Uncivil Liberties

"They got the kids and we got the house," said Jay Jacobson, director of the Texas chapter of the American Civil Liberties Union, as he recently assessed the often bitter divorce between the Houston ACLU and the Clark Read Foundation, the former fundraising arm of the Houston chapter. It is a split that for the past two years has left Houston without any effective independent organization or voice to monitor and protect against the erosion of Constitutional guarantees.

Both organizations now have grand hopes for the future as they try to rekindle the flames of freedom left cold from their campfire pissing match. However, both sides agree that the contest has diminished what was once a relatively strong civil liberties community here.

Ironically, it was problems with the ACLU state office in Austin -- not Houston -- that lead to the confrontation between Houston and the ACLU national board a couple of years ago.

"The state board fired the executive director," says Jacobson. "Jim Harrington, as legal director, then sort of picked up the slack. And the board gave him specific instructions not to litigate some things. He went ahead and did it anyway, and they fired him after he literally disobeyed a direct order from the board of directors not to spend resources on these particular projects."

Others close to the dispute defend Harrington and say he never went against the orders of the board.

Jacobson says Harrington then took legal action against the board.
"Harrington sued the board, not only in their official capacities, but also as individuals," says Jacobson. "And that's not really done, particularly when they were not acting in their individual capacity. But each one had to go out and hire their own lawyer, and not all them had that kind of money. And he knew it."

At that point, the state board members asked the national office of the ACLU to dissolve the Texas board.

"And the theory of the national board is, let's make this problem go away as fast as possible," Jacobson explains. "So we spend a few more thousand dollars than we would if we litigated. It doesn't matter. Let's just start again. Because the more energy they spent litigating the internal problems, the less time they would have to reorganize and start doing civil liberties work."

After a similar problem occurred in Ohio, Jacobson says, the national board of the ACLU changed policy in hopes of avoiding any future situations.

"In 1992 the national board rewrote the emphasis on state/affiliate chapter relations," says Jacobson, "so that the purpose and function of the chapter is to carry out the program of the state. That's the way it's written now. And outside of those parameters, if the chapter wants to do other things, that's fine. But the purpose and function of the chapter is to pursue the goals of the state board."

The policy change also called for only one ACLU affiliate per state, with other offices in the state serving as chapters of the state office. That rule carries with it financial provisions.

"So that meant the Houston foundation basically had to give up its assets to the state. And I think that's basically what they weren't willing to do here in Houston. The view was, 'We're successful and they are not -- why are we being penalized?', without understanding that there was not supposed to be any 'we and they.' It was all supposed to be 'us.' "

Indeed, the prospect of losing autonomy, and the right to decide to fight its own fights and raise its own money, was unpalatable to many longtime members of the Houston chapter. And for the first time since the late 1950s, Houston found itself without an ACLU presence. Ben Levy, former associate justice on the First Court of Appeals, was one of the local founders.

"I just went around speaking to some liberal friends about the strong necessity of having an organization in Houston to protect the civil liberties of various unpopular people in the aftermath of the McCarthy era," Levy recalls. "People were still being red-baited and denounced publicly and discriminated against for having leftist-leaning or unpopular views.

"One of our first cases was representing people in prison who were deprived of fair procedures. We filed the first suit in federal court to declare the prison system inhumane because of terrible overcrowding. It was Judge Carl Bue a few years later who issued an order requiring state and county officials to humanize the terrible conditions in the Harris County jail.

"I represented a black fellow, Emmitt Fisher, who was denied the right to go to a restaurant solely on the grounds that he was a black man. We recovered damages after he was rudely told to leave and a plate was snatched out of his hands. That was the first time a black man had ever recovered damages. That I recall very well because the incident happened on the same day [President John] Kennedy was shot, November 22nd of 1963.  

"I won [the case] before the jury, but the judge, notwithstanding the verdict, gave judgement to the defendant -- who was represented by the biggest law firm in town, Vinson and Elkins. But the Supreme Court handed down its [favorable] decision in 1967."

Levy says the incident had occurred at the Brass Ring Club of the Carousel Motor Hotel, and that the case is now cited in law textbooks throughout the country.

It was at the urging of the Houston chapter in the early 1970s that the state office was created.

"In the early '70s we determined to have in the state of Texas an entity in Austin to do lobbying with the Legislature," says Ben Russell, one of the original co-founders of the Houston chapter of the ACLU in the late 1950s. "So we joined with two or three other chapters that had come into being in Texas and agreed we would try to keep a real Austin office.

"It went along real well until the late '70s. They got a large bequest from a family that had died very young and very wealthy and left the state office a quarter of a million dollars," says Russell. "Instead of putting that money into some kind of situation where they could spend interest and keep the principal, they spent the principal over the next ten years. They stopped fundraising.

"I was off of the board during that period of time. And they proceeded to overspend their budget. They bought a building at the top of the market. When it came time to do something about the problems, the market had collapsed and they still owed $80,000 on a building that was worth $40,000. And they had spent the last of their bequest getting their down payment together.

"At that time, in about 1985 or 1986, I got back involved with the ACLU at the state level and started demanding that, on behalf of the Houston section, that they would become fiscally responsible. I was chair of the state finance committee from 1985 to 1990. Trying to get them to do fundraising. Trying to get them to mount a typical old church call-up and get fifty bucks.

"None of which ever came to pass. I organized at least three or four times to do it. And every time I got to it somebody, mostly Harrington, would get involved in undermining the program. Jim's a lawyer. He didn't want to do fundraising. The then-director, although he gave lip service to the concepts of doing fundraising, he never really wanted to, never understood it, never got involved in it. Our [financial] committee never really functioned. And by early 1990 they had gone really bankrupt, at which time they had to let their executive director go. So at that point in time they asked the national [board] to come in and take them over and advise them how to get out of these financial problems."

When the national office came to Texas in the summer of 1991 to deal with the mess, Russell says, he and others in Houston wanted fiscal responsibility to be the keynote of the reorganization.

They immediately starting talking about budgeting for the following year at $150,000 on a $100,000 intake," recalls Russell. "And I would just not be a part of it."

Because of what he saw as a return to the same road of financial ruin, along with diminished control of self-determination for the local organizations, Russell severed his more than 30-year relationship with the ACLU. In the fallout of resignations here and in Austin, the Houston office was shut down.

Russell is now administrative director for the Clark Read Foundation, a civil liberties organization which, beginning in the mid-1970s, had served as the tax-exempt fundraising arm of the Houston chapter of the ACLU. In 1992, following the break-up of the organization, Russell says he and several other local members of the ACLU decided they would continue to defend the Bill of Rights under the name of the Clark Read Foundation.

"The national [ACLU] wrote us a letter in January of that year and told us that the assets of the Clark Read Foundation were the assets of the national organization," says Russell. "We found it very a difficult legal position to say that an organization in New York would come and say that an organization established in Texas, with a Texas board of directors, had any responsibility or affiliation to the national. We rejected their concept.  

"We in Houston had always raised our own money. We in Houston had never taken any national money. We funded a lot of things around the state that were beyond our [boundary] lines but we felt strongly enough about the cases that we did them and paid for them. We did our own fundraising. We kept our own office. National would never understand the kind of fundraising we did. It's the old church stewardship approach to fundraising. They think of that as not fundraising. And they kept looking to us to give them this list of large donors. We had no large donors. Our largest donor was $3,000 a year. That's hardly in the scope of the kind of money they were looking for, people that gave $25,000 and up."

After a year of legal wrangling, Russell says, the two sides eventually reached a settlement in which the national office got the headquarters -- a deteriorating house on West Gray with $20,000 left on the note -- and the Clark Read Foundation kept the other assets.

So we gave them the building and said, 'Now get away from our bank account,' and they agreed to that," Russell says. How much money was at stake? "We never told them and we probably never will," he laughs.

"My philosophical reason [for the break with the ACLU] is that I believe civil liberties happen and take place at the local levels," says Russell.

"The ACLU is the largest law firm in the United States in terms of going to the going to the Supreme Court. Second only to the Justice Department of the United States government. So, you have to say, okay , if we're going to have to go to the Supreme Court, that's a national position. But if you're going to look at what Harris County Commissioners Court is doing, what city council is doing, what are the local issues, what's happening in Houston, Texas with the police department, what are the inequities? Mayor Lanier wants to get involved in censoring Access television. What is the issue there?

"So what [the Clark Read Foundation] has been doing for the past year or two is sort of putting our thrust into spending our time monitoring and looking at whatÕs going on in city council and the commissioners court, from a civil liberties standpoint"---a plan of direction not all that divergent from what Jay Jacobson would envision for the reborn ACLU of Texas. The new state executive director says in the past year of transition he has been reluctant to move forward too quickly.

"There has been general intrepidation on my part to do a lot of new things without a board," says Jacobson. "It's just not my place or my style. The board ought to be setting the direction for programs."

owever, Jacobson has definite ideas about in what sort of areas the revamped affiliate should focus.

"I'd like to see a renewed emphasis on legislation, lobbying, analyzing things," says the director. "There are just too many things going on to have time to sit down and read the bills. Hundreds of bills that might potentially affect civil liberties. I would like to see the local board do that on the local level. There's the county doing things. There's the city doing things. Is the thing they did to Access Houston censorship? Maybe. Maybe it ought to be censored.

"I'd like to get educational materials around to deal with the misinformation about church/state stuff."

ut despite the common goals, Russell believes lingering ill feelings remain a roadblock to cooperation between the two former allied groups.

"I know a lot people in the ACLU in the state of Texas," says Russell. "I keep in contact with those folks. The feeling out there is in places like Beaumont is that they're not happy with what's going on because they have lost their autonomy. They've lost their local operations to the extent that they can not now take on legal cases without state approval.

"When the organization fell apart we had a lawyer in Austin with a paralegal. We had three lawyers in Houston. We had that kind of an organization. And we're offended by that lack of attention to the legal situation."

But with 1600 members in Houston and 6000 statewide Jacobson is hopeful that the ACLU has turned the corner in Texas.

"National is going to raise over a thousand new members in this state this year," predicts Jacobson. "My guess is that [new membership] is going to go over 1200, which is the highest they ever had. And that was in 1988 when George Bush was ACLU-bashing and membership shot up."  

gain the words of Jacobson and Russell almost parallel each others as the Clark Read official also laments the existence of highly identifiable villains to rally the faithful to action.

"It was much easier in the days of Nixon and [former Houston police chief Herman] Short to do civil liberties work," laments Russell. "The issues were better defined."

ussell, too, laments the riff that has developed between the two organizations with so much in common.

Technically speaking, I'm still president of the Houston [ACLU] chapter," jokes Russell somewhat wistfully. "I've never been told that I am persona non grata. I am saddened by the whole process. Things need to be done and we don't have the ability to do it. The ACLU needs to succeed."

Russell's former co-founding partner Levy echoes those sentiments.
"The need for the ACLU is as great as ever," says Levy. "We hope the jurisdiction problems have been resolved. The overwhelming question is the need for a civil liberties group to protect the rights and liberties and opportunities for those who can not defend themselves. Which is why the ACLU first developed. And we welcome people who have been through the unfortunate disagreement between the national and local chapter. Some of the principal antagonists on the local scene are, unfortunately, not showing much interest in participating in the reconstitution of the Houston chapter of the ACLU. But I am hoping that the vitriol behind the disputes of the past have more or less dissipated and we can cooperate together in the protection of civil liberties."

"I don't think the Republic will collapse without the ACLU," says Jacobson. "But it will take us longer to come around to positions which involved government interference with individual rights without an ACLU. It is a base more than anything else. A strong ACLU presence provides a base for a community, a touchstone.

"All you can do is be the voice crying in the wilderness, reminding people who they are, really, as Americans. And then, the rest, you have to hope on a basis of their conscience. But that's really all you can do. The mighty ACLU isn't."

There will be a meeting the night Wednesday, December 8 at the ACLU headquarters on West Gray to form a new interim board of directors.

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