Mark Janus, child support specialist in the Illinois state family services agency, is challenging the state’s collective bargaining laws in a case that’s now before the U.S. Supreme Court. This case has potentially far-reaching implications, and oral arguments are scheduled for the end of this month.
When I was in law school, there were so many moments that I thought: “Why am I only learning this here, now, in law school? Everyone should know this stuff!” Civil procedure — the rules that govern the movement of a lawsuit through the courts — is one of those things. So let me outline the things you need to know to understand how Janus got to the Supreme Court. (Like any good lawyer, I’ll add that the answer to just about every legal question is actually “it depends…,” but for the sake of clarity, I’ve taken some liberties to simplify.)
The case started when Illinois’ governor Bruce Rauner sued to challenge his own state’s union agency fee statute, the law permitting collective bargaining units to charge all represented workers for the cost of representation even if they opt out of the union. The district court determined that his office hadn’t been harmed by the law and therefore lacked what’s called standing to sue. But the case was preserved by Mark Janus, whose lawyers had filed papers to be included as an intervener, an additional party who claims they have rights and/or injuries that are about to be adjudicated in an existing case. So when the court dismissed the Governor’s complaint, it opted to recognize Janus’s complaint as the operative one, meaning the one that’s current or pending before the court. Continue reading
Last week marked 62 years since the Brown v. Board of Education Supreme Court decision, and our public schools are by and large, as segregated as they were when the policies were banned. After all, the mandate to “outlaw segregation” is not the same thing as “have integrated schools,” and the farther a decision has to travel from courtroom to outcome, the less likely it is to deliver on its objective. And yet Brown remains a cultural touchstone with deep and consistent resonance for education professionals, civil rights activists, and attorneys.
Civil rights litigation is regarded with a reverence that is, perhaps, disproportionate to its reality. It is expensive, time consuming, fractious for communities, and emotionally exhausting. In 1976, leading critical race studies professor Derrick Bell published “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation,” challenging the mainstream celebration of school desegregation litigation and describing the problem as one of a conflict of interest between lawyers invested in challenging segregation laws and their Black clients who wanted only high-quality schools for their children. Linda Brown, the student about whom the famous case was filed, has talked extensively about feeling exploited by a process that ultimately couldn’t provide integrated schools for her own children.
When we think about the purpose and effect of impact litigation, there are two recent cases that illustrate an important distinction: In a case like Obergefell v. Hodges, a righteous court opinion changed people’s lives overnight. Recently, we heard the same sort of evocative language used by the plaintiffs in Vergara v. California, where the legal victory alone wouldn’t guarantee changes, and any changes wouldn’t be felt for years. As a former education civil rights attorney myself, I’ve thought a lot about how these types of litigation both unite and divide the civil rights community as well as the part they play in education reform. Continue reading