Page 138 - Impact: Collected Essays on Expanding Access to Justice

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C. Access: People, Places and Information
In situations where there is evidence that a government agency is not meeting its legal obligations, a thorough investigation can help in identifying the causes and possible solutions .39 Local government attorneys can obtain significant access to people, places, documents and data needed to assess an issue . They can review written policies and procedures to determine whether they are facially sufficient . They can interview people working in a range of different positions in the agency (agency leaders and directors of individual programs or offices, and also non-managerial employees who directly serve the public or otherwise work on the challenged issue) . They can obtain and review relevant documents and data, regardless of whether litigation is pending and regardless of whether the documents were requested in discovery . They can visit schools, hospitals, jails, public assistance offices, shelters, and other locations where they can interview employees, observe operations and conditions, and learn about and review other relevant documents .
In some cases, the legal issues may have directly resulted from the actions or policies of policymaking officials . In these situations, local government attorneys should counsel the officials to revise the policies or take other actions needed in order to prevent or remedy the problem .
In some circumstances, however, the issues raised may have resulted from a lack of policy clarity or training, insufficient resources, misunderstanding, or insufficient attention to an issue when faced with competing priorities, as opposed to malice or a complete lack of concern . Once the problem is identified, local officials may be interested in taking steps to address it and to make improvements as quickly as possible . A thorough factual investigation by a local government attorney can help the attorney to assess the situation, and to recommend possible solutions in conjunction with local agency officials . The solutions may vary depending on the nature and extent of the problem .
Consider, for example, a situation in which a school district attorney learns that some schools in the district have not been providing mandated educational services for schoolchildren who recently immigrated to the United States and are not fluent in English .40 Here are some issues or causes that a school district attorney could explore through a thorough investigation, and some possible responses that school district policymakers might consider:
39 While this section focuses on situations involving violations of the law, a thorough investigation of course can also help to refute a claim that lacks factual merit.
40 For a review of federal requirements to provide services for children learning English, see Catherine E. Lhamon, Assistant Sec’y for Civil Rights, u.S. Dep’t of Educ. & Vanita Gupta, Acting Assistant Attorney General for Civil Rights, u.S. Dep’t of Justice, Dear Colleague Letter: English Learner Students and Limited English Proficient Parents, at 5 (Jan. 7, 2015) (discussing state and school district obligations under the Equal Educational Opportunities Act, Pub. L. No. 93-380, § 204(f), 88 Stat. 484, 515 (1974) (codified at 20 u.S.C. § 1703(f)), “to take ‘appropriate action to overcome language barriers that impede equal participation by [their] students in [their] instructional programs’”), available at https://www.justice.gov/sites/default/files/crt/legacy/2015/01/07/eldcleng.pdf.
Impact: Collected Essays on Expanding Access to Justice