One Determined Dreamer Has Paved the Way for Other Aspiring Lawyers in Pennsylvania

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Parthiv Patel (Photo: Ben Bowens)

On February 8, Pennsylvania quietly posted a new rule about who can become a lawyer.  The amended rule, adopted by Pennsylvania’s Board of Law Examiners (an arm of the Pennsylvania Supreme Court), makes clear that DACA recipients are eligible to be licensed attorneys in the commonwealth of Pennsylvania.

This may seem obvious. Of course DACA recipients should be able to be lawyers—just like anyone else who graduates from law school in the U.S., passes the bar exam, and satisfies the “character and fitness” requirements. Immigration status has no bearing on someone’s ability to be a good lawyer.

But before this month, there was no official word from Pennsylvania on this issue.

The new rule stops short of welcoming all qualified candidates to the bar, regardless of immigration status. It applies only to non-citizens with DACA status or some future equivalent status based on a DACA successor program. It is hopefully not the last word from Pennsylvania about immigration status and fitness to be a lawyer, but it was an important step in the right direction.

And the new rule was a long time in the making.

You can trace its origins back to December 2017, when ACLU client Parthiv Patel became the first Dreamer admitted to the Pennsylvania bar.

Or maybe further back to October 2016, when the Board of Law Examiners initially rejected Parthiv from the bar because of his DACA status, and the ACLU appealed and began advocating for his admission in what would become a year-long fight involving letters of support from dozens of respected institutions from across the commonwealth and beyond.

Or maybe even further back to 2012, when Parthiv got his DACA status, and his future opened up.

Deferred Action and Law School Dreams

Parthiv Patel was born in India. Like every beneficiary of President Obama’s Deferred Action for Childhood Arrivals (DACA) program, Parthiv was brought to the United States as a child. Like many, he grew up believing he was American. It was not until his late teens that he learned he was undocumented.

Under DACA, he was eligible to get authorization to work in the United States, and a small window of time during which the federal government promises not to deport him.

With that breathing room, Parthiv was able to set his sights on becoming a lawyer. He had seen how his immigrant parents had been cheated and lost money, unable to navigate the American legal system to protect their rights and without the resources to hire expensive lawyers. He wanted to become a lawyer to protect other small business owners against fraud.

After receiving DACA, Parthiv was accepted to the Drexel University Thomas R. Kline School of Law in Philadelphia.

Done with Law School But Not Yet a Lawyer

Three years later, in July 2016, Parthiv spent several days sitting alongside thousands of other law school grads taking the Pennsylvania and New Jersey bar exams. Like virtually all of his classmates, he was stressed about the grueling exam. And like many, he was anxious about whether he would clear the “character and fitness” evaluation, but for very different reasons from his colleagues.

What he was worried about what his immigration status. He was, as far as he knew, the first Dreamer to apply for a bar license in Pennsylvania or New Jersey.

In October 2016, just before Pennsylvania bar exam results were going to be posted online, Parthiv got a phone call from the Pennsylvania Board of Law Examiners. They told him, “I have good news and I have bad news. The good news is, congratulations, you passed the bar exam! The bad news is that we can’t admit you because of your DACA status.”

Opting Out of Exclusion

In 1973, the U.S. Supreme Court ruled that states can’t require U.S. citizenship as a condition of becoming a lawyer.  But a 1996 federal statute prohibits states from giving “benefits”—including professional licenses—to non-citizens without certain forms of legal status.

The statute contained an “opt out” provision, though. The law allows states to opt out of the prohibition by affirmatively deciding to confer certain benefits without regard to immigration status.

The ACLU-PA, along with Fred Magaziner and Rhiannon DiClemente from Dechert LLP and Samuel Stretton, represented Parthiv in appealing his Pennsylvania bar denial. In Pennsylvania, the courts have the exclusive power to regulate lawyers. So we argued that the Board of Law Examiners should exercise that authority to opt out. Dozens of organizations agreed with us and wrote letters of support.

More than a year after it had rejected him, the Board of Law Examiners finally sent Parthiv the standard letter that goes out to everyone who has been admitted to the bar in Pennsylvania.

Further to Go

There are thousands of other would-be non-citizen lawyers who missed out on DACA and may never get to become lawyers in Pennsylvania under the current rules.

In fighting for Parthiv’s bar admission, we argued that his admission should not be contingent on his DACA status. We stressed that all qualified candidates should be eligible to become lawyers, regardless of immigration status. Even without work authorization under DACA, undocumented people can legally work as lawyers in the United States on a pro bono basis or as independent contractors or solo practitioners.

Pennsylvania—and every state—should go further to remove barriers to professional licensing based on immigration status.

But in an era of near-constant, overwhelming bad news for immigrants, the step Pennsylvania took to open the doors of the legal profession to Dreamers—as imperfect as it is—is still a step in the right direction. Apart from the young, future lawyers who will benefit from the rule change, standing with Dreamers also has powerful symbolic value. Hopefully it will prompt other states—most of which have not addressed this issue yet—to lift barriers to bar admission based on immigration status and take other steps to protect undocumented people.

So welcome to the bar, Pennsylvania Dreamers. Together, we can keep fighting to make our profession—and our country—more inclusive.

Happy 50th Birthday to Students’ Free Speech Rights!

Credit: Molly Kaplan/ACLU

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

On February 24, 1969—almost exactly 50 years ago—the Supreme Court decided that public school students’ free speech rights don’t disappear when they go to school.

That ruling grew out of John and Mary Beth Tinker’s decision to wear black armbands with peace signs to their public school in Des Moines, Iowa, to protest the war in Vietnam and mourn the dead. Their school had banned the armbands, and punished them for wearing the bands in spite of the ban. John and Mary Beth fought their suspension all the way to the Supreme Court, and won.

The armbands were controversial. One Supreme Court Justice observed that the armbands had led to discussion among students and warnings or ridicule by other students. Mary Beth’s math teacher said his lesson period was “practically wrecked” by debate sparked by the armbands. And they took many students’ minds off school and diverted their attention to the “highly emotional subject of the Vietnam war.”

But the Supreme Court ruled that that was not enough to justify censoring their speech.  The Court said:

A student’s rights . . . do not embrace merely the classroom hours.  When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others.

This was not the first time the Supreme Court stood up for students’ rights. In 1943, the Court ruled that students at public school have a constitutional right not to be forced to salute the flag. The Court explained that the First Amendment means that, even during wartime, public schools can’t force students to participate in symbolic acts of patriotism. The right to free speech also includes the right not to be forced to say things you don’t mean.

But Tinker v. Des Moines was the first time the Supreme Court laid down a broad, general rule to protect students’ rights not just to not be forced to say things they disagree with, but to speak their mind at school. That rule—which became known as the Tinker rule—is that schools can’t punish students for their speech unless the speech causes “substantial, material disruption” of class or other school activities, or the school has specific reasons to expect that it will.

This is a tough test for schools to meet.

The Tinker rule does have some exceptions. The Supreme Court later decided that schools can punish students for swearing or for making sex jokes at school, even if they’re not disrupting anything. And schools can punish students for encouraging the use of illegal drugs (or for nonsense statements that school officials think might be encouraging the use of illegal drugs—just ask Joseph Frederick, who got suspended for ten days for holding a “BONG HITS 4 JESUS!” banner at a parade during school time).

And if there’s some risk that a student’s speech might be confused for something the school said—like when students write articles for a school newspaper—then the school can exercise some extra control over what students say.

But the basic idea that schools can’t censor student speech just because it might be controversial or upsetting to other students is still the law of the land, and important now more than ever.

We’ve relied on the Tinker case to defend middle school students’ right to wear breast cancer awareness bracelets that said “i © boobies! (KEEP A BREAST)” on their school’s Breast Cancer Awareness Day.

We rely on Tinker when we advise students that they have the right to take a knee during the national anthem to protest police brutality and white supremacy, or issue guidance about students’ rights when participating in a walk-out.

And courts have cited the Tinker case in rulings protecting students when schools exceed their authority and try to punish students for what they say on their own time on social media.

For example, in 2013, the federal appeals court that covers Pennsylvania, New Jersey, and Delaware cited the Tinker case in ruling that schools can’t punish students for making satirical social media profiles about school administrators. This is true, the court ruled, even if the profiles use the kind of bad language and sexual innuendo that students could be punished for using in school. And even if the profiles are really offensive and hurtful. And even if they make their way into the school, and other students talk about them at school.

And we’ve cited Tinker in our lawsuit to get a cheerleader restored to her cheerleading squad after she was kicked off because she used profanity and criticized cheerleading in a Snapchat post that she shared with her friends on the weekend, when she was not participating in cheerleading.

At age 50, Tinker v. Des Moines is still the cornerstone on which students’ free speech rights are built and will continue to be built.

Let’s hope it outlasts us all.

PA Prisons’ New Legal Mail Policy Stifles Communications Between Lawyers and Prisoners

Photo: Ali Khan via flickr

By Andy Hoover, Director of Communications, ACLU of PA

At the first day of testimony in federal court in Harrisburg on Tuesday, four lawyers and one person who is currently incarcerated testified that the Pennsylvania Department of Corrections’ new policy of copying and storing mail between lawyers and their clients in the state prisons significantly hampered their ability to communicate with each other.

Federal district court Judge John E. Jones III is presiding over the hearing in PILP et al. v. Wetzel and Hayes v. Wetzel, two cases that challenge the prison system’s policy as a violation of the First Amendment right to attorney-client confidentiality.

In her opening statement, Alexandra Morgan-Kurtz, a staff attorney with the Pennsylvania Institutional Law Project, said that the department “overreacted” and that, “There’s a reason no other prison system in the country has adopted this
overly aggressive approach.”

Until last fall, legal mail was opened in front of the intended recipient, checked for contraband, and given to the prisoner. But in October, the department changed that practice. Now, legal mail is still opened in front of the prisoner, but, after checking for contraband, prison staff then copies the document. The copy is given to the prisoner, and the prison staff stores the original.

In testimony today via videoconferencing, Davon Hayes, a prisoner at SCI-Smithfield in Huntingdon who is challenging the practice, said that he has never actually seen the originals placed into the locked bin where they are to be stored and that he is unable to see the copier that is used for producing the copy.

Mary Catherine Roper, deputy legal director at the ACLU of Pennsylvania, and Su Ming Yeh, deputy director at PILP, both represent organizations that are plaintiffs in the litigation and that communicate regularly with people who are incarcerated. Or at least they did. Roper told the court that ACLU-PA stopped sending any privileged communications to people in DOC facilities and instead now sends a generic questionnaire, asking prisoners about their experiences with the new policy. And Yeh testified that PILP no longer sends legal mail that is specific and confidential. She called the department’s policy a “detriment to our cases and to the hundreds of people who contact us.”

Although the department’s policy prohibits staff from reading legal mail that they are handling, Roper testified that the idea that staff will simply avert their eyes from the pages they’re handling is “not credible.”

Furthering the point, in his own testimony, Hayes talked about the experience of a guard looking at his legal mail during a cell search in 2011, long before the policy of copying and storing mail started. According to Hayes, the guard read the complaints that Hayes had filed, including a complaint to the local district attorney. When Hayes asked him to stop, the guard called him “a rat” and kicked his mail and his religious materials.

Also on Tuesday, the court heard from two attorneys from the Federal Public Defender – Leane Renée, chief of the Capital Habeas Unit in central PA, and Lisa Freeland, chief of the FPD in western Pennsylvania. Renée and Freeland both discussed the impracticality of visiting their clients, with long drives across the state and hurdles created by prisons’ rules, which are often different from one prison to the next. Renée testified that, under the previous policy, lawyers in her unit would typically send letters with their opinions and thoughts about a client’s case and draft briefs. Her attorneys stopped doing that when the new process went into effect in October. Because the DOC also requires that legal mail provided by attorneys to their clients during visits be copied and stored, the lawyers in her office have no confidential way to provide physical copies of documents to their clients.

Freeland, who represents Hayes, said that her decision to cease sending confidential information put a strain on their relationship. Hayes had advanced his case through the appeals courts while representing himself. The Federal Public Defender started representing him last year, so when his new attorneys stopped communicating by mail, Hayes became frustrated and threatened to dismiss them, after years of having total control as his own lawyer.

On Wednesday, the ACLU-PA and our fellow plaintiffs will continue our case with testimony from several officials from the Department of Corrections, a former warden of San Quentin Prison in California, and another prisoner. Along with ACLU-PA and PILP, the other plaintiffs and co-counsel include the Abolitionist Law Center and the Amistad Law Project, with volunteer attorneys from the law firm Schnader Harrison Segal & Lewis. More information is available at aclupa.org/PILP.

Update: Wednesday’s proceeding has been cancelled due to weather.

Pennsylvania Can’t Be a Model for Reform if We Undermine People’s Rights

By Andy Hoover, Director of Communications, ACLU of PA

Elected officials and corrections administrators in Pennsylvania have been doing a bit of a victory lap after the recent announcement that our state prison population dropped by 1,000 people in 2018. On the heels of the passage of the Clean Slate Act — a new law to automatically seal some people’s criminal records from public view — some have gone so far as to call Pennsylvania “a model” for criminal justice reform.

But before anyone gets carried away with the idea that the commonwealth suddenly gets it on smart justice, tap the brakes: The legislature is on the verge of granting ballot access to a state constitutional amendment that would undermine the fundamental rights of people who are accused of crimes in pursuit of “victims’ rights.”

We all feel sympathy and compassion for people who have been victimized. It’s neither right nor fair that some people are harmed by someone else’s behavior. If the government can create programs to support victims, that’s all the better.

But the pending constitutional amendment — known as Marsy’s Law and bankrolled by a billionaire from California — is a deeply flawed and downright dangerous undercutting of defendants’ rights. Supporters of the proposal say that they want the rights of victims to be equal in the Pennsylvania Constitution to the rights of the accused. Their narrative fails to appreciate why the state constitution includes the provisions it does – and excludes others.

A person accused of a crime faces the full weight of the state bearing down upon them. The state is attempting to deprive that person of their liberty, possibly even their life. Pennsylvania’s constitutional framers did not want the government to have the power to jail someone without layers of protections. That’s why our principles as a state — and a nation — include due process, a guarantee of counsel, and a presumption of innocence.

Contrast these with victims’ rights, which arise out of a dispute between two private people. One person’s rights against another person are fundamentally different than a person’s rights against the awesome power of the government. This is why our constitution, which lays out the restrictions on government power, includes defendants’ rights and why victims’ rights are primarily contained in statute.

The proposed Marsy’s Law constitutional amendment runs afoul of the protections granted to those subject to the power of the state. The new guarantees in this proposal include a victim’s right to refuse “an interview, deposition or other discovery request” sought by counsel for a defendant. Think about that: A person’s freedom is on the line in a trial, and Marsy’s Law would prohibit them from having the necessary information that could prove their innocence or mitigate the severity of their sentence. That person’s right to a fair trial would be lost, and with it, the chances for grave miscarriages of justice to occur increase.

This legislation also gives victims’ a right “to be treated with fairness and respect for the victim’s safety, dignity and privacy.” On its face, that sounds reasonable. We’re all about fairness and privacy here at the ACLU. But in other states, police officers have used this same Marsy’s Law to hide their identity after they shot people. Law enforcement officers have twisted a law intended for victims to hide their own behavior, at the very moment when transparency is most critical — after an officer has committed an act of violence against a private person.

The proposal in Pennsylvania is littered with vague language. It includes the constitutional right “to proceedings free from unreasonable delay and a prompt and final conclusion of the case and any related postconviction proceedings.” This language could prevent a defendant from having the adequate time needed to present a defense or from the opportunity to have their case heard in the appeals process, which is guaranteed under the constitution. It’s worth noting that once in the constitution, vague language is incredibly difficult to amend when problems inevitably arise.

While our criminal justice system is far from perfect, the guarantees of both the Pennsylvania and U.S. Constitutions are intended to mitigate the mighty power of the state when a person is accused of a crime. Writing Marsy’s Law into Pennsylvania’s Constitution will further empower the state, at the expense of the liberty of the person who is accused. Members of the General Assembly would be wise to slow down, rethink what they’re doing, and, like legislators in New Hampshire, Idaho, Maine, and Iowa, deny Marsy’s Law ballot access.