vol. 54, no. 8
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aclu news
NON-PROFIT
ORGANIZATION
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PAID
PERMIT NO. 4424
SAN FRANCISCO, CA
Volume LIV
December 1990
No. 8
Rights Day Celebration Draws
Record Crowd
ver 1100 ACLU support-
ers rose to their feet and
roared with approval as
Aileen Hernandez, former
national President of NOW,
announced, "I am proud to present
`revolutionary petunias' Del
Martin and Phyllis Lyon with the
Earl Warren Civil Liberties
" Award for doing things no one
ever thought of doing!"
Martin and Lyon, founders of
the Daughters of Bilitis, were hon-
ored with the ACLU-NC's highest
award for their pioneering work
for lesbian and gay rights over the
past four decades. The award was
presented at the ACLU-NC's 18th
annual Bill of Rights Day
Celebration on December 9 at the
St. Francis Hotel in San
Francisco.
The event, emceed by ACLU-
NC . Board Char .H. Lee
Halterman, drew a standing room
only crowd for an exciting eve-
ning of honors, speeches, video,
humor and music. The
Celebration was organized by
Aileen Hernandez (1.) presented the Karl Warren
ward to Del Martin (c.) and Phyllis Lyon
tion effort which keeps the
press and public informed
about crucial civil liberties
issues, and. about our very
effective legislative advocacy
in the state Capitol."
Donna Hitchens, recently
elected to the San Francisco
Superior Court and a former
ACLU-NC attomey, presented
the Lola Hanzel Courageous
Advocacy Award to ACLU-NC
activist Doug Warner, who
died of AIDS in February.
Praising Doug's work as a
Complaint Desk counselor, a
leader of the Gay Rights
Chapter, and an all-round civil
liberties activist, . Hitchens
noted, "Doug did a lifetime of
work in a very short time. He
was a very ambitious person -
he wanted a very different
world than the one he saw, and
he challenged every one of us
all the time," she said.
Doug's award was accepted
by his mother Shirley Warner
who traveled to San Francisco
Field Representative Marcia
Gallo, assisted by Michele Hurtado and.
Craig Harris.
After an opening spoof by Ian Shoales
of Duck's Breath Mystery Theatre who
called for a "Bill of Rights Lite" for. the
90s, ACLU-NC_ Executive Director
Dorothy Ehrlich gave an overview of the
work of the ACLU-NC for the past year.
Ehrlich's presentation was illustrated by a
lively video, produced by Insight
Productions, of TV news clips of ACLU-
NC staff members speaking about issues
ranging from civil rights, to abortion, to
domestic partnerships.
Noting that the legacy of the Reagan
and Deukmejian eras has created a serious
New Rules Limit
Police Spying
n November 14, the San
Francisco Police Commission
unanimously approved a 51-page
packet of policies aimed at curbing intelli-
gence abuses by the San Francisco Police
Department. "These highly-specific provi-
sions will put unprecedented restrictions
on the SFPD's authority to collect intelli-
gence on political activities," said John
Crew, Director of the ACLU-NC Police
Practices Project.
The new policy is the result of six
months of extensive negotiations by a spe-
cial committee appointed by the Police
Commission that included, among others,
representatives from the ACLU-NC, the
`Human Rights Commission, CUAV
(Community United Against Violence),
the Alliance to Stop Abusive Police
(ASAP) and the San Francisco Police
Department. The committee was chaired
by newly-appointed Chief of Police Willis
Casey.
`While these are not perfect policies,
we know of no intelligence policy from
any other major U.S. city that provides
stronger or more comprehensive protec-
tions for First Amendment freedoms,"
Crew said.
Among its key provisions, the policy
will:
- Ban all intelligence gathering aimed
at lawful activity or non-violent civil diso-
bedience;
- Mandate much greater and more
timely public access to SFPD files and
records;
- Require detailed public reports from
the Police Commission annually on the
SFPD's intelligence activities;
- Restrict when, what, and who may
be videotaped at protests;
- Provide for mandatory, surprise
audits of SFPD files;
- Specifically narrow such intelli-
gence activities to include only situations
involving unlawful acts which can reason-
ably be expected to result in death, serious
bodily injury or felony property damage;
- Predicate all such intelligence gath-
ering on the submission of detailed, writ-
ten documentation and prior written
approvals;
- Allow the use of an undercover
technique in these circumstances only as a
last resort, upon a special documented
showing of its necessity and with exhaus-
tive restrictions on its scope and duration.
According to Crew, "Prior to this new
policy, there were no meaningful policy
restrictions on the SFPD's intelligence
practices. The policies will not alone stop
all intelligence abuses. But at least the
extensive provisions will make it much
`more difficult for the department to con-
tinue or to hide these activities in the
- future," he added.
erosion of civil liberties, Ehrlich said, "We
have launched a course of action in which
the ACLU of Northern California does not
stop at legal advocacy in the courtroom.
Rather, our organization as a whole - the
Foundation's legal and public education
programs along with the affiliate's field
and legislative programs - now work in
coordinated, innovative and broad-ranging
ways to repel new dangers to civil liber-
ties."
Ehrlich also unveiled the new ACLU-
NC. Portfolio, prepared by Public
Information Director Elaine Elinson,
which includes Highlights of the Legal
Program (see insert this issue), a tribute
to the supporters of the ACLU-NC, and
other information about the organization.
"In the next few months," Ehrlich said,
"we will publish reports about our efforts
to mobilize the 30,000 ACLU members in
northern California for action on important
issues, about our extensive public educa-
Shirley Warner (.) and Donna Hitchens.
from their home in Riverhead,
New York for the occasion. Mrs. Warner
brought with her a quilt designed by
Doug's family and put together by mem-
bers of the First Congregational Church
Women's Fellowship in Riverhead. The
quilt, which hung over the speakers' dais,
depicted the many, varied elements of
Doug's life from his love of raspberries
and the Long Island Sound to his work
with the ACLU-NC and Swords to
Plowshares.
A video clip of "Last Call at Maud's",
produced by Paris Poirier, introduced
Lyon and Martin to the audience as they
spoke in a filmed interview about the early
days of the lesbian movement. They spoke
about a New Year's Eve fundraiser for the
Council on Religion and. the Homosexual
at California Hall in San Francisco in 1964
which was raided by the police. "That was
our Stonewall," said Martin, adding that
the ACLU-NC defended those arrested.
Continued on page 3
aclu news
dec 1990
Court Bars Random Drug Tests
of Oil Workers
n November 29, Contra Costa
County Superior Court Judge
Peter Spinetti approved a ground
breaking settlement prohibiting random,
company-wide drug testing of oil refinery
workers.
The case, Price v. Pacific Refinery,
was originally filed in 1986 as a class
action on behalf of workers at the Hercules
oil refinery by attorneys Ed Chen of the
American Civil Liberties
Employment Law Center, and Brad
Seligman of Saperstein, Seligman, Mayeda
Larkin.
Union of -
Northern California, John True of the.
"The mandatory company-wide drug
testing policy which was instituted by the
company in 1986 was a violation of the
workers' privacy rights guaranteed by the
California Constitution," said Chen.
At the time of filing, the superior court
immediately issued a
liminary injunction) barring all testing
while the case proceeded.
The company appealed the ruling
granting the preliminary injunction, but the
Court of Appeal denied the company's
request for an appellate review.
However, in July 1987 the superior
: Temporary .
Restraining Order (later converted to a pre-
court accepted a modified version of the
company's plan which allowed that
employees who work near potentially dan-
gerous equipment or materials be subject
to drug tests if there is a reasonable suspi-
cion by a supervisor of drug use and if the
worker fails a "fitness for duty" examina-
tion administered by a licensed health pro-
fessional. Workers involved in accidents
were also subject to drug testing. The
modified plan allowed employees who
were required to provide a urine sample be
provided with a portion for their own test-
ing, an important procedural safeguard.
Random, blanket testing was still barred.
Since then, however, no drug testing of
any kind has taken place.
The settlement incorporates the provi-
sions in the modified plan. In addition, it
provides for almost $200,000 in damages
to members of the class and for attorneys'
tees
Victory for privacy
"This settlement preserves the constitu-
tional privacy of a large number of work-
ers about whom there was never any
suspicion of wrongdoing," said True. "It is
a real tribute to a few courageous employ-
ees who stood up for their rights."
The settlement, which was agreed upon
by the workers and the company, was pre-
liminarily approved by Contra Costa
County Superior Court at the hearing on
November 29.
Also joining in the settlement are
Laboratory Services, Inc., the lab which
conducted the urinalysis, and Sunbelt
Searching Services, which provided the
technicians to collect the urine samples.
he ACLU-NC joined with over
: thirty tenant, community and legal
organizations in sharply condemn-
_ ing the recently unveiled proposals for ten-
ant residency in San Francisco's public
housing developments.
"The new selection criteria are unfair
and arbitrary," said ACLU-NC Executive
Director Dorothy Ehrlich at a public meet-
ing of the Housing Authority's Tenant
Relations Committee on November 1.
"They punish large numbers of the very
people that they are intended to protect,
they establish vague and sweeping stan-
dards for ineligibility, and they impose a
heavy burden on all applicants to prove
their eligibility."
The ACLU-NC submitted detailed,
written testimony on November 16 as part
of consortium of legal groups which
includes the San Francisco Lawyers
Committee for Urban Affairs, San
Francisco Neighborhood Legal Assistance
Foundation, the National Lawyers Guild,
Legal Services for Prisoners with
Children, and the National Center for
Youth Law.
"Perhaps the most disturbing theme of
the admissions policy is the presumption
that applicants for public housing are gen-
erally unfit, and therefore must bear the
burden of convincing authorities that they
are deserving of public housing," said
Marcia Rosen of the San Francisco
Lawyers Committee for Urban Affairs.
"While we agree that the Housing
Authority must take immediate steps to
protect the safety, security and well-being
of tenants, instituting a more restrictive
policy, by itself, will have little impact on
improving the tenants' quality of life,"
Rosen added.
Additional testimony was provided by
tenants' and community organizations
including the San Francisco Public
Housing Tenants Association, Coalition
on Homelessness, Income Rights Project,
Tenderloin Housing Project, and the
Coalition for an African American
Community Agenda.
"Despite San Francisco's increasing
number of homeless families, youth and
children, San Francisco Public Housing
Authority Executive Director David
Gilmore has proposed yet another obstacle
for the poorest and most vulnerable seg-
ments of the city's population with his
November 1 proposal to restructure. the
admissions criteria for tenant residency,"
said community advocate Sharen Hewitt.
The groups charge that if these proposals
are accepted, they will be used not only to
deny housing to applicants and render
hundreds of families on the waiting list
ineligible, but also potentially affect the
rights of current tenants.
Among the groups' criticisms are:
cent Rejection of an entire family because
one family member has an arrest record
Chilling of tenants' speech
ACLUN_1981.MODS ACLUN_1981.batch ACLUN_1982 ACLUN_1982.MODS ACLUN_1982.batch ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1984.batch ACLUN_1985 ACLUN_1985.MODS ACLUN_1985.batch ACLUN_1986 ACLUN_1986.MODS ACLUN_1986.batch ACLUN_1987 ACLUN_1987.MODS ACLUN_1987.batch ACLUN_1988 ACLUN_1988.MODS ACLUN_1988.batch ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1990.batch ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log Violations of privacy via intrusive
home inspections
-cent Improper use of past criminal records
"Stability and harmony" requirement
is vague and overbroad
According to staff attorney. Margaret
Crosby who drafted the ACLU-NC
response to the guidelines, "These provi-
New Public Housing Rules Blasted
"It forces low-income people to surrender
their fundamental First Amendment rights
as the ticket to subsidized housing."
sions inflict a serious penalty - denial of
shelter - for constitutionally protected
speech, such as `verbal abuse' of Housing
Authority personnel. It forces low-income
people to surrender their fundamental First
Amendment rights as the ticket to subsi-
dized housing."
Crosby also criticized the unannounced
inspection policy. "For the poor as for the
middle-class one's home is one's castle.
The sanctity of one's home is protected by
constitutional rights of privacy," she
argued.
"Moreover," she charged, "penalizing
an entire family for the arrest of one fam-
ily member is cruel and arbitrary. Societal
interests are not served by making and
keeping ex-offenders and their families
homeless."
Ehrlich castigated the vague "stability
and harmony" requirement. "Public hous-
ing officials should not impose an ortho-
doxy on family life. A victim of domestic
violence, whose past was marked by an
unstable and inharmonious home environ-
ment, may be in urgent need of public shel-
ter. Surely, this candidate should not be
punished by the housing authority because
her past life suffered from disharmony."
Moreover, the groups charge, the San
Francisco Housing Authority proposals
bear no relation to the Federal codes nor
do they conform to current HUD guide-
lines. Attaching eligibility to such criteria
as credit checks, arrest records, citizenship
and social security numbers is clearly in
violation of the law.
According to Brooke Haegerty of the
Income Rights Project, "The Housing
Authority proposals are based on the
assumption that by excluding certain
kinds of people the problems of public
housing in San Francisco will disappear.
Yet these proposals only divert attention
away from the real problems: poor main-
tenance, inadequate repairs, unsafe and
unsanitary living conditions, the lack of
programs for youth, lack of fiscal account-
ability and the obstruction of tenant partic-
ipation in determining policy."
In addition to the written testimony,
advocacy groups are planning further
action and response in December.
Field Committee to Select
Priority Issues
he civil liberties issues that the
( ACLU-NC Field Program will
focus on in the new year will be on
the agenda of the 1991 Field Priority
Setting Session on January 26.
"Chapter and membership input is cru-
cial in this process," said Field
Representative Marcia Gallo. "ACLU-NC
Chapters will be meeting from now until
the January session to discuss their priority
issues. We also encourage members to
write in their suggestions.
"We need to carefully select two or
three issues as Field priorities, and will be
making some hard choices," Gallo
explained. "All Chapter Board members
and activists are welcome to attend the
January 26 meeting. When it comes time
to select issues, Chapter Representatives to
the ACLU-NC Board and at-large mem-
bers of the Field Committee each receive
one vote," she added.
Since 1981, representatives from the
ACLU-NC's 17 chapters have met annu-
ally to select the most compelling issues
for ACLU's membership action efforts for
the year.
National Field Rep
Gallo noted that a highlight of the Field
Priority Setting Session will be a presenta-
tion by ACLU National Field
Representative Gene Guerrero. Guerrero,
who works out of the ACLU Legislative
Office in Washington, D.C., was formerly
the Executive Director of Georgia affiliate.
Guerrero will speak about organizing
- ACLU members around the Racial Justice
`Act and other death penalty issues as well
as the crucial civil liberties issues that will
be on the Congressional agenda in the
coming year.
"Guerrero's experience as an affiliate
leader and as the national staffperson
responsible for mobilizing ACLU mem-
bership on key issues will be of- great
importance to us as we decide on our pri-
ority issues for 1991," Gallo said.
In 1990, the priority issues were: Pro-
Choice, Death Penalty, and Student
Outreach.
"We are more effective in our grass-
roots lobbying and public education
efforts when we are focused on a few,
carefully-selected issues," explained Field
Committee Chair Dick Grosboll. "It is
important to understand that the selection
of Field Program priorities does not mean
that other issues aren't important or
actively worked on by other departments
of the ACLU-NC.
"We also recognize that there are often
local issues that chapters need to focus on
that are outside of the Field priority areas,"
Grosboll said.
The designation of priority status to an
~ issue means that the time, attention, and
fiscal resources of the Field Department
are allocated to that issue. Because the
intent of the Field Program is to maximize
the ACLU-NC's ability to have a signifi-
cant impact on a particular issue, in select-
ing priorities, the Field Committee uses
the following criteria:
0x00B0 Issues that can motivate ACLU mem-
bers to action across Northern California.
ACLUN_1981.MODS ACLUN_1981.batch ACLUN_1982 ACLUN_1982.MODS ACLUN_1982.batch ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1984.batch ACLUN_1985 ACLUN_1985.MODS ACLUN_1985.batch ACLUN_1986 ACLUN_1986.MODS ACLUN_1986.batch ACLUN_1987 ACLUN_1987.MODS ACLUN_1987.batch ACLUN_1988 ACLUN_1988.MODS ACLUN_1988.batch ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1990.batch ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log Issues that draw members to become
involved who have not participated in the
organization.
cent Issues that provide a focus for chapter
organizing and outreach.
If you have ideas about priority
issues for the Field Committee, please
contact Marcia Gallo, ACLU-NC, 1663
Mission Street, #460, San Francisco
94103 or come to the Priority Setting
Session on Saturday, January 26 from
10:30 AM to 2:30 PM.
aclu news
8 issues a year, monthly except bi-monthly in January-February, June-July, August-
September and October/November.
Published by the American Civil Liberties Union of Northern California
H. Lee Halterman, Chairperson
Dorothy Ehrlich, Executive Director
Elaine Elinson, Editor
Marcia Gallo, Field Page
ZesTop Publishing, Design and Typography
1663 Mission St., 4th Floor
San Francisco, California 94103
(415) 621-2488
Membership $20 and up, of which 50 cents is for a subscription to the aclu news and
50 cents is for the national ACLU-bi-monthly publication, Civil Liberties.
aclu news
dec 1990 3
Lawyer's Bequest to Benefit Gay Rights,
AIDS Work
CLU supporter Richard M.
A Nelson died of AIDS on June 16,
1989, but his interest in protecting
the civil rights of gay people and people
with AIDS will live on. Through a clause
in his will, Nelson directed two advisors,
Glenn Reid and Robert Nakatani, to select
_ charitable organizations "striving to pre-
serve and establish the civil rights of gay
men, lesbians and/or persons infected with
HIV" and to distribute most of his estate
to those organizations.
The ACLU Foundation received over
$150,000 of the generous gift. Half of that
sum will be used to support the Northern
California affiliate's work in the areas of
lesbian and gay rights and the protection
of the rights of people with HIV; the other
half will underwrite the Lesbian and Gay
Rights Project of the National ACLU.
The ACLU-NC staff has long been
active in gay rights and AIDS civil liber-
ties issues. This work has included promo-
tion of domestic partners legislation and
anti-discrimination legislation locally and
statewide; preserving the privacy rights of
people with AIDS and HIV;
protecting the employment
rights and health benefits of
people with AIDS; fighting
discrimination against gays
and lesbians in the military,
schools and elsewhere; advo-
cating custody and parenting
rights; and opposing segrega-
tion of prisoners with AIDS
and forced HIV testing in the
criminal justice system.
The other beneficiaries of
Nelson's generosity include
the Project on AIDS and the
Law of the National Lawyers
Guild, Lambda Legal
Defense Fund, the National
Center for Lesbian Rights,
the Shanti Project, and
National Gay Rights
Advocates.
Nelson was born in 1936
in Evanston, Illinois. After
graduating from Princeton
Richard M. Nelson
University in Civil
Engineering and Harvard Law School, he
practiced law in Pennsylvania and
Washington, D.C. In 1980, Nelson moved
to San Francisco where he added a
Chartered Financial Planner certificate to
his professional credentials and became
active in gay and civil rights issues.
ACLU-NC attorney Coles, who, while
in private practice often worked with
Nelson on-estate planning, said, "Dick had
a razor sharp mind, and he loved to use it
to get the most out of the system for gay
people. Whenever he'd think of a way to
get the tax laws to work for gay people -
they usually deny gay people most of the
advantages that married people get - a lit-
tle smile would begin to play at the edges
of his lips.
"This gift will be a great legacy to that
spirit of his," Coles added.
For information on making a chari-
table gift from your estate by will, life
insurance or trust, call or write Cheri
Bryant, Director of Development,
ACLU-NC, 1663 Mission St. San
Francisco, CA 94105; 415/621-2493.
Bill of Rights Day ...
Continued from page |
Upon accepting the award, Lyon said
"We started out with three strikes against
us - they told us we were illegal, immo-
ral, and sick. We are pleased to accept this
award on behalf of all lesbians, gay men
and bisexuals who have struggled so long
to make this possible."
Martin added, "Our experience shows
that education and organizing can work!"
The keynote address was delivered by
Dorothy Ehrlich with keynote speaker Derrick Bell.
civil rights advocate Professor Derrick
Bell who earlier this year resigned his ten-
ured post at Harvard Law School to
protest Harvard's failure to tenure a
woman of color. Bell, who is currently
teaching his course for no pay to students
who receive no credit, spoke on "The
Difficulty of Doing Good: the
Unacknowledged Dilemma of Civil Rights
Advocacy."
"The racial equality - that a few dec-
ades ago seemed a
realistic goal - is
now further away
than ever. - bell
said. "Equality, our
experience tells us,
will not come by
laws or winning
cases in the courts.
Indeed what we call
`progress' in civil
rights' _-_ inevitably
depends more on
the perceived bene-
fits to whites of our
proposed racial
reforms than on the
degree of injustice
actually suffered by
blacks or other peo-
disadvantaged
Bell. enumerated
i areas) -
conditions,
desegrega-
tion, affirmative
action in employ-
ment, and housing
discrimination -
enacting civil rights -
where "civil rights campaigns intended to
further what we consider `good' have
proven costly when they failed and coun-
ter-productive even when their original
goals were achieved.
"The fact is," Bell charged, "that we
plan our programs to conform to our ideal
about an integrated America without mak-
ing any real assessment of the continuing
and crucial importance of racial subordina-
tion of black people to the stability of the
American economic and political system.
We do not see the important connection
between the economic subordination of
blacks and the social
stability of whites."
Stressing the need
for "humility" on the
part of all those who
would do "genuine ser- |
vice," Bell stated that
"it is time we face up
to the difficulties of
doing good in the area
of racial reform. Those
difficulties need not
deter but should give
us reason for humility
as we pursue programs
that no matter what we
do are likely to fail."
The program was
brought to a rousing
conclusion by _ the
dynamic songstress
Ronnie Gilbert, for-
merly of The Weavers,
accompanied by pianist
Libby McLaren. In
tribute to Martin and
Lyon, Gilbert sang
about the agitator
Mother Jones and
about a young woman
who brought a female.
date to her Senior Prom. And in tribute to
all those who fight for civil liberties and
civil rights, Gilbert filled the hall and the
hearts of the audience with a moving ren-
dition of Si Kahn's "And They All Sang
Bread and Roses."
The words of that proud, stirring ballad
gave encouragement to those who, as
Halterman said as he closed the program,
"are critical allies in confronting the chal-
lenges before us."
Biil of Rights Day Photos by
Ann Rushing
ACLU-NC Board Chair H. Lee Halterman. Behind the
podium is the quilt created in honor of Doug Warner.
Reproductive Rights Symposium
he California Coalition for
` Reproductive Freedom will sponsor
a symposium in Sacramento for
pro-choice activists on January 22, the
18th anniversary of Roe v. Wade.
The confirmed speakers include Kitty
`Kolbert of the national ACLU
Reproductive Freedom Project, NOW
Vice-President Patricia Ireland, and Dr.
Maida Taylor. Pro-choice legislators have
also been invited to contribute their per-
spective. The symposium will deal with a
broad range of topics including a national
and international overview of reproductive
rights and updates on RU 486, fetal tissue
research, and pending legislation.
"The symposium offers an excellent
opportunity for pro-choice activists to gain
new insights into the struggle to maintain
`abortion rights in California, throughout
the country and around the world," said
ACLU-NC Executive Director Dorothy
Ehrlich, a member of the Coalition's
Steering Committee.
Following the symposium, which is
scheduled from 9:30 AM to 3:00 PM in the
State Capitol, those attending will be able
to lobby their state legislators on pro-
choice measures.
The pre-registration fee is $15.00 and
$20.00 at the door.
To register, send a note and pre-
registration fee (made out to January
22nd "=6Fund), to January 22nd
Symposium, 926 J Street, Suite 523,
Sacramento, CA 95814. For more
information, call 916/442-3414.
aclu news
dec 1990
"Taking Liberties"
A monthly radio
program
on civil liberties
KPFA 94.1 FM
and
KFCF 88.1 FM (Fresno)
| VRS an
ax
(C3
py
-
iy
~ Tune your radio dial to "Taking Liberties!"
Wednesday, December 26
at 7:00 PM
Gimme Shelter:
Challenging Restrictions
on Public Housing
Join special guest Sharen Hewitt, a
leader in the fight against the San
Francisco Housing Authority's new propo-
sals on exclusion of tenants.
Wednesday, January 30
at 7:00 PM
The Future of
Reproductive Rights
On the 18th Anniversary of Roe v.
Wade, hear about the current state of abor-
tion law in California and the challenges
that face the pro-choice movement. Guest
host Dorothy Ehrlich. :
"Taking Liberties", explores how the
Bill of Rights affects our everyday lives.
The series is aired on KPFA and KFCF in
Fresno. :
The monthly program, hosted by -
ACLU-NC Public Information Director
Elaine Elinson, includes expert guests on
cutting edge civil liberties questions. It
also features a special section with civil
liberties news updates and information on
how listeners can make their voices heard
on crucial civil liberties issues.
[ OBSCENE PHONE CALLS OF THE 900x00B0S |]
# 142
MS. WILLIAMS, WE'?VE_ NOTICED
SOME DISTURBING ACTIVITY ON
YOUR CITISNOOE VISA =
NAMELY, THE MAPPLETHORPE
TICKETS ANP A COUPLE OF
" (Usually
Field Program Monthly
Meetings
Chapter
Meetings
(Chapter meetings are open to all interested
members. Contact the chapter actvist listed
for your area.)
B-A-R-K __ (Berkeley-Albany-Richmond-
Kensington) Chapter Meeting: (Usually
fourth Thursday) Meeting on Thursday,
January 24, 1991 in Berkeley. Contact Julie
Houk, 415/848-4752, for further informa-
tion. :
Earl Warren (Oakland/Alameda County)
Chapter Meeting: (Usually second
Wednesday) The meeting on Wednesday,
January 9, 1991, will focus on police prac-
tices. For time and address of meetings,
please call Irv Kermish, 415/836-4036 or
Abe Feinberg, 415/451-1122.
Fresno Chapter Meeting: (Usually third
Monday) Meeting on Monday, January 21,
1991 at San Joaquin Law School. New
members always welcome! For time and
address of meetings, please call the Chapter
Hotline 209/225-7380 or contact Gary
Waldron, 209/221-1114 (eve.)
Gay Rights Chapter Meeting: (Usually
first Thursday) Meet Thursday, January 3,
1991 at 7:00 PM at the the ACLU Office,
1663 Mission, #460, San Francisco. For
more information, contact Mike Williams,
415/845-4777.
Marin County Chapter Meeting: (Third
Monday) Meet Monday, January 21, 1991 at
7:30 PM, Westamerica Bank, Room 1204
Strawberry Village, Mill Valley. For more
information, contact Bernie Moss, 415/332-
Sp3e
Mid-Peninsula (Palo Alto area) Chapter
Meeting: (Usually first Thursday) Meet
Thursday, January 3, 1991 7:30 PM at the'
Mercury Savings Bank, Menlo Park. For
more information, contact Harry Anisgard,
415/856-9186.
Monterey County Chapter Meeting: The
Monterey County Chapter will sponsor their
Annual Chapter Membership Meeting on
Saturday, January 26, 1991 at 2:00 PM at the
Monterey Library, Pacific and Madison
Streets, Monterey. For more information,
contact Richard Criley, 408/624-7562.
Mt. Diablo (Contra Costa County)
Chapter Meeting: (Now fourth Thursday)
Meet Thursday, January 24, 1991 at 7:30
PM. For more information, contact Mildred
Starkie, 415/934-0557. Calling all teachers:
are you interested in working with the chap-
ter on a "civil liberties essay contest" for stu-
dents? If so, contact Mildred Starkie, number
above.
North Peninsula (San Mateo area)
Chapter Meeting: (Usually third Monday)
Meet Monday, January 21, 1991 at 7:30 PM,
Bank of America, Third and El Camino, San
Mateo. Contact Emily Skolnick, 340-9834.
Note: The North Pen Chapter has a new -
Hotline number: 579-1789. The Chapter
Student Outreach Committee needs help
organizing a high school essay contest on the
Bill of Rights. Contact Neil Kelly, 415/593-
6156 (eves).
North Valley (Shasta, Siskiyou, Tehema,
and Trinity Counties) Chapter Meeting:
fourth Wednesday) Meet
Wednesday, January 23, 1991. For more
information contact Frank Treadway, 916/
365-4336 or 916/241-7725.
Sacramento Valley Chapter Meeting:
(Usually second Wednesday) For location
and more information, contact Ruth Ordas,
916/488-9950.
San Francisco Chapter Meeting: Meet
Wednesday, January 23 and Wednesday,
February 20, 7:00 PM at ACLU office, 1663
Mission, 460, San Francisco. RSVP to 415/
621-2493.
Santa Clara Valley Chapter Meeting:
(Usually first Tuesday) Meeting on January 8
at Commerce Bank Building, 111 West St.
John Street, 2nd Floor Conference Room,
San Jose. Contact John Holly, 408/554-9478,
for time and further information.
Santa Cruz County Chapter Meeting:
(Usually second Wednesday) Program
planned for mid-January on Reproductive
Rights. Chapter is continuing work on com-
batting hate crimes. Contact Keith Lesar,
408/688-1666, for further information.
Sonoma County Chapter Meeting: (Third
Thursday of the month) Meet Thursday,
January 17, 1991 7:30 PM, 821 Mendocino
Ave, Santa Rosa. All members welcome.
Contact Fran Byrn, 707/546-3237. The
Sonoma County Chapter will hold the
Annual Dinner on January 18, 1991 at 6:00
PM at the Rohnert Park Community Center.
Contact Fran Byrn, number above.
Yolo County Chapter Meeting: (Third
Thursday of the month) For more informa-
tion, contact Doug Powers, 916/756-8274.
Field
Committee
Meetings
Field Committee Meetings (All meetings
except those noted will be held at the
ACLU-NC Office, 1663 Mission Street,
Suite #460, San Francisco. To RSVP, or for
more information, contact Marcia Gallo or
Michele Hurtado at the ACLU-NC 415/621-
2493.)
Student Outreach Committee: (Usually
third Saturday) Meet Saturday, January 19,
1991 from 10:30 AM - 12:30 PM.
Field Committee Meeting: Meeting on
Thursday, January 10, 1991 at 6:00 PM.
Annual Priority Setting Session is
Saturday, January 26, 1991 from 10:30 PM -
2:30 PM. Special Guest: ACLU -
Washington D.C. Field Coordinator Gene
Guerrero.
Pro-Choice Action Campaign: (Usually
third Tuesday) Meet Tuesday, January 15,
1991 at 6:30 PM. Help organize our Teen ,
Reproductive Rights Project and plan for
1991. Roe v. Wade: 18 Years of Abortion
Rights - The Fight Goes On! Come on.
Sunday, January 20, 7 PM to 9 PM, Wheeler
Auditorium, U.C. Berkeley. For more infor-
mation, call 415/526-1914.
Death Penalty Action Campaign: Contact
Marcia Gallo, number above, for more infor-
mation.
Volunteers Needed (c)
olunteers with a deep commit-_
ment to the protection of civil lib-
erties are always welcome at the
Complaint Counselors. Contact: Lisa
Maldonado, Complaint Desk
Coordinator, at 415/621-2493.
MORALLY- REPUGNANT
PAPERBACKS.
ACLU-NC!
Archive Librarians
The ACLU-NC maintains subject files
on a wide variety of civil liberties issues.
Volunteer librarian Clara MacDonald
organizes the subject files and is looking
for assistance. If you have some library or
research experience, are interested in civil
liberties documentation, and are available
during office hours on Wednesdays or |
Thursdays. please leave a message for
Clara: MacDonald at the ACLU-NC,
415/621-2493.
Complaint Counselors
Complaint Desk Counselors' duties
include screening phone calls for civil lib-
erties issues, giving information and refer-
Oo rals to the public, and some peer
counseling. Volunteers must be able to
oe
Lo ) commit to staffing the Complaint Desk
BARN!
SHOULPA
USEP
CASH /
Sx one day a week for at least six months,
S , | have a good telephone manner, and a
c | desire to work with the public. Training
will be provided by experienced
NE OF THE FIRST LEGAL
actions of the American Civil Liberties
Union of Northern California when it
was founded in 1934 was to sue the cities
of San Francisco and Oakland for not
protecting the free speech rights of Bay
Area longshoremen who went on strike
to improve the notoriously bad working
conditions on the waterfront.
More than half a century later, the
ACLU-NC Legal Department is still
suing cities around northern California
to protect the First Amendment rights of strikers...
and environmental protesters, students, anti-
apartheid activists, peace advocates, reporters,
tenants, religious groups, political campaigners, and
all who want to exercise their right to freedom of
expression.
This year, the ACLU-NC legal docket reflects
the wide range of issues which have become the civil
liberties battleground of the 90s. In addition to First
Amendmentcases, our Legal Departmentis working
oncases in the priority areas of reproductive rights,
immigrant and refugee rights, homelessness and
poverty, drug testing, AIDS, race discrimination,
capital punishment, police abuse, language minorities,
and lesbian and gay rights.
The growing hostility to civil liberties of state and
federal courts means that we often have to prove
things which were once assumed, or accepted when
demonstrated with something short of a full trial.
Now, a significant portion of our cases go to trial,
and the trials are frequently long and complex. Last
year, one staff lawyer spent over four months in trial
in one case and another staff lawyer spent three
months trying one case and a week trying another.
All this means that litigation is more expensive, in
terms of both out-of-pocket cost and time.
We have come to believe that we can often
achieve better results for less outside of court. This
means that we think of direct advocacy as a primary
tool, not just as an alternative when litigation is
unattractive.
This report does not list every case on our current
legal docket. It includes those cases in which there
was significant activity this year, as well as other
forms of legal advocacy in our priority areas. With
this report, we hope to share with you some of the
highlights of the legal program - both litigation and
direct advocacy - of the ACLU-NC during 1990.
The Bay Area Peace Navy held a sea-going demonstration during Fleet Week, armed with a court Fra which pretented) the U.S. Navy from imposing a 75-yard "security zone"
photo: Janet Delaneyleourtesy Bay Area Peace Ney
tn San Francisco Bay.
The Legal
Department
HE ACLU-NC LEGAL
Department is staffed by four
full-time attorneys: Matthew
Coles, Edward Chen, Margaret
Crosby and Alan Schlosser.
The responsibilities of the
Managing Attorney are rotated
among the four staff counsel
yearly: in 1990, the Managing
Attorney is Matthew Coles. In
addition, the Legal Department in-
cludes the Police Practices Project,
headed by attorney John Crew and the
Death Penalty Project, directed by
attorney Michael Laurence. The attor-
neys have been ably assisted by Frances
Beal, Ellen Ghelfi, Anne Hietbrink and
Patrisha Vestey.
The Legal Department also oversees
the work of the Complaint Desk,
which is supervised by Lisa
Maldonado, The Complaint Desk,
staffed by a dozen volunteer counsel-
ors, receives more than 200 calls and
letters each week from people who feel
their rights have been violated. Assisted
by the staff attorneys and law students
who clerk for the ACLU-NC during
the year, these lay counselors screen
requests for assistance and often pro-
vide the advocacy needed to resolve
particular grievances.
This year, The ACLU-NC estab-
lished the Robert Paine Internship
Fund with the generous donation from
the sister of a law school graduate who
died before he could fulfill his dream of
being a human rights lawyer. The
Fund allows needy students to intern
with the Legal Department as they
prepare to practice civil liberties law.
We share the accomplishments of
our legal program with over 100
dedicated lawyers who donate their
services to the ACLU-NC as cooperat-
ing attorneys. More than half of our
cases this year (57%) were handled by
cooperating attorneys working with
staff counsel. Without their expertise
and advocacy, the ACLU-NC would
not be able address many pressing civil
liberties issues. A list of the 1990
cooperating attorneys is on page 8.
Freedom of
Expression
HIS YEAR, THE NATION
was rocked by dangerous
threats to freedom of expres-
sion in the arts: the arrest and
trial of museum director Den-
nis Barrie in Cincinnatti for
the exhibition of Robert
Mapplethorpe photographs,
the conviction on obscenity
charges of a record store
owner in Broward County, Florida for
selling the rap music of 2 Live Crew,
and the denial of funds to controversial
artists by the National Endowment for
the Arts.
Even in northern California, we
were not immune to this onslaught of
censorship. The ACLU-NC wrote to
the San Francisco Board of Supervisors
supporting Jock Sturges, an interna-
tionally recognized San Francisco
photographer whose studio was
invaded and life's work destroyed by
law enforcement officials on the spuri-
ous grounds that he was producing
child pornography. We also prepared
to go to court when the Sacramento
District Attorney's office threatened to .
prosecute distributors of 2 Live Crew
albums. And we challenged the
Berkeley School District's ban on rap
music concerts at the community
theater, reminding them that a ban
based on the content of the music is
unconstitutional.
We also filed numerous freedom of
expression cases on behalf of plaintiffs
ranging from Redwood Summer envi-
ronmentalists who were being barred
from marching through a logging town
near the northern ancient redwood
forests to a woman who was sued for
libel by police officers after filing a civil
rights suit against them-the results in
these cases were generally positive.
- The ACLU-NC successfully ob-
tained a Temporary Restraining Order
(TRO) allowing demonstrators from
Redwood Summer, an organization.
protesting the U.S. government's and
logging companies' practices which
endanger old growth forests, to hold a
Labor Day march in the city of
Fortuna.
City officials had thrown many
obstacles in the way of the permit ap-
plication and threatened to cite and
arrest participants if they marched
without a permit.
The TRO in the lawsuit, Redwood
Summer v. Fortuna, was granted on the
eve of the planned march.
In September, we returned to federal
court on behalf of four of the Redwood
Summer activists who, after being
arrested and jailed for trespassing dur-
ing an environmental protest, had their
heads forcibly shaved by the Humboldt
County Sheriffs Department.
The ACLU-NC challenge, Red-
wood Summer v. Humboldt County
Sheriffs Department, charged that the
head shaving was a violation of the
First, Fourth and Eighth Amendments.
The San Francisco Police
Department's guidelines regulating
intelligence gathering on political pro-
test groups were opened up to public
scrutiny by a state Court of Appeal
ruling in ACLU v. Jordan. The deci-
sion capped a five-year battle by the
ACLU-NC to gain access to the guide-
lines. The suit was part of our
broad-based attempt to make the
Department accountable for their
wide-ranging intelligence gathering
activities.
The decision stems from our
California Public Records Act lawsuit
against the Department in 1984 follow-
ing SFPD surveillance and harassment
of the Ku Klux Klan during the
Democratic National Convention in
San Francisco.
The appellate court also ruled that
the Department must reveal certain
documents from the Klan file, includ-
ing a memo on the group's plan to
demonstrate at the Convention and
information on other Klan activity
from 1978-83.
In September, the U.S. Court of
Appeals upheld the First Amendment
rights of an armada of peace activists.
The court declared restrictions the U.S.
Navy had imposed on "Fleet Week"
demonstrations by the Bay Area Peace
Navy unconstitutional.
In 1987, the U.S. Navy barred the
Peace Navy, a flotilla of nearly 100
small vessels, from entering a 75-yard
"security zone" around the reviewing
stand at Aquatic Park. The restrictions
made it impossible for spectators on the
pier to hear the group's peace songs or
see their banners. When the
ACLU-NC filed suit, Bay Area Peace
Navy v. U.S. Navy, a District Court
judge issued an injunction against the
restrictions. The government appealed.
This year's ruling came only two weeks
before the annual Fleet Week demon-
strations.
The ACLU-NC is also representing
anti-apartheid demonstrators in San
Francisco (California Stevedore and
Ballast Company v. Bay Area Free
South Africa Movement) and striking
union members (Northern California
Newspaper Organizing Committee v.
Solano Mall) in freedom of expression
cases which are pending in superior
court.
In Fuentes v. Berry, the Alameda
County Superior Court ruled in March
that Alameda City police officers can-
not sue several family members for
"malicious prosecution" because of an
earlier brutality suit one of them had
filed against the police.
In 1987, Virlee Berry filed a civil
rights suit in U.S. District Court alleg-
ing that she had been beaten by the
officers. In her suit, Berry alleged racial
discrimination and brutality. On the
eve of trial, she agreed to settle for an
undisclosed sum.
Three months later, the three offic-
ers sued Berry and two other members
of her family claiming that her suit had
been brought in bad faith and without
reasonable cause.
In dismissing the officers' lawsuit,
the court agreed with ACLU-NC
arguments that police officers cannot
file malicious prosecution suits based
on civil rights suits which have been
settled.
In Guadiya Vishava Society v. San
Francisco, the Ninth Circuit Court of
Appeals agreed with arguments in an
ACLU-NC amicus brief when it ruled
in April that the City of San Francisco
cannot ban the sale of "message-
bearing" T-shirts from city streets. The
ruling came in a lawsuit filed by
non-profit organizations, including
Greenpeace, the Nuclear Weapons
Freeze Campaign, CISPES and the
Lesbian/Gay Freedom Day Campaign,
who asserted that the city's policy
violated their First Amendment rights.
Press Freedom
We have several freedom of the
press cases pending, including our
longest standing case McCoy v. Hearst
Corporation. In 1989, the San Francisco
Superior Court denied a request to
hold a new trial in the case against two
reporters, who are represented by the
ACLU-NC, and the San Francisco
Examiner who were sued for libel by
two police officers and an assistant
district attorney.
After a lengthy trial and an original
$4.6 million judgment against the re-
porters and the newspaper, the
California Supreme Court unani-
- mously ruled in 1986 that the law
enforcement agents had failed to prove
that the reporters knew or suspected
that the articles on a Chinatown mur-
der case were false. The U.S. Supreme
Court refused to hear the case in 1987.
The law enforcement officials requested
a new trial, which was denied in 1989.
The superior court entered final judg-
ment for the reporters. The law
enforcement officials have appealed the
judgment.
The ACLU-NC is representing a
small Santa Cruz newspaper in a libel
suit, Hartmann v. Solar Powers, Inc.,
brought against it by a local political
activist. The ACLU-NC argues that
because the article involves a public
figure and is a matter of important local
political controversy, the plaintiff
should be required to prove constitu-
tional malice. The paper claims that the
article is accurate, and that there is no
evidence of malice in its publication.
The paper also claims a privilege for the
identity of its source.
In a case in which we filed an amicus
brief, Sebago v. Alameda, the Court of
Appeal struck down an ordinance
banning news racks for publications
dealing with sex. However, we had an
unfavorable ruling in Brown v. Kelly
Broadcasting, when the California
Supreme Court ruled that private indi-
viduals involved in public affairs can
sue news agencies for defamation with-
out having to prove that the press acted
with ill will or reckless disregard for the
truth. We had submitted an amicus
brief on behalf of a Sacramento televi-
sion station which aired a consumer
report criticizing the work of a contrac-
tor who did repairs on low-income
publicly financed housing.
The ACLU-NC is seeking a perma-
nent injunction in a successful case on (c)
behalf of tenants who fought restric-
tions on their right to put political
posters in their apartment windows
(Safadi v. Parkmerced).
Much of our non-litigation work in
the arena of freedom of expression
deals with the rights of students. The
University of San Francisco agreed to
allow pro-choice student groups to
circulate petitions and announce meet-
ings on campus after negotiations with
ACLU-NC attorneys. We are hoping
that the enlightened policy adopted by
USF will be a model for other Catholic
universities now grappling with the
question of dissent on campus. -
In addition students at several
northern California high schools who
had been disciplined by school officials
for wearing Spuds McKenzie and Bart
Simpson T-shirts to class had their
rights vindicated when letters from the
ACLU-NC to school principals citing
the Education Code's guarantee of
freedom to expression for students
prompted a change in the schools'
policies.
We also protested to the FBI when,
without parents' permission, agents
pulled a group of San Francisco middle
school students out of class and ques-
tioned them about a social studies
teacher who had burned miniature
United States flags in class. The stu-
dents were probed about their beliefs
and their parents' beliefs. The legal staff
is pursuing measures with the San
Francisco Unified School District to
prevent such interrogation from
happening again.
Reproductive
Rights
IKE THE 1989 WEBSTER
decision before them, this year's
United States Supreme Court
decisions in two parental notifi-
cation cases (Hodgson and
Akron) focused national atten-
tion on the abortion issue and
galvanized both pro-choice and
anti-choice forces. Our most
important objective in California
was to protect the state constitutional
right to privacy and its independent
support for reproductive choice.
Staff attorney Margaret Crosby
serves as legal consultant to the Califor-
nia Coalition for Reproductive
Freedom, a statewide coalition of
pro-choice organizations, and, in many
respects, has become the legal arm of
the pro-choice movement in California.
This year, she has done an unusual
number of speaking engagements and
media appearances and written exten-
sively on the abortion controversy in
order that women in this state know
that their right to abortion is secure
despite negative U.S. Supreme Court
rulings.
In our own case concerning young
women's access to abortion (American
Academy of Pediatrics v. Van de
Kamp), the California Court of Appeal
issued a strong ruling reaffirming the
independence of California's right to
privacy and refusing to permit enforce-
ment of a law restricting abortion. In
1989, the state Court of Appeal upheld
a lower court order enjoining
California's 1987 law requiring teenag-
ers to obtain parental consent or a court
order before they can have an abortion.
The Court ruled that the California
Constitution has an independent right
to choose abortion, which the state can
infringe only if it shows a compelling
purpose. The case will return to supe-
rior court for trial to see whether the
state can meet its burden of proving
that the law promotes important
purposes.
The case originated in 1987 when,
after a parental consent law was passed
by the Legislature and signed by the
Governor, the ACLU-NC and the
Adolescent Health Care Project of the
Pregnant women and new mothers
who have substance abuse problems are
increasingly being subjected to an array
of punitive measures. In the guise of
protecting "fetal rights," drug addicted
pregnant women and addicted women
who give birth are prosecuted and
denied custody of their children. All of
these developments are against the
backdrop of the almost total unavail-
ability of treatment programs. The
ACLU-NC is monitoring these cases
and preparing a manual on legal sup-
port for drug addicted pregnant
women.
Shop steward and hospital dietitian Yolanda Cortez fought the English Only rules at . z
the University of California.
photo: Ric Rocamora
National Center for Youth Law filed a
challenge in superior court seeking to
block the law. On behalf of a coalition
of medical organizations and health
care providers, attorneys argued that
under the California Constitution
minors have an equal right to privacy
of their reproductive choices as adult
women.
The plaintiffs submitted extensive
expert testimony on teenagers' capacity
to make informed decisions about
pregnancy and about the devastating
impact parental involvement laws have
on young women's health. This evi-
dence will now be examined by the
superior court in a trial which is ex-
pected to be scheduled in the next year.
One extremely important case-the
right of poor women to have access to
abortion-is significant by its omission.
This year, for the first time in over a
decade, the ACLU-NC did not have to
file its annual lawsuit challenging the
Legislature's restrictive cuts in
Medi-Cal funding for abortion. For the
first time since 1978, the Legislature's
Budget Act included no restrictive
language on Medi-Cal abortion funds.
This victory resulted in part because of
extensive lobbying efforts by our legis-
lative advocates, activists and members.
For the past twelve years, Medi-Cal
funds for abortion were provided only
because of the successful legal chal-
lenges brought by the ACLU-NC on
behalf of a coalition of Medi-Cal recipi-
ents, abortion providers, women's and
welfare rights organizations. As a result
of court decisions in these lawsuits,
California is one of a handful of states
which has never stopped funding abor-
tions for poor and low-income women.
Language
Minorities
HROUGH LITIGATION,
research and coalition-
building, staff attorney Ed
Chen has become a national
leader in the movement to
fight English Only laws, ordi-
nances and workplace rules.
We currently publish the
newsletter of National Coali-
tion for Language Freedom.
With our encouragement and assis-
tance, the national ACLU published a
briefing paper on why the ACLU
opposes the English Only movement.
We helped obtain a contract with the
University of Chicago Press to publish
a general source book on the issue in
- _ which Chen has contributed two pieces
and we also published the proceedings
from the 1988 Stanford conference on
English Only laws. We successfully
advocated a State Bar resolution oppos-
ing English Only workplace rules and
helped defeat English Only legislation
in Sacramento. Finally, Chen has been
active in the media on this issue, ap-
pearing in feature articles in the Los
Angeles Times Magazine, New York
Times and other publications.
We successfully settled a complaint
against an English Only workplace rule
at the University of California at San
Francisco (UCSF). The University
agreed to withdraw all policies which
ban workers from speaking a language
other than English while at work and
to send individual notices to every
Champion Stanford diver Simone LeVant dove into a controversy which resulted in the first succeddful challenge to the NCAA drug
testing of Dee athletes.
photo: Chuck Painter
employee informing them of their
rights. The University also agreed to
conduct management and cultural
sensitivity training.
We participated in a decision, Asian
American Business Group v. Pomona,
in which a federal District Court struck
down a local ordinance restricting the
amount of foreign language that can
appear on private business signs on
First and Fourteenth Amendment
grounds.
Drug Testing
N THE PAST FEW YEARS
we have seen a national upsurge in
drug testing: half of the Fortune
500 companies now submit their
employees to drug testing. Presi-
dent Reagan's 1986 Executive
Order calling for a "Drug Free
Federal Workplace" has led to
widespread drug testing of federal
employees.
ACLU-NC staff attorney Ed Chen
has brought challenges to drug tests on
behalf of all kinds of workers -public
and private sector, job applicants, and
college athletes, with varying results.
Public sector employees
Federal court rulings have been
mixed after the two United States Su-
preme Court decisions upholding drug
testing in 1989. We won most of the
claims in a challenge to testing by the
federal Office of Personnel Manage-
ment, Connelly v. Horner; the District
Court enjoined random and
post-accident testing, but did permit
reasonable suspicion testing. Another
District Court has refused to permit
random testing of Bureau of Prison
Personnel (American Federation of
Government Employees v. Meese) even
after the Supreme Court cases.
In Hansen v. Turnage, a drug test-
ing challenge on behalf of the
employees of the Veterans Administra-
tion, the ACLU-NC and the
Employment Law Center won a pre-
liminary injunction from the federal
court prohibiting random and
post-accident drug testing of VA work-
ers. The court ruled that the "Drug
Free Federal Workplace" plan appeared
to violate the Fourth Amendment
rights of employees; it also limited
testing based on "reasonable suspicion"
to suspicion of on-the-job drug use or
impairment, ruling that anonymous
tips were not sufficient grounds to test.
A trial has been set for mid-1991.
The key issue in the federal courts,
appears to be how sensitive a job must
be before random testing is to be per-
mitted.
Job applicants
In the state courts, we suffered a
substantial setback in Wilkinson v.
Times Mirror Books, in which the Cali-
fornia Court of Appeal upheld
preemployment testing even though
there was no evidence of a drug prob-
lem and none of the jobs involved
public safety. This is the first lawsuit to
challenge a mandatory drug testing
program for job applicants by a private
employer. It was filed by the
ACLU-NC and the Employment Law
Center on behalf of three women who
applied for editorial positions at an East
Bay publishing firm. The California
Supreme Court has refused to consider
the case.
Private sector employees
On the other hand, the California
Court of Appeal upheld a substantial
jury verdict in Luck v. Southern Pacific,
where the plaintiff, a computer pro- .
grammer, was terminated for refusing
to submit to a random drug test.
In the case of Price v. Pacific Refin-
ing Company, the ACLU-NC
thwarted an attempt by a Hercules oil
refinery to reinstate company-wide
testing when the state Court of Appeal
denied the company's request for an
appellate review of the case as well as
the company's petition to overturn the
preliminary injunction against drug
testing. In a 1986 challenge to the man-
datory company-wide drug testing
policy as a violation of the workers'
privacy rights guaranteed by the Cali-
fornia Constitution, the ACLU-NC
and the Employment Law Center won
a preliminary injunction from the
Contra Costa Superior Court.
However, the superior court accept-
ed a modified version of the company's
plan which allows that employees who
work near potentially dangerous equip-
ment or materials be subject to drug
tests if there is a reasonable suspicion -
by a supervisor of drug use and the
worker fails a fitness for duty examina-
tion administered by a licensed health
professional. Workers involved in acci-
dents may also be subject to drug test-
ing. The plan allows employees who are
required to provide a urine sample be
provided with a portion for their own
testing, an important procedural safe-
guard. Random, blanket testing is still
barred under the preliminary injunc-
tion. A tentative settlement has been
reached which would make the prelimi-
nary injunction permanent and provide
for damages to be paid to the workers.
4
Student athletes
In a suit initiated by the captain of
the Stanford women's diving team, Hill
and McKeever v. NCAA, Stanford
athletes represented by the ACLU-NC
won a ruling against mandatory drug
tests that could potentially affect tens of
thousands of college athletes. In Sep-
tember, the Court of Appeal upheld a |
superior court injunction prohibiting
the NCAA (National Collegiate Ath-
__ letic Association) from requiring
Stanford students to submit to drug
testing in order to enter NCAA com-
petitions. .
The court, in addition to agreeing
that the testing violated privacy rights,
ruled that the tests are overly broad
because thousands of drugs-including
birth control pills and over-the-counter
cold medicines-are detected by the
drug tests.
The NCAA began requiring
college athletes to submit to drug test-
ing in 1986; NCAA competitions
involve 250,000 college athletes across
the country.
Although we have no further plans
to bring additional litigation challeng-
ing employee or student drug testing at
this time, Chen continues to provide
advice and technical assistance, and
write and speak widely on the issue.
For instance, he assisted attorneys in
Nevada challenging a drug hair test
program of Harrah's Casino. We are
also looking at other privacy issues at
the workplace.
Racial
Minorities
N RESPONSE TO THE
alarming rise of racial harassment on
college campuses, including
Stanford, U.C. Berkeley and other
northern California institutions, the
Legal Department has worked with
the Board of Directors and the
other California affiliates to create
policy which accommodates free
speech and rights of equality in the
context of college rules regulating hate _
speech.
We have played a leading role in the
Bay Area Coalition for Civil Rights,
especially in publicizing and mobilizing
for the passage of the 1990 Civil Rights
Act, a measure which attempted to
restore key protections against race and
sex discrimination at the workplace
which were dismantled by a series of
devastating U.S. Supreme Court deci-
sions last term. The Act was vetoed by
President Bush and the Senate failed to
override the veto by one vote.
We brought an important equal
protection challenge in U.S. District
Court to federal discrimination against
aliens, Vietnamese Fishermen Associa-
tion of America v. U.S. Coast Guard.
Vietnamese fisherman who were de-
tained and cited by the U.S. Coast
Guard for allegedly violating a 200-year
old statute barring non-citizens from
piloting large vessels in U.S. waters
won an order from the Ninth Circuit
Court of Appeals preventing the Coast
Guard from enforcing the law while the
merits of the case were being decided.
The ACLU-NC, the Asian Law
Caucus and a private law firm, repre-
senting the fishermen's association and
several individual fishermen, charge
that enforcement of the obsolete federal
statute violates a Fifth Amendment
guarantee against discrimination against
non-citizens and resident aliens.
In its final hours, the 101st Congress
_ passed a measure, sponsored by Repre-
sentative Norman Mineta and lobbied
for by the ACLU, that will for the first
time allow fishermen who are not U.S.
citizens to legally own and pilot com-
mercial fishing vessels off the California
coast. This new legislation, which will
be effective for ten years, makes the
lawsuit moot.
In the case of Van Den Berg v.
Kimura, the ACLU-NC is defending a
Japanese-American university official at
U.C. Santa Cruz ina libel action
brought against him and the university
by another university administrator.
_ The Japanese-American official, upon
learning that a college-sponsored Fili-
pino cultural night had been canceled
because it fell on the December 7 anni-
versary of Pearl Harbor Day, wrote an
angry letter to the college bursar char-
acterizing him as a racist. The bursar is
now suing over the letter.
The racially discriminatory use of
"gang profiles" was brought out very
sharply when the ACLU-NC received
numerous complaints from
African-American, Latino and Asian
teenagers who had been thrown out of
Great America, the popular Santa Clara
amusement park, because the park's
security guards did not like their
"dress" or their "attitude." At least a
dozen youths contacted the
ACLU-NC and other civil rights orga-
nizations after they were detained,
questioned and ejected from Great
America; some were even arrested.
_ Their "gang profile" dress was
amorphous and arbitrary, sweeping in
caps with writing on them, acid washed
jeans, and jackets worn off the shoul-
der; many were detained during the
July 4 weekend when they saw white
youths - in the same kind of clothing
- at the park without being stopped or
questioned.
Charging that this racial stereotyp-
ing violates the Unruh Civil Rights
Act, Chen organized a meeting be-
tween the young men, their parents,
civil rights attorneys and the directors
of Great America and is prepared to
litigate if this practice continues.
Unfortunately, this trend of racial
stereotyping does not stop at the gates
of Great America. Based on complaints
from students and parents, we are in-
vestigating race discrimination in the
guise of "gang profiles" at high schools
in Alameda and police harassment of
Filipino teenagers in Hercules.
In addition, noting the dispropor-
tionate number of minority students
who are expelled from San Francisco
high schools, the ACLU-NC is work-
ing with the school district and the
local Bar Association to ensure that
these students are adequately repre-
sented at expulsion hearings.
The ACLU affiliates of Northern
and Southern California, representing
several voting rights groups, argued
that Los Angeles County, in accor-
dance with the state Election Code,
must undertake affirmative voter regis-
tration programs where there is
evidence of under-registration of
low-income and minority voters. The
California Supreme Court remanded
the case to superior court, where a trial
is pending.
as
AIDS
LTHOUGH SOME OF
our previous lawsuits, coupled
with legislative lobbying, were
successful in fighting measures
to end anonymous and confi-
dential HIV testing, we faced a
number of setbacks in our
attempts to prevent involuntary
testing of persons accused of
crimes and discrimination
against persons with AIDS.
We suffered a significant setback in
March, when the state Court of Appeal
upheld the constitutionality of Proposi-
tion 96, the initiative passed in 1988
which mandates HIV testing for certain
arrestees. The law, which went into
effect in 1989, allows a person accused
of interfering with a law enforcement
officer, firefighter or emergency medi-
cal worker to be tested if there is reason
to believe that any "bodily fluid" was
transferred from the accused.
We filed an amicus brief challenging
the law as a violation of the Fourth
Amendment in Johnson v. San Fran-
cisco Sheriff's Department. The suit was
brought by a woman who, when de-
nied her custody of her child by a
judge, allegedly bit a deputy sheriff.
The deputy asked the municipal court
to order the woman to take an HIV
test. The municipal court forced the test
and the Court of Appeal refused to
overturn the ruling.
We suffered another setback when
the U.S. District Court upheld the
FBI's decision to stop using a physician
with AIDS for routine employee physi-
cals (Dr. Doe v. FBI). Represented' by
the ACLU-NC and the Employment
_ Law Center, the doctor sued, charging
that the FBI violated the federal Reha-
bilitation Act and invaded his privacy.
Following a trial in 1989, the U.S.
District Court ruled that federal agen-
cies cannot be sued under the
Rehabilitation Act. It also ruled that the |
FBI's use of private medical informa-
tion was "reasonable," even though it
agreed the doctor presented no threat
to FBI staff. Matthew Coles argued the
appeal before a three-judge panel of the
Ninth Circuit in May.
In another employment discrimina-
tion case, Raytheon v. Fair
Employment and Housing Commis-
sion, the ACLU-NC joined an
ACLU-SC amicus brief in support of
the Fair Employment and Housing
Commission's decision that AIDS is a
disability under state anti- discrimina-
tion law. (c)
Raytheon Corporation appealed the
Commission's ruling that the company
violated the Fair Employment and
Housing Act by discriminating against
an employee, now deceased, because he
had AIDS. The Court of Appeal up-
held the Commission's decision.
One of our most significant accom-
plishments in AIDS litigation is Gates
v. Deukmejian, our suit against the
Department of Corrections over segre-
gation of HIV infected inmates. The
case was settled after three months of
trial. The Department agreed to adopt a
pilot program in which HIV infected
inmates would be housed together, but
would participate in almost all prison
programs, recreation and jobs with
other inmates. At the end of the pilot,
the Department will announce all of its
future plans for HIV infected inmates.
If we disagree with any aspect of the
program, we can contest it (and make
our original legal arguments) through a
mediation process or in District Court.
So far, the program appears to be going
well.
In another case on behalf of prison-
ers with AIDS, Jane Does v. California
Department of Corrections, the
ACLU-NC, ACLU-SC, and the
Prison Law Office filed a class-action
suit against the Department on behalf
of six women inmates with HIV
infection.
The suit charges that the California
Institute for Women's "AIDS Isolation
Unit" violates inmates' rights to pri-
vacy, to decent conditions of
confinement, and to adequate medical
care. The suit also challenges the segre-
gation policy, which the ACLU
successfully challenged in Gates v.
Deukmejian, as discriminating on the
basis of physical disability.
We have helped prevent state cen-
sorship of AIDS education materials
by supporting community groups in
administrative proceedings. For ex-
ample, our testimony before the San
Francisco Public Utilities Commission
helped defeat a proposal to ban S.F.
AIDS Foundation "Rubberman" post-
ers at city bus stops. We helped the San
Francisco Health Department oppose
new federal regulations which would
have banned any materials "offensive"
to a majority of persons outside the
intended audience. The final regula-
tions, although far from perfect,
deleted this requirement. As education
efforts turn toward harder-to-reach d
individuals, and health workers use
blunter messages, a confrontation here
becomes more likely.
In addition to writing and speaking
widely on the issue of mandatory HIV
testing and discrimination against
people with AIDS, Coles has also
helped many community-based orga-
nizations work out the difficult
problem of how to maintain
confidentiality.
Immigrant
Rights (c)
ECAUSE CALIFORNIA
is one of the states with the
highest immigration rates as
well as an area known for viola-
tions of civil liberties by the
Immigration and Naturalization
Service (INS) and Border Pa-
trol, ACLU-NC staff attorney
Alan Schlosser helped establish
2" a group of immigration lawyers
and activists who meet regularly (c)
around issues of INS abuse. Schlosser
helped draft and lobby for a new
policy that would prohibit San Fran-
cisco city employees (including the
Police Department) from cooperating
with INS agents who were involved in
civil enforcement of the immigration
laws. As a result of these efforts, a new
city ordinance was passed adopting
sy
Vietnamese fisherman Hai Le, skipper of the Romance II, won the right to pilot his fishing vessel off the
California coast.
photo: Richard Gordon