NEW YORK CIVIL LIBERTIES UNION

Championing civil rights and civil liberties for 50years NYCLU POLICY AND LEGAL STAFF BY DECADE

1950s George E. Rundquist, Executive Director Clifford Forster, Counsel Josephine Scheiber, Administrative Secretary Newsletter Editors: Leslie Slote, Eileen Martinson

1960s George E. Rundquist, Executive Director Aryeh Neier, Executive Director Amelie S. Rothschild, Associate Director Ira Glasser, Associate Director Assistant Directors: Josephine Scheiber, Gordon K. Haskell Staff Counsel: Janet Ann Johnson, Alan H. Levine, Henry N. di Suvero, Burt Neuborne, Paul Chevigny Civil Liberties and Mental Illness Project: Bruce Ennis, Director Police Practies Project: Paul G. Chevigny, Director Selective Service and Military Law Panel: Ed Oppenheimer, Coordinator Legislative Department: Neil Fabricant, Director Rebecca Hahn, Development Director Editors: Alan Bader, Gordon K. Haskell, Ronald Gold, Claire Cooper, Eve Cary Ramona Ripston, Chapter Director

1970s Ira Glasser, Executive Director David Rudenstine, Acting Executive Director Associate Directors: David Rudenstine, Barbara Shack Staff Counsel: Alan H. Levine, Burt Neuborne, Paul Chevigny, Bruce Ennis, Eve Cary, Arthur Eisenberg, Marcia Lowry, Risa Dickstein, Lawrence Faulkner, Clifford Forstadt, Richard Emery, Steven Shapiro Student Rights Project: Alan H. Levine, Director Steven M. Tullberg, Counsel Selective Service and Military Law Panel: Ed Oppenheimer, Coordinator Civil Liberties and Mental Illness Project: Bruce Ennis, Director Mental Health Law Project: Directors: Chris Hansen, Robert Levy Children’s Rights Project: Marica Lowry, Director Peter Bienstock, Counsel Steven Shapiro, Counsel Sentencing and Parole Project: David Rudenstine, Director Exclusionary Zoning Project: Lawrence Sager, Director Arthur Eisenberg, Counsel Legislative Department: Directors: Kenneth P. Norwick, Barbara Shack Thomas Stoddard, Counsel Sara Birn, Associate Ellen Azorin, Development Director Editors: Betty Borger, Lewis Grossberger, Wayne S. Braveman, Joanne Dann, Betsy Brown, Thomas Stoddard NEW YORK CIVIL LIBERTIES UNION

Championing civil rights and civil liberties for 50years NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

Donna Lieberman Executive Director

New York Civil Liberties Union: Championing Civil Rights and Civil Liberties for 50 Years

This report has been prepared by the New York Civil Liberties Union, a non-partisan organization dedicated to preserving and defending the principles set forth in the Bill of Rights.

Published by the New York Civil Liberties Union, September 2003.

Designed by Sara Glover. NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

TABLE OF CONTENTS

Introduction ...... ii The 1950s ...... 1 Fighting for First Principles The 1960s ...... 9 The NYCLU In Ascendancy The 1970s ...... 17 A Decade of Growth The 1980s ...... 27 Issues of Democratic Governance The 1990s ...... 37 Continued Vigilance ii NEW YORK CIVIL LIBERTIES UNION 50th Anniversary NEW YORK CIVIL ishment or oppression because of dissent- anti-war movements, the NYCLU created LIBERTIES UNION: ing beliefs, racial or religious identity, or its Students’ Rights Project – the first in Championing Civil Rights and status as a member of a discrete and insu- the country – to protect the First Civil Liberties for 50 Years lar minority group. Amendment rights of student activists. While the NYCLU has deservedly The NYCLU also created the first acquired its reputation as a principled and project in the country devoted to the pro- OR THE PAST HALF- aggressive litigating organization, its activ- tection of the mentally disabled. Its path- century the New York Civil ities have not been limited to the court- breaking lawsuit brought on behalf of the Liberties Union has been recognized F room. For at least thirty-five years the mentally disabled at the Willowbrook as the pre-eminent statewide organization NYCLU has been actively engaged in leg- facility on Staten Island led to a new com- devoted to the protection and enhance- islative lobbying, and has also effectively mitment to community placement of the ment of civil liberties and civil rights for advocated on behalf of civil liberties and institutionalized. the residents of New York. For fifty years civil rights through public education and In 1973 the NYCLU became the the NYCLU has displayed a compassion- community organizing. In this regard the first civil liberties organization in the ate devotion to the rights and well-being NYCLU’s mission has been significantly country to undertake reform of the foster- of the dissenters, the disadvantaged and enhanced by the fact that the organization care placement system. This became the the dispossessed in our society. Its work maintains offices not only in New York mission of the NYCLU’s Children’s Rights has been characterized by a commitment City but also in Albany, Syracuse, Project. At the same time the organization to constitutional principle, by the intellec- Rochester, Buffalo and Ithaca as well as in was actively engaged in lobbying and pub- tual integrity of its positions, and by its Nassau, Suffolk and Westchester counties. lic education in support of civilian review advocacy programs, which have been driv- The NYCLU came to the fore as a of police misconduct. The NYCLU also en by engagement with New York’s many civil liberties and civil rights organization maintained a deep commitment to civil communities. in the late 1960s and early 1970s. The rights, pursuing school-desegregation cases The NYCLU program has exhibit- NYCLU spearheaded litigation challeng- in Buffalo (Arthur v. Nyquist) and New ed a dynamic quality. In many instances ing the constitutionality of the Vietnam York City (Caulfield v. Board of Education). the NYCLU has used the litigation War; and the organization coordinated the Beginning in the decade of the sev- process as a mechanism of legal reform, work of an extensive team of lawyers who enties and on into the eighties, the with the objective of creating new consti- represented thousands of individuals NYCLU became involved as an advocate tutional doctrine in the service of civil lib- asserting conscientious-objector claims and in many voting rights issues: securing for erties and civil rights. The NYCLU has other challenges to the selective service college students the right to vote in their also provided legal counsel and advocacy system based upon its unfairness and arbi- college communities; successfully opposing on behalf of individuals whose claims may trariness. In response to the protest activi- the dilution of voting rights of racial not create new legal precedent – but who, ties that grew out of the civil-rights and minorities in Yonkers; and successfully nonetheless, have been subjected to pun- Introduction iii

constitutional principles protective of free- technologies surface, controversies persist dom of speech, assembly and association. between those advocating for the autono- The NYCLU’s dynamic program my of personal, medical and scientific continues. At the same time, however, the decision-making and those who seek to challenges that we confront persist as well. impose their own religious or personal Police abuse – particularly within minority views upon others. communities – remains a systemic prob- New technologies also present new lem. The public schools in New York State opportunities for invading individual pri- are among the most racially segregated in vacy through surveillance and data collec- the nation, and significant racial disparities tion. Religionists continue to press for and inequalities with respect to educational prayer in schools, vouchers for parochial opportunities exist throughout the state. education and government funding of New York’s death penalty statute remains social service agencies engaged in religious poised to kill, its potential invocation not proselytizing. yet stayed despite growing evidence around Finally, government censorship the country of wrongful convictions in remains an enduring problem. The natural capital cases. The racial divide in this impulse to censor disagreeable speech country is more entrenched and complex inevitably drives the political branches of than it was thirty years ago when the government to seek to restrict dissenting The NYCLU was chartered in 1951, through a grant from the Kerner Commission warned us about “two or offensive expression. Such impulsive Florina Lasker Foundation. Florina Lasker served as chairperson of the New York Committee of the ACLU from 1932 until her separate societies, one black, one white – and politically popular behavior by public death in 1949. separate and unequal.” officials is not about to change any time Gender discrimination has not soon. challenging New York City’s undemocratic been eliminated even though statutory Seen in these terms, the NYCLU’s Board of Estimate as a violation of consti- prohibitions against such discrimination mission remains unchanged. But the ter- tutional “one-person one-vote” principles. have been on the books for years. rorist attacks on September 11, 2001, have In Morris v. Board of Estimate, a landmark Discrimination against gays and lesbians given a new urgency to the NYCLU’s mis- suit brought by the NYCLU, the court also persists; more work needs to be done sion. In the period following that horrific invalidated the New York City Board of to provide statutory protection for this day, the federal government acted precipi- Estimate, leading to the restructuring of minority group. The rights of reproductive tously in creating extraordinary new police the city’s government. And throughout its choice remain deeply contested and such powers. And in the exercise of this vastly history the NYCLU has brought test-case rights rest upon a fragile coalition of expanded law-enforcement authority, we litigation seeking to establish and preserve Supreme Court justices. Moreover, as new are witnessing a frontal attack on individ- iv NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

ual rights and liberties reminiscent of the McCarthy era of the 1950s. Law-enforce- ment officials have prosecuted the “war on terrorism” in a manner that is intolerant of dissent and that makes criminal suspects of persons based upon national origin, immi- gration status, or religious belief.

Thus, in the year of its fiftieth anniversary the NYCLU faced an attack on civil liber- ties that was eerily reminiscent of the events of half a century earlier, which led to the organization’s founding. And so we take heed of the oft-repeated warning of ACLU founder Roger Baldwin: “Battles for civil liberties never stay won; they must be fought over and over again.” In what is referred to as the post-9/11 period, we are indeed engaged in such a fight over the first principles of our democracy.

The NYCLU remains steadfast in its mission. And in the coming years we will redouble our efforts to defend and uphold the rights and liberties that are promised in the Constitution and the Bill of Rights. The 1950s FIGHTING FOR FIRST PRINCIPLES 2 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

HILE DELIVERING A for jury duty. A city council member from speech in Wheeling, West Queens introduced a resolution requiring W Virginia, on February 9, 1950, Boy Scouts, Girl Scouts and Campfire Wisconsin Senator Joseph McCarthy held Girls to swear their innocence of subver- up a piece of paper. On it, the senator stat- sive activities before being permitted to use ed, were the names of 205 “known city schools for meetings. Communists” employed by the United The conflict between the United States Department of State. With this States and the Soviet Union may have address Senator McCarthy jumped into an been regarded, during this period, as only a already simmering campaign to outlaw the “cold war.” But the frigidity of that conflict Communist party, its members and “sym- produced a political climate that had a pathizers,” and to rid the government of chilling effect on dissent in this country. Communists and former Communists. The prevailing intolerance and repression, McCarthy’s zealotry was so excessive, his however, provided an opportunity and a political and personal paranoia so deep and need for the American Civil Liberties his recklessness so extensive that his name Union, which in 1951 established the became synonymous with a political style greater New York Branch of the ACLU – of unrestrained intrusion into personal or the New York Civil Liberties Union. Its The cartoonist Herblock’s take on the flame of liberty in 1949. beliefs and associations. That style came to (From Herblock: A Cartoonist’s Life, Times Books, 1998.) mission was to defend and uphold the define an era. basic rights and fundamental liberties During the McCarthy era it policies or who had associated with per- articulated in the Bill of Rights and it seemed that almost every public agency sons or organizations who shared such jumped into action on many fronts: in the and private organization was engaged in views. For increasing numbers of people, courts, at meetings with city officials, in scrutinizing conduct for potential threats loyalty oaths were becoming a condition of discussions before community groups, at to national security. It was a worrisome employment. In New York City such oaths administrative hearings, and in newspaper time for those who, at any point in their were required of school teachers, insurance articles, letters and public statements. lives, had held views critical of government company employees – even persons called

TIMELINE: 1950s 11/51 NYCLU is formally 9/53 Bonaventura Pinggera, 1/54 NYCLU lawsuit results 3/54 Masthead of the NYCLU’s chartered through a grant from the NYC Parks Dept. washroom in NY Court of Appeals newsletter in 1954, the year the Florina Lasker Foundation. attendant, is fired because he was declaring state’s Loitering Law national ACLU board votes to member of the Communist party unconstitutional. grant the NYCLU full affiliate in late 1930s; NYCLU wins his status. reinstatement, with back pay. The 1950s 3 Letters and Lawsuits ee, Bonaventura Pingerra, was such a case. enterprise, but was distributing literature In 1953 Pingerra was fired from his job as of general public interest for which a ped- NYCLU Board President George a washroom attendant because he had dling license was not required. Hennacy’s Rundquist publicly criticized a new policy been a member of the Communist party in conviction was, therefore, reversed. of the Municipal Service Commission the late 1930s. Pingerra, represented by the At about the same time the requiring all job applicants to acknowledge NYCLU, successfully sued the Parks Socialist Labor party asked Redfield to past membership in subversive organiza- Department for wrongful termination. In represent SLP members who had been tions and to profess loyalty to the United reinstating Pingerra, with back pay, a New arrested for distributing party literature. States. The board published a letter oppos- York State Supreme Court judge noted: “It The charge: violation of sanitary code pro- ing a city council resolution, introduced in is a bit difficult to visualize how a wash- visions that prohibited littering. Redfield 1954, that required officers of Parent room attendant in his official capacity can won a dismissal of the charges, and then Teacher Associations to sign an oath give aid to his country’s enemies.” persuaded Police Commissioner Francis attesting to their loyalty. And when the In the 1950s – as is the case today Adams to issue instructions that police New York City Youth Board rejected play- – political controversies and confrontations were not to interfere with “distribution of wright Arthur Miller’s film script on juve- often played themselves out in the streets non-commercial literature.” nile delinquency because of his alleged and sidewalks of our cities. Ammon But the perceived Communist affiliation with left wing groups, the Hennacy, for example, was arrested and threat fostered a political culture in which NYCLU came to Mr. Miller’s defense. convicted for the sale and distribution of many called upon the government to con- But letters of protest were not the the Catholic Worker newspaper and the strain individual liberties in the interests of only vehicle by which the NYCLU sought book Autobiography of a Catholic Anarchist national security. The extremism of the to defend civil liberties and influence pub- without a street peddler’s license. But government’s response provoked the lic policy. Early in its history the NYCLU NYCLU Counsel Emmanuel Redfield NYCLU to act. First principles were now came to appreciate the value of the litiga- came to Hennacy’s defense. And the New at stake. In the NYCLU’s October 1954 tion process and of the capacity of the “test York Court of Appeals vindicated newsletter Emmanuel Redfield, then serv- case” to affirm and expand rights and lib- Hennacy’s First Amendment claims, ing as executive director, issued a challenge erties under the law. The dismissal of a agreeing with the NYCLU’s argument that to the membership: New York City Parks Department employ- Hennacy was not engaged in a commercial “There is too much hesitancy

1/55 NYCLU assails as “unwise 4/55 In response to NYCLU 9/55 NYCLU defends former 9/55 When Ammon Hennacy 11/55 NYC investigates Arthur and indeed perilous” NYC Board letter of protest, U.S. State Dept. Nazi party member’s admission to is arrested for distributing the Miller (hired to write script on city’s of Education policy requiring ex- grants Chinese students exit NY County Medical Society on Catholic Worker newspaper Youth Board) for “left wing” Communist school employees to visas, reversing policy that had grounds that “past political without a peddler’s license, affiliations; NYCLU charges the reveal names of party colleagues denied the visas “because of association” has no bearing on NYCLU overturns his conviction investigation of Miller’s political or face dismissal. existing world conditions.” qualification for membership. at NY Court of Appeals. beliefs is “un-American.” 4 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

among civil libertarians. Sometimes I feel Representatives were issuing subpoenas, Amendment to the United States Housing it is due to fearfulness. Courage is the prime demanding that witnesses testify regarding Act, which barred from public housing requisite of those who would fight for present or past affiliations with the members of “subversive” organizations. rights. If such pursuits are bogged down by Communist party. But it was not only The NYCLU and the tenants prevailed. timidity, by fear of being smeared, by dis- Congress that was asking, “Are you now or In 1955 the NYCLU filed a friend agreement with a writer or speaker whose have you ever been . . . ?” In New York of the court brief with the Supreme liberties are invaded then indeed a great City, the Board of Education, with the Court on behalf of Harry Slochower, a deal is lost.” approval of the city’s corporation counsel, Brooklyn College associate professor who The NYCLU reorganized. required “admitted” ex-Communist school had been dismissed, after twenty-seven Committees were formed to address issues employees to name party colleagues or face years of tenure, for refusing to tell a of loyalty and security, police practices, dismissal. The NYCLU issued a three- Senate Judiciary subcommittee whether censorship and academic freedom. A point public statement denouncing the he had been a Communist party member “committee of 5000” was established to policy as “unwise and indeed perilous.” in the early 1940s. The decision to repre- recruit new members. The ACLU always NYCLU attorneys also defended sent Slochower had an institutional sig- had influence beyond its numbers. But New York Times employees Robert nificance for the NYCLU that extended now the New York branch saw the need to Shelton and Alden Whitman against beyond the issue of Slochower’s right to expand its numbers. It sought new mem- charges of contempt of Congress. Shelton plead “the Fifth.” bers to advocate, to litigate, and to edu- had refused to answer questions about pos- The members of the national cate. The new branch set itself a goal of sible Communist party membership; ACLU board were deeply divided on the doubling the membership, to 10,000. Whitman refused to name former associ- issue. There was strong sentiment among a ates who might have been party members. narrow majority of board members that the And when the New York City Housing government’s “need to know” outweighed “Are you now or have you Authority began evicting residents of pub- the individual’s right not to tell. This nar- ever been…?” lic housing who refused to sign loyalty row majority of ACLU board members was oaths, the NYCLU went to court on not alone in its willingness to compromise Committees in both the United behalf of the tenants, challenging on con- States Senate and the House of stitutional grounds the Gwinn

TIMELINE: 1950s 5/56 U.S. Supreme Court finds involvement; NYCLU filed amicus 10/56 Board of Regents bans 2/57 The first Florina Lasker unconstitutional the dismissal of brief supporting Slochower. the film “Lady Chatterly’s Lover” Award for Civil Liberties is given Prof. Harry Slochower for invoking as immoral; NYCLU files amicus to Roger Baldwin, founder of the Fifth Amendment when asked brief challenging the board’s cen- ACLU and for many years the about Communist party sorship, but NY Court of Appeals director and architect of the orga- upholds ban. nization’s work. The 1950s 5

Fifth Amendment and First Amendment Rundquist wrote Committee Chairman rights in the face of a perceived risk to Francis Walter: national security. In 1950 the American “[I]nquiry into political beliefs and Bar Association voted to bar any new associations as such, about which Congress member who failed to sign an anti- may not legislate, is improper.... Communist oath. Recognizing that some performers, if con- The NYCLU, however, decided tinued in employment on the basis of the that the government could not trump the single standard of competent performance, Fifth and First amendments when it came might thus be able to give funds and pres- to matters of political belief or affiliation. tige to Communist causes, the NYCLU It believed that witnesses before congres- maintains that is a small risk which our sional committees had a right not to free society must face, and is actually answer. The Supreme Court concurred in meeting triumphantly without any need Slochower,condemning “the practice of of suppression.” imputing a sinister meaning to the exercise Suspicion and intolerance of politi- of a person’s constitutional right under the cal dissent were not limited to legislative Fifth Amendment.” inquiries and employment practices. The In 1957 the House un-American New York City Police Department acted Activities Committee came to New York aggressively to break up gatherings of to conduct hearings on alleged Communist political agitators, poets, “beatniks” and influence in the entertainment field. Soon other “free thinkers.” When the NYPD after, NBC began firing employees who From its inception the NYCLU has had a public education mission; began mass arrests of so-called “undesir- had refused to answer questions before the in the mid-1950s the NYCLU distributed 40,000 copies of a ables,” the NYCLU board protested in an brochure explaining the rights of an arrestee. committee. Similarly, CBS fired Joseph October 1954 letter to Police Papp, who would later become a leading against self-incrimination. The NYCLU Commissioner Francis W. Adams: “The figure in the New York theatre community, rallied to the defense of Mr. Papp. arrest of persons because they may commit for invoking his Fifth Amendment right NYCLU Executive Director George a crime at some future time, or of those

2/57 NYCLU defends Robert 9/57 NYCLU denounces as 9/57 NY Court of Appeals 11/57 NYCLU calls on Gov. 3/58 NYCLU argues in amicus Shelton, New York Times copy- “absurd” Board of Education’s acquits two Puerto Rican national- Harriman to conduct a statewide brief to U.S. Supreme Court that writer found in contempt of removal of Mark Twain’s ists arrested for picketing on investigation into prison officials’ NYS Security Risk Law denies Congress for refusing to answer Adventures of Huckleberry Finn behalf of Puerto Rican independ- use of wiretapping devices in public employment based upon a question about past membership from approved book lists. ence outside the United Nations; prison interview rooms. “nebulously defined ideological in the Communist party. NYCLU entered case as amicus. tendency.” 6 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

who have already paid their debt to society and-forth over Heller’s efforts to ban from patient. This view prevailed. And the because of a past offense is completely the United States mails the Kinsey Report, organization’s newsletter published in alien to our society.” a study of human sexuality. Heller found October of that year proclaimed: Calls came to the NYCLU in obscene those sections of the report that “NYCLU Hails Board of Hospitals for ever-increasing numbers from people ask- discussed “so-called confessions of married Lifting Ban on Birth Control.” ing: “What are my rights”? In response to women’s adulterous relationships.” the growing demand for information and NYCLU lawyers were also called legal advice, the NYCLU published a into action when police began confiscating Significant Breakthroughs booklet entitled “What To Do If You Are copies of Rascal, Playgirl, and Adam at Arrested.” Demand for the booklet was New York City newsstands, and arresting In a decade often characterized as great. The NYCLU distributed 40,000 the vendors for peddling obscenity. And in repressively conservative, an unmistakable copies between September 1955 and 1957 the NYCLU took to the Supreme shift in perspective was taking place. A new June 1956. Court an appeal of a state court ruling that if not fully articulated recognition of indi- found the paperback series “Nights of vidual rights and liberties was emerging. Horror” obscene and therefore illegal. It had started in Brooklyn, in 1947, The Cultural Orthodoxy From its inception the NYCLU as Jackie Robinson and the Brooklyn of the Period has been a visible and vocal advocate for Dodgers set into motion the racial integra- reproductive freedom. In 1958 New York tion of Major League Baseball. In 1948 The repression that characterized City hospitals banned doctors the 1950s was not limited to the imposi- from prescribing, or even dis- tion of political orthodoxy. The period also cussing, contraceptives. The witnessed an effort to impose a cultural NYCLU vigorously protested, orthodoxy with respect to sexual matters, and helped mobilize opposition with respect to gender stereotypes and with to the policy. The NYCLU’s vice respect to matters of reproductive choice. chair charged in a public state- In 1953 the NYCLU and Congressman ment that the ban violated the Louis Heller engaged in a public back- civil rights of both doctor and

TIMELINE: 1950s 5/58 Dept. of Housing evicts 9/58 NYCLU’s public-education 11/58 NYCLU defends Joseph

Queens family from its apartment campaign leads Board of Papp, a stage manager, when he photo by Earl Davy because adult son has a drug Hospitals to lift ban on city is dismissed by CBS for invoking 1/59 Five Little Rock, Arkansas, Liberties Award for their courage addiction; NYCLU convinces court hospitals’ providing family- the “Fifth” before subcommittee high-school students named and dignity in integrating Central to overturn eviction order. planning advice and distributing of the House Committee on recipients of Florina Lasker Civil High School. contraceptives. Un-American Activities. The 1950s 7

President member Dr. Kenneth Clark provided testi- Truman had mony regarding the effects of racial segre- ordered the gation upon children, and the larger socie- racial integra- ty.At a forum sponsored by the New York tion of the Herald Tribune in 1954, Dr. Clark advised armed forces. it would be a mistake for those in the Then, in 1954, North to assume that the Court’s rejection the Supreme of segregation applied only to the South. Court issued its He challenged New York policy makers to landmark ruling comply with the letter and spirit of the Kenneth Clark, one of the nation’s that held racial- Brown decision. The NYCLU took seri- most influential scholars on issues of racial justice, was a long-time mem- ly segregated ously Dr. Clark’s admonition, and has ber of the NYCLU board of directors. schools were throughout its fifty-year history pursued a unconstitution- programmatic commitment to issues of al. The Court’s opinion gave new and far- racial justice. reaching encouragement to notions of equality and full participation, not only in schools but in the workplace, in the arts, sports and entertainment – in all facets of our economic, cultural and social life. That case, Brown v. Board of Education, would create a deeper recognition of what is at stake when civil rights are denied or sup- pressed. It would create greater expecta- tions for the vindication of individual rights and liberties in the later decades. In the Brown case, NYCLU board 8 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary The 1960s THE NYCLU IN ASCENDANCY 10 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

HE 1960S WITNESSED a Communists. When he visited New York sea change in the political climate City in 1960, the Department of Parks T of the country. The early part of the denied him a permit to give a speech in decade was, for the most part, simply an Union Square Park. The park had served as extension of the 1950s. Fueled by the a site for public debate since the Civil War; optimism and economic growth of the therefore, Rockwell argued, he should be post-World War II period, the early given an equal opportunity to speak at that 1960s was not a time of political activism. location. Rockwell turned to the NYCLU Rather, a general atmosphere of “consen- for representation. sus politics” prevailed. Individualism was Rockwell’s views were deeply discounted, cultural conformity dominat- offensive. Yet, his request for assistance Dec. 17, 1967: Members of the Children’s Union for Peace protest ed, and the troubling issues of persistent the manufacture of war toys, leading to arrests; the NYCLU wins presented an early test of the NYCLU’s racism and the damaging vestiges of their release. commitment to a concept of free expres- McCarthyism remained largely unad- sion under which the government was dressed. It was a time when Americans First Amendment Freedoms prohibited from favoring some speakers adopted a self-congratulatory attitude of Expression, Association, and disfavoring others based upon the toward their country’s political past as and Religion offensiveness or inoffensiveness of their well as toward contemporary social, eco- ideas. According to this vision of the First nomic and racial arrangements. By the But even before the tumult and Amendment the government was barred middle of the decade, however, the issue activism of the second half of the 1960s, the from punishing offensive speech. But this of civil rights for African-Americans NYCLU found itself deep in controversy. did not mean that offensive ideas were assumed center-stage. And by the end of Two cases, in particular, attracted national immune from criticism. This concept of the 1960s, anti-war protests coupled with attention. The first involved the representa- the First Amendment held that it is not civil rights activism and the diverse tion of George Lincoln Rockwell, a self- appropriate for government to silence demands of a counter-culture movement described American Nazi. Rockwell drew those whose expression some may find combined to render the closing years of attention to himself as he traveled around objectionable. To the contrary, the best the decade tumultuous and turbulent. the country talking about killing Jews and antidote to “bad speech,” under this con-

TIMELINE: 1960s 9/61 As a result of NYCLU’s 1/62 In response to NYCLU 1/62 U.S. Supreme Court upholds 5/62 With NYC teachers’ strike 9/62 NYCLU wins Joseph Papp efforts, the NYPD posts English- report, City University of New York NYCLU position that NYC Parks imminent, NYCLU staunchly reinstatement to his job after CBS and Spanish-language placards in lifts ban on Communists speaking Dep’t. wrongfully denied George opposes Condon-Wadlin Act’s television dismisses Papp for police precinct stations advising at college campuses. Norman Rockwell, American Nazi prohibition against strikes by invoking the “Fifth” before the prisoners of their right to a free, party leader, permit to give a public employees. House Un-American Activities local telephone call. speech in Union Square Park. Committee. The 1960s 11 cept, is “more speech” – affording individu- speak as you think are means indispensable discourage thought, hope and imagination; als the opportunity to demonstrate the to the discovery and spread of political that fear breeds repression; that repression unwisdom of the expression to which they truth; that without free speech and assem- breeds hate; that hate menaces stable gov- object. As Justice Louis D. Brandies bly discussion would be futile; that with ernment; that the path of safety lies in the observed in Whitney v. California: them, discussion affords ordinarily ade- opportunity to discuss freely supposed “Those who won our independence quate protection against the dissemination grievances and proposed remedies; and believed that the final end of the state was of noxious doctrine; that the greatest men- that the fitting remedy for evil counsels is to make men free to develop their facul- ace to freedom is an inert people; that good ones. Believing in the power of rea- ties, and that in its government the delib- public discussion is a political duty; and son as applied through public discussion, erative forces that this should be a fundamental principle they eschewed silence coerced by law – the should prevail of the American government.” argument of force in its worst form. over the arbi- These tenets of First Amendment Recognizing the occasional tyrannies of trary. They val- doctrine may not always appear self-evi- governing majorities, they amended the ued liberty both dent, especially in times of political and Constitution so that free speech and as an end and social ferment. Freedom of expression and assembly should be guaranteed.” as a means. association are first principles of our It is this understanding of the First They believed democracy; however these principles are Amendment that the NYCLU embraced liberty to be the always vulnerable to compromise. For this when it elected to represent George secret of happi- reason it is worth considering Justice Lincoln Rockwell. And, in doing so, the ness and Brandeis’s further observations on the First NYCLU set the standard that was subse- courage to be Amendment as set down in his landmark quently followed when, in 1977, the the secret of opinion. Those who won our independ- ACLU of Illinois defended the right of liberty. They ence, he continued, “recognized the risks to American Nazis to march in Skokie, HUAC still active: Civil rights believed that which all human institutions are subject. Illinois; and when, in 1999, the NYCLU attorney Arthur Kinoy is arrested at a freedom to But they knew that order cannot be defended the right of a Klan group to hearing of the House Un-American Activities Committee; NYCLU think as you secured merely through fear of punishment assemble in front of a New York County challenges the committee’s mandate. will and to for its infraction; that it is hazardous to courthouse wearing their traditional hood-

9/62 In landmark school-prayer 4/65 NYCLU board of directors 5/65 Known as “Mr. NYCLU,” 9/65 Central New York Chapter 12/65 David J. Miller is arrest- case brought by NYCLU, U.S. votes to oppose death penalty as George Rundquist retires after 14 of the NYCLU establishes ed when he burns his draft card Supreme Court rules that a school a civil liberties issue, noting that years of service as executive committee to investigate the rights to protest selective service board cannot prescribe recitation only victims of capital punishment director; he is to be succeeded by of the mentally ill. regulations and the Vietnam War; of prayer in classrooms. are denied retroactive relief for Aryeh Neier, NYCLU’s deputy NYCLU defends Miller’s due-process violations. director. expression of political dissent. 12 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

ed masks. of protecting even the speech of those Following its controversial yet suc- whose opinions we hate. In Engel the cessful defense of Rockwell’s right of free NYCLU vindicated important principles speech, the NYCLU involved itself in of religious liberty. But there was a third another deeply contested matter. This was significant First Amendment case in the issue of school prayer and the scope of which the NYCLU addressed the legacy of the constitutional principles respecting the the McCarthy era and also advanced con- separation of church and state. stitutional doctrine respecting rights of The case that raised these issues political association and academic freedom. was Engel v. Vitale, which ultimately The case, Keyishian v. Board of Regents, reached the United States Supreme Court March 1962 protest against nuclear weapons proliferation; NYCLU developed as a result of a 1949 legislative in 1963. However, the source of the con- assails police use of excessive force against protestors at the enactment that authorized the Board of Times Square demonstration. troversy extended back to the 1950s, when Regents to identify organizations that the the NYCLU protested against the use of chapter in Nassau County for help. The Board regarded as “subversive”; and the the Lord’s Prayer in public schools. In NYCLU took the case and attorney Board was further directed to provide, in response to the NYCLU’s objection, the William Butler filed suit, arguing that the its rules and regulations, that membership New York State Board of Regents com- Regents’ prayer violated the Establishment in any listed organization should constitute posed its own prayer to be recited in class- Clause of the First Amendment. The presumptive evidence of disqualification rooms. As prescribed by the board, the United States Supreme Court ultimately from any position in the public schools of prayer read as follows: “Almighty God, we agreed with Butler and held that the state- the state. Under this McCarthy era enact- acknowledge our dependence upon Thee prescribed prayer was unconstitutional. ment, known as the Feinberg Law, many and we beg Thy blessing upon us, our par- Writing for the Court, Justice Hugo Black teachers who refused to certify that they ents, our teachers, and our country.” observed: “It is no part of the business of had not been members of the Communist Five parents from different faiths government to compose official prayers for party or who refused to sign loyalty oaths who had children at Herrick High School any group of the American People.” were dismissed from their jobs. In in New Hyde Park objected to the prayer In the Rockwell case the NYCLU Keyishian the NYCLU challenged the con- and, in 1961, they turned to the NYCLU’s educated the public about the importance stitutionality of this measure. NYCLU vol-

TIMELINE: 1960s 12/65 NYCLU convinces 3/66 NYCLU’s Police Practices 1/67 In appearance before state 3/67 In major victory for academ- 7/67 NY Court of Appeals Nassau County D.A. to drop Project undertakes study of Assembly’s Committee on Health, ic freedom, U.S. Supreme Court upholds NYCLU’s constitutional charges against reproductive civilian review and other NYCLU questions the constitution- upholds NYCLU challenge of challenge of state’s vagrancy law, rights pioneer William G. Baird procedures for curbing police ality of state law limitations on a Feinberg Law, which barred mem- which permitted imprisonment of after his arrest for distributing abuses. woman’s right to an abortion. bers of “subversive” organizations persons without visible means of contraceptives to married women. from working in public schools. employment. The 1960s 13 unteer attorney Richard Lipsitz, who later secure the enactment of the Voting Rights emerge over the next ten years as the lead- served on the NYCLU board, argued that Act of 1965. The escalation of United ing civil rights lawyers in the country. At the statute violated First Amendment States involvement in the Vietnam con- the core of the staff were attorneys Alan rights of associational freedom as well as flict provoked early protests in opposition Levine, Paul Chevigny, Burt Neuborne principles of academic freedom. And in a to such involvement. And various cultural and Bruce Ennis. Each of these staff decision rendered in 1968, Justice William controversies of the mid-1960s spawned members brought unique skills to the Brennan, writing for the Supreme Court, numerous “liberation movements,” which NYCLU program. Neuborne was a cre- upheld the NYCLU’s position. by the end of the decade represented a ative and intrepid litigator whose thought- significant counter-cultural challenge to ful and inventive legal arguments were well the status quo. suited to a program of “impact litigation” Mid-Decade Transformations The mid-1960s also witnessed designed to secure individual freedoms by major transformations at the NYCLU. In expanding constitutional jurisprudence. The middle years of the 1960s was January 1965 Aryeh Neier became the new Ennis was a meticulous trial lawyer known a period of significant transformation in executive director of the NYCLU. Neier for his comprehensiveness in developing the politics and culture of American socie- was a forceful and articulate spokesperson the factual ingredients of a lawsuit. With ty. The sit-in demonstrations directed at for the organization. He also possessed a expertise in both civil rights litigation and racial segregation in the South, the 1963 remarkable capacity to identify and to hire criminal law, Chevigny brought to the March on Washington, and Freedom talented individuals who demonstrated NYCLU wide-ranging experience, an Summer of 1964 led to the enactment of leadership abilities and creativity in the eclectic scholarly perspective as well as the the 1964 Civil Rights Act. One year later, pursuit of programmatic goals. Under sensibilities and instincts of a progressive the momentous march Neier’s leadership the NYCLU became activist. And Levine served as the moral for voting rights in the preeminent civil liberties organiza- compass of the staff; he conveyed a strong Selma, Alabama, where tion in the country. sense of social engagement and pushed the demonstrators were Neier first hired Ira Glasser as the NYCLU to pursue an active social justice assaulted by state police, assistant executive director and then agenda. Toward the end of his tenure at allowed President brought together a litigation staff con- the NYCLU, Neier also brought onto the Lyndon Johnson to sisting of individuals who would legal staff two young and promising

1/68 Dr. Benjamin Spock, the 9/68 NYCLU releases The 1/69 NYCLU launches Civil 1/69 In response to hundreds nationally known and admired Burden of Blame, a report Liberties & Mental Illness Project of inquiries received weekly, baby-doctor, leads anti-war supporting greater community to protect the rights and liberties NYCLU sets up a Selective demonstration; the NYCLU control of local schools as a of persons subjected to Service & Military Law Panel represents 500 protestors who remedy to systemic inequities in commitment or treatment due to to provide counseling and legal are arrested. Dr. Spock with clients. public education. mental illness. representation. 14 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

lawyers, Art Eisenberg and Eve Cary. developed by the Warren Court, NYCLU Neuborne and Glasser persuaded staff members went about their work with Eisenberg to drop out of graduate school a strong sense of optimism regarding the and to join the NYCLU staff. He brought capacity of litigation to achieve real social a scholarly perspective to staff delibera- change. Neier recalled: “Nothing seemed tions and to the NYCLU’s litigation beyond the reach of litigation.” And the efforts. Cary was a first-rate writer and early courtroom successes of the NYCLU editor who brought an uncommon degree only reinforced staff resolve to use litiga- of common sense to the daily flurry of dis- tion as an instrument of social justice. cussions and debates on civil liberties that Consistent with the political and photo by Diana Davies took place at the NYCLU offices. cultural temper of the late 1960s, the In a case before the U.S. Supreme Court in 1967, NYCLU and The NYCLU’s litigation efforts NYCLU staff advanced an expansive view ACLU lawyers argue that burning a draft card is a form of were the centerpiece of its program; how- of individual rights, and attempted to speech protected under the First Amendment. ever, Neier also committed additional extend such rights to a variety of institu- equality in particular. resources to expand the legislative pro- tions – such as public schools, the military, The NYCLU’s interest in expand- gram, and he hired Neal Fabricant to mental hospitals and prisons – where indi- ing First Amendment doctrine was epito- direct that program. With the Vietnam vidual liberties were previously thought to mized by the organization’s defense of conflict raising civil liberties issues related be seriously diminished or nonexistent. David O’Brien, who was prosecuted for to the selective service and military laws, The NYCLU staff also began focusing burning his draft card in protest against Neier also created the Selective Service upon the rights of women and of the poor. the Vietnam War. The O’Brien case was and Military Law Project under the actually initiated in Massachusetts. administrative direction of Ed However, the NYCLU’s prominence with- Oppenheimer. Free Speech and Racial Justice in the ACLU was such that New York During this period the NYCLU staff and volunteer attorneys were deeply was an enormously dynamic and creative But as the 1960s drew to a close, involved in the litigation as the case pro- organization. The office hummed with the NYCLU’s program seemed to gravitate ceeded to the Supreme Court. In prepar- intellectual energy and excitement. Staff predominantly toward two sets of issues. ing the case for the Supreme Court, members were constantly developing new The first involved the NYCLU’s tradition- cooperating attorney Marvin Karpatkin led legal theories and new program initiatives al concern for free expression and what the ACLU/NYCLU litigation team in to address social problems. Buoyed by the Justice Brandeis had described as “the free- developing the argument that O’Brien’s activism of the civil rights movement, the dom to think as you will and to speak as burning of his draft card represented a energy of the anti-war protestors and the you think.” The second involved the con- form of symbolic speech entitled to First expansive constitutional jurisprudence cern for equality, in general, and racial Amendment protection. Although the The 1960s 15

Court upheld O’Brien’s conviction, it also community. Many members protested – in an important doctrinal development – against the NYCLU’s involvement in this recognized the concept of “symbolic issue. And in its newsletter of March 1969, speech” and the potential application of the organization defended its position: First Amendment principles to protect “If NYCLU has seemed to be con- such expression. centrating more of its energies than ever The NYCLU’s concern with sys- before in the struggle for equality, it is not temic and persistent racial discrimination accidental. Throughout the Civil Liberties also prompted the organization to take a Union, there has been a conscious effort to position in connection with the New York involve the Union more deeply in the City school decentralization controversy. struggles for equality by Northern ghetto In the late 1960s school reformers pro- communities…. This movement within posed to foster community involvement in the Civil Liberties Union has taken place local schools by decentralizing the New precisely when long-standing alliances York City school system and by creating between black ghetto groups and groups community school districts to administer predominantly composed of ‘white liberals’ the elementary schools. This proposal was have been sorely strained. Because many met with vigorous opposition by the teach- other groups appear to be turning their ers’ union. And the NYCLU jumped into backs upon the frustrating problems of the the controversy by issuing a report, ghetto, we have felt that the responsibili- authored by Associate Director Ira Glasser, ties of the Civil Liberties Union in this entitled The Burden of Blame. In that report area have been heightened. These efforts Glasser documented the history of the flow from a deep commitment to integra- school decentralization proposal and evalu- tion as a path towards equality.” ated the proposal itself. The report ulti- But beyond the compelling mately supported the decentralization demand for school decentralization in the recommendations “as a means of giving interest of racial justice, the movement ghetto communities equal access to the toward decentralization also offered a more process of making decisions vitally affect- general paradigm of institutional reform. ing the education of their children.” Indeed, staff attorneys Neuborne and The Burden of Blame was controver- Eisenberg subsequently developed a theory When advocacy took to the streets, the NYCLU pub- sial among the members of the NYCLU of social reform that placed the school lished guidelines that explained the scope of the First and within the broader New York City decentralization controversy in a historical Amendment right to public protest and demonstration. 16 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

context and further explained why the munities. The NYCLU applied these con- controversy involved systemic issues of civil cepts of decentralization and centralization liberties concern even beyond the issue of as dynamic mechanisms of social reform in racial equality. subsequent controversies of the 1970s. According to Neuborne and Thus, in response to the cruel and inhu- Eisenberg, the cyclical movement between mane warehousing of mental patients and centralization and decentralization had the developmentally disabled in large insti- presented itself as a common historical tutions, the NYCLU pressed for the decen- pattern in this country; this cyclical pat- tralization of the system and the placement tern, they observed, had been driven by an of such patients in smaller community set- impulse toward social and political reform. tings and group homes. By contrast, in In this regard, Neuborne and Eisenberg response to local communities using their posited that bureaucratic and political The school decentralization movement had its start at I.S. 201 in zoning authority to exclude low- and mod- institutions tend, over time, to arrogate the 1950s. For more than fifty years the NYCLU has fought for erate-income housing and to reinforce pat- power; that this arrogation of power often equal educational opportunity. terns of segregated housing, the NYCLU renders these institutions less responsive in an institution’s development, social advocated for more centralized state and and, in some instances, unresponsive to the change must be brought about through regional responsibility to combat local individuals that the institutions were creat- decentralization. At other times, it can be parochialism and narrow self-interest. ed to serve; and that the most effective brought about through centralization. way to render such institutions more Accordingly, the mechanisms of decentral- responsive is to reduce the accretion of ization and centralization are simply bureaucratic or political power through a engines of social change, available to process of decentralization. reformers seeking to challenge the arroga- But Neuborne and Eisenberg fur- tion of power by existing bureaucracies or ther theorized that, over time, decentral- political entities. ized institutions become increasingly In the school decentralization con- inefficient, unresponsive and provincial, troversy of 1968 and 1969 the NYCLU’s and that the reformative reaction to such commitment to decentralization rested, to narrowness often requires centralization. be sure, upon issues of racial justice. But it Accordingly, Neuborne and Eisenberg rea- also rested, in part, upon a concern for the soned that the furtherance of civil liberties accretion of power by the city’s centralized does not compel a commitment to either bureaucracy and its unresponsiveness to the centralization or decentralization. At times needs of children and parents in many com- The 1970s A DECADE OF GROWTH 18 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

HE 1970S WITNESSED patronizing bureaucracies that all too fre- unencumbered by such training, Glasser an enormous expansion of the quently ignored the needs and demands of was able to function as the most effective T NYCLU’s program and staff. In those they were intended to serve. advocate at the NYCLU. He would meet 1970 Aryeh Neier left his leadership posi- Accordingly, Glasser committed the with members of the legal staff and listen tion at the NYCLU to become the execu- NYCLU to advance the rights of students to elaborate legal arguments by the attor- tive director of the American Civil in public schools, the rights of the devel- neys discussing NYCLU cases. He would Liberties Union, and Ira Glasser succeeded opmentally disabled and mentally impaired then have the capacity to distill those argu- Neier as executive director of the NYCLU. housed in state institutions, the rights of ments to their essential elements and he Glasser shared most of Neier’s program- did so with a remarkable clarity. He served, matic commitments, and Glasser pursued in effect, as the lawyers’ lawyer. And it was those commitments; but in so doing, he this capacity to capture the essence of an placed his own distinctive stylistic stamp argument coupled with a quick wit and an upon the organization. irrepressible debating style that enabled Glasser’s initiatives focused princi- Glasser to function as an enormously suc- pally on two matters. First, reflecting a cessful spokesperson for civil liberties. He deep and lifelong commitment to matters was also a tireless fundraiser. And these of racial justice, Glasser led the NYCLU qualities permitted him to expand the in its support for affirmative action NYCLU’s program significantly. Executive Director Ira Glasser led the NYCLU through a period of programs, in its challenge to racially exclu- explosive growth in the 1970s. sionary zoning practices and in its insistence upon equal educational opportu- military personnel, the rights of prisoners, Bringing the Bill of Rights nities. Second, upon undertaking an the rights of parolees and the rights of to Institutions examination of various institutions – such children in foster care. as public schools and state institutions for Glasser had previously been a One of Glasser’s primary commit- the developmentally disabled and mentally mathematics professor. He possessed no ments in the early 1970s was to students’ impaired – Glasser recognized that these law degree. Yet, despite the absence of a rights. He and Alan Levine fashioned a institutions had become self-serving and legal education or, perhaps, because he was project designed to establish the right of

TIMELINE: 1970s 1/70 NYCLU defends Black 1/70 NYCLU brings a 5/70 A campaign led by the 6/70 Private Malcolm Berk, 6/70 NYCLU launches Panthers when police harassment constitutional challenge to the NYCLU’s legislative office leads represented by the NYCLU, seeks Prisoner’s Rights Project, whose leads to series of arrests for state’s Mental Hygiene Law, which to repeal of state law that imposes to enjoin government from mission is to “penetrate the loitering and for selling the party permits involuntary commitment of criminal sanctions for the sending him to fight in Vietnam, prisons with the rule of law.” newspaper. the mentally ill for 21 days without performance of medical abortions. arguing that Congress has not judicial review. authorized the war. The 1970s 19 students to engage in nondisruptive free their will if they were not harmful to expression while in school, and to provide themselves or others. rudimentary procedural protections to stu- But the major effort of Ennis’s dents who had been subjected to suspension project involved a challenge to the manner and other forms of discipline. In the early in which mentally ill patients and the 1970s the NYCLU’s Students’ Rights developmentally disabled were warehoused Project established these basic constitutional in large institutions that were unresponsive rights through court decisions and adminis- to patient needs. The Willowbrook institu- trative rulings. At its height the Students’ tion on Staten Island became the central Rights Project was also able to put this focus of this concern. In a major class newly recognized legal doctrine in the serv- The U.S. Supreme Court rules that NYCLU client Kenneth action the NYCLU brought about the ice of individual students by providing them Donaldson posed no danger to himself or others and was closing of the Willowbrook facility and therefore improperly confined as mentally ill. direct representation at disciplinary pro- succeeded in having the Willowbrook ceedings. The work of the NYCLU’s Stu- his pathbreaking work in this field, Ennis patients placed in community settings or dents’ Rights Project was replicated by was called upon to take cases from across in situations more appropriate to the needs other affiliates and gave rise to other organ- the nation. And over the next seven years, of individual patients. The NYCLU has izations specifically devoted to advocacy on Ennis and the NYCLU created an entirely maintained its commitment to these for- behalf of public school students. new area of civil liberties law. The mer Willowbrook residents, monitoring The NYCLU’s Project on Civil NYCLU challenged the constitutionality their care and treatment. Liberties and Mental Illness (later, re- of New York’s involuntary commitment The NYCLU also launched its named the Mental Health Law Project) procedures. In addition, the NYCLU Prisoners’ Rights Project in June 1970. was actually created in 1969, during established that patients have a right to Headed by University of Buffalo Law Neier’s tenure as executive director. Bruce treatment and to informed consent with Professor Herman Schwartz, the project Ennis became the project’s first director, respect to their treatment; that competent attempted to extend basic civil liberties and he quickly became the national individuals also have a constitutional right within prisons, where the rule of law had authority on the rights of the developmen- to refuse treatment; and that mental traditionally been absent. The project tally disabled and mentally ill. Because of patients could not be confined against sought and, in many cases, won for

7/70 In response to NYCLU’s 10/70 Ira Glasser is named 10/70 Federal court in Buffalo 12/70 U.S. Court of Appeals 5/71 NYCLU plays key role in advocacy, the state’s commission- NYCLU executive director; he rules in favor NYCLU’s class of strikes down New York’s flag organizing Welfare Rights er of education issues ruling replaces Aryeh Neier, who is plaintiffs, striking down state law desecration statute; the plaintiff, Litigation Task Force, a coalition harshly critical of the lack of due appointed head of the ACLU. that prohibits busing to achieve represented by the NYCLU, had that launches statewide attack on process in New York City schools’ school integration. worn a button with a peace illegal and discriminatory welfare disciplinary procedures. symbol superimposed on the flag. legislation. 20 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

inmates the right to free expression, tary confinement or isolation in New York secure procedural due-process protections including the right to uncensored mail, the State training schools. “It’s a welcome step for parolees in connection with parole right to read what they wanted, the right toward imposing a rational degree of con- revocation hearings. The project also to give interviews to the press, the right to trol over what goes on in state training went to court on behalf of parolees and write and publish, and the right to due schools and extending basic rights to the their family members, seeking to secure process in prison disciplinary proceedings. children committed to them,” said Staff their right to remain free from warrant- The NYCLU also secured prisoners the Attorney Burt Neuborne. less and announced searches of their right to decent health care. In 1973 the Children’s Rights homes and from unannounced home The NYCLU was also in the fore- Project initiated a major case against the visits by parole officers. front in recognizing and asserting the con- state’s foster-care system, arguing that the stitutional rights of children. The manner in which the state placed children Children’s Rights Project, created in 1973 in foster care involved selection based upon From Vietnam to Watergate under the direction of Marcia Robinson race and religion, which violated the and Beyond Lowry, examined the case of fourteen- Fourteenth Amendment prohibition year-old Nettie Lollis, who lived in the against racial discrimination as well as the Even as the NYCLU engaged in major custody of the state at the Brookwood First Amendment requirement that the institutional Center for Girls. There, she had been con- institutions of church and state be separat- reform during fined to a 5’ x 8’ bare room for two weeks. ed. The litigation continued for twenty-six the early The Children’s Rights project filed suit, years, even as the Children’s Rights Project 1970s, the claiming that the practice of isolating chil- migrated from the NYCLU to the ACLU. conflict in dren for extended periods of time consti- But in 1999 the case resulted in a historic Vietnam con- tuted cruel and unusual punishment and consent decree altering the state’s practices. tinued to that imposing punishment on persons who The NYCLU also sought to pro- dominate this were civilly committed and not convicted vide a greater degree of constitutional period. And of a crime violated their right to due protection for parolees. Under the direc- the NYCLU process. The NYCLU secured an injunc- tion of David Rudenstine the NYCLU was deeply tion ending the practice of extended soli- established a Parole Project that sought to involved in the

TIMELINE: 1970s 6/71 NYCLU/ACLU file amicus Supreme Court’s landmark ruling 11/71 Queens Supreme Court 3/72 NYCLU brings landmark brief opposing government’s upholds freedom of press. finds for NYCLU client and strikes litigation charging that inhumane attempt to bar NY Times from down Jamaica High School’s conditions at the Willowbrook Pro-choice demonstrators outside a excerpting Pentagon report on practice of maintaining dossiers State School violate the New York City courthouse; inside the courts the NYCLU has been the state’s U.S. policy toward Vietnam; on students’ political activities constitutional rights of the leading advocate on behalf of reproduc- outside of school. mentally disabled. tive choice. The 1970s 21 civil liberties issues generated by the con- Vietnam in the face of an injunction flict. Three sets of civil liberties issues requested by the Nixon administration. emerged. New York University Law Professor The first set of issues involved the Norman Dorsen, along with staff attorneys First Amendment rights of those protest- Neuborne, Ennis and Eisenberg, prepared ing against United States’ policies on amicus briefs in support of the newspapers, Vietnam and the rights of journalists to arguing that the injunction requested by the report on those policies. During the 1960s government would violate the First and early 1970s the NYCLU was deeply Amendment prohibition against prior involved in securing the right of anti-war restraint. And the Supreme Court ultimate- protestors to march and demonstrate and ly agreed, finding in favor of the newspa- leaflet in opposition to the war. Indeed, pers and against the Nixon administration. during this period it seemed that the A second set of issues generated by offices of the NYCLU served as a cross- the Vietnam War involved NYCLU litiga- Controversy over the Vietnam War severely tested the roads for the anti-war movement, as one tion challenging the constitutionality of constitutional rights of speech, association and due process. group after another came to the NYCLU the war itself. A team of NYCLU lawyers merits of the constitutional challenge, the to seek assistance in connection with that led by Neuborne and cooperating attorney federal judiciary ultimately concluded that day’s demonstration or political event. Leon Friedman, and supported by the lawsuits involved political questions But perhaps the most significant NYCLU staff members Eisenberg, that were not “justiciable” and, therefore, First Amendment litigation in which the Oppenheimer and Norman Siegel, initiat- not capable of judicial resolution. NYCLU was involved during this period ed a series of lawsuits arguing that the Nevertheless, the suits challenging the was the Pentagon Papers case. The Congress had never formally declared war constitutionality of the war placed the NYCLU played a prominent role as amicus and that without such a congressional dec- NYCLU at center-stage within the anti- curiae in that case. At issue was the right of laration the president lacked the constitu- war movement and again signified the the New York Times and of the Washington tional authority to pursue the war. bold and innovative litigation program Post to publish documents describing the Although the NYCLU lawyers succeeded pursued by the NYCLU. history of the United States’ involvement in in convincing lower court judges of the The third set of issues raised by the

9/72 In important reproductive 10/73 Ruling on discrimination 4/74 U.S. Supreme Court 6/74 NYCLU wins enactment of 1/75 U.S. Court of Appeals rights case, a federal court claim brought by NYCLU’s Nassau affirms right of persons in jail state legislation prohibiting rules high-school teacher was upholds NYCLU’s position that chapter, NY Human Rights awaiting trial and those convicted discrimination in credit wrongly suspended for wearing a denial of Medicaid payments Commission orders Nassau of misdemeanors to vote by transactions based on sex, marital black arm band to protest Vietnam for elective abortions is County to admit women to the absentee ballot. status or child-bearing capacity. War; NYCLU prevails in case unconstitutional. police cadet training program. drawing national attention. 22 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

Vietnam War involved the government’s War had ended. But the country barely was the imposition of monetary limita- enforcement of its selective service laws had time to catch its breath before the tions on campaign contributions and and its administration of conscientious- Watergate scandal escalated into a call for expenditures. objector applications. Under the direction the impeachment of President Richard The NYCLU advocated, however, of NYCLU staff member Oppenheimer, Nixon. The NYCLU, once again, exercised that a core purpose of the First and with the assistance of NYCLU coop- national leadership by starting up an Amendment is to protect citizen discussion erating attorneys Jeremiah Gutman, Impeachment Project designed to engage of public affairs, including the qualifica- Marvin Karpatkin, Michael Pollett, Steven in public education and community organ- tions of candidates seeking public office. Hyman and many others too numerous to izing related to the call for Nixon’s The NYCLU took the position that name, the NYCLU’s Selective Service and removal. Under the dynamic and energetic restrictions on the amount of money a Military Law Project represented hundreds direction of Norman Siegel the project person or group could spend on political of individuals in connection with conscien- produced materials explaining the grounds communication during a campaign would tious-objector applications, as well as other for impeachment; organized a lobbying necessarily reduce the quantity of expres- selective service and military law issues. To campaign; and sponsored a series of town sion, the number of issues discussed, the undertake this work, Oppenheimer organ- meetings at which knowledgeable and depth of their exploration and the size of ized an extensive panel of draft lawyers – informed staff members and volunteers the audience reached by such expression. the largest selective-service panel in the addressed the impeachment issues. Under Ira Glasser’s leadership the NYCLU country – and offered them training and The legacy of the Watergate scan- adopted a position that restrictions on back-up resources. Before the panel was dal included the enactment of a significant spending and contribution limits would organized, it was almost impossible to win piece of legislation: the 1974 Federal necessarily curtail expression protected by a draft case. By the early 1970s the panel Election Campaign Act. In response to the First Amendment, and that such boasted a better than 90-percent victory various practices of the Nixon administra- restrictions upon free speech could not be rate in its cases. In addition to handling a tion, Congress enacted an elaborate statu- justified because the legislative reforms docket of nearly 500 cases, the panel tory scheme designed to reform enacted in 1974 would not be capable of trained more than 500 attorneys and draft significantly the rules that governed the effectively closing off all streams of financ- counselors throughout the United States. financing of federal election campaigns. ing that could flow between monied By the mid-1970s the Vietnam Central to the congressional reform effort interests and candidates for public office.

TIMELINE: 1970s 3/75 Major U.S. Supreme Court 5/75 A federal court approves 6/75 In important test case 6/76 Ten years of lobbying by 6/77 NYCLU joins with NYPD in decision upholds NYCLU’s consent decree in Willowbrook brought by the NYCLU, U.S. NYCLU results in enactment of consent decree that bars police position that students are entitled case that establishes Supreme Court rules the mentally state legislation requiring officers from arresting bystanders to a hearing when threatened comprehensive and detailed ill cannot be held against their expungement of criminal records who observe, comment upon or with suspension. treatment standards for will if they pose no danger to when charges are terminated in photograph an arrest. mentally disabled. themselves or others. favor of accused. The 1970s 23

Acting upon these concerns, Glasser practices effectively maintained a pattern and ACLU Staff Attorney Joel Gora organ- of residential segregation by confining ized a constitutional challenge to the 1974 minority residents in urban centers campaign finance law. That challenge surrounded by largely white suburban reached the Supreme Court in 1976. And communities. It was this pattern that rein- in a controversial exercise of solomonic jus- forced an invidious cycle of segregation tice, the Supreme Court, in the case of and discrimination: segregated residential Buckley v. Valeo,held that the statutory lim- patterns were reinforced by neighborhood its on campaign expenditures violated the school policies, which resulted in segregat- First Amendment but also held that the ed and unequal schools; which, in turn, restrictions on campaign contributions were created unequal educational opportunities, valid and should be sustained. leading to disparities in employment and income; which, in turn, reinforced patterns of racially segregated housing. Sager and The Persistent Problems of Eisenberg attempted to break this cycle of Racial Justice and Police Abuse discrimination and disadvantage by invok- ing the Federal Fair Housing Act of 1968 During the early and middle years of the In the 1970s, the NYCLU represented persons wrongfully to challenge local exclusionary zoning 1970s the NYCLU was also prominently arrested and prosecuted for their association with political practices. This litigation strategy resulted organizations, such as the Black Panther party. involved in a number of significant contro- in one successful judicial decision that sig- versies involving questions of racial justice. New York City public school system. nificantly expanded the protective reach of Staff Attorney Art Eisenberg engaged in Eisenberg and New York the Federal Fair Housing Act. But because an extensive piece of litigation in support University Law Professor Larry Sager were of various economic contractions during of an affirmative action program designed also involved in a series of legal challenges the period, the legal ruling remained a to remedy discriminatory hiring practices to municipal zoning practices that operat- “paper” victory that never actually translat- and the racial segregation of African- ed to exclude low- and moderate-income ed into significant construction of inte- American and Latino teachers within the housing from suburban communities. Such grated housing for low- and moderate-

5/79 Dorothy Samuels is named to replace Ira Glasser as the NYCLU’s executive director. 24 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

income persons. organizations. The litigation ultimately the workplace and who were not afforded Accordingly, the NYCLU along resulted in a consent decree under which the equal protection of the law. In with the NAACP then sought to combat the police department agreed to various response, Shack, along with Eve Cary, the problems of unequal opportunity procedural and substantive limitations on organized the NYCLU Women’s Rights through a more traditional and direct their authority to monitor political groups Project. Shack quickly learned, however, approach. In 1972 the NYCLU launched a where there was no basis to believe that that vindicating women’s rights under the major school-desegregation case in the the political activists had engaged in or Fourteenth Amendment would be diffi- City of Buffalo. David Jay served as lead were about to engage in criminal conduct. cult. She, therefore, looked for legislative counsel in the litigation, which ultimately The decree obtained in the case of solutions. Her answer was the NYCLU resulted in a desegregation order. Handschu v. Department of Special Services citizen’s lobby. She recruited hundreds of Police misconduct also persisted, served as a restraint against inappropriate NYCLU “citizen” lobbyists in each of the and it remained a focus of the NYCLU’s police surveillance of political groups. chapters around the state; with this opera- work. By the 1970s staff attorney Paul tion, Shack created a statewide presence Chevigny had emerged as one of the lead- for the NYCLU’s legislative program. ing experts in the country on police abuse. The Legislative Program During this period he published two books on police misconduct, and he continued to In the 1970s the NYCLU expand- The End of the Decade: litigate and to lecture frequently on the ed its lobbying operation in Albany. Due to A Period of Transition subject. He brought two lawsuits involving initiatives undertaken by Neal Fabricant the Black Panther party. One case involved and Ken Norwick, the NYCLU established The NYCLU experienced yet the New York City Police Department’s a significant lobbying presence at the state another transition at the end of the use of an agent provocateur to set up mem- legislature. This presence was subsequently decade. In 1979 Ira Glasser left the bers of the Black Panther party for arrest expanded under the leadership of Barbara NYCLU to replace Aryeh Neier as execu- and prosecution; the second case involved Shack. Ira Glasser recruited Shack, tive director of the ACLU. By that time harassment of members of the Black executive director of the NYCLU’s Nassau Neuborne and Chevigny had left for Panther party for simply seeking to sell the County chapter, to serve as his assistant. teaching positions at the New York party newsletter on the streets of Mt. He subsequently appointed her associate University School of Law. Ennis had Vernon, New York. director and, later, legislative director. moved to the ACLU, where he assumed But the principal litigation in One of Barbara Shack’s principal the position of national legal director. Cary which Chevigny was involved during this substantive interests was women’s rights. had taken a position with the Legal Aid period grew out of attempts by the New While working at the NYCLU she had Society; and Siegel had joined a voting York City Police Department to engage in received many requests for assistance from rights organization and subsequently went the undercover surveillance of political women who were not treated equally in into private practice. Levine had also The 1970s 25 entered private practice. Shortly after Glasser moved to the ACLU, Lowry moved her Children’s Rights Project to the ACLU, and Rudenstine assumed a faculty position at Cardozo Law School. These staff members were replaced, however, by talented successors. Richard Emery, a first-rate litigator, and Steve Shapiro, a thoughtful and elegant brief- writer and a skilled advocate, became staff attorneys with the NYCLU. Chris Hansen, who developed into an extraordi- narily talented trial lawyer and appellate advocate, replaced Bruce Ennis as director of the Mental Health Law Project. Hansen was subsequently joined at the project by Rob Levy, a young lawyer with enormous potential and a finely tuned sense of justice and fairness. 26 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary The 1980s ISSUES OF DEMOCRATIC GOVERNANCE 28 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

N 1979 DOROTHY SAMUELS which, in effect, holds that your vote principles that required the government to replaced Ira Glasser as the executive counts as much as my vote. And the afford all similarly situated candidates and I director of the NYCLU. Among NYCLU continued to litigate cases involv- parties an equal opportunity to use the Samuels’s many interests and objectives in ing the right of college students to vote as mail to communicate with potential voters; undertaking this role, she had a particular residents of their college communities, as second, the enactment violated equal- concern with issues of democratic gover- well as a series of constitutional challenges protection principles that require the gov- nance. The NYCLU’s program, over the to provisions of the New York Election ernment to administer elections neutrally next decade, reflected those concerns. Law that unreasonably burdened opportu- and fairly. These arguments prevailed and nities to run for office. the congressional enactment was declared But in its first significant case of unconstitutional. Rights of Political Participation the 1980s the NYCLU challenged a con- The redistricting of the state legis- gressional enactment that reduced mailing lature, which occurs after each decennial During the 1980s the NYCLU rates for candidates of the Democratic and census, calls into play constitutional pursued an active program of litigation that Republican parties but not for the candi- obligations that require the creation of addressed a range of voting rights issues – dates of other political parties. In challeng- electoral districts with relatively equal pop- notable among them the claim that various ing this enactment, the NYCLU repre- ulations. The redrawing of the electoral legislative districting arrangements unfairly sented minor parties across the political map also implicates constitutional and denied African-Americans and Latinos spectrum, including the Libertarian party, statutory prohibitions against the creation equal opportunities to vote and to elect the the Conservative party, the Socialist Party of districts that dilute the electoral oppor- candidates of their choice. During this of America, and the Peace and Freedom tunities of minority voters. Following the decade the NYCLU also initiated a signifi- party. NYCLU staff attorneys Arthur 1980 census, NYCLU attorneys Arthur cant legal challenge to the system that pro- Eisenberg and Steve Shapiro argued that Eisenberg and Richard Emery became vided for the election of one representative congressional favoritism afforded the actively involved in litigation forcing the from each of the city’s boroughs to serve on Democratic and Republican parties violat- state legislature to redistrict. The lawsuit the all-powerful Board of Estimate. The ed two constitutional principles: First, the charged that the state must draw its voting suit charged that this electoral scheme vio- enactment favoring the candidates of these districts in a manner that respects the lated the “one-person one-vote” principle – two parties violated First Amendment principle of “one person, one vote” and

TIMELINE: 1980s 1/80 U.S. Court of Appeals rules L.I. 11/80 NYCLU lawsuit requires 12/80 On behalf of Student 12/80 Federal court declares 1/81 NYCLU enters into consent civic group, represented by NYCLU, Immigration and Naturalization Service Struggle for Soviet Jewry, NYCLU unconstitutional Dep’t. of Corrections decree establishing guidelines and need not register with Federal Election to free 15 Cuban women who have been convinces court to ease restrictions on policy permitting parole officers to reporting requirement when NYPD Commission before distributing leaflets detained more than 3 months without demonstrations at Soviet Mission to the search homes of parolees and their engages in surveillance of political criticizing politician’s voting record. hearings or notice of charges. United Nations. families without a warrant. activities. The 1980s 29 that guaranteed equal electoral opportuni- re-election and because one could interpret ties for minority voters, as required by both the leaflets as being critical of the the Constitution and the federal Voting congressman’s voting record, the leaflets Rights Act. Eisenberg and Emery pursued consti-tuted campaign literature. Therefore, similar litigation in connection with New according to the FEC, the local group had York City’s councilmanic districts. violated the Federal Election Campaign The NYCLU along with the Act when it failed to disclose the names of NAACP also sought to vindicate the those who had contributed money for the rights of minority voters in Yonkers by preparation of the leaflets. Joel Gora, challenging the structure of the Yonkers former ACLU Staff Attorney, and Art City Council in another suit brought Eisenberg represented the group, arguing under the federal Voting Rights Act. In that leafleting is a traditional form of free the Yonkers case Eisenberg and Shapiro speech protected by the First Amendment; successfully argued that the districting that, under Buckley, such activity could not arrangement had the effect of splitting up be brought within the regulatory reach of the African-American and Latino voters the FEC unless such literature “expressly among majority-white districts – in effect, advocated” the election or defeat of a can- denying equal electoral opportunities to didate for federal office; and, finally, that minority voters. The suit resulted in the the leaflets contained issue-oriented speech restructuring of the Yonkers City Council. and did not involve “express advocacy.” The In one of the first significant cam- NYCLU supports the Coalition Opposed to Censorship of the Arts position of the NYCLU again prevailed. when U.S. Senate proposes to bar National Endowment for the Arts paign finance cases following the Supreme from funding “indecent” art. photo by Tom Tyburski But of all the voting rights cases Court decision in Buckley v. Valeo, the brought by the NYCLU in the 1980s, Federal Election Commission sued a for a reduction in taxes, and also identified there was one of particular significance. controversial politically conservative organ- a local congressman’s voting record on tax This lawsuit charged that the system by ization that had distributed leaflets at a and spending issues. The FEC argued that which members were elected to the city’s suburban train station. The leaflets called because the congressman was running for Board of Estimate violated “one-person

1/81 Dep’t. of Justice pays damages 9/81 NYCLU secures enactment of 1/82 NYCLU lawsuit establishes 3/82 NYCLU wins release of 53 4/82 NYCLU opens chapter office to 5 NYCLU clients subjected to illegal state law that prohibits insurance that immigrants held in Brooklyn Haitian immigrants who, a court finds, in Buffalo. wiretaps and break-ins by the FBI’s companies from refusing to provide Detention Center have been subjected to had been denied pre-hearing release “Squad 47,” which was seeking coverage to applicants with a history of inhumane treatment. “because they were black and/or information on suspected political mental illness. because they were Haitian.” radicals. 30 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

one-vote” principles – in effect, charging neys Richard Emery and Art Eisenberg continued to pursue a broad array of other that the city’s most powerful political insti- argued that under the existing electoral issues. It continued, for example, to engage tution was constituted in a manner that scheme for selecting candidates to the in “impact litigation” with respect to a was inherently undemocratic! board, the votes of certain city residents variety of First Amendment controversies. had greater weight than the votes of oth- And, in this regard, perhaps the most sig- ers. This was so, according to the NYCLU nificant First Amendment case undertaken brief, because each borough’s single repre- by the NYCLU in the 1980s was Pico v. sentative on the board had an equal vote Island Trees School District. even though the population of each bor- The Pico case actually began in ough varied dramatically. 1976, when the Island Trees School Board Consequently, the challenged vot- removed nine books from its high-school ing arrangements gave an advantage to library. The books included Kurt voters in Staten Island – to the disadvan- Vonnegut’s Slaughterhouse Five, Bernard tage of voters in Brooklyn. The case was Malamud’s The Fixer, and Eldridge finally resolved by the United States Cleaver’s Soul on Ice. In removing the Haitian community in New York City protests imprisonment of Supreme Court, which upheld the books, the school board issued a press “boat people” refugees seeking political asylum; NYCLU files writ of habeus corpus. NYCLU position. The ruling resulted in release announcing that the books had a substantial revision of the New York been removed because they were “anti- The Board of Estimate was City Charter and the restructuring of the American, anti-Christian, and anti- responsible for most of the significant city government. Semitic and just plain filthy.” executive and administrative decisions with The Nassau County chapter of the respect to municipal services, housing, NYCLU had long maintained a visible commercial construction and transporta- The Free Flow of Ideas in presence on Long Island as a principled tion. The board was composed of eight Classrooms and Across Borders advocate of civil liberties. And under the officials: the mayor, the comptroller, the superb leadership of its executive director, president of the city council, and the five In addition to its active docket of Barbara Bernstein, the Nassau County borough presidents. NYCLU staff attor- voting rights cases the NYCLU legal staff chapter developed and has maintained an

TIMELINE: 1980s 9/82 In landmark First Amendment 11/82 NYC Transit Authority rejects 7/85 Norman Siegel appointed 12/87 U.S. Supreme Court upholds 11/88 Representing Syracuse and case brought by NYCLU, U.S. Supreme as “controversial” subway ad promoting NYCLU Executive Director. NYCLU: government cannot deny visas Stony Brook college students, NYCLU Court rules that students and parents nuclear disarmament; but reverses to foreign visitors invited to U.S. in prevails in case establishing right of can challenge school board that position when NYCLU brings suit. order to prevent expression or students to vote in communities where removes library books it deems association deemed critical of U.S. they reside. offensive. policies. The 1980s 31 active litigation program. Accordingly, force of a government to censor unpopular when a number of Island Trees High expression and those who seek to express – School students and their parents were or be exposed to – differing perspectives.” seeking to challenge the school board’s The NYCLU brief conceded that decision to remove certain library books, it school boards have broad authority over was Bernstein to whom they turned. the content of curricular materials and per- The NYCLU agreed to challenge haps even over library collections, but the the board’s removal of the library books as NYCLU insisted that a school board can- an act of censorship. A federal district not impose a “pall of orthodoxy” over the court, however, ruled against the NYCLU, classroom. That, according to the NYCLU concluding that school board’s decisions brief, was what the Island Trees School regarding the content of school libraries Board was seeking to do in removing the presented no First Amendment issues nine books. worthy of judicial review. A three-judge The Supreme Court rendered its panel of the United States Court of Barbara Bernstein, director of NYCLU’s Nassau chapter, with plain- decision in June 1982. In reaching its deci- Appeals for the Second Circuit reversed, tiff Steve Pico (right), who challenged a Long Island school board’s sion, the court divided by a 4-4-1 vote. by a 2-1 vote. A motion for a rehearing authority to ban library books deemed offensive. photo by Newsday Four justices agreed with the NYCLU that was then presented for review by all of the issues presented in Pico continued when the school board had engaged in unconsti- active judges on the Court of Appeals. the case was presented to the Supreme tutional censorship by seeking to suppress Five judges ruled in favor of the Court in the early 1980s. In its brief – pre- unpopular and controversial views. Four NYCLU’s position; five judges ruled in pared by Alan Levine and Art Eisenberg – justices agreed with the school board, con- favor of the school board. Thus, by an the NYCLU asserted: “At the bottom the cluding that the board had not violated the even 5-5 vote the court voted not to clash between the school board and the First Amendment. Justice Byron White rehear the case and to affirm the decision students in this case is a classic First rendered the dispositive vote when he con- of the three-judge panel. Amendment confrontation between a cluded that a trial would be necessary The pattern of judicial disagree- transient majority that seeks to deploy the before it could be determined whether the ment in the lower federal courts over the school board violated the First

11/88 NYCLU publishes Tompkins 2/89 Court upholds NYCLU’s claim 3/89 U.S. Supreme Court finds 9/89 NYCLU Associate Director Square Park: The First 100 Days, an that the Board of Education system of electing members to NYC Donna Lieberman launches the investigative report that documents discriminates against women by Board of Estimate violates the Reproductive Rights Project as the legal widespread police abuse at a awarding scholarships based solely on The plaintiffs in Sharif, with NYCLU constitutional principle of “one person, arm of the pro-choice movement in New demonstration in behalf of the S.A.T. scores. attorneys Isabelle Pinzler (second from one vote”; NYCLU prevails after 8 years York State. homeless. left) and Rob Levy. of litigation. 32 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary Amendment and that, therefore, the United States Court of Appeals for the Willowbrook Revisited school board’s motion seeking dismissal of District of Columbia, a divided three- the case should be rejected. But rather judge panel reversed. The panel concluded The NYCLU’s lawyers were back in court than explain at trial why it chose to that the exclusion of individuals based repeatedly in the 1980s seeking to enforce remove the books, the school board upon their ideological views or political the legal protections of the mentally ill that restored the books to the shelves. associations, and not upon a concern had been established in the 1973 During the 1980s the NYCLU was about conduct that the visitors might Willowbrook case. In late 1981 NYCLU also involved in another significant First engage in while in the country, would Staff Attorney Chris Hansen led a team of Amendment controversy in which the constitute an impermissible determination lawyers in advancing a claim that the state Supreme Court divided evenly on the of “guilt by association” – and a violation had failed to comply with key provisions of issues raised. The case challenged a policy of the Congress’s statutory commitment an earlier decree that had imposed staffing of refusing to issue visas to foreign visitors to the “free flow of people and ideas across and programming guidelines and that had who had been invited to the United States national borders.” An equally divided required the state to move more expedi- to speak about public matters but who, the Supreme Court affirmed the decision of tiously in accomplishing the community government feared, might express views the court of appeals. placement of former Willowbrook resi- that were critical of the United States. dents. The federal court judge agreed with Those who had been denied visas under the NYCLU and appointed a special mas- this policy included Thomas Borge, the Criminal Justice Issues ter to monitor the activities of the state and Interior Minister of Nicaragua during the to help achieve compliance with the decree. Sandinista regime; Nino Pasti, a former In other significant litigation member of the Italian Senate and a peace undertaken by the NYCLU during the activist; and Olga Finley and Leonor decade, Staff Attorney Richard Emery Privacy Rodriguez Lezcano, two Cuban women successfully challenged an unreasonable with special expertise on the status of strip-search of a junior high school stu- Dorothy Samuels served as the NYCLU’s women in Cuba. In filing suit on behalf of dent conducted by school officials. Emery executive director for only three years at the organizations that had invited these also successfully secured the release of the beginning of the 1980s. But working foreign visitors, NYCLU Staff Attorney Bobby McLaughlin, who had served six closely with longtime Legislative Director Steve Shapiro argued that the exclusion of and one-half years in prison for a crime he Barbara Shack and with Norma Rollins, foreign visitors on ideological grounds vio- did not commit. McLaughlin was wrongly Samuels was responsible for one of the lated the First Amendment as well as fed- convicted based upon the misidentifica- NYCLU’s most successful initiatives in eral law. tion of a witness who had been coached that decade: the Personal Privacy Project. The federal district court dis- by police officials. The project was born out of a leg- missed the suit. But on appeal to the islative proposal, advocated for by the The 1980s 33

for the first time mandatory standards LaMarche had served effectively as an governing the collection, maintenance and NYCLU spokesperson, and as editor of dissemination of personal information by the organization’s newsletter. He displayed agencies; and it set in place an oversight considerable administrative and organiza- mechanism to insure that agencies meet tional skills as he developed the NYCLU’s these standards. This law became a model upstate chapters. for legislation across the nation. But the mid-1980s witnessed yet another period of transition within the Homelessness and Residential organization. In late 1982 Barbara Shack Displacement resigned from her position as legislative director, and Tom Stoddard was named as Tio’s tenure as executive director her successor. Shack had served as legisla- was brief. Among his principle interests, tive director for seven years. In that capaci- however, were the civil liberties of the ty she built upon the enormous credibility homeless and the problems of residential and skill of her predecessor, Ken Norwick, displacement. He initiated the NYCLU’s establishing the NYCLU as an important involvement with these issues. That and visible lobbyist in Albany. Stoddard involvement became an important focus of continued that tradition of excellence and the NYCLU’s work during the administra- leadership during the three years that he tion of Tio’s successor, Normal Siegel. NYCLU contingent at the Rally for Choice in Washington, D.C., served as the NYCLU’s legislative director. Normal Siegel became the executive March 1989. The Mental Health Law Project director in September 1985; he brought to NYCLU, that would require state agencies also underwent a transition when Chris this position boundless energy and a gen- to prepare detailed descriptions of every Hansen left the NYCLU for a position at uine compassion for the disadvantaged and state data system containing personal the ACLU. Rob Levy succeeded Hansen as dispossessed. In this regard Siegel main- information. The legislature passed the director of the project; Diana Tanaka joined tained an especially strong commitment to bill, and it was enacted into law. After the NYCLU as counsel to the project. racial equality and integration. examining the data collected under the In 1983 Dorothy Samuels stepped Accordingly, upon assuming the new law, the NYCLU drafted and success- down as NYCLU executive director and position of executive director, Siegel began fully pressed for the enactment of another was replaced by Salvador Tio. Shortly to focus on the interaction of race and bill to protect the personal privacy of all thereafter, in 1984, Gara LaMarche, poverty. In particular, Siegel expressed New Yorkers on whom the state keeps Samuels’s assistant executive director, also concern – as had Tio – for the residential records. This landmark statute established resigned. During Samuels’s tenure, displacement of the minority poor and 34 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary upon issues related to homelessness. To Women’s Rights and Criminal Justice and Police that end, Siegel initiated an Urban Rights Reproductive Choice Abuse Project charged with examining issues of gentrification and the impact of displace- Siegel also initiated a Women’s In the early years of his administra- ment upon neighborhoods populated Rights and Reproductive Rights Project. tion Siegel continued to support the voting largely by members of minority groups. He The project, whose first director was rights litigation initiated during Samuels’s brought in Mitch Bernard, an experienced Madeline Kochen, was devoted to securing tenure. He also launched a campaign and skilled litigator, to direct the project. women’s rights to reproductive choice, gen- opposing legislative efforts to reintroduce Within a year the project achieved a der equality and freedom from discrimina- the death penalty in New York. And he notable legal victory in the New York tion. The project expanded significantly and began to focus increasingly upon issues of Court of Appeals that was precipitated by its work became increasingly directed police misconduct. the displacement of residents on the toward issues of reproductive rights when From its inception the NYCLU Lower East Side of Manhattan. Donna Lieberman came on staff as director had been concerned with issues of police Siegel focused, as well, upon other in 1989. In the following decade Lieberman accountability; and had frequently been homelessness issues. He was outspoken in launched many new initiatives. She brought called upon to address allegations involv- condemning the dreadful conditions in in a number of new staff members and ing the abuse of police authority. But in New York City’s homeless shelters. And he engaged the project in a range of important August 1988 these issues became especially initiated the NYCLU’s controversial repre- public policy issues – including confidential charged, when a police “riot” erupted at sentation of Joyce Brown. At issue in the access to the full range of reproductive Tompkins Square Park, in Manhattan’s Joyce Brown controversy was whether a health services and information; publicly East Village. The police action, character- homeless person who was acting bizarrely funded abortions for low-income women; ized by excessive violence and brutality, on the street and who refused to go to a accurate and uncensored HIV/AIDS and came in response to a street demonstration homeless shelter even in desperately cold sex education; minors’ right to confidential- against a new city policy on homeless per- weather could be, nonetheless, involuntari- ity regarding reproductive and related types sons using the park. The NYCLU issued a ly forced into a homeless shelter. The of health care; expansion of the pool of report describing the riot and the abuse of courts concluded that where an individual trained abortion providers; religious exemp- police power. The report also severely criti- was neither mentally ill nor a danger to tions and bias in women’s health care; and cized the mayor and local prosecutors for herself or others, she could not be forced pregnancy discrimination in the workplace failing to punish officers who participated involuntarily into a shelter. and in schools. The project’s Teen Health in and were responsible for the brutality. Initiative, founded in 1997, conducts an The Tompkins Square Park incident also extensive outreach and education program, highlighted the inadequacies and ineffi- including an active peer-education program ciencies of the Civilian Complaint Review on adolescents’ rights. Board. Despite video and photographic The 1980s 35 documentation of widespread police abuse, the Civilian Complaint Review Board dis- ciplined none of the 440 officers involved in the incident. The review board’s inade- quate performance in connection with this incident led Siegel to call for a complete restructuring of the CCRB. This issue would become a hallmark of Siegel’s tenure as executive director in the 1990s.

The NYCLU documented widespread abuse by police in suppressing an August 1988 demonstration on behalf of the homeless at Tompkins Square Park. 36 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary The 1990s C ONTINUED VIGILANCE 38 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

HE NYCLU’S WORK IN appropriate use of police power was a sub- of police misconduct. Of six police officers the 1990s demonstrates the organi- ject of fierce debate in New York City and indicted and prosecuted, not one was con- T zation’s constancy in the fight for in urban centers nationwide. The debate victed. Consequently, the NYCLU under- civil liberties. Just as in the 1950s, the about policing in New York City in the took its own investigation and published NYCLU would again in the 1990s be 1990s actually began in August 1988, its findings in a report that became the required to advocate that civilians must when police officers responded to a civilian impetus for a campaign to create a civilian have a greater role in the oversight of protest against the eviction of homeless review board independent of the police police practices. Just as in the 1950s, persons from Tompkins Square Park. The department. NYCLU lawyers were required in the infamous police action, captured on video- NYCLU Executive Director 1990s to appear in court at administrative tape by local residents, involved numerous George Rundquist had first called for hearings and before community boards random police assaults on scores of inno- civilian oversight of policing in the 1950s. and state legislative committees, seeking cent bystanders, fifty-two of whom Now, Executive Director Norman Siegel to secure the right to reproductive choice required medical attention. Mayor Edward renewed the call for reform. He and staff – and access to information that makes I. Koch and Police Commissioner members reached out to legislators, civil the “choice” meaningful. And just as in Benjamin Ward initially defended the rights advocates, and to the city’s commu- the 1950s, the NYCLU would be called police. But when shown videotapes of nity boards, building support for an upon to assert basic principles respecting what looked to be a police rampage, they amendment to the city charter that would the First Amendment in response to a too decried the police conduct and prom- create a truly independent CCRB, staffed New York City mayor who seemed all too ised an investigation entirely by civilians. ready to ignore and to defy First Unfortunately, the various investi- The campaign to create an inde- Amendment precedent. gations of the Tompkins Square Park inci- pendent CCRB reached a critical turning dent followed form. Of 143 complaints point in the fall of 1992, with the intro- filed with the Civilian Complaint Review duction of the proposed charter amend- Creating a Real Civilian Board – a unit of the police department – ment addressing this issue. A hearing on Complaint Review Board all but a handful were ruled unsubstantiat- the proposal was scheduled to take place ed; that is, the investigation produced before the city council on September 16. Throughout the decade of the 1990s the evidence insufficient to support a finding On that day the proponents of the amend-

TIMELINE: 1990s 9/90 With release of its report independent review board to 11/90 In the first anti-gay 12/90 NYCLU defends right 4/91 NYCLU challenges exclu- Police Abuse: The Need for monitor NYPD. violence case brought against of Daily News workers to picket sion of abortion services from Civilian Investigation and employees of U.S. government, outside newspaper’s offices to prenatal care program; NY Court Oversight, the NYCLU launches NYCLU and ACLU file suit against protest hiring of nonunion of Appeals opinion recognizes for campaign to establish DEA agents for beating two replacement workers. first time right to reproductive gay men. choice under state constitution. The 1990s 39

traffic and taunted drivers as well as pedes- trians. A contingent stormed the Brooklyn Bridge, blocking access to vehicles and pedestrians. The police misconduct offered further evidence of the need for civilians to play a role in holding police accountable for allegations of misconduct. The charter amendment passed 41-9, and the all-civil- ian review board came into existence in July of 1993. But in January 1994 Rudolph Giuliani was sworn in as mayor of New York City. Giuliani rejected, as a matter of principle, the proposition that civilians should have an oversight role regarding police practices. And he instituted a “zero- tolerance” approach to fighting crime, including even minor violations. The number of police-misconduct complaints and excessive-force lawsuits jumped dramatically. Reports of police Margaret Fung, Ben Thomas, Norman Siegel, Sung Lee, and Cho Cho Lassey at a City Hall rally calling for an independent Civilian brutality and widespread abuse of stop- Complaint Review Board. and-frisk authority became all too com- ment were six votes shy of the twenty-six ized a rally at city hall in opposition to the mon. The mayor was unrelenting and vote majority required for enactment. But bill. The “rally” rapidly degenerated into unapologetic. His budget left the CCRB on the day of city council hearings the what was widely regarded as a riot. Five seriously underfunded and understaffed. Patrolmen’s Benevolent Association organ- thousand unruly police officers stopped The NYCLU protested: Why was police

7/92 Court order in NYCLU 10/92 Federal court finds for 1/93 NYCLU challenges Board 1/93 Four decades of NYCLU 3/93 Court decree requires class action on behalf of psychi- NYCLU and Colgate University’s of Ed. requirement that public advocacy culminates in Mayor auditing of NYCLU’s Willowbrook atric patients requires that upon women’s hockey team: university’s schools’ HIV/AIDS education must David Dinkins signing city charter clients to ensure they receive admission to emergency rooms, failure to give the team varsity focus on abstinence; amendment that creates adequate care in non-institutional patients must be provided status violates antidiscrimination commissioner of education independent Civilian Complaint settings. appropriate care and treatment. regulations. overrules Board of Ed. Review Board to monitor police. 40 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

misconduct the one infraction apparently to investigate and prosecute charges of exempted from the mayor’s zero-tolerance police corruption and brutality. standard? The NYCLU decided to moni- Despite the Louima incident, tor the monitor, each year publishing a Mayor Giuliani remained steadfast. He report that analyzed the CCRB’s perform- asserted that his revitalization of the police ance and documented the failure of the department and his “zero tolerance” poli- Giuliani administration to implement the cies accounted for a dramatic drop in the CCRB as intended by the city council. crime rate. He advanced this assertion But calls for greater accountability repeatedly, ignoring the fact that crime by the police department were ignored reduction is generally regarded as a com- until the notorious police torture of Abner plex dynamic influenced by a variety of Louima at the 70th Precinct in Brooklyn, Demonstrators gather to protest surveillance cameras in demographic and socioeconomic factors. in August 1997. The Louima incident Washington Square Park; NYCLU has monitored proliferation of The mayor also advanced this claim in the such cameras citywide. photo by Tom Tyburski became emblematic of a police department face of widely published reports that that appeared to operate without restraint was not committed to real reform. He dis- demonstrated crime rates had dropped sig- or accountability. Now Mayor Giuliani, in missed the modest proposals in the report. nificantly throughout the nation during a concession to his critics, created a civilian Siegel, Fung and Meyers issued a the same period. task force. He charged its members, a dissenting minority report that made But the mayor could not avoid broadly representative group of New twenty-nine detailed recommendations for entirely concerns that his policies had led Yorkers, with examining police-community substantive reform of police department to grievous police errors, particularly in the relations and proposing ways to improve policies and practices – including a com- treatment of individuals within minority those relations. NYCLU Executive prehensive review of the police academy communities. Two police shootings Director Norman Siegel and board mem- training curriculum and an affirmative- brought these concerns into sharp focus. In bers Margaret Fung and Michael Meyers action program for hiring and promotion. February 1999 four members of the police agreed to serve on the mayor’s task force. The report also proposed a ten-point plan department’s Street Crimes Unit shot and But upon completion of the task force for reinvigorating the CCRB, and called killed Amadou Diallo in a hail of forty- report, it became apparent that the mayor for the appointment of a special prosecutor one bullets. About one year later Patrick

TIMELINE: 1990s 12/93 NYCLU joins NYC Board 4/93 Federal court finds system 10/94 NYCLU convinces 4/95 Governor George Pataki 11/96 When city employee is of Education to defeat legal for electing Nassau County Board Orange County middle school to signs bill reinstating capital fired for talking to the press, challenge to condom distribution of Supervisors violates “one-per- reverse decision banning punishment in the penal code; NYCLU successfully argues in as component of high-school son one-vote” principle, upholding educational film that mentions the NYCLU launches statewide federal court that the city’s gag HIV/AIDS education program. NYCLU’s challenge to county’s homosexuality. campaign to have the law rule is overly restrictive and electoral scheme. repealed. unconstitutional. The 1990s 41

by remaining silent when the NYCLU the mayor’s intolerance of dissent and crit- published reports that documented the icism, and his willingness to suppress police commissioner’s rejection, without political and cultural expression that he reason or justification, of substantiated found offensive. Between 1994 and the police-misconduct complaints that had end of the decade the NYCLU went to been forwarded to the commissioner for court in thirty-one separate cases (ten of disciplinary action. those cases involved the filing of friend-of- As relentless as was the mayor in the court briefs) to defend the exercise of defending aggressive police practices, the First Amendment rights of association, NYCLU was no less vigilant in calling for speech and other forms of expression in meaningful accountability when the police the face of efforts by the Giuliani admi- abused their authority. Finally, as the nistration to curtail free expression. mayor’s second term drew to a close, the Mayor Giuliani’s narrow vision of CCRB began to receive a reasonably ade- the First Amendment was manifest. An quate budget. And Mayor Giuliani even employee of the city’s child welfare agency Since the legislature reinstated the death penalty in 1995, the recommended transferring authority to was fired for failing to obtain the city’s NYCLU has challenged its constitutionality in court, and cam- prosecute police misconduct complaints approval before speaking to the press paigned for its repeal by the legislature. photo by Tom Tyburski from the police department to the CCRB – about non-confidential agency practices. Dorismond lost his life at the hands of a proposal long advocated by the NYCLU. Taxi drivers who sought to protest new undercover police in a misguided buy-and- rules applied to “yellow cabs” were denied bust operation. the right to conduct a procession of taxi- These episodes created a wide- The Mayor and the First cabs across the Fifty-Ninth Street Bridge spread outcry over the unchecked exercise Amendment – unless the number of cabs was limited to of police power. Still, Mayor Giuliani was twenty, thereby permitting the mayor to unmoved. He continued to undermine the Mayor Giuliani’s “zero tolerance” approach discount the strength of support for the CCRB by allocating a budget that was to policing extended beyond enforcement protests. Local 100 of the stagehand’s insufficient to the agency’s mandate; and of criminal laws. It also seemed to describe union was prohibited from picketing the

4/97 NYCLU brings age 9/97 When Mayor Giuliani 4/98 NYCLU publishes 12/98 NYCLU undertakes 11/99 Mayor Giuliani seeks to discrimination lawsuit on behalf of directs MTA to remove from city Deflecting Blame, criticizing the major education reform litigation, censor “offensive” exhibit at 81 candidates denied positions buses an ad critical of him, the Giuliani administration and the seeking to enforce state Brooklyn Museum of Art by with the NYPD because they are NYCLU joins lawsuit; court NYPD for failing to reform police constitutional guarantees to a withholding funding; NYCLU, as over the age of 35. finds the mayor’s censorship practices in the wake of the police sound education, as well as amicus, participates in successful unconstitutional. torture of Abner Loiuma. federal antidiscrimination law. First Amendment challenge. 42 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

Metropolitan Opera over its labor prac- before it had been ruled upon by a judge. tices at a location in reasonable proximity Following the announcement of to the opera. the twenty-five-person limit on gatherings Police officers who spoke publicly at the City Hall steps, the mayor attempt- about NYPD policies and practices were ed to bar all such protest activity, citing silenced. Following the police shooting of security concerns; but he then relented, Amadou Diallo, Police Officer Yvette permitting such events that he deemed to Walton spoke at a city council hearing be of “extraordinary public interest.” When about “racial profiling” practices employed the mayor allowed a rally of many thou- by the Street Crimes Unit. The depart- sands at City Hall to celebrate the New ment dismissed her. When members of the York Yankees’ World Series championship, Latino Officers Association publicly the NYCLU went back to court on behalf charged the police department with dis- of protestors who sought to gather at the criminatory employment practices, the steps in much smaller numbers. Again, the department withheld recognition of the city maneuvered, issuing a new policy that LOA as a fraternal organization and permitted gatherings of fifty persons if denied to the LOA the benefits necessary sponsored by a government official. When to its operation. The NYCLU challenged the NYCLU again filed suit arguing that each of these attempts to restrict or punish the First Amendment simply would not NYCLU postcard protesting Mayor Giuliani’s attempt to censor free expression. The litigation was carried “offensive” artwork exhibited at the Brooklyn Museum of Art. permit the mayor to privilege certain types forward superbly by Staff Attorney Chris design by Sara Glover of expression, the city dropped the require- Dunn. And in each of these cases the Housing Works, a provider of services to ment that a government official must NYCLU prevailed. persons with AIDS, sought a permit for a sponsor such events. By July of 1998 the contest over news conference and demonstration In January 2000 the city issued yet the First Amendment had reached the protesting proposed budget cuts. The another set of standards dictating the front door of City Hall. And the legal Giuliani administration had issued a rule numbers of persons that would be tolerat- question became, Who has the right to that not more than twenty-five people ed in a gathering at City Hall. The new gather on the City Hall steps? During the could gather on the City Hall steps for rule would permit up to 50 persons to next two years lawyers for the NYCLU such purposes. Housing Works was denied assemble on the City Hall steps, and up to and the city repeatedly appeared in federal a permit. The litigation became something 150 in the City Hall plaza. Once again, court arguing the constitutionality of the of a cat-and-mouse game, as the mayor the NYCLU went to court, arguing that it mayor’s restrictions on public protest at repeatedly amended his executive order was not the mayor’s prerogative to decide City Hall. The issue was joined when once it had been challenged in court but whose voice might be heard on City Hall The 1990s 43 grounds. United States District Court tions at publicly funded hospitals; and in Supreme Court found in favor of the Judge Harold Baer rejected this latest another, the Court permitted states to con- NYCLU, holding that the state’s Medicaid scheme, finding that the Giuliani adminis- dition the right to obtain an abortion upon scheme violated a pregnant woman’s right tration had “two standards governing the a pregnant woman’s receiving a lecture to due process and equal protection under right to assemble, one for demonstrators against having the abortion and then the State Constitution. On appeal, the and another for city-sponsored speech.” delaying the procedure for twenty-four This double standard, he ruled, was hours after the lecture. unconstitutional. Donna Lieberman, director of the In a head-on confrontation between NYCLU’s Reproductive Rights Project, mayoral authority and constitutional prin- wrote that the “court’s abdication of its ciple, the Constitution had prevailed. And role” as a protector of reproductive rights it was not only the steps of City Hall that left each state to make a choice: “to rob had been liberated. As of mid-year 2000, women of control over their own bodies or the NYCLU had been victorious, in whole to assume responsibility as a primary or in part, in twenty-four of the thirty-one defender of reproductive choice.” As did First Amendment lawsuits brought against many states, New York responded to the the city, with three not then decided. In Supreme Court’s rulings by placing further seeking to tailor the First Amendment to constraints upon access to reproductive For his efforts in upholding the right to reproductive choice, fit his political agenda, Mayor Giuliani was care. In 1989 the New York State especially for low-income women, Dr. Irving Rust (pictured with his wife and son) was awarded the 1992 Lasker Award for responsible – albeit unintentionally – for Legislature passed a bill excluding abortion Civil Liberties. photo by Tom Tyburski establishing a new line of case law that services from a newly expanded Prenatal reinforced the rights of speech, expression Care Assistance Program (PCAP) that Appellate Division affirmed the lower and association. offered medical care to pregnant women court, ruling that the right to reproductive whose income exceeded the federal poverty choice “is an integral part of the right to level. When individuals were denied bene- privacy and bodily autonomy.” In 1994 the Upholding Reproductive fits for medically necessary abortions, the Court of Appeals, the state’s highest court, Freedoms NYCLU went to court on their behalf in affirmed that reproductive choice is a fun- the matter of Hope v. Perales. damental right recognized under the New At the end of the 1980s the United States Prior to the filing of this lawsuit, York State Constitution, but found no Supreme Court decided several significant New York courts had never directly constitutional violation in the exclusion of cases that limited a woman’s right to addressed the scope of a woman’s right to abortion from PCAP. reproductive choice. In one of these cases an abortion under the state constitution. In addition to the Hope litigation, the Court permitted states to deny abor- But in April 1991 the New York State other controversies surfaced. In May 1992 44 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

the New York City Board of Education public-health measures that included “safe established itself as the leading champion passed a resolution requiring that AIDS sex information and services.” In of reproductive freedoms in New York for prevention programs give greater attention December 1993 the court found that the the populations most at risk: the young, to abstinence from sex than to other meth- Constitution supported condom availabili- the poor, and women of color. The pro- ods of prevention. The resolution required ty so long as there was an “opt-out” provi- ject’s Teen Health Initiative became a participants in public-school AIDS pro- sion that permitted parents to keep their national model for integrating litigation grams to take a “loyalty oath,” pledging children out of the program. and legislative advocacy with an ambitious adherence to the new rules. These rules, in peer-education program. essence, limited the discussions that teach- ers and healthcare professionals could have with students about reproductive choice. Protecting and Broadening On behalf of various students, parents, Rights and Liberties teachers, and physicians the NYCLU claimed that the resolution confined teach- In 1992 Staff Attorney Rob Levy, building ers in an “instructional straightjacket” in upon the Willowbrook precedent, under- violation of constitutional principles of took a class-action lawsuit on behalf of academic freedom. The NYCLU presented persons who were being detained for long this claim to the state’s commissioner of The NYCLU joins with community members in opposing the periods of time in the waiting areas of psy- education, who agreed with the NYCLU. NYPD’s practice of maintaining school yearbook photos for use in criminal investigations. chiatric emergency rooms. The case led to When the New York City school an order requiring that upon admitting system faced a lawsuit seeking to ban the In 1995 the New York City Parks these patients, city hospitals must provide distribution of condoms in health resource Department stopped young people them with a bed in an environment appro- rooms as part of HIV/AIDS education involved with a church-sponsored priate for their care and treatment. In the programs, the NYCLU again intervened. HIV/AIDS education program from dis- Willowbrook case, the NYCLU had estab- Parents of a number of school children had tributing condoms at a high-school sport- lished the rights of the developmentally challenged the condom availability ing event held in St. Mary’s Park, in the disabled and of institutionalized patients. program on the ground that it violated Bronx. The students turned to the Throughout the 1990s Staff Attorney parental rights and religious autonomy. NYCLU for legal representation. Once Beth Haroules conscientiously monitored The NYCLU represented students, again, the courts vindicated the constitu- and enforced a series of consent decrees parents, teachers and healthcare providers, tional protections afforded speech and designed to protect the rights of the arguing that the religious-freedom argu- educational activity related to safe-sex Willowbrook class members. ment was a smokescreen – an attempt to practices. Through its work in the 1990s The 1990s also saw the NYCLU impose religious values by opposing the NYCLU’s Reproductive Rights Project address issues of discrimination against The 1990s 45 gays and lesbians. In conjunction with the state constitution, which has been inter- ACLU’s Lesbian and Gay Rights Project, preted as guaranteeing all children “the the NYCLU brought a federal lawsuit opportunity” to receive “a sound basic against agents of the federal Drug education.” It asserts that children who by Enforcement Agency who had viciously virtue of economic, racial or residential attacked and beat two gay men. The suit circumstance are assigned to these failing had two purposes: to vindicate the rights schools are being denied their constitu- of these victims of hate-motivated crime; tionally guaranteed opportunity to receive and to call attention to the rising incidence a sound basic education. of violence against gays and lesbians in The second suit rested upon regu- New York City and nationwide. The litiga- lations adopted under Title VI of the 1964 tion was complemented by a long-standing Civil Rights Act. Under these regulations effort to enact bias-crime legislation in recipients of federal funds are prohibited New York State; and after nearly twenty- from pursuing administrative practices that five years of lobbying by the NYCLU and have a racially disparate impact. In the other advocates, the legislation was finally Title VI suit the NYCLU contends that passed in the year 2000. inadequate administrative practices under- The NYCLU was also compelled taken by the State Department of to give increasing attention to the issue of NYCLU honors retired Supreme Court Justice Harry Blackmun and Education have had a racially disparate capital punishment during the 1990s. former Governor Mario Cuomo for upholding civil liberties in their impact upon children attending schools respective positions on the bench and in the state house. The two Throughout his twelve-year tenure were recipients of the 1995 Lasker Award. photo by Tom Tyburski where the number of minority students Governor Mario Cuomo had repeatedly exceeds 80 percent of the total student vetoed the legislature’s efforts to reinstate population. until the death penalty is either repealed or the death penalty in New York. But shortly The NYCLU played an amicus role declared unconstitutional. after his election in 1994, Governor in two other suits seeking to advance equal As the NYCLU’s fifth decade George Pataki acted on a campaign pledge educational opportunity. One suit was drew to a close, the organization began to to restore the capital punishment provision initiated following an examination of the implement a major litigation program to New York’s penal law. The NYCLU was high poverty rate among the minority directed at educational reform. The litiga- among the organizers of a statewide cam- population in the Rochester City school tion involved four major lawsuits. One paign to repeal the new law; and NYCLU district. The NYCLU’s brief in support of suit focused upon schools whose condi- lawyers also filed a number of amicus briefs the Rochester plaintiffs argued that the tions and academic performance are so challenging the constitutionality of the racial and economic isolation of the chil- abysmal that these schools must be death penalty. The campaign will not end dren within the Rochester school district regarded as “failing.” The suit looks to the 46 NEW YORK CIVIL LIBERTIES UNION 50th Anniversary

must be ended if these children are to be can be conveyed here. provided with the opportunity for a sound But as successful as the organiza- basic education. tion has been, there is yet more to do. The second suit was filed on Indeed, the enduring importance of its behalf of children in New York City by work can be seen in the ongoing need to the Coalition for Fiscal Equity. The suit protect freedom of expression, equal edu- asserted that New York State’s formula for cational opportunity, rights of reproductive funding public education disadvantaged and sexual freedom, and in the need to children in New York City and resulted combat the persistent vestiges of racism in a failure to provide a sound basic and gender discrimination. Moreover, the education to children attending the city’s still-new twenty first century has presented schools. The NYCLU supported this suit challenges more daunting than any we by filing amicus briefs in the New York have seen since the early days of the Court of Appeals. NYCLU’s existence. These challenges will require a vigorous and effective response – the type of response that the NYCLU has Looking Forward advanced over the past fifty years and will continue to advance in the coming years Thus, a retrospective view of the and decades. NYCLU through its fifty-year history presents a proud record of significant accomplishment. It is a record that speaks to the organization’s unflagging adherence to principle, to the enduring importance of its mission, and to the devotion of its staff and board members. The efforts of the NYCLU’s staff have already been described in this brief history; the organi- zation’s board members deserve equal recognition for their extraordinary efforts in advancing the NYCLU’s work, for a commitment and dedication that deserve far more gratitude and appreciation than 1980s Dorothy Samuels, Executive Director Salvador Tio, Executive Director Barbara Shack, Acting Executive Director Norma Rollins, Acting Executive Director Norman Siegel, Executive Director Associate Directors: Gara LaMarche, Norma Rollins, Donna Lieberman Arthur Eisenberg, Legal Director Staff Counsel: Arthur Eisenberg, Richard Emery, Steven Shapiro, Chris Hansen Mental Health Law Project: Robert Levy, Director Diana Tanaka, Counsel Privacy Project: Norma Rollins, Director Reproductive Rights Project, Women’s Rights Program: Madeleine Kochen, Director Suffolk County Police Practices Project: Gilbert Holmes, Director Urban Rights Project: Mitchell Bernard, Counsel Legislative Department: Directors: Barbara Shack, Thomas Stoddard, Kofi Diallo Scott, Alice Green Assistant Directors: Alice Green, Jane Wylen, Pam Katz Counsel: Thomas Stoddard, Madeliene Kochen, Sara Birn Development Department: Gloria Benford, Director Editors: Wendy Chapman, Tracy Huling, John Rosenthal Chapter Directors: Barbara Bernstein, Nassau County Grace Crawley, Suffolk County Jane Wylen, Western Region Marcy Waldauer, Syracuse Kay Wallace, Rochester 1990s Norman Siegel, Executive Director Donna Lieberman, Associate Director Bill Batson, Assistant Director Arthur Eisenberg, Legal Director Christopher Dunn, Acting Legal Director Staff Counsel: Robert Levy, Earl Ward, Beth Haroules, Christopher Dunn Campaign to Stop Police Brutality: Christopher Johnson, Coordinator Police Accountability Project: Pierre Louis, Director Reproductive Rights Project: Donna Lieberman, Director Counsel: Catherine Weiss, Deborah Goldberg, Yueh-ru Chu, Miriam Spiro Diana Correa, Coordinator Teen Health Initiative: Jessica Feierman, Founder Directors: Dimple Abichandani, Katy Yanda Legislative Department: Directors: Alice Green, Laura Murray, Robert Perry, Deborah Small, Edward Borges Development Department: Directors: Lois Henry, Sara Roberts, Clyde Jones, Sandra Zickefoose John Rosenthal, Editor Chapter Directors: Capitol Region: Pam Katz, Bob Cohen, Louise Roback Nassau County: Barbara Bernstein Suffolk County: Judith Weinstock, Vera Parisi, Don Harkness, Bernadette Budd Western Region: Karen Welch, Dianne Irwin, Jeanne- Noel Mahoney Central New York: Marcy Waldauer, Merrilee Witherell, Warren Nollen, Bernie Gewanter, Laurel Saiz Rochester: Kay Wallace, Judith Knight, Paula Y. Clark Westchester: Lynn Dervaters, Phyllis Rodriquez 2000 - present Norman Siegel, Executive Director Donna Lieberman, Executive Director Sharon Barnett, Assistant Director Arthur Eisenberg, Legal Director Christopher Dunn, Associate Legal Director Staff Counsel: Beth Haroules, Christopher Dunn Campaign to Stop Police Brutality: Christopher Johnson, Coordinator Reproductive Rights Project: Rebekah Diller, Director Counsel: Rebekah Diller, Jaemin Kim, Anna Schissel Teen Health Initiative: Directors: Katy Yanda, Dhevi Kumar Legislative Department: Marina Sheriff, Director Robert Perry, Counsel Christian Smith-Socaris, Legislative Associate Development Department: Directors: Denise Clegg, Lloyd Martinez John Rosenthal, Editor Chapter Directors: Capitol Region: Louise Roback Nassau County: Barbara Bernstein Suffolk County: Bernadette Budd, Nancy Webber Western Region: Jeanne-Noel Mahoney Central New York: Catherine Cattarello, Bill Raleigh Genessee Valley: Paula Y. Clark Westchester: Linda Berns