Pro Bono Innovators 2022 Honoree Debevoise & Plimpton

Your firm’s work included the Tanzin v. Tanvir case involving Muslim Americans placed on the No-Fly List, representing University of Florida professors in free speech challenges, and obtaining fair discharge services for New York prisoners who received mental health treatment. How did your firm strategize on how to approach these matters?

We take on impact litigation where we hope to secure positive outcomes for our clients and move the law forward. These matters were taken on decades apart. We brought Brad H. in 1999 over discharge support provided to New York prisoners who sought mental health care, Tanvir in 2013, and the University of Florida case in 2021. In each instance, we developed new legal arguments, told the stories of people who had been harmed by government action (at the city, federal, and state level respectively) and tackled those issues in innovative ways.

When we take on a pro bono matter, we commit to it for the long-term. In Brad H., we are still monitoring the settlement agreement to ensure that New York City provides adequate mental health support to released prisoners.

In Tanvir, our clients were taken off the No-Fly List, but we took the case to SCOTUS and are continuing to litigate it because we believe they are entitled to monetary relief and having that available is a check on government misconduct. In the [University of Florida] case, we want to ensure the professors’ First Amendment rights and change the university’s policy.

What were the most innovative aspects of these matters in your view? And who took the lead on driving innovation with the work?

In Tanvir, we are working with experienced co-counsel—the CUNY CLEAR Project and the Center for Constitutional Rights—and we combined their knowledge about the abuse of the watchlist system with our civil litigation and strategic expertise. In addition to injunctive relief, we thought that the Religious Freedom Restoration Act entitled our clients to monetary damage for the harm they incurred by being improperly placed on the No-Fly List.

In a matter of first impression, the Supreme Court unanimously agreed, and held that RFRA unambiguously allows suits for monetary damages against individual government officials acting in their official capacity—thereby creating an important tool to hold government officials accountable for suppressing the freedom of religion. Debevoise continues to represent the plaintiffs in district court.

College campuses have become the battleground for free speech, and Florida is ground zero in that war. Politicians there have pushed the envelope on how far they can go in using the power of the state government to control and restrict speech at the state universities. Our case challenged one early manifestation of that effort: a prohibition on professors speaking against (but not for) the state as expert witnesses in court cases challenging government policies. What we did provides a blueprint for how to stop this strain of authoritarianism in its tracks. Our innovative strategy—exposing the violations to the public, amplifying voices to call it out, and then winning resoundingly in court—will prove critical as Florida continues to intrude on academic freedom and other state governments copy its tactics.

Brad H. was a landmark settlement in establishing the rights of incarcerated individuals, which required New York City to provide comprehensive discharge plans when individuals receiving mental health treatment are released from jail. More than 20 years later, we continue to represent the class to ensure that New York City fulfills its obligations in the settlement agreement. In addition, the Brad H. settlement has been a model for recommendations for improvements in other correctional systems.

Tell us more about the impact of the matters on the local, national, and/or global level.

In Tanvir, the SCOTUS decision gives victims of religious discrimination another tool to challenge misconduct. If the officials are potentially personally liable for monetary damages, that’s an incentive to not engage in questionable conduct. Avoiding religious discrimination is better than fighting after the fact. The decision also reinforces the sanctity of religious spaces.

If not stopped in its tracks, the University of Florida’s First Amendment violation could have served as a national playbook for other state governments who wished to use their public universities for political purposes. Our case sets a critical precedent: a university can never stop its faculty from speaking or testifying as a witness just because politicians disagree with what the professors would say. As the Chronicle of Higher Education noted, this was an academic-freedom crisis for the ages.

The state of correctional health services and discharge planning for mentally ill inmates in the city’s custody has improved significantly since 1999 when the litigation began. Incarcerated individuals are no longer released in the middle of the night with nothing more than subway fare. Class members are required to be evaluated and treated by qualified health-care professionals, and under the terms of the settlement, must leave custody with medication, appointments, transportation, and connections to housing and public benefits.

Why do you think your team ultimately achieved successful results?

A lot of the credit goes to our clients in Tanvir. When they were taken off the No-Fly List, they could have stopped litigating, but they wanted officials to be held accountable and to protect others from the same dangers. The SCOTUS issued a unanimous decision, which doesn’t happen often, but demonstrated that the right outcome was clear.

In the University of Florida case, we succeeded because of two factors. First, our clients were absolutely steadfast in asserting their rights, and second, our team distilled the history into a compelling story that displayed in all its troubling details the history of the university’s constitutional violations. The judge immediately understood the stakes and the issues, and his decision was an eloquent and resounding vindication of our client’s position.

In Brad H., we collaborated with our co-counsel Urban Justice Center and New York Lawyers for the Public Interest to develop creative and compelling arguments on a novel question of law regarding whether city correctional facilities are covered by the state’s discharge planning law. We also worked closely with community organizations to ensure the settlement reflected the realities of the correctional system, and since then, we have devoted thousands of hours to overseeing enforcement of the settlement and ensuring the city meets its obligations.

Take us back to the time the matters were resolved. What did you do to celebrate?

Covid thwarted all our plans! The oral argument for Tanvir was rescheduled and changed to telephonic rather than in-person. We listened to our co-counsel Ramzi Kassem—who was fantastic—from our own homes in October 2020. When the decision was issued that December, we celebrated via email. We look forward to having a real celebration in-person soon.

We were hopeful about the result for the University of Florida case, but did not expect the kind of decision we got, which took apart every argument the university offered and compared their conduct to the leaders of Hong Kong University in communist China. It was a real thrill, and incredibly gratifying, to be able to tell these clients that they had been right all along and that the university’s bullying tactics were not only wrong but unconstitutional.

Responses provided by Debevoise litigation partners Chris Tahbaz and David O’Neil, and Kristin Kiehn and Jen Cowan, litigation counsel.

—With assistance from Kibkabe Araya.