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Uncivil Liberties

The ACLU returns from the dead in Houston

By Steve McVicker 

"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.

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