vol. 38, no. 4

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Volume XXXVIII

San Francisco, au 1973

Partial victory does not

solve Navy trial questions

Claiming

prohibitive and that adverse pre-trial

publicity would affect the case, the Navy

is attempting to move the court-martial of

Seaman Patrick Chenoweth to Subic Bay

Naval Base in the Phillippine Islands.

Chenoweth is charged with dropping a

paint scraper and two bolts into the

reduction gears of the USS. Ranger,

causing $800,000 damage and delaying

the Ranger's departure for Vietnam.

Many aspects of this trial have drawn a

great deal of attention from news media in

the Bay Area and nationally. Dozens of

acts of sabotage took place on the Ranger

but only Chenoweth was charged. He has

been held since last August without bail

and a Navy judge ruled that the charge

should be ``sabotage in time of war,''

punishable by 35 years in prison. Now,

the decision to move to the Phillipines is

attracting publicity.

After repairs were completed, the

Ranger left for Vietnam along with most

of the witnesses scheduled to testify at the

court-martial. The Navy now says it

would be much easier to transport those

witnesses to Subic Bay rather than back to

Treasure Island. However, Chenoweth's

civilian defense counsel, Eric Seitz,

cannot afford to go to the Phillippines, has

previously received threats from the

Marcos government there, and has been

denied transportation or protection by the

Navy. He appealed to the U.S. Court of

Militarty Appeals and was denied.

Following that defeat, ACLU volunteer

that the cost would be.

attorney John Hansen took over the

appeal, asking the U.S. District Court in

San Francisco to prohibit the Navy from

moving the trial. Hansen argued that the .

move would deny Chenoweth his right to

counsel and that the press and public

would be denied access to the trial.

Hansen described the Navy's efforts as

"Star Chamber proceedings which our

entire constitutional concept of public

trials was designed to avoid. Military

courts assume that they are not bound by

the same constitutional guarantees of a fair

trial in an unbiased forum as civilian

courts. They believe that if Chenoweth's

case is prejudiced by the transfer,

corrective action. can await appellate

-review while Chenoweth spends two

fruitless years in prison waiting for the

outcome.'

In his argument before Federal Judge

Spencer Williams, Hansen claimed that

the Navy's ``adverse publicity'' defense

was a preposterous reason to transfer the

trial. ``Under specific provisions of the

Sixth Amendment and pursuant to the

due process clause of the Fifth

Amendment, a criminal defendant. is

entitled to a public trial,'' he advised the

court. Since there is no free press in the

Phillippines and the Subic Bay Naval

Station is geographically isolated, Hansen

claims ``the trial will be effectively closed

to the public.''

Judge Williams rejected the argument

that the move to the Phillippines would

deprive press and public of an open trial

No. 4

Volunteer attorney John Hansen _ discusses

appeal strategies with

Chenoweth's defense attorney Eric Seitz. Hansen appealed the trial move three

times in as many weeks.

`but he was concerned that the transfer

would deny Chenoweth his chosen defense

counsel. Williams therefore refused to

grant an injunction against the move but

did order the Navy to provide for Seitz's

round-trip transportation between the

Phillippines and San Francisco. He also

charged the Navy to guarantee safe

passage to Seitz while in the Phillippines

as well as free accommodations at Subic

Bay Law Center.

Hansen immediately filed an appeal in

the Ninth Circuit Court of Appeals to stop

the trial transfer. The Navy had already

sent some of the court to the Phillippines

and had scheduled the trial to begin there

on April 6. Williams issued his order

denying the injunction on March 30.

Hansen requested expedited action on the

appeal and on April 3 a temporary stay on

the transfer was issued by the Court of

Appeals. Circuit Judges Charles M.

Merrill and M. Oliver Koelsch signed the

order for the Navy to postpone the move

for 10 days to permit a regular three- ~judge

panel of the Court to consider granting a

further injunction pending appeal of Judge

Williams' decision. Several days later,

however, the Ninth Circuit reconsidered

its position and-dissolved the injuntion.

Hansen immediately appealed to Supreme

Court Justice William O. Douglas. With

equal speed, the Navy set an early date for

the change of venue. Latest word,

however, is that the military trial judge

has become ill. And the move may be

postponed indefinitely after all. Also, just

before press time, it was learned that

Justice Douglas denied a stay and it now

appears that the only factor delaying the

move to the Phillipines is the military

judge's illness.

ACLU suit challenges corporal punishment in schools

Physical beating is: Mot. a permissible form of

punishment in prisons, in the military or in criminal

procedures, and yet, it is not only legal but also

encouraged in. California's public school system. The

ACLU filed a class action suit last month which would

prohibit the use of ``corporal punishment'' on school

children throughout the state.

In addition to the class action, the suit seeks damages

amounting to $50,000 for Steven Zamora, a 14-year-old

student at San Juan Bautista Elementary School in

Hollister. The suit was filed in San Benito Superior Court

by Staff Counsel Joseph Remcho and ACLU Board

Member Virginia Fabian. State Superintendent of Public

Education Wilson Riles and officials of San Juan Bautista

Elementary School District are named as defendants in

the ACLU suit.

Lsst May, while in the seventh grade, Zamora was

taken to Principal Thomas Farney's office after he

alledgedly called his teacher ``buzzard puke.'' With .

INSIDE ACLU NEWS

Aimou seaiches p.3

Women's Credit Bills. =. == p.4

Libel and Free Speech..." === p.9

School Segregation __._._.___.____ p6

Affirmative Action... =" _" = = p.7

Farney and two other teachers present, the ACLU

charges that vice-principal Raymond Wilson proceeded to

beat the boy with a heavy leather strap. According to

Zamora, he was struck at least several times in the

testicles and he collapsed in pain. A doctor who examined

Zamora shortly after the beating found his testicles to be

- badly swollen and treated abrasions on the boy's scrotum.

He was then' released but claims he experienced severe

pain for several days thereafter.

Zamora's parents were never asked whether they

approved of physical punishment for their son or whether

they would allow school authorities to inflict it, nor were

they ever notified that the school did use such methods.

As a result of this incident, the Zamoras are asking the

court to grant them medical and legal costs as well as

$20,000 compensation for the pain and humiliation

suffered by the boy and $30,000 in punitive damages.

Remcho explained that the class action, which would

apply to the entire state, was included in the suit because

local school officials derive their authority to administer

corporal punishment from the California Education Code.

- Not.only does the Code provide for the use of corporal

punishment in the schools but it also exempts certified

school personnel from any criminal charges that may

arise from their treatment of the children. Wilson is

immune from assault and battery prosecution since the

' beating took place in the school and he is authorized to

inflict such punishment. Remcho charged that such

unrestricted encouragement of corporal punishment

``inevitably leads to abuses similar to Zamora's case.""

`*The infliction of physical injury, outside of self-

_ defense, represents the infliction of `cruel and unusual'

punishment in violation of the Eighth Amendment of the

U.S. Constitution and Article I of the California

Constitution,'' Remcho and Fabian argue in asking the

court to declare those sections of the Education Code

which permit corporal punishment unconstitutional. In

addition, since the law established no well-defined

procedures for the infliction of the punishment, its use is

far too arbitrary to protect the rights of the students. It is

entirely up to the educator how the child should be

punished. The ACLU brief charges that this factor

violates the student's rights to ``due process'' as

guaranteed by the Fifth and Fourteenth Amendments.

Neither. the students nor the parents have any

Opportunity to appeal the decisions of school officials,

refute the charges against the child or in any other way

defend themselves from the charges or the physical

beating.

Some school districts, including San Francisco, have

abolished corporal punishment independently and the

State Office of Public Instruction has made no effort to

insure uniform methods of punishment throughout the

state. Remcho points out that the result has been that it is

an accident of geography whether a child is subject to

corporal punishment. This lack of uniform application, he

charges, denies students ``equal protection of the laws,'"

since those who attend schools where there is no corporal

punishment are "`granted an immunity not available to all

students in the state.''

No trial date has been set for the case yet and it is

probable that the constitutionality of corporal punishment

in California will eventually have to be decided by the

State Supreme Court.

April

aclu NEWS

LEGAL

Court strikes law banning abortion publicity

Section 601 of the Business and Prnkecnn Code

provides that ``every person who willfully writes,

composes or publishes any notice or advertisement of any

medicine or means for providing or facilitating a

miscarriage or abortion..or to assist in . the

accomplishment of any such purpose is guilty of a

felony...'' As the result of an ACLU challenge, Section

601 was declared unconstitutional this month in `the

California Court of Appeal.

ACLU-NC. General Counsel Paul

represented Rowena Gurner and Patricia Maginnis, who

_ were charged with violation of the statute in 1967. Two

years later, Richard Orser was accused of the same crime

and his case was combined with the previous one.

Gurner and Maginnis conducted abortion counseling at

a residence in Redwood City. At one of these sessions,

they lectured on self-induced abortions and distrihnited a

pamphlet which described the method. The pamphlet

included a warning concerning the dangers of self-induced

abortions and a statement as to possible criminal liability.

A Lieutenant Cardozo of the San Mateo County Sheriff's |

SPORTS SEX BIAS

CIF drops `boys only' rule

Halvonik:

aie attended the meeting and Gurner and Maginnis

were arrested for violation of Section 601.

In January, 1969, Richard Orser ran a notice in the

`Mid-Peninsula Free University Bulletin asking anyone

who wanted help or advice on terminating an unwanted

`pregnancy to call him. A woman from the San Mateo

'`Sheriff's office did, saying she needed an abortion. She

was told told to attend a meeting at a residence in East

Palo Alto where Orser explained different procedures for

acquiring abortions. The woman deputy sheriff said she

`would call Orser to let him know what she had decided

and she asked for private consultation so Orser could

explain the procedure to her boyfriend, a detective in the

Sheriff's office. Following that meeting, Orser was

arrested.

All three defendants were tried by San Mateo County

Superior Court and found guilty of violation of Section

601. On the appeal, the constitutionality of the statute

itself was challenged in an attempt to overturn `the

convictions. Halvonik argued that the statute violated the

rights of freedom of speech and freedom of the press, that

it denied ``equal protection of the laws'? and that it was

overly vague.

The Court agreed that it was vague and that free speech

and press rights were injured and that the convictions

should be dismissed. Writing the opinion, Judge Molinari

noted that as a result of recent California and U. S.

Supreme Court decisions, most abortions are legal and

that the state only has very limited power to interfere. He

concluded that the state has no legitimate purpose in

imposing restrictions on communication about legal

abortions, ``in doing so, it restricts the freedom of

expression protected by the First Amendment."'

He adds, `When a statute casts its net'so broadly, it is

inappropriate to balance the respective: interests of the

government and the citizen.'' Since the court found

Section 601 unconstitutional just on the First

Amendment argument, Molinari did not deal with the

contention that the law deprives defendants of equal -

protection of the laws in that persons who advocate the

same ideas orally are not subject to prosecution.

IRS to return documents

High school athletics are governed by

rules established by the California

Interscholastic Federation in this state.

Among those rules is Article 2, Rule 109,

which bars women students from

participating in inter-school athletic

competition. Most schools provide only

intramural or limited ``girl-only''

athletics with other schools. Male

students however compete in a uniform

state-wide system which allows them to

excel all the way to state champtionships

promoted by CIF.

Not only. does CIF have a rule against

women's participation but.it also applies

sanctions to any shcool which competes

against another school which allows males

and females on the same teams. In other

words, even if a school wants to integrate

male and female athletes, no other school

will play against them.

Volunteer attorney Ray Shomholtz filed

Sex. bias in

college debates

halted by ACLU

Volunteer attorney Terry Calvani, who

is a teaching fellow at Stanford Law

School, should get the ``most-effective

ACLU attorney'' award for this month.

Winning lawsuits is fine, but winning a-

case without even filing a suit is great.

Calvani agreed to represent Gail

Gutierrez, a student at Diablo Valley

Community College. She had called the

ACLU to complain about the fact that a

debate tournament to be held at Santa

Rosa Junior College was to divide the

competition into ``Men's''? and

""Women's'" categories.

Last month, the ACLU News reported -

_ that Calvani had threatened Santa Rosa

J.C. with a lawsuit and the sponsors of the

forensics tournament agreed to combine

men and women in the competition.

Next, Calvani turned on the California

Community College Forensics

Association, which sponsors the statewide

debate competition. Again he warned the .

officials that the sex distinctions were not

justifiable and that if they are not changed

litigation would be initiated. Again, the

prompt replay promised that plans to

separate the sexes at the state tournament

in Orange County were cancelled. :

Calvani still did not rest. He next

continued on page 8

_ suit in Monterey County Superior Court

last month on behalf of five women

students at York School in Monterey. -

`Janet Fisher and Jeanette. Taylor are on

the tennis team and Diana Doyle, Sue

Doyle and Jan Garrison are on the golf

team. York is an independent school with

only 92 students and the athletic policy is

that "`women who are qualified to play on

men's athletic teams should be allowed.to

play,'' according to Charles Downs, the

headmaster at York School.

After the complaint was filed,the court

issued a temporary restraining order

barring CIF from disqualifying York from

competition or imposing sanctions on any

other schools that play against York until

the matter can be argued in court.

Shonholtz explained that ``these rules

are based on sex, not ability. The fact that

there cannot be integrated teams means

that many small schools cannot compete

in inter-scholastic sports due to the fact

that they don't have enough qualified

people to make up individual boys' teams

and individual girls' teams.

`Even worse,' he continued, ``the

CIF rule is harmful to. the girls'

opportunity to receive a full and complete

education and is based solely on a sex

classification and not on ability.''

Just before press time, CIF officials

announced that due to this suit, and

threatened suits by ACLU volunteer.

attorney Ellen George, sex discrimination

will be ended in CIF competition. As of

June, 1973, anyone, regardless of sex,

can try out for any high school team, even

football

seized in illegal search

In June, 1970, four Internal Revenue

agents entered the home of Donn and

Barbara VonderAhe while three more

agents forcibly entered the dental office of

Dr. VonderAhe. Both groups of agents

produced search warrants authorizing a

search and seizure of all records on the

premises relating to the VonderAhe's

income and expenses over a four-year

period.

Both Dr. and Mrs. VoderAhe objected (c)

to the searches on the grounds that they

had a Fifth Amendment protection

against self-iricrimination. ~ The agents

`proceeded, however, and the inventory of |

articles seized was more than 30 pages in

length and included patient records,

personal letters, ``miscellaneous notes

and figures,'' and seven items from the

purse of Mrs. VonderAhe and that of a

. guest, Mrs. Perez..

The VonderAhes filed suit in Federal

District Court to have the seized items

returned to:them and to prohibit IRS from

using the documents against them in a

criminal prosecution. ACLU volunteer

attorney Deene Solomon supported the

VonderAhes in an amicus curiae brief.

The District Court

Vonder Ahe's request and the matter was

appealed to the Ninth Circuit. On April 2,

a three-judge panel ruled that the search

was unconstitutional and that the

documents must be returned.

In the ACLU brief, Solomon argued

that since the seized evidence was

protected by Fourth Amendment

refused the

guarantees against `"unreasonable''_

search and Fifth Amendment protections

against ``self-incrimination,'' the search

authorized by the warrants went eyond

constitutional limits. The brief explains

that there is and ought to be an ` `intimate

relation between the Fourth and Fifth

Amendments requiring that evidence

unobtainable by summons or subpoena is

similarly beyond the reach of a search

warrant.""

One of the chief privileges of the Fifth

Amendment is that the individual has the

freedom to choose whether or not to aid

the state in securing a conviction.

Solomon points out, however, that if a

man is faced with the prospect of having

his home and office ransacked, he has no

meaningful option to exercise his Fifth

Amendment right.

Writing the opinion for the Court,

Judge Walter Ely stated that the

imminence of force that can be used to

enforce a warrant represents compulsion

and. therefore negates the individual's

privilege against self-incrimination. He

held that the forced search levied against

the VonderAhes violated that ``private

inner sanctum of individual feeling and

thought which the Fifth Amendment

seeks to protect.'' Thus, ``the records

were protected from seizure,'' he

concluded.

The court ordered that all of the seized

documents .and all IRS copies of them be

returned to the VonderAhes and not used.

against them...

Air Rarce abandons claims on former cadets

John McCullough and Christopher Joy

_ both received their undergraduate

educations at the Air Force Academy.

After graduation, they applied to law

school and had their active duty

commitments deferred until they finished

their courses at Boalt Hall Law School.

While at Boalt, they applied for discharges

as conscientious objectors. Eventually,

they were granted the cischarees by a

Federal District Court.

Following the CO discharges, the Air

Force `filed claims in Federal Court of

$53,575 from each of the former cadets to

reimburse the alleged cost of their

education at the Academy. Judge Thomas

MacBride ruled in favor of McCullough

and Joy last summer, stating that since

they "`entered the academy without any

_ preconceived plans to trick the Air Force

and have left it not because of any

wrongdoing or personal fault, but only -

because their consciences have come to

stand between them and their careers,''

they should not be penalized.

ACLU volunteer attorney John Poswall

of Sacramento, who is representing Joy

and McCullough, learned just last week

that the government has abandoned its

appeal of Judge MacBride's decision,

thereby establishing the right of cadets to

incur no penalties for becoming

conscientious objectors.

stitann

Howard Jewel, Chairman of the Board

aclu NEWS

_9 issues a year, monthly except bi-monthly in June-July, August - September

and November-December

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

Mike Callahan , Editor and Public Information Director

593 Market Street, San Francisco, California 94105-433-2750

Membership $15 and up of which $2.50 is the annual subscription fee for aclu News.

Jay Miller, Executive Director

POLICY

April

aclu NEWS 3

CLU to oppose airport searches

THE FOURTH AMENDMENT

The Right of the People to be Secure in

their persons, houses, papers, and

effects, against unreasonable searches

and seizures, shall not be violated, and

no Warrants shall issue, but upon

probable cause, supported by oath or

affirmation, and particularly describing

the place to be searched, and the

persons or things to be seized.

As a result of a decision reached at this

month's meeting of the. Board of

Directors, ACLU-NC now opposes. all

blanket magnetometer and hand luggage

searches at airports. The statement

adopted by the Board reads simply:

`*'he American Civil Liberties Union

of Northern California is opposed to

all searches of persons and their effects

at airports and other public places

absent probable cause.''

The following week, Northern California

Board Chairman Howard Jewel attended

the National ACLU Board meeting and.

argued successfully for a similar position

for National ACLU. National has

endorsed in spirit the Northern California

position and is still working on appropriate

language for a policy statement.

Consideration of a policy on airport

searches was prompted by requests that

the ACLU intervene in at least two cases

challenging airport search ; procedures.._

One of the cases is an, appeal of `a' state

court conviction for drug possession. The

drugs were discovered on the defendant's

person during a pre-flight search. Airline

agents decided he met the ``hijacker

profile,'' a top secret list of personal

characteristics used before this year to

determine who should be searched. The

defendant met an unknown number of the

`profile'? traits and was asked to go

through a magnetometer which he

activated. He then consented to a pat-

down search but no weapon was found. He

suggested the metal source might be hooks

on his boots. He was then searched

thoroughly and the drugs were discovered.

At the trial, the ``hijacker profile'' was

not revealed to the defendant so he could

not discover why he had come under

suspicion in the first: place. He claims that

the search' violated the Fourth

Amendment and the judge's refusal to

reveal details of the ``profile'' violated his

Sixth Amendment right to confront

adverse witnesses.

Another case which seeks

support is that of an East Bay attorney

who objects to the new search procedures

whereby everyone's hand luggage is"

through a

searched and must pass

ACLU.

`Magnetometer. He objects to any further

searches without `` probable cause'' and

he seeks to enjoin any pat-down or

magnetometer search unless the usual legal

justification for a search without a warrant

is present. Since December, 1972, every

traveller on most commercial flights must

pass through a magnetometer or metal

detector as well as have all his or her |

carry-on baggage searched by airline

agents or U. S. Marshals.

In preparation for the Board discussion

Marshall Krause, Paul Halvonik and Neil

Horton submitted position papers on

airport searches. Halvonik argued in favor

of the adopted policy, Horton argued

against, and Krause outlined the legal

opinions outstanding .on the Fourth

Amendment and airport search

procedures. In reaching its conclusion, the

Board relied heavily on the Halvonik view

that airport searches; ``not only do

violence to all Fourth Amendment law

and policy but also open the door to mass

searches, entirely divorced from any

probably cause or even any suspicion,

whenever the passions of the moment

dictate that danger is high.''

Fourth Amendment protections are

constantly being interpreted but a few |

decisions hold forth as the current

interpretations. In Coolidge v. New

Hampshire, the U. S. Supreme Court

issued the pronouncement that ``the most

basic constitutional rule in this area is that

searches conducted outside the judicial

process, without prior approval by a judge

of magistrate, are per se unreasonable

under the Fourth Amendment - subject

only to a few specifically established and

well delineated exceptions.'' Certain.

exceptions have `been recognized by the

~Court where there is no time to seek a

warrant. These include searches incident

to valid arrests, searches made in hot

pursuit of a felon and searches made to

prevent the destruction of evidence. All of

these exceptions, however, do not excuse

`*`probable cause''

necessary for a legal search.

The Court established another

exception with the ``stop and frisk''

doctrine of Terry v. Ohio, which approves

carefully limited pat-down searches for

weapons. The Court said three criteria are

necessary for such a search to take place:

sufficient governmental interest justifying

the need to search, the extent of invasion

the search entails, and the `"`specific and

articulable facts'' giving rise to the

officer's suspicion. The Court has

specifically held that an ill-defined

`"hunch'' is not good enough to justify a

search. =

Halvonik points out

searches cannot possibly meet

criteria. He concedes that strong

governmental interest is present but says

that airport

`*T have difficulty in regarding the search .

of my briefcase as a minimal invasion of -

as an element.

these

my privacy, or the patting down of my

body as any less intrusive.' The

requirement that `specific and

articulable'' suspicion be present is

completely abandoned in airport serches.

Blanket luggage and magnetometer

searches disregard entirely even the

slightest hint of individualized, specific

suspicion. Halvonik regards this

abandonment of ``individual meas-

urement as the greatest departure

from Fourth Amendment standards.'

He points out that the ACLU opposed

the Terry doctrine which eroded the

`" probable cause'' requirement for

searches. Now, he contends, ``if we do

not oppose these blanket searches, we

must be prepared to accept a practice in

which only one, or at the most two, of the

ithree criteria of the Terry decision can be

met."'

Halvonik also rejected the argument _

that the searches are justified because of

the dangerous situation caused by

hijackings or that fear of hijackings

suffices as enough governmental interest.

He pointed out that in the worst year of

hijacking, hijackers comprised only.

00000083 per cent of domestic air

travellers - less than one in a million. ``If -

we are willing to permit the presence of a

high degree of danger to justify blanket

searches of millions of innocent people, we

will soon be met with those searches

wherever the government or public

perceives danger."'

Taken to its logical conclusion, such

reasoning would extend blanket searches

to schools, public buildings, subways,

racially or politically tense areas, and our

highways, because such places are

_ Statistically far more dangerous. He

concludes, `"We can never accept the

abandonment of individualized reasons for

search and we can never accept danger

alone as the excuse for abandonment of the

Fourth Amendment.''

Judge Mansfield of the Second Cirantt

Court of Appeals, concurfring in a recent

airport search case, phrased the dilemma

thus:

"`If the provisions of the Constitution

be not upheld when they pinch as well

as when they comfort, they may as

well be abandoned.''

Neil Horton was the leading spokesman ~

_ in opposition to the Board's action. He

argued that certainly the ``frisk'' search

was unjustified and should be opposed. He

also agreed that there must be some

minimal showing of individual probable

cause before persons may be searched at

roadblacks, schools, or public buildings.

He differs with Halvonik on several

issues, however. He does not believe a

magnetometer represents, a significant

intrusion of privacy when compared with

the obviously strong governmental

interest in deterring hijacking. While

admitting that the luggage search is a

more significant intrusion, Horton

believes that "`necessity'? makes the

searches "`reasonable'' under the Fourth

Amendment. He said the searches are

necessary because airplanes are not only

perceived as dangerous but are dangerous

because ``there is no exit from a plane as

there is from a building.''

The Board acted on the 10-3

- recommendation of the Legal Committee

that a policy against airport searches be

accepted. At the Committee discussion,

Stanford Law Professor Anthony

Amsterdam argued that realistically and

historically, hijackings; are a relatively

small problem. He believes that ``Our

society tolerates massive amounts of

danger to the point that they will not

abandon `Saturday night specials' or cars

that are made to go 200 miles per hour,

both of which make life far more perilous

than skyjackings. It is inconsistent for

that society to cry for security now

because they fear airplanes."'

Board member Howard Schachman did

not share Horton's faith that courts would

not allow these searches to spread beyond

their limited present use. Richard De

- Lancie claimed that statistically, airplanes

are far safer than other means of

transportation and therefore it would be

easy to argue that searches should be

continued on page 7

April

- aclu NEWS

LEGISLATIVE

Hearings due on key civil liberties bills

By JOSPEH REMCHO,

ACLU-NC Legislative Representative

Major bills in two vitally important

areas will be set for Committee hearings in

. the following month. Two women's rights

bills particularly deserve your strong

support. Bills to restore the death penalty

must be strongly opposed if they are to be

defeated.

WOMEN'S RIGHTS

Assemblymen Henry Waxman (D-Los

Angeles) and Howard Burman (D-

Sherman Oaks) have co-authored AB312,

_a bill which would quite simply and

effectively give women the same right to

obtain credit in this state that men

currently have. The bill would add a new

section 1812.30 to the Civil Code to

provide that ``no married woman shall be

denied credit in her own name if her

earnings or separate property are such that

a man possessing the same amount of

property or earnings would receive

credit."', and *`no unmarried woman shall

be denied credit if her property or earnings

are such that a man possessing the same

amount of property or earnings would

receive ae

Henry Waxman

The bill has been referred to the

Assembly Committee on the Judiciary.

Opponents of the bill have argued that it is

unwise to delve into the credit area

without completely revising the California

Community Property law. Revision `of the

complex community property laws,

however, will require a great deal of study

and is not a near reality. AB 312 would

leave community property laws essentially

intact but would remove a practice which

is blatantly discriminatory and works a

real hardship on large numbers of women

in this State. Women who make twice as

much money as their husbands are usually

denied credit on the insupportable grounds

that women tend not to be reliable or

consistent wage earners. A man with half

the income and a terrible job record will

almost always get credit before a reliable

working woman. The Waxman bill would

put a stop to that practice.

I urge you to write your Assembly and

Senate Representatives asking them to

support the bill. Letters to members of the

Assembly Judiciary Committee would

also be extremely helpful. There are 11

members of that committee: Charles

Warren (D-Los Angeles), Chairman;

Alister McAlister (D-San Jose), Vice-

Chairman; William Bagley (R-San

Rafael); Robert Beverly (R-Redondo

Beach); Daniel Boatwright (D-Concord);

"John Foran (D-San Francisco); Walter

Karabian (D-Monterey Park); Kenneth

Maddy (R-Fresno); Frank Murphy (R-

Santa Cruz); and Edwin Z'berg (D-

Sacramento). All may be addressed c/o

State Assembly, State Capitol,

Sacramento, California.

THE EQUAL RIGHTS AMENDMENT

ACLU members should know that the

following legislators have introduced a bill

- mandated where there are `

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Angeles);

which purports to repeal California's

ratification of the Equal

no effect on the ratification of the ERA

but ACLU members may be interested in

the names of the diehard opponents of the

ERA. Co-authors of Assembly Joint

Resolution 26 are: Assemblymen Alister

McAlister (D-San Jose); Floyd Wakefield

(R-Downey,); Robert Burke (R-

Huntington); John Collier (R-Pasadena);

Bill Lancaster (R-Covina); W. Don

MacGillivray (R-Santa Barbara); Newton

Russell (R-Burbank); and Raymond Seely

(R-Palm Springs).

DEALIO PENALTY

Special hearings on the death penalty

have been set in the Senate Judiciary

Committee for April 24, 1973. The

following death penalty bills have been

introduced on the Senate side:

SB-28 by Senators H. L. Richardson (R-

Los Angeles; Clare Berryhill (R-

Modesto); William Coombs (R-San

Bernardino); John Harmer (R-Los

Robert Lagomarsino (R-

Ventura); and Fred Marler (R-Redding).

SB-28 would provide a mandatory death

penalty for first degree murder of a peace

officer.

SB-450 by Senators George

Deukmejian (R-Los Angeles); Rich-

ardson; Berryhill; Craig Biddle (R-

Riverside); Dennis Carpenter (R-

Orange); Donald Grunsky (R-

_ Watsonville); Harmer; Lagomarsino;

Marler: John Nejedly (R-Contra Costa);

Jack Schrade (R-San Diego); Robert

Stevens (R-Los Angeles); John Stull (R-

San Diego; Robert Stevens (R-Los

Angeles); John Stull (R-San Diego);

Howard Way (R-Exeter); and James

Whetmore (R-Los Angeles). SB-450

would provide the death penalty for

murder, kidnapping, skyjacking, and train

wrecking, all -"undet . specitied

circumstances. Under first degree murder,

for example, the death penalty would be

"no substantial

facts in mitigation'' and the defendant's

background, the circumstances of the

offense, or the defendant's prior criminal

record demonstrate that there is "`no

substantial likelihood of his being

reformed and _ rehabilitated.' No

standards for such reformation, mitigating

or aggravating circumstances are set forth.

On the Assembly side Assemblyman

Mike Antonovich (R- Glendale) has

submittedAB-58, which provids a

mandatory death penalty for first degree

murder of a peace officer.

Assemblyman Antonovich co-authored

with Freshman Assemblyman Walter

Ingalls (D-Riverside) AB-96 which

provides that murder committed in the

perpetration of or attempt to perpetrate

skyjacking is first degree murder

punishable by the mandatory death

penalty.

AB-109, introduced eo Assemblyman

John Briggs (R-Fullerton), provides a

mandatory death penalty for first degree

murder of a peace officer or fireman.

AB-116 by Assemblyman Antonovich

provides that all first degree murder is

punishable by mandatory death penalty.

AB-172 by Assemblymen Antonovich,

Richard Hayden (R-Sunnyvale);

Raymond Seeley (R-Palm Springs);

Robert Badham (R-Newport Beach);

Robert Burke (R-Huntington Beach); Bill

Lancaster (R-Covina); Robert Nimmo (R-

Bakersfield); and Floyd Wakefield (R-

Downey) would provide the mandatory

death penalty of skyjacking.

AB-826 by Assemblyman Newton R.

Russell (R-Burbank) would also punish

Rights |

`Amendment. The measure stands little

chance of passage and in our view can have' .

discrimination in the: U.S.,

skyjacking by a Ses death penalty.

In our view, all of these bills violate the

mandate of the Eighth Amendment that

``cruel and unusual punishment'' shall

not be imposed. Most of them violate the

clear mandate of the United States

Supreme Court's anti-death penalty

decision in Furman v. Georgia. The bills

fly in the face of clear and convincing

evidence that the death penalty does not

act as a deterrent to criminals. They would

have each of-us, as citizens of this State,

become a party to the execution of another

human being. As the warden of San

Quentin put it during the most recent

election campaign, any of us who would

vote in favor of restoring the death penalty

should be prepared to personally press the

button which releases the poison gas. The

Legislature is now trying to restore the .

death penalty in this state. The current

bills may or may not withstand a

constitutional test, but each of us who

permit such legislation to pass

unchallenged in her or his own small way

becomes a party to the next execution in

this State. Letters to your Representatives

in the Assembly and Senate will have a

strong impact on the course of this

legislation. Your letters in opposition to

the death penalty should also be directed

to the members of the Senate Judiciary

Committee and the Assembly Criminal

Justice Committee both of which will hold

hearings on the bills. The members of the

Senate Judiciary Committee are Senators

Alfred Song (D-Los_ Angeles). .

Chairman; Nicholas Petris (D-

Alameda), Vice-Chairman; Biddle; .

Bradley; Deukmejian; Grunsky; John

Holmdahl (D-Alameda); Legomarsino;

Marler; George Moscone (D-San

Francisco); David Roberti (D-Los

Angeles); Stevens; and Robins.

Members of the Assembly Criminal

Justice Committee are Robert Crown (D-

Alameda); Chairman; John Miller (D-

Oakland), Vice-Chairman; Alan Sieroty

(D-Los Angeles); Henry Waxman (D-Los

Angeles); Frank Murphy (R-Santa Cruz);

Raymond Seeley (R-Palm Springs); and

Kenneth Maddy (R-Fresno). Letters

should be addressed to legislators at their

district address or at the State Capitol,

Sacramento.

Six women nominated to

ACLU-Board of Directors

Some months ago, the ACLU-NC

Board of Directors decided to add six new

at-large seats to the Board, all to be filled

by women. After months of searching for

possible appointees, the nominating

committee chaired by Nancy McDermid

has suggested six names and all have been

approved by the Board.

The new Board members are:

Marilyn Hall Patel is an attorney in

private practice in San Francisco

specializing in cases relating to women's

rights and employment discrimination,

domestic. relations and immigration. A

graduate of Fordham University Law

School, Ms. Patel is Legal Counsel for the

National Organization for Women and a

member of the Board of Directors of the

NOW Legal Defense and Education Fund

in. Washington, D.C. She is also the

Director of Advocates for Women in San

Francisc

Marilyn Patel

Eve Pell is a writer and editor as well as

co-founder and legal worker of the Prison

Law Collective. A graduate of Byrn Mawr

College, she is a teacher at Hamlin School

in San Francisco. Along with Paul Jacobs

and Saul Landau, she co-authored ``To

Serve the Devil" a history of racial

and is the

editor of `Maximum Security - Letters

from Prison.'' Previously she has worked

for UES Senator Joseph Clark of

Pennsylvania and on the Soledad Defense

Committee.

Alice Daniel is currently an Associate

Professor at Hastings College of the Law

after working for the NAACP Legal

Alice Daniel

Defense Fund. While at LDF she was

heavily involved in major litigation on

prisoners' rights and has a number of

- significant victories in that field. Before

moving to California she represented

indigent criminal defendants for the Legal

Aid Society of New York and served on

the New York Civil Liberties Union

Legislative Committee. She was also a

member of the National ACLU Due

Process Committee.

Germaine Wong has served as as an

officer, advisor, and/or member of a.

multitude of community organizations in

San Francisco. She is currently Executive

Secretary of Chinese for Affirmative -

Action and Director of the

Chinatown/North Beach English

Language Center. Other organizations in

which she is involved include United

Asian Community, Chinese Media

Committee, and the Chinatown Youth

and Recreation Committee. She has

received a Master's Degree in Counseling

from San Diego State College.

Germaine Wong

Naomi Lauter is on the staff of the

Jewish Community Relations Council and

is a native San Franciscan. She received

continued to page 5

POLICY

April

aclu NEWS 2

`Unconditional

Fee. speech --

What's wrong

with our

libel laws?

By MIKE CALLAHAN

In response to a series of complaints from individuals

and groups who have been sued in civil proceedings for

libel and defamation, the ACLU-NC Board of Directors

rejected the National ACLU position and adopted a new

policy statement on ``Free Speech and Defamation.'

Accepting the Legal Committee's recommendation, the

Board approved as its policy ``that speech on public affairs

is absolutely protected against tort judgments based on

defamation and related torts (as set forth in the Black-

Douglas-Goldberg position expressed in their dissents in

New York Times v. . Sullivan).''

ACLU represented two groups last year on the theory

that libel actions were depriving them of their rights to

free speech. San Francisco Consumer Action established

an informational picket line at British Motors last

summer to protest the company's failure to honor its ~

warranties. BMC responded with a libel suit for $6

million and requested an injunction against any further

picketing which was granted. General Counsel Paul

Halvonik appealed the injunctions as unconstitutional

the libel action was dismissed.

In McKeon Construction Co. v. Bruce Kennedy et al.,

a conservationist group successfully opposed developers at

permit hearings who wished to subdivide some land in

Sacramento County. The construction company charged

harassment by the conservationists and filed an $80

million damage suit against them on the theory that the

defendant conservationists ""engaged in a conspiracy to

deprive'' the company of lawful use of the land. The

ACLU entered the case as amicus curiae and the

defendant's. legal objections to the complaint were

sustained, because the judge held that the group's

testimony was protected by the First Amendment. -

In San Carlos, a citizens' group circulated petitions for

a referendum to overturn a zoning ordinance passed by

the city council approving a housing development in the

San Carols Hills area. As a result of this activity, the

developer sued the group for $4 million and acquired an

injunction stopping the referendum. Another libel action

was filed last year when an institute dependent on

foundation: grants lost its funding after participants in the

program complained about policies of the institute to the

foundation. Directors of the institute sued the

complaining group for libel and were granted an

injunction prohibiting those persons from further

communicating with foundations. That suit was

eventually dismissed.

Traditionally, the right of free speech has constituted a

limitation on the government, prohibiting it from

controlling communication by citizens. According to this

view, it is well within the bounds of the ACLU's purpose

to oppose injunctions issued by courts as in the cases

mentioned above. Those are all clear instances of a branch

of the government restricting free speech and the ACLU

has always opposed such restrictions.

With the cases above, however, it is unlikely that the

persons charged with libel or defamation could exercise

their free speech rights even if the injunctions against

them were dropped. A multi-million dollar law suit still

represents substantial intimidation for an individual or

citizens' group. Certainly very few people would not

consider a libel assessment of such proportions an

effective tool for ``chilling'' free speech. On the surface it

would appear that this problem would be outside of the

ACLU's area of concern because the problem is created

by another private group or individual. The First

Amendment is only a restriction on the government. -

With the San Carlos and Sacramento cases it is not

necessary to reach that issue. There, the ACLU could

simply argue that the conservationist groups had a

constitutional right to petition the government and

address themselves to decisions of government agencies.

These solutions only work, however, when the libel

action results from communication with the government.

In the British Motors case that did not occur, so free

speech was ``chilled'' just by the existence of the lawsuit.

Current libel law stems from New York Times v.

Sullivan. In that decision, the U.. S. Supreme Court

unanimously held that before damages could be awarded,

against. someone commenting on a public official, the

person charging defamation must prove that the speech

was motivated by ``actual malice'', which the Court

defined as ``knowledge that the statement was false or

reckless disregard of whether it was false or not.''

BLACK - GOLDBERG - DOUGLAS OPINIONS

In concurring opinions, Justices Black, Goldberg and

Douglas went further than the rest of the Court. Justice

. Black, joined by Justice Douglas, argued that there

should be an absolute rule that criticsm of a public official

for his public conduct was proteced by the First

Amendment whether true or false, malicious or innocent.

He held that malice is ``an elusive, abstract concept, hard

to prove and hard to disprove.'' Of course, the result is

costly, lengthy litigation which hardly suffices for sturdy

First Amendment protections. With such an arbitrary

standard to guide them, he cautioned that juries would be

free to overlook fine points of law in order to punish an

unpopular defendant. He and Douglas both favored "`an

unconditional right to say what one pleases about public

affairs...(as a) minimum guarantee of the First

Amendment.'

Justice Goldberg, AG joined by Douglas, pointed out

that free speech ought not to turn on a jury's probing of

motive and that the possibility of expensive and risky

litigation would dampen free speech whether or not a

judgment was obtained by the plaintiff. Goldberg

expressly stated, however, that the unconditional rule for

which he argued would not be applicable where criticsm

_was not directed to a public official, or where it was

directed to the wholly private life of a public official.

With some exceptions, the New York Times v.

Sullivan holding is reflected in the National ACLU policy.

That statement too relies on the ``malice'' test for

determining whether false statements about persons in

public life can be deemed actionable, repeating the same

definition of malice as used by the Court: ``actual

knowledge of the falsity of the statement or a reckless

disregard of whether or not it is false."'

In a society where 90 per cent of lawyers' time is

devoted to 10 per cent of the people, leaving non-wealthy

defendants to defend in court against multi-million-dollar

libel charges does a gross disservice to free speech rights.

What we condone under New York Times is the use of

wealth in the form of litigative power to quash criticism.

A small muckraking newspaper or a local conservationist

group cannot possibly outlast the wealthy plaintiff

determined to stifle opposition to his aims.

`EDUCATION, NOT ABRIDGMENT"

We do nothing to expand First Amendment protections

by allowing the courts to serve as the vehicle for such

suppression of speech. Furthermore, if a judgment is

assessed against one or several groups speaking out on

public issues, because a jury found their motivation to be

malice, will not others be intimidated by the possibility of

a similar fate? But we need not even go that far because an

entity without substantial financial backing will be ruined

and silenced just by the burden of defending itself. This

too constitutes an irreconcilable strain on the right of free

speech.

Adoption of a position supporting an unconditional

_right to speak out on public issues may unavoidabley

prompt instances of irresponsible exercise of that speech.

Given current alignments of power, however, it is

doubtful that the public official who is the butt of criticism

will have no forum or opportunity to respond. Where

opponents have access to the ""marketplace of ideas,'' we

can be confident that the truth will out. In Justice

Goldberg's words, ``counter-argument and education are

the weapons available to expose these matters, not

abridgment...of free speech."'

The public official certainly has greater access than

most citizens to the media marketplace, so some may

argue that libel laws provide protection to those who do

not have this remedy. Such reasoning is folly in most

cases, however, because if an individual or group has no

opportunity to counter abuses of free speech, they

probably also lack the means of engaging in uncertain

litigation. Besides, in many cases the public official may

enjoy immunity from libel actions for his statements

because we do not wish to inhibit his ardor in serving the

public. Certainly, we should at least provide equal latitude

to criticism of a public offical by citizens and the press.

On balance,the solution to such a dilemma is not to

allow continued use of the libel laws to stifle free speech

but rather to remove them as an obstacle to its free and

unhampered exercise. We must also seek to guarantee to

the powerless greater access to media, but most

importantly we must abandon our reliance on the courts

to decipher the truth for us when we are presented with

conflicting claims. Part of the burden of living in a

country where free speech abounds is that citizens must

develop healthy skepticism of what their leaders tell them

and withstand conflicting opinions seeking their

allegiance. The alternative is ""child-like'' adherence to a

single, simple, and coherent dictate from on high.

continued from page 4

her M.A. in Educational Research at San

Francisco State. She was a member of the

San Francisco Citizens' Advisory

Voir Dire refers to the stage in a trial

RACE, POLITICAL OVERTONES

Voir dire sought in draft evasion trial

minority status, political overtones of the

trial, and pretrial publicity have combined

climate in which jurors may have

entrenched, . preconceived opinions of

Committee on Integration and has been

active in several Democratic political

campaigns (Women for Kennedy, Women

for Brown). She has also served as

chairwoman and/or member of many

organizations relating to the Jewish

community.

Arabella Martinez Springer received

her education in Social Welfare at U.C.

Berkeley and is Executive Director of the

Spanish Speaking Unity Council in

Oakland. She is the co-author - of

`*Mexican-American , Recipients'

Orientation Toward and Modes _ of

Adaptation to the Welfare System.'' She

was formerly Fxecutive Director for the

Valley Communities Economic

Opportunity Organization in Livermore.

She has also worked for the International

Institute in San Francisco and the Social

Planning Division of the City of Berkeley.

when the prospective members of the jury

are questioned to determine whether they

harbor any biases in the case. Procedures -

vary in different courts on how voir dire is

conducted. The judge may allow the

prosecution and defense attorneys to

do the questioning directly, or

(May fequest. the -ditorieys to

submit their questions to the bench and

they will be put to the jurors by the judge.

ACLU Associate Staff Counsel Peter

Sheehan filed an amicus brief last month

in the case of Leonard McNeil, arguing

that the judge should allow extensive voir

dire by the attorneys. McNeil is a black

who is charged with refusing induction.

He has been a visible anti-war and political

activist for many years.

Sheehan urges the Court to allow a

thorough voir. dire conducted by the

because the defendant's

attorneys

in such quantity and intensity as to offer a

``nossible temptation to the average man .

.. to forget the burden of proof required to

convict.' In other words, it is far too

likely that a juror will be biased when all of

these factors obtain in a case. Extensive

examination of the jurors is necessary to

discover the biases.

Special consideration should be given to

the fact that a political trial injects

""passion and emotionalism'' into the

proceedings, making it especially

necessary that the trial be scrupulously

fair, Sheehan explained. Besides McNeil's

racial andpolitical minority, the trial will

be touching on issues that have already

evoked much. passion, such as_ the

morality of the war and the individual's

response to it. Also, the rash of articles on

amnesty, the return of the POW's, the

loyalty of draft deserters, have all created a

persons who opposed the war.

Thorough voir dire. enables counsel to

exercise `educated'? peremptory

challenges of prospective jurors. Sheehan

urged that ``since the peremptory

challenge is `one of the most important

rights secured to the accused,' it would

seem logical that educated peremptories

would be preferred.'' In 1965, the U. S.

Supreme Court said that educated

peremptories not only ``eliminate

extremes of partiality on both sides, but

also assure the parties that the jurors

before whom they try the case will decide

on the basis of the evidence placed before

them."

Argument on McNeil's motion for

extensive voir dire will be heard in the

U.S. District Court before the rest of the

trial proceeds.

April

aclu NEWS

COMMENTARY

Letters to the Editor:

Airport Search

Policy Opposed

Dear Editor: -

Last week the board adopted a policy opposing all

airport searches unless based upon a showing of probable

cause as to each passenger searched. The policy applies

not only to the search of hand luggage but also to the

search which occurs when a passenger passes through a

magnetometer, a device which ates only the presence

_ of ferro-magnetic metal.

In so doing, the board relied strongly on the Fourth

Amendment doctrine which courts have developed that

. all searches conducted without probable cause are

_ unconstitutional. Many members of the board also viewed

-airport searches as but another example of a continuing

erosion of our rights to privacy as we head toward 1984.

The board rejected the notions (1) that the government's

interest in deterring skyjacking is sufficiently compelling

to permit the searches without a particularized showing of

probable cause and (2) that: aircraft are sufficiently

distinguishable, because inherently more dangerous and

vulenerable than other places (e.g., public buildings) so

that permitting searches at its boarding areas is not

preceaeys for penne searches at other public

entrances.

The ihard's concern for protecting our privacy is

admirable. As one who opposed the adoption ot the

policy, I-must admit that I find it difficult to reconcile

hand luggage searches of all those members of the public

who approach docking areas with our traditions of privacy

or with our understanding of the Fourth Amendment's

development under case law.

The search which occurs when a passenger steps.

through. a magnetometer is a different matter. The

development of the Fourth Amendment doctrine

forbidding searches without an individualized showing of

necessity, stemmed largely from cases involving searches

of a much greater magnitude, e.g., searches of homes,

searches where a government officer lays his hands upon

and over a citizen.

By applying this doctrine so as to condemn the

magnetometer search, the board has elevated the purity of

its logiciover common sense. If the Fourth Amendment

forbids `airport guards from using such mechanical

contrivances to detect weapons by applying them to the -

public at large, we will return to the situation where

guards will be able to rely only on amorphous hijacker

profiles and their own intuition. The result will be that

they will search hippies, but not D.B. Cooper. Recent

history has shown that these procedures protect neither

our right to privacy nor our security.

Moreover. by inflexibly opposing any search of

whatever t magnitude without an individualized showing of

probably, cause, we would preclude the use of

technological advances that, despite our fears, may

enhance rather than diminish our privacy. Assume, e.g.,

a wonderous, new contrivance, like a magnetometer,

which detects only weapons of other devices for hijacking

aircraft and | which is 100 percent effective. Can it

seriously, be contended that requiring members of the

public to'pass through such a device is a greater invasion

of privacy than hand-frisking thousands because they

arouse the security guards' suspicion?

Our policy speaks to the past, not to the future. It

reflects a fashionable fear of 1984. The effects of this fear

may be worse than the reality of the future. It may deny

us the opportunity to apply our constitutional

"commitment and concerns to on-going technology.

Rather than inflexibly condeming all searches without an

individualized showing of probably cause, we should

examine such factors as the magnitude of the search, the

government's showing of need to justify the particular

intrustion, the alternatives available, and then make our

judgments accordingly. Inflexible, per se rules concerning

searches. cannot accomplish this. The board should

reconsider its policy. - : `

NEIL F. HORTON

profound sadness.'

4 facilities, employment,

`To Kill a Child's Spirit'

Ramsey Clark is Chairman of the

National Advisory Board of the

ACLU and a former U. S. Attorney

General. The essay printed here is

from the forward of a recently

published book called To Kill a

Child's Spirit - The Tragedy of

School Segregation in Los Angeles.

Published by F. E. Peacock Inc., the

book chronicles the resistance to

integration in Los Angeles schools

and the ACLU's: efforts `to

accomplish equal education for all of

the children of that city.

To quote Ramsey Clark, it is a

story of "`vast importance and

Caughey. the authors of the book,

have been both observers and

participants in the integration battle -

that has lasted more than a decade in

Los Angeles. They are also co-

chairpersons of the Education

Committee of the ACLU of

Southern California.

Mr. Clark's introduction to the

book is reprinted here because the

distressing events described in To

Kill a Child's Spirit are hardly

confined to Los Angeles. Last

months' ACLU News reported the

appalling segregation in the

Richmond schools and similar

conditions, with similar official

resistance to change, can be found

in cities across the nation. This book

discusses. issues facing us all and

appeals to us not to ignore them.

_ Affinity and consanguinity are

strong ties. There is a stronger one

among people who care - a shared

belief. Be warned. dear reader, that I -

am bound to your authors by all

three.

This is a story of vast importance

and". profound sadness. Its

unrelenting tragedy could be un-

bearable if with the tale that is told

the character of the teller did not

`also unfold. Here is a saving grace

for through the darkness of the night

there is at last a light.

The subject is racism spawned by

fear and greed.

- The place is the Golden State, the

land of tomorrow, the City of

Angels: Los Angeles, California.

' The medium is history not

drama, but the power of this history

combines in its search for truth the

on-the-scene

Thucydides with the elemental art

of a soul-searching Aeschylus.

The time is the 1960s, the years

when American pledged full

commitment to its noblest purpose -

the quest for equal justice. NOW we

were to right what Lyndon Baines

Johnson, speaking on the campus of

Howard University, called ``the one

huge wrong of the American

-people.'' Freedom Riders, Meredith

entering Ole Miss, lunch counters

desegregated at Birmingham, the

Civil Rights Act of 1964 opening

public accommodations . and

and other

opportunities, the Voting Rights

Act of 1965 placing political power

within the reach of Black Amer-

icans, open housing in the hard

fought Civil Rights Act of 1968 - all

promised `*We Shall Overcome."'

Meanwhile, in the real world, the

daily humdrum of urban America

seeking to solve immediate, specific

problems on the ground where

fact-linking of (c)

people live, quite another: story was

unfolding. The nation did not see it.

Indeed, we did not want to see it.

This is the story of the struggle to

provide equal educational op-

portunity for all God's children. It

is the story of the suffocation of the -

spirit of those we all must cherish -

the children of the poor.

It is mind boggling to believe this

was the same America we felt so

good about as we marched from

Selma to Montgomery. But it

wasn't the Old Confederacy we so

self-righteously excoriated for its

racism. No, it was the new melting

- pot, the place of opportunity: open,

robust, uninhibited Los Angeles.

There had been no slavery in

California. The blacks who came

were free from the beginning. True

they came from the culture of the

South and even in 1965 seven of ten

living in Los Angeles had been born

in the South. But the siren song that

brought them was an orchestration

of freedom,

Their numbers could easily be

absorbed and the proclaimed

community ethic was over-

whelmingly civil right. Yet a

more intricate, sophisticated, and

effective web of resistance has rarely

been spun. The epoch ended, as it

had begun, in segregation.

The effort to integrate starts late.

In 1962,.a school board aware of

segregation stood for the status quo

and proclaimed, *`We won't bus

em. jecivansport..@ Child.) a

community project born in idealism

and tendering a ride to equality, was

used cynically by the school board to

avoid its own responsibility. In 1963

the California Supreme Court found

de facto as well as de jure

segregation prohibited by the

Constitution. of the State. The

winter of 1967-68 saw a `"`rage

against busing' ' and wild allegations

such as a cost of.171 million dollars.

Finally, in 1968, after years of

futility, the ACLU entered court to

desegregate. After

litigation a decree, wise, moderate,

and clearly the law of the land, was

entered in 1970 designed to

equality, and justice.

prolonged |

overcome segregation. It did not

mention busing. Five persons were

shortly arrested for plotting to

assassinate its author - a modern

judicial hero - Alfred Gitelson. In

the ensuing election the people

repudiated equal justice by defeating

him at the polls. And the case

drones on through appeal unto this

day.

In the meantime, the children

wait - and waiting lose their chance

for fulfillment.

Across the nation, as in Los,

Angeles, the battle rages, and

through the din and smoke we fail to

understand the lesson America

must learn - not chemistry, algebra,

or political theory, but to live

together. America must learn to live

together. The only way to learn is to

do it and a vital place where we must

begin is in our schools.

This critically needed book, a

careful definitive case history, tells

us how the Golden State lost its.

golden opportunity to show the

world that people of all races can live

together with dignity, respect, and

love. It tells us how hard it will be to

fulfill the American dream.

It also tells us we can overcome

and how. We can care, give,

persevere, keep reason in the high

seas of hatred, greed,and fear. We

can find our way as individuals to

make a difference and what our hand

`*findeth to do'' we can do with our

might.

The Caugheys, LaRee and John,

have forged their place in history by

both writing and making it..In the

dark days of McCarthyism they

fought for years, ostracized and

alone, in defense of academic

freedom - the right to seek and

perchance to find the truth and to

speak. They could have retired on

laurels nobly: won. They chose

rather to carry on and continue as a

force of nature ``to be thoroughly

worn out before they are thrown on

the scrap heap.''

The question is whether you and I

will hear their call for help and join

in their belief.that all children may

know the truth and be, thank God

_ Almighty, free at last.

RAMSEY CLARK

`peiu0g pue

. One nation, divisible, with liberty and justice for some."

a}edIpUAS SOUILL, JO UOISSTULIed YIIM poyulide. `ayeoIpuAS Soul, "yy JystaMAdOD

POLICY

April

aclu NEWS

ACLU Affirmative Action

- Realizing that gross inequities still exist

in educational and employment

opportunities for minorities and women,

the ACLU-NC Board of Directors adopted

a policy position in support of affirmative.

action programs at their regular meeting.

last month. The basic draft of the adopted

Statement was prepared by Board

member and Stanford Law Professor

Anthony Amsterdam. That draft was:

discussed for two months by the Board,

_altered in part, and finally approved.

_ Nearly 96 per cent of all jobs earning

more than $15,000 per year are held by

white males. Racial minorities and women

: divide the rest. Such figures can only

indicate that discrimination and exclusion

are pervasive and that strong measures are

necessary to counteract the injustice. It is

clear that ``good faith'' efforts-have failed.

The only solution is that positive steps to

reverse the historical pattern are necessary

to reduce discrimination and inequality.

The statement printed below is the

policy of ACLU-NC and it will be made

available to employers and educators, both

public and private, in an effort to offer

them a plan for promoting equal

opportunity.

In a free society, every individual

should enjoy equal access to employment

opportunities and to the means of self-

advancement, without invidious

discrimination. Invidious discrimination

includes, of course; not only

discrimination on the grounds of race,

sex, religion, national origin or political

persuasion; `it is practiced whenever any

person is denied the chance to hold a job or

to receive education of training on the

basis of some personal characteristic

unrelated: to job fitness or educational

promise. All forms of invidious

discrimination offend basic civil liberties,

and the A.C.L.U. will take action against

each of them in appropriate cases. For the

present, the pervasive, long-continued,

intractable quality of employment and

educational discrimination against racial

minorities and women, warrants the

highest priority in the allocation of the

A.C.L.U.'s_ resources. devoted to

combatting discrimination.

The root concept of the principle of

non-discrimination is. that individuals

should be treated individually, in

accordance with their _personal merits,

achievements an

the basis of the s

class or caste with which cent

identified. However, when deamination

-- and particularly when discrimination in

employment and education - has been

long and widely. practiced against a

particular class, it cannot be satisfactorily

eliminated merely by the prospective

adoption of neutral, ``color-blind''

standards for selection among the

applicants for available jobs or education

programs. Affirmative action is required

to overcome the handicaps imposed by

past discrimination of this sort; and, at

the present time, affirmative action is

especially demanded to increase the

employment and the _ educational

opportunities of racial minorities and

_ women.

The precise form of an effective action.

program must depend upon the nature of

the employment or educational role in

question, the skills or aptitudes required

for performance in that role, its

susceptibility to in-service training that

can develop the required skills, the

numbers and characteristics of persons

whose interests would be advanced by

entry into the role, the extent-of present

under-representation of minorities and

women in the role, its place in the over-all

economy, and other factors. But as a

general matter, affirmative action should |

include:

(1) special efforts to seek out and recruit

qualified members of ne -represented

groups;

(2) review of all standards and

qualifications used to screen applicants,

and the abandonment of any standard or

qualification that is not a reliable predictor

of requisite performance;

(3) development of special measures for

the prediction of requisite performance in

the case of under-represented groups

whose ability to demonstrate potential

performance on conventional measures is

impaired ;

(4) involvement of members of under-

represented groups in_ responsible

administrative and policy-making position

in the applicant-selection process;

(5) to the extent feasible, provision of a

program of in-service training or

compensatory education that is fully

adequate to develop or upgrade the

potental performance of under-represented

groups in order to assure their retention

and make the affirmative action program

work in practice;

(6) financial assistance to members of

under-represented groups to the extent

necessary and feasible to permit them to

take advantage of in-service training and

compensatory education or to overcome

In collections

ACLU-NC News: 1973

Details

Title: vol. 38, no. 4 (April, 1973)
Creator: American Civil Liberties Union of Northern California
Date: 1973 April
Identifier: ACLUN_0437
Genre: newspapers
Physical description: 40.5 x 28 cm
Publisher: San Francisco (Calif.): American Civil Liberties Union of Northern California
Preferred citation: ACLU of Northern California News vol. 38, no. 4, 1973 April; PER ACLUN; California Historical Society.
Rights statement: In Copyright
Publication rights: Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.
Topical subject(s): Searches and seizures
Privacy, Right of
Criminal justice
Voting rights
Freedom of expression
Educational equity
Discrimination in housing
Conscientious objectors
Capital punishment
Academic freedom
Reproductive rights
Affirmative action
Named subject(s): Briggs, John
Clark, Ramsey
George Deukmejian
Halvonik, Paul
Krause, Marshall
Landau, Saul
Maginnis, Patricia
Marson, Charles
Moscone, George
Orser, Richard W.
Patel, Marilyn Hall
Salz, Helen Arnstein
Warnick, Jack
National Association for the Advancement of Colored People
United Farm Workers
Geographical subject(s): Sacramento (Calif.)
Salinas (Calif.)
Monterey (Calif.)
San Quentin (Calif.)
Santa Rosa (Calif.)
Monterey County (Calif.)
Modesto (Calif.)
Fresno (Calif.)
Oakland (Calif.)
Berkeley (Calif.)
Collection identifier: PER ACLUN