New Clinic Helps Pass Legislation — With Bipartisan Support
These days, changing law with bipartisan support is rare. But the new State and Local Government Policy Clinic at the University of Virginia School of Law, which provides Virginia’s lawmakers and governmental executives legal and policy research support for their initiatives, is doing just that.
In its inaugural year, the clinic helped all of its state lawmaker clients — Republicans and Democrats — see their bills through to approval, including two pieces of legislation whose prospects for passage were anything but a given. In both cases, law students were helpful in bringing opposing stakeholders together in cooperation.
Professor Andrew Block, the clinic’s director, said working with legislators of both political parties is a critical aspect of the clinic.
“Being part of a state school, it’s important for us to look beyond party affiliation and be a service to everyone,” said Block, a former director of the Virginia Department of Juvenile Justice who currently serves as vice chair for the Commission to Examine Racial Inequity in Virginia Law.
Students in the clinic researched and wrote initial drafts of legislation, produced talking points and other communication materials, met with stakeholders and, in many cases, testified in support of the bills, making them essential to the outcomes.
“For some of their clients, students were in text groups with the legislators during the legislative committee hearings, sharing information and advice in real-time as questions came up,” Block said.
That was the case for students Juliet Buesing Clark ’21 and Tim Shriver ’22, who worked on Republican Del. Carrie Coyner’s HB 2027.
The bill aimed to solve an educational problem for the state’s children in grades 3-8. As a former Chesterfield County School Board member, Coyner recognized the angst that one “high stakes” year-end testing period in reading and mathematics caused students, as well as their teachers and parents. Because the Standards of Learning exams happen so late, they’re not useful as a developmental tool, either, she said.
The delegate vowed to students, “We’re going to give you smaller little bites of assessment throughout the year, and we’re really going to see where you are.”
But the legislative problem she faced was how to get the measure passed. Many of her fellow lawmakers sympathized, but since federal funding hinges on determining whether students reached overall proficiency during the school year, Coyner needed a bill that would comport with federal requirements.
At the recommendation of a legislative colleague, she sought the clinic’s assistance.
For Shriver and Clark, the work was full of meetings, urgent deadlines and on-the-fly changes. They researched how states such as Georgia, North Carolina and New Hampshire handled similar problems, often speaking directly with officials, to figure out what worked in achieving through-year testing.
The students built a proposal that considered such factors as the number of tests and teacher requirements, which not everyone agreed upon.
“There were a lot of moments where we needed to make a change to keep a group on board,” Shriver said.
Before law school, Clark taught in Boston for five years as high school English teacher, and Shriver helped launch a public schools mentoring program in New York and San Francisco.
Coyner, a lawyer who earned her undergraduate degree from UVA, said she was impressed that both of her assigned students had relevant backgrounds that allowed them to keep pace, persuade stakeholders and produce a detailed, effective bill.
“They were amazing,” she said. “They met with all the advocacy groups. They attended all of my committee meetings and testified in all of my committees. I really utilized them as experts because they had done it all. I could not have kept up given how short the session is without that team. They helped me craft a path forward.”
That path involved some creativity on the part of students. It seemed that Virginia either needed a year-end test to assess grade-level comprehension or it needed to apply for a waiver from that system. But the latter would come with no guarantee that the federal government would sign off on new measures to test throughout the year. So, essentially, the law students split the difference. The new legislation now mandates through-year testing and a final overall assessment, in alignment with Standards of Learning, until the waiver process can be completed.
“We didn’t have to wait for that chicken or egg,” the delegate said. “We could go ahead and keep moving, and if we wanted to apply for a waiver, we could modify our testing even more later.”
An op-ed that Clark and Shriver worked on with Coyner helped get other legislators on board shortly before the General Assembly returned to session. Still, there were other last-minute concerns.
“The night before subcommittee, the Department of Education finally got back to us on their impressions of the bill and how they would want it changed,” Clark said. “We were working like crazy trying to adjust the language in a four-hour time span.”
The fact that the pandemic put so many students behind likely provided representatives a strong reason to support the bill, which will help identify learning losses right away in the fall, she and Shriver said.
The new testing will be phased in with only two tests in the next school year — one at the beginning and one at the end. Full implementation, including giving students tests that are above and below their grade level, will occur in the 2022-23 school year.
A Transformative Bill for Criminal Defense
Another clinic success story that could have turned out differently involved the efforts of students Kyle McGoey ’21 and Lukus Freeman ’21, who worked on Sen. Jennifer McClellan’s SB 1315. The bill transforms how Virginia law treats mentally impaired criminal defendants. McClellan, a Democrat, is a 1997 alumna of the Law School.
Prior to passage of the bill, defendants with either mental illness or intellectual or developmental disabilities were precluded from introducing evidence of their condition to show they lacked the mental state necessary to be found guilty of the charged crime. The bill now allows for the introduction of such evidence, bringing Virginia in line with other states.
In addition, the bill requires consideration of a defendant’s intellectual or developmental disability at bail and sentencing decisions, and requires new training for lawyers on the representation of people with these conditions.
The legislation was part of a larger criminal justice reform package McClellan and fellow Democrats were able to move forward.
After completing their research, Freeman and McGoey worked through the policy options with the senator and wrote a bill. But a problem arose. The companion bill that passed out of the House only allowed people with intellectual and developmental disabilities, not mental illness, to introduce evidence of their condition. The House and Senate needed to be on the same page.
One sticking point was how to define mental illness, because the definition to receive mental health services is a lot broader than a court would allow as a defense, McClellan said.
Another was how to protect the public from someone who is found not guilty and let go, who may later decline mental health services and pose a threat.
“We kept trying to get [lawmakers] to understand that’s not likely to happen, because most people who have done something dangerous, there’s something else you can charge them with that doesn’t involve intent,” McClellan said. And, those who are sick and demonstrating signs “should be getting services in the community before they get arrested.”
Complementing the clinic’s efforts, Professor Richard Bonnie ’69, an expert on the intersection between mental health and criminal law in Virginia, was among those integral in making the case for the addition.
“It took a lot of discussion to get mental illness included,” Freeman said. “Not only did we have to appease people, but we had to get the best version of the bill passed.”
McGoey added, “I came to UVA to learn how government works and to get exposure to the levers of government in motion. I actually really liked the horse trading.”
In the past, only defendants with deep financial resources were able to make a case, through expert assessment during pretrial plea bargaining, that a mental illness connection warranted a downward sentence. The bill “was a major change, because the only real-time chance for a court to consider mental illness was at sentencing, unless you were pleading guilty by reason of insanity, which is really difficult and hardly anyone ever does,” McClellan said.
She emphasized that the legislation wouldn’t have gotten written without the students. After their previous session, the General Assembly went into “COVID crisis mode.”
“We were in a special session dealing with a constituent crisis. The students did the work my office would normally do.”
In a separate legislative win, Freeman helped Del. Patrick A. Hope, a Democrat, pass HB 2165. The bill provides greater protections from tax sales — the forfeiture and sale of property due to unpaid taxes. The problem mainly affects people who might not be aware of their inheritance, an issue that has historically affected Black residents disproportionately, resulting in significant losses of farmland and other property.
In other legislative victories:
- Eli Jones ’21 and Stephanie Metherall ’21 helped Del. Charniele Herring (D) pass HJ 555, a proposed amendment to the Virginia Constitution to automatically reinstate the voting rights of people with felony convictions who have completed their sentences.
- Chance McCraw ’21 and Ritchie Vaughan ’22 worked with Del. Keith Hodges (R) on HB 2188, a bill to begin to address the negative impact of flooding due to rising sea levels on residential septic systems. The bill was ultimately included in the General Assembly’s final budget.
- Catherine Ward ’22 and Chris Yarrell ’22 assisted Del. Sally Hudson (D) with passing HB 2040, a bill to provide greater protections for people receiving unemployment insurance benefits.
Gov. Ralph Northam has until the end of the month to sign or recommend changes to all of the legislation that passed.
Coyner said she’ll miss the camaraderie of texting with the students about legislation in real time. Both she and McClellan indicated they’ll work with clinic students again.
Reflecting on the clinic’s first legislative session, Block said, “I am obviously really happy that we had so much success, and provided real support for our clients, but I am especially proud of how hard all of the students worked, often in very compressed time periods, to get the job done.”
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