Guest piece by Susan Hansen on The Atlantic Philanthropies’ new report on litigating for social change

Susan Hansen is an independent writer, researcher, and editor based in New York who specialises in legal and business-related topics. Her work has appeared in the New York Times, Bloomberg Businessweek, Columbia Journalism Review, and Inc., among other publications. She has also handled a wide variety of editorial projects for foundations, nonprofits, and law firms.

Over the years, The Atlantic Philanthropies has seen that strategic litigation can be a powerful tool for promoting social change. With assistance from Atlantic, advocacy groups in Northern Ireland, the Republic of Ireland, South Africa, and the United States have mounted legal challenges to address a broad range of problems, from race discrimination to poverty and socio-economic inequality to violations of civil liberties and basic human rights.

That litigation has, among other things, helped reduce racially biased policing practices in New York City, expanded the rights of transgender people in the Republic of Ireland, and compelled the South African government to begin living up to its promise to provide a basic education to all school-age children, no matter their economic circumstances.

Indeed, those sorts of successes clearly show that governments can be held to account — and that a sound, well-executed legal strategy can not only help improve the lives of disadvantaged or marginalised individuals, but lead to lasting systemic social and economic improvements.

Litigation often requires a major investment of resources, and can be a long, time-consuming undertaking. But, as Atlantic has learned, it can also produce significant payoffs, especially when litigation is combined with other advocacy efforts.

The case studies contained in Atlantic Insights: Strategic Litigation seek to highlight the various ways Atlantic grantees have used strategic litigation to help advance social and economic justice.

They include two landmark suits that took place in Northern Ireland (NI). The first, a major victory for the movement to promote integrated education, clearly established that the Northern Ireland government has a statutory duty to encourage and facilitate efforts to boost the number of schools serving children of all faiths and backgrounds.

In the second NI case, anti-poverty activists challenged the government’s failure to adopt and implement a strategy to alleviate poverty, as required under the 1998 Good Friday accords and the St. Andrews Agreement of 2006. In a major win for plaintiffs, the court ultimately found that government has a legal duty to put forth clear policies to tackle poverty and patterns of social exclusion and deprivation in Northern Ireland.

The case from the Republic of Ireland involves transgender rights. Originally filed in 1993, the litigation successfully challenged the government’s refusal to allow transgender people to change their birth certificates to reflect their new identities. The lengthy battle finally came to a close in 2015 with the passage of Ireland’s new Gender Recognition Act.

Another case study covers two lawsuits brought by lawyers at the Johannesburg-based Legal Resources Centre to address appalling infrastructure problems at many South African schools. Given that the South African constitution guarantees children the right to a basic education, both suits argued that the government’s failure to provide safe habitable school buildings and classrooms violated the rights of students. In a clear victory for plaintiffs, the government ultimately agreed to launch a major school rebuilding and repair campaign, which is currently underway.

This Insights also features two cases in the United States. The first was a pivotal class action brought by the Center for Constitutional Rights (CCR) to stop racial profiling in New York. CCR lawyers argued that the city’s stop and frisk policy violated the rights of black and Latino citizens, and ultimately won a landmark victory ordering sweeping police reforms.

In another U.S. class action, lawyers at the Center for Medicare Advocacy successfully challenged a Medicare rule that required patients to show “continuous improvement” in order to remain eligible for Medicare coverage for rehabilitative services. The result: a federal court found that Medicare could no longer routinely deny claims for so-called maintenance therapy, and more seniors should be able to get the physical and occupational therapy they need.

With these case studies, Atlantic seeks to share what it has learned to inform others in philanthropy about the potential of strategic litigation to bring about social change, and help interested funders and non-governmental organisations use it to greater effect.

Click here for Atlantic Insights: Strategic Litigation



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