Duke Law faculty and students take on vexing legal and policy challenges
Through classes, clinics, and independent study, Duke Law faculty and students have recently investigated a number of diverse legal and policy challenges and crafted evidence-based proposals for change. These include a program for reducing the high rate of eviction filings and judgments in Durham that will soon receive pilot testing, recommendations for Medicaid reform in North Carolina that were presented to state policymakers and community health advocates, an evaluation of North Carolina’s school voucher program over its first three years of operation, and an analysis of the unintended effects of counter-terrorism financing rules on women’s rights organizing and gender equality around the world that was presented to United Nations’ agencies.
Civil Justice Clinic
Stemming the tide of evictions in Durham
With Durham’s downtown and surrounding neighborhoods undergoing rapid gentrification, its inventory of affordable housing is decreasing at a similar pace. Durham County has the highest rate of eviction filings among North Carolina’s 10 largest counties — about one for every 28 residents — as well as a high level of homelessness.
Clinical Professor Charles Holton ’73, who directs the Civil Justice Clinic, noted that evictions lead to a host of personal and social problems, including homelessness. “An eviction judgment becomes a blot on a credit record, which then impedes an individual’s future ability to lease property, to borrow money, and to get Habitat for Humanity housing, among other consequences,” he said. “And evictions, particularly if sudden or forced, also have significant detrimental effects on the families involved and on communities, in terms of disruption of schools, health care, and family interactions.” Even when it becomes clear that a tenant will have to vacate a leased property, a voluntary move is preferable to a court order, Holton said.
During the spring semester, Holton and Advanced Civil Justice Clinic student Ben Wasserman ’17 designed a process for reducing forced evictions in Durham. The Eviction Diversion Program, on which lawyers at Legal Aid of North Carolina (LAN C) also provided input, has been accepted by Durham County court and social services administrators as a pilot program with a projected start date of July 1. Wasserman also wrote a scholarly article on the initiative, which aims to decrease the number of eviction proceedings and judgments, provide increased stability to landlords and tenants, and reduce homelessness.
Having studied an eviction diversion program in Michigan last spring, Holton first assigned a fall-semester clinic student, Bryan O’Brien ’17, to investigate how a similar initiative might work in Durham. As he canvassed available resources, O’Brien found that tenants facing emergencies can apply for funds through Durham’s Department of Social Services, yet due to their lack of awareness, many don’t — and money goes unused. Wasserman, who picked up the project in the spring after handling a fall clinic caseload that included landlord and tenant matters (and also made it the focus of an independent study), said his task was largely to coordinate information and resources through a clear process.
His proposal described a program to help tenants “who uncharacteristically miss a rent payment” to remain in their homes, while landlords secure judicially- supported guarantees of rent payment and avoid the costs of litigation and finding new tenants. As designed, the program could be used to divert eviction at three different points — when the tenant receives a late rent notice, at the time of a summary ejectment filing, and after an adverse judgment — with resources available at each stage to help facilitate a negotiated resolution between the landlord and tenant. As part of the proposal, Wasserman developed a host of resource materials, including an informational brochure directed at both landlords and tenants, intake questionnaires for DSS social workers, and templates for court motions, settlement agreements, and consent orders.
Making landlords and tenants aware of the pilot program’s existence and training social workers to evaluate renters’ eligibility for emergency funds and spot any need for legal assistance are key to its success, Holton and Wasserman agree.
Jesse McCoy II, who joined the Civil Justice Clinic in April as the inaugural James Scott Farrin Lecturing Fellow and supervising attorney, will play a substantial role in implementing the pilot Eviction Diversion Program. A veteran LANC attorney, he has extensive experience with landlord-tenant disputes in Durham County.
In addition to raising awareness among renters facing temporary setbacks that financial help may be available and helping avert the potentially disastrous collateral consequences of forced eviction, McCoy said the program could ease county courts’ workload.
“We anticipate it will ultimately increase judicial efficiency by reducing court docket sizes for eviction through purging cases that can be easily resolved outside of court without need for litigation,” he said. “The reduction in court cases could assist judicial officials in refocusing their attention to more complicated cases involving substandard habitability concerns, unfair debt collections, and other unfair rental practices.”
Wasserman said he is gratified to leave the pilot program as a legacy of his time at Duke Law and in the clinic: “Taking on this project seemed to me like a fantastic way to take what I had learned over the fall semester and make a lasting, positive impact on Durham by implementing a policy change that could potentially impact the lives of thousands of residents.”
Duke University Bass Connections
Improving care, reducing costs through N.C. Medicaid reform
North Carolina’s Medicaid program constitutes 32 percent of the state budget and provides health-insurance coverage to 18 percent of its population. And as an interdisciplinary team of Duke faculty and students note in a report on Medicaid reform in North Carolina, significant health disparities persist among the insured across income, geography, education, and race. With federal funding likely to be reduced in future budgets, and with inf lamed rhetoric surrounding Obamacare and its repeal or replacement, Medicaid reform is the very definition of a hot-button issue in a state with a deep partisan divide.
Through a yearlong Bass Connections class organized by Professor Barak Richman and co-taught by Clinical Professor Allison Rice and others, a group of graduate and undergraduate students crafted recommendations for Medicaid reform intended to reduce the incidence of poor health, improve access to health care, lower costs, and garner bipartisan support. The Duke North Carolina Medicaid Reform Advisory Team presented their report to policymakers, health care advocates, and members of the public in Raleigh on April 25 and submitted their core recommendations to the state secretary of health and human services in May as public comments in the official process of Medicaid reform.
“This always has been structured as an effort to use the university as a civic institution dedicated to public welfare and to finding nonpartisan, constructive middle ground,” said Richman, the Edgar P. and Elizabeth C. Bartlett Professor of Law and Professor of Business Administration, who is an expert on health care policy. “Our central narrative and question is: How can we best use our limited Medicaid dollars?”
A large portion of the students’ research, which was co-sponsored by Duke’s Margolis Center for Health Policy, was directed at identifying successful policies and practices in other states and ways they might be adapted for implementation in North Carolina. Their central recommendations highlight the importance of increasing access to care, transitioning gradually to managed care, integrating and coordinating care and introducing an innovative, holistic approach to the care of patients who qualify for both Medicare and Medicaid, and investing in educational and technological innovations to improve health care delivery. Among the team’s specific recommendations:
that North Carolina’s planned introduction of Medicaid Managed Care should ensure the market includes “robust” choice and competition; that any programs aimed at incentivizing healthy patient behavior should “be within a simple, streamlined Medicaid design” to reduce patient confusion and lower state administrative costs; and that the small percentage of “super-utilizers” of Medicaid, who account for a disproportionate share of total costs, should be targeted by a multidisciplinary “hotspotting” approach to holistically address such matters as housing, social, and environmental factors that influence health outcomes.
Shanna Rifkin ’17, who worked on health policy research at the Urban Institute prior to law school, brought a legal perspective to the cross-disciplinary team that also involved graduate students studying business, medicine, nursing, and policy. She supervised two under graduate students who investigated how six other, mostly Southern, Republican-controlled states handle care for individuals who are dually eligible for Medicaid and Medicare and then considered reforms that might work in North Carolina.
“We ended up thinking about the ‘duals’ in terms of the continuity of care they receive, the quality of care, and the cost of care,” she said, noting that they account for 17 percent of North Carolina’s Medicaid population but consume more than 30 percent of expenditures. “That’s in large part because they are really poor and really sick, but also because Medicare, which covers acute care, and Medicaid, which covers long-term care, do not work together.” While improving the interaction of the two systems is a cornerstone of her team’s reform proposals and emulates national health-reform strategies, they also found that a hotspotting approach, the focus of another team’s research, would likely improve care and reduce costs.
“It’s extremely innovative,” Rifkin said. “It looks at the social determinants of health care and things we know contribute to the high cost of care but are often overlooked in health policy. If someone is dual-eligible for Medicaid and Medicare, they are likely also eligible for food stamps and other programs. How do we streamline enrollment and stabilize their housing and make sure they have a healthy diet? Addressing those issues will reduce health care costs.”
“I work every day with low income clients for whom access to high-quality, affordable health care can be a life or death matter, and many depend on Medicaid for their survival,” said Rice, who directs the Health Justice Clinic. “Medicaid is an incredibly complex program and I was blown away by the students’ ability to wrap their heads around it and make some well-researched, practical recommendations.”
Children’s Law Clinic
Grading N.C.’s school voucher program
School vouchers are at the center of another highly charged policy debate in North Carolina and across the country. While critics claim that offering parents tax-supported grants to help pay tuition at private schools simply siphons funds away from public education, supporters invoke parental rights to determine their children’s educational path and seek better academic outcomes. More than 30 states have voucher programs and the new U.S. secretary of education is an avid proponent of school choice.
In late March, the Children’s Law Clinic released a report analyzing the operation of North Carolina’s Opportunity Scholarship Grant Program over its first three years, making recommendations for improvements in educational standards and accountability. The program, which offers grants to low-income students of up to $4,200 to attend private schools, was used by 5,500 students in the 2016-2017 school year. The General Assembly has authorized 2,000 more vouchers each year until 2027, bringing the total to 25,000 at a total expenditure of $900 million.
“The program is still in its early stages, but given that it is slated to grow significantly over the next 10 years, North Carolina policymakers are well-served to take a preliminary look at how it’s working,” said Clinical Professor Jane Wettach, director of the Children’s Law Clinic, who wrote the report. She pointed out that the program’s design impedes a thorough analysis, because only the aggregate performance of students at schools that enroll more than 25 voucher students — a mere 10 percent of schools involved — is made public. According to the report, accountability requirements for private schools receiving the state vouchers are among the weakest in the country. “The schools need not be accredited, adhere to state curricular or graduation standards, employ licensed teachers, or administer state end-of-grade tests,” she said.
Wettach described the voucher program as “well-designed to promote parental choice,” particularly for parents who want their children to attend religious schools: 93 percent of the vouchers issued to date have been used to pay tuition at parochial schools. The program is poorly designed to promote better academic outcomes for students than they would have at public schools, she found, stating that “limited and early data” indicates that more than half of the students using vouchers are performing below average on nationally standardized reading, language, and math tests. These early North Carolina data are consistent with national data that show students with vouchers do not do better academically when they switch to private schools, and often do more poorly than peers who remain in public school.
Wettach recommended amendments to the voucher program targeted at improving its accountability and potential for improving the academic performance of participating students, including requiring all participating private schools to offer a public school-equivalent curriculum, set “reasonable” qualification standards for teachers, and administer standard state end-of-grade tests and report all results. The report also called for requiring adherence to public school standards regarding number of instructional hours and days, prohibiting discrimination in schools receiving voucher support, increasing financial review of private schools receiving vouchers, and strengthening regulators’ oversight of schools that consistently fail to meet educational standards or removing them from the voucher program.
“We need sufficient accreditation requirements to ensure that if taxpayers are spending money to support children in private schools, those children are getting an adequate education,” said Wettach. “In my view, we should not be supporting schools that are failing to prepare students to successfully participate in the democracy and the economy when they graduate.”
International Human Rights Clinic
Assessing the costs of counter-terrorism financing rules on grassroots women’s organizations
Since 9/11, the international community has brought a new urgency to targeting terrorism financing through sanctions, measures relating to criminal law, and new reporting requirements for banks. But according to a report released in March by the Duke Law International Human Rights Clinic and the Netherlands-based Women’s Peacemakers Program (WPP), these efforts have hurt grassroots initiatives aimed at peacemaking and gender equality by cutting off their access to donor funding and banking services.
Over three semesters, clinic students studied the effect of countering terrorism financing rules on gender equality and women’s rights organizing and organizations around the world. Working under the supervision of Clinical Professor Jayne Huckerby, the clinic director, and Supervising Attorney Sarah Adamczyk, the students contributed to a report titled “Tightening the Purse Strings: What Countering Terrorism Financing Costs Gender Equality and Security.” The analysis was released in Geneva during a March meeting of the U.N. Human Rights Council and also during the U.N.’s 61st annual Commission on the Status of Women in New York.
The project was initiated after WPP, which supports grassroots women peace activists and advocates for a gender perspective in building peace, began to encounter difficulties in transferring money to its partner organizations in conflict regions. Speaking at Duke Law on March 22, WPP Executive Director Isabelle Gueskens said they tracked the source of the problem to ways in which countering terrorism financing rules unduly focused on how civil society institutions and NGOs could be used to channel illicit funds. This focus involved a marked increase in bank de-risking and governmental controls.
Concerned that reduced access to banking services and financial transfers could undermine the goals of multiple U.N. Security Council resolutions that recognized women’s key role and right to support and participate in peacebuilding, the clinic and WPP designed a project by which WPP undertook surveys of 60 women’s rights, human rights, peace, and security organizations primarily operating in conflict and post-conflict settings to find out whether and how they were challenged in accessing funds and how that affected their activities and beneficiaries. At the same time, clinic students interviewed government and inter-governmental agencies, NGOs, and philanthropic organizations to determine whether and what changes they were making to the granting and funding practices, while also canvassing financial institutions about their countering terrorism financing practices and undertaking significant secondary research.
The findings: 86.67 percent of the grassroots groups surveyed reported being “squeezed” acutely by attempts to counter terrorism, Huckerby said at the Duke Law presentation, where spring-semester clinic students reviewed the key negative impacts that affect organizational operations and viability. Challenges in accessing funds reduced resources and operations for most of the organizations, many of which lack financial resilience due to their small size and shoestring budgets. Some organizations said they chose not to apply for certain grants, fearing that they would be labeled or “‘lumped into the same pot’” as terrorists, said Glenda Dieuveille ’17. With many foreign donor groups also favoring funding larger, established international organizations and sometimes turning down engagement with projects in regions beset by terrorism — exactly where grassroots efforts seek to counter terrorist influence — services to women and girls are reduced across the board, said Meaghan Newkirk ’18. “Particularly in areas under terrorist control, reduced ability for these groups to operate may result in gendered effects, for example with women and girls becoming reliant on terrorist organizations for service provision.”
The students found that excessive delays in transfers of donor funds caused by bank de-risking practices often amounted to “effective account closure,” said Nathan Blakney ’17. Rym Khadhraoui LLM ’17 noted that the grassroots groups also reported being unable to cope with the administrative burdens and prohibitive costs of the countering terrorism financing rules’ due-diligence requirements. Khadhraoui quoted the words of an organization working in Iraq: “‘Organizations who operate in the parts controlled by ISIS cannot access any funds anymore. This cripples them even more.’”
Wojciech Maciejewski LLM ’17 described the impact of harassment, sometimes state-sponsored, on activists operating in repressive societies. Because of countering terrorism financing rules, many resort to carrying cash in conflict areas and across borders and also borrow from or process financial transfers through accounts of friends and family. Doing so is both dangerous and potentially illegal, and adds to the enormous pressure on the activists involved, he said.
While counter-terrorism rules and sanctions may be gender-neutral on their face, the report documents the ways they discriminate in practice, and implicate governmental obligations under international human rights law to prohibit discrimination on the grounds of gender and sex, said Huckerby. “We also remind governments they need to ensure equality, including in access to financial services, and when there is a violation of international human rights law, there must be a right of redress.”
Adamczyk pointed to the report as a starting point for complex advocacy to achieve policy changes in relevant practices at the inter-governmental, state, civil society, bank, and donor levels. Donor restrictions rooted in counter-terrorism financing rules are especially counter-productive, she observed. “There is policy incoherence between wanting to achieve gender equality and programming for women and at the same time making it actually impossible to get funding to where it’s needed.”