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It seems that many times, the threat of litigation in and of itslef is enough to get people to conform to what some group or person wants. A very popular example of this are the threat of ACLU lawsuits.
Here's my thing. As far I understand it, suing over stuff, especially the kind of stuff that the ACLU sues over, is how the system is supposed to work. A potential problem is recognized, it's brought before the offical arbitrating body, and that body hands down a ruling.
So what's the problem?
Many people like to complain about the ACLU threatening and bringing lawsuits. As I said, from what I can tell, that's how things are supposed to be done. However, I also see lawsuits of this type as problematic.
It's not the lawsuits themselves, but the fact that it's so darn expensive, both in money and time to defend yourself.
I've got no solution, but I figured I'd throw this out. Am I right that this is how things are supposed to work? If so, does anyone have ideas as to what can be done?
Posts: 10177 | Registered: Apr 2001
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quote:Many people like to complain about the ACLU threatening and bringing lawsuits.
My principle problem with it is not the general idea, which is how things should work.
The problem is that, in many case, there are two people's rights in play, and the organization is facing two suits - one from the ACLU, for example, and one from the Center for Individual Rights. As I mentioned on another thread, the threat of ACLU action was specifically cited as justification for denying us funding (they said it in their pleadings!). In this case, had the mere threat prevailed - that is, had we not had access to another group like the CIR - then the school would have committed a very serious violation of the First Amendment based on threats by the ACLU informed by an inaccurate statement of the law.
The other problem - the one that lets things like the above occur - is that there is vast misunderstanding of how free speech, free exercise, and the establishment clause are supposed to balance. Teachers singling out students for including religious references in their work is not required and is, in fact, likely prohibited, yet it happens.
The real expense comes in when school boards rely on the legal analysis of a pro-bono group with an admitted agenda (and most have one - that's not bad, just a fact). The group is an advocate representing an individual client when they send a demand letter. They are not neutral and they are intentionally (and properly) making the letter persuasive to one side.
A school board that does not obtain independent legal counsel from someone competent in the first amendment is really doing a disservice to their students by failing to do so.
None of this should be read to say that the private enforcement of civil rights (which is what a lawsuit is) is a bad thing. These are current consequences of a system that can be fixed without destroying the system.
The rise of pro-bono groups representing different views of the first amendment than the ACLU has already greatly improved the situation. Better education by advocacy groups on both sides will continue to help.
quote:It's not the lawsuits themselves, but the fact that it's so darn expensive, both in money and time to defend yourself.
Now here we get to the crux of the matter. The threat of suit is so expensive that the first to complain will often win with the school board. Making it clear that either decision will result in a suit is likely to make the school board throw up its hands. The defendant in a civil rights suit pays a winning plaintiff's attorney fees as well as his own. In my case, total legal fees were high six figures. Our award was $1,500.
I'm not in favor of "loser pays fees." But the current system only incentivizes the correct behavior when the outcome in court is clear. Posts: 26071 | Registered: Oct 2003
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