vol. 59, no. 1 (March-April)

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Volume LIX

March - April 1995

No. |

Fighting for Fairness

The Battle for Affirmative

by Dorothy Ehrlich

ACLU-NC Executive Director

he ACLU-NC and its allies are

gearing up for what appears to be a

monumental battle which will

determine whether affirmative action

programs will survive in California.

- Proponents of a measure, cynically entitled

the California Civil Rights Initiative, are

determined to outlaw affirmative action

programs run by public entities in Califor-

nia. They aim to ask the voters to abolish

these programs through a statewide initia-

tive likely to appear on the March 1996

ballot.

Their idea is not a new one. This latest

proposal represents at least the fourth

formal attempt to ban affirmative action in

the state. But the current effort is extremely

serious given today's political climate. Just

last year, the ACLU legislative office

successfully defeated an identical measure

in the state Legislature. But that was before

Proposition 187. Now politicians are

searching feverishly for the next popular

"wedge" issue to divide Californians and

secure their own reelection, or better yet, to

attain an even higher office.

This is also not a new issue for the

ACLU of Northern California which

forged a landmark policy on affirmative

action after a year-long study and debate in

1973. Our affiliate policy was, in large

part, later adopted by the national organi-

zation, and provided important policy

leadership on this emerging issue in the

70's. The debate which took place 22

years ago, continues and is even more

heated today. It involves an important

examination of the 14th Amendment to the

Constitution's guarantee of equality and

U.C. Berkeley students rally in support of affirmative action.

what measures must be taken to insure its

application to those who have historically

been excluded from its protection.

Affirmative action was determined

then and continues now to be the single

most important tool to remedy past

discrimination, and the most effective way

City Puts Enforcement on Hold

ACLU-NC Sues Berkeley Over Anti-

Sitting and Anti-Solicitation Laws

n behalf of charitable and activist

(seinen as well as individuals

who ask for money on the streets of

Berkeley, the ACLU-NC and cooperating

attorneys from Wilson, Sonsini, Goodrich

Rosati filed a class-action lawsuit on

February 27 in U.S. District Court against

the City of Berkeley challenging recently-

enacted municipal ordinances that crimi-

nalize peaceful solicitation of money and

sitting or lying on sidewalks. The laws

were to go into effect on March 1, but

several hours after the suit was filed the

City of Berkeley agreed that they would

not enforce the law until the court resolves

plaintiffs' motion for preliminary injunc-

tion.

The plaintiffs bringing the civil rights

suit, Berkeley Community Health Project

(also known as the Berkeley Free Clinic) et

al. v. City of Berkeley, are the Berkeley

clinic; Copwatch; the Green Party; and Toni

Catano and Chris Stanley, indigent, physi-

cally disabled individuals who support

themselves by asking for charity from

passers-by. The suit asks for a declaration

that the ordinances are unconstitutional and

an injunction preventing them from being

enforced. A hearing on the preliminary

injunction will be held on April 21.

"Unlike laws that prohibit criminal or

threatening behavior, these ordinances

criminalize peaceful activities - sitting on

the sidewalk when you' re tired, registering

voters after dark if you have a donation

can, sunbathing against a building or solic-

iting contributions to a free medical

clinic," said cooperating attorney Harry L.

Bremond of Wilson, Sonsini, Goodrich and

Rosati. "The First Amendment guarantees

that all people, poor and rich alike, have the

right to publicly express their beliefs and

ask for help and financial support of others

for their cause or for themselves.

"A law that makes the panhandler

sitting silently with a sign a criminal is a

law that has gone beyond constitutional

limits," he argued.

When the City placed the ordinances

on the November 1994 ballot for an

advisory opinion (as Measure O), 53% of

the voters supported the measure and 45%

opposed it. The ordinances were subse-

quently signed into law by then Mayor

Jeffrey Leiter. Subject to very limited

exceptions, the anti-sitting ordinance

prohibits a person from lying down or

sitting on a public sidewalk, chair, blanket

or other object placed on the sidewalk,

within six feet of the face of any building in

a Berkeley commercial district. The ban

on Sitting is in effect from 7 AM to 10 PM.

The anti-soliciting ordinance severely

infringes the rights of people or groups to

ask for money through words, signs or

other means. It totally bans soliciting after

dark, and prohibits soliciting within six

feet of a building in a commercial district,

or within ten feet of an ATM. Both

ordinances seriously restrict the ability of

organizations and individuals to solicit

donations. For example, several of the

volunteers who solicit donations for the

Berkeley free clinic are disabled or elderly.

As they have difficulty standing for long

periods, they would no longer be able to

perform that work.

"People have a right to walk on the

sidewalks of Berkeley without being

intimidated or threatened," said ACLU-

NC managing attorney Alan Schlosser.

"But there are laws already on the books

that prohibit coercive or threatening

behavior. Berkeley's new ordinances

merely give law enforcement officers a

tool to silence the voices of the poor who

rely on charity to help them survive. In the

process, it prevents political and charitable

organizations from conveying their

messages to the public during prime-time

hours. In fact, it would criminalize the

traditional Salvation Army volunteer

ringing a bell after dark during the Christ-

mas season."

Like the Berkeley free clinic and the

Green Party, the police accountability

organization Copwatch sets up informa-

tion tables on Berkeley sidewalks to

distribute literature and solicit funds. "We

seek donations to help fund our campaign

against illegal police conduct," said

Continued on page 4

Action

to open the doors to employ-

ment and educational oppor-

tunities that historically were

shut for women and minori-

ties. In the coming twelve

months, the ACLU must be

at the forefront of the

campaign to keep those

doors open, if we are to fulfill

our mandate to insure equal-

ity for all. |

Affirmative action,

launched by President

Johnson in a 1965 Executive

Order, refers to a variety of

programs used by employers

and educational institutions

to make special efforts to

recruit, hire, and admit

women and minorities who

were previously under-repre-

sented at every level in the

workplace and in educational

institutions. The purpose of

affirmative action has been

to try to level the playing

field that was so scarred by

the historical legacy of both

legal and illegal discrimination.

Unfortunately, the current debate on the

California initiative has not been about the

purposes and goals of affirmative action

and what it has accomplished, nor has it

focused on the fact that the playing field has

not yet been leveled - thus why it is essen-

tial to continue this effort. Rather, it has

been about how politicians will benefit

from a divisive campaign about this issue.

Because the debate has been about the

politics not the policies, it has been easy to

ignore the facts about affirmative action.

David Bacon

What has been accomplished

Dozens of private and government

studies have concluded that affirmative

action can be and often has been success-

ful. Literally millions of people have been

given equal opportunity in employment,

education, housing and voting because of

affirmative action. While these programs

are not a panacea for race and gender

discrimination, nor a substitute for

economic growth and job opportunities,

affirmative action has made significant

contributions to improved occupational

status for many minorities and women. In

some instances it can close the gap attribut-

able to discrimination.

A 1978 report by the U.S. Commission

on Civil Rights concluded that for African

American men and women and Latino

men, the years between 1960 and 1976

showed a substantial increase in their

representation in newer, more professional

and higher-paid occupations.

Another Commission on Civil Rights

Continued on page 2

2 aclu news

march - april 1995

Court Orders

Governor to

Implement the

`Motor Voter'' Law

n March 2, a coalition of voting

() rights groups won a permanent

injunction preventing Governor

Wilson from blocking implementation of

the National Voter Registration Act, the

"motor voter" law. U.S. District Court

Judge James Ware ordered the state to

comply with the law, and present an

implementation plan within ten days. This

n February 10, ACLU-NC cooper-

OC ating attorney Neil Shapiro argued

before the California Court of

Appeal that the Tulare High School Board

violated the state Education Code when it

censored a student-produced video Melan-

cholianne.

"The law as established by the

California Legislature prohibits the

school board from suppressing the

student video unless it crosses certain

legal lines," Shapiro told the three-judge

appellate panel. "It crosses none of those

lines and this Court's duty under our

system of laws is to follow and apply the

law as the Legislature intended it."

Each year, the students in the film arts

class at Valley High School in Visalia write,

direct, produce and star in their own produc-

tion. The film for the 1991-92 academic

Affirmative ...

Continued from pg.1

study in 1983 showed that minorities and

women made greater gains in employment

at those establishments contracting with

the government - and thereby subject to

affirmative action requirements - than at

non-contractor companies.

These gains are reflected in some

pockets of the private sector as well. For

example, IBM showed a dramatic change

in the composition of its workforce since

setting up an equal opportunity depart-

ment in 1968 to comply with government

contractor affirmative action require-

ments. Black employees increased at IBM

from 750 in 1962 to 7,251 in 1968 to

16,546 in 1980. From a situation of token

representation (1.5% minority and 12.7%

female employees in 1962), IBM moved

to a significant integration of its workforce

(13.7% minority and 22.2 % female in

1980). Similarly, at Pacific Bell in 1965,

the percentage of minorities in the

workforce was 8%. In 1994, that figure is

42%. The number of African-American

employees there is double the number in

the population as a whole.

Studies have shown that affirmative

action is good for business. It widens the

labor pool and provides a work force that

reflects the diversity of the communities

and markets they serve.

Before the backsliding of the

Reagan/Bush administrations, total

employment of minority workers in the

public sector - an arena where affirma-

tive action programs are mandated by law

- expanded more than 15 percent

between 1970 and 1980.

These are some of the lasting achieve-

ments of affirmative action programs in

their attempt to resolve the seemingly

intractable problems of race and gender

discrimination.

But we cannot deny that discrimina-

tion is still a serious problem. Americans

want a color blind society, but too often,

individual or institutional discrimination,

intentional or not, precludes minorities and

is the first case in the country to rule that

the "motor voter" law is constitutional.

"This ruling takes Governor Wilson's

hand off the ballot box," said ACLU-SC

attorney Mark Rosenbaum who, along

with the ACLU-NC and other public inter-

est groups are representing the plaintiffs.

The "motor voter" legislation allows

citizens to register to vote by mail and in

Court

person at DMV offices, welfare depart-

ments and other government agencies.

The law was passed by Congress in 1993

to address the problem that 37% of the

country's eligible electorate - more than

70 million citizens - are unregistered.

California has the lowest voter registra-

tion rate of any state in the nation. Where

the law has been implemented, there has

been a dramatic increase in the number of

registered voters. For example, in Florida,

3,000 people have registered to vote daily

in motor vehicles offices since the law

became effective January 1. In Georgia,

52,000 people registered in January,

compared with a total of 88,000 last year.

The voting rights groups argue that

failure to implement the motor voter law,

which is intended to close the gap between

minority and white voter registration rates,

has a particularly harmful effect on minor-

ity communities and the poor. In granting

the request for a permanent injunction,

Judge Ware said that the law amounted to

a statement by Congress that "voting is the

very essence of our democratic govern-

ment ... every contact individuals have

with our government should be an oppor-

tunity to register to vote."

The suit, Voting Rights Coalition v.

Wilson, was originally filed on December

15, 1994. Subsequently, Governor Wilson

sued the federal government to prevent

implementation of the law and the U.S.

Department of Justice countered with a suit

against California for failure to comply with

the law. After the ruling by Judge Ware,

Governor Wilson said he would appeal to

the Ninth Circuit Court of Appeals.

The voting rights groups are repre-

sented by ACLU-NC managing attorney

Alan Schlosser, ACLU-SC Legal Director

Mark Rosenbaum, Lawyers' Committee

for Civil Rights Associate Director Robert

Rubin, the Asian Law Caucus and other

public interest legal organizations. The

case was argued by attorney Rubin of the

Lawyers' Committee for Civil Rights. and

Fiears

Challenge to

Censorship of High

School Student Film

year, Melancholianne, was a video-drama

whose purpose was to discourage teen

pregnancy. More than 40 students worked

on the production. School officials ordered

Attorneys Neil Shapiro, Ann Brick and Jack Weisberg (I. to r.) represent Tulare

the students to delete profanity found in

some of the dialogue in the film. The

students objected because they felt that in

order for the film to be convincing, the

Howard Watkins

high school students fighting the censorship of their video on teen pregnancy.

women from participating in many levels of

our society. As long as there is discrimina-

tion based on race and gender, we must

fashion remedies that continue to take race

and gender into account. These remedies

have proved essential and remain essential.

In a society which has remained in a

persistent state of denial about the reality

that we still live in a largely segregated

nation, it is easy to ignore the fact that since

the 1960's there has been almost no

measurable progress in housing integration,

income disparity and poverty rates. For

example, in 1971 the per capita income of

black was 57% of whites; in 1984 the

percentage was exactly the same; in 1991 it

shifted to 56%. The unemployment rate for

black men remains double that of whites; it

is even higher for Latino men.

Progress is slow and sometimes elusive.

Most groups targeted by affirmative action

have not yet achieved their goal. While there

are anecdotal examples of women being

welcomed into the board rooms of corporate

America, and strides made by women in

some traditionally all-male occupations,

women continue to earn just 55% to 75% of

men's salaries.

One example, according to Bay Area

Civil Rights Coalition Chair Eva Paterson,

is that before there was a mandatory set

aside for women and minority contractors

in San Francisco, "97% of the contracts

awarded by the enlightened decision

makers in the San Francisco City and

County went to white male contractors.

teenage characters had to act and speak as

teenagers do in real life. Because the

students refused to censor their video, the

school board then barred them from

showing Melancholianne.

The students and their film arts teacher

Eric Moberg turned to the ACLU-NC who

filed a lawsuit on June 18, 1992 in Tulare

County Superior Court on behalf of four of

the students filmmakers. The suit, Lopez v.

Tulare Joint Union High School District

Board of Trustees, charged that school

officials had violated the students' nght of

free expression guaranteed by Education

Code Section 48907 and the California

Constitution.

Superior Court Judge Kenneth E. Conn

issued a preliminary injunction on June 30,

1992 enabling the students to show the video

and to enter it in a statewide competition

where it won first prize in its category.

"While local school boards are vested with

great discretion in making curriculum

decisions, the Legislature has restricted such

discretion when dealing with censorship...of

students in public schools. I am persuaded

that Education Code Section 48907 does not

authorize the local school authorities to

censor the video in question," Judge Conn's

order stated.

However, when the case came before a

different superior court judge on the parties'

cross motions for summary judgment, he

ruled that the school administrators were

within their rights in censoring the film.

The ACLU-NC appealed that decision; a

decision from the Court of Appeal is

expected by the end of May.

The students are represented by

cooperating attorneys Neil Shapiro, a

partner in the San Francisco law firm of

Landels, Ripley and Diamond, and Jacob

Weisberg of Fresno along with ACLU-NC

staff counsel Ann Brick. @

Today, with the implementation of a affir-

mative action program, a mere 60-70%

go to white males!"

Similarly, in Los Angeles, where two-

thirds of the population is minority, only

5% of every public works dollar goes to

`minority owned contractors in 1994.

Continued on page 3

aclu news 3

march - april 1995

New Faces, Tactics

for 1995 Lawyers Council

by Sandy Holmes

Development Associate

ne of Morrison and Foerster's

() busiest partners, Jack W. Londen

joined with co-chair Susan Harri-

man of Keker and Van Nest in February to

kick-off the 1995 ACLU-NC Lawyers

Council Campaign. "The well-being and

integrity of our country depends on a

strong respect for fundamental constitu-

tional principles" said former ACLU-NC

Board member Londen, an attorney well-

known for his many community activities

and recipient of the 1994 California State

Bar Pro Bono Service Award.

Londen succeeds David M. Balabanian

of McCutchen, Doyle, Brown and Enersen

who served as co-chair of the Campaign for

six years. Balabanian, who was recently

Jack Londen, David Furbush, Richard Keyes, Harry Bremond and newcomer

Ehrman, White and McAuliffe, Mary

McCutcheon of Farella, Braun, and Martel,

and Ethan Schulman of Howard, Rice,

Nemerovski, Canady, Falk and Rabkin. Led

by Susan Harriman and Jack Londen, the

committee persuaded almost 50 lawyers -

ranging from solo practitioners to partners

from the Bay Area's most prestigious firms

- to participate in this fundraising effort.

These volunteers will contact 500 attorneys

and law firms from San Jose to Sacramento,

and ask them to participate in the Lawyers

Council and support the ACLU.

Co-chair Harriman, currently the

frontrunner in contacts and pledges, said,

`When we receive such positive feedback,

both in terms of money and in terms of

comments about the good work the ACLU-

NC is doing, it is such a pleasurable and

rewarding experience'.

Sandy Holmes

Jared Kopel team up for the Palo Alto Kick-Off.

honored by the ACLU for his leadership and

distinguished service as chair, helped found

the Lawyers Council in 1988 because, "there

is simply no other organization on which we

can reliably depend to protect diversity and

dissent against orthodoxy..."

Balabanian continues as a member of the

Campaign's executive committee, helping to

recruit volunteers and develop fundraising

strategies to increase contributions from the

Bay Area's diverse legal communities. Also

serving on the committee are Ruth Boren-

stein of Morrison and Foerster, Gary Ewell of

Ewell and Levy, Charles Freiberg of Heller,

Affirmative ...

Continued from pg.2

At the University of California,

African American students make up

4.3%, Latinos 12.4% and Native Ameri-

cans 1% - combined less than a total of

20% of the student body.

In corporate America, a survey of the

Fortune 500 companies, 95% of the senior

managers are men and 97% of them are

white., Women make up only 3-5% of

senior management; African American

men make up only .6% and Latinos .4%.

Yet these facts are rarely discussed

when opponents of affirmative action

boast about the "level playing field" that

they want voters to believe exists. This

state of denial contributes to the myth that

affirmative action is no longer necessary

- because it was only meant to be tempo-

rary until everyone "caught up."

The Myth of Unqualified

Perhaps the most harmful misinforma-

tion involves the notion that "unqualified"

people are being hired, solely because of

gender or race. While affirmative action

has never involved hiring unqualified

people for any position, this myth has

created a great deal of resentment among

people who believe they could be passed

over for promotions or for graduate school

The Lawyer's Council top priority for

1995 is to strengthen the ACLU's presence in

South Bay legal communities. To that end,

six lawyers on the Peninsula volunteered

to lead fundraising efforts at major firms

there. One firm important to the

Campaign is Wilson, Sonsini, Goodrich

Rosati, a recipient of the State Bar's Pro

Bono Service Award. Harry Bremond, a

partner with the firm, explained at the

group's kick-off in Palo Alto that he

expects to see "even more cases come to

the ACLU's legal docket that originate in

the South Bay."

and an unqualified woman or person of

color will take their place. Racial resent-

ment has always been easy to stir up, and

unfortunately there is no shortage of politi-

cians in California ready to pander to it for

political gain.

It is time that we shifted the debate to

demanding that elected officials establish

policies that insist that California's

workforce, in all levels of employment,

reflects the rich diversity of the people of

this state, and that its institutions of higher

education, again at all levels, continue to

strive to meet the educational needs of this

multiracial state. That commitment is

necessary for affirmative action to work.

Without policies that are widespread and

consistent, we will return the advantage,

the "special preference," to those who

benefited (albeit unintentionally) from

decades of discrimination in the past -

white males who still maintain a remark-

able lead in employment, salaries and

educational opportunities.

The ACLU will play a leading role in

the statewide campaign to defeat the legis-

lation, ballot initiative and political

hatemongering that would turn the clock

back on equal opportunity in California.

The political battle will be intense because

the stakes are high: a divide-and-conquer

campaign waged by politicians with

narrow, self-serving goals must not be

allowed to steal the gains and aspirations

of women and minorities in this state.

ACLU-NC Executive Director Dorothy Ehrlich, Co-Chair Susan Harriman, David

Balabanian and Co-Chair Jack Londen at Morrison and Foerster for the 1995

Lawyers Council Kick-Off.

The $58,000 goal of this ambitious two-

week campaign represents only a portion of

the donations that the ACLU Foundation will

receive from lawyers this year. Combined

with gifts contributed from attorneys in an

"advance" campaign, the ACLU projects a

total of $141,000 from Lawyers Council

members in the 1994-1995 fiscal year,

making it the largest of the "amicus clubs" or

lawyer-donor groups among the ACLU

national network of 53 affiliates.

By year's end, over 400 lawyers will

have joined the Lawyers Council by pledging

a gift of $200 or more to maintain the affili-

ate's distinguished legal program. These

dedicated attorneys provide crucial funding

support; many serve the ACLU-NC in other

important capacities as well.

In fact, today attorneys form the

largest professional group on the ACLU-

NC Board of Directors, which determines

policy for the organization and leads its

fundraising efforts. Speaking about the

special relationship between lawyers and

the ACLU, former Lawyers Council co-

chair David Balabanian put it simply,

"When we support the work of the

ACLU, we honor what is best in our

nation and in our profession."

Susan J. Harriman

Co-Chair

Jack W. Londen

Co-Chair Gary Ewell

STEERING COMMITTEE

THE ACLU GRATEFULLY ACKNOWLEDGES THE VOLUNTEERS WHO

SERVE ON THE LAWYERS COUNCIL STEERING COMMITTEE:

David M. Balabanian

Ruth N. Borenstein

Stanley |. Frnedman

EXECUTIVE COMMITTEE

Charles N. Freiberg

Mary E. McCutcheon

Ethan P. Schulman

Karl Olson

Lisa Levy

David Furbush

Lisa Ashley Barbara Giuffre

Angelo Butler Robert Goodin

Robert Capistrano Richard K. Keyes

Diane R. Cash Sanford Kingsley

Nanci L. Clarence Jared Kopel

Jeffrey J. Cole Martin Kresse

Ann G. Daniels Ellen Lake

Gerald Ellersdorfer Bruce Maximov

Marc J. Fagel Susan Mizner

Martin L. Fineman Laurie L. Mont

Scott Fink Timothy Moppin

Robert Fram Raymond L. Ocampo, Jr.

David B. Oppenheimer

Jennifer C. Pizer

Randy Sue Pollock

Michael |. Proctor

Michael F. Ram

Susan Rubenstein

Lori A. Schechter

Barbara Schussman

Eric D. Share

Brian D. Smith

Rocky N Unruh

Steven Vettel

Julius Young

IF YOU WOULD LIKE TO INFORMATION ABOUT THE LAWYERS COUNCIL, PLEASE CALL

SANDY Ho.mes, DEVELOPMENT ASSOCIATE 415/621-2493.

aclu news

4 march - april 1995

Sonoma Chapter Event

FSM Leader Savio

Announces New Coalition

by Lisa Maldonado

Field Representative

ree Speech Movement

Hece Mario Savio

ended his long silence on

American politics in an exhila-

rating address at the ACLU-NC

Sonoma Chapter's Annual

Dinner on February 24 in

Sebastopol.

Savio, who as president of

the campus Student Non-

Violent Coordinating Commit-

tee chapter helped launch the

Free Speech Movement at the

University of California at

Berkeley in 1964, praised

ACLU activists for their hard

work and dedication and urged

them to "keep the faith in the battle being

waged against immigrants and affirmative

action."

Focusing on the importance of coali-

tion building, Savio exhorted the crowd of

four hundred to fight for the gains that were

made by the Civil Rights Movement more

than two decades ago. Citing the passage

of Proposition 187 and the proposed elimi-

nation of school lunch programs as -

examples of a "wake up call," Savio said,

"T feel in some ways the country is being

taken over by barbarians. The people who

feel strongly that there must be an alterna-

tive vision have to stand up now."

Savio, now a teacher of mathematics

and logic at Sonoma State University,

announced the mobilization of a coalition

of campus activists, teachers, students and

university employees to organize around

Lisa Maldonado

Keynote speaker Mario Savio (1.) and Ken

Marcus, recipient of the Jack Green Civil Liber-

ties Award.

the prevention of implementation of Prop

187 and the anti-affirmative action initia-

tive being proposed for the 1996 ballot.

Coalition members aim to work closely

with the ACLU Sonoma Chapter and the

newly formed Sonoma State University

Student Chapter, he said.

"Savio's inspiring message was one of

the highlights of our wildly successful

annual meeting - this was the first year

we completely sold out and even had to

turn people away!" said Chapter Chair

Steve Thornton. The evening also featured

entertainment by the Johnny Otis Center

for the Arts Spencer Burrows Soul Band,

and the presentation of the Jack Green

Civil Liberties Award to veteran ACLU

member Ken Marcus for work on civil

rights education at Sonoma State Univer-

sity. H

Anti-sitti ng...

continued from page 1

Andrea Prichett of Copwatch. "Copwatch

is run by volunteers, most of whom are

students or have day-time jobs. As a result,

they can only volunteer at night. If this law

goes into effect, our ability to get our

message out will be sharply curtailed."

Plaintiff Toni Catano is disabled from a

severe back injury and has been unable to

work steadily over the last few years. She

solicits money on the streets in order to

survive. "I am forced to sit because, due to

my physical condition, it is unbearable for

me to stand for any extended period of

time," says Catano. "I sit on public

-sidewalks within six feet of commercial

buildings because that way I can talk to the

most people. People seem much more

willing to respond to me when I am sitting

down. Sitting close to a building also

protects me from bad weather."

"The *six-foot' rule will only serve to

push people into the middle of the sidewalk

or onto the street," charged attorney

Schlosser. "As our economic problems

refuse to abate, and the numbers of poor

continue to rise, more and more cities are

passing laws which criminalize poverty by

punishing people simply for doing the

things they have to do in order to survive.

"We hope that this lawsuit will stop

Berkeley's attempt to single out poor

people and grassroots organizations for

discriminatory restrictions on their funda-

mental right of free speech. We hope our

actions will deter other cities from imple-

menting similar, unconstitutional

measures," he concluded.

The suit is being litigated by Schlosser,

James B. Chanin of the Berkeley-Albany-

Richmond-Kensington Chapter of the

ACLU-NC and attorneys Harry B.

Bremond, Sara D. Harrington, James K.

McMurray, Sandy L. Roth, and Jeff D.

Friedman from the law firm of Wilson,

Sonsini, Goodrich and Rosati who are

handling the case on a pro bono basis. and

Rally, Discussion Groups,

Music

WorKSHOPS ON:

Immigrants' rights,

Proposition 187,

Curfews, Religion in

Schools, Censorship,

Gender Issues,

Multiculturalism,

Affirmative Action,

Youth and the Justice

System,

Gay/Lesbian/Bisexual

issues.

with a focus on Political

Activism

Students Celebrating Freedom of Expression

A Conference for High School Students to Speak Up!

Sponsored by the Howard A. Friedman First Amend-

ment Education Project of the ACLU-NC and the ACLU

Wednesday, March 22

8:30 AM - 2:00 PM

ASUC Building

(Bancroft and

Telegraph)

UC Berkeley

FREE

(Bring or buy your

lunch)

For more infor-

mation, call us

at 415/621-2006

ext. 52

Berkeley Student Caucus

ama

UU AA Cet LT

Chapter Meetings

(Chapter meetings are open to all inter-

ested members. Contact the Chapter

activist listed for your area.)

B-A-R-K (Berkeley-Albany-Richmond-

Kensington) Chapter Meeting:

(Usually fourth Thursday) Volunteers

needed for the chapter hotline - call

Tom Sarbaugh at 510/526-6376 for

further details. For more information,

time and address of meetings, contact

Jim Chanin at 510/848-4752 or Rachel

Richman at 510/540-5507.

Earl Warren (Oakland/Alameda

County) Chapter Meeting: (Usually

first Wednesday) Meet at 7:30 PM at

Dave's Coffee Shop, 4299 Broadway in

Oakland. New members welcome! For

more information, call David Gassman

at 510/835-2334.

Fresno Chapter Meeting: (Usually

second Wednesday) Meet at 7:00 PM at

the Center for Non-Violence, 985 N.

Van Ness, Fresno. New members

welcome! Meet on Wednesday, April 12

when ACLU-NC Field Representative,

Lisa Maldonado, will join us to discuss

what's ahead for civil liberties in

California. For information on date and

time of meetings, call Nadya Coleman at

209/229-7178 (days) or Mamood Sultan

at 209/299-8560.

Lesbian and Gay Rights Chapter

Meeting: (Usually first Thursday) Join

us April 6 at 6:00 PM, ACLU-NC office,

1663 Mission Street, Suite 460, San

Francisco. For more information,

contact Jeff Hooper at 510/734-4746.

Marin County Chapter Meeting:

(usually Third Monday) Meet on March

27 and April 17 at 7:30 PM, WestAmer-

ica Bank, 1204 Strawberry Town and

Country Village, Mill Valley. For more

information, contact Coleman Persily at

415/479-1731.

Mid-Peninsula (Palo Alto area)

Chapter Meeting: (Usually fourth

Thursday) Meet at 7:30 PM at the

California Federal Bank, 2180 El

Camino Real, Palo Alto. For more infor-

mation, contact Iris Barrie at 415/856-

0193.

Monterey County Chapter Meeting:

(Usually third Tuesday) Meet March 21

at 7:15 PM, 3 Williams Road, Salinas

and April 18 at 7:15 PM, Monterey

Library. For more information, contact

Richard Criley, 408/624-7562.

North Peninsula (San Mateo area)

Chapter Meeting: (Usually third

Monday) Join us March 23 for a joint

meeting with the Mid-Peninsula

Chapter, 7:30 PM, California Federal

Bank, 2180 El Camino Real, Palo Alto.

April meeting will return to usual date

and time; call for new location. For more

information, contact Marshall Dinowitz

at 415/595-5131.

Redwood

(Humboldt County)

Chapter Meeting: (Usually third

Monday) For information on upcoming

meeting dates and times, contact

Christina Huskey at 707/444-6595.

Sacramento Valley Chapter Meeting:

(Usually first Wednesday) Meet at 7:00

PM at Shakey's Pizza, 59th and J Streets,

Sacramento. To confirm April meeting

date, contact Ruth Ordas at 916/488-

9955.

San Francisco Chapter Meeting:

(Usually third Tuesday) Meet at 6:45

PM at the ACLU-NC Office, 1663

Mission Street, Suite 460, San

Francisco. Join us for the Second

Annual Coalition Conference on the

Religious Right, May 21. For time and

location of Coalition Conference, and

further information on chapter meetings,

call the Chapter Information Line at

415/979-6699.

Santa Clara Valley Chapter Meeting:

(Usually first Tuesday) Meet at 7:00 PM

at the Community Bank Towers, 3rd

Floor Conference Room, 111 West St.

John Streets, San Jose. Contact Larry

Jensen at 408/995-3250, for further

information.

Santa Cruz County Chapter Meeting:

(Usually third Tuesday) Meet at 7:00

PM at the Louden-Nelson Community

Center, Santa Cruz. Join us at 7:00 PM

- March 30 for a panel discussion on

"Religion in Schools: A Civil Liberties

Perspective" at the Calvary Episcopal

Church, Center Street, Santa Cruz.

Contact Paul Johnson at 408/426-1397

or Eadie Deutsch at 408/458-1263 for

further information.

Sonoma County Chapter Meeting:

(Usually third Thursday) Meet at 7:30

PM at the Peace and Justice Center, 540

Pacific Avenue, Santa Rosa. Join us as

we continue our Death Penalty Vigil at

5:30 PM on April 21 at the Old Court-

house Square in Santa Rosa. Call Steve

Thornton at 707/544-8115 for further

information.

Yolo County Chapter Meeting:

(Usually third Thursday) March 16 and

May 18 at 7:30 PM, 2505 Sth Street 154,

Davis. Our Board will meet April 20.

Join us for a panel discussion on speech

regulation outside abortion clinics,

featuring Kathryn Kolbert, Director

of the Center for Reproductive Law

and Policy. For more information, call

John Crawford at 916/757-6282 or the

Chapter Hotline at 916/756-ACLU.

Field Action

Meetings

(All meetings except those noted will be

held at the ACLU-NC Office, 1663

Mission Street, #460, San Francisco.)

Student Outreach Committee:Meet to

plan outreach activities. For more infor-

mation, call Marcia Gallo at 415/621-

2493.

Student Advisory Committee: For

more information, call Marcia or Jamie

at 4175/62 1-2006 ext. 52.

Members of the ACLU-NC

Board of Directors:

Milton N. Estes,* Chair

Dick Grosboll,* Vice Chair

Davis Riemer,* Vice Chair

Margaret M. Russell,* Vice Chair

Michelle Welsh,* Vice Chair

Nancy Pemberton,* Treasurer

Luz Buitrago*

Angelo Butler

Robert P. Capistrano

William Carpmill

Helen Chang

Marna Cohen

Marlene De Lancie

Kathleen Dooley

Eleanor Eisenberg*

James Finberg

Paul Gilbert

Janet Halley

Marina Hsieh

Christina Huskey

Van Jones

Len Karpman

Jenny Kern

Dennis McNally

Regina Minudri

Susan Mizner

Charis Moore

Timothy Moppin

Herbert E. Nelson

Raymond L. Ocampo, Jr.

Maria Ontiveros*

David B. Oppenheimer

Rachel Richman

Louise Rothman Riemer

Andrew Rudiak

Zona Sage

Alberto Saldamando*

Ethan P. Schulman

John Schweizer

Frances C. Strauss*

Robert Supencheck

Judith Volkart

Burton Weiss

*Members of the Executive Committee and

the Board of Governors of the ACLU Foundation

of Northern California.

General Counsel:

Stephen Bomse, Heller, Ehrman,

White and McAuliffe.

Staff:

Frances Beal

Ann Brick

Cheri Bryant

Ed Chen

John Crew

Margaret C. Crosby

Mila De Guzman

Rita Egri

Dorothy Ehrlich

Elaine Elinson

Jean Field

Tracy Gable

Marcia Gallo

Jennifer Green

Sandy Holmes

Michael Laurence

Lisa Levy

Francisco Lobaco

Lisa Maldonado

Robert Nakatani

Valerie Small Navarro

Leah Nestell

Alan Schlosser

Zelma Y. Toro

Denise Wells

American Civil Liberties Union

of Northern California

1663 Mission Street

Suite 640

San Francisco, CA 94103

Telephone: 415/621-2493

Editor: Elaine Elinson

Writing/Research: Jean Field, Mutya Fonte

Cover Photo: Rick Rocamora

Design: San Francisco Art Department

ID BARS

Friends

ee nee by the election

in November are now hitting home, with an intensity that does

not compare to anything we've experienced in recent memory.

While our Annual Report illustrates how much we've done this past year to fight the politics of

division, it can not even begin to address the barrage of new threats that we face from anti-civil

liberties majorities in both our state and federal legislatures.

The ACLU was founded in a climate of hostility 75 years ago. Our work has changed the land-

scape of justice in America. But as we begin what should be a celebration of our achievements

over the past three-quarters of a century, a huge threat looms over our anniversary. Today's

hostile political climate makes all of our most important gains vulnerable.

The list of civil liberties under serious attack is numbing:

" Equality rights are under assault as politicians and demagogues try to eliminate California's

affirmative action programs.

cent Religious freedom is threatened by proposals for a school prayer amendment to the Constitu-

tion.

~ Reproductive rights are being assaulted by attacks on sex education and the rights of physi-

cians to perform - or even speak about - abortions.

cent Freedom of expression would be curtailed by proposals in Congress to defund public broad-

casting and the NEA.

" Due process is severely limited by "Three Strikes" legislation on the state and federal level.

cent Lesbian and gay rights are under increasing attack through local and state initiatives and in

the military.

cent Rights of immigrants are threatened by initiatives like Proposition 187.

Politicians have discovered that now more than ever, there are enormous opportunities available

for those who trade in scapegoating and prey on voter vulnerability. So if the majority of people

are dreadfully fearful of crime, feed them so-called anti-crime legislation - even if it means

abandoning constitutional rights - for it will surely get you reelected. If economic uncertainty

produces an anxious electorate, blame immigrants and become a big winner.

These are shrewd, uncaring political calculations that result in policies which wreak havoc on civil

liberties. While the slogans are shallow, the damage incurred from implementing these policies is

deep indeed.

Rather than being paralyzed by this onslaught of challenges, the organization is inspired by the

partnership that exists between our remarkable staff and dedicated board, by the strength of our

statewide program as we work even more closely with our sister affiliates in California; and from

our increasingly effective work in coalition with other organizations.

Drawing upon all of these resources and our seventy-five year heritage of fighting for social

justice, we will not waiver from our commitment to prevent enduring damage to the Constitu-

tion.

ACLU's advocacy has never been more important than it is at this frightening and demanding

time, and it has never been more important for civil libertarians to make our voices heard.

nn hy

Dorothy Ehrlich

Executive Director

-gile Woe

Milton Estes

Chair

he breadth of cases in the 1994 Legal

Docket - ranging from our successful

attempt to prove that the gas chamber

is an unconstitutionally cruel and

unusual punishment to our litigation

ensuring that three Sikh elementary school stu-

dents could return to school without compromis-

ing their religious beliefs - paints a revealing

picture of the civil liberties challenges of the

current era.

While people turn to the ACLU to fight

recurring, traditional civil liberties battles such as

the right of anti-war veterans to demonstrate or

job discrimination based on political beliefs, we

also face new challenges borne of economic

hardship and political scapegoating. The rights of

the homeless, of immigrants, of people with AIDS

- as well as the free expression rights of a new

generation of activist students and others who

would protest today's injustices - are under

attack. It is these rights that we fight for in courts

that are not often receptive to claims of individual

rights.

Though we cannot describe every one of our

current 65 cases, we summarize here the highlights

of our docket and legal work in our priority areas.

The current priority areas are Reproductive Rights,

Racial and Language Minorities, Immigrant

Rights, Lesbian and Gay Rights, AIDS, Privacy,

Student Rights, Police Practices and the Death

Penalty.

Our focus on these priority areas is coupled with

the need to react quickly and effectively to particu-

lar civil liberties crises and emergencies. For

example, on the morning after the November

election, we joined other civil rights organizations

and rushed into court to try to stop the most

draconian aspects of the anti-immigrant Proposi-

tion 187. Charging that the initiative would turn

our classrooms into INS centers and jeopardize the

education of 300,000 elementary and high school

students in California, we were able to obtain an

order prohibiting the state Department of Educa-

tion from implementing the new law.

We also respond to crises outside of court.

When the California Board of Education, after

pressure from conservative Christian fundamental-

ists, removed writings by Alice Walker from a

statewide high school exam, we joined students,

teachers and the author herself in a multifaceted

protest. We filed a Public Records Act request,

wrote letters to government officials, spoke out in

the media and testified at hearings in Sacramento.

As a result, the Board reversed its stance and

included the Walker stories in the exam.

In 1994-95, the ACLU-NC Legal Department

was directed by Managing Attorney Alan Schlosser

and staffed by lawyers Ann Brick, Edward Chen,

Matthew Coles, John Crew and Margaret Crosby.

Crew directs the Police Practices Project, and our

Death Penalty Project is directed by volunteer

attorney Michael Laurence. The staff attorneys are

ably assisted by Frances Beal and Leah Nestell. In

January 1995, attorney Coles left the affiliate staff

to direct the national ACLU Lesbian and Gay

Rights Project and AIDS Project.

The Legal Department also oversees the work of

the Complaint Desk, which is supervised by

Nestell. The Desk, staffed by a dozen volunteer

counselors, receives more than 200 calls and letters

each week from people who feel their rights have

been violated. Advised 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 provide the advocacy needed to

resolve particular grievances.

We share the accomplishments of our legal

program with more than 100 dedicated lawyers

who donate their services to the ACLU-NC as

cooperating attorneys. Two-thirds of our cases this

year were handled by cooperating attorneys

working with staff counsel. Without their exper-

tise and advocacy the ACLU-NC would not be able

to address many pressing civil liberties issues. A

list of the 1994 cooperating attorneys and firms is

on the last page.

el CG Eb AleG, Eas

OOF LHe

LEGAL DOCKET

Freedom of

Expression

PROTESTORS

poe the right to dissent has always been a

priority for the ACLU. Demonstrators whose rights

were violated as they protested two of the most impor-

tant political events of the last few years - the Persian

Gulf War and the Rodney King beating - were vindicat-

ed this year as ACLU-NC attorney Alan Schlosser

successfully settled lawsuits on their behalf.

Gulf War Demonstrators

Members of the Veterans Speakers Alliance, an

organization of veterans opposed to war, won a settle-

ment in March in their federal lawsuit against the U.S.

Army for violating their First Amendment rights at a

1991 post-Gulf War Armed Forces Day Parade at the

San Francisco Presidio. The settlement agreement in

Veterans Speakers Alliance v. Fowler includes an award of

$79,000 and a declaration that the Army will recognize

and respect the free speech rights of civilians at the

Presidio and related military bases. The settlement was

approved by the U.S. District Court in March.

The VSA had been invited to participate in the May

1991 parade which went through the streets of San

Francisco and the Presidio. As the contingent

approached the reviewing stand where military and

political dignitaries were seated, they unfurled a banner

reading "Veterans Say No War," and "Study War No

More." Fifteen veterans were attacked by Military

Police, thrown against the fence, handcuffed, searched

and detained. They were also barred from reentering the

Presidio and other military installations.

Alice Walker

protested when her short

story was pulled from a

statewide high school exam.

The settlement assures that Army must recognize that

restrictions on speech based on political viewpoint are

prohibited by the First Amendment even on a military

base.

In a separate suit stemming from the Gulf War,

Lamperti v. California, the ACLU is representing three

antiwar protestors who were beaten by California

Highway Patrol officers during two nonviolent demon-

strations against the war. In one of the demonstrations,

two of the protestors were in a sit-in on the side of the

roadway on the Bay Bridge and suffered serious injuries

when they were struck by police batons. The suit, which

is pending in San Francisco Superior Court, seeks

damages from the individual officers as well as from CHP

supervisory officials for failing to provide adequate

training and supervision.

Anti-racism Demonstrators

The City of San Francisco in January granted final

approval to a $220,000 settlement in Brown v. Jordan,

filed by the ACLU-NC in U'S. District Court in 1992 on

behalf of hundreds of demonstrators who were arrested

on May 8 while peacefully protesting police brutality,

racism and the state court acquittals of the LAPD officers

in the beating of Rodney King.

The settlement also includes the destruction of police

records of the almost 400 people swept up in the mass

arrest in San Francisco during the State of Emergency.

The settlement vindicates the constitutional right to take

part in peaceful demonstrations without fear of arrest and

helps to ensure that the police will adhere to the First

Amendment and follow official crowd control procedures

at future demonstrations.

Garment Worker Pickets

Asian Immigrant Women Advocates (AIWA) is a

community-based nonprofit organization assisting twelve

seamstresses seeking unpaid back wages from a now-

defunct employer, a former contractor for designer

Jessica McClintock. As part of a larger educational effort

about garment industry conditions, the group launched a

picketing campaign in front of McClintock's San

Francisco boutique and residence. McClintock sought

an injunction against AIWA (McClintock v. AIWA).

The ACLU and the Asian Law Caucus are represent-

ing AIWA in opposing the injunction. The demonstra-

tions, though vocal, have all been peaceful. There has

never been an arrest. In July, the San Francisco Superior

Court granted the dress designer a limited TRO, which

was extended in August as a preliminary injunction to

remain in effect until the case is tried. The court barred

the demonstrators from engaging in unlawful conduct

(including noise violations) and required them to stay at

least five feet away from the face of the building.

However, the judge refused to limit numbers or loca-

tions in any other respect, except to restrict to two the

number of picketers directly in front of the

McClintock residence.

HUD Guidelines

In repsonse to concerns expressed by the

ACLU, the federal Department of Housing and

Urban Development adopted guidelines this fall

to safeguard the First Amendment rights of

community groups and individuals who speak

out against federally-funded neighborhood

housing. In addition, HUD dropped its

controversial investigation of opponents of a

Berkeley housing project.

As a result of the Berkeley controversy and a

similar one in New York, the ACLU wrote

letters to HUD urging the agency to adopt

guidelines to guard the critical constitutional

line between enforcement of the Fair Housing

Act, which protects residents from discrimina-

tion, and censorship of community debate. The

new guidelines protect public activities from the

threat of HUD investigations and institute

safeguards so that HUD field staff do not

subpoena documents from groups whose

activities may be protected by the First Amend-

ment.

JEAN WEISINGER

Children's Advocacy

When Coleman Advocates for Children, a

respected and long-standing youth rights organization,

mailed a flyer strongly criticizing San Francisco's Mayor

Frank Jordan for his mishandling of problems at Juvenile

Hall, the Mayor's press secretary sent a letter to the IRS

asking them to investigate the nonprofit status of the

group. The ACLU immediately wrote a letter to the

Mayor, protesting this retaliatory measure as a violation

of the group's First Amendment rights to criticize

government officials and comparing the Mayor's harsh

action as the equivalent of Nixon's "enemies list." Even

the local IRS spokesperson seemed to think there were

no grounds for an investigation.

THE ARTS

ING California has not been immune from

growing attempts by narrow ideologues to stifle

ee

ACE U NGC Annual Report 1994

POLICE PRACTICES

PR (c) J is (c) Ww

s the assault on the constitutional rights of the poor and homeless continued across the

state, the Police Practices Project, directed by John Crew, provided a much-needed

voice against oppressive legislation and police abuse, and continued its work to

strengthen the powers of communities to monitor law enforcement agencies. This year,

the Field Committee again selected police practices as a priority issue, and the Project

helped provide the resources and expertise to aid in the Chapters' community activism.

Targeting the Poor

New laws targeting the homeless and indigent proliferated in northern California towns and cities,

including Marysville, Santa Cruz, Berkeley, San Francisco and Sacramento. In general, these laws ban

such offenses as sleeping on public property, sitting or lying on sidewalks, or asking for money near

bank machines. The Project, in coalition with groups representing the homeless and local chapters,

helps educate the public and local lawmakers about the civil liberties problems and ineffectiveness of

such responses to poverty.

The Project worked with the Legal Department in fighting San Francisco's Matrix program, in

which police officers targeted offenses like sleeping in the parks, lodging anywhere on public property

and blocking sidewalks. In addition to work on the lawsuit (see Legal Docket section on Homeless),

Project Director Crew confronted city officials with the practical, legal and moral dilemmas created by

cracking down on those sleeping in public but not providing shelter space.

In the June election, the Project worked unsuccessfully to defeat San Francisco Proposition J, which

makes it a crime to "loiter or linger" within 30 feet of any ATM. This law is vaguely worded and

discriminates against the poor while doing nothing to reduce crime on the streets. After the measure

passed, the Project discovered that the San Francisco Police Department had issued enforcement orders

inconsistent with the scope of the law. It forced the SFPD to issue much narrower policies that as of

December 1994 resulted in only 24 police warnings. The impact of the Project's education and activist

efforts were felt in the November elections: another San Francisco proposition criminalizing sitting or

lying on the streets was defeated by the voters.

In Berkeley, the Project supported the chapter's effort to educate voters about the constitutional,

practical and ethical problems with an ordinance criminalizing sitting and lying on sidewalks and

severely restricting even peaceful soliciting of money. This ballot measure passed, and the ACLU will

seek to halt its implementation. In Santa Cruz, the Project helped work with the chapter to use

political and legal pressure to narrow the city's implementation of anti-sitting ordinances.

Police Misconduct

After the well-publicized discovery of illegal surveillance of political organizations and individuals,

the San Francisco Police Department blamed its violation of intelligence-gathering policies on the

restrictive nature of the policies. The Police Department attempted to gut key provisions of these

policies, which were negotiated by the ACLU-NC just four years ago. Working with community

groups, the Project was able to keep the policies substantially intact.

In the summer of 1994, the SFPD also proposed massive revisions in its entire manual of General

Orders. While the department claimed that these changes involved only "clarifying" policy language,

the ACLU-NC discovered that many of the proposals would have eviscerated policy reforms negotiated

and litigated by the ACLU-NC over the last 15 years. The Project recruited allies in the press, in

community groups and in labor to ensure that the public would have input in the review of the policies.

Through this public hearing process, we won stronger policies on reporting and monitoring uses of

force and limiting when warrant checks would be allowed. The Police Department also finally agreed to

develop a mandatory "early warning" system to identify officers named in large numbers of complaints

and to intervene with these officers using non-disciplinary techniques. The Project also was able to

defeat several SFPD proposals to weaken policies, including those regarding processing OCC com-

plaints; public access to police reports; requesting identification and detentions; right of onlookers;

labor disputes; and processing detainees for psychological evaluation.

The need for such policies became more evident as the Project's three-year campaign to force greater

public disclosure of the details of OCC and discipline cases finally bore fruit. The openness provisions

of the city's contract with the police unions were implemented in August 1994, and the reports

revealed that more than 80 percent of sustained OCC cases resulted in no discipline whatsoever, even

for cases of very serious misconduct. After collaborating on a report exposing the risks of police use of

pepper spray, the Project discovered that the San Francisco Police Department planned to begin using

pepper spray without the legally required notice and approval by the Police Commission. The Project

demanded public hearings on the Department's intent to use the controversial new weapon, and

negotiated strong policies restricting and controlling its use by San Francisco police officers.

Civilian Review Boards

The Project's work with chapters has helped keep civilian review of law enforcement on local

agendas. After several years of effort by the Project, the Santa Cruz chapter and a local coalition, the

City of Santa Cruz became the latest northern California community to create a civilian review board.

Efforts to create a strong independent form of oversight in San Jose continued.

In December, the California Supreme Court upheld the right of counties to create tough citizen

review boards to investigate police brutality. The ACLU filed an amicus brief in case Dibb v. County of

San Diego, arguing in support of a county's right to create review boards with subpoena powers that

enable them to compel law enforcement officers to testify or produce documents - powers that are

crucial to complete a meaningful investigation.

Gang Task Force

The Police Practices Project is working with the Public Information and Legal Departments to

investigate how law enforcement efforts to combat gang violence discriminate against young people of

color. In one such incident, we assisted a young girl who had been photographed and falsely labelled a

possible "gang associate" in a Santa Rosa Police Department database. She had been in a neighborhood

park shortly after a posted closing time, and could have been issued a $25 fine. The department agreed

to destroy the photograph and delete the computer reference to "gangs" but continues to claim the

0

authority to photograph any infraction offender. "

creative expression and diverse political views in the arts

and media. Staff attorney Ann Brick, often working in

conjunction with the national ACLU Arts Censorship

Project, has protected freedom of expression in settings

ranging from a punk rock club to the State Board of

Education. :

Censorship of Alice Walker

When a reporter revealed in February that members of

the California Board of Education, under pressure from

conservative Christian fundamentalists, had removed

Roselily, a story by Pulitzer Prize-winning author Alice

Walker from a statewide high school exam, the ACLU

wrote to the Acting Superintendent of Public Instruction

charging the Department with acting as a religious

censor, something that both the state and federal govern-

ment prohibit. The letter became part of a loud chorus

of protest from students, teachers, writers organizations

and the Pulitzer Prize winning author herself.

The furor revealed that two other works of fiction,

another story by Walker and an excerpt from Annie

Dillard's An American Childhood had also been vetoed

by members of the state Board.

In March, the ACLU sent Public Records Act

requests to state education officials and Governor Pete

Wilson demanding all documents relating to the removal

of the three short stories from the CLAS examination,

stating that censorship by the Board violates the most

basic tenets of freedom of expression.

Following the demand, the ACLU-NC joined scores

of other censorship opponents at a state Board of

Education meeting in Sacramento to decry the removal

of the stories. At the close of the hearing, the Board

voted unanimously to reverse itself and to return the

stories to the pool of literature to be used in future

CLAS tests.

Performance Art

When punk rock artist Marian Anderson presented a

concert with her band at Berkeley's 924 Club, a member

of the audience - a former punk rocker - was offended

and called the police. Anderson was arrested and

charged under California state laws with indecent

exposure and lewd conduct.

The ACLU-NC represented Anderson, successfully

requesting the court to dismiss the charges against

Anderson on the grounds that California's laws against

indecent exposure were not meant to apply to musical or

theatrical performances. If stretched to criminalize

artistic expression that is not legally obscene, the laws

would be unconstitutional; therefore this case, People v.

Anderson, is important for all actors, producers, musi-

cians and other performers whose work can be character-

ized as sexually explicit.

Mural Art

When artist Alice Campbell found herself facing an

intractable problem in preventing vandals from spraying

graffiti on the wall of her San Leandro warehouse, she

came up with a solution that was at once practical and

creative. Knowing that graffiti writers are much less

likely to deface a mural than succumb to the temptation

of a large, blank wall, Campbell planned to cover the wall

with a graffiti-resistant coated mural celebrating women

in the arts.

However, when the San Leandro Planning Commis-

sion denied her a permit for the mural because a few of

its 90 panels depicted nude figures, Campbell sought the

assistance of the ACLU to appeal the denial. We wrote

to the City Council on her behalf, pointing out that the

Commission's insistence that all nudity be eliminated

from the mural was a content-based restriction prohibit-

ed by both the state and federal Constitutions. The

decision was reversed and the Commission issued the

permit. The mural has since been chosen the Best

Collaborative Mural by the San Francisco-based Precita

Eyes Mural Arts Center.

Cable Access TV

Declaring that cable access channels are meant to

serve as public forums, accessible to all interests, the U.S.

District Court in March issued _an order blocking Viacom

Cable of San Francisco from censoring programming on

public access channels. It declined to issue a similar order

with respect to leased access channels.

The ACLU-NC filed an amicus brief in Altmann v.

Television Signal Corporation, arguing that when Viacom

imposes censorship on public and leased access channels

based on its own vague and subjective notions of

"indecency," it violates federal law and deprives both

producers and viewers of the type of non-mainstream

programming that Congress in the 1984 Cable Commu-

nications Policy Act intended to encourage. The case has

now been stayed pending a ruling by the U.S. Court of

Appeals for the District of Columbia in a case raising

almost identical issues.

VOTING RIGHTS

harging that Governor Pete Wilson has thwarted the

implementation of the National Voter Registration

Act (NVRA), commonly known as the "motor voter"

law, a coalition of voting rights organizations filed a class

action civil rights lawsuit, Voting Rights Coalition v.

Wilson, in December in U.S. District Court. The

ACLU-NG, the Lawyers Committee for Civil Rights and

other public interest groups are representing the voting

groups.

The NVRA was passed by Congress in 1993 to close

the gap between minority and white voter registration

rates by facilitating voter registration at DMV, social ser-

vices and other state agencies. Governor Wilson's failure

to implement the lawsuit in California has a particularly

harmful effect on minority communities and the poor. A

_ few days after the lawsuit was filed, Governor Wilson filed

a suit against the federal government demanding that

they provide funding to implement the motor voter law.

A few weeks later, the U.S. Department of Justice filed a

suit against the State of California for not implementing

the law by the January 1, 1995 deadline.

RELIGIOUS FREEDOM

he perennial question of religion in the schools

gained new prominence this year with not only the

radical right but also the new Republican majority in

Congress vowing to bring prayer back into public

schools. This year also saw the first ACLU lawsuit under

the Religious Freedom Restoration Act of 1993. The

suit, Cheema v. Thompson, illustrates how, despite the

clamor for religion in school, the rights of students who

belong to minority religions are often ignored.

Sikh Students

Three Sikh elementary school children from the

Cheema family were barred from their classes in the San

Joaquin Valley town of Livingston because they wore the

kirpan, a small, blunt, concealed, and tightly sheathed

ceremonial dagger which is a sacred symbol of their

religion. 7

School officials, claiming that the religious symbols

violated the district's weapons policy, demanded that the

children, ages 7, 8 and 10, remove the kirpans, before

they would be allowed back in school. Their mother,

explaining that baptized Khalsa Sikhs undertake a

religious duty to wear five sacred symbols, including the

hirpan, at all times, turned to the ACLU.

Although there has never been an incident of kirpan-

related violence or disruption in school in the United

States or Canada, the district refused to accommodate

the children's religious beliefs. The ACLU-NC filed suit

in U.S. District Court in April asking that the children be

allowed back in school. The judge ruled in favor of the

school district, and the three children were suspended for

the duration of the spring semester. Aiming to get them

back to class by the start of school in September, the

ACLU requested and received an expedited hearing in

the Court of Appeals. In August, a three-judge panel of

the Ninth Circuit Court of Appeals heard oral argu-

ments, and within weeks ruled that the children should

be allowed back in school.

The Cheema children went back to school in Septem-

ber wearing their tightly sheathed kirpans under their

clothing; despite the fact that there have been no

problems with the kirpans, the school district is still

trying to bar the three children. Fortunately, the

district's attempt to lift the injunction ordering the

children to school failed in the District Court. The

school district has appealed the injunction. The case is

still pending a full trial on the constitutional issues.

City-owned Cross

Charging that the City's cross on Mt. Davidson is a

divisive presence in a pluralistic society that makes the

Bay Area's many residents of minority faiths feel dimin-

ished and unwelcome, the ACLU-NC argued Carpenter

yp. City and County of San Francisco, before a three-judge

panel of the Ninth Circuit Court of Appeals in Novem-

ber. Bay Area religious leaders, including a Baptist

minister, a Jewish rabbi, a Buddhist priest and a Unitari-

an minister, brought the suit in 1990 to challenge the

government's ownership and maintenance of the largest

cross in the United States, in solitude, in a public park,

on the highest of San Francisco's seven hills.

Although a U.S. District Court judge decided in

1992 that the City's ownership of the cross was constitu-

tional, two recent U.S. Supreme Court opinions in

similar cases out of San Diego ruled that government

maintenance of crosses in public parks violate the

California Constitution.

The suit, in which we are joined by the American

Jewish Congress and Americans United for Separation of

Church and State, asks that the city divest itself of this

towering religious symbol.

Refusal to Rent

We joined the ACLU of Southern California in an

amicus brief in Smith yp. Department of Fair Employment

and Housing, a case in which a landlord is arguing that

her religiously based opposition to cohabitation gives her

the right to refuse to rent to unmarried couples. We

agree with the landlord that her right to free exercise can

only be overcome by a compelling interest. However,

we argue that the state's interest in preserving the

constitutional privacy rights of all its citizens is com-

pelling, and that except for a few situations like rental of

a room in a person's home, forbidding inquiries about

marital status and relationships is the only way to

reconcile the two rights. The case is particularly

important to lesbians and gay men, against whom claims

of a religious right to discriminate are often made.

Fighting

Discrimination

RACE DISCRIMINATION

he "war on gangs" has led to unjustified discrimina-

tion and harassment of young people of color by law

enforcement agencies and commercial businesses. Police

departments throughout the state use computerized

databases to catalog the names and photographs of

young people simply because they were talking to a

person in their neighborhood or wearing the "wrong"

brand of sneakers. The ramifications of

presence in such gang databases may

include repeated street stops and

questioning by police, stricter enforce-

ment of curfews and other laws, and

the potential dissemination of such

information to schools or private

businesses or organizations. We are

investigating and monitoring these

police databases (see Public

Information), and staff attorneys and the Police Practices

Project respond to discriminatory practices by local

governments, law enforcement agencies and private

businesses.

Gang Profiles

At shopping malls and amusement parks, the ACLU

has successfully battled the use of "gang profiles," by

which young men of color are stereotyped and stigma-

tized because of their race, age, gender and style of dress.

In response to an ACLU lawsuit (Ramirez-Claire v.

Bohannon Development Company), the Hillsdale Shop-

ping Center in San Mateo agreed to abandon its practice

of excluding and ejecting young people based on the

style or color of their clothing. The settlement, reached

in April, includes a financial award to four Latino

teenagers who were ejected from the mall solely because

they were wearing an article of black clothing and so

were suspected of being in a gang. None of the young

men were involved in gangs, nor were they bothering

anyone at the mall when security guards detained and

ejected them. As part of the settlement, shopping center

owners agreed that its employees will not exclude or i

harass visitors to the mall "as a consequence of wearing

such attire as those employees or agents might associate

with gang membership or affiliation." However, the mall

may post a written notice requesting that visitors not

wear or display bandannas while at the mall, but is barred

from taking any action against anyone who does.

Injunctions

In San Jose, city officials adopted a tactic used in

southern California of bringing a nuisance abatement

action against 38 Hispanic youth and 100 unnamed

individuals (People vp. Acuna). The City claimed that the

defendants are gang members, and won a preliminary

injunction that prohibited these named and unnamed

individuals from engaging in a broad range of such legal

and constitutionally protected conduct as associating

with "known gang members," talking with occupants in

cars, climbing trees, possessing lawful objects such as

screwdrivers, or making any reference to the gang name.

As co-counsel representing some of the named

defendants, the ACLU argues that there is no factual

basis to the claims that the individuals are actually

involved in the criminal activity targeted in the com-

plaint. Additionally, the City's civil action creates guilt by

association in violation of the First and Fifth Amend-

ments, and is an improper attempt to circumvent the

procedural safeguards of a criminal action.

The ACLU has appealed the preliminary injunction

and oral arguments in the California Court of Appeal are

expected to take place in 1995.

In Oakland, the ACLU successfully intervened to :

defeat the City's attempt to obtain a similar "nuisance `

abatement" injunction against the members of an alleged

street gang. The City sought to ban 18 young men from

a seven-block area in Oakland's Elmhurst neighborhood,

claiming that they were members of the "B Street

Boys." In an amicus brief, the ACLU argued that the

City's civil suit (Oakland v. B Street Boys) violated

the young men's constitutional rights of freedom of

association and due process of law. The Alameda

County Superior Court denied the City's request

for an injunction, saying that it imposed collective

punishment without a finding of personal guilt,

was vague and overbroad, and would

circumvent the criminal justice

system.

Police Mug Books

We are representing a

Vietnamese man in a lawsuit

(Nguyen v. San Jose) against

the San Jose Police Depart-

ment for its policy of

maintaining a mug shot

book of Vietnamese

persons that was used in

interviewing crime

victims. In 1990 Nguyen

had been stopped and

questioned by San Jose

Police at the police

station, photographed,

_ so ns EE

ACLOGO-NC Appwvel Repore LODE