District residents favor limits on campaign
contributions; the American Civil Liberties Union is suing to overturn them.
District residents favor a curfew for
children; the ACLU is suing to repeal it.
District residents favor student-led school prayer; the ACLU is suing to prevent it.
Do civil libertarians really know what’s best for the city?
Meetings of the D.C. Board of Elections and Ethics are usually sleepy affairs. A few petitioners present their cases, the three-member panel discusses them, and the spectatorsno more than a handful of themobserve quietly in the back of the room.
But on April 6, 1994, nearly 400 Bible-thumping adults transformed the community room at 1 Judiciary Square into a surrogate Sunday meeting. The crowd, dressed up in suits and ties, dresses and hats, had come to show and shout their support for a citizen-sponsored initiative to return prayer to the schools. The initiative, which was sponsored by public-housing employee and aspiring politician Chuck Ballard, would have permitted nonsectarian student-led prayer in D.C. public schools. If approved by the board, supporters of the initiative would have been allowed to gather signatures to place it on the November 1994 ballot.
A cry of “Hallelujah!” and a reading from Luke would have been more appropriate than a call to order and the recitation of the minutes. Ballard told board members that “God laid something on my heart” when he wrote the text for the initiative. “It’s my way of getting a little bit of morality back in the school system.”
David Gilmore, a 27-year-old Southeast resident, testified that African-Americans were witnessing an unprecedented rise in bedlam in their neighborhoods and their children’s schools. If God can’t help us, Gilmore suggested, no one can.
As Gilmore finished, he noted the racial dynamic of the meeting. “Let the voters decide, and not one race of people,” he said.
Almost everyone in the huge crowd favoring the prayer initiative was black (a rare exception: David New, a Bethesda bankruptcy lawyer assisting Ballard). The initiative’s opponents, who numbered only three, were all white. They were James Nathanson, then a D.C. councilmember; Elliot Mincberg, a lawyer for People for the American Way; and the leader of the trio, Arthur Spitzer, legal director for the American Civil Liberties Union (ACLU) of the National Capital Area.
Gilmore’s comments didn’t faze Spitzer. A fixture on the District political scenealthough he is no politicianSpitzer is a short, ruddy-faced man who speaks as if his words are bullets. Undeterred by the shouts of “Praise the Lord,” Spitzer told the board that the initiative was simply wrong. “The ACLU has nothing against prayer. It simply believes there is a proper time and place for prayer, and official public-school exercises are not the time and place.”
He ignored discontented murmurs and continued his argument: Permitting the school-prayer initiative to move forward, Spitzer said, would violate the rights of students of minority religions: Jews, Muslims, Jehovah’s Witnesses, etc. (Not that those groups necessarily agreed with him: Imam Ghayth N. Kashif scoffed at Spitzer’s claim and told the board that Muslims are “not paranoid about prayer at all.”)
When the board voted at the end of the day’s session, Spitzer and other prayer-initiative opponents lost. Ballard won permission to gather the 40,000 signatures needed to place the measure on the ballot. Still, Spitzerthe ACLU’s pit bullwas not deterred. He quickly filed a lawsuit in D.C. Superior Court hoping to overturn the board’s decision. The court turned him down, too.
Personal problems derailed Ballard’s signature gathering, so the prayer measure never found its way onto the 1994 ballot. But the initiative is still alive, and the ACLU is still trying to kill it. In March 1995, New refiled the prayer initiative with the board of elections. Once again, the elections board approved the measure. Once again, the ACLU went to court to prevent prayer supporters from putting it on the ballot. D.C. Superior Court Judge Geoffrey M. Alprin expects to hear the case in the next few months.
If Alprin okays the prayer initiative and if D.C. residents vote to approve it, you can bet your house that the ACLU won’t stop fighting. Spitzer and his allies will appeal the initiative’s constitutionality to the D.C. Court of Appeals. And if they lose at the D.C. Court of Appeals, they will almost certainly appeal it to the Supreme Court: “The Supreme Court has said very clearly and very consistently for years that organized vocal prayer has no place in the public schools,” Spitzer has said.
Thwarting the majority for the benefit of the minority is serious business for the ACLU, but Ballard and other District residents are starting to view the civil-liberties zealots as a major obstacle to improving their community.
“The ACLU is hurting our children,” says Ballard. “The ACLU should do door-to-door research; in parts of our city, people are really suffering. If they went door-to-door, they could hear reality. We have decent people who are hurting.”
The battle over school prayer isn’t the only arena where the local chapter of the ACLU has riled Washingtonians. In the past five years, the group has repeatedly tried to derail popular solutions to major social ills. The ACLU is fighting D.C.’s youth curfew. It has tried to overturn the city’s anti-loitering law. It has attacked a city plan to lengthen prison sentences. It has objected to a statute that allows 14-year-olds charged with violent crimes to be tried as adults. And it offers mammoth opposition to a law capping campaign contributions in D.C. races at $100.
“They are so detached, it’s like putting square pegs in round holes,” says Doug Hess, special projects organizer for the national office of the Association of Community Organizations for Reform Now (ACORN). ACORN is tangling with the ACLU over the campaign contribution limits.
“A lot of lawyers tend to believe they are the force for social change. From our point of view, lawyers are plumbers,” continues Hess. “The community needs to be the architects. [The] legal professionals should be technicians to help us get where we want to be.”
Jamin Raskin, an American University law professor, D.C. activist, and former member of the local ACLU board, says 75 percent of the time he is a “passionate supporter” of the organization. But 25 percent of the time he is a “bitter critic.”
“Most of the time they do some absolutely wonderful things,” says Raskin, citing the ACLU’s battles against police brutality. “But then…they do some completely mysterious, borderline-insane things.”
For two generations, many Americans considered the ACLU a heroic organization. From the ’20s through the civil rights movement, it formed a powerful triumvirate with the National Association for the Advancement of Colored People (NAACP) and labor unions, seeking to protect the rights of immigrants, racial and ethnic minorities, and workers against xenophobia, racism, and oppressive government laws.
Founded in 1920 by Roger Baldwin, an anti-war activist and labor union advocate, the ACLU “dedicated itself to holding the government to the promise of freedom set forth in the Bill of Rights,” according to its own documents. (The Bill of Rights, for those who’ve forgotten their American history, sets limits on the democratic majority. The first 10 amendments to the Constitution ensure freedom of speech, assembly, and religion and establish such rights as privacy, due process, and jury trials.)
“The ACLU was formed to try to make those principles vital and effective at a time when there was no other organization that did thatat a time when [the ACLU’s] founders felt those rights were under attack,” adds Spitzer.
Protecting those rights has made celebrities out of the organization and its clients. In 1925, when Tennessee passed a law against teaching evolution, the ACLU leaped into the fray. It represented science teacher John Scopes, who had been convicted of violating the law. The case, which inspired the play and movie Inherit the Wind, went all the way to the Tennessee Supreme Court. It upheld the law, but reversed Scopes’ conviction.
In 1933, the ACLU challenged Jersey City Mayor Frank Hague when he claimed he could restrict free speech in city parks and public spaces. The Supreme Court ruled public places and parks belonged to the people, not to Hague. The organization also filed briefs in the 1954 Brown vs. Board of Education case. (The ACLU, as you might guess, opposed segregation.)
A nonprofit organization, the ACLU claims around 300,000 members nationwide. Its national headquarters is in New York City, but the core of the group is its 300-plus local affiliates. Local chapters are chartered where there is “enough membership and enthusiasm,” says Spitzer, who adds, “There is unity without uniformitythe national headquarters doesn’t tell us what cases to take or who to hire.”
Local affiliates send representatives to the national board of directors. They also donate a portion of the $20 membership fee ($5 for students and senior citizens) to defray the national organization’s expenses. The national office runs a variety of legal sub-projects, including the National Prison Rights Project, the Gay & Lesbian Rights Project, and the Voting Rights Project. The ACLU’s Children’s Rights Project is especially familiar to Washingtonians. It successfully sued the District government to force it to fix its life-threatening foster care system.
The National Capital Chapter, which was chartered in 1961, includes the District, Montgomery County, and Prince George’s County. About 6,000 members belong to the chapter, which operates on a budget of about $300,000. It has five paid employees, who include Spitzer and executive director Mary Jane DeFrank. They and numerous volunteers occupy cramped offices on 20th Street NW. (Unless specifically noted, all subsequent references to the ACLU refer to the National Capital Chapter.)
The ACLUboth locally and nationallyaccepts attorney fees in lawsuits it wins. It is nonpartisan, and it doesn’t receive government funds. “We don’t ask for [government money] and we don’t want it, because government money brings government control,” explains Spitzer, citing the recent brouhahas over funding for the National Endowment for the Arts and the Corporation for Public Broadcasting.
Spitzer tries hard to distinguish the ACLU’s political philosophy from dyed-in-the-wool libertarians and anti-government conservatives. The organization navigates a delicate philosophical line, Spitzer says. It seeks to minimize government interference in individual rights, yet contends that government is not entirely evil. The state is sometimes necessary to protect the liberties enshrined in the Constitution.
“We start from the proposition that the way to maximize individual freedom is to minimize government,” continues Spitzer. “But you can’t stop there [as the libertarian Cato Institute does]. There are some areas where you need government action to further principles of civil rights and civil liberties. Our view is there is nothing wrong with government getting involved with trying to advance general welfare, if it’s not infringing on individual rights.
“If you allow individual rights to be eroded, you’re going to wind up in a country which is much less free. There is a very high value to individual freedom,” says Spitzer. “I think it’s very important we be here to protect everybody’s civil liberties and not care what their politics are,” he adds.
It is this indiscriminateness that gets the ACLU in trouble, say some of its critics. The ACLU has never seen a civil liberties case it didn’t like. In 1990, for example, the ACLUmany of whose members and staffers are Jewishrepresented the Ku Klux Klan (KKK) when it sought to march down the main thoroughfare of the nation’s capital. At the same time, the organization also sought to secure the right of Nation of Islam leader Minister Louis Farrakhan to attend the trial of Mayor Marion Barry. (U.S. District Court Judge Thomas Penfield Jackson had denied Farrakhan access, saying his presence might be disruptive. Farrakhan was permitted in the courtroom.)
“I might not go to dinner with the people from KKK, but I have no problems with being their lawyer in defending the right to walk down Constitution Avenue,” explains Spitzer. He says defending the Klan and Farrakhan was a “wonderful juxtaposition because it would say to people, ‘I’m not liberal; I’m not conservative; I’m not a white racist; I’m not a black racist.’ “
Raskin says some ACLU lawyers have a “Skokie complex,” referring to the 1977 case in which the organization represented neo-Nazis who wanted to march in the Illinois town.
“They love to think of themselves as the lawyer who’s willing to stand up for the most extreme fascist groups in the country. The question for the organization, however, is whether it really should view itself as the in-house counsel to the Ku Klux Klan and essentially chase these extremist groups all over America in order to champion their constitutional rights,” says Raskin.
To be sure, the ACLU’s grab-bag clientele often confuses people. Its failure to pick and choose whom it represents has inspired frequent attacks, none more celebrated than George Bush’s. In 1988, then-Vice President Bush, the Republican presidential nominee, was running against Massachusetts Gov. Michael Dukakis, the Democratic nominee. In a televised debate, Bush hammered Dukakis’ membership in the ACLU; Dukakis was a “card-carrying member,” Bush said, the phrase spewing from his mouth like venom. Besides the ugly (and racist) Willie Horton ads that tainted Dukakis as soft on crime, the ACLU crack may have been the most effective attack in the presidential campaign.
Not that the ACLU minded: “It was the best fund-raising we ever had,” says Spitzer, who grins and pulls out his light-blue card.
The national organization grew by 50,000 members after the Bush attack. “The phones were ringing and people were saying, ‘How can I get a card?’ ” says Spitzer. “The unfortunate part is that it showed how much of a four-letter word the ACLU is in parts of the country.
“That was not a surprise to me, but it was to some people,” continues Spitzer. “I see the attitude that people have about the ACLU. [Some see us as] responsible for turning America from the wonderful place it was in the 1950s to the terrible place it is now: We took God out of the schools and we put condoms in; we’re responsible for the rise of street crime and pornography and everything else that they don’t like.”
The ACLU might not be responsible for everything that irritates and disgusts Americans, but the group does seem to have the uncanny ability to big-foot where it is least wanted. Its mission on behalf of the minority exacerbates the narcissism that has run rampant in American society for more than two decades. When others make heartfelt efforts to try to eliminate social ills and build community, the ACLU whips up the individual-rights gang.
Consider the District’s teen curfew bill. The law establishes a curfew for children under 17: They must be off the street from 11 p.m. to 6 a.m., Sunday through Thursday, and from midnight to 6 a.m. on Saturday and Sunday. The council passed the bill last June, and it took effect immediately. Many curfew supporters view the law as a critical tool for protecting children, even as a lifesaver. They cite the hundreds of kidssome as young as 4 years oldwho have been injured or have died violently on the streets at night.
Even so, the ACLU is doing everything it can to kill the law. Five years ago, the ACLU torpedoed the first curfew bill, which was introduced by Councilmember Frank Smith. The ACLU proved that law unconstitutional. In 1995, Councilmember Harold Brazil drafted a new measure, patterning it after a Dallas, Texas, law that was upheld by the Fifth Circuit U.S. Court of Appeals. Supporters of the new law say the ACLU will have a harder time overturning it.
The council passed the law unanimously (Councilmember John Ray missed the meeting and Chairman David Clarke abstained), and the curfew has won broad community support, but the ACLU is undaunted. Even before Mayor Barry signed the bill into law, Spitzer predicted the ACLU would file a lawsuit “probably after the first juveniles have been detained under the statute.” Spitzer was hinting to kids affected by the curfew that the ACLU would help them. This is a time-honored ACLU tactic. When the ACLU wanted to chew up the Tennessee anti-evolution law in the ’20s, it “ran advertisements in local newspapers offering legal assistance to any teacher who wished to test the new law by exercising his or her academic freedom,” according to organization documents.
“We don’t have any hesitation in stating publicly what we think is wrong and letting people know we’re here to help them. Is that making trouble?” Spitzer asks. He immediately answers the question. “I like to see it as educating people about their rights. We can’t go to court without a client. There are a lot of people who are sometimes afraid to stand up.”
Seven teenagers and parents have signed on as plaintiffs in the ACLU case, but they represent only a tiny fraction of those detained under the new law. According to a report in the Washington Post, 270 kids were detained between July and September 1995. (The ACLU is fishing for clients in Prince George’s County, which also passed a curfew bill. Thus far, there have been no takers.)
Councilmember William Lightfoot, chairman of the Judiciary Committee, says he met with Spitzer prior to passage of the law and altered the bill based on those discussions. He predicts the law will “pass constitutional challenge” because it was written in anticipation of the ACLU lawsuit.
Spitzer blasts the statute, calling it useless. “It’s absolutely absurd to think that some kid who’s out there selling drugs, and stealing cars and packing a pistol is going to look at his watch and say, ‘Gosh, it’s 10 of 11I guess I better get home now and resume my life of crime at 4 p.m. tomorrow,’ ” says Spitzer.
“I think it’s a feel-good measure,” he continues. “It appeals to politicians because it doesn’t cost or doesn’t appear to cost anything. The people on the city council all know that the way to really try solve this problem of juvenile crime involves more job opportunities for kidsafter school and in the summermore recreation opportunities, a better school system so that kids are learning in school and are engaged in it.
“We don’t think it’s a good thing that kids are hanging out on the street until 2 o’clock in the morning, but we don’t think the curfew is going to be any serious solution to the problem,” Spitzer adds.
But Spitzer doesn’t have any teen children; in fact he doesn’t have any children. He has never experienced the anxiety that D.C. parents face every day. It’s his certaintycoupled with a lack of real-life experiencethat aggravates the Chuck Ballards and Doug Hesses of the District. They wonder who died and named the ACLU boss.
Spitzer’s answer: the framers of the constitution. And, in defense of his role, Spitzer says the threat to that document and individual freedom is greater today than it was years ago because political and social change have panicked many Americans.
“The pressures on the Congress and the D.C. Council to do something are enormous, and because they are elected by the people, therefore they feel they have to respond to the community desires,” continues Spitzer. “They do something. And if they can’t think of something good to do, they do something bad, because their feeling is, they can’t do nothing. They can’t go back to their constituency to say, ‘I’m doing nothing.’ “
“Politicians don’t care about the Constitution as much as they care about getting re-elected,” he adds.
Lightfoot agrees with Spitzer’s characterization. “My job is to fashion solutions to crises of the day; their job is to protect the constitution,” Lightfoot says.
Still, D.C.’s financial and social crises aren’t simply fodder for some politician’s re-election strategy. They are real and they are suffocating the city. For people like Ballard, the curfew boils down to a choice between a child’s life and the Constitution.
Ballard chooses the child. The ACLU and its supporters choose the document.
“It’s not the document as a piece of paper,” argues Lightfoot, who is a “card-carrying” ACLU member. “The dilemma is whether the principle of individual liberty is more important than one child’s life.
“Our life span is definite, the life of a country much longer. We are trying to create a society that lasts beyond us. There are certain principles that are greater than one individual. It’s more important to preserve our society than to preserve one individual at a point in time.”
But Bryce Suderow, editor of Street Stories, says the ACLU has lost touch with reality.
“They’re a bunch of white, middle-class people who live in some sort of fantasy world where the actual lives of other people really don’t have anything to do with them,” charges Suderow, who says that he tried several years ago, unsuccessfully, to get the ACLU involved in stopping police from rousting homeless people on Capitol Hill. “Their interests seem to be antithetical to that of poor people.”
No issue better illustrates the split between the ACLU and Washingtonians than the fight over campaign financing. Nationally, the ACLU claims to support public financing of political campaigns and massive reform of federal campaign finance laws. But it fought recent federal campaign finance amendments, calling them “too coercive.” And the local chapter has battled furiously against D.C. citizen-sponsored campaign finance limits.
In 1992, District voters approved Initiative 41 by a two-to-one margin. The campaign finance reform measure capped individual contributions to candidates running in ward races at $50 and individual contributions to citywide candidates at $100.
But the ACLU has been relentless in its effort to repeal this popular bill. Spitzer, who notes lamely that “one-third of the people didn’t vote for it,” says the Initiative 41 case strikes at the most important aspect of the First Amendment: political activity.
Judging by the amount of time and money the ACLU has spent fighting it, however, you’d think the law had entirely banned free speech, democratic elections, and jury trials. Even before the measure made it onto the ballot, Spitzer and his cohorts, in typical ACLU fashion, went to court hoping to convince a judge the proposed law was unconstitutional. The organization claimed the contribution limits were too low, “making it virtually impossible for independent candidates, small-party candidates or political newcomers to run effective campaigns,” according to ACLU documents. But both the Superior Court and the Appeals Court denied ACLU requests for injunctions.
After the initiative won passage, the ACLU launched its full-scale attack. In 1994, the ACLU returned to court and filed a formal lawsuit. (The named plaintiffs were the National Black Police Association, the D.C. Chapter of the National Republican African-American Council, the Libertarian Party, and a few other politicos.) The ACLU, which often enlists large law firms to give pro bono assistance, recruited Ross, Dixon, & Masback to litigate the case.
William Lewis, who was counsel to the board of elections until last week, says the introduction of the big law firm changed the tone of the litigation.
“When they became involved, there were requests for admissions, interrogatories,” says Lewis, slightly baffled by his opponents’ zeal. “They have the resources. They could bury us in paper.”
The lawyers sent Lewis a 36-page faxat the end of business on a Friday. “I thought it was a little out of the question.” They filed interrogatories containing more than 60 questions, Lewis says. “We don’t have the time or the resources to really meet them tit for tat.”
“They are a large, well-heeled, well-financed Washington law firm, and they are going all out for it,” continues Lewis. “No matter how it turns out, it won’t be for a lack of a first-class effort by that law firm.”
Lewis says the ACLU is effective and can “cause a lot of mischief.” He says the Initiative 41 lawsuit goes “against what the majority of the people want.”
(Lewis also cites the death penalty initiative as another example of the ACLU’s against-the-tide swimming. D.C. Republican Party activist Harry Singleton three times tried to introduce a death penalty ballot initiative. Each time, Lewis says, the ACLU fought to keep it off the ballot. “There is the argument that even in neighborhoods they claim to be protectingwhere most of the violence has occurredthat’s where people most want the death penalty,” he says.)
The fight over Initiative 41 has also caused dissent within the ACLU. Raskin quit the board over the ACLU’s stance on Initiative 41. He says the organization “has a dead-wrong position.”
“They take the position money is speech,” continues Raskin. “They don’t think there should be any limits on contributions and expenditures of money in political campaigns. That’s fine if you’re a rich-people organization. But what does that do for people who don’t have money?
“If money is the way you speak in political process and you don’t have any money, that means you are silenced,” he continues. “And the ACLU does not seem to be sensitive to that. I don’t think they’re fighting for everybody’s freedom when it comes to campaign finance. They’re fighting for freedom of large corporations, [parking magnate] Dominic Antonelli, and Ross Perot.”
“Where they go wrong is not because they’re being true advocates of freedom but in not being realistic about what freedom means to a vast majority of the people,” adds Raskin.
Raskin says he served on the ACLU’s litigation screening committee and fought bitterly to stop the organization from attacking Initiative 41. “It was approved in every ward and every precinct in the city. My feeling was the ACLU should fight to defend Initiative 41 against possible challenges. But instead, it went out and spent more than a year looking for plaintiffs.”
Raskin says if the ACLU really wants campaign finance reform, it “should come up with a plan and go out and fight for it.”
That’s what Spitzer has done, sort of. He consulted with Councilmembers Ray and Jack Evans, helping them draft a bill to repeal the campaign contribution limits. While he describes the bill as “fix[ing]” the problems of Initiative 41, the bill actually raises campaign contribution limits to their original levels: $2,000 for mayoral candidates, $1,500 for council chairman, $1,000 for at-large council races, and $400 for ward council races.
“We’d be delighted if the council would repeal [Initiative 41], so we wouldn’t have to sue,” he adds.
And this week, the council’s Committee on Government Operations did just that. It passed the Ray-Evans bill by a vote of 4 to 2. The full council may not vote on the bill until March. In the meantime, the ACLU’s suit will continue.
It’s impossible to understand the National Capital Chapter of the ACLU without understanding Arthur Spitzer. More than anyone else in the area, Spitzer epitomizes the principles and zeal of the ACLU. They seemed to have been joined at birth.
“It takes a special kind of person to wear that ACLU hat. Lawyers from the ACLU don’t spend a lot of time wondering whether they’re wrong,” says Raskin. Spitzer is “the prototype.”
“He’s a very spirited and creative guy, but he also knows how to annoy the hell out of you,” Raskin says.
Spitzer, 46 and single, was born in Brooklyn and reared in Queens, N.Y. His father (now retired) was a button salesman; his mother stopped working when he was born.
“I was active in local political stuff in Queens. When I was in [Bayside] high school, I campaigned for John Lindsay when he ran for mayor in 1965,” says Spitzer, as he sits in his office one morning earlier this month. “Andthis is embarrassingI had a subscription to the Congressional Record when I was in high school. I used to read [it] on the bus coming home from high school; it was much more interesting than comic books. That was the kind of stuff I was into. I was not a whiz at math and science; I naturally gravitated toward law and politics.”
Spitzer sports an unpressed rose-colored corduroy shirt. As usual, he wears no tie. He sports none of the trappings of wealth and power often found in Washington. Spitzer’s office is painfully unglamorous: His desk is the warehouse-standard wood, with a wooden chair parked in front of it. Papers cover every surface, including the floor. There must be some organization to the clutter, since he appears able to find any document he needs in seconds.
Spitzer began crusading for free speech when he was still a teenager. He belonged to the student forum, which met once a week, sponsoring debates, seminars, and lectures. During his senior year, 1966, the Vietnam War was, of course, the most important topic.
“We decided to have presentation on both sides. Someone from the State Department came to present the government’s side, and somehow, we got our hands on a filma North Vietnam propaganda filmto show the other side of the argument,” recalls Spitzer. “When word of that got out into the community, some people were very unhappy; it was like an act of treason. Pickets went up around the school.”
The New York Times featured a story about the young radicals. But despite community hostility, the students prevailed with the help of the school’s principal.
Spitzer packed up his rabble-rousing show and headed off to Cornell University in upstate New York. He picked up where he had left off in high school. Students across the country were making a stink about the appearance of military recruiters on campus. “I wasn’t against that; I thought recruiters ought to be able to come and talk to students the same as anybody else,” remembers Spitzer.
But in fall 1967, the head of the Selective Service System, Louis Hershey, a man Spitzer calls “a conservativea codger” grew tired of campus demonstrations against his recruiters.
“He said any student involved in blocking recruiters would be immediately drafted into the Army,” Spitzer continues. “Under these circumstances, I thought the recruiters should not be on campus.”
Spitzer and more than 200 other students protested this effort to squash their public objections to the war. They were hauled before the student judicial board to show cause why they shouldn’t be tossed off campus. “It was very important to me that I state why I did what I did. This was a special circumstance, because limits had been placed on students’ freedom to protest. I became the spokesman for the group of students who shared my view.
“The student board agreed with what I said,” continues Spitzer. “Their judgment was that we had violated the rules but there should not be any punishment.”
After graduation, Spitzer headed off to law school at Yale. That was quieter than college, although Spitzer was in the same class as Supreme Court Justice Clarence Thomas and Lani Guinier, President Clinton’s one-time nominee to head the Civil Rights division of the Justice Department.
Spitzer spent a year clerking after he earned his J.D. Then he set out for a kibbutz in Israel, where he “picked oranges” and “wash[ed] pots” for a year. When he returned to the United States, he sought jobs with law firms in Denver, San Francisco, and the District. He also applied to the ACLU, but didn’t get hired. Instead, the fire-breathing young liberal found refuge at Wilmer, Cutler & Pickering. “Young lawyers come here because of the excitement of dealing with political kinds of issues. That’s what a Washington lawyer is all about; that’s certainly why I came here,” he says. In 1980, he landed the ACLU job he was hoping for, and he’s been there ever since.
District residents don’t like the idea of serving as the ACLU’s guinea pigs, their testing ground for principles. Some are starting to complain that the ACLU appears far more interested in its own image and history than in the needs of the city and the votes of its citizens.
Typical of the ACLU’s detachment from reality, say some, was its reaction to Barry’s appointment of a religious adviser. According to Raskin, the organization initially planned to file a lawsuit to prevent the appointment. Raskin says he dissuaded ACLU lawyers from using the courts to settle their conflict over the appointment.
“I agree: You might not want the state to appear to have a religious department,” Raskin says, recalling the episode. “But on the other hand, to go to court and sue is just going to get everybody all mad. A lot better thing to do would be to meet with them and explain your concerns.”
That’s eventually what the group did. And, to be fair, the ACLU hasn’t filed a lawsuit at every juncture. For example, although it objected for a variety of reasons to D.C. laws involving such things as carjacking, lie-detector tests, nude dancing, and sexual abuse, it hasn’t file lawsuits to overturn them. And it did an extraordinary amount of work trying to reform the city’s all-but-defunct Civilian Complaint Review Board, which investigated citizen complaints of police brutality. And while the ACLU is undoubtedly proud of its past record, it doesn’t trade in nostalgia. A 30-page booklet documenting its litigation docket for 1994 and 1995 demonstrates its consistent effort to protect the rights of minorities.
“They are running against the perceived grain and real intention of what some people want,” says the board of elections’ former counsel Lewis. “If you look at them globally, they have done a lot of good. And they are ideologically consistent, maybe to fault. They know they’re going against the grain of the majority. Someone has to protect the minoritydoing that, they end up affecting the whole body politic.”
ACLU member Lightfoot doesn’t hedge in his support: “I want ACLU around to protect the rights of citizens. As an Afro-American, I am a member of part of society that has long been persecuted; I think it’s very important the ACLU be actively involved in protecting our rights.”
When pressed about the ACLU’s conflicts with the community, Spitzer says it’s unfortunate that some people “don’t think civil liberties are their friends, by realizing how much [the ACLU] really does work to protect their own interest.
“People can’t perceive of a time when they would be the victim of government abuse, or when they would be the member of a political or religious minority and need this kind of protection,” he continues. “If you’re living in a place where you’ve always been part of the in-crowd, or if you’ve never felt strongly the government was doing anything wrong, I suppose it’s easy to see why you might not understand.”
True enough, in theory. But as Suderow notes, there is something “disingenuous” about the ACLU’s “pursuit of this abstract ideal of freedom.” It is harming the suffering majority in its single-minded mission to protect the Bill of Rights.
Raskin puts it another way: If the ACLU really wanted to help the District and really cared about freedom, it would actively support statehood.
“They could be fighting for the political rights and freedom of 600,000 politically disenfranchised and economically exploited Washingtonians,” continues Raskin. “It’s easy to take a dramatic stance like Voltaire. But the more pressing issue of political rights for everyone in Washington is being violated.”
“The problem is, just when I’m falling back in love with the ACLU, they turn around and do something that makes them look like a bunch of elitist liberals and out of touch with the community,” Raskin says. And that is a sentiment that many Washingtonians undoubtedly agree with.CP
Art accompanying story in the printed newspaper is not available in this archive: Illustration by Greg Houston, photographs by Darrow Montgomery.