Monthly Archives: April 2021

BBA Amicus Brief Supports Post-Conviction Ballistic Testing

Last week, the BBA filed an amicus brief in Commonwealth v. Jenks — the latest in a series of briefs in cases testing a 2012 law — which the BBA was instrumental in enacting — that provides a mechanism for post-conviction testing of forensic evidence, allowing petitioners to try to prove their innocence.

Here, the BBA argues that the forensic-testing law is intended to set a low bar for initial motions for such testing and that the SJC should recognize, for purposes of applying the law, that science is constantly changing, taking that into account in assessing whether a proposed analysis to be sought — in this case, ballistic testing — is a material improvement over a previously conducted analysis.

Our Amicus Committee — led by Neil Austin of Foley Hoag and Maria Durant of Hogan Lovells — has been busy recently. This brief was drafted by Neil and his Foley colleagues, Anthony Mirenda and Rachel Hutchinson, as well as John Weaver of McLane Middleton and Madison Bader of Lawson & Weitzen.

—Michael Avitzur
Government Relations Director
Boston Bar Association

Immigration Update

BBA Council Adopts Resolution on Immigration Court

The BBA Council endorsed a resolution aimed at addressing concerns among practitioners about practices at the Boston immigration court. It offers recommendations to strengthen the court’s COVID-19 protocols, as well as to improve communications between the court and attorneys who practice there, and to enhance efficiencies in the court’s handling of cases. The MBA and the American Immigration Law Association of New England have also adopted the resolution, and we hope this united front will prompt consideration of, and dialogue about, these recommendations.

New Policy on Immigration Enforcement in Courthouses

The Department of Homeland Security (DHS) this week tasked Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) with developing new guidelines on enforcement by those agencies in and around courthouses. Such enforcement has been a major access-to-justice concern for the BBA, because it has a chilling effect on victims, witnesses, and others seeking justice. Indeed, we have been involved with litigation at the federal and state level challenging such actions. 

The interim DHS memo for the first time recognizes the impact on access to justice and calls for enforcement measures to be limited to certain circumstances. But we await further detail, in more-permanent policies, to assess how effectively the Biden Administration’s approach will curtail courthouse enforcement.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Leadership Takes Part in Annual ABA Day

For the second year in a row, our participation in the annual ABA Day event was virtual-only, but we were nevertheless able to continue the spirit of the event by communicating over Zoom with some of the Massachusetts delegation about shared BBA and ABA priorities.

Rep. Jim McGovern (MA-04), speaking with the BBA on ABA Day, April 21, 2021

As usual, our main focus was on appropriations for the Legal Services Corporation, the largest source of funding for legal-aid providers nationwide, including four grantees in Massachusetts. President Marty Murphy and President-Elect Deb Manus led the meetings, joined by three experts on that issue: former BBA Presidents Mary Ryan (co-author of our Gideon’s New Trumpet report) and J.D. Smeallie (lead author of our Investing in Justice report), and Council member Betsy Soulé, executive director of MetroWest Legal Services.

We also talked about immigration concerns, including the resolution recently adopted by the BBA Council, calling for reforms to improve efficiency and accessibility at the Boston immigration court, and our support for ensuring the independence of immigration courts throughout the U.S. by placing them outside the executive branch, like similar courts, such as Tax Court and Bankruptcy Court. These positions are built on the foundation of our Immigration Principles.

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins ADL in Support of Equity in Access to Boston’s Prestigious Exam Schools

Amicus Brief in Federal Case Is in Keeping with BBA’s Commitment to Diversity in Education

[This post has been updated to reflect a District Court decision on April 15 on the case at hand. See the passage in red below.]

The BBA has long had a commitment to diversity and equity in education, dating back at least as far as our 1975 report, Desegregation: The Boston Orders and Their Origin, which promoted public understanding of Judge Garrity’s controversial busing plan.

More recently, we have been active as amici in litigation on these issues, opposing the abolition of race-conscious admissions policies — especially at law schools — as a threat to efforts to diversify the legal profession, and twice arguing that diversity within the legal profession cannot be achieved without a “pipeline” that requires diverse representation at both undergraduate institutions and law schools. (And, of course, our work in support of equal opportunity for all students extends beyond the courtroom as well, including our Summer Jobs and Financial Literacy programs for high-schoolers and our Service Innovation Project to protect the rights of students at all levels in discipline cases.)

Bringing that legal focus back to Boston, the BBA signed onto an amicus brief by the Anti-Defamation League (ADL) in support of the Boston Public Schools’ one-year policy for admission to its three exam-based high schools. Several other groups with an interest in ameliorating long-standing educational disparities also joined the brief, which argues that the school system has a compelling interest in advancing diversity of all kinds at the exam schools. The underlying litigation was filed in the U.S. District Court in Massachusetts this past February on behalf of several families of potential applicants who they claim would be adversely affected by the switch to this interim policy.

Boston’s School Committee had been criticized over admission policies for the highly-selective schools that have led to the acceptance of students who are significantly less diverse—on racial/ethnic, geographic, and socioeconomic measures—than its enrollment as a whole. This year, the district chose to drop the exam component because of the pandemic, settling instead on a temporary approach that still focuses on grades, setting aside 20% of seats to be filled solely on that basis, but also seeks to ensure greater diversity by using geography as well to help fill the remaining 80% — drawing the top students from each ZIP code, in numbers commensurate with the student population in each area.

The ADL’s brief, prepared by attorneys with Cooley LLP‘s Boston and Washington, DC, offices, argues that the policy—which is in place to govern admissions for the 2021-22 school year only —advances the exam schools’ mandate “to foster and maintain a diverse student body so that students have access to the myriad, well-established educational benefits of diversity,” and that it ultimately helps the City of Boston compete in a global marketplace where “having more diverse, well-credentialed graduates is an essential competitive advantage.”

“The Exam Schools are a crucial part of the pipeline by which promising and diverse students in Boston enter the local talent pool,” the brief states. “Students from underrepresented communities around the City are missing out on significant opportunities and advantages,” noting, for example, that “a student from West Roxbury was approximately five times more likely than a student from East Boston to gain admission.” By addressing such on-going disparities head-on, the one-year policy will help level the playing field.

“The BBA has long taken an interest in promoting equity and equal opportunity for students in New England’s largest school district and beyond,” said BBA President Martin F. Murphy, “from publishing a 1975 report that explained court-ordered desegregation to the public, to filing a series of amicus briefs over the past 20 years in defense of the principle that society is best served when the benefits of access to a quality education are shared equally, and when students are best prepared for success by learning in a diverse environment. We are proud to join the ADL and others in this brief.”

The other amici joining the brief include Amplify Latinx, the Black Economic Council of Massachusetts, the Boston Celtics, the Boston Red Sox, Jewish Alliance for Law and Social ActionKing Boston, the Massachusetts Immigrant and Refugee Advocacy Coalition, the Massachusetts LGBT Chamber of Commerce, the Mental Health Legal Advisors Committee, the New Commonwealth Racial Equity and Social Justice Fund, and Boston-based cybersecurity firm Rapid7. In addition, a number of civil-rights groups, represented by Lawyers for Civil RightsSidley Austin LLP, and Greater Boston Legal Services, successfully moved to join as intervenors in the case, to offer the court a broader perspective on the issues presented.

A hearing in the case—Boston Parent Coalition for Academic Excellence Corp. v. The School Committee of the City of Boston et al.was held on April 6, with District Judge G. William Young hearing from counsel for the plaintiffs, the defendants, and the intervenors. Arguments mostly centered on what level of judicial review is called for in the case. Judge Young pledged to deliver at least a preliminary ruling as soon as possible, in light of the schools’ need to notify applicants of their admission decisions.

We’ll report back once a ruling is issued.

UPDATE: Just after this post was published on April 15, Judge Young released his decision, ruling in favor of the Boston Public Schools and rejecting a challenge to their one-year admissions policy for Boston’s exam schools. 

—Michael Avitzur
Government Relations Director
Boston Bar Association

BBA Joins DLC & MHLAC on Amicus Letter in Support of Civil-Commitment Rights

This week, the BBA joined the Disability Law Center (DLC) and the Mental Health Legal Advisors Committee (MHLAC) in submitting an amicus letter to the SJC in an impounded case brought by a petitioner currently held at Bridgewater State Hospital under the Commonwealth’s civil-commitment laws

In his reservation and report on the case — which was made public, in order to promote amicus participation, and which contains further details on the underlying fact pattern — the Single Justice set oral argument for April 5. The BBA Council accepted the Amicus Committee‘s recommendation to join the letter, based on our commitment to the fundamental principles of due process and equal protection.

The amicus letter (which is also impounded) argues that: (a) the statute in question raises due-process concerns regarding the treatment of prisoners under the law, as opposed to others; (b) there is no current rationale for the provision allowing the state’s Commissioner of Correction to effectively override a judge’s determination and hold an individual at Bridgewater who would otherwise be sent to a different facility for treatment; and (c) the exercise of that authority has a disproportionate impact on low-income people and people of color.

For all these reasons, the letter urges the Court to find that portion of the statute unconstitutional. The letter was drafted in part by the BBA’s Amicus Committee, but we were pleased to be able to partner with MHLAC and DLC, who led this effort.

The case will be argued before the SJC (streamed live) on Monday at 9am.

Amicus Curiae means, literally, friend of the court. Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2020-2021 BBA Amicus Committee is co-chaired by Neil Austin of Foley Hoag LLP and Maria Durant of Hogan Lovells.

—Michael Avitzur
Government Relations Director
Boston Bar Association