Justice, Access to the Courts, and the Right to Free Counsel for Indigent Parents: The Continuing Scourge of Lassiter V. Department of Social Services of Durham

Abstract

Nearly a century ago, legal services pioneer Reginald Heber Smith observed that "substantive law, however fair and equitable itself, is impotent to provide the necessary safeguards unless the administration of justice, which alone gives effect and force to substantive law, is in the highest sense impartial." The expression of this lofty ideal introduced Smith's sweeping indictment of the manner in which indigents seeking to enforce basic civil rights in the early twentieth century were routinely denied meaningful recourse to the courts: The administration of American justice is not impartial, the rich and the poor do not stand on an equality before the law, the traditional method of providing justice has operated to close the doors of the courts to the poor, and has caused a gross denial of justice in all parts of the country to millions of persons.

Eighty-five years after Smith issued his indictment, gaps in the ability of our civil courts to achieve the ideal of fair and equitable administration of justice are more profound than ever. Plainly, no meaningful discourse on the subject of "justice" can fully ignore important questions about who is entitled to access the courts to vindicate important rights, and how rights of access are distributed among litigants with and without means. Access to justice in the civil arena encompasses a broad spectrum of issues and concerns, though arguably none more compelling than the regulation of relationships between children and their parents¿long recognized as "fundamental" and consequently entitled to the constitutional protections afforded by the Fourteenth Amendment. This essay explores obstacles facing indigent parents confronted with challenges to their relationships with their children, and to urge reconsideration of the 1981 decision of the Supreme Court that underpins the jurisprudence limiting indigents' access to counsel in matters involving fundamental civil rights.

Keywords: indigent parents, class inequality, parental rights, fundamental rights

JEL Classification: I32, J12