by MITCHEL COHEN
I wrote this story ten days ago and it was published in the Queens Free Press, which is edited by Joel Kuszai, a professor at Queens Community College. Since that time, additional information was published by columnist Juan Gonzalez, whose article on Ron McGuire appeared in today’s New York Daily News, and by civil rights attorney Bill Simpich in ReaderSupportedNews (RSN), which added a great deal of background to Ron McGuire’s story as an activist, before he became a lawyer.
As this battle picks up steam to defend the attorney who defended the students in the City University of New York system, the courts as well as the de Blasio administration will be deciding this matter’s fate. I urge you to contact your local press and the Mayor’s office and City Council members in support of Ron McGuire. This case may seem on the surface like it’s only about a lawyer trying to recover funds from the City, but there’s really a lot more that’s at stake. As Juan Gonzalez accurately puts it,
“If lawyers like McGuire can’t receive adequate compensation for defending the rights of low-income students, then no one else will even try.”
City Council member comes to Attorney’s defense.
New York City Council Member Ydanis Rodriguez is one of 154 City University of New York alumni, faculty and community members calling on the federal appeals court in New York City to convene a rare special session of all thirteen judges to reverse a court order that devastated an elderly lawyer who represented Rodriguez and hundreds of other CUNY students.
Ron McGuire, Esq. is a 67-year-old attorney who represented Rodriguez decades ago, when the progressive City Council member from upper Manhattan was a City College student and community organizer. McGuire, who says he represented low income students for free “as a matter of principle,” now is distraught and penniless, due to the unusual actions of a federal judge that some of McGuire’s clients call “vindictive” and “chilling.”
McGuire filed a case nineteen years ago on behalf of students at the College of Staten Island. CUNY fielded a team of over a dozen attorneys at taxpayer expense to fight the case against the students for 19 years. In this David vs. Goliath legal battle, CUNY tapped into unlimited public resources to try to beat back student rights challenges in federal and state courts.
The case, Husain v. Springer. 15-127 (2d Cir.), was decided in the students’ favor. The Second Circuit upheld the right of student journalists to publish editorial opinions on candidates for election on the campus, and ruled that the president of the College of Staten Island violated the First Amendment rights of student journalists, candidates and voters when she canceled a campus election to punish the newspaper for publishing a special endorsement issue on the eve of balloting. One of the most significant rulings of the case was that any student who pays student activity fees can sue college officials who censored or restricted the viewpoints published in a student publication.
The decision set important First Amendment precedents on behalf of student activists and their right to take independent editorial positions in their publications.
But the final decision took many years as the case wound its way through the courts on appeals by the City, which refused to concede that college officials had no right to compel students to “balance” opinions published in a student newspaper. At long last, the Appeals court, in a majority decision, affirmed the lower Court’s ruling. And all that time, McGuire — often working the case alone and exhausting his resources — dedicated his time on behalf of his student clients with no monetary compensation.
The lone dissenting Judge on the Appeal, Judge Dennis Jacobs, claimed it was “a case about nothing”. He red-baited the viewpoints of McGuire’s student clients and compared them to Pol Pot, the Cambodian mass-murderer and war criminal. In his dissent he bragged that he didn’t even read the majority’s 44 page opinion from which he was dissenting — unheard of conduct for a federal judge.
In a Kafkaesque twist, Judge Jacobs is now the presiding judge over the 3 judge panel that slashed McGuire’s award for fees by 95 percent for what McGuire says he expended on the 19 years the case was in the courts. McGuire filed a motion for Jacobs to recuse himself, but thus far Jacobs has refused to do so. Meanwhile, the same panel headed by Judge Jacobs is hearing McGuire’s appeal of the reduction of legal fees and court costs. Breaking with precedent, Jacobs has also denied McGuire’s right to oral argument.
Jacobs is one of the most influential and conservative judges in the 2nd Circuit. He mocked McGuire’s former clients — an eclectic crew of students of various shades of political opinion — who, let us remember, had won their case. Jacobs challenged the right of CUNY students to use the federal courts to uphold their constitutional rights. He compared idealistic students to a convicted war criminal and mass murderer. He ridiculed their commitment to sue for their constitutional rights, reflecting a politically motivated and unjustified disregard for their rights.
Ironically, Judge Jacobs received his bachelors’ degree from CUNY at Queens College in 1964, when tuition was free. He now is using his education to vilify CUNY student activists who are fighting to keep college affordable and denying them access to federal courts to sue to provide current and future students with the same rights and privileges from which he benefited.
Why is this judge allowed to continue his politically-motivated campaign against the rights of mostly minority CUNY students and their attorney?
This is the question a number of lawyers have asked as they’ve come to McGuire’s defense — not just for a beloved old attorney, but for the right of low income Black, Latino and immigrant CUNY students to be treated with respect when they sue in federal court. They’ve filed briefs in support of McGuire, saying that the government is acting to crush dissent by denying payment of fees to attorneys who win a significant federal civil rights lawsuit.
In some cases, civil rights fee awards can amount to several million dollars. Plaintiffs in Husain submitted a claim for $750,000 to compensate McGuire for 3,500 hours of work on the case. But in November, a three judge panel of the federal court of appeals headed by Judge Jacobs affirmed a district court order slashing that award to $38,000 — a devastating blow to the decades of work McGuire put into this case.
Court papers filed by McGuire and 13 other attorneys argue that although a federal court may deny a fee award when a Plaintiff’s victory is insignificant, a 95% reduction of an attorney fee request for work on a significant civil rights lawsuit is unprecedented. The importance of this case to CUNY students and alumni was demonstrated by over 110 current and former CUNY students who are among the 154 “amici curiae” who filed papers supporting McGuire and over 30 supporters, including Councilmember Rodriguez and six attorneys, who sat in Second Circuit courtroom with McGuire to protest the panel’s denial of Plaintiff’s motion for oral argument.
One lawyer who filed an amicus brief on behalf of McGuire pointed out that recent decisions by the U.S. Supreme Court and the Second Circuit Court of Appeals require that attorneys representing clients pro bono in successful civil rights lawsuits be compensated the same amount a paying client would have been charged for their services. No lawyer would ever undertake pro bono work for student activists or journalists if this slashing of court fee awards is allowed to stand (despite what the law says), thus removing one of the only advocacy options student activists and journalists have, at CUNY or anywhere.
A separate brief supporting the convening of a special 13-judge panel to reverse the court’s original fee decision was also filed January 3rd on behalf of the Student Press Law Center headquartered in Washington D.C. SPLC is the only national organization exclusively dedicated to advocating and advising student journalists. The Husain plaintiffs’ petition for a full panel hearing was filed on December 30, 2015.
McGuire is widely acknowledged in the civil rights community as the leading legal expert on college student rights and the law of the student press in New York City. Roger Wareham, one of thirteen attorneys representing the movants, said:
“Mr. McGuire is without doubt the most experienced and successful civil rights attorney in New York City representing college students and student journalists with First Amendment claims. He has particular expertise representing students at CUNY colleges that contributes to his many successful outcomes for his clients.”
McGuire, 67, who dedicated his career to representing CUNY students and others pro bono for 25 years, faced serious health issues in recent years, and looked forward to the anticipated fee award to wind down his practice to concentrate on his health and to provide funds for his retirement. Instead, because of Judge Jacobs’ decision, he says he is facing poverty and ruin.
Where does the Judge’s animus towards McGuire come from? Perhaps in McGuire’s “bad attitude” towards offialdom, and his successes over the years in representing hundreds of CUNY students when they faced expulsion, suspension or criminal charges for participating in demonstrations.
McGuire’s career as a student rights lawyer began in April 1991 when he volunteered to advise students at City College who declared a strike to protest a proposed tuition increase and budget cuts. The strike spread and McGuire wound up leading a team of lawyers representing 200 CUNY students in disciplinary hearings and criminal proceedings. As a result of his legal efforts, none of the students represented by McGuire were suspended or expelled, and all the criminal charges against them were dismissed.
McGuire successfully argued at student disciplinary hearings that by doing civil disobedience his clients were desperately trying to keep the public colleges open while it was the state legislators and governor who were threatening to close the schools permanently by budget cuts and tuition increases.
McGuire’s work in the 1991 student disciplinary hearings and his successful use of the defense of justification to defend protesters in criminal cases were adapted by the faculty at CUNY Law School and were used at the time as core material for the legal skills course required for first year students.
By 1991, Ron McGuire was no stranger to student protests or the often byzantine maze that constitutes CUNY disciplinary hearings. In 1969 he was expelled from City College for his participation in a strike led by Black and Puerto Rican students that resulted in the racial integration of CUNY through Open Admissions and the requirement that every college establish departments or programs in ethnic studies. That familiarity with CUNY’s mechanisms stood him well in his defense of other students. When asked why he left securities litigation to dedicate his career to representing CUNY students McGuire said that his predominantly Black, Dominican and Puerto Rican clients in 1991 “reflect the future we fought for in 1969.”
When he returned to CUNY in 1991, McGuire condemned the conditions confronting CUNY students as a “civil rights catastrophe” and “educational genocide” that was ignored by the established civil rights law firms and legal defense funds. For 25 years McGuire, a sole practitioner, dedicated his practice to representing CUNY students pro bono in civil rights cases that corporate civil rights law firms wouldn’t take and in hundreds of disciplinary and criminal proceedings arising from student protests.
Council member Rodriguez, former chair of the Council’s Committee on Higher Education, was an immigrant student activist facing expulsion when Mr. McGuire represented him in 1991. Rodriguez described the impact of McGuire’s victories on transforming the civil rights landscape for CUNY students:
“What many students, including myself, accepted as simply the natural state of affairs, Ron McGuire condemned as a civil rights catastrophe. Administrators would ban speakers, suspend students without the due process required by the CUNY bylaws and routinely close meetings to students where decisions were made about policy and funding. As a result of Mr. McGuire’s work the speaker bans are a thing of the past and CUNY is now governed by the state’s Open Meetings Law and Freedom of Information Laws that were denied in the past, and CUNY governance bodies and their committees no longer vote by secret ballot.”
After 25 years, Council member Rodriguez is one of over 100 current and former CUNY students seeking justice for their former attorney.
But … the case now goes back to the same Judge who wrote the lone dissenting opinion on Husain in the Appeals Court’s decision. This is the same Judge who trivialized McGuire and the plaintiffs, refused to recuse himself, and who ruled to slash McGuire’s award by 95 percent. Jacobs’ 2007 dissent gives a rare candid view into the prejudices of some judges, which usually go unseen and unspoken.
“Judge Jacobs is trying to slam the door to the federal courthouse to CUNY students,” one attorney has stated. (The attorney asked that we not use his name, because he argues cases before Jacobs’ court.) McGuire clearly wants to open it wide, and keep it open. That means exposing the racist and class prejudices that so often work against CUNY students in the courts. … and in everyday life.