2006 September - October

With the recent changes on the U.S. Supreme Court, advocates face the serious prospect that there now may be five votes to eliminate the Section 1983 cause of action to enforce the Medicaid Act and other public benefit statutes—either directly or in effect. Even if the Court does not directly prohibit statutes from being enforced through Section 1983, the Court could make the requirements for enforcing public benefit statutes impossible to meet—just as it has done with implied rights of action. Thus advocates must use extreme caution before seeking certiorari in a Section 1983 case.

Attorneys can offer the best possible representation to survivors of sexual assault and sexual violence by applying the many legal options, including safety planning tools and compensation options, available to victims. State and federal laws, such as the Family and Medical Leave Act and Title VII of the Civil Rights Act, specifically protect worker victims and help increase awareness of the impact of sexual assault and sexual violence.

When pursuing discrimination claims, advocates need a legal road map to navigate the complex doctrine of discriminatory intent. Creative use of evidence can assist plaintiffs in meeting their burden of proof. Reviewing intent theories from various discrimination-claim categories, such as housing, gender, and school desegregation, can yield insights.

In 1976 in Washington v. Davis the U.S. Supreme Court rejected the disparate impact test for discrimination in favor of the intent doctrine. The new requirement created great difficulties for plaintiffs alleging discrimination in that it required proof that a law or policy with discriminatory results was motivated by intentional discrimination. A growing body of social science research into how discrimination truly operates offers advocates tools with which to challenge the intent doctrine. While the task appears daunting, advocates should look for inspiration to the decades-long struggle that culminated in Brown v. Board of Education.

Homeless people encounter legal barriers to voting from the particular circumstances of homelessness, from “traditional residence,” mailing address, and identification requirements, to problems with registration deadlines and removal from voter rolls. Advocates have many ways to deal with these obstacles to ensure that homeless people gain and preserve the right to vote.

The due process rights of public school students who face suspension or expulsion became clear in several U.S. Supreme Court decisions from several decades ago, particularly the 1975 case of Goss v. Lopez. Implementation of the principles that these cases established, however, varies from state to state and even among school districts within a state. Students seldom have an advocate’s representation in school disciplinary proceedings; an advocate’s basic familiarity with students’ due process rights can have an impact on young clients’ ability to continue their education.

The U.S. Department of Veterans Affairs (VA) offers VA non-service-connected pension, pension benefits for survivors of veterans (death pension), and VA health care, among other benefits, to low-income veterans and their dependents and survivors. Veterans may be unaware of the assistance to which they are entitled based on their veteran status. Legal aid providers should explore veterans’ possible entitlement to such VA benefits.