon the power they had in their communities to demand change.

The Social Change Power Meter

A tool the Freemans use for understanding the power dynamics of the communities they serve is the Social Change Power Meter. “It starts with the assumption that large-scale systemic injustice is the result of power imbalances, meaning the beneficiaries of the system have greater power than those that are oppressed by it.” Source. Then, a social justice lawyer can divide the sources of these powers into political, communications and media, grassroots support, or legal sources of power. The analysis then moves to deciding how resources can be deployed to build the power of the communities we serve by maximizing the source of power which provides them a comparative advantage; usually this is the grassroots or media source.

The Lawyer’s Role in Instigating Social Change

Attributes of a Social Justice Lawyer

Lawyers play a key role in maximizing communities’ power through legal education and support. The Freemans describe some key attributes of a successful movement lawyer. First, this lawyer must have a sophisticated understanding of the power landscape around particular issues within each of our communities. Thereafter, they must link their work with organizing, strategic communications, and grassroots-led policy advocacy strategies. A movement lawyer further understands the sources of their opponent’s power and how it compares to the power within the communities they serve to identify methods to reshape those dynamics.

Examples of a Legal Activities

In every source from which a community derives its power, there is a legal contribution which can be made in support of the movement. In their own efforts to abolish the school-to-prison pipeline, they noted that with these strategies, the “little hope of addressing the harm and suffering cause by the school-to-prison pipeline…a decade later…has turned, and virtually all of the momentum in this field is directed at eliminating the unnecessary exclusion, pushout, and criminalization of K-12 students.” Source. The Freeman’s examples include research on legal and policy contexts, facilitating lobbying visits, negotiation assistance, performing outreach through legal networks, educating members on legal rights, and filing legal complaints. They allege that “there are no limits to what can be accomplished when movement lawyers embrace multi-faceted grassroots power-building.” Source.

What the Education Lawyer Must Do Now

Current Issues & Solutions

After the disappointment of San Antonio Independent School District v. Rodriguez, confronting a “root” of education inequity, that being property tax-based school finance systems, seemed impossible. In his dissent, Justice Thurgood Marshall insinuated that there is a fundamental right to education embedded in the Constitution. In an attempt to revisit this issue, the Center for Education Equity at the Teacher’s College has partnered with parent-student school groups to file Cook v. Raimondo. As monumental as this case is, it has not achieved the same level of national support as the movement toward abolishing school-to-prison pipeline. There are comparatively few community-based organizations openly advocating for the fundamental right to education, very little media attention has been paid to the case and surrounding issues, and the nationwide community of students and teachers are generally unaware of this case. Without community-based support soon, any positive outcome from the litigation may resemble the disappointing and ineffective solutions following Brown v. Board of Education.

Situating Myself in the Legal Issue

A practice that fits my needs is one which addresses issues of systemic education inequity from within communities directly affected by the issue. For me, the practical evidence that grassroots-based movement lawyering is more effective in instigating long-term societal change is decisive, and I am intrigued by the possibility of establishing a fundamental right to an adequate public education. It only seems logical that I might build my own practice within an organization that allows me to use the strategies offered by the Freemans to build community support of the right to education. Advancement Project, at which the two worked, recently filed an amicus brief in support of appellants in Cook v. Raimondo, as have other community-based education organizations. However, the link between their support is lacking, as evidenced by a seemingly static power dynamic between those benefiting from inequitable education and those harmed by it. Currently, I simply do not know if there is an organization which has the bandwidth to build the needed community support, but I also do not think I could start my own practice to do so upon graduation. Where do I go from here?

As we have previously discussed, the next draft should be answering the question the first draft exists to end up with. This draft says, in my view: (1) I want to reverse San Antonio IS v. Rodriguez; (2) here is a brochure for the Freemans, who might have the sort of practice I want; and (3) but I don't believe anyone will just hire me and put me on the payroll to do it, or will fund my 501c3 to do it.

One thing the next draft could do is to explain how you plan to reverse the case. That would start, I think, with which one of the various approaches offered in dissent is correct. I always thought TM was pretty much precisely right that this is a straight "substantive equal protection" case, even though it would have been the first of its kind, we can see large vistas of the America to which it would more or less directly have led. But that might not be what you mean to do. If it is, then the combination of precise legal issue (which is structurally like, "can separate ever be equal?") and the breadth of the social reorientation necessary to commit society beyond the Court to do what it takes to enforce decisions resembles very much the problem to which Marshall addressed his own life as a lawyer.

I order to do what Charles Hamilton Houston and others had worked to create, Marshall also created a mode of law practice organization and financing. That mode came to dominate the very idea of "public interest lawyering" in the 20th century. It is still relevant, but it is increasingly outmoded and inadequate.

What we need is also a way of contributing to the litigation and implementation of outcomes that are ambitious on the same scale, built on smaller lightweight forms of practice organization and small business forms of financing based on the lawyer's income from her own balanced practice, that were also present everywhere in the 20th century legal ecology, and which need updating for wider use in the 21st century.

So you could very productively use the next draft not to discuss the constitutional law, if that's not your present version of "where do I go from here?" to consider the kind of practice creativity that would ask: What do you want to practice about besides this issue, in order to have another specialty whose profitable practice can finance this work? Where do you want to work, in real geographic and social space? How do you need to use law school to fit you to get the results you will deliver to clients from your practice, and Who does law school have to help you add to your network who will assist you to deliver those results and to find and be retained by the clients to whom you will deliver them? Finally, How Much does this practice have to produce in order to make it self-sustaining, and to afford you the level of income that will satisfy the needs of your personae for themselves, for family, etc.? You won't know have the answers that will actually constitute a viable plan for your practice, but you will have begun training your imagination and charting your course through law school, which is absolutely all you need right now.

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