The Big Picture – Winning “Unwinnable” Cases and Plugging Holes in the Legal System

The end of one year and start of the next always brings the inevitable compilation of lists of the “Best of the Year” in regards to pretty much any category you can imagine.  And while this year’s “Top Ten Movies” brought with it the inclusion of the usual suspects, there is one movie that keeps popping up that I think needs to be given another look: Waiting for Superman. This documentary, by Oscar winner David Guggenheim, highlights the failures of so many public school systems around the country and how these failures affect five students and their families.  Given the Oprah stamp of approval, it has also reached a relatively large segment of the American population and has sparked public debate about what should be done to improve schools in some of the largest urban centers in the country.

Now, those of us at N-Map are not really documentary filmmakers.  Our goal is not to produce feature-length films or to debut our videos to packed audiences in theaters around the country.  Rather, N-Map and its partners strategize to put together targeted advocacy campaigns, making short videos with concise messages for specific audiences, which range from legislators or other decision-makers to affected communities and important local leaders – and occasionally judges.

However, there are several things that the producers of a film such as Waiting for Superman and N-Map have in common. Waiting for Superman – much like those documentaries in whose wake it follows, from Supersize Me and An Inconvenient Truth (also by David Guggenheim) to Taxi to the Dark Side – seeks to bring attention to an issue that affect millions yet has not been adequately addressed by our politicians, our court systems, or the public at large. These films not only have the power to bring complex issues to life, distilling them into concise stories, but have also captivated large audiences, showing the ability of the American people to engage and grapple with difficult issues.  Likewise, N-Map works to give a voice to communities that historically have been silenced or ignored, bringing attention to the plights of people who are too easily forgotten.

In this way, both N-Map and this new genre of social justice documentary are providing a voice and a vision for civil rights issues that U.S. courts have routinely been unable to, or have even refused, to address.

It is true that one of N-Map’s goals is to help public interest lawyers avoid reliance on litigation, or speed up litigation.  However, N-Map’s work also includes a number of cases that would be simply impossible to bring before an American court, due to legal restraints such as the requirement that plaintiffs have proper standing, which has a very specific definition; the legal standard that applied to equal protection claims today, including the near impossibility of proving a claim based on disparate impact; the refusal of courts to recognize wealth as a suspect classification; the courts’ inability* to acknowledge that discrimination may result from the intersection of numerous factors, rather than operating on a single axis such as race or gender alone.  Some of these legal rules or traditions are based on legitimate administrative concerns, including the need to draw some lines in a justice system already overwhelmed by the number of cases on the dockets.  However, it is perhaps more often true that these types of cases are excluded due to a lack of imagination, or will on behalf of the judges and politicians who have crafted the court system as it stands today.

Overall, as a result of all these factors, certain issues are strikingly excluded from the justice system altogether, including many that involve systematic or structural inequalities in public institutions.  A film like Waiting for Superman would not need to be made if communities were allowed to bring suit based on statistical proof that their children were receiving lesser educations, or if U.S. courts recognized certain social and economic rights that other countries guarantee, including that to a basic level of education.

In my mind, the inequalities highlighted in Waiting for Superman closely mirror those being addressed by N-Map’s current work with New York Lawyers for the Public Interest and Bronx Health Reach in relation to access to healthcare.  Just as public education systems around the U.S. are not living up to the standards America’s children deserve, New York’s health system is failing to properly provide for the citizens of the Bronx and other areas across the state, and has led to a grossly unequal two-track system based on the type of insurance one carries.  Those communities who suffer most as a result of this system are not being targeted because they are made up of minority citizens but rather due to the conflation of many factors – race, family histories, access to jobs, access to healthy food, and more.  And as a result, a disproportionate burden is being shouldered by the members of these communities, communities who share this commonality despite being extremely diverse in other respects.

We expect that  videos produced by N-Map and others will play a key role into getting these kinds of cases squarely before judges in the American court system, either in the courtroom itself, or through showing legislators the human impact of technical procedural rules.  One can imagine a world where a judge makes a decision about standing based on a short video produced by potential plaintiffs, or sees the true impact of discrimination in a whole new light after seeing how victims are affected in their daily lives in the places where they live and work, a la Waiting for Superman.

However, in order for this to happen, the justice system will have to acknowledge the need to change how things have always been done, to employ the full power of new technologies for justice, and to rethink what is “evidence” and how is it best provided.  In the meantime, N-Map will be there, ensuring that justice will be found outside the system where it cannot be granted from within.  As for you, take the time to watch the next social justice documentary that piques your interest.  In fact, do more than watch; truly engage with it, and take the call to action seriously.  Acknowledge that our justice system does not provide justice for all, and find what you can do to contribute to a solution for the incredibly challenging problems our country faces today.

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