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2006 November - December

The 2005-2006 U.S. Supreme Court Decisions on Access to the Federal Courts

The First Term of the John Roberts Era

By Gary F. Smith, Jane Perkins, Gill Deford & Matthew Diller

In this past term, the “new” Supreme Court, with Chief Justice John Roberts at its helm and recently appointed Justice Samuel Alito, generally revealed little about its approach to federal court access issues. One exception was the interpretation of the exhaustion requirement of the Prison Litigation Reform Act of 1995. The Court required “proper” exhaustion, including compliance with administrative timelines and procedures and thus narrowed federal court access for incarcerated persons. The Court also restrictively interpreted certain provisions of the Individuals with Disabilities Education Act (IDEA). The Court held that parents, not the school district, bore the burden of persuasion at due process hearings on individualized education programs. In another case, the Court held that the IDEA’s fee-shifting provision did not authorize recovery of expert witness fees as part of costs. And the Court’s rejection of government’s claims of sovereign immunity in three major decisions was not viewed as marking a new direction for the Roberts Court; these holdings were based on narrow issues.

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Third-Party Notification of Eviction Actions

An Opportunity for Advocates to Help End Homelessness

By Emily Nugent & Peyton Whiteley

Motivated by a federal and local agenda to end homelessness, the Virginia General Assembly enacted an eviction third-party notification law. The third-party notice triggers eviction prevention services that are available in the community. Legal Services of Northern Virginia applies this law to help working families access locally supported eviction-prevention services.

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The Unionization of State-Subsidized Home Child Care Providers in Illinois and Its Effect on the State's Child Care Assistance Program

By Daniel Lesser

Earlier this year Illinois became the first state in the country to enter into a collective bargaining agreement with home child care providers who receive subsidy payments through the state’s child care assistance program. Both licensed and license-exempt home providers receive substantial increases in subsidy payments and financial incentives for offering higher-quality care; center-based providers later negotiated corresponding rate increases. The agreement accomplishes major policy objectives of the child care advocacy community, but how the state will pay for it, and whether it will result in significant cuts in the child care assistance program, remain open questions.

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Continuing Disability Reviews

What Advocates Need to Know

By Linda Landry

The continuing disability review is what the Social Security Administration uses to determine whether disability benefit recipients continue to qualify for benefits on the basis of disability. Having found that an individual meets its disability standard, the Social Security Administration must use the medical improvement standard before finding an individual no longer eligible for disability benefits. Advocates must understand the standards of the continuing disability review to ensure that their clients are afforded all of its intended protections.

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Landlord Sexual Assault and Rape of Tenants

Survey Findings and Advocacy Approaches

By Theresa Keeley

A recent survey reveals that sexual assault and rape of tenants by landlords are a prevalent but often unrecognized and underreported problem that contributes to homelessness. Attorneys and advocates must work together to identify and deal with tenants’ sexual victimization that may underlie other more obvious legal problems concerning tenants’ housing in order to advance appropriate legal remedies.

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Cooperative Advocacy

Working with the State to Improve Programs

By Jodie Berger

California advocates’ “cooperative advocacy” with the state department of social services is a good strategy especially after welfare reform and its limits on litigation options. Advocates now meet regularly with the agency on welfare issues and can comment on, and even draft, certain state directives to county welfare agencies. While contested issues and litigation remain, cooperative advocacy can shape welfare policy to maximize benefit and minimize harm to low-income clients.

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