UB Law Prof. Dionne Koller Advocates for College Athlete Protections, Income in Senate Committee Testimony

In an appearance hailed by colleagues in the sports law community as courageous and compelling, UB Law Associate Dean Dionne Koller urged Senate lawmakers to allow college athletes to earn income from endorsements, and to stifle NCAA control of athletes.  Watch her testimony and read her written testimony.

Associate Dean Dionne Koller

Associate Dean Dionne Koller testifies before a U.S. Senate committee on July 1, 2020.

Koller’s July 1 testimony before the U.S. Senate Committee on Commerce, Science, and Transportation was part of a hearing titled, “Exploring a Compensation Framework for Intercollegiate Athletes.” Koller, a former athlete and director of UB’s Center for Sport and the Law, advocated strongly for athletes’ rights.

“Congress’s decades-long ‘hands-off’ approach to intercollegiate sports has provided the NCAA an opportunity to build a multi-billion-dollar model for sports that is popular and profitable. It is also a model that is breaking under the weight of the unfairness and injustice it perpetuates,” she told the committee.

She acknowledged that intercollegiate sports has many benefits for players, universities and American culture. “Unfortunately, the NCAA model is one that too often works for everyone in the intercollegiate athletics enterprise except the athletes whose labor makes it possible. The excesses and abuses are documented and well known,” she added. These include huge salaries and perks for coaches and administrators, mandatory student fees to support bloated athletic programs — assessed even to non-athletes — and yet few protections for the athletes without whom the programs could not exist.

The National College Athletics Association has done little to protect athletes from the kinds of sexual abuse perpetrated by Dr. Larry Nasser at Michigan State University, or the types of harm that occur due to excessive training, insufficient rest following injury, and concussions, Koller testified. College athletes have “no meaningful administrative or legal recourse if their athletics experience is physically and emotionally harmful,” she said. And they share in none of the revenue their performance generates.

She then addressed the social justice part of the equation. Most college basketball players are Black, and most coaches and staff are white. There is a “troubling disparity” between graduation rates for Black and white student athletes, she said. “These Black athletes frequently come from socioeconomically disadvantaged backgrounds, so that the reality of their athletics experience is that they earn millions for white coaches and administrators while the athletes’ own families often cannot afford to travel to watch them play.”

Koller dismantled, piece by piece, the NCAA’s argument for continued self-governance. She called upon Congress to allow college athletes to market their name, image and likeness, and to implement safety standards that ensure quality health care for student athletes and protect them from, for example, being forced to play sports during the current COVID-19 pandemic. Watch the entire committee hearing.

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UB Law in Focus Discussion Series Adds Structural Racism Theme to its Webinar Schedule

The UB Law in Focus Discussion Series was created to engage the UB Law community and the community at large in thoughtful examination of current events through a legal lens. We are pleased to announce a new series-within-a-series, UB Law in Focus: Examining Structural Racism. You can sign up to receive news about upcoming webinars in the series at this link.

In this themed series, we will present monthly webinars that explore how structural racism is deeply embedded in American institutions and practices. We recognize that especially now, there is an appetite for learning about America’s troubled history when it comes to race, and an eagerness to forge paths to reconciliation and reform.

Prof. Audrey McFarlane

Prof. Audrey McFarlane

On July 14, we will present the topic, Redlining Today: How and Why Race Matters for Access to Wealth in Baltimore. When the federal government created color-coded maps in the 1930s, it defined areas desirable for investment using race and racial segregation as a criterion. Today, race is no longer a criterion, but the patterns of racially segregated investment and disinvestment set back then continue today.

How do these patterns continue to racialize access to wealth and well-being in Baltimore? How can these patterns be broken, and does government have an obligation to take the lead? Is there a way to do so without gentrification and displacement? UB Law’s Prof. Cassandra Jones HavardProf. Audrey G. McFarlane, and Prof. Jaime F. Lee will address these issues. Register for the webinar here.

There is a suggested reading list from McFarlane to learn more on this topic:

In August, we will look at how racism at our borders and within the country hinder immigrants’ ability to access justice and human rights. That panel will feature UB Law alumni working in the immigrant justice community and will be moderated by UB Law Prof. Elizabeth Keyes, director of the Immigrant Rights Clinic.

And in September, we will examine institutional racism in the courtroom, with UB Law Professors Michele Gilman and Jose Anderson, among others. Dates for those webinars are TBA.

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UB Law Prof. Nienke Grossman Signs on to Letter Rebuking Trump Administration on ICC Sanctions

UB Law Prof. Nienke Grossman, co-director of the Center for International and Comparative Law, was among 175 international law scholars who signed a letter urging President Trump to rescind his June 11 authorization of sanctions and visa denials for International Criminal Court (ICC) employees who are investigating war crimes in Afghanistan — including crimes alleged to have been committed by members of the U.S. military.

Professor Nienke Grossman

Professor Nienke Grossman

In their statement, which was released June 29, the lawyers stated that sanctioning investigators of war crimes, rather than perpetrators, is “wrong in principle, contrary to American values, and prejudicial to U.S. national security.”

“Seeking to intimidate investigators and punish prosecutors perverts the purpose and undermines the legitimacy of sanctions,” the letter states.

The statement comes amid news that Russia allegedly offered Taliban fighters bounties to kill coalition troops in Afghanistan, including American service members. The signatories include former ambassadors, assistant secretaries of state for human rights, prosecutors and judges at war crimes tribunals held around the world.

“The Trump administration is trying to thwart any investigation by the ICC into whether the U.S. military or CIA agents committed war crimes, such as rape and torture, during the war in Afghanistan, including in secret detention facilities, even when the U.S. has failed to hold those responsible to account,” says Grossman.

“It is also trying to block investigations into the conduct of any of its allies, if they do not consent to jurisdiction.  Unfortunately, this is yet another effort by the Trump administration to bully international bodies and undermine widely accepted norms, such as respect for human rights and belief in accountability for international crimes and the rule of law — which, ironically, the U.S. helped to establish in the wake of mass atrocities in World War II.”

Tensions between the United States and the ICC have heightened in recent years, as the court has received allegations of crimes against humanity by U.S. forces in Afghanistan in 2003-04 and at secret CIA interrogation facilities in eastern Europe. In 2019, the United States revoked the visa of Fatou Bensouda, the court’s chief prosecutor, after she announced plans to investigate these allegations. Recently, U.S. Secretary of State Mike Pompeo referred to the ICC as a “kangaroo court.”

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Student-Attorneys in UB Law’s Bob Parsons Veterans Advocacy Clinic Score Important Wins for Clients

The Bob Parsons Veterans Advocacy Clinic (VAC) has had many successes assisting veterans with a variety of legal challenges. But the team is celebrating several recent achievements, thanks to the persistence of clinic student-attorneys and the guidance of clinic director Prof. Hugh McClean and clinical teaching fellow Katy Clemens. Here is a summary of these cases from Clemens.

The first win is for a client who we met and represented at the Baltimore City Veterans Treatment Court. Our student Calvin Riorda, who was representing him, found out that his claim to the Department of Veterans Affairs for service-connected disability benefits for bipolar disorder — that he had before his military service but was permanently aggravated by his service — had been denied time and time again. Cal worked with the client to get a helpful medical opinion from his treating psychiatrist.

Our student Ross Varndell then took over from Cal, drafted an argument for a new claim, worked with the client to put together a personal statement, and submitted the whole package to VA. On June 18, we discovered that the VA granted service connection for bipolar disorder with a 100 percent disability rating! These are exceptionally difficult cases to win. It is a testament to the great work that Cal and Ross did, with Prof. McClean as their supervisor, that this ideal result came so quickly.

Holland Robinson Burch, J.D. '20

Holland Robinson Burch, J.D. ’20

The second win is for a client VAC has been representing for years. She is the widow of a veteran who died of a drug overdose several years back, and she filed for benefits due to his death being related to his military service: specifically, his residual PTSD and chronic pain. Our students Augustine Gonzales, Shane Nolan, and Holland Robinson Burch represented her before the U.S. Court of Appeals for Veterans Claims, where they won a remand back to the agency to obtain better medical opinions on the case.

Our student Tom McDonald then took over representation before the Board of Veterans’ Appeals, where he worked with our client to obtain a supportive medical opinion. I took over at the end and finished the job, and we just found out on June 19 that she finally won, nine years after she filed her claim! This client and her extremely complex case have required a lot of careful attention from our students (and from us), and we couldn’t be more delighted to be able to tell her that it was all worth it in the end.

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UB School of Law Professors Higginbotham and Meyerson Urge Legal Community to Do Better on Racial Justice

This opinion essay is reprinted with permission from the June 26 edition of The Daily Record.

In the aftermath of the horrific deaths of George Floyd, Breonna Taylor, and Rayshard Brooks, and the nationwide protests calling for social justice, the legal profession must take a hard look at itself. While the protests have highlighted the need for fundamental change in the criminal justice system, the battle for racial equality involves every aspect of law.

Justice unquestionably requires a change in policing and mass incarceration. But it also requires a change in how banks lend money, how insurance companies charge for their policies, how hospitals interact with their communities, and how small black-owned businesses are treated. It requires rethinking our education policies, our health care system, our ways of approaching questions about transportation, housing and child care.

Dean Joseph Curtis Professor of Law F. Michael Higginbotham.

Dean Joseph Curtis Professor of Law F. Michael Higginbotham

Lawyers are critical players in decisions affecting these issues and more. It is essential that African-American lawyers have a seat at the table when such decisions are being made. Yet, at present, the legal system is woefully unprepared for this great challenge.

Despite years of lip service by the leaders of the legal community affirming the importance of diversity, African Americans are significantly under-represented. In 2001, there was widespread concern that Black Americans constituted less than 2% of all law firm partners (1.28%) and less than 5% of all law firm associates (4.37%), those at the beginning of their legal career.

Almost two decades later, those percentages have barely moved. African Americans still constitute less than 2% of all law firm partners (now 1.97%) and less than 5% of all law firm associates (4.76%). The numbers are even bleaker for Black women, who make up a minuscule 0.75% of all partners and just 2.8% of associates.

America should be disappointed with its legal community for failing to live up to its promise. And the legal community itself must commit to truly opening its doors for diversity.

What to do

Law firms must reexamine their hiring systems. Not only are merit and diversity not mutually exclusive, they go hand in hand. A quality law firm requires diversity, both to find the best lawyers and to serve a diverse clientele.

Prof. Michael Meyerson

DLA Piper Prof. Michael Meyerson

If a law firm’s traditional way of recruiting has not identified qualified minority lawyers, the problem may well be in the way they are searching. Firms should broaden the pool of those they consider in order to ensure that they are locating all the lawyers of merit.

Simply hiring a critical mass of diverse lawyers, while a necessary start, is not sufficient. Once at the firm, minority lawyers must be confident that they will have the same opportunities for success as any other lawyer who is hired.

Studies have found that white males at law firms tend to receive the most mentoring from partners at a firm and the most face time with clients. Unconscious social actions can make minority lawyers feel isolated and unwelcome.

Firms need to pay careful attention to all aspects of their institutional culture and should also conduct regular audits of the assignments, billable hours and training to make sure they are actively promoting equity and inclusion.

The legal community must also work as one to increase the number of African Americans who enter law school. This means working with colleges, especially the Historically Black Colleges and Universities, to identify talented diverse students and ensure they have the same access to mentoring, test preparation services, and guidance that other populations have.

Need-based financing must also be made available, so that those who come from low-income families can afford whatever opportunities are offered.

Beyond intentions

One of the many lessons America has learned from the events of the past few weeks is that true change requires more than good intentions.  It is not enough to decry racism or make a one-time effort to solve a problem. The only question that matters is whether we succeed.

Change is hard work, and discussions on race can be difficult to navigate. Nonetheless, now is the time for all the good people in the legal community — those who believe passionately in the rule of law, those who understand both the moral imperative and the economic benefits of diversity, those who believe that the American promise of equality has been unfilled since that promise was crafted in our Declaration of Independence, and those who realize that this moment in history demands that real change must occur without further delay – to commit to ensuring that diversity becomes a reality throughout the entire American legal system.

Michael Higginbotham is the Joseph Curtis Professor of Law at the University of Baltimore School of Law and Michael Meyerson is the DLA Piper Professor of Law at the University of Baltimore School of Law. They cofounded, and Michael Meyerson directs, the law school’s Fannie Angelos Program for Academic Excellence, a pipeline program to help students from Maryland’s Historically Black Colleges and Universities attend law school and excel in the legal community.

 

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UB Law Professors React to Appellate Decision to Drop Charges in Michael Flynn Case

A federal appeals court on June 24 ordered the presiding judge in the Michael Flynn case to drop charges against the former national security adviser, even though Flynn pleaded guilty and admitted lying to the FBI. The three-judge panel ruled 2-1 in the matter.

The Court ruling grants a request by the Department of Justice to have the charges dropped and nullifies the presiding district judge’s decision to bring in outside counsel to argue against the request.

D.C. Circuit Court of Appeals Judge Neomi Rao

D.C. Circuit Court of Appeals Judge Neomi Rao

“In this case, the district court’s actions will result in specific harms to the exercise of the Executive Branch’s exclusive prosecutorial power,” wrote Judge Neomi Rao, a Trump appointee, in the majority opinion. She was joined in her opinion by Judge Karen L. Henderson, who had indicated in arguments earlier this month that she was hesitant about interfering in the Flynn case.

At that time, according to Law.com, Henderson described the presiding judge, Emmet Sullivan, as an “excellent trial judge” and stated it would be a “drastic remedy” to order the judge to end his review of the case. “I don’t see why we don’t observe regular order and allow him to rule,” Henderson said in the hearing.

Judge Robert Wilkins, an Obama appointee, offered a dissent, saying he believes Sullivan should have the latitude to rule on the DOJ dismissal request. “It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own,” Wilkins wrote.

UB School of Law professors had varying reactions to the Court’s ruling. “Judge Rao makes the judiciary a rubber-stamp for all-powerful Attorney General Barr,” says Prof. Charles Tiefer. “The president can, under this opinion, make a mockery of justice by freeing his confederate, even when Flynn swore in open court twice that he was guilty.

“When everyone else sees a venal president absolving his corrupt former national security adviser, this court sees only the right-wing vision of an attorney general with powers so absolute they are scary.”

“[Judge] Henderson is a disappointment on this, in my view,” says Prof. Kim Wehle. “District judges need discretion or litigants won’t respect them. Appeals courts should wait to the end of a proceeding to weigh in.”

“This is the right outcome here,” says Prof. John A. Lynch Jr.. “If there is a price to be paid for dismissing charges against Gen. Flynn, the political process will impose it.”

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Community Advocates, and UB Law Clinic Director, Decry Last-Minute Delay of City Water Justice Legislation

Baltimore Mayor Jack Young has requested a one-year delay for the implementation
of the Water Accountability and Equity Act (WAEA), just three weeks before the legislation’s mandated implementation deadline. This push for delay comes after years of the Department of Public Works (DPW) dragging its feet on water justice action, water justice advocates say, and making promises to uplift racial equity despite clear evidence that this is a racial justice issue.

At a June 22 City Council meeting, the Young administration asked that the deadline for implementation be delayed one year, to July 1, 2021. The legislation grants discounted rates according to a customer’s income and provides easier ways to dispute water bills. Passed by the City Council in November 2019, the bill was the result of years of effort by students in the UB Law Community Development Clinic (CDC), in collaboration with other member organizations in the Baltimore Right to Water Coalition.

“Against a backdrop of a pandemic and an outcry to address systemic racism, it is a moral failure for Mayor Young and the Department of Public Works to seek to delay the
implementation date nearly a year for legislation that would lift the burden of unaffordable water bills for struggling families throughout our city,” said
Rianna Eckel, senior Maryland organizer with Food & Water Action.

“The implementation deadline is in just three weeks. The [DPW] must have known for months that it would not be able to meet this deadline, and instead of trying to do all that they can, they’re asking low-income families in Baltimore to wait another year for truly affordable water bills. This is unacceptable. The Council must reject this bill.”

Prof. Jaime Alison Lee

Prof. Jaime Alison Lee

“The legal mandate from the City Council, and the people of Baltimore, is clear and unambiguous: DPW must change,” said UB Law Prof. Jaime Alison Lee, CDC director. “The only way change will happen is to get started.”

For nearly four years, the Baltimore Right to Water Coalition has been working with the City Council to put in place a program to correct Baltimore’s many water woes, and create a more equitable, transparent and functional system. After unsuccessful attempts to kill the bill before it was passed, DPW has now also attempted to avoid implementing the bill in multiple ways as well.

Advocates allege the DPW has failed to provide suggested written amendments for the public hearings and work sessions last year, ignored assistance from experts that the Baltimore Right to Water Coalition has connected them with, failed to meet the mandated deadline to release draft regulations for the affordability program, and also written to key committee members seeking to gut and delay the bill.

“The people of Baltimore have waited too long already for the accountability and affordability measures in the WAEA — and at too high a cost,” said Karen Wabake, senior attorney at the Homeless Persons Representation Project. “Safe, clean and affordable water is a human right and is more important than ever in the midst of the COVID-19 pandemic. We urge the City Council to reject this latest attempt by DPW to stall this critical legislation.”

In addition, a report published last year, by the NAACP Legal Defense Fund called
Water/Color: A Study of Race and the Water Affordability Crisis in America’s Cities
found that municipal discrimination in the provision of water services runs deep. The report highlights that in 2019, water bills exceeded two percent of Black median income in 118 of 200 census tracts.

Sixty-five percent of the Black population in Baltimore lives in these tracts. Only 19 of the 118 tracts are not majority-Black. In 98 tracts, bills range from two to four percent of Black median income. Eighty-three of these tracts are majority-Black. In 15 tracts, 12 of which are majority-Black, households will have to spend four to six percent of their incomes on water bills. In five tracts, water will cost six to eight percent of Black median income.

“Our groundbreaking research confirmed that water rates in Baltimore are rising more rapidly than the national average,” said Coty Montag, senior counsel at the NAACP Legal Defense Fund and author of Water/Color. “We drilled down on a key 2017 Food & Watch study by looking at the specific impact of rising water rates on the predominantly Black population.

“Low-income families of color are being forced out of their homes because of these water prices. LDF supports the Water Accountability and Equity Act, which would provide for income-based billing for impoverished residents and other critical customer protections.”

The affordability provisions outlined in the WAEA bill would not only assist the tens of thousands of Baltimoreans who were already struggling with water bills, they would also assist all of the Baltimoreans who are now facing job loss and wage loss as a result of the pandemic. From March 21 to June 13, 2020, 70,731 Baltimoreans filed unemployment claims — 11 percent of the total population in the city.

“To wait until this point, a few weeks before implementation, after rejecting the years-long process to introduce and pass the bill, is senseless,” said Amy Hennen, director of advocacy and financial stabilization at the Maryland Volunteer Lawyers Service. “Low- and moderate-income families in Baltimore deserve better. This is particularly true for tenants who are left out of current affordability programs.”

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UB Law Prof. Keyes on Supreme Court’s DACA Decision

This post was written by UB School of Law Prof. Elizabeth Keyes, who is director of its Immigrant Rights Clinic.

The Supreme Court’s decision today rejects the Trump administration’s haphazard efforts to undo the Deferred Action for Childhood Arrivals (“DACA”) program, which provided a reprieve from deportation for hundreds of thousands of immigrants, known as the Dreamers, who came to the United States before the age of 16.

Professor Elizabeth Keyes

Prof. Elizabeth Keyes

The DACA program was designed as a stopgap measure after Congress failed, year after year, to pass legislation to protect Dreamers. While it is nowhere near as good as legislation that would put them on a path to permanent residence, it has allowed these young people to work lawfully (an estimated 27,000 of them are on the health care front lines fighting COVID-19), to pursue higher education, and to establish their lives with more confidence than they could ever have had living in the shadows. Today’s decision lets them keep doing so for the foreseeable future.

The Court did not uphold DACA because a majority of the court agrees with the constitutionality of the DACA program. Instead, it focuses more narrowly on how the administration decided to rescind the program. The Court emphasizes the need for accountability and integrity in the government’s dealings with “the people,” and criticizes the government for relying on justifications developed after it decided to rescind DACA: “An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision.” (Emphasis added, from page 17 of the decision).

The Court also determined that the administration’s action was “arbitrary and capricious” as a matter of administrative law. In other words, while the executive may have powers to do and undo many actions, it must do so with some level of thoughtfulness. Thoughtfulness is, of course, in short supply in the Trump administration’s approach to immigration.

Today’s decision telegraphs to the Trump administration that the Supreme Court will not endorse its ramshackle efforts to remake the immigration system via ill-conceived executive orders that are so often illegal on their face. Just this month, the administration released a proposed rule that effectively ends the asylum system as we know it—in contravention of both the Refugee Convention and the 1980 Refugee Act that brought that Convention into domestic law. Today’s DACA decision makes clear that the Supreme Court will take seriously the inevitable challenges to that rule.

Today is a good day for Dreamers. It is also a good day for the rule of law.

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State Approves $4 Million for Two Exonerees; UB Law Innocence Project Aided in Investigation Leading to Release

Two Baltimore brothers exonerated in 2019 after spending 24 years in prison will receive almost $4 million in restitution from the State of Maryland.

Exonerees greet their family after their release.

Kenneth McPherson, left, wearing skullcap, and Eric Simmons, right, in blue shirt, embrace relatives shortly after their release from custody. Photo by Amy Valdivia

The Board of Public Works (BPW) approved the payments, along with payments to several other exonerees, in a June 17 meeting. Eric Simmons, 49, and his brother, Kenneth McPherson, 46, were falsely convicted of conspiracy to commit murder in 1995. They each will receive payments totaling $1.9 million over seven years. The compensation is based on a formula that considers median income for each year they were wrongly imprisoned, and adds almost $11,000 per exoneree for mental health and financial counseling services.

Simmons’ exoneration followed an investigation by the UB School of Law Innocence Project Clinic (IPC). Examination of the case by the clinic and the Mid-Atlantic Innocence Project, which represented McPherson, revealed multiple problems with witness testimony, discovery rule violations, and a failure by investigators to fully pursue the defendants’ alibis. Read more about the investigations.

Although the Maryland General Assembly has failed to pass legislation that would make compensation for exonerees automatic, the BPW does have the authority to make such payments. In October 2019, the board approved more than $9 million for five wrongly convicted men who had spent a combined 120 years in prison. One of those, Clarence Shipley, had been represented by UB’s IPC.

In March of this year, three more exonerees were awarded over $2.9 million in compensation. One of those men, Alfred Chestnut, was represented by the IPC.

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Coppin State Profiles Career Path of Alumna Keri Hickey, Now UB Law’s Director of Student Support

Keri Hickey class of 2012This post is excerpted from a post on the Coppin State University website. Read the entire article here.

Keri Hickey, ’12, studied and worked on both sides of Coppin’s campus. She has been an executive administrative assistant, special assistant, acting business manager and program administrative specialist.

Keri worked for the assistant provost and the dean of the College of Health Professions. “It all started,” said Keri, “when I was a temp for Dr. Joan Tilghman, chairperson for Coppin’s first doctoral program. If it wasn’t for those three months in the summer of 2008, I wouldn’t be telling this story.” And what a narrative it is.

Keri had no idea what she wanted to do with her life when she graduated from high school, and little did she think while fulfilling her tasks at Coppin she would end up as an attorney. She graduated from high school at 16 and went to community college, but dropped out after her oldest sister was killed in a car crash.

“I was depressed and had lost all hope.” But once she started working at Coppin, she realized she could get her degree. “I graduated at the age of 36, five days before my 37th birthday [with a degree in sociology political science].”

Keri then applied to the University of Baltimore (UB) School of Law. But the way she tells her story, Keri did not have a predilection for law. It chose her. Elizabeth Rivera, Office of the Attorney General, planted the seed.

“Once that happened, it seemed like the planets aligned and the only path I could see led to law school.” Keri took advantage of The Fannie Angelos Program for Academic Excellence at UB. 

Keri is still walking the halls of UB. She is the Director of Student Support for the School of Law. She provides academic advising, accommodations for students with disabilities covered by the ADA, and life coaching. “I make sure our students have the academic, emotional, psychological and other support to successfully navigate the challenges of law school. I help our students find the silver lining, especially when all they can see are storm clouds.”

“Keri is one of the most compassionate and student-focused professionals I know,” said Paul Manrique, Asst. Dean of Students, UB School of Law and Keri’s manager. “She works tirelessly to support our students and has a unique ability to connect with individuals. Keri uses her own experience as an evening student at UB Law to counsel students on academic and personal matters to ensure they can thrive while they navigate the challenges of law school.”

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