Enhanced Attorney's Fees in Civil Rights Cases & NSBA's Public Stance

Mark Walsh, doing his usual outstanding job, had a great post today on the Supreme Court oral argument in a case involving enhanced attorney's fees. Mark does such a great job with the facts and the Justice's positions at oral argument, I won't repeat them here. The case is Perdue v. Kenny and, broadly, civil rights lawyers were awarded an extra 4 million in "enhanced fees" (on top of the 6 million in typically permissible fees) for doing such an outstanding job on a foster system case against the Georgia Department of Human Resources. And, I'll just tell you now I don't like that award either and judging from Mark's reporting, I sort of expect it to be struck down. Fine.

What does concern me, though, is NSBA's amicus brief supporting the state of Georgia. In short, I think it was a little distasteful on their part. They make three principal arguments: (1) enhanced fees hurt students by taking money away, (2) enhanced fees reduce the likelihood of settlements, and (3) enhanced fees will discourage voluntary changes on the part of schools. None of their arguments are that bad, but neither are their arguments that good. I can feel, a little, NSBA stretching to make their case in the brief (especially the quasi-complaining about tight budgets). In fact, I don't think the arguments were good enough for NSBA to get involved in this.

Civil rights are a hot political issue and it is one you don't want to be on the other side of unless there is a really good reason. At least in my opinion, there wasn't one in this case. For instance, next week at ELA I am helping to coordinate a remembrance of the Rose v. Council for Better Education school finance case out of Kentucky where lawyers for school districts substantially advanced civil rights for students in Kentucky. In that case, one could make a good argument that the lawyers for the school board should have received "enhanced fees" for the educational benefit they brought to poor, rural Kentucky children. So, NSBA's members have been on the other side of this equation in the past for one. 

But, generally, on occassion I question how far NSBA's attorneys are willing to go. And, this is one of those occassions. Don't get me wrong, I love the work that NSBA does and it frequently directly benefits me, and they should absolutely be outstanding advocates for their members. But, sometimes discretion is the better part of valor and it is good to not be seen as openly trying to diminish student and civil rights. Even though I agree with them that enhanced fees are probably not a good idea, making such a public statement in that forum I think was a little distasteful.