Litigation and Legal Aid

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When it comes to the tools nonprofits can use to effect social change, the law can be both incredibly useful and frustratingly challenging. In the 1960s and 1970s, American courts handed down dozens of rulings that revolutionized the way America approached civil rights, gender equality, poverty, disability and other issues. Using legal challenges to advance larger goals is a practice known as impact litigation, and it has been a major force behind numerous social advancements, from desegregation to marriage equality. Another way the law is used to advance social justice and equity is through legal aid — providing free or low-cost legal services to people who could not otherwise afford decent counsel. Together, these strategies can help make America’s legal system work for everyone.

That said, both of these strategies require considerable savvy and fortitude. In the decades that followed U.S. courts’ spate of progressive rulings, the same courts have rolled back many of those important victories, from racial justice to reproductive rights. Litigation remains an important strategy for nonprofits working on a wide range of issues, but given the makeup of the courts today, it’s not an easy road. Legal aid, meanwhile, could potentially help countless Americans each year, but is woefully underfunded. This brief offers an overview of important considerations and best practices for donors interested in funding litigation and legal aid. 

Why Donors Fund Litigation and Legal Aid

The legal system is a pillar of society, so it can’t be excluded from efforts to create a better society. Ideally, courts examine the law and apply it fairly to all, regardless of social status or influence. These are some of the reasons donors give to support strategic litigation and legal aid. 

  • Litigation can accelerate social progress. Litigation can lead to bigger changes faster than legislation or policy, especially in times of extreme gridlock among lawmakers. For example, the Supreme Court legalized gay marriage nationwide at a time when legislation with the same impact was unpassable. Bringing legal challenges can also be an effective way to highlight unconscionable policies or unfair laws that aren’t getting enough public attention. In that regard, even if a case fails, it can still galvanize further action by raising awareness and motivating further efforts by social movements or lawmakers. 

  • Legal aid helps ordinary people fight injustice. Every day, countless Americans are illegally exploited or abused through unlawful evictions, discriminatory employment practices, racial profiling, police brutality and more. Yet far too many people are unable to seek justice or accountability because they cannot afford competent legal counsel. For the courts to live up to their ideals of equal justice under the law, everyone needs access to good legal representation.

  • Legal strategies can complement other strategies. Strategic litigation is an important tool to create change, but of course, it’s not the only tool. Many funders support litigation or legal aid as a part of a multifaceted philanthropic portfolio. A donor can give to groups working for social change through legal strategies while also supporting grassroots movements, donating to direct services organizations and more. 

Key Considerations

For donors thinking about giving for litigation and legal aid, and how such funding fits into their larger philanthropic strategy, here are some issues to consider:

  • Litigation takes time. Impact litigation is not typically a short-term strategy, but rather unfolds over the long term. Nonprofits and movements need to be able to make long-term plans and to move quickly when the right client or case arises. Funders of litigation accept that it may be a long time before they see the impact of their contributions. That said, in some cases — during elections or crisis situations, for instance — urgent litigation efforts can prove crucial. 

  • There’s no guarantee, but there is great potential. Funding impact litigation is not an area of philanthropy where a donor’s impact is guaranteed. Litigation is complex, takes time, and may or may not achieve the desired result. At the same time, there is potential for major and widespread impact when this strategy succeeds. It’s also important to know that even if a particular case is lost, the litigation work still may have moved the needle and contributed to the long process of change. 

  • The courts can facilitate social change, but litigation alone isn’t enough. Many of the most iconic legal cases in American history enacted a degree of social change that might otherwise have taken years or even decades longer. But actually implementing that change doesn’t happen automatically. Brown v. Board of Education, for instance, established a legal principle that activists and policymakers then had to work to make a reality. Donors should understand litigation as one of many available tools, one that is most effective when paired with complementary strategies like organizing, advocacy and research.

  • Litigation has lost a certain amount of power in recent decades. Whereas impact litigation’s heyday revolved around liberal Supreme Court justices issuing sweeping rulings to establish broad constitutional rights and protections, today’s courts are far more conservative in both senses of the word: When the rulings are sweeping and impactful, they usually favor the wealthy, powerful and those in the right wing movement; recent liberal rulings, on the other hand, have been extremely narrow and unambitious in order to withstand scrutiny by a right-leaning Supreme Court. Most nonprofit litigators focused on federal issues are currently playing defense against an emboldened right-wing legal movement. This is still vital work, but the chances of advancing meaningful change through the law are slimmer today than has been the case at other times. 

  • Litigation may not be the best strategy right now, but donors could help change that. The short-term future of litigation as a strategy for change is bleak, but there are promising developments on the horizon. The Supreme Court will likely retain a conservative majority for another decade, but the Biden administration has confirmed many new federal judges, including record numbers of women, people of color, and former public defenders and public-interest lawyers. Furthermore, a new crop of progressive groups focused on the courts and the legal profession are coming to maturity, pushing for better judicial nominees, court reforms, and more investment in public-interest legal services. Donors interested in addressing the sort of work that flows downstream to litigation can see our brief on the courts and judiciary.

  • Think beyond federal courts. There are sometimes opportunities to make a difference through litigation at the state and local levels, where gridlock can be less of an issue. Take, for example, reproductive rights: In the midst of the Supreme Court’s Dobbs decision, a number of state supreme courts have ruled that abortion bans violate their state constitutions. 

  • Legal aid clearly needs more funding; it’s not as clear with litigation. Legal work has traditionally been a strategy that philanthropists, especially big foundations, are most willing to invest in. This is in part because during the civil rights movement, for instance, groups like the NAACP Legal Defense Fund were fighting for liberal ideals through what was seen as a nonpartisan, apolitical strategy. However, as this strategy has become less effective at enacting broad change, many of the groups that once devoted nearly all of their time and resources to litigation have expanded into other realms, including policy advocacy, grassroots organizing, and even electoral politics in some cases. Legal aid, on the other hand, is definitely in need of more funding. Jobs for attorneys who want to do public interest work are either highly competitive, don’t pay a livable wage, or both. Funders could help change that and increase access to legal representation for everyone. 

Taking Action 

There are many ways to support litigation and legal aid efforts. Here, we offer a few best practices and possibilities. 

  • Give multiyear, general operating support. General operating support is unrestricted funding that a nonprofit can spend as it sees fit on any of its expenses. When you find an organization you want to support, giving them unrestricted general operating support means they have the flexibility to use the funds as they are needed at any given time. Making a multiyear commitment means the nonprofit can count on your support for years to come. All organizations benefit from knowing as much about their financial future as possible, as this allows them to plan for the long term. Litigators will especially benefit from unrestricted, multiyear funding, as opportunities for new cases and challenges are often unpredictable, requiring both long-term planning and high levels of flexibility.

  • Look for local legal aid groups. Legal aid is often a local project. And while legal aid nonprofits in nearly everywhere likely need more funding, federal public defenders offices or other nationally focused pro bono practices in major cities tend to pay better, take on interesting or exciting cases, and carry a certain level of prestige. By contrast, their local and state counterparts, especially those in rural or poor areas, are often understaffed, underfunded and overwhelmed. Donors can give to organizations in their own backyards, or find local legal aid groups via directories online. National issue organizations often keep databases for legal aid resources, like Immigration Advocates Network and National Center for Transgender Equality, as do state legal aid groups or bar associations. 

  • Give to nonprofits you already know and trust — or those that work in coalition with them. If you are already giving to a nonprofit that works on an issue you care about, inquire whether litigation is part of the work they do. If it’s not, they may work in coalition with other nonprofits that engage in strategic litigation that complements their efforts.   

  • Look for established organizations with smaller affiliates. For donors who want to fund litigation, it can be helpful to look into the established litigation organizations working on the issue where you want to make a difference. Some of these groups have state or local offices where funding could make an especially big impact. The ACLU, for instance, operates quasi-independent offices in every state, plus Washington, D.C., and Puerto Rico.

  • Don’t go it alone. If you don’t already have relationships with nonprofits whose work you trust and admire, it can be hard to figure out where to give. Luckily, there are intermediary organizations that do that for you. Pooled/collaborative funds exist for nearly every issue area you can think of. They are staffed by experts who have built relationships with nonprofits and have created strategic giving plans to move donations where they are most needed and can be most effective. 

  • Grow your knowledge. Donors can learn more by following IP’s coverage of litigation as a philanthropic strategy, as well as perusing IP’s briefs on giving for the specific issues where you hope to make an impact.

Have suggestions for improving this brief? Please email us at editor@insidephilanthropy.com.