Litigating a Path to Progress: Nonprofit Advocacy through the Courts

Three pieces of advice for nonprofits looking at litigation as advocacy.

It is trite to start a discussion of advocating for change by mentioning the dysfunction in the US political systems, but here we are. As federal and state legislative bodies have stalled from political polarization, many nonprofits find that traditional advocacy pathways are no longer viable to create systemic change for their clients and communities. In response, many nonprofits are now moving toward using litigation as a normative standard in advocacy campaigns.

Establishing Historical Precedent

This type of so-called impact litigation is obviously not new. Using courts to force societal change has produced some of the most enduring rights in America: the right to use birth control, the right to marry whom you would like, and the right to an attorney in a criminal trial to name a few.¹ Another great example is the Flores litigation, which guarantees basic levels of treatment for children held by federal immigration authorities. Surely, though, this type of large-scale litigation is out of reach for most nonprofit organizations. 

Maybe not—if you are thoughtful in your approach. So when does it make sense to look at lawsuits in the hope of creating systemic changes?

The Case of the Immigration Impact Lab

This was the question our organization, CAIR (Capital Area Immigrants’ Rights) Coalition,² faced in 2015. At that time, our programs focused on providing legal representation to adult and youth immigrants facing deportation. This meant that within the vast immigration legal services community, we specialized in helping clients currently in detention. We met our clients in governmental detention facilities and stayed with them, fighting by their side, through the immigration courts.

Perhaps unsurprisingly, our clients’ journeys meandered through the many unjust and broken parts of the immigration system. It was clear that Congress was not going to take up real efforts to reform broken immigration laws. While we knew we couldn’t fix the entire system, we believed we could use the courts to create better laws under which we brought our clients’ cases. We didn’t need to fix everything, but we did want to make things just a bit better for our clients.

This led CAIR Coalition to launch the Immigration Impact Lab.³ The Lab is our appeals and federal court litigation program, which focuses on bringing about systemic changes to immigration laws. We work towards systemic change by bringing lawsuits in federal district courts and by appealing deportation defense cases in appellate courts.

Even within these two distinctions, there are many differences. Some of these cases originate with us, and some start with other lawyers who want us to work with them given our expertise. Some we litigate ourselves, and some we co-counsel with other nonprofits and law firms. We also spend a fair amount of time providing guidance and advice on cases for which we are not counsel but which have the potential for great impact.

How It Started vs. How It’s Going

When we launched the Lab, we started small. We focused on bringing local appeals in the Fourth Circuit Court of Appeals (the federal court covering Maryland, Virginia, the Carolinas, and West Virginia) and in local federal courts. At that time, the Lab was comprised of two staff members and was underfunded, under-resourced, and scrappy beyond its years.

Today the Lab has grown beyond what we ever envisioned. It works across multiple Circuit Courts, with cases coming from up and down the East Coast and across the South.

Since launching the Lab, we have seen incredible victories (along with some heartbreaking losses). Just to name a few, we:

• We launched a new project which seeks to build a sustainable system—the first of its kind in the country—for holistically challenging individuals’ prolonged and unlawful immigration detention through both litigation and public advocacy.
• We developed relationships with nonprofits and private attorneys across many states. This collaboration created a pipeline for case referrals and have the potential to create impactful change.
• We fought many appellate cases seeking to provide better law for asylum seekers, including those with severe mental health challenges and those fleeing gang violence.
• We took part in several litigations that forced the Trump administration to abandon plans to curtail asylum protections. Some of these included our work in CAIR Coalition v. Trump, in which we and several partner groups pushed back against the inhumane asylum ban.
• We pushed for medical protections for adults in detention during the Covid-19 pandemic.

Starting and growing the Lab has been arduous. This ongoing project would not have been successful if not for a thoughtful plan and a lot of initial soul-searching about where we should put our time and effort.

The resources (time, energy, staff, and funding) needed to consider litigation as advocacy are often scarce—and that’s okay! Advocacy is not a one-size-fits-all strategy.⁴ However, if you do decide to pursue litigation, there are a few things to keep in mind.

Three Pieces of Advice for Nonprofits Looking at Litigation as Advocacy

1. Do not reinvent the wheel. Instead, help others keep their wheels spinning.

For most nonprofits, starting a litigation program is going to be an insurmountable hurdle. This is especially true of both smaller groups and those that do not provide legal services.

Starting a new litigation shop requires large upfront costs, poses logistical challenges, and creates ethical pitfalls. For example, are you actually able to provide competent, diligent litigation services? After all, providing half-baked legal services to disenfranchised communities might turn out to be more of a dis-service: you could very easily exacerbate the problem.

So if you are a smaller organization or one that does not have existing legal services, how can you deploy litigation to effect change? The answer is so straightforward we often forget it: teamwork (makes the dream work). You should team up with a nonprofit that is already handling this type of litigation.

For all of the substantive areas that I can think of, there is already a group taking on impact litigation—whether you are working with immigrant clients, the unhoused, students, children in the foster care system, or any number of marginalized groups. Reach out to your networks and community members to find the partner group.

This may seem like a daunting task or like you are imposing on the strained resources of others; however, the fact is that most litigation groups are constantly looking for good cases to bring to the courts. And even if they say no or that they don’t have the time right now, you’ll have additional organizations and services that you can connect clients to. Together, we are stronger.

Okay, this all sounds great, but how do you find the right group?

Again, often the best advice is simple: start with who you know. Reach out to your peer nonprofits to see who they recommend you speak to about litigation.

You can also look for specific lawyers. In every state, there are legal aid groups that focus on providing free or low-cost legal services to underserved communities. They will know who focuses on impact litigation in your area; after all, the nonprofit legal community is small and collaborative (sometimes because we have no choice). I have yet to meet a legal aid group that was not ready to provide referrals or advice, but you can also check out the Legal Service Corporation’s list of grantees. The ABA also maintains a great list of legal aid groups.

2. Pick your own strawberries.

This advice requires a bit more background. As a child, I attended a school trip where my elementary school class was bussed to a farm and we spent the day picking strawberries. During a particularly feisty moment, I became very focused on the squishiness of the strawberries in my friend’s bucket—I kept trying to tell him that he was doing it all wrong. My teacher knelt next to me and said, “You know what you want, and he knows what he wants. Just focus on your own bucket.” Whenever I find myself trying to mess around in other people’s buckets, I remind myself to focus on my own strawberries.

Especially for those of us who work in nonprofits, we can often feel overburdened by all of the terrible systemic issues that are going on. We want everything to change all at once for the better, and this means that it can sometimes feel easier to look at—and critique—what other people are doing.

But you have to remind yourself to stick to your own bucket because you know it best. Not every lawsuit needs to change the world or have the broadest impact. Sometimes, it is enough to help nudge the system your community lives in a few steps forward—or even just prevent from sliding back.

As you consider developing a litigation-advocacy strategy, think about where your expertise lies and how you can build on it to create change. That is, it makes little sense to develop a litigation strategy if doing so will pull you away from your core mission and clients.

To keep your litigation strategy community-focused, ask yourself:

• What do we see as a need for our clients, our mission, or our space that others do not?
• What unique perspective do we bring to the litigation space?
• If we go forward with litigation, will our core programs become more effective, just, accessible, and equitable?

If you cannot positively answer these questions, you might rethink your strategy around litigation. Rethinking your strategy can mean a variety of different things, from abandoning litigation to pivoting to a more focused strategy. Again, it depends on what your nonprofit looks like and what you have the capacity for.

3. Don’t be discouraged!

Let me be clear: the impact litigation world is not for those who want quick and clean results. Cases can take a very long time and be a slog throughout.

To give you a real-life example: a law firm⁵ brought a lawsuit against the Virginia Department of Corrections in 2012, alleging that women in the Virginia prison system were being denied appropriate medical care. This case took years; in 2021, the firm was still pushing for the change ordered by the court after their win.

I don’t say this to scare you away but to set expectations. Yes, some cases can be completed quickly. But as those of us in the nonprofit community know, change comes slowly, and legal change is certainly no exception.

This issue is compounded by the changing dynamics of the courts, especially federal courts. In recent years, many courts have become more conservative and less friendly to class actions and impact appeals. Of course, this cannot discourage those seeking change through the courts—it just means that we must be steeled to the fight that lies ahead of us.

Diversity Makes Us Stronger

Again, it is important to note that the path of advocacy litigation is not for everyone. After all, systemic issues require systemic solutions, which means there is not one but many paths. The important thing is that you choose the right path for your organization and the community you serve. If litigation is the right path for you, hopefully this article was a good start to brainstorming what comes next.

Footnotes

1. The recent rolling back of rights in the courts, seen most aptly in the Dobbs decision, is outside the scope of this article, but is a worrisome trend that has impact litigators thinking very carefully about their case strategies and whether certain courts are no longer dependable paths for change. See: The Big Chill: Why Nonprofits Should Care About Affirmative Action. ↩︎
2. Like most nonprofits, we think our organization does a lot of pretty cool stuff. Check out Unlocking Potential: Collective Leadership In Nonprofits! ↩︎
3. The Lab was the vision and brainchild of the brilliant Adina Appelbaum, who is currently the Lab’s Director. ↩︎
4. For other ways your organization might consider engaging in advocacy work, check out these two articles: How Nonprofits Can Change Unfair Laws and Join the Movement: Activating Nonprofits for Lasting Change! ↩︎
5. In the interest of transparency, this a firm with whom we work and who does exceptional pro bono litigation for CAIR Coalition. We do not pretend to be unbiased in their account. ↩︎

About the Author

Michael Lukens

Associate Director at CAIR Coalition | More Posts

Michael Lukens is the Associate Director at CAIR Coalition, which he joined in 2014. He is responsible for oversight of the legal and operational programs of the organization, including the Detained Adult Program, the Detained Unaccompanied Children’s Program, the Immigration Impact Lab, the Finance Team, and the Operations Team. Michael assists with development, communications, and board governance as well as sits on the Leadership Team of CAIR Coalition. Michael also serves as a liaison to law firms and the broader nonprofit community as well as directly represents children in removal proceedings. Prior to joining CAIR Coalition, Michael was a senior associate at Paul Hastings, where he focused on environmental matters and served as the Pro Bono Coordinator for the firm’s Washington, D.C. Office. In addition to his commercial portfolio and pro bono responsibilities, Michael worked on many direct representation matters for pro bono clients, including immigration, nonprofit governance, landlord/tenant rights, and contract matters. Michael received his J.D. from Hofstra School of Law and his Masters of Public Management from the University of Maryland.

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  Unlocking Potential: Collective Leadership in Nonprofits